CONSTITUTIONAL LAW II REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
TABLE OF CONTENTS
I. DUE PROCESS AND EQUAL PROTECTION AS LIMITATIONS ON POLICE POWER,
EMINENT DOMAIN AND TAXATION
II. REQUIREMENTS OF FAIR PROCEDURE
III. FREEDOM OF EXPRESSION
IV. FREEDOM OF RELIGION
V. LIBERTY OF ABODE AND TRAVEL
VI. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION
VII. RIGHT TO BAIL
VIII. RIGHTS DURING TRIAL
IX. PRIVILEGE AGAINST SELF-INCRIMINATION
X. RIGHT TO SPEEDY DISPOSITION OF CASES
XI. SUBSTANTIVE RIGHTS UNDER THE DUE PROCESS CLAUSE
August 29, 2017 A. Sadsad
I. DUE PROCESS AND EQUAL PROTECTION AS
LIMITATIONS ON POLICE POWER, EMINENT
DOMAIN AND TAXATION
A. Fundamental Principles on Constitutional Law
and the Bill of Rights
Fundamental principles- there's nothing much there
except to remember that the Bill of Rights is basically
a limitation of state power. More or less, it is not
applied to any conflict between private individuals. It
is when the State flexes its authority where the Bill of
Rights comes to play.
Of course there are a few exceptions:
One, we have discussed the case of Zulueta vs. CA
- the fight between a couple where the constitutional
right on privacy of communication or correspondence
has been applied. That is a good law, although not
legally appropriate.
ZULUETA vs. CA
G.R. No. 107383 February 20, 1996
Facts: Petitioner Cecilia Zulueta is the wife of private
respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor
of medicine, and in the presence of her mother, a
driver and private respondent's secretary, forcibly
opened the drawers and cabinet in her husband's
clinic and took 157 documents consisting of private
correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks,
diaries, Dr. Martin's passport, and photographs. The
documents and papers were seized for use in
evidence in a case for legal separation and for
disqualification from the practice of medicine which
petitioner had filed against her husband.
Issue: WON the documents are admissible in
evidence?
Ruling: NO. Indeed the documents and papers in
question are inadmissible in evidence. The
constitutional injunction declaring "the privacy of
communication and correspondence [to be]
inviolable is no less applicable simply because it is
the wife who is the party against whom the
constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if
there is a "lawful order [from a] court or when public
safety or order requires otherwise, as prescribed by
law." Any violation of this provision renders the
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35
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evidence obtained inadmissible "for any purpose in
any proceeding."
The intimacies between husband and wife do not
justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the
constitutional protection is ever available to him or to
her.
Second, in your case of Manila Prince Hotel vs.
GSIS, the concept of state action has also been part
of our jurisprudence. Even if it is technically a private
act but if it is considered as a state action, or the
activity is a public function and that the government is
significantly involved, and the government has
authorized the action, then the constitutional
provisions relating to the limitation of state power or
authority therefore would come to play as well.
MANILA PRINCE HOTEL vs. GSIS
G.R. No. 122156 February 3, 1997
Facts: GSIS pursuant to the privatization program of
the government, decided to sell through public
bidding 30% to 51 % of the issued and outstanding
shares of respondent Manila Hotel (MHC). In a close
bidding, only two bidders participated. Petitioner
Manila Prince, a Filipino Corporation, which offered
to buy 51% of the MHC at P41.58 per share and
Renong Berhad, a Malaysian Firm, which bid for the
same number of shares at P44.00 per share.
Pending the declaration of Renong Berhad as the
winning bidder, petitioner matches the bid price of
P44.00 per share by Renong Berhad. Subsequently,
petitioner sent a manager's check as bid security to
match the bid of Renong Berhad which respondent
GSIS refuse to accept. Apprehensive that GSIS has
disregarded the tender of the matching bid and that
the sale may be consummated which Renong
Berhad, Manila Prince filed a petition before the SC.
GSIS argued that the constitutional provision is
addressed to the State, not to respondent GSIS
which by itself possesses a separate and distinct
personality
Issue: WON the constitutional provision should be
applied?
Ruling: YES. It is undisputed that the sale of 51% of
the MHC could only be carried out with the prior
approval of the State acting through respondent
Committee on Privatization. As correctly pointed out
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
by Fr. Joaquin G. Bernas, S.J., this fact alone makes
the sale of the assets of respondents GSIS and MHC
a "state action."
In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state
action" covered by the Constitution:
(1) when the activity it engages in is a "public
function;"
(2) when the government is so significantly involved
with the private actor as to make the government
responsible for his action; and,
(3) when the government has approved or
authorized the action.
It is evident that the act of respondent GSIS in selling
51% of its share in respondent MHC comes under
the second and third categories of "state action."
Without doubt therefore the transaction. although
entered into by respondent GSIS, is in fact a
transaction of the State and therefore subject to the
constitutional command.
When the Constitution addresses the State it refers
not only to the people but also to the government as
elements of the State. After all, government is
composed of three (3) divisions of power —
legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is
correspondingly directed to the three branches of
government. It is undeniable that in this case the
subject constitutional injunction is addressed among
others to the Executive Department and respondent
GSIS, a government instrumentality deriving its
authority from the State.
So those are your exceptions. Generally, the bill of
rights is a limitation on state power, because
constitutional law is a study of the balance between
the inherent powers of the state and its so-called civil
liberties.
B. Due Process in General
ART III 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.
When we say due process it is your basic concept of
fairness. There are two components:
a. Substantive and
b. Procedural
When we say substantive, it means:
• the intrinsic validity of the law proper exercise
of the legislative power
• it is a valid law for the purpose
• it is not comprehensive and arbitrary
And then you have the requirement of publication,
Tañada vs. Tuvera has taught us that there must
have to be publication before a law has to be
effective.
TAÑADA vs. TUVERA
G.R. No. L-63915. December 29, 1986.
Ruling: Publication is indispensable in every case,
but the legislature may in its discretion provide that
the usual fifteen-day period shall be shortened or
extended.
It is not correct to say that under the disputed clause
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publication may be dispensed with altogether. The
reason is that such omission would offend due
process insofar as it would deny the public
knowledge of the laws that are supposed to govern
it. Surely, if the legislature could validly provide that a
law shall become effective immediately upon its
approval notwithstanding the lack of publication (or
after an unreasonably short period after publication),
it is not unlikely that persons not aware of it would be
prejudiced as a result; and they would be so not
because of a failure to comply with it but simply
because they did not know of its existence.
Significantly, this is not true only of penal laws as is
commonly supposed. One can think of many non-
penal measures, like a law on prescription, which
must also be communicated to the persons they may
affect before they can begin to operate.
We note at this point the conclusive presumption that
every person knows the law, which of course
presupposes that the law has been published if the
presumption is to have any legal justification at all. It
is no less important to remember that Section 6 of
the Bill of Rights recognizes "the right of the people
to information on matters of public concern," and this
certainly applies to, among others, and indeed
especially, the legislative enactments of the
government.
And in relation to the issue of publication, the
Administrative Code or EO 292 also requires the
submission of certified copies of Implementing
Rules and Regulations based on a valid delegation
of legislative power provided for administrative
agencies.
Certain administrative agencies or officers are
authorized to issue rules and regulations to
implement the provisions of the law. We refer to that
as subordinate legislation or rule-making power.
Those rules must have to be submitted to the UP
Law Center for publication in what we know as the
National Administrative Registry. If there is no such
publication, these Implementing Rules and
Regulations will not take effect, especially those with
penal sanctions or impositions.
You have your Cawad vs. Abad, that is a case
involving publication of IRRs and excepted to that
requirement would be interpretative regulations. If the
issuance or a regulation issued by a administrative
agency simply interprets a law or an existing law
such interpretative regulation need not be published
because they do not add more to what the law or the
published IRR have already provided.
CAWAD vs. ABAD
G.R. No. 207145 July 28, 2015
Facts: RA 7305 otherwise known the Magna Carta of
Public Health Workers was signed into law.
Pursuant to Section 35 of the Magna Carta, the
Secretary of Health promulgated its Implementing
Rules and Regulations (IRR) in July 1992.
Thereafter, in November 1999, the DOH, in
collaboration with various government agencies and
health workers' organizations, promulgated a Revised
IRR consolidating all additional and clarificatory rules
issued by the former Secretaries of Health dating
back from the effectivity of the Magna Carta.
Issue: WON the DBM-DOH Joint Circular is null and
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
void for its failure to comply with Section 35 of RA
No. 7305 providing that its implementing rules shall
take effect thirty (30) days after publication in a
newspaper of general circulation, as well as its failure
to file a copy of the same with the University of the
Philippines Law Center-Office of the National
Administrative Register?
Ruling: NO. Indeed, publication, as a basic postulate
of procedural due process, is required by law in order
for administrative rules and regulations to be
effective.24 There are, however, several exceptions,
one of which are interpretative regulations which
"need nothing further than their bare issuance for
they give no real consequence more than what the
law itself has already prescribed."25 These
regulations need not be published for they add
nothing to the law and do not affect substantial rights
of any person.26
In this case, the DBM-DOH Joint Circular in question
gives no real consequence more than what the law
itself had already prescribed. The Joint Circular did
not modify, amend nor supplant the Revised IRR, the
validity of which is undisputed. Consequently,
whether it was duly published and filed with the UP
Law Center - ONAR is necessarily immaterial to its
validity because in view of the pronouncements
above, interpretative regulations, such as the DBM-
DOH circular herein, need not be published nor filed
with the UP Law Center - ONAR in order to be
effective. Neither is prior hearing or consultation
mandatory.
Procedural due process, on the other hand, refers
to the procedure that before one is to be penalized or
condemned one must have to be heard.
Relative to your procedural due process is your
principle of relativity in or of due process.
In the principle of relativity of due process, while
the constitution requires that no person shall be
denied of life liberty or property without due process
of law, the procedure for each and every case, for
each and every party would be different. So there is
no hard and fast rule applicable to all types of cases.
So if it were to be in a criminal case because of the
emphasis of due process to the accused, it does not
mean that there is no due process on the part of the
complainant but it is more emphasized with respect
to the accused because of so-called imbalance in the
status between the State and that of the accused.
That is the reason why there is a due process
restatement for criminal cases for the accused in
Section 14 of your Art III.
Same thing with administrative cases, the procedural
due process do not follow the so-called trial type
proceedings as it is in judicial proceedings.
So for satisfaction of the due process clause in the
Constitution, it is relative in every proceeding and for
every party in the case. In civil cases, the parties are
treated differently with respect to due process. In
criminal cases, the accused has more protection
when it comes to due process.
So in judicial due process, for procedural due
process, just a run down: [CJ-OH]
1. There must be an impartial court with jurisidiction;
2. Jurisdiction over the parties, especially with the
accused must have been acquired
3. There must be opportunity to be heard;
4. Judgment must be rendered after lawful hearing.
In your administrative proceedings, we still follow
the ruling in the case of Ang Tibay vs. CIR,
otherwise referred to as the seven cardinal primary
rights in adminisitrative procedural due process.
[HCS-SPIS]
1. There must be a hearing to present evidence
2. The tribunal must consider the evidence
presented;
3. Decision supported by evidence;
4. The evidence to support is substantial, meaning,
such relevant evidence as a reasonable mind accept
as adequate to support a conclusion;
5. The decision must be rendered on the evidence
presented at the hearing;
6. The tribunal must act on its or his own
independent consideration of the law and facts of
the controversy
7. The decision must state the law and the facts.
This is usually cross-referenced with the
constitutional requirement on court decisions.
Decisions, by formality but also constitutionally
required, must also state the facts and the law on
which the decision is based. So the question is
asked, should decisions of administrative agencies
comply with the constitutional requirement on court
decisions to state the facts and the law on which it is
based as requirement of due process? No. That
provision applies to court decisions only.
But if the question has been phrased:
Should decisions of administrative agencies state
clearly the facts and the law on which the same is
based, as a requirement of constitutional due
process?
The answer is yes because that is part of the 7
cardinal primary rights in administrative due process.
There are also two types of due process:
1. Granted by the Constitution
2. Granted by statute (statutory due process)
The first that would come to your mind would be the
right to appeal because constitutional due process
simply means the opportunity to be heard in criminal
cases when the accused is tried in the first instance.
There is your opportunity and so the right to appeal
is not a constitutional right. In fact, a cross reading
of your Section 14(2) and your right of the accused
under Rule 115, will tell you that there is no right to
appeal in the Constitution but it is granted under the
Rules of Court under Sec 1 Rule 115 which is the
statutory right to due process.
ART II Sec 14 (2): In all criminal prosecutions, the
accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to
have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and
the production of evidence in his behalf. However,
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
after arraignment, trial may proceed
notwithstanding the absence of the accused:
Provided, that he has been duly notified and his
failure to appear is unjustifiable.
Rule 115 Sec 1: Rights of accused at the trial. — In
all criminal prosecutions, the accused shall be
entitled to the following rights: xxx
(i)To appeal in all cases allowed and in the manner
prescribed by law. xxx
v Application of Statutory Procedural Due
Process in jurisprudence:
Also, we have invariably applied procedural due
process even by statute and not by the constitution;
by the interpretations of the Supreme Court:
(1) In school's disciplinary tribunals you cannot
find them in the Constitution because it is supposed
to be the right of the student considering this so-
called academic freedom in the institution of higher
learning to be expelled from the school for violation of
the school's discipline.
Our cases will tell us that the interpretation of the SC
in relation to the right of the student to remain as part
of academic freedom that he can only be expelled on
two grounds:
a. Academic proficiency violation and
b. Violation of school's rules on discipline
There is no question on "procedural due process" as
to the limitation when a student is expelled for failing
to meet the academic standards because every time
a student is tested, (long test short quiz or recitation)
there is opportunity to be heard. So when a student is
called in recitation and makes a pass, the opportunity
is there and therefore he is not denied of due process
if that student gets a failing mark in that recitation.
And so also with your written exams. But for the
school's rules of discipline, your cases will tell you
that there is a procedure. [WE-WI]
1. The student must be informed in writing of the
cause of the accusation against him;
2. The student must be furnished with the evidence
against him, though there is no right to cross-
examine the witnesss against him;
3. He has the right to though to present his own
witnesses to rebut the claim of the witnesses of the
complainant;
4. The tribunal must decide the case based on the
evidence on record and must of course be
independent because that is part of your
requirement of impartiality.
(2) Then you have your two-notice rule under the
Labor Code
That is not supposedly a constitutional right of due
process as well because it is not between the state
and the employee, it is between the employee and
the employer. Your cases on that will tell you that the
employer's mind has been set and fixed to really
impose discipline and the reason why the twin-notice
has to be satisfied is not for the employer per se but
for the employee.
Therefore those instances are so called statutory
right to procedural due process NOT part of the
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constitutional right to due process.
Some cases:
Cabalit vs COA is on due process in the
Ombudsman, the administrative cases. You know
that under RA 6770, the Ombudsman has the power
to promulgate rules and therefore the office has
enacted AO 217 and 807. In administrative cases, if
you remember the rule in the Ombudsman, there is
no need for a hearing. Administrative complaints or
cases are decided on submissions - affidavits,
position papers and there is even no hearing or trial
required. So this case raises that issue that there is
violation of due process. Again, general rule, in
administrative cases, there is no trial-type proceeding
required as in judicial cases. For so long as there is
opportunity to be heard, that would satisfy the
requirement.
CABALIT vs. COA
G.R. No. 180236 January 17, 2012
Facts: On Sept 2001, Philippine Star News, a local
newspaper in Cebu City, reported that employees
of the LTO in Jagna, Bohol, are shortchanging the
government by tampering with their income reports.
Accordingly, Regional Director Ildefonso T. Deloria
of the COA directed State Auditors to conduct a
fact-finding investigation. A widespread tampering
of official receipts of Motor Vehicle Registration
was then discovered by the investigators.
The auditors found grounds to conduct a
preliminary investigation. Hence, a formal charge
for dishonesty was filed against Cabalit et al in the
Office of the Ombudsman.
Office of the Ombudsman-Visayas directedthe
parties to submit their position papers pursuant to
Administrative Order (A.O.) No. 17, dated
September 7, 2003, amending the Rules of
Procedure of the Office of the Ombudsman. No
cross-examination of State Auditor Cabalit was
therefore conducted.
The hearing officer at the Office of the
Ombudsman-Visayas adopted the procedure under
A.O. No. 17 notwithstanding the fact that the said
amendatory order took effect after the hearings had
started
Issue: Whether or not there was a violation of the
right to due process?
Ruling: NO. Cabalit et al were not denied due
process of law when the investigating lawyer
proceeded to resolve the case based on the
affidavits and other evidence on record. Section
5(b)(1) Rule 3, of t the Rules of Procedure of the
Office of the Ombudsman, as amended by A.O.
No. 17, plainly provides that the hearing officer may
issue an order directing the parties to file, within ten
days from receipt of the order, their respective
verified position papers on the basis of which,
along with the attachments thereto, the hearing
officer may consider the case submitted for
decision. It is only when the hearing officer
determines that based on the evidence, there is a
need to conduct clarificatory hearings or formal
investigations under Section 5(b)(2) and Section
5(b)(3) that such further proceedings will be
conducted. But the determination of the necessity
for further proceedings rests on the sound
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
discretion of the hearing officer.
As the petitioners have utterly failed to show any
cogent reason why the hearing officer's
determination should be overturned, the
determination will not be disturbed by this Court.
We likewise find no merit in their contention that the
new procedures under A.O. No. 17, which took
effect while the case was already undergoing trial
before the hearing officer, should not have been
applied.
Since petitioners have been afforded the right to be
heard and to defend themselves, they cannot
rightfully complain that they were denied due
process of law. Well to remember, due process,
as a constitutional precept, does not always
and in all situations require a trial-type
proceeding. It is satisfied when a person is notified
of the charge against him and given an opportunity
to explain or defend himself. In administrative
proceedings, the filing of charges and giving
reasonable opportunity for the person so charged
to answer the accusations against him constitute
the minimum requirements of due process. More
often, this opportunity is conferred through written
pleadings that the parties submit to present their
charges and defenses. But as long as a party is
given the opportunity to defend his or her interests
in due course, said party is not denied due process.
Ylaya vs Gacod on disbarment proceedings: Even if
there is an initial "denial" of an opportunity to be
heard, not that there was one in this particular case,
SC said, if the party was able to file a motion for
reconsideration, the defect, whatever defect there
was is deemed cured. Because when the Motion for
Reconsideration was considered by the
administrative tribunal, then the opportunity to be
heard has been granted.
YLAYA vs. GACOTT
Adm. Case No. 6475 January 30, 2013
Facts: Atty. Gacott claims that the IBP violated his
right to due process because he was not given the
"amplest opportunity to defend himself, to cross
examine the witness complainant, to object to the
admissibility of documents or present controverting
evidence" when the IBP rendered its conclusion
without requiring the complainant to adduce
evidence in a formal hearing and despite the
absence of corroborative proof. He insists that these
defects rendered the complainant’s allegations as
hearsay, and the IBP’s report, recommendation or
resolution null and void.
Issue: WON there was violation due process clause?
Ruling: The most basic tenet of due process is the
right to be heard. Denial of due process means the
total lack of opportunity to be heard or to have one’s
day in court. As a rule, no denial of due process
takes place where a party has been given an
opportunity to be heard and to present his case;
what is prohibited is the absolute lack of opportunity
to be heard.
Although the respondent failed to have a face-to-face
confrontation with the complainant when she failed to
appear at the required mandatory conference on
October 6, 2005,37 the records reveal that the
respondent fully participated during the entire
proceedings and submitted numerous pleadings,
including evidence, before the IBP. He was even
allowed to file a motion for reconsideration supported
by his submitted evidence, which motion the IBP
considered and ruled upon in its Resolution No. XIX-
2010-545 dated October 8, 2010.38
In Alliance of Democratic Free Labor
Organization v. Laguesma, we held that due
process, as applied to administrative proceedings, is
the opportunity to explain one’s side. In Samalio v.
Court of Appeals, due process in an administrative
context does not require trial-type proceedings
similar to those in courts of justice. Where the
opportunity to be heard, either through oral
arguments or through pleadings, is accorded, no
denial of procedural due process takes place. The
requirements of due process are satisfied where the
parties are afforded a fair and reasonable
opportunity to explain their side of the controversy at
hand.
Similarly, in A.Z. Arnaiz Realty, Inc. v. Office of the
President, we held that "due process, as a
constitutional precept, does not always, and in all
situations, require a trial-type proceeding. Litigants
may be heard through pleadings, written
explanations, position papers, memoranda or oral
arguments. The standard of due process that must
be met in administrative tribunals allows a certain
degree of latitude[, provided that] fairness is not
ignored. It is, therefore, not legally objectionable for
being violative of due process, for an administrative
agency to resolve a case based solely on position
papers, affidavits or documentary evidence
submitted by the parties."
In this case, the respondent’s failure to cross-
examine the complainant is not a sufficient ground to
support the claim that he had not been afforded due
process. The respondent was heard through his
pleadings, his submission of alleged controverting
evidence, and his oral testimony during the October
6, 2005 mandatory conference. These pleadings,
evidence and testimony were received and
considered by the IBP Commissioner when she
arrived at her findings and recommendation, and
were the bases for the IBP Board’s Resolution.
Moreover, "any seeming defect in the observance of
due process is cured by the filing of a motion for
reconsideration. A denia of due process cannot be
successfully invoked by a party who has had the
opportunity to be heard on his motion for
reconsideration. Undoubtedly in this case, the
requirement of the law was afforded to the
respondent."
So it was in the case of Gutierrez vs COA which is
an administrative case involving the COA, where the
SC restated the 7 cardinal primary rights in Ang Tibay
vs CIR.
GUTIERREZ vs. COA
G.R. No. 200628, January 13, 2015
This court in Ang Tibay v. Court of Industrial
Relations ruled that administrative due process
requires only the following:
(a) The party should be allowed to present his or her
own case and submit supporting evidence;
(b) The deciding tribunal must consider the party's
evidence;
(c) There is evidence to support the tribunal's
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decision;
(d) The evidence supporting the tribunal's decision
must be substantial or such "relevant evidence as a
reasonable mind might accept as adequate to
support a conclusion";
(e) The tribunal's decision was based on the
evidence presented or the records of the case
disclosed to the parties;
(f) The tribunal's decision must be based on the
judges' independent consideration of the facts and
law governing the case; and
(g) The tribunal's decision must be rendered such
that the issues of the case and the reasons for the
decisions are known to the parties.
In sum, due process in administrative proceedings
does not necessarily require a trial type of hearing.
Neither does it require an exchange of pleadings
between or among the parties. Due process is
satisfied if the party who is properly notified of
allegations against him or her is given an opportunity
to defend himself or herself against those
allegations, and such defense was considered by
the tribunal in arriving at its own independent
conclusions.
SEC vs Universal is on the exercise of the
regulatory function of the SEC to revoke the
registration, for failure to comply with the reportorial
requirement. We all know that there is a reportorial
requirement when an entity is registered with the
SEC, the SEC issued automatically, an order of
revocation. Respondent filed a MR. It was granted
and then there was a notice of hearing and eventually
evidence was presented and SEC still issued an
order of revocation. Restating the rule: even if there
was an initial defect, provided there was a MR, the
defect is still cured.
SEC vs. UNIVERSAL
G.R. No. 181381, July 20, 2015
Ruling: “Due notice” simply means the information
that must be given or made to a particular person or
to the public within a legally mandated period of time
so that its recipient will have the opportunity to
respond to a situation or to allegations that affect the
individual’s or public’s legal rights or duties.
Granted that no formal hearing was held before the
issuance of the Order of Revocation, the Court finds
that there was substantial compliance with the
requirements of due process when URPHI was
given opportunity to be heard. Upon receipt of the
SEC Order URPHI filed letters seeking a final
extension to submit the reportorial requirements.
Notably, in its Order of Revocation, the SEC
considered URPHI's letters and stated that it still
failed to submit the required reports, despite the
lapse of the final extension requested.
Aside from having been given the opportunity to be
heard before the SEC issued the Order of
Revocation, URPHI was likewise able to seek
reconsideration of such action complained of. After
the issuance of the said Order, URPHI filed a Notice
of Appeal and a Memorandum, asserting that it was
issued without due notice and hearing, and that the
revocation is inequitable under the circumstances.
The requirements of due notice and hearing under
Sections 13.1 and 54.1 of the SRC were
substantially complied with. Due notice was made
6 CONSTITUTIONAL LAW II REVIEW TSN
through the Order dated July 27, 2004 stating that
revocation proceeding shall ensue if URPHI would
still fail to submit the reportorial requirements after
the lapse of the 60-day suspension period. Though
no formal hearing was held, URPHI was still given
an opportunity to be heard through the letters dated
September 13 and 18, 2004 before the Order of
Revocation was issued, as well as through its Notice
of Appeal and Memorandum when it moved to
reconsider the said order.
San Miguel vs. BF Homes
Proceedings in the HLURB: Just like in generally all
administrative cases, cases are resolved based on
submission of documentary evidence such as
position papers.
SAN MIGUEL vs BF HOMES
G.R. No. 169343, August 05, 2015
Ruling: BF Homes cannot claim denial of due
process. "The essence of due process is to be
heard, and, as applied to administrative
proceedings, this means a fair and reasonable
opportunity to explain one's side, or an opportunity
to seek a reconsideration of the action or ruling
complained of. Administrative due process cannot
be fully equated with due process in its strict judicial
sense, for in the former a formal or trial-type hearing
is not always necessary, and technical rules of
procedure are not strictly applied."
In the instant case, SMPI and BF Homes were
afforded the opportunity to present and address
each other's arguments through an exchange of
pleadings, as well as to submit their respective
evidence before Arbiter Balasolla. To recall, the
case was already submitted for decision before
Arbiter Balasolla, meaning, there is nothing more left
for the parties to submit or do. To remand the case
and repeat the entire process once again before the
HLURB Arbiter will not only be impractical, but also
unreasonable and oppressive for SMPI.
C. Due Process and Police Power
Police power is one of your inherent powers of the
State. Obviously it does not need any constitutional
or statutory conferment to be exercised. Police power
is your power of regulation generally of your liberty
and proper rights for general welfare and this would
usually come in form of legislation. So either direct
act of Congress or executive issuance based on a
law enacted by Congress. This is the least limitable
of all the powers of the State. It covers any and all
activities of human life - so from birth to death, sperm
to germ, conception to resurrection. So anything in
between can be subject to a regulation. It is the most
demanding and most taxing because the objectives
of the regulation can be achieved with the use of the
other two powers - taxation and eminent domain.
There are generally two tests to determine whether
a regulatory measure is valid:
1. Lawfulness of the subject
2. Lawfulness of the means
It is not difficult to determine whether the subject is
lawful because it should be on any of those public
interest matters like public health, public morality,
public safety. So it is not much difficult to determine
as compared to the protected right which is that
purely private right or a right which is only claimable
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
by a few.
Most of the cases are on the lawfulness of the means
because the means do not justify the end. While the
end is lawful, or the objective is legitimate, the means
to achieve it may not necessarily be legitimate.
Police power can also be delegated and based on
the cases assigned to you there are 6 requirements
for a valid exercise of regulatory ordinance and 2
formal requisites.
The formal requisites are:
1. It must be within the power of the LGU to pass;
and
2. It must be passed in accordance with the
procedure under the LGC.
The substantive requirements would be:
1.They must not contravene the constitution or the
law;
2. They must not be unfair Not oppressive;
3. Not partial or discriminatory;
4. Does not prohibit but only regulate trade;
5. Must be general and must be consistent with
public policy;
6. Must not be unreasonable
You all know that Sec 16 of RA 7160 is the general
welfare clause where there is delegation to the local
governments. There are two aspects of the
delegation under Sec 16:
1. General delegation, which is contained in that
general welfare clause; and
2. Specific delegation that may come from time to
time, when the Congress may deem fit to pass and
delegate to the LGU
RA 7160 Section 16. General Welfare. - Every local
government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well
as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which
are essential to the promotion of the general welfare.
Within their respective territorial jurisdictions, local
government units shall ensure and support, among
other things, the preservation and enrichment of
culture, promote health and safety, enhance the right
of the people to a balanced ecology, encourage and
support the development of appropriate and self-
reliant scientific and technological capabilities,
improve public morals, enhance economic prosperity
and social justice, promote full employment among
their residents, maintain peace and order, and
preserve the comfort and convenience of their
inhabitants.
White Light, Fernando vs SSA, Ferrer restates the so
called substantive requirements for the local
ordinance to be valid based on the delegated police
power or general welfare clause under Sec 16 of
LGC.
Ferrer vs Bautista talks of 2 ordinances: the
socialized housing tax and the garbage collection
ordinance.
FERRER vs BAUTISTA
G.R. No. 210551, June 30, 2015
Ruling: For an ordinance to be valid though, it must
not only be within the corporate powers of the LGU
to enact and must be passed according to the
procedure prescribed by law, it should also conform
to the following requirements:
(1) not contrary to the Constitution or any statute;
(2) not unfair or oppressive;
(3) not partial or discriminatory;
(4) not prohibit but may regulate trade;
(5) general and consistent with public policy; and
(6) not unreasonable.
As jurisprudence indicates, the tests are divided into
the formal (i.e., whether the ordinance was enacted
within the corporate powers of the LGU and whether
it was passed in accordance with the procedure
prescribed by law), and the substantive (i.e.,
involving inherent merit, like the conformity of the
ordinance with the limitations under the Constitution
and the statutes, as well as with the requirements of
fairness and reason, and its consistency with public
policy).
In this jurisdiction, pursuant to Section 16 of the LGC
and in the proper exercise of its corporate powers
under Section 22 of the same, the Sangguniang
Panlungsod of Quezon City, like other local
legislative bodies, is empowered to enact
ordinances, approve resolutions, and appropriate
funds for the general welfare of the city and its
inhabitants.129 Section 16 of the LGC provides:
The general welfare clause is the delegation in
statutory form of the police power of the State to
LGUs. The provisions related thereto are liberally
interpreted to give more powers to LGUs in
accelerating economic development and upgrading
the quality of life for the people in the community.
Wide discretion is vested on the legislative authority
to determine not only what the interests of the public
require but also what measures are necessary for
the protection of such interests since the
Sanggunian is in the best position to determine the
needs of its constituents.
Fernando vs SSC, requirement to fence the property
involving or affecting the SSC which has been
established or built even before the ordinance was
passed affecting the residence of the nuns. The
ordinance requires that the fence must not be solid, it
must have to be of a certain height. It must not block
the view from the outside for obvious reasons the
nuns have complained.
FERNANDO vs SSC
G.R. No. 161107 March 12, 2013
Issue: whether Sections 3.1 and 5 of Ordinance No.
192 are valid exercises of police power by the City
Government of Marikina?
Ruling: To successfully invoke the exercise of police
power as the rationale for the enactment of an
ordinance and to free it from the imputation of
constitutional infirmity, two tests have been used by
the Court – the rational relationship test and the
strict scrutiny test:
Rational relationship test - Using the rational basis
examination, laws or ordinances are upheld if they
rationally further a legitimate governmental interest.
Under intermediate review, governmental interest is
extensively examined and the availability of less
CONSTITUTIONAL LAW II REVIEW TSN 7
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
restrictive measures is considered
Strict scrutiny test - Applying strict scrutiny, the
focus is on the presence of compelling, rather than
substantial, governmental interest and on the
absence of less restrictive means for achieving that
interest.
REFER TO CASE DIGESTS
For the ordinance to pass the rational relationship
test, the petitioners must show the reasonable
relation between the purpose of the police power
measure and the means employed for its
accomplishment, for even under the guise of
protecting the public interest, personal rights and
those pertaining to private property will not be
permitted to be arbitrarily invaded.
The means employed by the petitioners, however, is
not reasonably necessary for the accomplishment of
this purpose and is unduly oppressive to private
rights. The petitioners have not adequately shown,
and it does not appear obvious to this Court, that an
80% see-thru fence would provide better protection
and a higher level of security, or serve as a more
satisfactory criminal deterrent, than a tall solid
concrete wall. It may even be argued that such
exposed premises could entice and tempt would-be
criminals to the property, and that a see-thru fence
would be easier to bypass and breach. It also
appears that the respondents’ concrete wall has
served as more than sufficient protection over the
last 40 years.
Compelling the respondents to construct their fence
in accordance with the assailed ordinance is, thus, a
clear encroachment on their right to property, which
necessarily includes their right to decide how best to
protect their property.
International v Greenpeace is an envi case and a
petition for writ of kalikasan was issued. Basically the
question here is can the state with respect to police
power regulate genetically modified organisms for
purposes of protecting public health and the short
answer to the very long case is yes. Because of the
so called preacautionary measure rule that
prudence would dictate that if it is uncertain if it is
safe for human consumption, precaution would tell us
not to go with it rather than go with it if it is yet to be
ascertained that it is fit for human consumption.
INTERNATIONAL vs GREENPEACE
G.R. No. 209271, December 08, 2015
The Cartagena Protocol on Biosafety was
negotiated over many years and implemented in
2003. The Cartagena Protocol is an international
agreement ratified by 166 governments worldwide
that seeks to protect biological diversity from the
risks posed by GM technology. It embodies the
Precautionary Principle in that it allows signatory
states to take precautionary measures to protect
themselves against threats of damage from GM
crops and foods, even in case of a lack of scientific
certainty.
The Cartagena Protocol and Codex share a
precautionary approach to GM crops and foods, in
that they agree that genetic engineering differs from
conventional breeding and that safety assessments
should be required before GM organisms are used
in food or released into the environment.
8 CONSTITUTIONAL LAW II REVIEW TSN
D. Due Process and Eminent Domain
Eminent domain is based on your Regalian Doctrine
that all property belongs to the State and it is only
because of allowance of private ownership that real
property has been privately owned so that if the State
can and would need the property back, it would have
the power to exercise eminent domain. The question
in every case would be one of necessity. It must be
necessary to be acquired, otherwise, if there are
other suitable properties that the State could
expropriate or use, then that should be utilized
instead of exercising eminent domain.
The taking is supposed to be in the concept of the
depriving the owner of substantive use. It is not
limited, however, to actual physical taking. Cases
have been decided to include non-actual physical
taking but if there is a material effect on the
substantial and ordinary uses by the property owner
of his property, that may constitute expropriation. The
taking must be for more than a momentary period
because if it is only temporary, it may amount to a
matter which is not even actionable or not
compensable. Damnum absque injuria.
Private property: While traditionally it involves land,
your first of the many cases ivolving interconnection
of services, starting with the PLDT case to compel
PLDT to allow new service providers to interconnect
with their lines, SC said that is a private property in
the sense that it could be taken and that there must
have to be payment of just compensation.
Public use concept: The public use concept has
been expanded. While traditionally, it follows the rule
of numerous number of people directly benefitted,
now that is no longer the rule. Even if only a few are
directly benefited, provided society or community in
general is benefited even if indirectly, then the taking
may considered taking for public use. Common
examples would be your export processing zones,
eco-tourism zones, and similar zones to be taken for
expansion. It may be directly benefiting only the few
locators, but because of the business that these few
locators can bring about to the entire community
(jobs, income) then the taking may be considered
taking for public purpose.
If it were to be delegated to the LGU, it has to comply
with Section 19 of LGC:
Section 19. Eminent Domain. - A local government
unit may, through its chief executive and acting
pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose or welfare
for the benefit of the poor and the landless, upon
payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws:
Provided, however, That the power of eminent
domain may not be exercised unless a valid and
definite offer has been previously made to the owner,
and such offer was not accepted: Provided, further,
That the local government unit may immediately take
possession of the property upon the filing of the
expropriation proceedings and upon making a
deposit with the proper court of at least fifteen
percent (15%) of the fair market value of the property
based on the current tax declaration of the property
to be expropriated: Provided, finally, That, the
amount to be paid for the expropriated property shall
be determined by the proper court, based on the fair
market value at the time of the taking of the property.
 CONSTITUTIONAL LAW II REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
1. There must have to be a prior definite and valid
offer by the LGU to the owner to buy the property;
and
2. The owner has refused or not accepted the offer.
If it were to be Congress, there is no need for a prior
offer but under the LGC there must have to be a prior
valid offer. It's not token offer. If the property is say
regularly valued at 100 pesos per sqm, an offer of the
LGU would not be a valid offer because it is not
within the range of the valuation. If the owner refuses
the valid offer, then the LGU must pass an ordinance
authorizing the chief executive to expropriate the
property. It's not a resolution but an ordinance
because a resolution is a mere declaration of
intention while an ordinance is usually a law
authorizing the chief executive to exercise eminent
domain and the rest of the conditions would follow
the normal requirements of expropriation.
Usually the questions on expropriation would refer to
the procedure of expropriation, the payment of the
value, the options of the owner if there were no
expropriation proceedings initiated but actual
expropriation is done, the claim for payment of just
compensation. If we were to follow the rule on
eminent domain for expropriation in the Rules of
Court, there are two stages of an expropriation
proceeding:
v The first is to initiate the filing of the
expropriation or eminent domain complaint.
There is a requirement to pay the full value
as initially determined by the expropriator
generally
v The second phase is to determine whether
the taking is for public use and how much
just compensation is.
In RA 6657 or the Comprehensive Agrarian
Reform Law, there is a different kind of expropriation
so to speak because if you remember the ruling in
the Small Landowners vs Sec of DAR questioning
the constitutionality of the Agrarian Reform Law, as
early as then, the SC said that the law is not
unconstitutional because it is not an ordinary exercise
of eminent domain but it is coupled with the power of
the State to regulate property ownership or police
power in essence. It is not strictly eminent domain but
it is not strictly police power as well.
So the proceedings in CARL are different from
ordinary expropriation because as per your
recollection, if the agricultural land is covered under
CARL, two options are allowed to be done- either the
landowner voluntarily offers it for sale or there is a
compulsory acquisition. It is supposed to be in either
way processed with the DAR in relation to the
formula provided for by the Land Bank. Supposedly
the Land Bank will have to pay the full value as
determined by it based on the formula used. Of
course during the proceedings the landowner has the
right to present evidence to prove the value of the
property. It is only when the landowner disputes the
valuation of the Land Bank that the landowner may
go to court and which court has jurisdiction over it?
Your RTC designated as the Special Agrarian Court.
So it goes to a administrative process before it goes
to court unlike in ordinary expropriation proceedings.
Judicial determination in either case of just
compensation would use the factors which have been
given out in a lot of rulings by the SC. The principle
there is that it is not measured based on the owner's
loss because just compensation payment also falls
on the public. That's why it is in some cases referred
to as the price which is reasonable, agreed by the
seller who does not want to sell and a buyer who
does not want to buy. It is not again measured
mainly on the owner's loss but also what is
reasonable or just to the public because it is the
public who will bear the burden as well of paying for
the value of just compensation.
Of course you have there your fair market value.
The other considerations of size, shape, location,
actual use, potential use of the property whether
there is a remainder of the property after
expropriation and if the remainder has increase in
value it will be deducted as part of consequential
benefits or if the remained has actually diminished in
value, that will be added up as part of just
compensation because it will be referred to as
consequential benefit. So all of this are taken into
consideration by the Court even the Land Bank
formulas used to determine just compensation under
Agrarian Reform Law are not technically binding
upon the court. The court may consider other factors
provided that is fair to the landowner as well as the
public.
Your case of Land Bank vs Hababag will tell you
that there is interest to be paid to the landowner over
and above the just compensation and the interest is
based on the unpaid principal. If it were to be an
ordinary expropriation proceeding, we all know that
there is a payment made at the time the action is
filed, otherwise, there will be no writ of possession to
be issued by the court. But that is not the final
valuation because the second stage of proceedings
would determine the just compensation and if the just
compensation is already determined, then whatever
the unpaid portion of the principal is will be subjected
to a interest that is determined from the time of taking
until the full amount is paid. How much is the
interest? Previous ruling will tell you that it is 12% per
annum because it forbearance of money or loan but
in May 16, 2013, the BSP Monetary Board issued a
resolution lowering the interest rate for forbearance of
money or loan at 6% per annum. So all interest up to
June 30, 2013 is 12%. From July 1, 2013 and forward
it is only 6%.
Income produ. approach or principle of
anticipation is not allowed in eminent domain
LAND BANK
cases. vs HABABAG
it violates the requirement that it must be
G.R. No. valuated
172352, at September 16,
the time of 2015
taking
G.R. No. 172352, June 08, 2016
Ruling: To elucidate, in determining the amount of
just compensation for the subject lands, the RTC
applied the Income Productivity Approach which
approximated the income for the remaining
productive life of the crops therein, without
considering the fortuitous events and plant diseases,
and with the expectation that they would be
compensated by developments which could be
made by the property owner. The Court has
repeatedly ruled that the constitutional limitation of
just compensation is considered to be the sum
equivalent of the market value of the property, which
is, in turn, defined as the price fixed by the seller in
open market in the usual and ordinary course of
legal action and competition, or the fair value of the
property as between one who receives and one who
desires to sell it, fixed at the time of the actual taking
by the government. In this accord, therefore, the
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From the lectures of Atty. Vincent Paul Montejo
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Court cannot sustain the formula used by the RTC
which was "based on the principle of anticipation
which implies that the value of a property is
dependent on the potential net benefit that may be
derived from its ownership." Clearly, this approach,
which is largely characterized by the element of
futurity, is inconsistent with the idea of valuing the
expropriated property at the time of the taking.
On the issue of interests, suffice it to state that the
just compensation due to the landowners for their
expropriated property is treated as an effective
forbearance on the part of the State. The rationale
therefor, as enunciated in the case of Apo Fruits
Corporation v. LBP, is to compensate the
landowners for the income they would have made
had they been properly compensated for their
properties at the time of the taking. In other words,
the award of 12% interests is imposed in the nature
of damages for the delay in the payment of the full
just compensation award.
In the present case, the LBP had already made the
corresponding deposit of their offered valuation in
the amount of P1,237,850.00 in cash and in bonds
prior to the DAR's possession of the property. This
amount is lower than the just compensation awarded
and, hence, in view of the above-stated principle, the
payment of interests remains in order insofar as the
unpaid balance is concerned.
Anent the time of accrual, the interests should be
computed from the time of the taking of the subject
lands. This is based on the principle that interest
"runs as a matter of law and follows from the right of
the landowner to be placed in as good position as
money can accomplish, as of the date of the taking."
2016 MR: That being said, the Court, in view of the
LBP's alternative Motion for Clarification, illumines
that the interest shall be pegged at the rate of twelve
percent (12%) per annum (p.a.) on the unpaid
balance, reckoned from the time of taking,19 or the
time when the landowner was deprived of the use
and benefit of his property,20 such as when title is
transferred to the Republic of the Philippines
(Republic), or emancipation patents are issued by
the government,21 until June 30, 2013, and
thereafter, at six percent (6%) p.a. until full
payment.22 However, while the LBP averred that
the landowner's title was cancelled in favor of the
Republic,23 copies of the Republic's title/s was/were
not attached to the records of these consolidated
cases. Accordingly, the Court hereby directs the
LBP to submit certified true copies of the Republic's
title/s to the RTC upon remand of these cases, and
the latter to compute the correct amount of legal
interests due to the Heirs of Alfredo Hababag, Sr.
reckoned from the date of the issuance of the said
titles/s.chanrobleslaw
NAPOCOR vs Manalastas will tell you that if the
expropriation is illegal to begin with, meaning there
was no actual expropriation proceeding, aside from
the interest charges on the principal, the expropriator
may be liable for exemplary damages.
NPC vs MANALASTAS
G.R. No. 196140, January 27, 2016
Lastly, in addition to the award for interests, Article
2229 of the Civil Code provides that "[e]xemplary or
corrective damages are imposed by way of example
10 CONSTITUTIONAL LAW II REVIEW TSN
or correction for the public good" and Article 2208 of
the same code states that attorney's fees may be
awarded by the court in cases where such would be
just and equitable. As held in the Resolution dated
April 21, 2015 in Secretary of the Department of
Public Works and Highways, et al. v. Spouses
Heracleo and Ramona Tecson, additional
compensation in the form of exemplary damages
and attorney's fees should likewise be awarded as a
consequence of the government agency's illegal
occupation of the owner's property for a very long
time, resulting in pecuniary loss to the owner.
Indeed, government agencies should be
admonished and made to realize that its negligence
and inaction in failing to commence the proper
expropriation proceedings before taking private
property, as provided for by law, cannot be
countenanced by the Court.
Q: When is there taking?
For CARL: It is when the owner is deprived of the
use of the property and is usually when the property's
title is transferred to the Republic because by then
the property owner is no longer the "owner".
Q: What if there was no expropriation proceeding
like in some cases, where do you determine the
value of the property?
A: When there is no expropriation proceeding filed,
normally, the action to claim payment of just
compensation is initiated or filed by the property
owner and therefore it is not valid at the time the case
to claim payment of just compensation is filed as a
general rule. We all know that if there is actual
expropriation that preceded the action to claim just
compensation, it has to be determined –
v If the expropriation action has increased the
value of the property exponentially then the
property must be valued at the time of the
actual taking even without expropriation
proceedings. It's not at the time the action to
claim payment of just compensation is filed
because for obvious reasons, if it were to be
today, the property after expropriation would
have necessarily increased in value because
of expropriation.
v But if the property is actually expropriated
before the action to claim just compensation
is filed today and the increase in the value of
the property is not on account of the
expropriation but only because of the natural
increment through the years, then the
property should be valued at the time the
property owner has filed a case to claim
payment of just compensation.
If a property is expropriated illegally meaning there is
no expropriation proceeding, the property is deemed
expropriated. Just assume that there is taking for
public use, only that there is no expropriation
proceeding initiated. The property owner cannot ask
for reversion or cannot file case asking that the
property ownership be reverted back to him because
the property has already been used.
However in the 2011 case of Ouano vs Republic
you remember that if the property is abandoned or
the expropriator has abandoned the expropriation of
the property, the property owner who has bought or
resisted the expropriation may seek the recovery of
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
the property expropriated but the project has been
abandoned provided that he has paid or would pay or
reimburse whatever just compensation has been
received when the expropriation was had. The
reason of the SC is that the expropriator has a
solemn obligation based on the exercise of eminent
domain that he will utilize the property based on the
intention of the expropriation. If it were to be in court-
initiated expropriation there are undertakings in court
that this is taking for public use etc and so the court
allows the taking. Therefore if the expropriator
unnecessarily abandons the project, never utilized
the property based on the representations in the
undertaking with the court, the property owner may
file a case to recover the property. Please take note
that this is not an “ordinary” change in the utilization.
It is really an abandonment of the utilization. For
example, the expropriator expropriates a property
intending it to be used for a public plaza and so
expropriation was validated by the court, just
compensation has been paid. If the expropriator
changes his mind and says “Okay no more public
plaza. Let’s make a public zoo.” Can property owner
recover? The answer is no. Because while the intent
of the usage is changed, it nevertheless is still for
public purpose. It’s different from total abandonment.
Vda. De OUANO vs. REPUBLIC
[G.R. No. 168770, February 09 : 2011]
Issue: Whether abandonment of the public used for
which the subject properties were expropriated
entitles petitioners Ouanos, et al to require the
property?
Ruling: A condemnor should commit to use the
property pursuant to the purpose stated in the
petition for expropriation, failing which it should file
another petition for the new purpose. If not, then it
behooves the condemnor to return the said
property to its private owner, if the latter so desires.
The government cannot plausibly keep the
property it expropriated in any manner it pleases
and, in the process, dishonor the judgment of
expropriation. This is not in keeping with the idea
of fair play,
The notion, therefore, that the government, via
expropriation proceedings, acquires unrestricted
ownership over or a fee simple title to the covered
land, is no longer tenable. We suggested as much
in Heirs of Moreno and in Tudtud and more
recently in Lozada, Sr. Expropriated lands should
be differentiated from a piece of land, ownership of
which was absolutely transferred by way of an
unconditional purchase and sale contract freely
entered by two parties, one without obligation to
buy and the other without the duty to sell. In that
case, the fee simple concept really comes into
play. There is really no occasion to apply the "fee
simple concept" if the transfer is conditional. The
taking of a private land in expropriation
proceedings is always conditioned on its continued
devotion to its public purpose. As a necessary
corollary, once the purpose is terminated or
peremptorily abandoned, then the former owner, if
he so desires, may seek its reversion, subject of
course to the return, at the very least, of the just
compensation received.
If the property owner is not paid of just compensation,
he can file a case to recover payment of just
compensation and that is referred to as inverse
condemnation. The next question asked is, will that
right to file an action for inverse condemnation
prescribe? The answer is no. Because the obligation
of the expropriator to pay the property owner of just
compensation for the exercise of eminent domain is a
constitutional right, it does not prescribe.
August 30, 2017 A. Ruyeras
E. Equal Protection
Article III, Section 1, 1987 Constitution “xxx nor
shall any person be denied the equal protection of
the laws.”
By virtue of the fact that all men were created equal,
we have the equal protection of the laws. The equal
protection clause is subsumed or included in the due
process clause because they are related. We all
know that general questions of inequality are
usually raised under the due process clause but
individual or specific acts of partiality or bias are
normally questioned under the equal protection
clause.
Due process clause General questions of
inequality
Equal protection Individual or specific acts of
clause partiality or bias
Equal protection does not guarantee absolute
equality. We all understand that what the law requires
is that there be substantial equality based on a valid
classification. And so, in most cases, the discussion
is whether or not there is a valid classification to treat
different persons or things under a law differently.
This is because the equal protection guarantee says
that things similarly situated must be treated similarly
both as to rights granted as well as on obligations
imposed.
Just a rundown of your requisites for a valid
classification (S.A.N.G):
1. Classification must rest on substantial
distinction;
2. Classification must be germane to the
purpose of the law;
How substantial a classification is usually rests
on the purpose of the law. While ordinary
distinctions such as those based on gender, race
or age, probably, may be ostensibly substantial,
in the end, it depends largely on what the objects
or purpose of the law is.
3. Classification must not be limited to
existing conditions only;
For which, for as long as the problem to be
addressed by the regulatory measure where
classification is made continues to exist, then the
law must be effected.
4. Classification applies equally to all on the
same class.
This is based on substantial distinction and not
absolute equality.
CONSTITUTIONAL LAW II REVIEW TSN 11
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
You already know the case of Sameer Overseas vs.
Cabiles. This is also taken up in your Labor Code.
The three (3) month cap on recoverable wages of
overseas workers who are illegally dismissed, citing
the earlier case of Serrano, the Supreme Court said
that such violated due process as well as equal
protection clause.
SAMEER OVERSEAS PLACEMENT AGENCY,
INC. vs. JOY C. CABILES
G.R. No. 170139 August 5, 2014
We reiterate our finding in Serrano v. Gallant
Maritime that limiting wages that should be
recovered by an illegally dismissed overseas worker
to three months is both a violation of due process
and the equal protection clauses of the Constitution.
Equal protection of the law is a guarantee that
persons under like circumstances and falling within
the same class are treated alike, in terms of
"privileges conferred and liabilities enforced." It is a
guarantee against "undue favor and individual or
class privilege, as well as hostile discrimination or
the oppression of inequality."
In creating laws, the legislature has the power "to
make distinctions and classifications."
In exercising such power, it has a wide discretion.
The equal protection clause does not infringe on this
legislative power. A law is void on this basis, only if
classifications are made arbitrarily. There is no
violation of the equal protection clause if the law
applies equally to persons within the same class and
if there are reasonable grounds for distinguishing
between those falling within the class and those who
do not fall within the class. A law that does not
violate the equal protection clause prescribes a
reasonable classification.
A reasonable classification "(1) must rest on
substantial distinctions; (2) must be germane to the
purposes of the law; (3) must not be limited to
existing conditions only; and (4) must apply equally
to all members of the same class."
The reinstated clause does not satisfy the
requirement of reasonable classification.
In Serrano, we identified the classifications made by
the reinstated clause. It distinguished between fixed-
period overseas workers and fixed period local
workers. It also distinguished between overseas
workers with employment contracts of less than one
year and overseas workers with employment
contracts of at least one year. Within the class of
overseas workers with at least one-year employment
contracts, there was a distinction between those with
at least a year left in their contracts and those with
less than a year left in their contracts when they
were illegally dismissed.
The Congress’ classification may be subjected to
judicial review. In Serrano, there is a "legislative
classification which impermissibly interferes with the
exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect class."
Under the Constitution, labor is afforded special
protection. Thus, this court in Serrano, "[i]mbued
12 CONSTITUTIONAL LAW II REVIEW TSN
with the same sense of ‘obligation to afford
protection to labor,’ . . . employ[ed] the standard of
strict judicial scrutiny, for it perceive[d] in the
subject clause a suspect classification
prejudicial to OFWs."
Your case of Bartolome vs. SSS is a case involving
a claim under Employees Compensation Commission
where the claim for benefits of a dependent,
particularly the dependent parent, was denied by the
ECC because the claimant was not a legitimate
parent. The Supreme Court said that the law does
not distinguish between a legitimate, illegitimate,
natural or parent by adoption so the ECC should not
have made a distinction. Also, to distinguish between
a legitimate and illegitimate parent would violate
equal protection because there is no substantial
distinction to discriminate illegitimate parents from
legitimate parents. The intent of the law is to give the
dependent parent the benefit under the ECC because
the legitimate or illegitimate or natural or adopted
child who is covered by the law has died.
BERNARDINA P. BARTOLOME vs. SOCIAL
SECURITY SYSTEM and SCANMAR MARITIME
SERVICES, INC.
G.R. No. 192531 November 12, 2014
To insist that the ECC validly interpreted the Labor
Code provision is an affront to the Constitutional
guarantee of equal protection under the laws for the
rule, as worded, prevents the parents of an
illegitimate child from claiming benefits under Art.
167 (j) of the Labor Code, as amended by PD 626.
To Our mind, such postulation cannot be
countenanced.
As jurisprudence elucidates, equal protection simply
requires that all persons or things similarly situated
should be treated alike, both as to rights conferred
and responsibilities imposed. It requires public
bodies and institutions to treat similarly situated
individuals in a similar manner. In other words, the
concept of equal justice under the law requires the
state to govern impartially, and it may not draw
distinctions between individuals solely on differences
that are irrelevant to a legitimate governmental
objective.
The concept of equal protection, however, does not
require the universal application of the laws to all
persons or things without distinction. What it simply
requires is equality among equals as determined
according to a valid classification. Indeed, the equal
protection clause permits classification. Such
classification, however, to be valid must pass the
test of reasonableness. The test has four requisites:
(1) The classification rests on substantial
distinctions; (2) It is germane to the purpose of the
law; (3) It is not limited to existing conditions only;
and (4) It applies equally to all members of the same
class. "Superficial differences do not make for a
valid classification.”
In the instant case, there is no compelling
reasonable basis to discriminate against illegitimate
parents. Simply put, the above-cited rule
promulgated by the ECC that limits the claim of
benefits to the legitimate parents miserably failed the
test of reasonableness since the classification is not
germane to the law being implemented. We see no
pressing government concern or interest that
requires protection so as to warrant balancing the
rights of unmarried parents on one hand and the
 CONSTITUTIONAL LAW II REVIEW TSN
From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
rationale behind the law on the other. On the
contrary, the SSS can better fulfill its mandate, and
the policy of PD 626 – that employees and their
dependents may promptly secure adequate benefits
in the event of work-connected disability or death -
will be better served if Article 167 (j) of the Labor
Code is not so narrowly interpreted.
There being no justification for limiting secondary
parent beneficiaries to the legitimate ones, there can
be no other course of action to take other than to
strike down as unconstitutional the phrase
"illegitimate" as appearing in Rule XV, Section
1(c)(1) of the Amended Rules on Employees’
Compensation. Petitioner qualifies as John’s
dependent parent.
Your case of Ferrer vs. Bautista is the same. The
ordinance in question here was collection of garbage
fees. The Supreme Court stated that there is no
substantial distinction, therefore there is no valid
classification, in determining the amount of fees to be
collected if it were to be collected in domestic
households as compared with those collected from
condominiums and socialized housing units. There
being no causal relation between the amount of
garbage disposed of by domestic households as
compared to condominiums and socialized housing
units. (Under the ordinance) the rates are higher for
the latter while lesser for the former. The Supreme
Court ruled that there is no substantial distinction
because the factor that must be considered in
determining the garbage fees must have to include
the amount of garbage generated by a certain
household.
JOSE J. FERRER, JR. vs. CITY MAYOR HERBERT
BAUTISTA, CITY COUNCIL OF QUEZON CITY,
CITY TREASURER OF QUEZON CITY, and CITY
ASSESSOR OF QUEZON CITY
G.R. No. 210551 June 30, 2015
We cannot sustain the validity of Ordinance No. S-
2235. It violates the equal protection clause of the
Constitution and the provisions of the LGC that an
ordinance must be equitable and based as far as
practicable on the taxpayer’s ability to pay, and not
unjust, excessive, oppressive, confiscatory.
In the subject ordinance, the rates of the imposable
fee depend on land or floor area and whether the
payee is an occupant of a lot, condominium, social
housing project or apartment.
For the purpose of garbage collection, there is, in
fact, no substantial distinction between an occupant
of a lot, on one hand, and an occupant of a unit in a
condominium, socialized housing project or
apartment, on the other hand. Most likely, garbage
output produced by these types of occupants is
uniform and does not vary to a large degree; thus, a
similar schedule of fee is both just and equitable.
The rates being charged by the ordinance are unjust
and inequitable: a resident of a 200 sq. m. unit in a
condominium or socialized housing project has to
pay twice the amount than a resident of a lot similar
in size; unlike unit occupants, all occupants of a lot
with an area of 200 sq. m. and less have to pay a
fixed rate of Php100.00; and the same amount of
garbage fee is imposed regardless of whether the
resident is from a condominium or from a socialized
housing project.
Indeed, the classifications under Ordinance No. S-
2235 are not germane to its declared purpose of
"promoting shared responsibility with the residents to
attack their common mindless attitude in over-
consuming the present resources and in generating
waste." Instead of simplistically categorizing the
payee into land or floor occupant of a lot or unit of a
condominium, socialized housing project or
apartment, respondent City Council should have
considered factors that could truly measure the
amount of wastes generated and the appropriate fee
for its collection. Factors include, among others,
household age and size, accessibility to waste
collection, population density of the barangay or
district, capacity to pay, and actual occupancy of the
property. R.A. No. 9003 may also be looked into for
guidance. Under said law, WM service fees may be
computed based on minimum factors such as types
of solid waste to include special waste,
amount/volume of waste, distance of the transfer
station to the waste management facility, capacity or
type of LGU constituency, cost of construction, cost
of management, and type of technology.
The rest of your outline mentions provisions
respecting economic equality, political equality and
social equality.
1. Economic Equality
ART II Section 14. The State recognizes the role of
women in nation-building, and shall ensure the
fundamental equality before the law of women and
men.
ART III 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.
ART VIII Section 5. The Supreme Court shall have
the following powers:
Xxx (5) Promulgate rules concerning the protection
and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to
the practice of law, the integrated bar, and legal
assistance to the under-privileged. Such rules shall
provide a simplified and inexpensive procedure for
the speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the
Supreme Court. xxx
ART XII Section 2: xxx The State shall protect the
nations marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and
reserve its use and enjoyment exclusively to Filipino
citizens. Xxx
Section 10. The Congress shall, upon
recommendation of the economic and planning
agency, when the national interest dictates, reserve
to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose
capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain
areas of investments. The Congress shall enact
CONSTITUTIONAL LAW II REVIEW TSN 13
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
measures that will encourage the formation and
operation of enterprises whose capital is wholly
owned by Filipinos.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority over
foreign investments within its national jurisdiction and
in accordance with its national goals and priorities.
ART XIII Section 1. The Congress shall give highest
priority to the enactment of measures that protect and
enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities,
and remove cultural inequities by equitably diffusing
wealth and political power for the common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments.
Section 2. The promotion of social justice shall
include the commitment to create economic
opportunities based on freedom of initiative and self-
reliance.
Section 3. The State shall afford full protection to
labor, local and overseas, organized and
unorganized, and promote full employment and
equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right
to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate in
policy and decision-making processes affecting their
rights and benefits as may be provided by law.
The State shall promote the principle of shared
responsibility between workers and employers and
the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster industrial
peace.
The State shall regulate the relations between
workers and employers, recognizing the right of labor
to its just share in the fruits of production and the
right of enterprises to reasonable returns to
investments, and to expansion and growth.
2. Political Equality
ART IX-C Section 10. Bona fide candidates for any
public office shall be free from any form of
harassment and discrimination.
ART XIII Section 1. The Congress shall give highest
priority to the enactment of measures that protect and
enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities,
and remove cultural inequities by equitably diffusing
wealth and political power for the common good.
3. Social Equality (same, Article XIII Section on social
justice)
14 CONSTITUTIONAL LAW II REVIEW TSN
II. REQUIREMENTS OF FAIR PROCEDURE
A. Arrests, Searches and Seizures, Privacy of
Communications
Article III, Section 2, 1987 Constitution “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 a judge, after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
particularly describing the place to be searched, or
the persons or things to be seized.”
First there is your “searches and seizures”. Under
Article III, Section 2, that is one of the indirect
provisions in the Constitution that speaks of our right
to privacy.
If you remember the old case of Ople vs. Torres on
the national ID system, the Supreme Court discussed
the concept of zones of privacy. The Supreme Court
made mention that there is no direct constitutional
provision involving our right to privacy except
perhaps Section 3 which is the right to privacy in our
communications and correspondence. As you all
know, that was an indirect provision to address the
rule before under Section 2 of the Constitution which
is the “TANGIBLE ONLY RULE”.
What is covered, technically, under Section 2 are
only tangible objects so intangible objects are
supposedly not covered so Section 3 has since been
included in the Constitution. Despite the fact that
there is no other direct provision other than Section 3,
The Supreme Court took judicial notice of the fact
that in fact, we have the right to privacy. Discussions
being or views advanced that the reason why there is
no direct provision is because it is inherent that the
state must have to respect our right to privacy and
made mention of Section 3, Section 2, Privilege
against self-incrimination, among others, as some of
the Constitutional provisions relating to or pertaining
to our right to privacy.
In the Civil Code, there is a direct provision which is
Article 26, paragraph 1, relating to violation of one’s
right to privacy. But that is supposed to be claimable
by an individual against another individual, not an
individual against the State except as to the state
agents violating such right to privacy.
BLAS F. OPLE vs. RUBEN D. TORRES,
ALEXANDER AGUIRRE, HECTOR VILLANUEVA,
CIELITO HABITO, ROBERT BARBERS,
CARMENCITA REODICA, CESAR SARINO,
RENATO VALENCIA, TOMAS P. AFRICA, HEAD
OF THE NATIONAL COMPUTER CENTER and
CHAIRMAN OF THE COMMISSION ON AUDIT
G.R. No. 127685| July 23, 1998
Assuming, arguendo, that A.O. No. 308 need not be
the subject of a law, still it cannot pass constitutional
muster as an administrative legislation because
facially it violates the right to privacy. The essence of
privacy is the "right to be let alone." In the 1965
case of Griswold v. Connecticut, the United States
Supreme Court gave more substance to the right of
privacy when it ruled that the right has a
constitutional foundation. It held that there is a right
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
of privacy which can be found within the penumbras
of the First, Third, Fourth, Fifth and Ninth
Amendments, viz:
Specific guarantees in the Bill of Rights have
penumbras formed by emanations from these
guarantees that help give them life and substance . .
. various guarantees create zones of privacy. The
right of association contained in the penumbra of the
First Amendment is one, as we have seen. The
Third Amendment in its prohibition against the
quartering of soldiers "in any house" in time of peace
without the consent of the owner is another facet of
that privacy. The Fourth Amendment explicitly
affirms the ''right of the people to be secure in their
persons, houses and effects, against unreasonable
searches and seizures." The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to
create a zone of privacy which government may not
force him to surrender to his detriment. The Ninth
Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc, we adopted the
Griswold ruling that there is a constitutional right to
privacy.
Indeed, if we extend our judicial gaze we will find
that the right of privacy is recognized and enshrined
in several provisions of our Constitution. It is
expressly recognized in section 3 (1) of the Bill of
Rights:
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in
various provisions of the Bill of Rights, viz:
Sec. 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.
Sec. 2. The right of the people to be secure in their
persons, houses papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge 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.
Sec. 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not be
impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in
the interest of national security, public safety, or
public health as may be provided by law.
Sec. 8. The right of the people, including those
employed in the public and private sectors, to form
unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a
witness against himself.
Zones of privacy are likewise recognized and
protected in our laws. The Civil Code provides that
"[e]very person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and
other persons" and punishes as actionable torts
several acts by a person of meddling and prying into
the privacy of another. It also holds a public officer
or employee or any private individual liable for
damages for any violation of the rights and liberties
of another person, and recognizes the privacy of
letters and other private communications. The
Revised Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and
industrial secrets, and trespass to dwelling. Invasion
of privacy is an offense in special laws like the Anti-
Wiretapping Law, the Secrecy of Bank Deposits Act
and the Intellectual Property Code. The Rules of
Court on privileged communication likewise
recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise
that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the
burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it
is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provide our citizens
and foreigners with the facility to conveniently
transact business with basic service and social
security providers and other government
instrumentalities and (2) the need to reduce, if not
totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic
services. It is debatable whether these interests are
compelling enough to warrant the issuance of A.O.
No. 308. But what is not arguable is the broadness,
the vagueness, the overbreadth of A.O. No. 308
which if implemented will put our people's right to
privacy in clear and present danger.
Nonetheless, the right to privacy admits of the so-
called TWO-FOLD TEST or the “Reasonable
expectation of privacy test” wherein:
a) The conduct of an individual exhibited
an expectation of privacy;
b) The society recognizes such
expectation as reasonable.
BLAS F. OPLE vs. RUBEN D. TORRES,
ALEXANDER AGUIRRE, HECTOR VILLANUEVA,
CIELITO HABITO, ROBERT BARBERS,
CARMENCITA REODICA, CESAR SARINO,
RENATO VALENCIA, TOMAS P. AFRICA, HEAD
OF THE NATIONAL COMPUTER CENTER and
CHAIRMAN OF THE COMMISSION ON AUDIT
G.R. No. 12765| July 23, 1998
We reject the argument of the Solicitor General that
an individual has a reasonable expectation of
privacy with regard to the Natioal ID and the use of
biometrics technology as it stands on quicksand.
The reasonableness of a person's expectation of
privacy depends on a two-part test:
(1) Whether by his conduct, the individual has
exhibited an expectation of privacy; and
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
(2) Whether this expectation is one that society
recognizes as reasonable.
The factual circumstances of the case determines
the reasonableness of the expectation. However,
other factors, such as customs, physical
surroundings and practices of a particular activity,
may serve to create or diminish this expectation.
The use of biometrics and computer technology in
A.O. No. 308 does not assure the individual of a
reasonable expectation of privacy. As technology
advances, the level of reasonably expected privacy
decreases. The measure of protection granted by
the reasonable expectation diminishes as relevant
technology becomes more widely accepted. The
security of the computer data file depends not only
on the physical inaccessibility of the file but also on
the advances in hardware and software computer
technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be by the IACC cannot
remedy this fatal defect. Rules and regulations
merely implement the policy of the law or order. On
its face, A.O. No. gives the IACC virtually unfettered
discretion to determine the metes and bounds of the
ID System.
Nor do your present laws provide adequate
safeguards for a reasonable expectation of privacy.
Commonwealth Act. No. 591 penalizes the
disclosure by any person of data furnished by the
individual to the NSO with imprisonment and fine.
Republic Act. No. 1161 prohibits public disclosure of
SSS employment records and reports. These laws,
however, apply to records and data with the NSO
and the SSS. It is not clear whether they may be
applied to data with the other government agencies
forming part of the National ID System. The need to
clarify the penal aspect of A.O. No. 308 is another
reason why its enactment should be given to
Congress.
And so, if there is reasonable expectation of privacy
and that is violated, then there is a violation of this
Constitutional right. In some of your cases, because
of the so-called “Diminished Expectation of Privacy”,
there is no violation of the right.
So going back to searches and seizures, what the
Constitution proscribes is the so-called unreasonable
searches and seizures. So for as long as the search
and seizure is reasonable, it is not prohibited.
Unreasonable searches and seizure would refer to
either:
1. Those searches and seizure without
search warrant validly issued and would
not fall under any of the acceptable
exceptional circumstances;
2. Those searches and seizures with a valid
warrant but was implemented illegally or
outside of the terms of the warrant.
In those instances, the search and seizure may be
deemed unreasonable and the evidence MAY be
excluded. They are not automatically inadmissible.
Under the Rules on Evidence, we all know that you
have to object to their admissibility. Otherwise, they
are deemed admitted once offered by the
prosecution.
16 CONSTITUTIONAL LAW II REVIEW TSN
1. Requirements for Search Warrants
For purposes of a validly issued warrant, just a
rundown of the requisites:
1. There must be an application in
writing and under oath;
2. There is probable cause to be
determined personally, literally
personally, by the judge;
This is as compared to the issuance of a warrant of
arrest. The difference being that in a search warrant,
there is yet to be a criminal case filed. The reason
why there is a search warrant application is for the
State to secure evidence which will be used
eventually against the person from whom the item
was taken for a possible criminal case. Unlike in a
warrant of arrest, there is already a previous
determination of probable cause that the respondent,
who is now the accused, must have to be indicted or
charged in court. This is done by the executive
officers conducting preliminary investigation. And so
when the records would reach the court, there is
already a criminal case pending.
3. After examination under oath and
affirmation of the witnesses which the
judge must personally conduct, there
must have to be searching questions
and answers;
Answers must have to be based on personal
knowledge. Based on your Rules on Evidence, in
relation to your Criminal Law, you would know, if the
answer or assertion turns out to be false, the witness
may be liable for False Testimony or Perjury, as the
case may be so that it must have to be based on
personal knowledge. There is no hard and fast rule
on how the judge must conduct the questioning. It is
sufficient, to comply with the requirement, that the
judge after conducting the questioning, is convinced,
that there are sufficient facts and circumstances to
show that the item sought to be seized are in the
place sought to be searched. That is your minimum
determination of probable cause in the issuance of a
search warrant.
4. The search warrant must be issued in
connection with one specific offense;
The rationale being, how could the judge determine
the existence of probable cause if it were to be
issued for several offenses? The concept of
“SCATTERSHOT WARRANT” has evolved. It
means a warrant has been issued for more than one
specific offense. A scattershot warrant therefore is
not valid.
5. The warrant must particularly
describe the place to be searched;
Most of the cases here would be on the mistake in
the address as indicated. How specific should the
address be? In your Rules of Court, based on the
issuances of the Supreme Court, search warrant
applications now require a sketch to be submitted as
well during the application. This is to avoid a
possibility that there will be a misunderstanding in the
address of the place intended to be searched.
However, in several cases, there is an exception
when the address is clearly made erroneous by
clerical error. In one case you remember, there was
an entity which was sought to be searched because
of the violation of the Internal Revenue Code, they
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
wanted to seize accounting records including official
receipts to determine the violation of the Internal
Revenue Code, they applied for the issuance of a
search warrant to seize a particular establishment.
They applied for a search warrant for “XXX
Establishment, XXX Street, Mandaue City”. But what
was indicated in the search warrant was the same
name of the establishment, same name of the street
but it was indicated as Cebu City. What was actually
searched was the place applied for and intended to
be searched. The Supreme Court said that it was
clearly a clerical error. So, if it is only and clearly a
clerical error, the specification of an incorrect address
would not invalidate the warrant and the subsequent
service and implementation thereof.
6. It must also particularly describe the
thing or things to be seized;
The particularity of the description should be so far as
practicable under the circumstances. Normally with
guns, or drugs, it need not be in specific weight or
quantity. In guns, it must not be too specific to include
the serial number or the correct calibre or type of
weapon because we all know that in the Philippines,
right to bear arms in not a Constitutional right, so the
presumption is that it is illegal. Same with so-called
prohibited drugs.
The problem is with respect to items which are
ordinarily object of commerce or sold commercially.
There must have to be an indication that they have
been used for an illegal purpose in violation of a law
for which the warrant has been applied for or secured
for. Because these items, lacking any indication that
they were used for an illegal purpose in violation of
an existing law, cannot be considered to have been
sufficiently described for purposes of seizure under
warrant. So you have gone through cases involving
Intellectual Property where it involved computer units,
monitors and all other similar devices. Since they are
commercially available and commercially sold, there
must have to be an indication that they were used for
an illegal purpose in violation of a specific law. So
with money. If it is to be for an illegal gambling
violation law, there must have to be a specific
indication that the money to be seized are illegally
obtained or illegally possessed because possession
of money per se is not illegal even if it is unexplained
wealth.
Cross-reference to the Rules of Court:
RULES OF COURT, RULE 126
Sec. 4. Requisites for issuing search warrant. – A
search warrant shall not issue except upon probable
cause in connection with one specific offense to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witness he may produce, and particularly describing
the place to be searched and the things to be seized
which may be anywhere in the Philippines.
Sec. 5. Examination of complainant; record. – The
judge must, before issuing the warrant, personally
examine in the form of searching questions and
answers, in writing and under oath, the complainant
and the witnesses he may produce on facts
personally known to them and attach to the record
their sworn statements, together with the affidavits
submitted.
Sec. 6. Issuance and form of search warrant. – If
the judge is satisfied of the existence of facts upon
which the application is based or that there is
probable cause to believe that they exist, he shall
issue the warrant, which must be substantially in the
form prescribed by these Rules.
Other considerations based on the Rules of Court
on issuing a Search Warrant:
A. The court issuing the warrant;
RULES OF COURT, RULE 126
Sec. 2. Court where application for search
warrant shall be filed. – An application for search
warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a
crime was committed.
(b) For compelling reasons stated in the application,
any court within the judicial region where the crime
was committed if the place of the commission of the
crime is known, or any court within the judicial region
where the warrant shall be enforced.
However, if the criminal action has already been filed,
the application shall only be made in the court where
the criminal action is pending.
You may have remembered the old case of PICOP
where the warrant was issued in Manila and it was
served in Bislig, Surigao del Sur. It was held that the
issuance of the warrant in Manila and service in Bislig
did not invalidate the warrant simply because under
B.P. 129, the processes of the court are supposed to
be generally valid anywhere in the Philippines. But
the Rules of Court has since then been amended.
Now, we must apply with the court where the case is
pending, if there is a case already pending. If there’s
no case pending, you must have to apply with the
court which has territorial jurisdiction over the crime
for which the warrant was applied or at least the
region for which the crime is or has been committed
where the warrant is sought to be implemented. It
cannot just be filed elsewhere and served or
implemented outside at least of the territorial region
of the issuing court and not without any jurisdiction
over the crime for which the warrant was applied for.
Your only exception perhaps would be with regard to
Supreme Court Administrative Matter 844 of July
2009 (*Transcriber’s Note: I did not find any SC
Administrative Matter 844 dated July 2009. What I
found, in relation to Sir Montejo’s discussion, was
A.M. No. 03-8-02-SC dated January 2004) involving
the following offenses:
a. Violation of Intellectual Property
Code
b. Heinous Crimes
c. Illegal Gambling
d. Illegal Possession of Firearms
and Ammunition
e. Comprehensive Dangerous
Drugs Act Violation
f. Anti-Money Laundering Act of
2001 Violation
g. Tarriff and Customs Code
Violation
You can secure and apply the warrant in Regional
Trial Courts, executive judges of Manila and Quezon
City. The warrants issued by these executive judges
can be implemented anywhere in the country.
CONSTITUTIONAL LAW II REVIEW TSN 17
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
A.M. No. 03-8-02-SC
"Guidelines on the Selection and Appointment of
Executive Judges and Defining their Powers,
Prerogatives and Duties"
As approved by the Court in its Resolution of
January 27, 2004
SEC. 12. Issuance of search warrants in special
criminal cases by the Regional Trial Courts of Manila
and Quezon City. - The Executive Judges and,
whenever they are on official leave of absence or are
not physically present in the station, the Vice-
Executive Judges of the RTCs of Manila and Quezon
City shall have authority to act on applications filed by
the National Bureau of Investigation (NBI), the
Philippine National Police (PNP) and the Anti-Crime
Task Force (ACTAF), for search warrants involving
heinous crimes, illegal gambling, illegal
possession of firearms and ammunitions as well
as violations of the Comprehensive Dangerous
Drugs Act of 2002, the Intellectual Property Code,
the Anti-Money Laundering Act of 2001, the Tariff
and Customs Code, as amended, and other
relevant laws that may hereafter be enacted by
Congress, and included herein by the Supreme
Court.
The applications shall be endorsed by the heads of
such agencies or their respective duly authorized
officials and shall particularly describe therein the
places to be searched and/or the property or things to
be seized as prescribed in the Rules of Court. The
Executive Judges and Vice-Executive Judges
concerned shall issue the warrants, if justified, which
may be served outside the territorial jurisdiction of the
said courts.
The Executive Judges and the authorized Judges
shall keep a special docket book listing names of
Judges to whom the applications are assigned, the
details of the applications and the results of the
searches and seizures made pursuant to the
warrants issued.
This Section shall be an exception to Section 2 of
Rule 126 of the Rules of Court.
A. Period of Validity
RULES OF COURT, RULE 126
Sec. 10. Validity of search warrant. – A search
warrant shall be valid for ten (10) days from its date.
Thereafter, it shall be void.
A search warrant is only valid for 10 DAYS FROM
ISSUANCE, not from the receipt of the searching
officer or party.
The rule is “Day Time Search”. A special application
for a “Night Time Search” may be made and may be
granted by the Court. However, absent any special
application for such order, it should be a day time
search. That’s why, during the implementation of the
warrant in the detention cell of the former Mayor of
Leyte where it resulted to his death, there was a
question why the search warrant was served early in
the morning. There’s also a question why a search
warrant would be served in the jail. Probably, they
have not read the jurisprudence that jail search is an
exception to the rule on search warrants.
There was one lawyer who asked me this morning,
why is Major Espenido’s assignment in Ilo-ilo carried
18 CONSTITUTIONAL LAW II REVIEW TSN
in the news? What’s with him? And I said, have you
been reading the news? He said no. I said if you are
familiar with the Leyte incident, he was the chief of
the CIDG there who was responsible for arresting the
Mayor and eventually the Mayor died. He was also
the chief of police of Osamis where the Parojinogs
died as well. So he has now been assigned to Ilo-ilo
City because apparently the Mayor is in the Narco
Politicians List of your President. And so...
B. There must have to be the presence of
at least TWO (2) witnesses in any
search conducted in the house, room
or any premises preferably with the
presence of the lawful occupant and
of a family member.
RULES OF COURT, RULE 126
Sec. 8. Search of house, room, or premises to be
made in presence of two witnesses. – No search
of a house, room, or any other premises shall be
made except in the presence of the lawful occupant
thereof or any member of his family or in the absence
of the latter, two witnesses of sufficient age and
discretion residing in the same locality.
This is why in almost all searches conducted you
have the so-called Barangay Officials who act as the
two witnesses as it is required for a valid search.
So those are the requisites for a valid warrant and a
valid implementation of a search warrant validly
issued.
Now with respect to a search warrant, as we made
mention, once the case is filed in court and raffled off
to a branch, after determination of probable cause,
the respondent, now the accused has to be charged
in court. The judge must personally go over the entire
records and would have actually three (3) options
there:
1. If the judge, after going over the records,
personally determines that there is no
probable cause to continue with the
indictment, the judge can actually dismiss the
case outright;
2. The second option is that if he determines
that there is probable cause to continue with
the indictment and there is probable cause to
issue a warrant of arrest;
The two probable causes are, of course,
different. The first being under the facts and
circumstances present that the investigating
officer would make a conclusion that a crime
has been committed and in all probability the
respondent is responsible for it and therefore
must be held for trial. The latter being that
there are facts and circumstances which lead
the judge to conclude that the accused must
be placed under custody of the court.
3. The third option is if the judge is not really
sure whether there is probable cause and
also is not sure that there is NO probable
cause to continue with the indictment. Here,
the judge may require the prosecution to
submit additional evidence, documentary that
is, within a given period of five (5) days. The
judge will determine from there whether there
is probable cause to continue the indictment
and thereafter, probable cause to issue a
warrant of arrest.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
As you noticed, the difference is that the
judge will not personally and literally
determine it by asking the
complainants/applicants/witnesses of
searching questions and answers. While
personal determination is still required, the
judge is only required to go over the records
personally without actually asking the
questions to the complainant and/or his
witnesses. So that would be the requirement
for the issuance of a valid warrant of arrest.
In warrantless instances, whether in search and
seizure or arrest, a common denominator or rationale
behind allowing it is lack of sufficient authority to
secure a warrant. In traditional discussions, there
are six (6) instances of valid warrantless searches
and seizures and six (6) instances of valid
warrantless arrests. But by reason of jurisprudence,
more so after the 9/11 incident, the instances of valid
warrantless searches and seizures have been added
with two (2). You have:
a. Airport security; and
b. Jail security.
So jail security requires searches without warrant and
your airport security requires or allows searches
without warrant as well because in both occasions,
there is a diminished expectation of privacy. To
ensure that the public taking the airplanes will be free
from any harm and for purposes of public safety, it
cannot be argued that there must have to be some
form of search. And so when you are visiting an
airport to receive a friend or your client, you have an
expectation that you will be searched and therefore,
your right to privacy is diminished. So with jail
security because there is a need to ensure that the
inmates are safe, there should be no weapons, there
should be no drugs or any contraband brought into
the jail facility. Therefore, visitors as well as inmates
are subject to regular searches because of the
diminished expectation of privacy, they are not
expected to validly question the same. Provided, of
course, that the search conducted would be
reasonable.
LEGAL BASIS (*Transcriber’s Note: According
to the Course Outline of Atty. Jumao-as)
On Airport Security:
REPUBLIC ACT No. 6235
AN ACT PROHIBITING CERTAIN ACTS INIMICAL
TO CIVIL AVIATION, AND FOR OTHER
PURPOSES
Section 9. Every ticket issued to a passenger by the
airline or air carrier concerned shall contain among
others the following condition printed thereon: "Holder
hereof and his hand-carried luggage(s) are subject to
search for, and seizure of, prohibited materials or
substances. Holder refusing to be searched shall not
be allowed to board the aircraft," which shall
constitute a part of the contract between the
passenger and the air carrier.
On Jail Security:
PEOPLE OF THE PHILIPPINES vs. OSCAR
CONDE y LUTOC, ALLAN ATIS y ABET and
ALEJANDRO PEREZ, JR. y CARSILLAR, OSCAR
CONDE y LUTOC, ALLAN ATIS y ABET
G.R. No. 113269 April 10, 2001
On the other hand, we find in order the search of the
bag of Felicidad Macabare, at the time she was
visiting her husband who was a detainee. PO3
Sevillano testified, this search is part of police
standard operating procedure, and is recognized as
part of precautionary measures by the police to
safeguard the safety of the detainees as well as the
over-all security of the jail premises.
2. Valid Instances of Warrantless Searches and
Seizures
A. Search of moving vehicles
Traditionally, this has been considered as an
exception because of the nature of a vehicle which is
its being movable, easily movable. That being said, it
may be difficult to secure a warrant because it is
mobile. Not only that, even if there was opportunity to
secure a warrant, it may happen that after the
warrant has been secured, the vehicle has already
been moved outside of the territorial jurisdiction of the
issuing court. For which, search of a moving vehicle
is technically allowable. “Technically” because it is
also not correct to assume that just because a
vehicle is moving or movable, that the state agents
can easily flag down any vehicle and conduct a
search for no apparent reason like they don’t like
your vehicle because it’s more expensive than the
police car. They cannot do that ordinarily.
Together with the discussion on moving vehicle,
more especially so now with the declaration of Martial
Law in Mindanao, is the concept of allowable
searches in checkpoints. As held in the case of
Valmonte vs. De Villa (*Transcriber’s Note: The
guidelines discussed by Sir Montejo below are not
found in the case itself), the Supreme Court has
already laid down the guidelines or parameters for
conducting searches in checkpoints and what would
be considered as allowable search which are as
follows:
a. There must be a determination of the
responsible officer in the headquarters
where the checkpoint should be put up, it
must have to be determined by the men
in the field. The reason being the officer
in the headquarters are in a position to
determine the proper allocation of
personnel including those who will man
the checkpoint;
b. The checkpoint must not be moving or
movable but must be stationary because
if there are motorists who would not want
to be bothered by the stops in the
checkpoints, they should be allowed to
avoid it if they would want to;
c. The checkpoint must be manned by a
commission officer to head the non-
commissioned ones. If you notice, during
elections, because of COMELEC
issuances, there is even a requirement of
appropriate notices to be put up in a
checkpoint to include the responsible
COMELEC officer in checkpoints set up
for the conduct of elections. Primarily, the
officer commissioned must have to be
there to supervise and be responsible for
the non-commissioned ones. They must
be properly informed and they must have
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
to have their proper nameplates or
proper identification;
d. The search in the checkpoint is limited to
VISUAL SEARCH. Meaning, if there is
no reason to detain the vehicle longer
than what is co-extensive with a visual
search then the vehicle must be
released. They cannot require you to
open any enclosure in your vehicle,
ordinarily, unless there is a so-called
minimum determination of probable
cause that a more extensive search must
be conducted.
As you may have experienced, when Martial Law
was declared, suddenly they have been conducting
searches extensively at our border checkpoints. They
will open your door, they will look under your seats, to
determine whether there are firearms there. They will
ask you to open compartments, the back of your
trunk and anywhere. In public utilities, they will ask
the passengers to alight, check them individually
including their belongings. They still have not
changed their thinking that terrorists now can actually
ride a pajero or a land cruiser. Terrorists do not take
public transportation. But if there is a vehicle passing
through a checkpoint, they will just conduct the so-
called visual search. They do not think that terrorists
can ride expensive vehicles.
RICARDO C. VALMONTE AND UNION OF
LAWYERS AND ADVOCATES FOR PEOPLE'S
RIGHTS (ULAP) vs. GEN. RENATO DE VILLA AND
NATIONAL CAPITAL REGION DISTRICT
COMMAND
G.R. No. 83988| September 29, 1989
The constitutional right against unreasonable
searches and seizures is a personal right invocable
only by those whose rights have been infringed, or
threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in
any particular case is purely a judicial question,
determinable from a consideration of the
circumstances involved.
Petitioner Valmonte's general allegation to the effect
that he had been stopped and searched without a
search warrant by the military manning the
checkpoints, without more, i.e., without stating the
details of the incidents which amount to a violation of
his right against unlawful search and seizure, is not
sufficient to enable the Court to determine whether
there was a violation of Valmonte's right against
unlawful search and seizure. Not all searches and
seizures are prohibited. Those which are reasonable
are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be
resolved according to the facts of each case.
Where, for example, the officer merely draws aside
the curtain of a vacant vehicle which is parked on
the public fair grounds, or simply looks into a
vehicle, or flashes a light therein, these do not
constitute unreasonable search.
The setting up of the questioned checkpoints in
Valenzuela (and probably in other areas) may be
considered as a security measure to enable the
NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace
and order for the benefit of the public. Checkpoints
may also be regarded as measures to thwart plots to
20 CONSTITUTIONAL LAW II REVIEW TSN
destabilize the government, in the interest of public
security. In this connection, the Court may take
judicial notice of the shift to urban centers and their
suburbs of the insurgency movement, so clearly
reflected in the increased killings in cities of police
and military men by NPA "sparrow units," not to
mention the abundance of unlicensed firearms and
the alarming rise in lawlessness and violence in
such urban centers, not all of which are reported in
media, most likely brought about by deteriorating
economic conditions — which all sum up to what
one can rightly consider, at the very least, as
abnormal times. Between the inherent right of the
state to protect its existence and promote public
welfare and an individual's right against a
warrantless search which is however reasonably
conducted, the former should prevail.
True, the manning of checkpoints by the military is
susceptible of abuse by the men in uniform, in the
same manner that all governmental power is
susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the
citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are
part of the price we pay for an orderly society and a
peaceful community.
B. Search incident to a valid arrest
There are two (2) conditions there:
a. There must have to be a valid arrest, with
or without warrant; and
b. The search incident to a valid arrest must
be limited in time and space.
The reason is primarily to protect the
arresting and searching officer of his safety because
the person arrested may have concealed some
weapons which he may use to evade or escape an
arrest. It is also for the arresting officer to secure
whatever evidence that may be taken from the
person of the person arrested or within the immediate
environment. That’s why it is limited in time –
immediately after the arrest, and limited in space –
only within the person of the person arrested and
within the immediate environment where he has
effective control.
We have come across cases where, for example, the
buy-bust happened in the living room, they could not
conduct a search in the bedroom because that is no
longer covered by the limitation in space. That
bedroom is no longer within the parameters of the
space where the person arrested has immediate
control.
C. When things searched are within plain view of
a searching party
Requisites:
a. There must be a justification for the prior
intrusion;
b. The evidence must be inadvertently
discovered;
c. The evidence is open to the hand or the
eye of the searching party; and
d. Most importantly, the illegality of the thing
is immediately apparent.
In all your readings of evidence in plain view or the
plain view doctrine, it is almost always, if not always
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
applied in instances where it involves guns and
drugs. Again, the reason is because the illegality of
the evidence must be immediately apparent. When it
involves guns and drugs, then that requisite is
complied with.
If it will be for other offenses, there may be a question
as to the illegality of the items seized. If you
remember the old case of Pita vs. Court of Appeals,
involving the seizure of “pornographic magazines”,
what constitutes such material as obscene
publication which is a violation of your Revised Penal
Code provision? Who determines whether it is
obscene, that it appeals purely to the prurient
interest? That cannot be determined by the seizing
officer because that is a question of fact. Unlike in
guns and drugs, there may be hardly any discussion
if it is illegal. This is because there’s a simple
question, “are you permitted to hold or possess this
firearm?” If not, it is illegal. With respect to regulated
drugs, you may be asked whether you are duly
allowed by medical prescription to possess that. But if
it is prohibited, there is no such thing as “allowed
possession of a prohibited drug”. So the presumption
again is that they are illegal unless you could show
that you are legally authorized to possess them.
LEO PITA doing business under the name and style
of PINOY PLAYBOY vs.
THE COURT OF APPEALS, RAMON BAGATSING,
and NARCISO CABRERA
G.R. No. 80806| October 5, 1989
We make this resume.
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 indeed "obscene".
These do not foreclose, however, defenses under
the Constitution or applicable statutes, or remedies
against abuse of official power under the Civil Code"
or the Revised Penal Code.
That’s why all cases, if not all, in plain view doctrine
discussions, include those involving guns and drugs
because evidence of illegality is immediately
apparent.
D. Stop and frisk
This is not covered by the protection against search
and seizure because technically there is no search
and seizure. The Constitutional proscription on
search and seizure is for the State to search a person
or premises and seize an item to be used as
evidence against the person from whom it was taken.
In a Terry Search or the so-called “Stop-And-Frisk
Situation”, there is no intent to secure evidence to be
used as against the person who was frisked and from
whom the item was taken.
In an appropriate circumstance, the “Stop-And-Frisk
Situation” is allowed to be conducted because the
searching or the frisking officer is not certain whether
there is criminal activity going on. He is suspicious
because of the circumstances. He is therefore
allowed to frisk a person in that situation for possible
concealed weapon which he may use against the
police officer and in order to secure what is
necessary in order that the police officer may
investigate further any possible criminal activity. If in
the conduct of the frisking, there is an illegal item or
contraband found upon the person of the person
frisked, that may be used against him.
Please take note, in the 2000 (*Transcriber’s Note:
The relevant case is dated 2012, not 2000) case of
Luz vs. People, in “Stop-And-Frisk Situation”, the
frisking is limited to frisking the outer garment of the
person. You cannot let the person empty his pockets,
show everything upside down, inside-out, because it
is limited to a frisk of the outer clothing of the body of
the person frisked to determine whether there is
concealed weapon. In the case of Luz, the person
was asked to empty his pocket. One of the things
taken out from the pocket was a metal case and
inside the metal case were prohibited drugs. The
Supreme Court said that is not considered to be
admissible as a valid search and seizure under the
“Stop-And-Frisk Situation”. It was not also valid as
evidence taken in plain view because as we said, the
evidence of illegality must be immediately apparent.
What was seen immediately taken by the accused
Luz from his pocket was a metal case or tin case. So
the prohibited drug inside was not readily seen.
Therefore, the evidence of illegality of the prohibited
drug inside the metal case or tin case was not
immediately apparent.
RODEL LUZ y ONG vs. PEOPLE OF THE
PHILIPPINES
G. R. No. 197788 February 29, 2012
The following are the instances when a warrantless
search is allowed: (i) a warrantless search incidental
to a lawful arrest; (ii) search of evidence in plain
view; (iii) search of a moving vehicle; (iv) consented
warrantless search; (v) customs search; (vi) a stop
and frisk search; and (vii) exigent and emergency
circumstances. None of the above-mentioned
instances, especially a search incident to a lawful
arrest, are applicable to this case.
It must be noted that the evidence seized, although
alleged to be inadvertently discovered, was not in
plain view. It was actually concealed inside a metal
container inside petitioner’s pocket. Clearly, the
evidence was not immediately apparent.
Neither does the search qualify under the stop and
frisk rule. While the rule normally applies when a
police officer observes suspicious or unusual
conduct, which may lead him to believe that a
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criminal act may be afoot, the stop and frisk is
merely a limited protective search of outer
clothing for weapons.
The foregoing considered, petitioner must be
acquitted. While he may have failed to object to the
illegality of his arrest at the earliest opportunity, a
waiver of an illegal warrantless arrest does not,
however, mean a waiver of the inadmissibility of
evidence seized during the illegal warrantless arrest.
The Constitution guarantees the right of the people
to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.
Any evidence obtained in violation of said right shall
be inadmissible for any purpose in any proceeding.
While the power to search and seize may at times
be necessary to the public welfare, still it must be
exercised and the law implemented without
contravening the constitutional rights of citizens, for
the enforcement of no statute is of sufficient
importance to justify indifference to the basic
principles of government.
E. Express waiver
Requisites:
a. The waiver must be given by the person
to whom the right obtains;
It cannot be given by any other person.
Meaning, the right against admissible
searches and seizures is personal.
b. The waiver must have to be voluntary,
intelligently made and expressly made;
The determination of whether it is voluntarily,
intelligently and expressly made must have
to consider certain factors. In the case of Luz
vs. People, the Supreme Court made
mention of the following:
• The age of the defendant;
• Whether the defendant was in a public or
secluded location;
• Whether defendant objected to the
search or passively looked on;
• The education and intelligence of the
defendant;
• The presence of coercive police
procedures;
• The defendant’s belief that no
incriminating evidence would be found;
• The nature of the police questioning;
• The environment in which the
questioning took place; and
• The possible vulnerable state of the
person consenting.
So these are some of the things that must
have to be factored-in in determining whether the
waiver was expressly, voluntarily and validly made.
RODEL LUZ y ONG vs. PEOPLE OF THE
PHILIPPINES
G. R. No. 197788 February 29, 2012
Neither was there a consented warrantless search.
Consent to a search is not to be lightly inferred, but
shown by clear and convincing evidence. It must be
voluntary in order to validate an otherwise illegal
search; that is, the consent must be unequivocal,
specific, intelligently given and uncontaminated by
22 CONSTITUTIONAL LAW II REVIEW TSN
any duress or coercion. While the prosecution
claims that petitioner acceded to the instruction of
PO3 Alteza, this alleged accession does not suffice
to prove valid and intelligent consent. In fact, the
RTC found that petitioner was merely told to take out
the contents of his pocket.
Whether consent to the search was in fact voluntary
is a question of fact to be determined from the
totality of all the circumstances. Relevant to this
determination are the following characteristics of the
person giving consent and the environment in which
consent is given: (1) the age of the defendant; (2)
whether the defendant was in a public or a
secluded location; (3) whether the defendant
objected to the search or passively looked on;
(4) the education and intelligence of the
defendant; (5) the presence of coercive police
procedures; (6) the defendants belief that no
incriminating evidence would be found; (7) the
nature of the police questioning; (8) the
environment in which the questioning took
place; and (9) the possibly vulnerable subjective
state of the person consenting. It is the State that
has the burden of proving, by clear and positive
testimony that the necessary consent was obtained,
and was freely and voluntarily given. In this case, all
that was alleged was that petitioner was alone at the
police station at three in the morning, accompanied
by several police officers. These circumstances
weigh heavily against a finding of valid consent to a
warrantless search.
c. The search, even when there is a valid
waiver must have to be conducted
pursuant to the terms of the consent
given.
That is your case of Veroy vs. Layage.
SPOUSES LEOPOLDO and MA. LUISA VEROY vs.
THE HON. WILLIAM L. LAYAGUE, Presiding Judge,
Branch XIV, Regional Trial Court at Davao City; and
BRIG. GEN. PANTALEON DUMLAO, Commanding
General, PC-Criminal Investigation Service
G.R. No. L-95630| June 18, 1992
Petitioners aver that while they concede that Capt.
Obrero had permission from Ma. Luisa Veroy to
break open the door of their residence, it was merely
for the purpose of ascertaining thereat the presence
of the alleged "rebel" soldiers. The permission did
not include any authority to conduct a room to room
search once inside the house. The items taken
were, therefore, products of an illegal search,
violative of their constitutional rights As such, they
are inadmissible in evidence against them.
The Constitution guarantees the right of the people
to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures
(Article III, Section 2 of the 1987 Constitution).
However, the rule that searches and seizures must
be supported by a valid warrant is not an absolute
one. Among the recognized exceptions thereto are:
(1) a search incidental to an arrest; (2) a search of a
moving vehicle; and (3) seizure of evidence in plain
view (People v. Lo Ho Wing, G.R. No. 88017,
January 21, 1991 [193 SCRA 122]).
None of these exceptions pertains to the case at
bar. The reason for searching the house of herein
petitioners is that it was reportedly being used as a
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4-MANRESA 2017-2018
hideout and recruitment center for rebel soldiers.
While Capt. Obrero was able to enter the compound,
he did not enter the house because he did not have
a search warrant and the owners were not present.
This shows that he himself recognized the need for
a search warrant, hence, he did not persist in
entering the house but rather contacted the Veroys
to seek permission to enter the same. Permission
was indeed granted by Ma. Luisa Veroy to enter the
house but only to ascertain the presence of rebel
soldiers. Under the circumstances it is undeniable
that the police officers had ample time to procure a
search warrant but did not.
In a number of cases decided by this Court,
(Guazon v. De Villa, supra.; People v. Aminnudin,
G.R. No. L-74869, July 6, 1988 [163 SCRA 402];
Alih v. Castro, G.R. No. L-69401, June 23, 1987
[151 SCRA 279]), warrantless searches were
declared illegal because the officials conducting the
search had every opportunity to secure a search
Warrant. The objects seized, being products of
illegal searches, were inadmissible in evidence in
the criminal actions subsequently instituted against
the accused-appellants (People v. Cendana, G.R.
No. 84715, October 17, 1990 [190 SCRA 538]).
F. Search of warehouse in violation of Customs
and Tariff Code or to enforce customs laws
The only exception here is when it involves a dwelling
place. If the contraband or smuggled goods are kept
in a dwelling place, there must have to be a warrant
secured. Your legal loophole, if you are a smuggler,
you build a big house and keep all your contraband
and smuggled items inside your house. Not in a
bonded warehouse where P6.4B worth of shabu may
be taken even without a warrant.
An Act Modernizing the Customs and Tariff
Administration
Republic Act No. 10863
Congress of the Philippines
10 June 2016
Section 219. Authority to Enter Properties.— Any
person exercising police authority may, at any time,
enter, pass through, and search any land, enclosure,
warehouse, store, building or structure not principally
used as a dwelling house.
When a security personnel or any other employee
lives in the warehouse, store, or any building,
structure or enclosure that is used for storage of
goods, it shall not be considered as a dwelling house
for purposes of this Act.
Section 220. Authority to Search Dwelling House.—
A dwelling house may be entered and searched only
upon warrant issued by a Judge of a competent
court, the sworn application thereon showing
probable cause and particularly describing the place
to be searched and the goods to be seized.
September 5, 2017 A. Cutamora
In warrantless searches and seizures, we said that
there are six standard instances. But there are three
additional instances by jurisprudence:
1. Airport security
2. Jail security
3. Exigency [1994 Ruling]
In warrantless arrest cases, we have:
1. In flagrante delicto cases
The personal knowledge is on the identity of
the person who is going to be arrested. The
person is committing the offense in the
presence of the person arresting.
2. An offense has just been committed and the
person affecting the arrest has personal
knowledge of the facts indicating that the
offense was committed by the person
arrested. The personal knowledge here is not
on the identity of the person because the
offense was not committed in the presence of
the person arresting.
There are two operative phrases here.
• The first is “the offense has just been
committed.”
There is a time element: from the time of
commission up to the time of the arrest. How
soon should the arrest come from the
commission of the offense? In most cases, it
would be safe to say “within12 hour-period.”
• The second one is “personal
knowledge the facts of the
commission of the offense.” This
would refer to hearsay evidence but
to evidence available before the
person arresting. Of course, from
witnesses but this must also be
obtained by them personally based
on the object evidence found on the
scene of the crime.
The other four instances are not much to be
discussed because they are standard.
3. Re-arrest of escape detention prisoners
4. Re-arrest of person legally arrested
previously
5. Arrest of person by bondsmen
6. Re-arrest of those who have attempt to leave
the country
There are also those instances that we know as
administrative arrests.
What are administrative arrests?
The first thing that comes into your mind would be the
arrest which is directed by the President, in the
exercise of his power in relation to foreign affairs.
1. When a foreigner or his stay in the country is
declared to be undesirable, the President can
order the arrest of that undesirable foreigner
for his immediate deportation. There is no
warrant of arrest issued by the judge that is
why it is not a court-issued arrest. That is
why it is called an executive or administrative
arrest.
The important thing to remember is
that there must be a prior declaration of
undesirability.
2. A person is arrested on account on
contumacious behavior. If a person is
declared in contempt, not with the court, but
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in any tribunal or body which has a contempt
power by reason of its power to issue
subpoena.
Like the Congressional Body or the
House of Congress conducting a hearing in
aid of legislation where a person is
summoned to appear or to observe the
summons and he has not valid reason for not
attending, then that person may be held in
Congress. As we all know, if it is the
Congress, there is no need for the Congress
to apply for a warrant from the court, the
House or the Committee can issue the
warrant directly to arrest the person.
3. Rule 119, Section 14.
Section 14. Bail to secure appearance of material
witness. — When the court is satisfied, upon
proof or oath, that a material witness will not
testify when required, it may, upon motion of
either party, order the witness to post bail in such
sum as may be deemed proper. Upon refusal to
post bail, the court shall commit him to prison
until he complies or is legally discharged after his
testimony has been taken. (6a)
When a material witness refuses to testify,
the material witness can be ordered arrested.
While the order of arrest is issued by the
court, a material witness is not an accused.
Therefore, it is not in contemplation of the
warrant issued by the court in relation to an
accused in a criminal case. But because the
rule allows the arrest of a material witness to
testify, then it is considered as administrative
arrest.
In the movies perhaps, you have seen the application
of Homeland Security Regulation. In the application
of the Homeland Security Regulation, there is
proceeding called “extraordinary rendition”.
When a person is suspected committing acts of
terrorism or in the process of committing acts of
terrorism in any of the US territory, Homeland
Security Regulation allows the “arrest of a person,
bring that person to a country which do not have any
diplomatic relations with the US and where the
International Humanitarian Laws do not apply, then
they will have to interrogate that person through the
intermediaries to elicit information necessary to solve
apparently such acts of terrorism or plots to create
terrorism.
The next item is Privacy and Right to
Communication.
Section 2 is what is referred to as a tangible only
rule. When there is no trespass, there is no search.
When there is no tangible object to be seized, there
is no seizure. For which the 1935 Constitution
expanded it to include intangibles. That is you Article
3, Section 3 – Privacy of Communication and
Correspondence.
Article III SECTION 3. (1) The privacy of
communication and correspondence shall be
inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation of this or the
24 CONSTITUTIONAL LAW II REVIEW TSN
preceding section shall be inadmissible for any
purpose in any proceeding.
Wire tapping
Your outline mentioned Republic Act 4200 or the
Anti-Wire Tapping Act. This is an old law but still a
good law. If you remember way back, this is the very
law that was the subject of the various Committee
hearings regarding to what we know now as the
infamous Hello Garci Scandal.
Section 1. It shall be unlawful for any person, not
being authorized by all the parties to any private
communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such
communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or
dictaphone or walkie-talkie or tape recorder, or
however otherwise described:
It shall also be unlawful for any person, be he a
participant or not in the act or acts penalized in the
next preceding sentence, to knowingly possess any
tape record, wire record, disc record, or any other
such record, or copies thereof, of any communication
or spoken word secured either before or after the
effective date of this Act in the manner prohibited by
this law; or to replay the same for any other person or
persons; or to communicate the contents thereof,
either verbally or in writing, or to furnish transcriptions
thereof, whether complete or partial, to any other
person: Provided, That the use of such record or any
copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in section
3 hereof, shall not be covered by this prohibition.
Section 2. Any person who willfully or knowingly does
or who shall aid, permit, or cause to be done any of
the acts declared to be unlawful in the preceding
section or who violates the provisions of the following
section or of any order issued thereunder, or aids,
permits, or causes such violation shall, upon
conviction thereof, be punished by imprisonment for
not less than six months or more than six years and
with the accessory penalty of perpetual absolute
disqualification from public office if the offender be a
public official at the time
Part of the Committee report was to amended RA
4200. This law literally covers only actual, literal
wiretap, to illegally record a particular conversation.
This law applies for the application of the warrant for
allowable recording so that the recording can be used
as evidence in court. Otherwise, it will be
inadmissible.
It does not cover, however, any interceptive
conversations because RA 4200 literally requires
actual, physical wiretap.
You may have come across RA 10175 or the
Cybercrime Prevention Act of 2012. By definition
under Section 3, paragraph m:
(m) Interception refers to listening to, recording,
monitoring or surveillance of the content of
communications, including procuring of the content of
data, either directly, through access and use of a
computer system or indirectly, through the use of
electronic eavesdropping or tapping devices, at the
same time that the communication is occurring.
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Interception is defined. It involves interception with
the use of electronic device, including recording. That
effectively cures what was not covered by RA 4200.
Section 4 of the same law also defines what is a legal
interception.
Section 4. Cybercrime Offenses. — The following
acts constitute the offense of cybercrime punishable
under this Act:
(a) Offenses against the confidentiality, integrity and
availability of computer data and systems:
xxx
(2) Illegal Interception. – The interception
made by technical means without right of any
non-public transmission of computer data to,
from, or within a computer system including
electromagnetic emissions from a computer
system carrying such computer data.
Cybercrime Prevention Act involves the use of
computers and computer devices, including
electronic gadgets and devices.
Section 15. Search, Seizure and Examination of
Computer Data. — Where a search and seizure
warrant is properly issued, the law enforcement
authorities shall likewise have the following powers
and duties.Within the time period specified in the
warrant, to conduct interception, as defined in this
Act, and:
(a) To secure a computer system or a
computer data storage medium;
(b) To make and retain a copy of those
computer data secured;
(c) To maintain the integrity of the relevant
stored computer data;
(d) To conduct forensic analysis or
examination of the computer data storage medium;
and
(e) To render inaccessible or remove those
computer data in the accessed computer or computer
and communications network.
Pursuant thereof, the law enforcement
authorities may order any person who has knowledge
about the functioning of the computer system and the
measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the search,
seizure and examination.
Law enforcement authorities may request for
an extension of time to complete the examination of
the computer data storage medium and to make a
return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.
Section 15 of the same law provides for search and
seizure which are allowable. There is an application
to be made in court. Just like RA 4200.
A. Exclusionary Rule
Section 18 provides for the exclusionary rule. So any
computer data which has been illegally secured or
intercepted, meaning there is no warrant illegally
issued by the court, would be considered as
inadmissible in evidence.
Section 18. Exclusionary Rule. — Any evidence
procured without a valid warrant or beyond the
authority of the same shall be inadmissible for any
proceeding before any court or tribunal.
Please take note that while an ordinary warrant is
good for 10 days, under RA 10175, it has been
extended to 30 days. Not the interception and
recording per se but the period for the authorities to
determine the evidentiary value of the intercepted
and recorded electronic data, for purposes of
eventually filing a criminal offense.
In relation to Section 3, would be your habeas data.
Do you remember the latest issuance of the SC to
extend the protection granted under the writ of
amparo. Wrti of habeas data refers to your right to
privacy, life, liberty and security. This refers to any
written violation of any unlawful act of any entity or a
person.
The question is: Is the gathering, act of storing,
collecting and legal data legal for authors? The
purpose of the Writ of Habeas Data is to enjoin the
collection, keeping, storing or to order the deletion of
the data stored or to rectify any erroneous data or
information.
Example: Driver’s license data. You want your skin
color to be changed because you used to be dark but
now, with the wonders of cosmetics, you are fairer in
color.
The reason why writ of habeas data is related to your
search and seizure is because it is related to your
rights to privacy.
III. FREEDOM OF EXPRESSION
A. Philosophic basis of guarantee:
1. For the discovery of political truth
2. For self government
3. For individual perfection
Now, freedom of expression. There are two
important things that you need to remember.
The first one is xxx. As we made mention, since this
is a limitation to state authority, the state cannot
regulate or enact a law which would violate our so-
called speech rights. But this would only involve
matters, which are considered as public interest. It
does not include matters, which are purely personal
or private because you may be held liable under
other laws, commonly under libel. RA 10175 now
provides for the rules on cyber libel.
There are two components:
1. Prior restraint
2. Subsequent punishment
B. Prior restraints/Subsequent Punishment
When you say freedom from prior restraint, all you
need to remember is censorship. There can be no
censorship or regulation, before the actual
publication. Any law, which prohibits the
dissemination per se, will be considered as
unconstitutional. That could be the presumption. So,
you must be able to distinguish between censorship
and the requirement of business permit because
even if you are in any mass media outlet, you must
undergo the requirement of permit.
Under the Constitution, there are many requirements
for mass media or advertising. That must be
distinguished from prior restraint.
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Most of the cases are under freedom from
subsequent punishment. We understand that all the
cases involving the MTRCB, it has been relatively
ruled by the Supreme Court that the ratings board is
not a form of censorship. They are only there to rate
the TV shows and there must be prior rating before
they can be publicly exhibited, especially motion
pictures.
There are also exceptions such as actual news
reports or actual news shows. They are technically
not covered by the requirement of prior rating.
Now, when it comes to freedom from subsequent
punishment, it prohibits the state from providing
punishment subsequent to a publication or
expression. It is usually tested under what we know
as content-based restriction and content-neural
restriction.
C. Content-based restrictions
1. Some tests of validity of content-based
restrictions
Dangerous tendency: When the legislative body
has determined generally that utterances of a certain
kind involve such danger of substantive evil that they
may be punished, the question whether any specific
utterance coming within the prohibited class is likely,
in and of itself, to bring about the substantive evil is
not open to consideration. In such cases the general
provision of the statute may be constitutionally
applied to the specific utterance if its natural and
probable effect was to bring about the substantive
evil that the legislative body might prohibit. (Glitow vs
NY)
The dangerous tendency test is still used if it
pertains to natural security. Your good example there
would be Article 142 (inciting to sedition) under the
Revised Penal Code. The state will not wait for actual
sedition or acts of sedition to happen. If a person
incites somebody to commit sedition, it is already
punishable. Because the state has the right to protect
its very existence that is why mere tendency is
enough. Present danger is not required under this
test. Normally, dangerous tendency test is used if the
expression is regulated vis-à-vis protection of
national security.
Clear and Present Danger: The question in every
case is whether the words 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 evil that the state has a right to
prevent. (Schenk vs. US)
In almost all cases, we used the clear and present
danger test. This is regularly used to determine if
certain expressions are allowed. The operative
phrases there are “clear and present danger.” There
must be a causal relation between the act sought to
be prevented and the evil the state ought to prevent.
Present danger means that the resulting evil is not
only probably but must also be inevitable. There is a
premium placed in the circumstances or utterances
made. It is not only the “words” per se but in what
instances the words were expressed.
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If the words were expressed in a way that would
inevitably bring the danger sought to be avoided,
then under the clear and present danger test, the
content-based restriction is allowed.
Balancing of interest: The court must undertake the
delicate and difficult task of weighing the
circumstances and appraising the substantiality of the
reasons advanced in support of the regulation of the
free enjoyment of rights. (American Communication
Ass’n vs Doubs)
Balancing interests test Is normally used when
there is a clash of two preferred rights under the
Constitution. For example, freedom of expression in
one hand and right to privacy on the other, which
would prevail? There is no hard and fast rule that the
right to privacy would prevail or the freedom of
expression must be prevented. The rule is that the
court must take careful study of the circumstances
and weigh which fact should be given preference.
That has been used in publications involving public
incidents or events like the dramatization of event
involving public personalities.
Direct incitement: The guarantees of free speech
and free press do not permit a state to forbid or
prescribe the advocacy of the use of force or of law
violation except where such advocacy is directed to
inciting or producing imminent lawless action and is
likely to incite or produce such action. (Brandenburg
vs. Ohio)
Grave-but-improbable danger: Whether the gravity
of the evil, discounted by its improbability, justifies
such an invasion of speech as is necessary to avoid
the danger. (Dennis vs. US)
2. Applications of tests in various contexts
a. Freedom of expression and national security
b. Freedom of expression and criticism of official
conduct
We have taken that already. Just to review:
1. It must be made in good faith.
2. It must be couch in respectful language.
3. It must be directed at the merits.
4. It must not ridicule the court or insult its
member.
That would be an allowable criticism.
The other thing that would come to mind with respect
to criticism or commentary of the court or any court
act is the sub judice rule. People mistakenly
consider that to become liable for contempt under the
sub judice rule is if you make a commentary if the
case is still pending (?).
In America: The jury must not be swayed by any
public commentaries while the case is pending.
Hence, the term sub judice. It means that it is still a
pending decision.
But in the Philippines where there is no jury system,
no matter how you make a public commentary on a
case still pending, the question is “Can you sway the
judge or the Justice to decide the case one way or
the other because of your public commentary?”
If you remember the old case of WEBB vs. DE
LEON, when the warrant of arrest was issued by
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Judge De Leon, there was a Motion for Inhibition filed
by one of the judges there because of the so-called
possibility that the judge would become impartial
because of the public discussion of the case. In this
case, the court made an obiter dictum that unless the
public discussion is such that it would directly show
that the judge was sway in the decision, then the
impartiality rule may have been violated. Showing or
pointing to the matter that no matter how you make
any public discussion on a case pending, you don’t
suppose that those public discussions or
commentaries would affect the court or the judge.
There was this old circular issued by the Supreme
Court. There is a labor case wherein the employees
are camping out the Supreme Court. The SC issued
this resolution stating that any public assembly within
the 200 meter from the court room or court house is
deemed contumacious, meaning you can be held in
contempt if you handle assembly within the said
radius. To prove a point, even with that resolution
from the SC, it is not about any public discussion
affecting their mindset to decide the case under the
sub judice rule but it would actually disrupt the
functioning of the court.
Freedom of expression and the right of privacy
You have a case there AYER PRODUCTIONS vs.
CAPULONG. This involves the filming of
documentary of the EDSA I. There was a public
figure, Sen. Enrile, who does not want to be part of
the documentary. It was a public event. He was a
public figure and he made a comment about the
event. Should he be excluded for his claim for the
right to privacy? The SC said that if it is a public
exhibition of a public event, there must be no
dramatization unless there is consent of the person
depicted. If there is no consent, then make it to depict
as closest it was to the happening.
AYER PRODUCTIONS vs. CAPULONG (1988)
Considering first petitioners' claim to freedom of
speech and of expression the Court would once more
stress that this freedom includes the freedom to film
and produce motion pictures and to exhibit such
motion pictures in theaters or to diffuse them through
television. In our day and age, motion pictures are a
universally utilized vehicle of communication and
medium Of expression. Along with the press, radio
and television, motion pictures constitute a principal
medium of mass communication for information,
education and entertainment.
xxx
This freedom is available in our country both to
locally-owned and to foreign-owned motion picture
companies. Furthermore the circumstance that the
production of motion picture films is a commercial
activity expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and
of expression. In our community as in many other
countries, media facilities are owned either by the
government or the private sector but the private
sector-owned media facilities commonly require to be
sustained by being devoted in whole or in pailt to
revenue producing activities. Indeed, commercial
media constitute the bulk of such facilities available in
our country and hence to exclude commercially
owned and operated media from the exerciseof
constitutionally protected om of speech and of
expression can only result in the drastic contraction
of such constitutional liberties in our country.
xxx
The line of equilibrium in the specific context of the
instant case between the constitutional freedom of
speech and of expression and the right of privacy,
may be marked out in terms of a requirement that the
proposed motion picture must be fairly truthful and
historical in its presentation of events. There must, in
other words, be no knowing or reckless disregard of
truth in depicting the participation of private
respondent in the EDSA Revolution. 16 There must,
further, be no presentation of the private life of the
unwilling private respondent and certainly no
revelation of intimate or embarrassing personal facts.
17 The proposed motion picture should not enter into
what Mme. Justice Melencio-Herrera in Lagunzad
referred to as "matters of essentially private concern."
18 To the extent that "The Four Day Revolution"
limits itself in portraying the participation of private
respondent in the EDSA Revolution to those events
which are directly and reasonably related to the
public facts of the EDSA Revolution, the intrusion into
private respondent's privacy cannot be regarded as
unreasonable and actionable. Such portrayal may be
carried out even without a license from private
respondent.
Let’s go to news reports. If it is news, there is wider
latitude given for error, because of the need to meet
the deadline. Of course, there is a difference between
inexcusable negligence to verify the truth of the
matter.
You heard of Tulfo Brothers. They are prominent in
making public accusations without any proof. If it is
news report, if there is reasonable certainty of
ascertaining the veracity of the report, then there is
no cause of action if there are minor errors or
inaccuracies in the report.
But if it were a feature story or commentary, where
there is more time to ascertain or verify the truth of
the fact, then there will be a leeway or latitude for
protecting the claim of free speech.
If it were print as compared to broadcast media, there
will be more restrictions in broadcast than print. This
is because of what was referred to as the captive
audience doctrine by the Supreme Court. In print
media, there is no captive audience because open
must have to have access to the printed material and
one must know how to read. Once a person is
reading, he has time to think or ponder upon any
written material there which may arouse suspicion or
whatever idea he has. It is not easy for him to react.
Unlike in broadcast media, the captive audience
doctrine is applied even if you are just listening or
reading.
As between radio and TV, there is more regulation in
radio than in TV because of the wider reach of radio
broadcast than television broadcast. Both follow the
captive audience doctrine but because of the wider
reach in radio broadcast, it has more regulation than
in TV broadcast.
Question: With the advent of cable TV, is that subject
to regulation? Of course, you have cable TV
providers. Is there allowable regulation? Or is it ever
regulated? The MTRCB cannot watch over them
because there are so many channels involved. What
if there is cussing or cursing in Mandarin or Korean in
Arirang channel, can they act on it?
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
As mentioned earlier, most cases involving free
speech with respect to state regulation is your rule on
libel. Just take notice of the rules on libel re: privilege
statements. In libel, the so-called presumption of
malice is there. The presumption of malice is lost only
when the statement is considered to be relatively
privileged. If the statement is absolutely privileged, it
is not actionable. Example: Speech or debates made
in Congress or any Committee thereof.
Then finally, you have the proof of truth as a defense.
Can you prove the truth of a “defamatory statement?”
To prove that your statement is not libelous? Like if
you call someone “pangit ka,” can you prove its truth?
So there is difference in a defamatory statement vis-
à-vis truth as a defense if it is directed to a private
individual or to a public individual or person or
whether the statement amounts to a crime.
What does cyber libel involve? Same, except that it
has increased the penalty and it uses any computer
or device or publication of the defamatory statement.
In libel under the RPC, the publication involves
almost everything, except computer devices because
this was not yet in the mindset of the legislator at that
time.
D. Content-neutral restrictions
O’Brien Test
The first is your O’brien test which was adopted in the
case of ADIONG vs. COMELEC based on the US
case of US vs. O’BRIEN. If you remember the case
of Adion, it deals with stickers which were used by
candidates during election campaign period. Before
the advent of the Fair Elections Act in 2001, the
regulation in the actions of candidates would be in
the form of COMELEC Resolutions. There is what we
call as COMELEC Space. Any campaign
paraphernalia or any campaign material can only be
posted in COMELEC spaces and can only be
broadcast during COMELEC time.
In the case of ADIONG vs. COMELEC, the issue is
WON the putting of sticker on a car could be covered
by the COMELEC regulation. The SC said that it
should not be covered. It is the choice of the owner of
the car on who he wants to support during the
election. That is still a good law until today.
ADIONG vs COMELEC (1992)
When faced with border line situations where
freedom to speak by a candidate or party and
freedom to know on the part of the electorate are
invoked against actions intended for maintaining
clean and free elections, the police, local officials and
COMELEC, should lean in favor of freedom. For in
the ultimate analysis, the freedom of the citizen and
the State's power to regulate are not antagonistic.
There can be no free and honest elections if in the
efforts to maintain them, the freedom to speak and
the right to know are unduly curtailed.
xxx
Significantly, the freedom of expression curtailed by
the questioned prohibition is not so much that of the
candidate or the political party. The regulation strikes
at the freedom of an individual to express his
preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be
28 CONSTITUTIONAL LAW II REVIEW TSN
furnished by a candidate but once the car owner
agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner,
primarily his own and not of anybody else. If, in the
National Press Club case, the Court was careful to
rule out restrictions on reporting by newspapers or
radio and television stations and commentators or
columnists as long as these are not correctly paid-for
advertisements or purchased opinions with less
reason can we sanction the prohibition against a
sincere manifestation of support and a proclamation
of belief by an individual person who pastes a sticker
or decal on his private property.
1. Regulation of political campaign/election
activity
There is one case in your online, the old case of
SANIDAD vs. COMELEC… The COMELEC time
and space regulation should not apply in plebiscite.
Because the evil sought to be avoided in the election
campaign is not present in the plebiscite. In the
election campaign where we elect candidate to the
position, the intent of the COMELEC time and space
is to equalize opportunity. To even the playing field,
they can only be allowed to campaign to the then
called COMELEC time and space.
During the Fair Elections Act, this was of course
expanded. But this is also a form of regulation
intending to even the playing field for those
candidates who have resources and those who have
not. If you have been following COMELEC
Resolutions, during the start of the Automated
Election System, there is a strict implementation now
of the allowable election expenses. You have to
submit even the election expenses, donations.
If you have noticed, one of the casualties for
overspending was Governor in Laguna. He was
disqualified for having spent more than the allowable
limit.
*Sir talks about how politicians spend in order to win
during the election.”
Those are content-neutral regulations. They do not
regulate the content of the expression by which the
circumstances by which the expression is to be
made.
2. Freedom of assembly
Then you have BP 880 or the Public Assembly Act
of 1985. This is the origin of what we know as
Freedom Parks.
Section 3. Definitions.
xxx
(a) "Public assembly" means any rally,
demonstration, march, parade, procession or any
other form of mass or concerted action held in a
public place for the purpose of presenting a lawful
cause; or expressing an opinion to the general public
on any particular issue; or protesting or influencing
any state of affairs whether political, economic or
social; or petitioning the government for redress of
grievances.
The processions, rallies, parades, demonstrations,
public meetings and assemblages for religious
purposes shall be governed by local ordinances:
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Provided, however, That the declaration of policy as
provided in Section 2 of this Act shall be faithfully
observed.
The definition herein contained shall not include
picketing and other concerted action in strike areas
by workers and employees resulting from a labor
dispute as defined by the Labor Code, its
implementing rules and regulations, and by the Batas
Pambansa Bilang 227.
Basically, what the law requires is permit before a
public assembly can be had. Exempted to this would
be public assemblies for the exercise of the right to
strike or religious assemblies. Generally, public
assemblies require permit.
It is not for the chief executive of the locality to deny
the application of the permit per se, whether he likes
the group or not. But the law allows the LGU to
properly appropriate the use of public places like the
roads. The persons or groups requesting to have the
public assembly are not the only ones entitled to use
the public places. There are also other persons who
need to use these places. So in order to properly
allow them to use public places, then you must have
to use permits.
Of course, exempted here are private places which
do not require permits. Public assemblies in freedom
parks will not require permit. Take note that this is
only allowed if the locality has its own freedom park.
What is the standard operating procedure when there
is no permit for the public assembly? Or even if it is
committed, they have committed acts of violence, so
how do you disperse it?
Section 11. Dispersal of public assembly with permit
- No public assembly with a permit shall be
dispersed. However, when an assembly becomes
violent, the police may disperse such public assembly
as follows:
(a) At the first sign of impending violence, the ranking
officer of the law enforcement contingent shall call
the attention of the leaders of the public assembly
and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or
other harmful objects from the participants are thrown
at the police or at the non-participants, or at any
property causing damage to such property, the
ranking officer of the law enforcement contingent
shall audibly warn the participants that if the
disturbance persists, the public assembly will be
dispersed;
(c) If the violence or disturbances prevailing as stated
in the preceding subparagraph should not stop or
abate, the ranking officer of the law enforcement
contingent shall audibly issue a warning to the
participants of the public assembly, and after allowing
a reasonable period of time to lapse, shall
immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant
shall also be made during the public assembly unless
he violates during the assembly a law, statute,
ordinance or any provision of this Act. Such arrest
shall be governed by Article 125 of the Revised Penal
Code, as amended:
(e) Isolated acts or incidents of disorder or branch of
the peace during the public assembly shall not
constitute a group for dispersal.
Section 12. Dispersal of public assembly without
permit - When the public assembly is held without a
permit where a permit is required, the said public
assembly may be peacefully dispersed.
September 6, 2017 A. Batacan
6. Freedom of Information
The final item in Freedom of Expression will be your
four aspects of Freedom of the Press.
You have your:
1. Freedom from prior restraint
2. Freedom from subsequent punishment
3. Your Right to Information, and
4. Freedom from state regulation/freedom of
the press strictly.
Now speaking of Right to Information, [which is]
related to Freedom of Expression, xxx only an
informed mind can intelligently discuss matters
involving public interest or public concern.
Your Right to Information is the only right, we all
know, in the Constitution that is reserved to Filipino
citizens. It cannot be claimed by any person,
regardless of citizenship, whether resident or
sojourning, which is the general rule in the claim of
the right under the Bill of Rights.
The Right to Information has its limitations based on
the Constitution. They must have to be of public
concern and the right must have to be provided
by law. It excludes national security matters, those
involving purely private matters because of the Right
to Privacy protection and while the right to have
access to this information is a constitutionally granted
right, it does not mean that it is for free. You can
secure documents of public offices, subject to the
reasonable fees to get such documents.
Relative to this would be your discussion also in the
Right to Information relative to government contract
litigation. When we discussed the power of the
president over foreign affairs, if you remember the
case of Pimentel, that in any negotiation, contract or
even treaty or executive agreements, you do not
have the right to be informed of the progress of the
negotiation, except as to the final results, meaning
we can have access to the final signed doctrine(?)
but not as to the progress or negotiations, what were
the parameters, what were the matters discussed
because we only have the right to the final signed
doctrine.
Even then, if it were to be a treaty, based on the
ruling of Pimentel vs OP (but Pimentel vs Exec Sec
talaga sya), the Senate, even if it has the power to
concur in any treaty entered into by the President,
cannot compel the President to submit a signed
treaty to the Senate for concurrence because the
treaty negotiation is basically granted to the
President. Its efficacy would be dependent on the
concurrence of the Senate; the validity of the treaty is
not dependent upon the Senate’s concurrence of it.
[For] the efficacy, that xxx would require Senate
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
concurrence but not [for its validity], so the petition for
mandamus is lost xxx.
PIMENTEL vs. EXECUTIVE SECRETARY
G.R. No. 158088, July 6, 2005
In our system of government, the President, being
the head of state, is regarded as the sole organ and
authority in external relations and is the country’s
sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the
country’s mouthpiece with respect to international
affairs. Hence, the President is vested with the
authority to deal with foreign states and
governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and
otherwise transact the business of foreign relations.
In the realm of treaty-making, the President has the
sole authority to negotiate with other states.
Nonetheless, while the President has the sole
authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members
of the Senate for the validity of the treaty entered
into by him. Section 21, Article VII of the 1987
Constitution provides that “no treaty or international
agreement shall be valid and effective unless
concurred in by at least two-thirds of all the
Members of the Senate.”
The participation of the legislative branch in the
treaty-making process was deemed essential to
provide a check on the executive in the field of
foreign relations. By requiring the concurrence of the
legislature in the treaties entered into by the
President, the Constitution ensures a healthy system
of checks and balance necessary in the nation’s
pursuit of political maturity and growth.
Signing vs. Ratification of Treaty
It should be underscored that the signing of the
treaty and the ratification are two separate and
distinct steps in the treaty-making process. As earlier
discussed, the signature is primarily intended as a
means of authenticating the instrument and as a
symbol of the good faith of the parties. It is usually
performed by the state’s authorized representative in
the diplomatic mission. Ratification, on the other
hand, is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive
act, undertaken by the head of the state or of the
government.
Purpose of Ratification
Petitioners’ submission that the Philippines is bound
under treaty law and international law to ratify the
treaty which it has signed is without basis. The
signature does not signify the final consent of the
state to the treaty. It is the ratification that binds the
state to the provisions thereof. In fact, the Rome
Statute itself requires that the signature of the
representatives of the states be subject to
ratification, acceptance or approval of the signatory
states. Ratification is the act by which the provisions
of a treaty are formally confirmed and approved by a
State. By ratifying a treaty signed in its behalf, a
state expresses its willingness to be bound by the
provisions of such treaty. After the treaty is signed
by the state’s representative, the President, being
accountable to the people, is burdened with the
30 CONSTITUTIONAL LAW II REVIEW TSN
responsibility and the duty to carefully study the
contents of the treaty and ensure that they are not
inimical to the interest of the state and its people.
Thus, the President has the discretion even after the
signing of the treaty by the Philippine representative
whether or not to ratify the same. The Vienna
Convention on the Law of Treaties does not
contemplate to defeat or even restrain this power of
the head of states. If that were so, the requirement
of ratification of treaties would be pointless and
futile. It has been held that a state has no legal or
even moral duty to ratify a treaty which has been
signed by its plenipotentiaries. There is no legal
obligation to ratify a treaty, but it goes without saying
that the refusal must be based on substantial
grounds and not on superficial or whimsical reasons.
Otherwise, the other state would be justified in taking
offense.
President has the Power to Ratify Treaties
It should be emphasized that under our Constitution,
the power to ratify is vested in the President, subject
to the concurrence of the Senate. The role of the
Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the
ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate
or, having secured its consent for its ratification,
refuse to ratify it. Although the refusal of a state to
ratify a treaty which has been signed in its behalf is a
serious step that should not be taken lightly, such
decision is within the competence of the President
alone, which cannot be encroached by this Court via
a writ of mandamus. This Court has no jurisdiction
over actions seeking to enjoin the President in the
performance of his official duties. The Court,
therefore, cannot issue the writ of mandamus prayed
for by the petitioners as it is beyond its jurisdiction to
compel the executive branch of the government to
transmit the signed text of Rome Statute to the
Senate.
Now with respect to the current disposition, of course
you remember that President Duterte already issued
EO 2, series of 2016, signed in July 2016. And the
Implementing Rules was issued and signed by the
Executive Secretary sometime in November 2016.
This is the Freedom of Information Executive Order
for the Executive Department only. When there is an
elective, that should be extended to the Local
Government Unit but clearly it covers only the
Executive Department.
If you have read the provision of the EO, the Office of
the President is tasked to issue the IRR particularly
on the exceptions. While the IRR has provided for 9
general exceptions or 9 categories, if you count the
documents, there are 166 documents that are
exempted from public disclosure by reason of the
nature of these documents. So basically they are
exempted but at least there is this Freedom of
Information Executive Order because there is yet to
be a law passed for such Freedom of Information, or
providing information under the Constitution.
E. Academic Freedom
Now, next thing in your outline will be your Academic
Freedom.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
You only have to remember the 3 aspects of
Academic Freedom:
1. The Academic Freedom of Institution of
Higher Learning or the Tertiary Level;
2. The Academic Freedom of the members of
the faculty and teaching staff of the
institutions; and
3. The Academic Freedom of the students.
With respect to the schools, the school can determine
what courses to offer, whom to hire, whom to accept,
meaning the school can impose reasonable
admission policy as the [school] cannot be compelled
by state regulation to admit students [who are] not
qualified under reasonable admission policy.
Despite the fact that the students have academic
freedom as well, meaning under the Magna Carta of
students, the students have the right to enroll IF he
passed the reasonable admission policy or
requirement and has the right to compel re-
enrollment until completion of the desired course the
student has enrolled in. And the academic freedom
also provides that the student cannot be disciplined
just because of his or her exercise of Freedom of
Expression.
In one old case, the Court said, the student does not
leave his right to free speech at the gates of the
university or college.
ARIEL NON vs HON. SANCHO DANES II
G.R. No. 89317 May 20, 1990
“They do not, to borrow from the opinion of Justice
Fortas in Tinker v. Des Moines Community School
District, "shed their constitutional rights to freedom of
speech or expression at the schoolhouse gate."
While therefore, the authority of educational
institutions over the conduct of students must be
recognized, it cannot go so far as to be violative of
constitutional safeguards.”
Of course it would be subject to, again, reasonable
rules on academic proficiency and rules of the
discipline of schools in the tertiary level.
As to the academic freedom of the members of the
faculty and teaching staff, it refers to the right of the
member of the teaching staff to teach the subject as
he deems fit. In what manner, provided again, these
are subject to reasonable regulation.
IV. FREEDOM OF RELIGION
A. Non-establishment clause
The establishment clause prohibits:
1. Excessive governmental entanglement with
religious institutions;
2. Government endorsement
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.
The first principle that is normally discussed in
Freedom of Religion is the Constitutional Separation
of the Church and the State. Correctly understood,
we all know, that the Principle of Separation prohibits
the State from intruding into religious rights and
religious practices, but it does not work the other way
around. Meaning, the church is not prohibited from
intruding into non-sectarian matters. If you remember
the case of Diocese of Bacolod vs COMELEC,
because it prevents or is a limitation on the state
intrusion, but it is not a limitation on the church of its
intrusion with the state affairs.
The scope of the freedom, we follow what we know
as the Belief Action Test. For so long as it remains
in the realm of belief or on the mind, that is not
subject to regulation; but if the belief is converted into
overt acts, meaning it is in the form of an act or an
action, it can be subjected now to reasonable
regulations.
The scope of the prohibition, there are also 2:
1. Non-Establishment Clause
2. Free Exercise Clause
Under the Non-Establishment Clause, it prevents
excessive government entanglement with religious
institutions. It prohibits the government from
endorsing or disapproving a religion or to endorse
non-religious groups.
The idea in your Non-Establishment Clause is that
the State should be an innocent by-stander when it
comes to religions. The idea of volunteerism that
people must have to really exercise their right of a
choice, or to choose whether what religion they would
want to be in or no religion at all. And therefore there
must be no government endorsement in religion or
non-religion if in case.
Government neutrality is summarized as follows:
1. Government must not prefer one religion or
non-religion over another;
2. Government funds must not be applied for
religious purposes;
3. Government action must not aid religion; and
4. Government action must not result to
excessive government entanglement.
The test in Non-Establishment Clause is Benevolent
Neutrality or Benevolent Accommodation.
Meaning government must be an innocent by-stander
when it comes to religion or religious matters.
THE DIOCESE OF BACOLOD vs. COMMISSION
ON ELECTIONS
G.R. No. 205728, January 21, 2015
The Court held that every citizen’s expression with
political consequences enjoys a high degree of
protection.
Moreover, the respondent’s argument that the
tarpaulin is election propaganda, being petitioners’
way of endorsing candidates who voted against the
RH Law and rejecting those who voted for it, holds
no water.
The Court held that while the tarpaulin may influence
the success or failure of the named candidates and
political parties, this does not necessarily mean it is
election propaganda. The tarpaulin was not paid for
or posted “in return for consideration” by any
candidate, political party, or party-list group.
By interpreting the law, it is clear that personal
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
opinions are not included, while sponsored
messages are covered.
The content of the tarpaulin is a political speech
Political speech refers to speech “both intended and
received as a contribution to public deliberation
about some issue,” “fostering informed and civic
minded deliberation.” On the other hand, commercial
speech has been defined as speech that does “no
more than propose a commercial transaction.” The
expression resulting from the content of the tarpaulin
is, however, definitely political speech.
Content-based regulation.
Content-based restraint or censorship refers to
restrictions “based on the subject matter of the
utterance or speech.” In contrast, content-neutral
regulation includes controls merely on the incidents
of the speech such as time, place, or manner of the
speech.
The Court held that the regulation involved at bar is
content-based. The tarpaulin content is not easily
divorced from the size of its medium.
Content-based regulation bears a heavy
presumption of invalidity, and this court has used the
clear and present danger rule as measure.
Under this rule, “the evil consequences sought to be
prevented must be substantive, ‘extremely serious
and the degree of imminence extremely high.’” “Only
when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster,
with the government having the burden of
overcoming the presumed unconstitutionality.”
Even with the clear and present danger test,
respondents failed to justify the regulation. There is
no compelling and substantial state interest
endangered by the posting of the tarpaulin as to
justify curtailment of the right of freedom of
expression. There is no reason for the state to
minimize the right of non-candidate petitioners to
post the tarpaulin in their private property. The size
of the tarpaulin does not affect anyone else’s
constitutional rights.
xxx
The Court held that even though the tarpaulin is
readily seen by the public, the tarpaulin remains the
private property of petitioners. Their right to use their
property is likewise protected by the Constitution.
Any regulation, therefore, which operates as an
effective confiscation of private property or
constitutes an arbitrary or unreasonable infringement
of property rights is void, because it is repugnant to
the constitutional guaranties of due process and
equal protection of the laws.
The Court in Adiong case held that a restriction that
regulates where decals and stickers should be
posted is “so broad that it encompasses even the
citizen’s private property.” Consequently, it violates
Article III, Section 1 of the Constitution which
provides that no person shall be deprived of his
property without due process of law.
xxx
The Court held that the church doctrines relied upon
by petitioners are not binding upon this court. The
position of the Catholic religion in the Philippines as
regards the RH Law does not suffice to qualify the
posting by one of its members of a tarpaulin as
32 CONSTITUTIONAL LAW II REVIEW TSN
religious speech solely on such basis. The
enumeration of candidates on the face of the
tarpaulin precludes any doubt as to its nature as
speech with political consequences and not religious
speech.
Doctrine of benevolent neutrality
With religion looked upon with benevolence and not
hostility, benevolent neutrality allows
accommodation of religion under certain
circumstances. Accommodations are government
policies that take religion specifically into account not
to promote the government’s favored form of
religion, but to allow individuals and groups to
exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on,
or facilitate the exercise of, a person’s or institution’s
religion.
As Justice Brennan explained, the “government may
take religion into account . . . to exempt, when
possible, from generally applicable governmental
regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to
create without state involvement an atmosphere in
which voluntary religious exercise may flourish.”
Lemon test
A regulation is constitutional when:
It has a secular legislative purpose;
It neither advances nor inhibits religion; and
It does not foster an excessive entanglement with
religion.
Of course there are several provisions in the
Constitution, which are considered to be non-violative
of the principle because they are considered non-
discriminatory concessions. The exemption from
realty taxes, public aid to religion, religious
instructions in public schools provisions, the
operation of religious institutions for schools by
foreign religious works as well as the payments of
government funds to priests, ministers, chaplain or
religious militaries to those who are employed as
such in the AFP, government institutions xxx those
are non-discriminatory concessions.
Then you have the case of Estrada vs Escritor
where the SC has used the so-called Compelling
State Interest test.
Under the facts of the case, because of the
administrative claim or case for gross immorality, the
SC has to weigh whether there is a compelling
government interest or state interest that is sought to
be protected if the administrative ground of gross
immorality should be imposed on them. Because they
have claimed that their union, despite the fact that it
started as “freedom of ??” (sorry di maintindihan),
would fall under their honest claim of religious belief
which is allowed in their church. And so weighing, the
SC had the occasion to discuss that there are three
tests under compelling state interest:
• First, the State must show that there is a
compelling government interest or state
interest that is sought to be protected by
the law or policy in question.
• Second, the state must prove that the law
or policy is narrowly tailored in order to
achieve the goal or interest, which is to
protect a compelling state interest.
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
• And the third one is that, the law or policy
is the least restrictive means.
» Meaning, it is that least restrictive in
relation to ones free exercise in order
to achieve “to protect a compelling
state interest”.
The idea is that, if the burden lies with the State, if
the plaintiff or claimant of the free exercise can show
that the regulation or policy of the State affects ones
free exercise, the burden shifts to the State to prove
that there is a compelling state interest and show and
satisfy those three tests. Failing in that, the regulation
or policy must be declared as invalid or
unconstitutional. The presumption therefore is
against validity under the compelling state interest.
Also in compelling state interest, there are three
accommodations, which results if there is a regulation
or policy against free exercise.
• The first is your so-called mandatory
accommodation.
» It means the State must allow the
exercise of religious rights. It is
mandatory; otherwise it will violate
the free exercise clause.
• The second is permissive accommodation.
» The State may or may not grant the
free exercise because it is still
subject to, or it may be subjected to
restrictive action.
• The third one is what is referred to as
prohibited accommodation.
» Meaning, the State cannot allow free
exercise otherwise it will violate the
non-establishment clause.
ALEJANDRO ESTRADA vs. SOLEDAD S.
ESCRITOR
A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
The Compelling State Interest Test
As previously stated, the compelling state interest
test involves a three-step process. We explained this
process in detail, by showing the questions which
must be answered in each step, viz:
…First, "[H]as the statute or government action
created a burden on the free exercise of religion?"
The courts often look into the sincerity of the
religious belief, but without inquiring into the truth of
the belief because the Free Exercise Clause
prohibits inquiring about its truth as held in Ballard
and Cantwell. The sincerity of the claimant’s belief is
ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently
compelling state interest to justify this infringement
of religious liberty?" In this step, the government has
to establish that its purposes are legitimate for the
state and that they are compelling. Government
must do more than assert the objectives at risk if
exemption is given; it must precisely show how and
to what extent those objectives will be undermined if
exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its
legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any
more than necessary to achieve the legitimate goal
of the state?" The analysis requires the state to
show that the means in which it is achieving its
legitimate state objective is the least intrusive
means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible
on religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest
test could result to three situations of
accommodation: First, mandatory accommodation
would result if the Court finds that accommodation is
required by the Free Exercise Clause. Second, if the
Court finds that the State may, but is not required to,
accommodate religious interests, permissive
accommodation results. Finally, if the Court finds
that that establishment concerns prevail over
potential accommodation interests, then it must rule
that the accommodation is prohibited.
xxx
Thus, we find that in this particular case and under
these distinct circumstances, respondent Escritor’s
conjugal arrangement cannot be penalized as she
has made out a case for exemption from the law
based on her fundamental right to freedom of
religion. The Court recognizes that state interests
must be upheld in order that freedoms - including
religious freedom - may be enjoyed. In the area of
religious exercise as a preferred freedom, however,
man stands accountable to an authority higher than
the state, and so the state interest sought to be
upheld must be so compelling that its violation will
erode the very fabric of the state that will also protect
the freedom. In the absence of a showing that such
state interest exists, man must be allowed to
subscribe to the Infinite.
Final item in your freedom of religion, it was the
discussion in the case of Imbong vs Ochoa, it is
your RH Law, is the concept of conscientious
objectors.
A person is considered a conscientious objector if by
reason of his religious beliefs, he or she cannot be
made to perform an act because of his religious
thoughts or conscience.
In the case of Imbong, there were some provisions
there which would require mandatory service to
provide for, say, when a woman is admitted, there is
a requirement to give a reproductive health
education. And in one provision, there was a
requirement for Philhealth accreditation. You must
have to render so many hours of reproductive health
seminar for a decision to be accredited to the
Philhealth. Some Catholics, physicians, are raising
an objection because for them, reproductive health,
or at least as it was signed in the law, is contrary to
their conscience. And so in the concept of
conscientious objectors, which they could not do
because it violates their religious thoughts or
conscience, the SC has allowed that as to them,
these mandatory provisions shall not be imposed and
therefore they are not subject to any liability for
refusing to comply with the mandatory requirements.
So that is your concept of conscientious objectors,
where a person by reason of his religious thought or
conscience can seek exemption from a regulation or
a law requiring a mandated act to be done because it
will violate his freedom of religion.
CONSTITUTIONAL LAW II REVIEW TSN 33
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JAMES M. IMBONG vs. HON. PAQUITO N. OCHOA
G.R. No. 204819, April 8, 2014
While the RH Law, in espousing state policy to
promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-
Establishment Clause, the same conclusion cannot
be reached with respect to Sections 7, 23 and 24
thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately
refer a person seeking health care and services
under the law to another accessible healthcare
provider despite their conscientious objections
based on religious or ethical beliefs.
In a situation where the free exercise of religion is
allegedly burdened by government legislation or
practice, the compelling state interest test in line with
the Court's espousal of the Doctrine of Benevolent
Neutrality in Escritor, finds application. In this case,
the conscientious objector's claim to religious
freedom would warrant an exemption from
obligations under the RH Law, unless the
government succeeds in demonstrating a more
compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the
plea of conscientious objectors for exemption from
the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a
conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no doubt
that an intense tug-of-war plagues a conscientious
objector. One side coaxes him into obedience to the
law and the abandonment of his religious beliefs,
while the other entices him to a clean conscience yet
under the pain of penalty. The scenario is an
illustration of the predicament of medical
practitioners whose religious beliefs are incongruent
with what the RH Law promotes.
The Court is of the view that the obligation to refer
imposed by the RH Law violates the religious belief
and conviction of a conscientious objector. Once the
medical practitioner, against his will, refers a patient
seeking information on modem reproductive health
products, services, procedures and methods, his
conscience is immediately burdened as he has been
compelled to perform an act against his beliefs. As
Commissioner Joaquin A. Bernas (Commissioner
Bernas) has written, "at the basis of the free exercise
clause is the respect for the inviolability of the
human conscience.222
Though it has been said that the act of referral is an
opt-out clause, it is, however, a false compromise
because it makes pro-life health providers complicit
in the performance of an act that they find morally
repugnant or offensive. They cannot, in conscience,
do indirectly what they cannot do directly. One may
not be the principal, but he is equally guilty if he
abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is
necessarily intertwined with the right to free speech,
it being an externalization of one's thought and
conscience. This in turn includes the right to be
silent. With the constitutional guarantee of religious
freedom follows the protection that should be
afforded to individuals in communicating their beliefs
to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty
34 CONSTITUTIONAL LAW II REVIEW TSN
not to utter what is not in his mind.223 While the RH
Law seeks to provide freedom of choice through
informed consent, freedom of choice guarantees the
liberty of the religious conscience and prohibits any
degree of compulsion or burden, whether direct or
indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and
moral convictions of individuals, on one hand, and
the interest of the State, on the other, to provide
access and information on reproductive health
products, services, procedures and methods to
enable the people to determine the timing, number
and spacing of the birth of their children, the Court is
of the strong view that the religious freedom of
health providers, whether public or private, should
be accorded primacy. Accordingly, a conscientious
objector should be exempt from compliance with the
mandates of the RH Law. If he would be compelled
to act contrary to his religious belief and conviction, it
would be violative of "the principle of non-coercion"
enshrined in the constitutional right to free exercise
of religion.
1. Operation of sectarian schools
2. Educational institutions, other than those
established by religious groups and mission boards,
shall be owned solely by citizens of the Philippines or
corporations or associations at least sixty per centum
of the capital of which is owned by such citizens. The
Congress may, however, require increased Filipino
equity participation in all educational institutions. The
control and administration of educational institutions
shall be vested in citizens of the Philippines.
No educational institution shall be established
exclusively for aliens and no group of aliens shall
comprise more than one-third of the enrollment in any
school. The provisions of this sub section shall not
apply to schools established for foreign diplomatic
personnel and their dependents and, unless
otherwise provided by law, for other foreign
temporary residents.
2. Religious instructions in public schools
Art XIV sec 3(3), Rev. Adm. Code sec 928, Civil
Code Art 359 (1)
3. At the option expressed in writing by the parents or
guardians, religion shall be allowed to be taught to
their children or wards in public elementary and high
schools within the regular class hours by instructors
designated or approved by the religious authorities of
the religion to which the children or wards belong,
without additional cost to the Government.
SEC. 928, RAC. Provision for religious instruction by
local priest or minister. – It shall be lawful, however,
for the priest or minister of any church to establish in
the town where a public school is situated, either in
person or by a designated teacher of religion, to
teach religion for one-half hour three times a week, in
the school building, to those public-school pupils
whose parents or guardians desire it and express
their desire therefore in writing filed with the principal
teacher of the school, to be forwarded to the division
superintendent, who shall fix the hours and room for
such teaching. But no public school teachers shall
either conduct religious exercises or teach religion or
act as a designated religious teacher in the school
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
building under the foregoing authority, and no pupils
shall be required by any public school teacher to
attend and receive the religious instruction herein
permitted. Should the opportunity thus given to teach
religion be used by the priest, minister, religious
teacher for the purpose of arousing disloyalty to ….
or of discouraging the attendance of pupils at such
public school, or creating a disturbance of public
order, or of interfering with the discipline of the
school, the division superintendent, subject to the
approval of the Director of Education, may, after due
investigation and hearing, forbid such offending
priest, minister, or religious teacher from entering the
public school building thereafter.
Article 359, NCC. The government promotes the full
growth of the faculties of every child. For this
purpose, the government will establish, whenever
possible:
(1) Schools in every barrio, municipality and city
where optional religious instruction shall be
taught as part of the curriculum at the option of
the parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.
3. Tax exemption
3. Charitable institutions, churches and personages
or convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and
improvements, actually, directly, and exclusively used
for religious, charitable, or educational purposes shall
be exempt from taxation.
4. Public aid to religion
2. No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
B. Free Exercise Clause
Under the Free Exercise Clause, what is prohibited
here is government from inhibiting religious beliefs by
imposing penalties for religious practices. The test
based on jurisprudence, if you remember the case of
Ebralinag (Ebralinag vs Div. Supt. of Schools of
Cebu) on the flag salute case, the SC used there the
Clear and Present Danger [test]. Under the Clear and
Present Danger [test] as applied in free speech or
expression but for purposes of Free Exercise Clause,
the question xxx is “whether or not the exercise of
religious belief is used in such circumstances and are
such nature as to bring about a clear and present
danger.” So if it brings about a clear and present
danger, the government has the right to regulate free
exercise or prohibit.
1. Flag salute
In the flag salute case, in the earlier ruling, where the
SC made mention that compelling the school children
to salute to the flag will not be a violation to Free
Exercise Clause because it may bring about a
citizenry which would be devoid of any sense of
bigotism. In Ebralinag, which was decided 30 years
after, the SC said that the evil sought to be avoided
would not come to pass. Meaning even if you have
not compelled the children to salute the flag, it will not
bring about a class of citizen who do not have a
sense of bigotism. In Ebralinag, the evil sought to be
avoided will [not] come to pass and therefore the flag
salute ruling 30 years before was reversed and this
time, the claim of religious rights under Free Exercise
was upheld.
EBRALINAG, ET AL VS. DIV. SUPT. OF SCHOOLS
OF CEBU
G.R. No. 95770, March 1, 1993
The expulsion of the members of Jehovah’s Witness
from the schools where they are enrolled will violate
their right as Philippine citizens, under the 1987
Constitution, to receive free education, for it is the
duty of the state to ‘protect and promote the right of
all citizens to quality education, and to make such
education accessible to all (Sec. I, Art XIV).
Nevertheless, their right not to participate in the Flag
Ceremony does not give them a right to disrupt such
patriotic exercises. If they quietly stand at attention
during flag ceremony while their classmates and
teachers salute the flag, sing the national anthem
and recite the patriotic pledge, we do not see how
such conduct may possibly disturb the peace, or
pose ‘a grave and present danger of a serious evil to
public safety, public morals, public health or any
legitimate public interest that the state has a right
and duty to prevent.
It is appropriate to recall the Japanese occupation of
our country in 1942-1944 when every Filipino,
regardless of religious persuasion, in fear of the
invader, saluted the Japanese flag and bowed
before every Japanese soldier, perhaps if petitioners
had lived through that dark period of our history, they
would not quibble now about saluting the Phil. Flag.
2. Freedom to propagate religious doctrines
3. Exemption from union shop
V. LIBERTY OF ABODE AND TRAVEL
Section 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not be
impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in
the interest of national security, public safety, or
public health, as may be provided by law.
It takes to remember, the limitation on abode and the
change in stay is quite specific that it can be affected
by a lawful order of the court. Whereas the right to
travel, it can be limited or affected in the interest of
national security, public safety or public health.
However that limitation is only executive. It does not,
as you all remember, limit the power of the court to
make its jurisdiction over the person or accused,
especially if he is under bond, to prevent him from
traveling.
The right to travel under section 6, we all know refers
to the right to travel within the country and the right to
depart or leave the country. It does not involve the
right to return to the country if one is already outside.
But as discussed in the old case of Marcos vs
Manglapus, because of the generally accepted
CONSTITUTIONAL LAW II REVIEW TSN 35
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principle in international law, we adhere to the
universal declaration of human rights as well as the
xxx international covenant on civil and political rights
which includes ones right to return. And so, it is not
under section 6 but under the Doctrine of
Incorporation based on international declarations or
treaty and convention that we have the right to return
to our country.
FERDINAND E. MARCOS vs HONORABLE RAUL
MANGLAPUS
GR. No. 88211 September 15, 1989
(*First case)
At the outset, we must state that it would not do to
view the case within the confines of the right to travel
and the import of the decisions of the U.S. Supreme
Court in the leading cases of Kent v. Dulles [357
U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v.
Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640)
which affirmed the right to travel and recognized
exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right
involved is not the right to travel from the Philippines
to other countries or within the Philippines. These
are what the right to travel would normally connote.
Essentially, the right involved is the right to return to
one's country, a totally distinct right under
international law, independent from although related
to the right to travel. Thus, the Universal Declaration
of Humans Rights and the International Covenant on
Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state,
the right to leave a country, and the right to enter
one's country as separate and distinct rights. The
Declaration speaks of the "right to freedom of
movement and residence within the borders of each
state" [Art. 13(l)] separately from the "right to leave
any country, including his own, and to return to his
country." [Art. 13(2).] On the other hand, the
Covenant guarantees the "right to liberty of
movement and freedom to choose his residence"
[Art. 12(l)] and the right to "be free to leave any
country, including his own." [Art. 12(2)] which rights
may be restricted by such laws as "are necessary to
protect national security, public order, public health
or morals or enter qqqs own country" of which one
cannot be "arbitrarily deprived." [Art. 12(4).] It would
therefore be inappropriate to construe the limitations
to the right to return to one's country in the same
context as those pertaining to the liberty of abode
and the right to travel.
The right to return to one's country is not among the
rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right
to travel, but it is our well-considered view that the
right to return may be considered, as a generally
accepted principle of international law and, under
our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a
different protection under the International Covenant
of Civil and Political Rights, i.e., against being
"arbitrarily deprived" thereof [Art. 12 (4).]
September 12, 2017 S. Biruar
VI. RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATION
36 CONSTITUTIONAL LAW II REVIEW TSN
ARTICLE III Section 12. 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.
No torture, force, violence, threat, intimidation, or any
other means which vitiate the free will shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention
are prohibited.
Any confession or admission obtained in violation of
this or Section 17 hereof shall be inadmissible in
evidence against him.
The law shall provide for penal and civil sanctions for
violations of this Section as well as compensation to
the rehabilitation of victims of torture or similar
practices, and their families.”
The first paragraph of Section 12 is an offshoot of the
case of Miranda vs. Arizona (384 US 436). Under
the 1973 Constitution, the Philippines, for the first
time, included the so-called “Miranda Warnings” as
part of the rights of persons under custodial
investigation. However, the 1987 Constitution
renamed it as rights of persons under investigation.
This means that a person under investigation need
not be in custody before Miranda warnings may be
applicable. For so long as that person is investigated,
the Miranda rights already operate notwithstanding
the absence of custody.
In Escobedo vs. Illinois, which is adopted in the
1987 Constitution, one need not be under the
custody anymore because the experience in the 1973
Constitution would show that admissions are taken
even if these persons are not in custody. The
Escobedo v. Illinois ruling provides that an
investigation happens when a person is asked
relating to that person’s possible complicity in the
crime under investigation. For so long as the question
ceases to be a general inquiry anymore and points
out to the person as a possible suspect, he is already
under investigation, whether he is in custody or not.
Thus, there is investigation when a person,
regardless of whether he is in custody or not, is being
asked and zeroed in as a suspect. But when one is
merely asked as a witness, the Miranda rights do not
apply.
Investigation
Q: What constitutes investigation?
A: Investigation includes:
• 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 (Miranda vs
Arizona)
• That kind of investigation that ceases to be a
general inquiry on the fact of the commission
of an offense, or into an unsolved crime, and
begins to focus on a particular suspect, the
suspect having been taken into custody, and
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
the police carries out a process of
interrogation to elicit incriminating statements
• Includes the practice of issuing an “invitation”
to a person who is investigated in connection
with an offense he is suspected to have
committed (RA 7438, An Act Providing For
Rights of Persons Arrested, Detained and
Investigated)
Miranda warnings
A defendant “must be warned prior to any
questioning that he has the right to remain silent, that
anything he says can be used against him in a court
of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one
will be appointed for him prior to any questioning if he
so desires”. (Miranda vs. Arizona)
The giving of Miranda warning is more than a
perfunctory function. The right of an accused to be
informed of the right to remain silent and to counsel
contemplates the transmission of meaningful
information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional
principle.
The right to be informed of one's constitutional rights
during custodial investigation refers to an effective
communication between the investigating officer and
the suspected individual, with the purpose of making
the latter understand these rights. Understanding
would mean that the information transmitted was
effectively received and comprehended. Hence, the
Constitution does not merely require the investigating
officers to "inform" the person under investigation;
rather, it requires that the latter be “informed”.
Rights under the Miranda doctrine
The Miranda doctrine requires that:
a. any person under custodial investigation has
the right to remain silent;
b. anything he says can and will be used
against him in a court of law;
c. he has the right to talk to an attorney before
being questioned and to have his counsel
present when being questioned; and
d. if he cannot afford an attorney, one will be
provided before any questioning if he so
desires.
Miranda rights as modified by the 1987
Constitution
The Miranda doctrine under the 1987 Constitution
took on a modified form where:
1. the right to counsel was specifically qualified to
mean
• “competent and independent counsel”
• “preferably of the suspect's own choice”.
2. waiver of the right to counsel likewise provided for
stricter requirements compared to its American
counterpart;
• “it must be done in writing, and
• in the presence of counsel”.
The Miranda rights were incorporated in our
Constitution but were modified to include the
statement that any waiver of the right to counsel must
be made "in writing and in the presence of counsel."
The purposes of the safeguards prescribed by
Miranda are to ensure that the police do not coerce
or trick captive suspects into confessing, to relieve
the "inherently compelling pressures" "generated by
the custodial setting itself," "which work to undermine
the individual’s will to resist," and as much as
possible to free courts from the task of scrutinizing
individual cases to try to determine, after the fact,
whether particular confessions were voluntary. Those
purposes are implicated as much by in-custody
questioning of persons suspected of misdemeanors
as they are by questioning of persons suspected of
felonies.
Infraction of the rights of an accused during custodial
investigation or the so-called Miranda Rights render
inadmissible only the extrajudicial confession or
admission made during such 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.
Availability of the Miranda Rights
The Miranda Rights are available when
1. After a person has been taken into custody
2. The person is arrested, detained, or
investigated (RA 7438)
3. The person is otherwise deprived of his
freedom of action in any significant way
4. When the person is “invited” for questioning
5. The investigation is being conducted by the
government authorities in relation to a
criminal offense
6. The Accused is made to sign arrest reports
or booking sheets
PEOPLE vs. CHAVEZ (2014)
735 SCRA 728
Q: Are the Miranda rights applicable to a person who
voluntarily surrendered?
A: Yes. Republic Act No. 7438 expanded the
definition of custodial investigation to "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."
This means that even those who voluntarily
surrendered before a police officer must be apprised
of their Miranda rights. For one, the same pressures
of a custodial setting exist in this scenario.
REPUBLIC ACT NO. 7438
(AN ACT DEFINING CERTAIN RIGHTS OF
PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION AS WELL AS THE
DUTIES OF THE ARRESTING, DETAINING AND
INVESTIGATING OFFICERS, AND PROVIDING
PENALTIES FOR VIOLATIONS THEREOF)
Section 2. Rights of Persons Arrested, Detained
or Under Custodial Investigation; Duties of Public
Officers. –
(a) Any person arrested detained or under custodial
investigation shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone
acting under his order or his place, who arrests,
detains or investigates any person for the
commission of an offense shall inform the latter, in a
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language known to and understood by him, of his
rights to remain silent and to have competent and
independent counsel, preferably of his own choice,
who shall at all times be allowed to confer privately
with the person arrested, detained or under custodial
investigation. If such person cannot afford the
services of his own counsel, he must be provided
with a competent and independent counsel by the
investigating officer.
(c) The custodial investigation report shall be
reduced to writing by the investigating officer,
provided that before such report is signed, or
thumbmarked if the person arrested or detained does
not know how to read and write, it shall be read and
adequately explained to him by his counsel or by the
assisting counsel provided by the investigating officer
in the language or dialect known to such arrested or
detained person, otherwise, such investigation report
shall be null and void and of no effect whatsoever.
(d) Any extrajudicial confession made by a
person arrested, detained or under custodial
investigation shall be in writing and signed by such
person in the presence of his counsel or in the latter's
absence, upon a valid waiver, and in the presence of
any of the parents, elder brothers and sisters, his
spouse, the municipal mayor, the municipal judge,
district school supervisor, or priest or minister of the
gospel as chosen by him; otherwise, such
extrajudicial confession shall be inadmissible as
evidence in any proceeding.
(e) Any waiver by a person arrested or detained
under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall be
in writing and signed by such person in the presence
of his counsel; otherwise the waiver shall be null and
void and of no effect.
(f) Any person arrested or detained or under
custodial investigation shall be allowed visits by or
conferences with any member of his immediate
family, or any medical doctor or priest or religious
minister chosen by him or by any member of his
immediate family or by his counsel, or by any national
non-governmental organization duly accredited by
the Commission on Human Rights of by any
international non-governmental organization duly
accredited by the Office of the President. The
person's "immediate family" shall include his or her
spouse, fiancé or fiancée, parent or child, brother or
sister, grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward.
As used in this Act, "custodial investigation" shall
include the practice of issuing an "invitation" to a
person who is investigated in connection with an
offense he is suspected to have committed, without
prejudice to the liability of the "inviting" officer for any
violation of law.
Waiver of the rights
A. Prior to January 17, 1973
The waiver must be voluntary, intelligent, and with full
understanding of the consequences of the waiver.
B. Under the 1973 Constitution (January 17,
1973)
It requires further that a person to be investigated
must be informed of his rights to silence and to
counsel.
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C. Morales Jr vs Enrile (1983) and People vs
Galit (1985)
Additional requirement: the waiver must be with the
assistance of counsel.
D. 1987 Constitution (February 2, 1987)
Additional requirement: the waiver must be in writing.
As a summary, the Miranda rights may be waived
1. In writing;
2. Express
3. Voluntarily, knowingly, intelligently; and
4. In the presence of counsel
The express waiver of these rights presupposes that
the meaningful transmission of rights (aka the right to
be informed) would allow the suspect to consider the
effects and consequences of any waiver he might
make of these rights.
Under the 1973 Constitution, the original phraseology
allows the waiver of Miranda rights provided there is
(1) meaningful transmission of rights and (2)
voluntariness on the part of the person waiving these
rights (voluntary waiver).
In the 1985 case of People vs. Galit, restating the
earlier ruling in Morales vs. Enrile (1983), the
Supreme Court now requires that the waiver of the
right to counsel must have to be with the assistance
of counsel.
An assisting counsel is any lawyer, except those
directly affected by the case, those charged with
conducting preliminary investigation or those charged
with the prosecution of crimes. (Section 3, RA 7438)
The 1987 Constitution further improved the
requirements by adding that the waiver must be in
writing, over and above the requirement that the
waiver must be made with the assistance of counsel.
What may be waived: The right to remain silent
and to counsel, but not the right to be given
“Miranda warnings”
While there can be a valid waiver based on the
satisfaction of the constitutional requirements, the
obligation of the investigating officer to inform or
apprise the person under investigation of his Miranda
rights cannot be waived. What can be waived are the
Miranda rights themselves (the right to remain silent,
the right to counsel) but not the right to be informed
of these rights.
Even if a person is knowledgeable of his rights, there
could be no exception or excuse on the part of the
investigating officer to inform the person of such
rights.
PEOPLE vs. PEÑAFLOR (2015)
766 SCRA 427
FACTS: When the police officers came to a
conclusion on the identity of the suspect, they
eventually arrested and investigated him without
informing him of his Miranda rights. After the suspect
admitted to the commission of the offense, he was
brought to the prosecutor’s office to elicit confession.
There were two extrajudicial confessions signed by
the suspect and with the assistance of counsel.
The defense claimed that the two extrajudicial
confessions accused-appellant Peñaflor executed
should not be admissible in evidence for having
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4-MANRESA 2017-2018
been obtained in violation of his right to a competent
and independent counsel.
However, the lower court admitted Peñaflor’s
extrajudicial confessions because they were not
taken under duress or intimidation as the
extrajudicial confessions were conducted at the
Prosecutor’s Office and not in a police station, and in
the presence of his relatives.
According to the lower court, the right to competent
and independent counsel applies only to a person
under custodial investigation. In the case at bar, as
accused-appellant Peñaflor was not under custodial
investigation, but under a preliminary investigation
before a public prosecutor, during which his right to
a competent and independent counsel does not
apply.
ISSUE: Are these confessions admissible?
RULING: Yes. As correctly found by the lower
courts, accused-appellant Peñaflor executed his
extrajudicial confession not during custodial
investigation, but during the preliminary
investigation. In Ladiana v. People, the Court
defined the difference between custodial
investigation and preliminary investigation:
Custodial Interrogation/Investigation “is the
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”; on the other hand, Preliminary
Investigation “is an inquiry or a proceeding to
determine whether there is sufficient ground to
engender a well founded belief that a crime has
been committed, and that the respondent is probably
guilty thereof and should be held for trial.”
In Ladiana, this Court has unequivocally declared
that a person undergoing preliminary investigation
cannot be considered as being under custodial
investigation.
The import of the distinction between custodial
interrogation and preliminary investigation relates to
the inherently coercive nature of a custodial
interrogation which is conducted by the police
authorities. Due to the interrogatory procedures
employed by police authorities, which are conducive
to physical and psychological coercion, the law
affords arrested persons constitutional rights to
guarantee the voluntariness of their confessions and
admissions, and to act as deterrent from coercion by
police authorities. These safeguards are found in
Article III, Section 12(1) of the Constitution and
Section 2 of R.A. No. 7438. Sans proper safeguards,
custodial investigation is a fertile means to obtain
confessions and admissions in duress.
Resultingly, as pronounced in Ladiana, the claim by
the accused of inadmissibility of his extrajudicial
confession is unavailing because his confessions
were obtained during a preliminary investigation.
And even if accused-appellant Peñaflor’s
extrajudicial confessions were obtained under
custodial investigation, these are admissible. To be
admissible, a confession must comply with the
following requirements: it “must be (a) voluntary; b)
made with the assistance of a competent and
independent counsel; c) express; and d) in writing.”
In the case at bar, the prosecution did not present
proof of the absence of any of these requirements.
PEOPLE vs. PEPINO (2016)
779 SCRA 170
The right to counsel is a fundamental right and is
intended to preclude the slightest coercion that
would lead the accused to admit something false.
The right to counsel attaches upon the start of the
investigation, i.e., when the investigating officer
starts to ask questions to elicit information and/or
confessions or admissions from the accused.
Custodial investigation commences when a person
is taken into custody and is singled out as a suspect
in the commission of the crime under investigation.
As a rule, a police lineup is not part of the custodial
investigation; hence, the right to counsel guaranteed
by the Constitution cannot yet be invoked at this
stage. The right to be assisted by counsel attaches
only during custodial investigation and cannot be
claimed by the accused during identification in a
police lineup.
Dissenting opinion of Justice Leonen
Police line-up vs. show-up
Witnesses, during criminal investigations, assist law
enforcers in narrowing their list of suspects. In many
instances, the perpetrator is not personally known to
a witness but can be reasonably identified.
Identifying perpetrators is not limited to knowing their
names. Familiarity with the facial and physiological
features of the perpetrator is enough.
There are two modes of out-of-court identifications.
One mode of out-of-court identification is the police
line-up where the witness selects a "suspect from a
group of persons lined up[.]" Another mode of
identification is the show-up. In show-ups, only one
person is presented to the witness or victim for
identification. Show-ups are less preferred and are
considered "an underhanded mode of identification
for 'being pointedly suggestive, generat[ing]
confidence where there was none, activat[ing] visual
imagination, and, all told, subvert[ing]" the reliability
of the eyewitness.
Exclusionary rule
ARTICLE III Section 12. 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.
No torture, force, violence, threat, intimidation, or any
other means which vitiate the free will shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention
are prohibited.
Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
The law shall provide for penal and civil sanctions for
violations of this Section as well as compensation to
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4-Manresa 2017-2018
the rehabilitation of victims of torture or similar
practices, and their families.” (1987 Constitution)
”Even if the confession of the accused is gospel truth,
if it was made without the assistance of counsel, it is
inadmissible in evidence regardless of the absence of
coercion or even if it had been voluntarily given.”
(People vs Camat)
With respect to waiver of rights, there is no
presumption of regularity in the performance of
official duties. The State has the burden of proving
that there is a valid waiver. It must be shown that the
following requirements are satisfied:
1. There is a meaningful transmission of rights
2. There is a voluntary, knowing, and intelligent
waiver
3. The waiver must be in writing and made with
the assistance of counsel
However, if the issue is on the voluntariness of the
confession, it is the burden of the accused-
confessant to show that the confession was made
under duress. There is no presumption of police
torture or duress in obtaining an extrajudicial
confession. He who alleges that the extrajudicial
confession was not validly made must prove the
same.
VII. RIGHT TO BAIL
ARTICLE III. 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.
When the accused is finally charged after extending
to him his Miranda rights, one of the first things he
could avail of is the right to bail under Section 13,
Article 3 of the 1987 Constitution and Rule 114 on the
Revised Rules on Criminal Procedure.
The right to bail emanates from the right to be
presumed innocent. It is accorded to a person in the
custody of the law who may, by reason of the
presumption of innocence he enjoys, be allowed
provisional liberty upon filing of a security to
guarantee his appearance before any court, as
required under specified conditions.
Rule 114, Section 1 of the Rules of Court defines bail
as the security required and given for the release of a
person who is in the custody of the law, that he will
appear before any court in which his appearance
may be required as stipulated in the bail bond or
recognizance.
Its object is to relieve the accused of imprisonment
and the state of the burden of keeping him, pending
the trial, and at the same time, to put the accused as
much under the power of the court as if he were in
custody of the proper officer, and to secure the
appearance of the accused so as to answer the call
of the court and do what the law may require of him.”
(Manotok vs CA)
When can the right to bail be invoked?
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Bail is defined as the "security given for the release of
a person in custody of the law." By its definition, bail
requires that a person must first be arrested or
deprived of liberty before it can be availed of. Prior to
the acquisition of custody over a person, whether
physical custody or constructive custody, the right to
bail is not yet available. Thus, although the posting
thereof is tantamount to submission to the jurisdiction
of the court, it presupposes that the accused is under
detention or in the custody of law. It would be absurd
and incongruous to grant bail to one who is free.
Where should the application for bail be filed?
A. Bail Application
If the bail is a matter of right, the general rule is that
the application for bail should be filed before the court
where the criminal case is pending. By way of
exception, in instances where the judge of the issuing
court is not around, it may be filed in any court in the
place where the petitioner is arrested.
If the bail is a matter of discretion, the application for
bail shall only be filed before the court where the
criminal case is pending. Other than the issuing
court, no other court can grant the bail application.
B. Motion to Reduce Bail
However, when we speak of a Motion to Reduce Bail,
regardless of whether it is a matter of right or a
matter of discretion, only the issuing court can reduce
the amount of bail. Hence, the Motion should be filed
before the court where the criminal case is pending.
Bail as a matter of right
RULE 114 Section 4. Bail, a matter of right;
exception. — All persons in custody shall be admitted
to bail as a matter of right, with sufficient sureties, or
released on recognize as prescribed by law or this
Rule (a) before or after conviction by the Metropolitan
Trial Court, Municipal Trial Court, Municipal Trial
Court in Cities, or Municipal Circuit Trial Court, and
(b) before conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua,
or life imprisonment. (Revised Rules on Criminal
Procedure)
Bail is a matter of right:
1. Before or after conviction by MeTC, MTC,
MTCC, or MCTC
2. Before conviction by the RTC of an offense
not punishable by death, reclusion perpetua,
or life imprisonment
Bail as a matter of discretion
RULE 114 Section 5. Bail, when discretionary. —
Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua,
or life imprisonment, admission to bail is
discretionary. The application for bail may be filed
and acted upon by the trial court despite the filing of a
notice of appeal, provided it has not transmitted the
original record to the appellate court. However, if the
decision of the trial court convicting the accused
changed the nature of the offense from non-bailable
to bailable, the application for bail can only be filed
with and resolved by the appellate court. (Revised
Rules on Criminal Procedure)
Bail is a matter of discretion:
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1. Upon conviction by the RTC of an offense
not punishable by death, reclusion perpetua,
or life imprisonment
2. Before conviction by the RTC of an offense
punishable by death, reclusion perpetua, or
life imprisonment and the evidence of guilt is
not strong
3. If the RTC has imposed a penalty of
imprisonment exceeding six years, provided
none of the circumstances enumerated under
paragraph 3 of Section 5, Rule 114 is present
(see enumeration below)
When bail is a matter of discretion, it shall be
DENIED under the following circumstances:
1. Before conviction by the RTC of an offense
punishable by death, reclusion perpetua, or
life imprisonment and the evidence of guilt is
strong
2. If the penalty imposed by the trial court is
imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail shall
be cancelled upon a showing by the
prosecution, with notice to the accused, of
the following or other similar circumstances:
a. That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the
crime aggravated by the circumstance or
reiteration;
b. That he has previously escaped from
legal confinement, evaded sentence, or
violated the conditions of his bail without
valid justification;
c. That he committed the offense while
under probation, parole, or conditional
pardon;
d. That the circumstances of his case
indicate the probability of flight if released
on bail; or
e. That there is undue risk that he may
commit another crime during the
pendency of the appeal (paragraph 3 of
Section 5, Rule 114)
Right to a hearing
When bail is a matter of right, hearing is not
necessary. The prosecution does not even have the
right to present evidence for the denial of bail in the
instances where bail is a matter of right. However,
certain guidelines in the fixing of a bail bond call for
the presentation of evidence and reasonable
opportunity for the prosecution to refute it. This
necessitates the prosecution to be granted of an
opportunity to be heard for the purpose of
determining the amount of bail, but not for the denial
thereof because when it is a matter of right, the court
is not authorized to deny an application for bail.
Thus, when bail is a matter of right, the hearing is for
the fixing of the amount of bail, and not to determine
whether the evidence of guilt is strong.
When bail is a matter of discretion, hearing of the
application for bail is absolutely indispensable before
a judge can properly determine whether the
prosecution’s evidence is weak or strong (People vs.
Dacudao, 170 SCRA 489).
It becomes, therefore, a ministerial duty of a judge to
conduct hearing the moment an application for bail is
filed if the accused is charged with capital offense or
an offense punishable by reclusion perpetua or life
imprisonment. If doubt can be entertained, it follows
that the evidence of guilt is weak and bail shall be
recommended. On the other hand, if the evidence is
clear and strong, no bail shall be granted. (Gacal vs.
Judge Infante)
Despite this rule, the Supreme Court made an
exception in the case of Enrile vs. Sandiganbayan
(August 18, 2015).
ENRILE vs. SANDIGANBAYAN (2015)
FACTS: In 2014, the Office of the Ombudsman
charged Enrile and several others with plunder
(punishable by reclusion perpetua) in the
Sandiganbayan on the basis of their purported
involvement in the diversion and misuse of
appropriations under the Priority Development
Assistance Fund (PDAF).
After his voluntary surrender, Enrile filed a Motion to
Grant Bail on the ground that the evidence of guilt is
not strong and that his old age and health must be
seriously considered. The Motion was granted
despite the absence of hearing.
ISSUE: Is the grant of bail proper when the crime
charged is punishable by reclusion perpetua and no
hearing was conducted to determine whether or not
the evidence of guilt is strong?
RULING: Yes. The grant of bail is proper.
For purposes of admission to bail, the determination
of whether or not evidence of guilt is strong in
criminal cases involving capital offenses, or offenses
punishable with reclusion perpetua or life
imprisonment lies within the discretion of the trial
court. But, as the Court has held in Concerned
Citizens v. Elma, "such discretion may be exercised
only after the hearing called to ascertain the degree
of guilt of the accused for the purpose of whether or
not he should be granted provisional liberty." It is
axiomatic, therefore, that bail cannot be allowed
when its grant is a matter of discretion on the part of
the trial court unless there has been a hearing with
notice to the Prosecution. The hearing, which may
be either summary or otherwise, in the discretion of
the court, should primarily determine whether or not
the evidence of guilt against the accused is strong.
However, Enrile’s poor health justifies his admission
to bail. Bail for the provisional liberty of the accused,
regardless of the crime charged, should be allowed
independently of the merits of the charge, provided
his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed,
denying him bail despite imperiling his health and life
would not serve the true objective of preventive
incarceration during the trial.
Unless allowance of bail is forbidden by law in the
particular case, the illness of the prisoner,
independently of the merits of the case, is a
circumstance, and the humanity of the law makes it
a consideration which should, regardless of the
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charge and the stage of the proceeding, influence
the court to exercise its discretion to admit the
prisoner to bail.
Dissenting opinion of Justice Leonen
Justice Leonen criticized the decision for having a
very weak legal basis – the grant of bail over mere
humanitarian grounds:
When the offense charged is punishable by
reclusion perpetua, bail is regarded as a matter of
discretion. When bail is a matter of discretion, an
application for bail must be filed and a bail hearing
must be mandatorily conducted to determine if the
evidence of guilt is strong. Absent this, bail can
neither be granted nor denied.
The majority’s opinion — other than the invocation of
a general human rights principle — does not provide
clear legal basis for the grant of bail on humanitarian
grounds. Bail for humanitarian considerations is
neither presently provided in our Rules of Court nor
found in any statute or provision of the Constitution.
This case leaves this court open to a justifiable
criticism of granting a privilege ad hoc: only for one
person — petitioner in this case.
The grant of bail, therefore, by the majority is a
special accommodation for petitioner. It is based on
a ground never raised before the Sandiganbayan or
in the pleadings filed before this court. The
Sandiganbayan should not be faulted for not
shedding their neutrality and impartiality. It is not the
duty of an impartial court to find what it deems a
better argument for the accused at the expense of
the prosecution and the people they represent.
Atty. Montejo’s commentary
Courts will not grant bail in discretionary cases even
for humanitarian reasons because they are not
Senator Juan Ponce Enrile.
Here, even the Ombudsman has argued that there
has yet to be a bail hearing, that the prosecution has
yet to present any evidence to prove that Enrile’s
guilt is strong. But this position was rejected by the
Supreme Court.
Interestingly, on August 11, 2015, about seven days
before the issuance of this Supreme Court ruling
which allows Enrile’s bail without a hearing, the
same Supreme Court issued a ruling in Enrile vs.
People which upholds the finding of Sandiganbayan
that there is probable cause to charge Enrile of
plunder. But seven days after, he was granted bail.
Bail in military courts
There is no right to bail in military courts.
COMENDADOR vs. DE VILLA (1991)
200 SCRA 80
We find that the right to bail invoked by the private
respondents in G.R. Nos. 95020 has traditionally not
been recognized and is not available in the military,
as an exception to the general rule embodied in the
Bill of Rights. This much was suggested in Arula,
where we observed that "the right to a speedy trial is
given more emphasis in the military where the right
to bail does not exist.”
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The unique structure of the military should be
enough reason to exempt military men from the
constitutional coverage on the right to bail. The
argument that denial from the military of the right to
bail would violate the equal protection clause is not
acceptable. This guaranty requires equal treatment
only of persons or things similarly situated and does
not apply where the subject of the treatment is
substantially different from others. The accused
officers can complain if they are denied bail and
other members of the military are not. But they
cannot say they have been discriminated against
because they are not allowed the same right that is
extended to civilians.
Bail and Writ of Habeas Corpus
The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended.
Standards for fixing bail
Section 9, Rule 114 of the Rules of Court provides for
the standards for fixing bail. But as the name
suggests, the enumeration is a mere standard and
guideline and should not be interpreted as a
straitjacket rule.
RULE 114
Section 9. Amount of bail; guidelines. — The judge
who issued the warrant or granted the application
shall fix a reasonable amount of bail considering
primarily, but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that accused was a fugitive from justice
when arrested; and
(j) Pendency of other cases where the accused is on
bail.
Excessive bail shall not be required. (Revised Rules
on Criminal Procedure)
Right to bail and right to travel abroad
A court has the power to prohibit a person admitted
to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of
a bail bond. The condition imposed upon the bail
applicant to make himself available at all times
whenever the court requires his presence operates
as a valid restriction on his right to travel.
In People vs. Uy Tuising, 61 Phil. 404 (1935), the
result of the obligation assumed by appellee (surety)
to hold the accused amenable at all times to the
orders and processes of the lower court, was to
prohibit said accused from leaving the jurisdiction of
the Philippines, because, otherwise, said orders and
processes will be nugatory, and inasmuch as the
jurisdiction of the courts from which they issued does
not extend beyond that of the Philippines, they would
have no binding force outside of said jurisdiction.
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4-MANRESA 2017-2018
Indeed, if the accused were allowed to leave the
Philippines without sufficient reason, he may be
placed beyond the reach of the courts.
Waiver of the Right to Bail
As with any other constitutional right, the right to bail
may be waived. Such waiver must be in writing.
PEOPLE vs. DONATO (1991)
198 SCRA 130
FACTS: Petitioner argues that private respondent is
estopped from invoking his right to bail, having
expressly waived it when he agreed to "remain in
legal custody and face trial before the court having
custody of his person."
ISSUE: May the right to bail be a valid subject of a
waiver?
RULING: Yes. Rights guaranteed to an accused of a
crime fall naturally into two classes:
(a) those in which the State, as well as the accused,
is interested; and
(b) those which are personal to the accused, which
are in the nature of personal privileges.
Those of the first class cannot be waived; those of
the second may be.
It is "competent for a person to waive a right
guaranteed by the Constitution, and to consent to
action which would be invalid if taken against his
will."
We hereby rule that the right to bail is another of the
constitutional rights which can be waived. It is a right
which is personal to the accused and whose waiver
would not be contrary to law, public order, public
policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law.
September 13, 2017 S. Abalorio
VIII. RIGHTS DURING TRIAL
ART III Section 14. (1) No person shall be held to
answer for a criminal offense without due process of
law
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face
to face, and to have compulsory process to secure
the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the
accused: Provided, that he has been duly notified
and his failure to appear is unjustifiable
While Section 14, Article III mentions the rights of an
accused during trial. We made mention already that
there is one right which is the right to appeal which is
not a constitutional right but a statutory right.
It is provided for in the Rules of Court, particularly in
Rule 115.
ESTRELLADO-MAINAR vs PP (2015)
The right to appeal is a statutory privilege. It is not
part of due process.
FT: The right to appeal is not a natural right and is
not part of due process, but merely a statutory
privilege to be exercised only in accordance with the
law. As the appealing party, the petitioner must
comply with the requirements of the relevant rules;
otherwise, she loses the statutory right to appeal.
We emphasize that the procedures regulating
appeals as laid down in the Rules of Court must be
followed because strict compliance with them is
indispensable for the orderly and speedy disposition
of justice.
1. Due process in criminal cases
Due process in criminal cases is a restatement in the
first paragraph. We all know that because of the need
to emphasize that there is more need of due process
in criminal cases as the accused is tasked to defend
himself against the State.
LAI vs PEOPLE (2015)
1
This refers to your Rule 137 (Disqualifications of
Judicial Officers). Due process requires, as we’ve
discussed, in judicial procedural due process that
the judge must be impartial. There must be an
impartial court or tribunal.
The requirement of impartiality, there are 2 general
grounds under Rule 137. The first paragraph would
be mandatory grounds for disqualifications. While
the second paragraph would be the voluntary ground
for inhibition based on the discretion of the judge.
What happened in this case was, when the defense
presented its last witness, the judge who rendered
the decision was the assigned prosecutor. There
was a private prosecutor. So the public prosecutor
then was a simply passive participant during the
presentation of the last witness for the defense.
To be fair, he was not the public prosecutor who
prosecuted the case from the beginning. That public
prosecutor eventually became a judge. He was
appointed and he was the one who eventually
decided the criminal case where he had “passive
participation”.
1 Section 1.Disqualification of judges.
1
— No judge or judicial
officer shall sit in any case in which he, or his wife or child, is
pecuniarily interested as heir, legatee, creditor or otherwise, or in
which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he has
been executor, administrator, guardian, trustee or counsel, or in
which he has been presided in any inferior court when his ruling or
decision is the subject of review, without the written consent of all
parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other than
those mentioned above.
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2. Presumption of innocence
Presumption of innocence is only a presumption, of
course. There is basically putting the initial burden,
on the part of the prosecution, to prove, at least by
prima facie evidence, that there is proof beyond
reasonable doubt to overcome the presumption of
innocence.
No amount of suspicion, regardless of the number of
accusations, should sway the judge or the court for
so long as there is no proof beyond reasonable doubt
to overcome such presumption. Of course the law
does not preclude the Congress from legislating
presumptions of guilt, provided the presumption are
also not conclusive.
You have, for example, your Anti-Fencing Law. If you
are in possession of or acquired property not in a
public auction or there is disparity in the price, the
presumption is that you are guilty because you
should have known or you should know that it is a
fenced property.
You also have your presumption of falsification when
you introduce a falsified document in court. The
presumption is that you are the author of the falsified
document.
These are presumption of criminal liability and they
will not violate your presumption of innocence
because it can be overcome.
As long as the presumption is liability it can be
overcome by evidence, there is no prohibition for
such a legislation. Otherwise, if the presumption is
conclusive it will become a Bill of Attainder, which
under the Constitution, is not supposed to be.
DUNGO vs PEOPLE (2015)
The SC had the occasion to discuss, at least in one
of the issues, on to presumption of innocence. It
starts with the statement that the starting point in any
of the criminal prosecution is the presumption of
innocence. But it does not mean that this
presumption can be overcome only by direct
evidence.
This is a case involving hazing and for lack of direct
evidence, the accused were all convicted based on
circumstantial evidence.
The SC discussed, for so long as the conditions or
requirements to validly prove the commission of the
criminal act, the circumstantial evidence are all
satisfied the presumption of innocence may be
overcome because proof beyond reasonable doubt
by circumstantial evidence may have been proven
by the prosecution.
Direct evidence is not required in all circumstances.
FT: While it is established that nothing less than
proof beyond reasonable doubt is required for a
conviction, this exacting standard does not preclude
resort to circumstantial evidence when direct
evidence is not available. Direct evidence is not a
condition sine qua non to prove the guilt of an
accused beyond reasonable doubt. For in the
absence of direct evidence, the prosecution may
resort to adducing circumstantial evidence to
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discharge its burden. Crimes are usually committed
in secret and under conditions where concealment is
highly probable. If direct evidence is insisted on
under all circumstances, the prosecution of vicious
felons who commit heinous crimes in secret or
secluded places will be hard, if not impossible, to
prove.
The rules on evidence and precedents to sustain the
conviction of an accused through circumstantial
evidence require the existence of the following
requisites: (1) there are more than one
circumstance; (2) the inference must be based on
proven facts; and (3) the combination of all
circumstances produces a conviction beyond
reasonable doubt of the guilt of the accused.112 To
justify a conviction upon circumstantial evidence, the
combination of circumstances must be such as to
leave no reasonable doubt in the mind as to the
criminal liability of the accused. Jurisprudence
requires that the circumstances must be established
to form an unbroken chain of events leading to one
fair reasonable conclusion pointing to the accused,
to the exclusion of all others, as the author of the
crime.
3. Right to be heard personally or by counsel
It is:
• The accused’s right to present evidence,
• To testify in his own behalf and
• The right to be present during trial.
The right to be heard by counsel may also be related
to your right to be presented by counsel. Because,
ordinarily, there is a saying that even an innocent
person may be convicted, not because he has
committed the offense, but because he does not
know how to protect his innocence.
So an ordinary person who is not knowledgeable in
law may be convicted for lack of the legal training or
skill to protect and defend his presumption of
innocence.
In all cases the court must have to inquire whether
the accused represented by counsel.
IBANEZ vs PEOPLE (2016)
The SC restated that there are at least 2 provisions
in the Rules of Court.
2
The first is your Section 1(c), Rule 115 . Which is
your right to be assisted by counsel which is part of
the statutory right to be represented by counsel.
Next would be the provision in Rule 116, Sections 6
3
& 7 , the court must have to inquire when an
2 (c)To be present and defend in person and by counsel at every
stage of the proceedings, from arraignment to promulgation of the
judgment. The accused may, however, waive his presence at the
trial pursuant to the stipulations set forth in his bail, unless his
presence is specifically ordered by the court for purposes of
identification. The absence of the accused without justifiable cause
at the trial of which he had notice shall be considered a waiver of
his right to be present thereat. When an accused under custody
escapes, he shall be deemed to have waived his right to be
present on all subsequent trial dates until custody over him is
regained. Upon motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the court that he
can properly protect his right without the assistance of counsel.
3 Section 6. Duty of court to inform accused of his right to counsel.
— Before arraignment, the court shall inform the accused of his
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
accused appears, whether he is represented by
counsel. If not, the court should inquire whether the
accused would want to engage the services of his
own counsel or whether he would want the court to
have one appointed for him – which we know is a
counsel de oficio. In fact a counsel de oficio, once
appointed by the court based on several factors
including complexity of the offense as well as the
skill perhaps or experience, must be given sufficient
time to prepare for arraignment and for trial as the
case may be. Highlighting the so-called the
assistance for counsel.
FT: The right to be assisted by counsel is an
indispensable component of due process in criminal
prosecution. As such, right to counsel is one of the
most sacrosanct rights available to the accused.28 A
deprivation of the right to counsel strips the accused
of an equality in arms resulting in the denial of a
level playing field. Simply put, an accused without
counsel is essentially deprived of a fair hearing
which is tantamount to a grave denial of due
process.
The Court is not persuaded that the absence of the
counsel de oficio in one of the hearings of this case
amounts to a denial of right to counsel. Nor does
such absence warrant the nullification of the entire
trial court proceedings and the eventual invalidation
of its ruling. In People v. Manalo, the Court held that
the fact that a particular counsel de oficio did not or
could not consistently appear in all the hearings of
the case, is effectively a denial of the right to
counsel, especially so where, as in the instant case,
there is no showing that the several appointed
counsel de oficio in any way neglected to perform
their duties to the appellant and to the trial court and
that the defense had suffered in any substantial
sense therefrom.
Of course you know that there are certain individuals
who appear for themselves or what we refer to as
Pro Se representation. When one appears in his
own behalf.
Is that allowed?
Technically that is allowed. At risk that you may not
be made able to defend your innocence and may be
found guilty. Pro-se representation is allowed in this
jurisdiction
4. Right to free legal assistance
ART III, 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
PEOPLE vs. RIO (1991)
Once a lawyer is appointed as counsel de oficio,
there is an obligation to seek the case through. In this
right to counsel and ask him if he desires to have one. Unless the
accused is allowed to defend himself in person or has employed a
counsel of his choice, the court must assign a counsel de oficio to
defend him. (6a)
Section 7. Appointment of counsel de oficio. — The court,
considering the gravity of the offense and the difficulty of the
questions that may arise, shall appoint as counsel de oficio only
such members of the bar in good standing who, by reason of their
experience and ability, can competently defend the accused. But in
localities where such members of the bar are not available, the
court may appoint any person, resident of the province and of good
repute for probity and ability, to defend the accused. (7a)
case, the counsel de oficio thought that his
appointment was only good during the trial in the first
instance. So that on appeal he is no longer the
counsel to be assigned.
The SC restated the rule that once an appointment is
made by Right order of the court it persists until the
court revokes the appointment. So until then, if there
is no cancellation or revocation of the previous order
appointing the lawyer as counsel de oficio, even on
appeal or petition for certiorari and eventually to the
SC, the counsel de oficio must have to represent the
client because that is a legal obligation on the part of
the lawyer.
FT: This right to a counsel de oficio does not cease
upon the conviction of an accused by a trial court. It
continues, even during appeal, such that the duty of
the court to assign a counsel de oficio persists where
an accused interposes an intent to appeal. Even in a
case, such as the one at bar, where the accused had
signified his intent to withdraw his appeal, the court is
required to inquire into the reason for the withdrawal.
Where it finds the sole reason for the withdrawal to
be poverty, as in this case, the court must assign a
counsel de oficio, for despite such withdrawal, the
duty to protect the rights of the accused subsists and
perhaps, with greater reason. After all, "those who
have less in life must have more in law." Justice
should never be limited to those who have the
means. It is for everyone, whether rich or poor. Its
scales should always be balanced and should never
equivocate or cogitate in order to favor one party over
another.
5. Right to be informed of nature and cause of
accusation
This is properly satisfied during arraignment. We all
know that an arraignment is an essential part of
criminal prosecution. Without arraignment, there can
be no valid proceedings thereafter.
The purpose of the arraignment in several cases
are as follows, on 3 objectives:
i. To furnish the accused of the official
charge and to prepare him for his
appropriate defense.
This is so because there are many cases which you
have come across and read that the cause for an
arrest may be different with the official charge,
eventually.
Say a person is arrested for rape or any other kind
but eventually the information charged differently like
possession of drugs or possession of illegal firearm.
So it is only during arraignment that the accused is
informed of his official charge.
ii. When the accused to avail of any prior
conviction or acquittal
Meaning the availment of protection against double
jeopardy. When he is charged again for the same
offense after the first jeopardy attached.
iii. To inform the court of the sufficiency of
the information to warrant a conviction.
At least sufficiency, form and substance.
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
There must have to be meaningful transmission of
the information. That’s why the individual factors
affecting the understanding of the person charged
must have to be considered.
In your practice court, perhaps, you have witnessed
arraignment done in the local language for the
accused to understand.
CANCERAN vs PEOPLE (2015)
ESTRELLADO-MAINAR vs PEOPLE (2015)
The information read was one for attempted theft. He
was convicted for consummated crime.
Was the conviction valid?
The information read was for estafa under Article 316
par 1 of the RPC. The conviction was for estafa
under par 2.
Was the conviction valid?
We all know that if the offense is necessarily included
in the offense charged the conviction would be
appropriate even if the one read is different from the
one is convicted for.
Provided, the one is convicted for is necessarily
included in the offense charged because he is
sufficiently informed of the nature of cause of
accusation.
For example, he has been arraigned for
consummated murder found liable for attempted
murder. So attempted murder is necessarily included
in the offense charged.
But in the case of Canceran, since he was charged
for attempted felony, he could not be convicted to
consummated felony because the consummated
felony is not necessarily included in the attempted
felony for which he has been arraigned for.
In Estrellado-Mainan, paragraph 1 is not the same
as or does not necessarily include paragraph 2. They
are distinct offense with or from Art 316.
Both convictions were not valid.
FT: [Canceran] An accused cannot be convicted of a
higher offense than that with which he was charged
in the complaint or information and on which he was
tried. It matters not how conclusive and convincing
the evidence of guilt may be, an accused cannot be
convicted in the courts of any offense, unless it is
charged in the complaint or information on which he
is tried, or necessarily included therein. He has a
right to be informed as to the nature of the offense
with which he is charged before he is put on trial, and
to convict him of an offense higher than that charged
in the complaint or information on which he is tried
would be an unauthorized denial of that right.
FT: [Estrellado-Mainar] Section 14(2) of Article III of
the 1987 Constitution provides that an accused has
the right to be informed of the nature and cause of
the accusation against him. Indeed, Section 6, Rule
110 of the Revised Rules of Criminal Procedure
requires that the acts or omissions complained of as
constituting the offense must be alleged in the
Information. Section 8 of said rule provides that the
Information shall state the designation of the offense
given by the statute and aver the acts or omissions
constituting the offense. The real nature of the crime
charged is determined by the facts alleged in the
Information and not by the title or designation of the
46 CONSTITUTIONAL LAW II REVIEW TSN
offense contained in the caption of the Information. It
is fundamental that every element of which the
offense is comprised must be alleged in the
Information.
In the light of these considerations, we hold that the
trial courts erroneously convicted the petitioner of
other forms of swindling under Article 316, paragraph
2 of the Revised Penal Code. To uphold the
petitioner's conviction for an offense other than that
charged in the Information would be a violation of her
right to be informed of the nature and cause of the
accusation against her.
6. Right to speedy, impartial and public trial
A. Right to speedy trial
Right to speedy trial is most often confused with
speedy disposition of cases. Confused because of
the word speed. But we all know that the right to
speedy trial applies only in criminal cases. While right
to speedy disposition of cases apply in all types of
proceedings.
Technically understood with respect to time elapsed,
right to speedy trial begins, what is computed or
commenced from, the time the prosecution is given
time to present fully its evidence until the time it has
fully presented its evidence.
If there is a capricious, oppressive and inordinate
delay for the prosecution to fully complete its
evidence, then there may be violation to the right to
speedy trial.
In all the cases you have read on this we have come
to the conclusion that the SC has applied, what we
refer to as the four-fold test, is not merely the time
elapsed or period of delay. It would refer to:
i. The length of delay
ii. The reason for the delay
iii. The assertion or non-assertion of the
accused of the fact of delay
iv. The prejudice that the delay had caused
upon the accused.
To consider whether there has been a speedy trial
these four factors must be taken into consideration.
Of course you all know that we have a new rule on
Continuous Trial, effective first Monday of
September. So, criminal cases, especially drugs
cases, they take precedence over civil cases. There
is supposed to be mandated 90- and 180-day trial. It
is a new SC issuance which is an improvement on
your provisions of the Rules of Court on speedy trial.
Effect of violation
The effect of the violation of the right to speedy trial is
that it amounts to an acquittal. So even if the
accused, the one who has moved for the dismissal of
the case for violation of his right to speedy trial, it will
still be considered as an acquittal and, therefore, first
jeopardy has attached.
B. Right to an impartial trial
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
Impartial trial as discussed earlier, in relation to the
one of the conditions of judicial and procedural due
process.
The judge must be an innocent bystander in the
conduct of proceedings. The judge must supervise
and rule on court during the presentation of evidence
of both parties.
Is the judge allowed to ask questions during the
examination of witness for either party?
Yes, but ideally it is to be limited to clarify
himself/herself of any fact that has already been
elicited from the witness. The judge must not cause
to elicit facts from the witness which have not been
elicited by his/her counsel. That would result by the
judge helping a party to the damage and prejudice of
another.
C. Right to public trial
The reason why there is a need for public trial is not
to literally allow everybody observe the proceedings.
But, rationale is that, only when the proceeding is not
held in secrecy and it is held open to the public.
There is an assurance there will be no violations of
the rights of the accused during the presentation of
evidence or hearing of the case.
So long as it is open to the public, that would suffice.
There are certain instances, however, as provided for
in the rules where trial may not be open to the public:
i. Rule 119, Section 21
Section 21. Exclusion of the public. — The judge
may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during the
trial is offensive to decency or public morals. xxx
When the nature of the testimony is delicate or
offensive to decency or public morals, the public may
be exclude.
ii. When the witness is a child, then the
public will be excluded.
iii. Rule 119, Section 21
Section 21. xxx He may also, on motion of the
accused, exclude the public from the trial, except
court personnel and the counsel of the parties.
For no reason at all, the accused may ask the court
that the public be excluded. There is no requirement,
the accused would not just want the public to hear or
observe the proceedings. Because the requirement
for public trial is for his protection. If he wants the
public to be excluded, it is well within his rights.
7. Right to confront witnesses
We all know in evidence that evidence to be credible
must not only come from a credible witness but must
also be credible by itself.
In order to test the credibility of a witness the
accused has the right to confront witnesses against
him. For 2 purposes:
i. To test the credibility of the testimony of
the witnesses by granting the right to
cross-examine.
ii. For the judge to observe the demeanour
of the witness.
Because this could very well affect the credibility of
the testimony of the witness by the nuances of his
testimony.
HO WAI PANG vs PEOPLE (2011)
As the name of the accused suggests, he has been
accused and arrested after coming in our airport for
bringing illegal substance. He was presented by a
Filipino lawyer and one of the issues raised on
certiorari was that he was not granted or extended
his right to confront witnesses because there was no
interpreter provided. He is a Hong Kong National, he
would have wanted an interpreter to interpret the
discussions, questions and answers made in open
court for him to understand.
The right to confront witnesses is granted to the
accused but not to him literally. It is obviously
handled by his own counsel. For so long as the
counsel has examined the witnesses against the
accused. Like, cross-examining them and testing
their credibility, not only of the person but also of the
testimony of itself and to allow the judge to observe
the demeanour. Then the right to confront witnesses
or the purposes for which the right has been given is
considered to be extended, therefore it is not
violated.
FT: In refutation, the OSG countered that petitioner
was given the opportunity to confront his accusers
and/or the witnesses of the prosecution when his
counsel cross-examined them. It is petitioners call to
hire an interpreter to understand the proceedings
before him and if he could not do so, he should have
manifested it before the court. At any rate, the OSG
contends that petitioner was nevertheless able to
cross-examine the prosecution witnesses and that
such examination suffices as compliance with
petitioners right to confront the witnesses against
him.
We agree with the OSG.
As borne out by the records, petitioner did not
register any objection to the presentation of the
prosecutions evidence particularly on the testimony
of Cinco despite the absence of an interpreter.
Moreover, it has not been shown that the lack of an
interpreter greatly prejudiced him. Still and all, the
important thing is that petitioner, through counsel,
was able to fully cross-examine Cinco and the other
witnesses and test their credibility. The right to
confrontation is essentially a guarantee that a
defendant may cross-examine the witnesses of the
prosecution.
8. Right to secure witnesses
Rule 21 Sec. 10. Exceptions.
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018
4
The provisions of sections 8 and 9 of this Rule shall
not apply to a witness who resides more than one
hundred (100) kilometers from his residence to the
place where he is to testify by the ordinary course of
travel, or to a detention prisoner if no permission of
the court in which his case is pending was obtained.
Then you have the compulsory processes. The right
to secure attendance of witnesses under your
subpoena rule. This is Rule 21.
While we now follow the 100 kilometers ordinary
course of travel from the courthouse where the
witness is intended to testify, up to the residence of
the intended witness.
If you are within that 100 kilometers ordinary course
of travel distance, then you are covered by the
subpoena rule.
We all know that if there is no valid claim of what we
refer to as the viatory right of the witness, meaning
the right to be excused from complying with the
subpoena without being held in contempt. Then you
can be compelled under pain of contempt. If there is
no valid right or claim of the viatory rights.
While the ROC and the Constitution grants
compulsory process, it does not mean that it will be
for free. The accused will have the right to compel to
issue a subpoena. But whether or not the witness can
be compelled at all times under subpoena is a
different question. Because, the rules require as well
that any expense must have to be advanced by the
accused. If the expenses, for example travel, is not
advanced then the witness may validly refuse the
subpoena. But that would be applicable to private
persons compelled under the subpoena.
Because if the intended witness for the defense is a
government employee or official, supposedly the
State will take care thereof. Airfare travel(?) of the
official, expenses of the official as well. The accused
need not worry of that.
Section 14 of Rule 119 also is a provision which
allows the accused to compel the attendance of a
material witness. If a material witness refuses to
testify, the accused may even ask the court for the
issuance of a bench warrant. The defendant material
witness can be arrested on account of a bench
warrant. He will be released after posting bail or if he
would not post bail, after his testimony has been
taken in open court.
Rule 119, Sec. 14. Bail to secure appearance of
material witness. – When the court is satisfied, upon
proof of oath, that a material witness will not testify
when required, it may, upon motion of either party,
4
Sec. 8. Compelling attendance.
In case of failure of a witness to attend, the court or judge issuing
the subpoena, upon proof of the service thereof and of the failure
of the witness, may issue a warrant to the sheriff of the province, or
his deputy, to arrest the witness and bring him before the court or
officer where his attendance is required, and the cost of such
warrant and seizure of such witness shall be paid by the witness if
the court issuing it shall determine that his failure to answer the
subpoena was willful and without just excuse.
Sec. 9. Contempt.
Failure by any person without adequate cause to obey a subpoena
served upon him shall be deemed a contempt of the court from
which the subpoena is issued. If the subpoena was not issued by a
court, the disobedience thereto shall be punished in accordance
with the applicable law or Rule.
48 CONSTITUTIONAL LAW II REVIEW TSN
order the witness to post bail in such sum as may be
deemed proper. Upon refusal to post bail, the court
shall commit him to prison until he complies or is
legally discharged after his testimony has been
taken.
9. Trial in absentia
Rule 115 Section 1. Rights of accused at trial. – In
all criminal prosecutions, the accused shall be
entitled to the following rights:
(c) To be present and defend in person and by
counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment. The
accused may, however, waive his presence at the
trial pursuant to the stipulations set forth in his bail,
unless his presence is specifically ordered by the
court for purposes of identification. The absence of
the accused without justifiable cause at the trial of
which he had notice shall be considered a waiver of
his right to be present thereat. When an accused
under custody escapes, he shall be deemed to have
waived his right to be present on all subsequent trial
dates until custody over him is regained. Upon
motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the
court that he can properly protect his rights without
the assistance of counsel.
The right of an accused of trial in absentia is not part
of the right of an accused. It is discussed under rights
of an accused during trial because what will be the
effect if the accused is validly tried in absentia with
respect to all these rights.
In order not to make a mockery of the entire criminal
judicial process, by making the presence of the
accused a condition precedent for a valid
proceedings to be taken thereafter, that if the
accused is not present no criminal proceedings can
continue. The ROC allows trial in absentia. Provided
the following conditions are satisfied:
i. There has been an arraignment
ii. The accused has been duly notified of
the date of the hearing or trial.
iii. During the date of trial, despite due
notice, the accused is absent.
iv. The absence of the accused is not
justified.
There are several reasons and questions with
respect to trial in absentia.
First and foremost would be, what if the accused is
only absent for a particular trial date. Can that
criminal prosecution for presentation of evidence
continue? And would that be a trial in absentia?
Literally it is. If it continues. However, the concept of
trial in absentia would cover prolonged absence of
the accused. Especially when the accused jumps bail
or escapes detention. In which case if the prior
conviction required are all satisfied, the prosecution
can continue for the presentation of evidence as well
as the defense.
If the jumps bail or has escaped detention, even the
so-called right to appeal, eventually, after conviction
is lost. Unless the accused has been rearrested or
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
has voluntarily surrendered within the period to
perfect the appeal.
Effect of trial in absentia on the rights of the accused
What would be the effect of a trial in absentia on all
the rights of the accused?
• Will presumption of innocence be affected?
No. Even if there is the presumption of guilt
when there is flight. Because flight is indicative
of guilt. This cannot overcome the presumption
of innocence because what would overcome
presumption of innocence is proof beyond
reasonable doubt.
• The right to be heard by counsel not affected.
• But right to be heard, is obviously, affected.
• Right to speedy, impartial or public trial.
Perhaps the right to public trial is a little bit
affected. Because of the four-fold factor or test.
The need to assert or the omission to assert of
the right, for how will the accused assert it if he
is no longer participating the proceedings.
• The right to confrontation is not affected
because it is the obligation or duty of the
lawyer to confront the witnesses against the
accused.
• On the right to secure attendance of witnesses,
that is also not affected. Because it is the duty
of the defense lawyer to ensure that the
witness for the defense will appear and testify
for the accused.
So those would be the effects for trial in absentia with
respect to the individual rights of the accused during
trial.
10. When presence of an accused is a duty
-Not discussed-
a. Arraignment and plea, whether of innocence
or of guilt
Section 1. Arraignment and plea; how made. –
(b) The accused must be present at the arraignment
and must personally enter his plea. Both arraignment
and plea shall be made of record, but failure to do so
shall not affect the validity of the proceedings.
b. During trial, for identification.
c. Promulgation of sentence, unless it is for a
light offense, in which case accused may
appear by counsel, or a representative
Rule 120 Sec. 6. Promulgation of judgment. – The
judgment is promulgated by reading it in the
presence of the accused and any judge of the court
in which it was rendered. However, if the conviction is
for a light offense, the judgment may be pronounced
in the presence of his counsel or representative.
When the judge is absent or outside the province or
city, the judgment may be promulgated by the clerk of
court.
September 20, 2017 K. Tongo
IX. PRIVILEGE AGAINST SELF-INCRIMINATION
Art III SECTION 17. No person shall be compelled to
be a witness against himself
.
1. Scope
xxx If he is called in the senate committee, he will
invoke his right against or privilege of self-
incrimination. Coming from the power of the
President, his advice was to claim the privilege.
We all know that the privilege against self-
incrimination is claimable in all kinds of proceedings,
whether it is criminal, civil, administrative or even in
inquiries in aid of legislation. However, with respect to
other persons other than the accused, because of the
suable continuing right of the accused to remain
silent, the privilege can be claimed in other
proceedings by any person, provided that the
question is incriminating.
We all know what an incriminating question is. It is a
question the answer to which, would subject a person
to a criminal liability. It is not as simple as a
declaration against interest. It must have to subject
him to a criminal penalty. Other than that, the
privilege cannot be claimed.
But as against the accused because of the limited
rule, even on cross examination, as well as his
continuing right to remain silent, he can even refuse
altogether to take the witness stand.
When he takes the witness stand, he can be cross-
examined limited only to those matters taken during
direct examination.
The privilege is claimable only technically to
compulsory testimonial or verbal self- incrimination. It
does not apply to non-testimonial/oral examination.
As we have mentioned in relation to the right of a
person under investigation, in terms of questioning,
technically there is no right that is supposed to
attach.
Similarly on the privilege against right to self
incrimination, if the body of the person of the accused
is subjected to the examination, ordinarily it is not
covered by the privilege.
In your outline you have the case there of People vs
Fieldad. It was a paraffin test. The paraffin test is
only examination of the part of the body of a person
of the accused. There being no questions asked,
therefore there was no testimony taken. That is not
covered by the privilege.
PEOPLE vs. FIELDAD
As to the paraffin test to which the appellant was
subjected to he raises the question, under the sixth
assigned error, that it was not conducted in the
presence of his lawyer. This right is afforded to any
person under investigation for the commission of an
offense whose confession or admission may not be
taken unless he is informed of his right to remain
silent and to have competent and independent
counsel of his own choice. His right against self-
incrimination is not violated by the taking of the
CONSTITUTIONAL LAW II REVIEW TSN 49
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paraffin test of his hands. This constitutional right
extends only to testimonial compulsion and not when
the body of the accused is proposed to be examined
as in this case. Indeed, the paraffin test proved
positively thathe just recently fired a gun. Again, this
kind of evidence buttresses the case of the
prosecution.38 (Emphasis supplied)
The expanded scope with respect to development of
jurisprudence would now include handwriting,
because it is not a purely mechanical act. Or re-
enactment of crimes, because to do so would require
not only a purely mechanical act but a mental
faculties as well.
2. In what proceedings available
Now your case of Delacruz vs people highlights the
mandatory drug testing under the RA 9165 in relation
to the privilege against self-incrimination.
If you remember the old case of SJS vs Dangerous
Drugs Board, the provisions of the law on mandatory
drug testing was discussed in relation to several
affected persons.
Would it be included as a qualification to a national
elected public officer?
No. It violates the Constitution. The qualifications are
supposed to have been provided in the Constitution.
Thus, requiring them additional qualifications like
mandatory drug testing would be inconstant with the
qualifications as provided.
SJS vs DANGEROUS DRUGS BOARD (2008)
Sec. 36(g) of RA 9165, as sought to be implemented
by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated
in the Sec. 3, Art. VI of the Constitution. As couched,
said Sec. 36(g) unmistakably requires a candidate
for senator to be certified illegal-drug clean,
obviously as a pre-condition to the validity of a
certificate of candidacy for senator or, with like
effect, a condition sine qua non to be voted upon
and, if proper, be proclaimed as senator-elect. The
COMELEC resolution completes the chain with the
proviso that [n]o person elected to any public office
shall enter upon the duties of his office until he has
undergone mandatory drug test. Viewed, therefore,
in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another
qualification layer to what the 1987 Constitution, at
the minimum, requires for membership in the
Senate. Whether or not the drug-free bar set up
under the challenged provision is to be hurdled
before or after election is really of no moment, as
getting elected would be of little value if one cannot
assume office for non-compliance with the drug-
testing requirement.
Can there be a mandatory drug testing in the public
sector?
Just as in the case of secondary and tertiary level
students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and
employees of public and private offices is justifiable,
albeit not exactly for the same reason. The Court
notes in this regard that petitioner SJS, other than
saying that subjecting almost everybody to drug
testing, without probable cause, is unreasonable, an
50 CONSTITUTIONAL LAW II REVIEW TSN
unwarranted intrusion of the individual right to
[23]
privacy, has failed to show how the mandatory,
random, and suspicionless drug testing under Sec.
36(c) and (d) of RA 9165 violates the right to privacy
and constitutes unlawful and/or unconsented search
under Art. III, Secs. 1 and 2 of the Constitution. (SJS
vs DDB)
As a general rule, the Supreme Court says yes.
There is civil service rules and civil service laws.
However, consistent with the right to privacy, the
mandatory drug testing must have to be random and
suspicion-less testing.
Like their counterparts in the private sector,
government officials and employees also labor under
reasonable supervision and restrictions imposed by
the Civil Service law and other laws on public
officers, all enacted to promote a high standard of
[37]
ethics in the public service. And if RA 9165 passes
the norm of reasonableness for private employees,
the more reason that it should pass the test for civil
servants, who, by constitutional command, are
required to be accountable at all times to the people
and to serve them with utmost responsibility and
efficiency (SJS vs DDB)
With respect to the private sector, the Supreme
Court said it is also valid provided it is random and it
is suspicion less because the employer has the right
to make sure that the work place is free from drug
dependents and drug users.
As the warrantless clause of Sec. 2, Art III of the
Constitution is couched and as has been held,
reasonableness is the touchstone of the validity of a
[30]
government search or intrusion. And whether a
search at issue hews to the reasonableness standard
is judged by the balancing of the government-
mandated intrusion on the individuals privacy interest
against the promotion of some compelling state
[31]
interest. In the criminal context, reasonableness
requires showing of probable cause to be personally
determined by a judge. Given that the drug-testing
policy for employeesand students for that
matterunder RA 9165 is in the nature of
administrative search needing what was referred to
in Vernonia as swift and informal disciplinary
procedures, the probable-cause standard is not
required or even practicable. Be that as it may, the
review should focus on the reasonableness of the
challenged administrative search in question.
The first factor to consider in the matter of
reasonableness is the nature of the privacy interest
upon which the drug testing, which effects a search
within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of
the privacy expectation of the employees and the
reasonableness of drug testing requirement. The
employees privacy interest in an office is to a large
extent circumscribed by the companys work policies,
the collective bargaining agreement, if any, entered
into by management and the bargaining unit, and the
inherent right of the employer to maintain discipline
and efficiency in the workplace. Their privacy
expectation in a regulated office environment is, in
fine, reduced; and a degree of impingement upon
such privacy has been upheld. (SJS vs DDB)
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There is also this question whether it is validly
administered on school children with respect to
minors. There maybe question on privacy,
considering that the school exercises substitute
parental authority, therefore it is valid provided that
the test is random and suspicion-less.
The Supreme Court even noted that there is even no
penalty like expulsion for violation because there are
procedure that are to be followed when the student is
found to be using drugs because of the mandatory
drug test.
In sum, what can reasonably be deduced from the
above two cases and applied to this jurisdiction are:
(1) schools and their administrators stand in loco
parentis with respect to their students; (2) minor
students have contextually fewer rights than an adult,
and are subject to the custody and supervision of
their parents, guardians, and schools; (3) schools,
acting in loco parentis, have a duty to safeguard the
health and well-being of their students and may adopt
such measures as may reasonably be necessary to
discharge such duty; and (4) schools have the right to
impose conditions on applicants for admission that
are fair, just, and non-discriminatory.
Guided by Vernonia and Board of Education, the
Court is of the view and so holds that the provisions
of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for
admission, compliance with reasonable school rules
and regulations and policies. To be sure, the right to
enroll is not absolute; it is subject to fair, reasonable,
and equitable requirements. (SJS vs DDB)
Then there was an issue on violation of 9165,
because in RA 9165 there is mandatory drug testing
provided also for those arrested for violation of RA
9165.
In Dela Cruz this was a case involving extortion.
When Dela Cruz was arrested for extortion, he was
brought to NBI. Subsequently, he was compelled to
undergo mandatory drug testing. He was found
positive after examination of using prohibited drugs
therefore he was charged not for extortion but for
violation of RA 9165.
Was the mandatory drug testing result admissible?
The Supreme Court said that it is not. Because the
mandatory drug testing under RA 9165 is only valid
as a confirmatory test for those arrested and charged
for those arrested under Article 2 of RA 9165.
It does not apply to any arrest involving any other
crimes or offenses specifically for RA 9165 because,
One, It violates right to privacy and it violates once
privilege against self- incrimination.
DELA CRUZ vs PEOPLE
GR No. 200748 (2014)
First, "[a] person apprehended or arrested" cannot
literally mean any person apprehended or arrested
for any crime.The phrase must be read in context
and understood in consonance with R.A. 9165.
Section 15 comprehends persons arrested or
apprehended for unlawful acts listed under Article II
of the law.
Xxx
Furthermore, making the phrase "a person
apprehended or arrested" in Section 15 applicable to
all persons arrested or apprehended for unlawful
acts, not only under R.A. 9165 but for all other
crimes, is tantamount to a mandatory drug testing of
all persons apprehended or arrested for any crime.
To overextend the application of thisprovision would
run counter to our pronouncement in Social Justice
Society v. Dangerous Drugs Board and Philippine
Drug Enforcement Agency, to wit:
x x x [M]andatory drug testing can never be random
and suspicionless. The ideas of randomness and
being suspicionless are antithetical to their being
made defendants in a criminal complaint. They are
not randomly picked; neither are they beyond
suspicion. When persons suspected of committing a
crime are charged, they are singled out and are
impleaded against their will. The persons thus
charged, by the bare fact of being haled before the
prosecutor’s office and peaceably submitting
themselves to drug testing, if that be the case, do
not necessarily consent to the procedure, let alone
waive their right to privacy. To impose mandatory
drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA
6195. Drug testing in this case would violate a
person’s right to privacy guaranteed under Sec. 2,
Art. III of the Constitution. Worse still, the accused
persons are veritably forced to incriminate
themselves. xxx
The drug test was a violation of petitioner’s right to
privacy and right against self-incrimination.
It is incontrovertible that petitioner refused to have
his urine extracted and tested for drugs. He also
asked for a lawyer prior to his urine test. He was
adamant in exercising his rights, but all of his efforts
proved futile, because he was still compelled to
submit his urine for drug testing under those
circumstances.
The pertinent provisions in Article III of the
Constitution are clear:
Section 2. The right of the people to be securein
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 17. No person shall be compelled to be a
witness against himself.
In the face of these constitutional guarantees, we
cannot condone drug testing of all arrested persons
regardless of the crime or offense for which the
arrest is being made.
While we express our commendation of law
enforcement agents as they vigorously track down
offenders intheir laudable effort to curb the pervasive
and deleterious effects of dangerous drugs on our
society, they must, however, be constantly mindful
of the reasonable limits of their authority, because it
is not unlikely that in their clear intent to purge
CONSTITUTIONAL LAW II REVIEW TSN 51
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society of its lawless elements, they may be
knowingly or unknowingly transgressing the
protected rights of its citizens including even
members of its own police force.
The Supreme Court furthered discussed that the
compulsion to submit the body of the person of the
accused or suspect arrested to a mechanical
examination which is not violative of the right to self-
incrimination will only be valid if it is material to the
offense.
Mandatory drug testing is not material to the offense
of extortion for which he has been arrested, therefore
it is not admissible.
The other matter here is when you claim the
privilege, you have to claim it when the incriminating
question is asked. You cannot claim it at any other
time.
In relation to our discussion on persons to be called
under pain of contempt in inquiries in aid of
legislation, they cannot refuse to answer a subpoena.
They must have to appear. They can no longer
refuse to answer if incriminating question is asked.
Under the rules of evidence there is failure to claim
the privilege by simply answering the question, the
privilege is deemed waived.
Final item with respect of your privilege is on the
grant of immunities.
3. “Use immunity” vs. “Transactional immunity”
Your outline mentioned of use immunity and
transaction immunity
"Use immunity" prohibits use of witness' compelled
testimony and its fruits in any manner in connection
with the criminal prosecution of the witness (Galman
vs Pamaran)
Use-and-derivative-use immunity, a witness is only
assured that his or her particular testimony and
evidence derived from it will not be used against him
or her in a subsequent prosecution (Tanchanco vs
Sandiganbayan)
Transactional immunity grants immunity to the
witness from prosecution for an offense to which his
compelled testimony relates (Galman vs Pamaran)
Transactional immunity is broader in the scope of its
protection. By its grant, a witness can no longer be
prosecuted for any offense whatsoever arising out of
the act or transaction to which the testimony relates.
(Tanchanco vs Sandiganbayan, November 25,
2005)
People vs Sandiganbayan (2013): This is an
example of transactional immunity. This pertains to
the discharge of the co- accused as a state witness.
The Ombudsman is authorized to discharge an
accused for purposes of utilizing him as a State
witness. The Supreme Court discussed the provision
allowing the Ombudsman to discharge as a
transactional immunity and characterizes it as a
balancing between the interest of the State to
prosecute offenders versus the privilege of person
against self-incrimination.
52 CONSTITUTIONAL LAW II REVIEW TSN
In order for the State to allow the state to successfully
prosecute the offenders when there is no other direct
evidence sufficient to justify a conviction, the
discharge of state witness can be availed of.
If availed, it must have to give some form of immunity
to a person or accused so discharged because it
would be considered as a violation of his privilege if
not given or extended of such privilege.
PEOPLE vs. SANDIGANBAYAN
But the filing of the criminal action against an
accused in court does not prevent the Ombudsman
from exercising the power that the Congress has
granted him. Section 17 of R.A. 6770 provides:
Section 17. Immunities. – x x x Under such terms
and conditions as it may determine, taking into
account the pertinent provisions of the Rules of
Court, the Ombudsman may grant immunity from
criminal prosecution to any person whose testimony
or whose possession and production of documents
or other evidence may be necessary to determine
the truth in any hearing, inquiry or proceeding being
conducted by the Ombudsman or under its authority,
in the performance or in the furtherance of its
constitutional functions and statutory objectives. The
immunity granted under this and the immediately
preceding paragraph shall not exempt the witness
from criminal prosecution for perjury or false
testimony nor shall he be exempt from demotion or
removal from office.
His above authority enables the Ombudsman to
carry out his constitutional mandate to ensure
accountability in the public service. It gives the
Ombudsman wide latitude in using an accused
discharged from the information to increase the
chances of conviction of the other accused and
attain a higher prosecutorial goal. Immunity statutes
seek to provide a balance between the state’s
interests and the individual’s right against self-
incrimination. To secure his testimony without
exposing him to the risk of prosecution, the law
recognizes that the witness can be given immunity
from prosecution. In such a case, both interests and
rights are satisfied.
4. Exclusionary Rule
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.
(3) Any confession or admission obtained in violation
of this or Section 17 hereof shall be inadmissible in
evidence against
5. Effect of denial of privilege by court
[Not discussed]
X. RIGHT TO SPEEDY DISPOSITION OF CASES
Art III, SECTION 18. (1) No person shall be detained
solely by reason of his political beliefs and
aspirations.
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(2) No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party
shall have been duly convicted.
Art VIII, SECTION 15. (1) All cases or matters filed
after the effectivity of this Constitution must be
decided or resolved within twenty-four months from
date of submission for the Supreme Court, and,
unless reduced by the Supreme Court, twelve
months for all lower collegiate courts, and three
months for all other lower courts.
(2) A case or matter shall be deemed submitted for
decision or resolution upon the filing of the last
pending, brief, or memorandum required by the Rules
of Court or by the court itself.
(3) Upon the expiration of the corresponding period, a
certification to this effect signed by the Chief Justice
or the presiding judge shall forthwith be issued and a
copy thereof attached to the record of the case or
matter, and served upon the parties. The certification
shall state why a decision or resolution has not been
rendered or issued within said period.
(4) Despite the expiration of the applicable mandatory
period, the court, without prejudice to such
responsibility as may have been incurred in
consequence thereof, shall decide or resolve the
case or matter submitted thereto for determination,
without further delay.
Art VII, Sec 18, par 3 .The Supreme Court may
review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty
days from its filing.
Art IX-A SECTION 7. Each Commission shall decide
by a majority vote of all its Members any case or
matter brought before it within sixty days from the
date of its submission for decision or resolution. A
case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the
Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any
decision, order, or ruling of each Commission may be
brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a
copy thereof.
We made mention with respect to the discussion of
right to speedy trial, that the right to speedy trial
would normally be claimable by the accused in a
criminal case.
With the discussion in cases on speedy trial, it would
suggest that it is to be computed at the time the
prosecution is supposed to be made to present
evidence up to the time the prosecution would
actually terminate his presentation of evidence.
There must have to be no capricious, inordinate or
oppressive delays. We made mention also on the on
the part of the prosecution in completing the
presentation of evidence.
We made mention the four fold test to determine
whether there is a violation of the right to speedy trial.
In speedy disposition of cases, it does not only apply
to criminal cases and it is not only claimable by the
accused. It applies to all kinds of cases. But as to the
determination of time or period in terms of when the
right may be claimed, this is supposed to be referring
only to the period of time by which court or tribunal or
investigating officer resolve an issue.
If so, the first courts we have to refer this, or cross
reference to the mandatory period for deciding cases,
We have 90 DAYS for lower courts, 12 months for
lower collegiate courts and 24 months for the
Supreme Courts within which to resolve incidents
which are submitted for resolutions, or decide cases
that are already submitted for decision.
In almost all the cases mentioned here in your
outline, they refer to administrative cases involving
judges, atleast of lower courts for failing to apply the
mandatory periods for deciding cases thus violating
ones right to speedy disposition of cases.
Coscuella vs Sandiganbayan a 2013 ruling. It
involves a resolution of the office of the Ombudsman
in conducting preliminary investigation. When the
case eventually reached the Sandiganbayan, there
was an issue on the violation of right of speedy
disposition of cases. It took the Ombudsman 7 or 8
years to resolve the issue on the determination of
probable cause in the preliminary investigation
conducted by the Ombudsman. The Ombudsman
reasoned that it takes a while because of the office
procedure. It has to be approved by the Ombudsman
himself and not only the deputies in the Visayas
region.
The Supreme Court said that it has nothing to do with
the procedure because the litigant has the right to
make sure that the determination of probable cause
will have to be within reasonable time, without
oppressive, capricious or inordinate delay.
The Supreme Court used the same four fold test. The
third test there is whether or not there is assertion or
non-assertion of the accused. In this case, the
respondent, xx reason out that, the respondent never
raised the delay in the disposition of the preliminary
investigation.
The Supreme Court said, quoting an old ruling, that it
is not for the respondent to makes sure that he is
entitled, (meaning, he has no obligation to follow up
with the Ombudsman what is the status of his
preliminary investigation or xxx his case would be
eventually filed in the appropriate court)
It was supposed to be a lookout of the Ombudsman
conducting investigation to insure that the
determination of the probable cause is made sooner
without inordinate, oppressive or capricious delay.
If so the right to speedy disposition of cases, if
violated, will resolve with the dismissal of case and
there will be no re-filing.
COSCUELLA vs SANDIGANBAYAN (2013)
A person’s right to the speedy disposition of his case
is guaranteed under Section 16, Article III of the
1987 Philippine Constitution (Constitution) which
provides:
SEC. 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-
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judicial, or administrative bodies.
This constitutional right is not limited to the accused
in criminal proceedings but extends to all parties in
all cases, be it civil or administrative in nature, as
well as all proceedings, either judicial or quasi-
judicial. In this accord, any party to a case may
demand expeditious action to all officials who are
tasked with the administration of justice.
It must be noted, however, that the right to speedy
disposition of cases should be understood to be a
relative or flexible concept such that a mere
mathematical reckoning of the time involved would
not be sufficient. Jurisprudence dictates that the right
is deemed violated only when the proceedings are
attended by vexatious, capricious, and oppressive
delays; or when unjustified postponements of the
trial are asked for and secured; or even without
cause or justifiable motive, a long period of time is
allowed to elapse without the party having his case
tried.
Hence, in the determination of whether the
defendant has been denied his right to a speedy
disposition of a case, the following factors may
be considered and balanced: (1) the length of
delay; (2) the reasons for the delay; (3) the
assertion or failure to assert such right by the
accused; and (4) the prejudice caused by the
delay.
Examining the incidents in the present case, the
Court holds that petitioners’ right to a speedy
disposition of their criminal case had been violated.
First, it is observed that the preliminary investigation
proceedings took a protracted amount of time to
complete.
In this relation, the Court does not lend credence to
the SB’s position that the conduct of preliminary
investigation was terminated as early as March 27,
2003, or the time when Cañares prepared the
Resolution recommending the filing of the
Information. This is belied by Section 4,
Rule II of the Administrative Order No. 07 dated April
10, 1990, otherwise known as the "Rules of
Procedure of the Office of the Ombudsman," which
provides:
SEC. 4. Procedure – The preliminary investigation of
cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the
following provisions:
xxxx
No information may be filed and no complaint may
be dismissed without the written authority or
approval of the Ombudsman in cases falling within
the jurisdiction of the Sandiganbayan, or of the
proper Deputy Ombudsman in all other cases.
(Emphasis and underscoring supplied)
The above-cited provision readily reveals that there
is no complete resolution of a case under preliminary
investigation until the Ombudsman approves the
54 CONSTITUTIONAL LAW II REVIEW TSN
investigating officer’s recommendation to either file
an Information with the SB or to dismiss the
complaint. Therefore, in the case at bar, the
preliminary investigation proceedings against the
petitioners were not terminated upon Cañares’
preparation of the March 27, 2003 Resolution and
Information but rather, only at the time Casimiro
finally approved the same for filing with the SB. In
this regard, the proceedings were terminated only on
May 21, 2009, or almost eight (8) years after the
filing of the complaint.
Second, the above-discussed delay in the
Ombudsman’s resolution of the case largely remains
unjustified.
To this end, the Court equally denies the SB’s
ratiocination that the delay in proceedings could be
excused by the fact that the case had to undergo
careful review and revision through the different
levels in the Office of the Ombudsman before it is
finally approved, in addition to the steady stream of
cases which it had to resolve.
Verily, the Office of the Ombudsman was created
under the mantle of the Constitution, mandated to be
the "protector of the people" and as such, required to
"act promptly on complaints filed in any form or
manner against officers and employees of the
Government, or of any subdivision, agency or
instrumentality thereof, in order to promote efficient
service." This great responsibility cannot be simply
brushed aside by ineptitude. Precisely, the Office of
the Ombudsman has the inherent duty not only to
carefully go through the particulars of case but also
to resolve the same within the proper length of time.
Its dutiful performance should not only be gauged by
the quality of the assessment but also by the
reasonable promptness of its dispensation. Thus,
barring any extraordinary complication, such as the
degree of difficulty of the questions involved in the
case or any event external thereto that effectively
stymied its normal work activity – any of which have
not been adequately proven by the prosecution in
the case at bar – there appears to be no justifiable
basis as to why the Office of the Ombudsman could
not have earlier resolved the preliminary
investigation proceedings against the petitioners.
Third, the Court deems that petitioners cannot be
faulted for their alleged failure to assert their right to
speedy disposition of cases.
Records show that they could not have urged the
speedy resolution of their case because they were
unaware that the investigation against them was still
on-going. They were only informed of the March 27,
2003 Resolution and Information against them only
after the lapse of six (6) long years, or when they
received a copy of the latter after its filing with the
SB on June 19, 2009. In this regard, they could have
reasonably assumed that the proceedings against
them have already been terminated. This serves as
a plausible reason as to why petitioners never
followed-up on the case altogether. Instructive on
this point is the Court’s observation in Duterte v.
Sandiganbayan, to wit:
Petitioners in this case, however, could not have
urged the speedy resolution of their case because
they were completely unaware that the investigation
against them was still on-going. Peculiar to this
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case, we reiterate, is the fact that petitioners were
merely asked to comment, and not file counter-
affidavits which is the proper procedure to follow in a
preliminary investigation. After giving their
explanation and after four long years of being in the
dark, petitioners, naturally, had reason to assume
that the charges against them had already been
dismissed.
On the other hand, the Office of the Ombudsman
failed to present any plausible, special or even novel
reason which could justify the four-year delay in
terminating its investigation. Its excuse for the delay
— the many layers of review that the case had to
undergo and the meticulous scrutiny it had to entail
— has lost its novelty and is no longer appealing, as
was the invocation in the Tatad case. The incident
before us does not involve complicated factual and
legal issues, specially (sic) in view of the fact that the
subject computerization contract had been mutually
cancelled by the parties thereto even before the
Anti-Graft League filed its complaint. (Emphasis and
underscoring supplied)
Being the respondents in the preliminary
investigation proceedings, it was not the petitioners’
duty to follow up on the prosecution of their case.
Conversely, it was the Office of the Ombudsman’s
responsibility to expedite the same within the bounds
of reasonable timeliness in view of its mandate to
promptly act on all complaints lodged before it. As
pronounced in the case of Barker v. Wingo.
A defendant has no duty to bring himself to trial; the
State has that duty as well as the duty of insuring
that the trial is consistent with due process.
Fourth, the Court finally recognizes the prejudice
caused to the petitioners by the lengthy delay in the
proceedings against them.
Lest it be misunderstood, the right to speedy
disposition of cases is not merely hinged towards the
objective of spurring dispatch in the administration of
justice but also to prevent the oppression of the
citizen by holding a criminal prosecution suspended
over him for an indefinite time. Akin to the right to
speedy trial, its "salutary objective" is to assure that
an innocent person may be free from the anxiety and
expense of litigation or, if otherwise, of having his
guilt determined within the shortest possible time
compatible with the presentation and consideration
of whatsoever legitimate defense he may
30
interpose. This looming unrest as well as the
tactical disadvantages carried by the passage of
time should be weighed against the State and in
favor of the individual. In the context of the right to a
speedy trial, the Court in Corpuz v.
31
Sandiganbayan (Corpuz) illumined:
A balancing test of applying societal interests and
the rights of the accused necessarily compels the
court to approach speedy trial cases on an ad hoc
basis.
x x x Prejudice should be assessed in the light of the
interest of the defendant that the speedy trial was
designed to protect, namely: to prevent oppressive
pre-trial incarceration; to minimize anxiety and
concerns of the accused to trial; and to limit the
possibility that his defense will be impaired. Of
these, the most serious is the last, because the
inability of a defendant adequately to prepare his
case skews the fairness of the entire system. There
is also prejudice if the defense witnesses are unable
to recall accurately the events of the distant past.
Even if the accused is not imprisoned prior to trial,
he is still disadvantaged by restraints on his liberty
and by living under a cloud of anxiety, suspicion and
often, hostility. His financial resources may be
drained, his association is curtailed, and he is
subjected to public obloquy.
Delay is a two-edge sword. It is the government that
bears the burden of proving its case beyond
reasonable doubt. The passage of time may make it
difficult or impossible for the government to carry its
burden. The Constitution and the Rules do not
require impossibilities or extraordinary efforts,
diligence or exertion from courts or the prosecutor,
nor contemplate that such right shall deprive the
State of a reasonable opportunity of fairly
prosecuting criminals.
You may have read on September 18, there was a
news report which the Supreme Court promulgated a
decision (Sir has not read the full text yet)
When the person is lawfully arrested without warrant,
under Section 6 of your Rule 112, the accused may
ask a conduct of preliminary investigation. But he has
to sign a waiver of the applicability of Article 125 of
the Revised Penal Code. That is arbitrary detention.
Section 6. When warrant of arrest may issue. —
(a) By the Regional Trial Court. — Within ten (10)
days from the filing of the complaint or information,
the judge shall personally evaluate the resolution of
the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on
record clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued
by the judge who conducted the preliminary
investigation or when the complaint or information
was filed pursuant to section 7 of this Rule. In case of
doubt on the existence of probable cause, the judge
may order the prosecutor to present additional
evidence within five (5) days from notice and the
issue must be resolved by the court within thirty (30)
days from the filing of the complaint of information.
(b) By the Municipal Trial Court. — When required
pursuant to the second paragraph of section 1 of this
Rule, the preliminary investigation of cases falling
under the original jurisdiction of the Metropolitan Trial
Court, Municipal Trial Court in Cities, Municipal Trial
Court, or Municipal Circuit Trial Court may be
conducted by either the judge or the prosecutor.
When conducted by the prosecutor, the procedure for
the issuance of a warrant or arrest by the judge shall
be governed by paragraph (a) of this section. When
the investigation is conducted by the judge himself,
he shall follow the procedure provided in section 3 of
this Rule. If the findings and recommendations are
affirmed by the provincial or city prosecutor, or by the
Ombudsman or his deputy, and the corresponding
information is filed, he shall issue a warrant of arrest.
However, without waiting for the conclusion of the
investigation, the judge may issue a warrant of arrest
if he finds after an examination in writing and under
oath of the complainant and his witnesses in the form
of searching question and answers, that a probable
cause exists and that there is a necessity of placing
the respondent under immediate custody in order not
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to frustrate the ends of justice.
(c) When warrant of arrest not necessary. — A
warrant of arrest shall not issue if the accused is
already under detention pursuant to a warrant issued
by the municipal trial court in accordance with
paragraph (b) of this section, or if the complaint or
information was filed pursuant to section 7 of this
Rule or is for an offense penalized by fine only. The
court shall then proceed in the exercise of its original
jurisdiction. (6a)
Under the same provision, the preliminary
investigation must have to be completed within 15
days from the grant of preliminary investigation. Part
of the decision of the Supreme Court was that when
the Preliminary investigation is not completed within
that mandated period, all the accused lawfully
arrested and therefore detained, with waiver under
Art 125 must have to be released by the Courts.
The rational being a waiver of Article 125 does not
give the prosecution the right to detain respondent or
accused lawfully arrested without warrant even if they
have waived Article 125. They have no right to detain
them longer than the periods provided for under the
Rules of Court.
That is not a violation of right to speedy disposition of
cases per se. But it has something to do with the
need to release the person for there is a violation of
the periods provided for in the Rules of Court for
completion of the conduct of the preliminary
investigation for persons lawfully arrested without
warrant who would ask for a conduct for a preliminary
investigation.
September 26, 2017 Z. Montefolca
Before we leave on the item of the right to speedy
disposition of cases, on September 18 the PIO
published the decision of the SC respecting
disposition of preliminary investigation when an
accused is arrested without warrant and who has
asked the conduct of a preliminary investigation.
Under the rules, there is a waiver of the applicability
of Article 125 of the RPC on arbitrary detention
because the accused has asked for the regular
conduct of preliminary investigation. Under Section 6
of Rule 112 the PI must have to be concluded within
15 day period and the SC on the decision said if PI is
not concluded or terminated within the period, all
detained accused or suspect must have to be
released otherwise it will be a violation of their right to
liberty. So the conduct of PI under that provision must
have to be within or disposed of within the mandated
period which is 15 days.
XI. SUBSTANTIVE RIGHTS UNDER THE DUE
PROCESS CLAUSE
A. What acts cannot be criminalized
1. Mere beliefs and aspirations
This was the very basis why the former Anti
Subversion Act RA 1700 was decriminalized under
the 1987 Constitution. One of the first laws which was
decriminalized was RA 1700 the Anti-Subversion law
which we know before is xxx case of one’s political
belief and so it was decriminalized pursuant to the
1987 constitution.
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2. Non-imprisonment for debts or civil obligation
This is a prohibition to coerce the payment of a debt
by incarceration which was the practice before. This
is anchored on one’s rights to personal liberty. Any
liability to pay money out of a contract express or
implied, therefore constitute a debt, and the
nonpayment of such contracts or obligation in the
form of a debt cannot result to any imprisonment.
However if the debt was contracted with fraud, then
the fraud may be penalized criminally not the non-
payment. So fraud may be the basis of imprisonment.
Also because a criminal fine is not a contractual
money obligation, your Revised Penal Code allows
subsidiary imprisonment in cases of non-payment of
fine. That is not prohibited
3. Acts which were done were innocent or ex post
facto legislation as well as the concept of bills of
attainder
The old case of Kay Villegas Kami lists down the 6
instances where it is referred to as ex post facto
legislation. The common denominator is that it is
applied retroactively because if it is applied
prospectively there is still a chance for targeted
individuals or persons not to be liable under the law
so if it criminalizes an innocent act apply
prospectively; retroactively if it aggravates a crime; it
changes a penalty and uses it; it alters legal rules of
evidence requiring less for conviction; assumes civil
rights and remedies but in effect penalize an innocent
act; or deprivation of some lawful protection such as
acquittal, conviction or amnesty if applied
retroactively are considered ex post facto legislation.
KAY VILLEGAS KAMI
An ex post facto law is one which:
(1) makes criminal an act done before the passage of
the law and which was innocent when done, and
punishes such an act;
(2) aggravates a crime, or makes it greater than it
was, when committed;
(3) changes the punishment and inflicts a greater
punishment than the law annexed to the crime when
committed;
(4) alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the
law required at the time of the commission of the
offense;
(5) assuming to regulate civil rights and remedies
only, in effect imposes penalty or deprivation of a
right for something which when done was lawful; and
(6) 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
BAYOT VS. SANDIGANBAYAN
In the case of Bayot vs. Sandiganbayan you all know
that under RA 3019 once a valid information is filed
the accused may be placed under preventive
suspension, in the case of bayot the efficacy of the
preventive suspension provision was effective while
the case was on appeal already and so the
prosecution moved that he be placed under
preventive suspension pursuant to the amendment
toRA 3019. petitioner contends that it is ex post facto
because it is applied to him retroactively and it
imposes a penalty. The SC said that the imposition of
the preventive suspension rule is not an imposition of
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penalty and therefore it could be applied to him
retroactively and it cannot violate the ex post facto
prohibition under the Constitution.
Bill of attainder is one which inflicts punishment
without judicial trial we have made mention of this
respecting the discussion on presumption of
innocence when a law provides for prima facie proof
of guilt or liability that is not considered a viol of
attainder because it is only prima facie and not
conclusive the accused can still refute the prima facie
presumption by law or by legislative act and therefore
it is not a legislative adjudication of guilt.
LIBCAP VS. BACQUIAL
There is one case there Libcap vs. Baquial I could
not understand why the SC applied ex post facto
legislation or ex post facto discussion when this
involves a labor case nonetheless it made mention
that this was an imposition of a penalty which is ex
post facto pending investigation. The facts of the
case will tell you that this involves a cashier in a
private company Libcap and when the initial findings
of embezzlement was determined in the amount over
a thousand pesos she was made to pay the shortage
or embezzled amount by deducting from her pay roll
every pay day in installments until it was fully paid
even before the formal investigation was conducted.
The SC said that that is ex post facto because there
was finding of guilt even before there was proceeding
or formal investigation. As to why the SC applied that
when it is not supposed to be a criminal case is
beyond but that is the SC that is part of the law of the
land.
B. What punishments cannot be imposed
1. involuntary servitude
th
This was brought here based on the 13 amendment
of the US constitution which was the anti-slavery
th
provision. The 13 amendment ended slavery in the
US and was brought here being part of our 1935
constitution the only punishment where involuntary
servitude is allowed are those as punishments for
crime for which a person has been convicted or
under section 4 of article 2 required to render
personal military or civil service conditioned by the
state.
Section 4, Article II: The Government may call upon
the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions
provided by law, to render personal, military or civil
service."
IMBONG VS. OCHOA
We made mention already the case of imbong vs
ochoa the requirement for pro bono services when
we discussed the so called conscientious objector
rule when the religious belief of a person prevents
one or prevents him from performing an act required
by law as it is against his religious conscience that
person may be exempted from compliance or it is a
valid claim under religious practices. Your RH law RA
there is a requirement for 48 hours annually for pro
bono services for indigent women. And the provision
goes that this 48 hours of annual pro bono services
required for accreditation with philhealth. The
petitioners raised an issue that it amounts to
involuntary servitude because they are required to
perform pro bono service under pain of penalty.
The SC said there is no penalty. When it is
involuntary servitude there must have to be a penalty
imposed for non-compliance and the provision only
requires pro bono services for philhealth
accreditation. That could happen if a medical
practitioner without complying with the 48 hour
annual pro bono service is that he is not penalized
but is not accredited with philhealth. Non-
accreditation is not a penalty. Accreditation is benefit
according to the SC.
2. Excessive fines
When they say Cruel degrading and inhuman
punishments in relation to excessive fines with
respect to fines it is not the amount of fine per se
which determines if it is excessive. It must be based
on contemporary community standards the amount of
fine is grossly disproportionate to the violation.
Grossly disproportionate is very subjective because
there might be some important policy consideration
or the imposition of fine old cases will tell you for
example in the imposition of fines for violation of vice
controlled law there is a reason or policy behind why
vices or certain commodity are controlled and if you
violate that may warrant the imposition of a fine which
under ordinary circumstances is considered as
excessive but because of the policy behind it it may
not be considered excessive.
By analogy you would refer to as an example
violation of RA 7610 or child abuse act because if the
policy to protect children ordinary physical injury of an
adult which carried with it perhaps light penalty if
committed against a child your 7610 has provided for
increased penalty prision mayor at the very least a
simple slap on a child which may constitute child
abuse by considering it will degrade the worth of the
child that will not only be punishable by arresto
menor but it will be punishable by prision mayor. So
by analogy that would be the example what is
considered excessive.
3. Cruel degrading and inhuman punishments
It is not the severity rather It is the form or character
of the penalty as imposed. Death is the most severe
of all penalties but it is not Cruel degrading and
inhuman. It is the manner or form that death as a
penalty is imposed or administered on the convict.
Modern day xxx death by lethal injection is supposed
to be humane and not inhuman as opposed to the
former practices the last of which was through
electrocution. I think there are still some states in the
US specially texas which imposes death penalty by
electrocution.
C. The protection against double jeopardy
There are two situations contemplated: the same act
rule and the same offense rule.
1. The same act rule covers a situation where an act
is punished by an ordinance and the same act is also
punished by a provision of a statute. Any conviction
or acquittal in one will prevent the prosecution with
the other. The purpose of this is to prevent
harassment or being punished twice for the same act.
2. The same offense rule an act must have to be
punishable by different provisions of a statute or of
the same statute literally and the purpose is to
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prevent being harassed or punished twice for the
same offense.
Requisites for the same act rule:
1. there must be one act punished by an ordinance
and punished also by a statute;
2. There must be conviction or acquittal in one which
will bar prosecution in the other;
In the same offense rule the decisions of the SC
discussed that there are 4 requisites when it will
apply. But technically there are only two:
1. the first jeopardy must have attached;and
2. The second case is for the same offense as that
where the first jeopardy was attached.
When does the first jeopardy attach? Then you have
these four:
1. There must be a valid complaint or information
being sufficient to convict in form and substance;
2. It must have been filed in a court of competent
jurisdiction
3. There must be a valid plea entered by the
accused;
4. The accused must have been convicted or
acquitted or the case is dismissed on the merits
without the consent or express consent of the
accused
So when the first jeopardy attached, the accused
cannot be charged anew for the same offense.
The same offense refer to the following:
1. Literally the same offense; or
2. The second offense is an attempt of the first; or
3. The second offense is a frustration of the first; or
4. The second offense necessarily includes the first
meaning some of the elements of the second
constitute all the elements of the first
5. The second is necessarily included in the first
meaning all the elements of the second constitute
some of the elements of the first charged; or
6. When there is a valid plea guilt to a lesser offense.
There is a valid plea guilt to a lesser offense when
the consent of the prosecution and or the private
complainant and the lesser offense is necessarily
included in the offense charged.
I think a week or so ago you have read in the news
that the SC has come up with a decision that the
provision in RA 9165 disallowing plea bargaining for
violation of the dangerous drugs act is
unconstitutional. Some courts and some defense
lawyers are availing of that as of the moment
however the SC has notified all courts not to apply
the ruling yet because there is a pending motion for
reconsideration filed by the OSG. Xxx does not want
that there is plea bargaining for violation of 9165. if
the plea bargaining is allowed eventually there is an
expectation of many of the accused taking advantage
of plea bargaining example from sale to mere
possession or use. What’s the penalty for use? First
offender you will be on rehab unless you are killed
earlier by death penalty.
Exceptions to the rule are the following:
1. Supervening fact
MELO VS. PEOPLE
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This has reference to the case of melo vs. Pp when
there is a supervening fact meaning the graver
offense developed due to supervening fact classic
example is the case of melo charged and convicted
say for homicide after the first jeopardy attached the
victim died from the same injury suffered then it is
considered as a supervening fact meaning the graver
offense which is consummated homicide is a
supervening fact the accsued can be charged again
for the graver offense.
People vs. Yorac on a similar kind of set of facts this
time however the graver offense was not discovered
but it was already existing when the first jeopardy
attached and when the accused was charged anew
and the SC said no it was not a supervening fact
because the graver offense which was frustrated
murder based on the injury suffered when the
accused was charged for physical injury was already
existing although it was discovered for lack of a more
complete or exhaustive medical examination. It could
not be a supervening fact. First jeopardy attached
and the accused cannot be charged again for the
graver offense because it will violate his double
jeopardy protection.
2. After Discovered Fact
And so to correct that the SC made a second
exception which is the after discovered fact if the
graver offense was discovered after the first jeopardy
attached. the rule says after the filing of the first
information. Technically that is incorrect because the
filing of an information alone without any acquittal or
conviction, first jeopardy will never attached. So to
correct the statement before the first or after the first
jeopardy attached if the graver offense was
discovered it could be an exception under the after
discovered fact rule as an exception.
3. When there is an invalid plea of guilt to a lesser
offense.
So there will be a new charge if all of the conditions
for a plea of guilt to a lesser offense has not been
complied with. The rule before was that the lesser
offense need not be necessarily included in the
offense actually charged but because of the
amendment in 1996 it now requires that the lesser
offense must have to be included in the offense
charged, so any physical injuries are necessarily
included in murder only that in murder the victim had
died with qualified aggravating circumstance. Most of
the questions in double jeopardy would be dismissals
which constitute as adjudication on the merits.
In the case of Morillo vs. People when the case is
dismissed with the express consent of the accused
because he has filed a demurer or has claim in
violation of his right to speedy trial these are
considered adjudicate on the merits.
MORILLO VS. PEOPLE
In morillo vs pp what happened was that this is a
case of BP 22 in the MTC the accused was convicted
in the RTC the conviction was affirmed in the appeal
to the CA under rule 45 the CA dismissed the case
for lack of jurisdiction of MTC makati because
apparently MTC makati has no jurisdiction but the CA
decision said that without prejudice to the refiling of
the case with the court with appropriate jurisdiction
which was the MTC of pampanga. Morillo raised the
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issue of violation of his double jeopardy protection
because he was already acquitted.
The SC said there is a difference between acquittal
and dismissal. When a dismissal is based on lack of
jurisdiction first jeopardy does not attach. It is not an
adjudication on the merit,. It is not an acquittal so to
speak. Unlike dismissal because of a demurer or
dismissal because of a proper claim of right to
speedy trial even with the consent of the accused for
obvious reason because the accused filed the motion
these are considered adjudication on the merits
reflecting on the innocence or guilt of the accused
and the decision is one of acquittal. But when a
decision is based on lack of jurisdiction since the
court has no jurisdiction to begin with first jeopardy
would never attach and dismissal based on this
ground is not an adjudication on the merits and
therefore is not considered as an acquittal. The
accused can be charged again for violating his right
to speedy disposition of cases.
Time bar rule
The other matter is with respect to the time bar rule.
We all know how the time bar rule works and the
discussion is that it is not a modification or
amendment of the rule on prescription of offenses.
Rather it is just a rule which involves the right of the
state to revive the prosecution of cases if the penalty
imposable is below 6 years or any fine the time bar
rule provides for a 1 year period or more than that
two years where case is provisionally dismissed
within the period of the allowable time that the state
may revive cases by refiling the information without
the need of the conduct of preliminary investigation
after the lapse of the period that is a disputable
presumption that the state is no longer interested in
continuing with the prosecution. Disputable because
the state may still revive the case if it could be
explained that the delay was justifiable. If the delay is
not justified the provisional dismissal becomes
permanent. Again this is not a rule on prescription but
simply a rule on the right of the state to continue with
the prosecution of the case.
Appeal and motion for reconsideration in criminal
cases
Another matter is with respect to appeal or motions
for reconsideration. In People vs. CA there are two
ways by which a judgment or decision in a criminal
case may be reviewed. The first is the filing of an
ordinary notice of appeal the second is under rule 45
petition for review and the other one is under rule 65
petition for review on certiorari which the first two is
on ordinary question of fact and law which is a
question of error in judgment.
65 petition we all know is error in jurisdiction and only
in instances where the right to judgments of
conviction when a judgment can be raised but when
there is a judgment of acquittal generally there can
be no motion for reconsideration or appeal filed by
the complainant much more under rule 45. unless of
course is it on the civil aspect of the case because
not all acquittal will result in finding of no civil
liability.a judgment of acquittal is based on
reasonable doubt there can still be a finding of civil
liability and the private offended party may interpose
an appeal or petition as the case may be only with
respect to the civil liability.
Rule 65 however is available even in a judgment of
conviction if there is showing that the trial court erred
in jurisdiction not in judgment but it is without
jurisdiction when it acquitted the accused with grave
abuse of discretion. So when there is grave abuse of
discretion attending the judgment of acquittal the trial
court is ousted of jurisdiction. It will amount to a
violation of right to due process and therefore the
state has the right to have the judgment of acquittal
overturned under a 65 petition. The first of that of so
many was the case of lagman vs. Sandiganbayan
and it has been repeatedly cited as one of the
primary cases where the prosecution in a judgment of
acquittal can seek the reversal of an acquittal on a 65
petition based on grave abuse of discretion of the trial
court and that has also been cited in the case of
morillo as the leading case in rule 65 petition and
judgments of acquittal
September 27, 2017 C. Bonifacio
D. The privilege of the writ of habeas corpus
ART II Section 15. The privilege of the writ of habeas
corpus shall not be suspended except in cases of
invasion or rebellion, when the public safety requires
it.
The writ of habeas corpus is a remedy to relieve a
person for any unlawful restraint. While originally
conceived as a remedy over actual/physical
detention, you may have remembered the old case of
Moncupa vs. Enrile where the Supreme Court said
that it also includes circumstances where a person is
effectively deprived of his freedom of mobility.
MONCUPA vs. ENRILE
Moncupa was arrested on the suspended privilege
and while he was eventually released, his release
was conditioned. There were several conditions
where he could not leave a certain area covered
without asking permission. He could not travel for
more than a certain period of time without permission
from the military officers such that he filed a petition
for writ of habeas corpus. You very well know that if
there is an allegation in a petition, sufficient in form
and substance, the writ is issued in a matter of
course even if there is a suspension of the privilege
of the writ of habeas corpus. The return however can
justify the detention of a person if the return states
that there is a legal justification for the continued
enjoinment of the person, the judge who issued the
writ will not order his release. When that writ was
returned, the judge found and the SC eventually
ruled that he was not physically restrained but his
freedom of mobility was affected.
v WHC as post-conviction remedy
The writ is also available as a post conviction remedy
because there is no more legal justification for the
rest of the penalty. If there is a favorable law or
decision which would have granted the accused
serving sentence of an early release, of course it
does not include, as in the case of Fletcher vs.
Director of Bureau of Prisons, the service of the
minimum of the intermediate sentence law. It only
happens when there is a law which for example
repealed an existing criminal statute and an accused
serving sentence would no longer be detained since
the law should benefit him. There was for example a
rule promulgated by the SC fixing the penalty and the
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sentence is supposed to have been served due to a
favorable ruling, any excess in the service would no
longer be justified. A person may be released upon a
petition for writ of habeas corpus. It could not be by
mere motion to the court which rendered the decision
simply because the court have already lost
jurisdiction over the criminal case when the decision
of conviction has become final. The court which
issued it automatically loses jurisdiction. The most
effective remedy would be a petition for a writ of
habeas corpus questioning the legality of further
serving the sentence.
v Suspension of WHC
Final discussion there is the suspension of the
privilege of the writ of habeas corpus under Section
18 of Article 7, it does not exactly allow warrantless
arrests in all cases. It simply allows “warrantless
arrest for those suspected of committing acts
constitutive of rebellion or act inherent or connected
to invasion.” The detention is not prolonged
substantially but only the period of detention under
Article 125 [RPC] is extended to 72 hours or 3 days.
Otherwise, if there is no judicial charge filed within
the 72-hour period, the person arrested and so
detained should be released. Bail shall not be
suspended or right to bail shall not be affected.
E. Affirmative rights
Because of the inadequacy of a writ of habeas
corpus in the cases of enforced disappearances and
extra judicial killings, the SC eventually came up with
A.M. No. 07-9-12-SC the Rules on a WRIT OF
AMPARO.
Usually when the writ of habeas corpus is filed and
directed against the state agents, it could simply be
immediate by the expediency or of the reason that
state agents are not in or the person subject of the
writ of habeas corpus is not in the custody of the
respondents/state agents. Since they could not be
compelled further to produce the body of the person
under a writ of habeas corpus, a writ of habeas
corpus petition is simply lost by the reason that the
person subject of the writ is not in the custody of the
state agents. To correct the said situation or to avoid
the state agents from any responsibility in cases of
extra legal killings and enforced disappearances, this
writ of amparo was timely promulgated.
THE RULE ON THE WRIT OF AMPARO
A.M. No. 07-9-12-SC
(25 September 2007)
SECTION 1. Petition. – The petition for a writ of
amparo is a remedy available to any person whose
right to life, liberty and security is violated or
threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
SEC. 2. Who May File. – The petition may be filed by
the aggrieved party or by any qualified person or
entity in the following order:
a. Any member of the immediate family,
namely: the spouse, children and parents of
the aggrieved party;
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b. Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or affinity,
in default of those mentioned in the
preceding paragraph; or
c. Any concerned citizen, organization,
association or institution, if there is no known
member of the immediate family or relative of
the aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties to
file similar petitions. Likewise, the filing of the petition
by an authorized party on behalf of the aggrieved
party suspends the right of all others, observing the
order established herein.
SEC. 3. Where to File. – The petition may be filed on
any day and at any time with the Regional Trial Court
of the place where the threat, act or omission was
committed or any of its elements occurred, or with
the Sandiganbayan, the Court of Appeals, the
Supreme Court, or any justice of such courts. The
writ shall be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge
thereof, the writ shall be returnable before such court
or judge.
When issued by the Sandiganbayan or the Court of
Appeals or any of their justices, it may be returnable
before such court or any justice thereof, or to any
Regional Trial Court of the place where the threat,
act or omission was committed or any of its elements
occurred.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court or
any justice thereof, or before the Sandiganbayan or
the Court of Appeals or any of their justices, or to any
Regional Trial Court of the place where the threat,
act or omission was committed or any of its elements
occurred.
SEC. 4. No Docket Fees. – The petitioner shall be
exempted from the payment of the docket and other
lawful fees when filing the petition. The court, justice
or judge shall docket the petition and act upon it
immediately.
SEC. 5. Contents of Petition. – The petition shall be
signed and verified and shall allege the following:
a. The personal circumstances of the petitioner;
b. The name and personal circumstances of the
respondent responsible for the threat, act or
omission, or, if the name is unknown or
uncertain, the respondent may be described
by an assumed appellation;
c. The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of
the respondent, and how such threat or
violation is committed with the attendant
circumstances detailed in supporting
affidavits;
d. The investigation conducted, if any,
specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as well
as the manner and conduct of the
investigation, together with any report;
e. The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and the
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
identity of the person responsible for the
threat, act or omission; and
f. The relief prayed for.
The petition may include a general prayer for other
just and equitable reliefs.
SEC. 6. Issuance of the Writ. – Upon the filing of the
petition, the court, justice or judge shall immediately
order the issuance of the writ if on its face it ought to
issue. The clerk of court shall issue the writ under the
seal of the court; or in case of urgent necessity, the
justice or the judge may issue the writ under his or
her own hand, and may deputize any officer or
person to serve it.
The writ shall also set the date and time for summary
hearing of the petition which shall not be later than
seven (7) days from the date of its issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the
Writ. – A clerk of court who refuses to issue the writ
after its allowance, or a deputized person who
refuses to serve the same, shall be punished by the
court, justice or judge for contempt without prejudice
to other disciplinary actions.
SEC. 8. How the Writ is Served. – The writ shall be
served upon the respondent by a judicial officer or by
a person deputized by the court, justice or judge who
shall retain a copy on which to make a return of
service. In case the writ cannot be served personally
on the respondent, the rules on substituted service
shall apply.
Sec. 9. Return; Contents. - Within FIVE (5)
WORKING DAYS after service of the writ, the
respondent shall file a verified written return together
with supporting affidavits which shall, among other
things, contain the following:
(a) The lawful defenses to show that the respondent
did not violate or threaten with violation the right to
life, liberty and security of the aggrieved party,
through any act or omission;
(b) The steps or actions taken by the possession to
determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the
threat, act or omission;
(c) All relevant information in the possession of the
respondent pertaining to the threat, act or omission
against the aggrieved party; and
(d) If the respondent is a public official or employee,
the return shall further state the actions that have
been or will still be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover and preserve evidence related to the
death or disappearance of the person identified in the
petition which may aid in the prosecution of the
person or persons responsible;
(iii) to identify witnesses and obtain statements from
them concerning the death or disappearance;
(iv) to determine the cause, manner, location and
time of death or disappearance as well as any
pattern or practice that may have brought about the
death or disappearance;
(v) to identify and apprehend the person or persons
involved in the death or disappearance; and
(vi) to bring the suspected offenders before a
competent court.
THE PERIOD TO FILE A RETURN CANNOT BE
EXTENDED EXCEPT ON HIGHLY MERITORIOUS
GROUND.
The return shall also state other matters relevant to
the investigation, its resolution and the prosecution of
the case.
A general denial of the allegations in the petition shall
not be allowed:
SEC. 10. Defenses not Pleaded Deemed Waived. —
All defenses shall be raised in the return, otherwise,
they shall be deemed waived.
Sec. 11. Prohibited Pleadings and Motions.- The
following pleadings and motion are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file opposition,
affidavit, position paper and other pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory orders
or interim relief orders; and
(l) Petition for certiorari, mandamus or prohibition
against any interlocutory order.
SEC. 12. Effect of Failure to File Return. — In case
the respondent fails to file a return, the court, justice
or judge shall proceed to hear the petition ex parte.
SEC. 13. Summary Hearing. — The hearing on the
petition shall be summary. However, the court,
justice or judge may call for a preliminary conference
to simplify the issues and determine the possibility of
obtaining stipulations and admissions from the
parties.
The hearing shall be from day to day until completed
and given the same priority as petitions for habeas
corpus.
SEC. 14. Interim Reliefs. — Upon filing of the petition
or at anytime before final judgment, the court, justice
or judge may grant any of the following reliefs:
(a) Temporary Protection Order. – The court, justice
or judge, upon motion or motu proprio, may order
that the petitioner or the aggrieved party and any
member of the immediate family be protected in a
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From the lectures of Atty. Vincent Paul Montejo
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government agency or by an accredited person or
private institution capable of keeping and securing
their safety. If the petitioner is an organization,
association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the
officers involved.
The Supreme Court shall accredit the persons and
private institutions that shall extend temporary
protection to the petitioner or the aggrieved party and
any member of the immediate family, in accordance
with guidelines which it shall issue.
The accredited persons and private institutions shall
comply with the rules and conditions that may be
imposed by the court, justice or judge.
(b) Inspection Order. — The court, justice or judge,
upon verified motion and after due hearing, may
order any person in possession or control of a
designated land or other property, to permit entry for
the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or
operation thereon.
The motion shall state in detail the place or places to
be inspected. It shall be supported by affidavits or
testimonies of witnesses having personal knowledge
of the enforced disappearance or whereabouts of the
aggrieved party.
If the motion is opposed on the ground of national
security or of the privileged nature of the information,
the court, justice or judge may conduct a hearing in
chambers to determine the merit of the opposition.
The movant must show that the inspection order is
necessary to establish the right of the aggrieved
party alleged to be threatened or violated.
The inspection order shall specify the person or
persons authorized to make the inspection and the
date, time, place and manner of making the
inspection and may prescribe other conditions to
protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its
issuance, unless extended for justifiable reasons.
(c) Production Order. – The court, justice or judge,
upon verified motion and after due hearing, may
order any person in possession, custody or control of
any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which
constitute or contain evidence relevant to the petition
or the return, to produce and permit their inspection,
copying or photographing by or on behalf of the
movant.
The motion may be opposed on the ground of
national security or of the privileged nature of the
information, in which case the court, justice or judge
may conduct a hearing in chambers to determine the
merit of the opposition.
The court, justice or judge shall prescribe other
conditions to protect the constitutional rights of all the
parties.
(d) Witness Protection Order. – The court, justice or
judge, upon motion or motu proprio, may refer the
witnesses to the Department of Justice for admission
to the Witness Protection, Security and Benefit
Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the
witnesses to other government agencies, or to
accredited persons or private institutions capable of
keeping and securing their safety.
SEC. 15. Availability of Interim Reliefs to
Respondent. – Upon verified motion of the
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respondent and after due hearing, the court, justice
or judge may issue an inspection order or production
order under paragraphs (b) and (c) of the preceding
section.
A motion for inspection order under this section shall
be supported by affidavits or testimonies of
witnesses having personal knowledge of the
defenses of the respondent.
SEC. 16. Contempt. – The court, justice or judge
may order the respondent who refuses to make a
return, or who makes a false return, or any person
who otherwise disobeys or resists a lawful process or
order of the court to be punished for contempt. The
contemnor may be imprisoned or imposed a fine.
SEC. 17. Burden of Proof and Standard of Diligence
Required. – The parties shall establish their claims
by substantial evidence.
The respondent who is a private individual or entity
must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed
in the performance of duty.
The respondent who is a public official or employee
must prove that extraordinary diligence as required
by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent public official or employee cannot
invoke the presumption that official duty has been
regularly performed to evade responsibility or liability.
SEC. 18. Judgment. — The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations in
the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise,
the privilege shall be denied.
SEC. 19. Appeal. – Any party may appeal from the
final judgment or order to the Supreme Court under
Rule 45. The appeal may raise questions of fact or
law or both.
The period of appeal shall be five (5) working days
from the date of notice of the adverse judgment.
The appeal shall be given the same priority as in
habeas corpus cases.
SEC. 20. Archiving and Revival of Cases. – The
court shall not dismiss the petition, but shall archive
it, if upon its determination it cannot proceed for a
valid cause such as the failure of petitioner or
witnesses to appear due to threats on their lives.
A periodic review of the archived cases shall be
made by the amparo court that shall, motu proprio or
upon motion by any party, order their revival when
ready for further proceedings. The petition shall be
dismissed with prejudice upon failure to prosecute
the case after the lapse of two (2) years from notice
to the petitioner of the order archiving the case.
The clerks of court shall submit to the Office of the
Court Administrator a consolidated list of archived
cases under this Rule not later than the first week of
January of every year.
SEC. 21. Institution of Separate Actions. — This Rule
shall not preclude the filing of separate criminal, civil
or administrative actions.
SEC. 22. Effect of Filing of a Criminal Action. – When
a criminal action has been commenced, no separate
petition for the writ shall be filed. The reliefs under
the writ shall be available by motion in the criminal
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From the lectures of Atty. Vincent Paul Montejo
4-MANRESA 2017-2018
case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
SEC. 23. Consolidation. – When a criminal action is
filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal
action.
When a criminal action and a separate civil action
are filed subsequent to a petition for a writ of amparo,
the latter shall be consolidated with the criminal
action.
After consolidation, the procedure under this Rule
shall continue to apply to the disposition of the reliefs
in the petition.
SEC. 24. Substantive Rights. — This Rule shall not
diminish, increase or modify substantive rights
recognized and protected by the Constitution.
SEC. 25. Suppletory Application of the Rules of
Court. – The Rules of Court shall apply suppletorily
insofar as it is not inconsistent with this Rule.
SEC. 26. Applicability to Pending Cases. – This Rule
shall govern cases involving extralegal killings and
enforced disappearances or threats thereof pending
in the trial and appellate courts.
SEC. 27. Effectivity. – This Rule shall take effect on
October 24, 2007, following its publication in three (3)
newspapers of general circulation.
In its context, the writ of amparo covers situations
where there are threats to life, liberty or security.
While the second section qualifies by stating that only
when it involves extra legal killings and enforced
disappearances or threats thereto- not all threats to
life, liberty or security. That was the ruling in the case
of Santiago vs Tulfo.
SANTIAGO vs TULFO
This involes Raymart Santiago and Claudine Barreto
who had a fight with the Tulfo brothers in the airport.
They were said to be threatening the Santiago
spouses. The Santiago spouses filed a petition for
writ of amparo. When it was eventually raised before
the SC, SC said that the denial of the petition was
correct. While there may have been a threat made to
the life or security, the threats were not in the form of
a threat to extra legal killings or enforced
disappearances. The SC reiterated that while the rule
on the writ of amparo was initially a rule by the SC, it
has since then been included in the statute in RA
9851 The Act of Crimes Against International
Humanitarian Law.
Under RA 9851, as ruled by the Supreme Court in
Navia vs. Pardico, the SC restated that the law
requires now certain annotations which must be
included in the petition. While the original rule as
promulgated by the SC provided for the detail of what
is to be included in the petition, RA 9851 included
some more. Therefore, any petition for writ of amparo
have to comply. It must have to allege aside from the
allegation that the person is missing, in case of
enforced disappearances. It must also allege that:
a. There must be an arrest or abduction in any form
of deprivation of liberty;
b. That it be carried out by or with the authorization,
support or acquiescence of the state or political
administration;
c.That it may follow the state or political
administration refusal to acknowledge or give
information over the body of the person subject to the
petition and that the intention for such refusal is to
remove the subject person from the protection of the
law for a prolonged period of time.
The same was reached in the case of Mison vs
Gallegos:
MISON vs GALLEGOS
Here the Bureau of Immigration issued an arrest
warrant for the deportation of an undesirable Korean.
The Korean filed a petition for writ of amparo which
the judge granted. Mison filed his petition before the
SC, and the SC stated that the grant of the judge
was erroneous because there was no enforced
disappearance. Correctly, the respondent was
arrested but there was no intention to conceal his
whereabouts or to remove him from the protection of
the law. The reason why he was arrested was
because of a valid arrest order for his eventual
deportation. While he may have been arrested, there
was no enforced disappearance in the context of writ
of amparo as well as RA 9851.
WRIT OF HABEAS DATA
Writ of habeas data, on the other hand, refers to the
right of privacy over life, liberty and security. It is not
about right of life, liberty or security per se but the
right to privacy. While it also involves private or public
persons just like the writ of amparo. It also involves
acts or omissions like the writ of amparo. The
respondents in the writ of habeas data must have to
be tasked or charged with the act of collecting,
gathering and storing of such information or data.
The object of the writ of habeas data is for the relief
as provided for by the rules which the petitioner
would want to either destroy or correct such data
gathered or stored if it should not have been stored to
begin with or if there are erroneous data gathered or
stored so they must be corrected.
You may have read in the news earlier this week, as
a response to the impeachment against the chief
justice, presumably one of the issues involved there
is the SALN. There has been a request from the
media for copies of the SALNs of the executive
officers. Apparently they have been made public but
most of them have been reduced. While they were
released, there are specific items or details in the
SALNs which were deducted-which cannot be read
therefore. Now there is a question of whether there is
a violation of the executive order issued by the
president on the freedom of information covering the
executive branch. Today the executive spokesperson
explained that there are still some areas that are not
clear with respect to the executive order of the
freedom of information as well as the Implementing
rules and Regulations for which they are still looking
into it.
Can any person ask for a petition or file a petition for
a writ of habeas data?
No. The petitioner in the writ of habeas data refers to
the person whose information is sought to be
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From the lectures of Atty. Vincent Paul Montejo
4-Manresa 2017-2018

protected. It is not a petition available to anybody

who would want information based on right of
information under the Constitution. So the proper
persons in this situation would be the members of the
executive family if they don’t want any of those items
in their SALNs made public, they may possibly file a
petition for writ of habeas data to protect the
information that may have been gathered and stored
and may affect the right to privacy to life, security or
liberty if it be made public.

Quick Comparison

Habeas Amparo Habeas Data

Corpus
As to Involuntary Involves life, Right to Privacy
Scope Detention liberty and of life, liberty
and restrain security is and security is
violated or violated or
threatened to be threatened to be
violated violated

As to Act of Act or omission Acts or omission

What is detaining which leads to of those persons
covered another violation of life, tasked with the
liberty and gathering,
security which collecting or
relates to extra storing of data
judicial killings or
enforced
disappearances

As to All involve public or private person, with a

who are qualification in Habeas Data that these persons are
covered tasked with the gathering, collecting or storing of
as data
Respon
dents
As to To To show For respondent to show
Relief require what actions of What information or
sought responde have been data have been
nt to taken to gathered and collected
show determine and kept and was
cause the fate and actions are made
why the whereabouts ensure security,
person of t he confidentiality or
detained person accuracy of the data or
should subject of information kept
not be the petition
released and the
identity of
the persons
responsible

- END - [A.S]

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