Meaning of the Bill of Rights

1. From the foregoing, it is not difficult to

understand that the Bill of Rights refers to the
declaration and enumeration of the
fundamental civil and political rights of a
person with the primary purpose of
safeguarding the person from violations by
the government, as well as by individuals and
group of individuals. It includes the
protection of the following rights:
(a) Civil rights or those rights belonging to
individuals by virtue of their citizenship, such
as freedom to contract, right to property, and
marriage among others;
(b) Political rights which are rights pertaining
to the citizenship of the individual vis--vis
the administration of the government, such as
right of suffrage right to hold office, and right
to petition for redress of wrong;
(c) Socio-economic rights or those which
ensure the well-being and economic security
of an individual; and
(d) Rights of the accused which refer to
protections given to the person of an accused
in any criminal case.
2. It must be noted that the restriction
provided in the Bill of Rights is directed
against the government, so that it does not
govern private relations. As far as the
Constitution is concerned, Article III can be
invoked only against the government.
Nonetheless, with the inclusion of almost all
the constitutional rights in Article 32 of the
Civil Code, the same may now be invoked in
civil cases involving relations between private
persons. Thus, the definition above indicates
that the bill of rights is a safeguard not just
against the abuses of the government but also
of individuals or group of individuals.

RIGHT TO DUE PROCESS AND EQUAL

PROTECTION
Life, Liberty, and Property

1. Constitutional Provision. Section 1, Article

III of the Constitution states 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. The provision speaks of due process
and equal protection.
2. Scope of Protection. The protection covers
all persons, whether citizens or aliens, natural
or juridical.
3. Meaning of Life, Liberty, and Property.
Due process and equal protection cover the
right to life, liberty, and property. It is
important therefore to know the meaning of
the three.
(a) Life. When the constitution speaks of right
to life, it refers not just to physical safety but
also to the importance of quality of life. Thus,
right to life means right to be alive, right to
ones limbs against physical harm, and,
equally important, right to a good quality of
life.[2] Life means something more than mere
animal existence.[3]
(b) Liberty. It includes negative and
positive freedom. Negative freedom means
freedom from, or absence of, physical
constraints, while positive freedom means
freedom to exercise ones faculties. Right to
liberty therefore includes the two aspects of
freedom and it cannot be dwarfed into mere
freedom from physical restraint or servitude,
but is deemed to embrace the right of man to
enjoy his God-given faculties in all lawful
ways, to live and work where he will, to earn
his livelihood by any lawful calling, to pursue
any vocation, and enter into contracts.[4]
(c) Property. It refers either to the thing itself
or right over the thing. As a thing, property is
anything capable of appropriation, and it
could be personal or real. As a right, it refers
to right to own, use, possess, alienate, or
destroy the thing. The constitution uses
property in the sense of right, and as such it
includes, among others, right to work, ones
employment, profession, trade, and other
vested rights. It is important to note however
that privileges like licenses are not protected

property; but they may evolve in a protected

right if much is invested in them as means of
livelihood. Public office is not also a
property; but to the extent that security of
tenure cannot be compromised without due
process, it is in a limited sense analogous to
property.[5]

4. Procedural due process requires,

essentially, the opportunity to be heard in
which every citizen is given the chance to
defend himself or explain his side through the
protection of general rules of procedure. It
contemplates notice and opportunity to be
heard before judgment is rendered.

5. These rights are intimately connected. For

example, if ones property right over
employment is taken away, the same will
adversely affect ones right to life since
quality of living is jeopardized. Consequently,
in the absence of property and a good quality
of life, the ability to do what one wants is
impeded.

In judicial proceedings, the requirements of

procedural due process are:[8]

6. Hierarchy of Rights. While the rights are

intimately related, they have a hierarchy. As
to their order of importance, right to life
comes first, followed by right to liberty, and
then right of property.

(a) An impartial or objective court or tribunal

with jurisdiction over the subject matter;
(b) Court with jurisdiction over the person of
the defendant or the property which is the
subject of the proceeding;
(c) Defendant given the opportunity to be
heard (requirement on notice and hearing);
and
(d) Judgment rendered after lawful hearing.

Due Process
1. Meaning. Due process of law is a
constitutional guarantee against hasty and
unsupported deprivation of some persons
life, liberty, or property by the government.
While is it true that the state can deprive its
citizens of their life, liberty, or property, it
must do so in observance of due process of
law. This right is the embodiment of the
supporting idea of fair play[6] and its
essence is that it is a law which hears before
it condemns, which proceeds upon inquiry
and renders judgment only after trial.[7]
2. When Invoked. The right is invoked when
the act of the government is arbitrary,
oppressive, whimsical, or unreasonable. It is
particularly directed against the acts of
executive and legislative department.
3. Two Aspects of Due Process. Due process
of law has two aspects: procedural and
substantive. Basically, the procedural aspect
involves the method or manner by which the
law is enforced, while the substantive aspect
involves the law itself which must be fair,
reasonable, and just.

Since some cases are decided by

administrative bodies, the Court also provides
requirements of procedural due process in
administrative proceedings. These
requirements, also known as seven cardinal
primary rights, are:[9]
(a) The right to a hearing, where a party may
present evidence in support of his case;
(b) The tribunal must consider the evidence
presented;
(c) The decision of the tribunal
must be supported by evidence;
(d) The evidence must be substantial.
Substantial evidence is such relevant evidence
as a reasonable mind might accept as
adequate to support a conclusion;
(e) The evidence must have been presented at
the hearing, or at least contained in the record
and known to the parties affected;
(f) The tribunal or body or any of its judges
must rely on its own independent

consideration of evidence, and not rely on the

recommendation of a subordinate; and
(g) The decision must state the facts and the
law in such a way that the parties are apprised
of the issues involved and the reasons for the
decision.
5. Notice and Opportunity to be Heard. What
matters in procedural due process are notice
and an opportunity to be heard.
(a) Notice. This is an essential element of
procedural due process, most especially in
judicial proceedings, because without notice
the court will not acquire jurisdiction and its
judgment will not bind the defendant. The
purpose of the notice is to inform the
defendant of the nature and character of the
case filed against him, and more importantly,
to give him a fair opportunity to prepare his
defense. Nevertheless, the notice is useless
without the opportunity to be heard.
(b) Opportunity to be Heard. It must be
emphasized that what is required is not
actual hearing but a real opportunity to be
heard.[10] If, for instance, a person fails to
actually appear in a hearing even though he
was given the chance to do so, a decision
rendered by the court is not in violation of
due process. Moreover, strict observance of
the rule is not necessary, especially in
administrative cases. In fact, in administrative
proceedings, notice and hearing may be
dispensed with for public need or for practical
reasons. It is also sufficient that subsequent
hearing is held if the same was not previously
satisfied.
6. Substantive due process requires that the
law itself is valid, fair, reasonable, and just.
For the law to be fair and reasonable it must
have a valid objective which is pursued in a
lawful manner. The objective of the
government is valid when it pertains to the
interest of the general public, as distinguished
from those of a particular class. The manner
of pursuing the objective is lawful if the
means employed are reasonably necessary
and not unduly oppressive.

7. Under the doctrine of void for vagueness, a

statute or law that is vague is void because it
violates the rights to due process. A statute is
vague when it lacks comprehensible standards
which men of ordinary intelligence must
necessarily know as to its common meaning
but differ as to its application. Such kind of
statute is opposed to the Constitution because
it fails to accord persons proper
understanding or fair notice, and because the
government is given unbridled freedom to
carry out its provision. For this doctrine to be
operative, however, the statute must be utterly
vague. Thus, if a law, for example, could be
interpreted and applied in various ways, it is
void because of vagueness. Corollary to this
is the doctrine of overbreadth which states
that a statute that is overly broad is void.
This is because it prevents a person from
exercising his constitutional rights, as it fails
to give an adequate warning or boundary
between what is constitutionally permissive
and not. If a law, for instance, prohibits a
bystander from doing any annoying act to
passersby, the law is void because annoying
act could mean anything to a passerby and as
such, overly broad.
Equal Protection
1. Meaning. The guarantee of equal protection
means that no person or class of persons
shall be deprived of the same protection of
the laws which is enjoyed by other persons or
other classes in the same place and in like
circumstances.[11] It means that all persons
or things similarly situated should be treated
alike, both as to rights conferred and
responsibilities imposed. The guarantee does
not provide absolute equality of rights or
indiscriminate operation on persons. Persons
or things that are differently situated may thus
be treated differently. Equality only applies
among equals. What is prohibited by the
guarantee is the discriminatory legislation
which treats differently or favors others when
both are similarly situated.
2. Purpose. The purpose of the guarantee is to
prohibit hostile discrimination or undue favor
to anyone, or giving special privilege when it
is not reasonable or justified.

3. Reasonable Classification. Well established

is the rule that reasonable classification does
not violate the guarantee, provided that the
classification has the following requisites:[12]
(a) It must be based upon substantial
distinctions;
(b) It must be germane to the purpose of the
law;
(c) It must not be limited to existing
conditions only; and
(d) It must apply equally to all members of
the class.
4. Example. In one case,[13] Section 66 of the
Omnibus Election Code was challenged for
being unconstitutional, as it is violative of the
equal protection clause. The provision
distinguishes between an elective official and
an appointive official in the filing of theire
certificate of candidacy. While elective
officials are not deemed resigned upon the
filing their certificates, appointive officials
are. The Supreme Court held that the law is
constitutional and not violative of equal
protection since the classification is valid.
The Court argues that elective office is
different from appointive office, in that the
mandate of the former is from the people,
while that of the latter is from the appointing
authority. The term of the elective officials
are likewise longer than that of the appointive
officials. Thus, the classification is adjudged
reasonable and valid.

review. There are three standards followed

by the court in judicial review, these are:
(a) Deferential review in which laws are
upheld to be valid or consistent to the
guarantee of equal protection when they are
rational and the classifications therein bear a
relation to a legitimate governmental interests
or purpose. In here the courts do not seriously
inquire into the substantiality of the interest
and possibility of alternative means to
achieve the objectives;
(b) Intermediate review in which the
substantiality of the governmental interest is
closely scrutinized as well as the availability
of less restrictive means or alternatives. This
standard is used if the classification involves
important but not fundamental interests; and
(c) Strict scrutiny in which the government is
required to show the presence of a compelling
government interest, rather than a mere
substantial interest, and the absence of a less
restrictive means for achieving the interest.
Upon showing of these requirements, the
limitation of a fundamental constitutional
right is justified. This standard is used if the
law classifies persons and limits others of
their exercise of fundamental rights.
ARRESTS, SEARCHES AND SEIZURES
Right against Unreasonable Searches and
Seizures

5. Discrimination against Aliens. Although

the protection extends to both citizens and
aliens, discrimination against aliens may be
held valid under certain circumstances. For
example, citizens by virtue of their
membership to the political community
possess complete civil and political rights,
while aliens do not have complete political
rights. The former can vote during elections,
run for public office, own real property, while
aliens cannot.

1. Constitutional Provision. Section 2, Article

III states that people have the inviolable right
to be secure in their persons, houses, papers,
and effects against unreasonable searches and
seizures of whatever nature and for any
purpose, and a search warrant or warrant of
arrest can only be issued upon showing of a
probable cause 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.

6. Review of Laws. If the laws are scrutinized

by the court, it said to be subject to judicial

2. Scope. The protection extends to all

persons, aliens or citizens, natural or juridical.

It is a personal right which may be invoked or

waived by the person directly affected[14]
against unreasonable arrests or searches by
the government and its agencies. It cannot,
however, be invoked against private
individuals.
Warrant of Arrest and Search Warrant
1. Generally, the right against unreasonable
searches and seizures requires that before a
person is arrested or a personal property
seized, it must be supported by a valid
warrant of arrest or a search warrant. The
exceptions are in cases of valid warrantless
arrests and searches.
2. A warrant of arrest is a written order of the
court, issued in the name of the Philippines,
authorizing a peace officer to arrest a person,
and put him under the custody of the court.
3. A search warrant is a written order of the
court, authorizing or directing a peace officer
to search a specific location, house, or other
premises for a personal property allegedly
used in a crime or may be utilized as a tool to
prove a crime.
Requisites of a Valid Warrant
1. Since as a general rule, an arrest or search
is reasonable when it is covered by a valid
warrant, it is thus important to know the
requisites a valid warrant. The Court
enumerates the requisites as follows:

insufficient, require additional evidence to

aid him in arriving at a conclusion as to the
existence of probable cause.[15] Thus,
personal determination does not mean that he
must personally examine the complainant and
his witnesses.[16] He may rely on reports and
evidence submitted to him, on the basis of
which he determines the existence of
probable cause and orders the issuance of
warrant. What is prohibited is to rely solely
on the recommendation of the prosecutors
without doing any determination on his own;
(c) The determination must be made after
examination under oath or affirmation of the
complainant and the witness he may produce;
and
(d) It must particularly describe the place to
be searched and the persons or things to be
seized. The property subject to search
includes those used in the commission of the
offense, stolen or embezzled and other
proceeds or fruits of the offense, or used or
intended to be used in the commission of the
offense.
2. General warrants are those that do not
particularly describe the place to be searched
or the persons or things to be seized. They are
unconstitutional because the sanctity of the
domicile and privacy of communication and
correspondence of individuals are placed at
the mercy, caprice, and passion of peace
officers.[17]
Warrantless Arrest

(a) It must be based upon a probable cause.

Probable cause refers to such facts and
circumstances which would lead a reasonably
discreet and prudent man to believe that an
offense has been committed and that the
objects sought in connect with the offense are
in the place sought to be searched;
(b) The probable cause must be determined
personally by the judge. That the judge
personally determines the probable cause
means that he personally evaluates the report
and the supporting documents submitted by
the public prosecutor regarding the existence
of the probable cause, or, if the same is

1. When Warrantless Arrest Valid. Arrest

without warrant is strictly construed as an
exception to the general rule requiring
warrant. Under the Rules of Court,[18] a
peace officer or a private person may arrest a
person even without a warrant under the
following instances:
(a) In flagrante delicto arrest. When, in his
presence, the person to be arrested has
committed, is actually committing, or is
attempting to commit an offense;

(b) Hot pursuit. When an offense, has in fact

just been committed, and he has personal
knowledge of facts indicating that the person
to be arrested has committed it; and
(c) Arrest of escaped prisoners. When the
person to be arrested is a prisoner who has
escaped from a penal establishment of place
where he is serving final judgment or
temporarily confined while his case is
pending, or has escaped while being
transferred from one confinement to another.
2. Citizen Arrest. It must be noted that a
lawful warrantless arrest may be performed
not just by a peace officer but also by a
civilian. This is permitted under the rules
under limited circumstances, and it is called
citizen arrest.
3. In the case of flagrante delicto arrest, an
offense is committed in the presence of the
arresting officer or civilian. For example, if a
person pushes illegal drugs in the presence of
a police officer, the latter can arrest the pusher
even without a warrant of arrest because an
offense is actually being committed in his
presence. The same principle underlies the
buy-bust or entrapment operations
conducted by police officers in catching law
offenders. In one case,[19] the Court held that
rebellion is a continuing offense, and so the
rebel may be arrested anytime even without a
warrant because he is deemed to commit the
offense in the presence of the arresting officer
or person.
4. Illegal Detention is the offense committed
by the arresting officer or civilian if the
warrantless arrest is performed outside the
above rules.
Warrantless Searches
A search is valid even without a warrant,
under the following instances:
(a) Search as an incident to a lawful arrest.
When a valid arrest precedes the search or
contemporaneous with it, and the search is
limited to the immediate vicinity of the place

of arrest, for purposes of securing dangerous

objects and effects of the crime;
(b) Consented search. When the right has
been voluntarily waived by person who has a
right, aware of such right, and has an actual
intention to relinquish such right;
(c) Plainview search. When prohibited
articles are within the sight of an officer who
has the right to be in a position to that view;
(d) Visual search at checkpoints. When the
search at stationary checkpoints is preannounced, and limited to a visual search
only;
(e) Terry search. When a police officer, in
interest of effective crime prevention,
performs a stop-and-frisk or patting of
outer clothing for dangerous weapons, after
observing a suspicious conduct on the part of
a citizen;
(f) Search of moving vehicles, vessels, and
aircrafts for violation of laws;
(g) Inspection of buildings and other premises
for the enforcement of fire, sanitary, and
building regulations; and
(h) Search in airports and other populous
places.
Administrative Searches and Arrests
1. In cases of deportation, where the State
expels an undesirable alien from its territory,
court intervention and proceedings are not
required. Nonetheless, the aliens
constitutional rights are still preserved
because they are given fair trial and
administrative due process.
2. Important to note is that no probable cause
is required in deportation proceedings.[20] It
is the Commissioner of Immigration or any
officer designated by him, not the judge, who
issues the administrative warrant, after
determination by the Board of Commissioners
of the existence of a ground for deportation.

RIGHT TO PRIVACY
Provisions and Laws on Right to Privacy
1. Constitutional Provisions. The right to
privacy is scattered throughout the Bill of
Rights.[21] The right against unreasonable
searches and seizures, in Section 2, is an
expression of this right, inasmuch as it is
based on the sacred right to be secure in the
privacy of ones person, house, paper, and
effects. Due process of law, in Section 1, also
provides the same privacy security by
protecting an individuals life, liberty, and
property against undue interference by the
government. Section 6 speaks of the right to
establish and change ones home which
likewise deals with the privacy and comfort
of ones home. The right to form unions or
associations under Section 8, and the right
against self-incrimination under Section 17
are also privacy rights which need protection
against undue intrusion by the government.
2. Nonetheless, the word privacy is
expressly provided in Section 3(1), Article III,
which states that 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. Privacy of
communication and correspondence is also an
expression of the right to privacy.
3. Statutory Reinforcements. To reinforce
these constitutional provisions, the Congress
has passed laws that recognize and protect the
zones of privacy of an individual. These laws
include: (a) The Civil Code of the
Philippines; (b) The Revised Penal Code; (c)
Anti-Wire Tapping Act; (d) The Secrecy of
Bank Deposits; and (e) Intellectual Property
Code.
Privacy of Communication and
Correspondence
1. Subject of the Right. Invasion of
communication and correspondence is one
kind of search.[22] However the subject of
search is not a tangible object but an
intangible one, such as telephone calls, text

messages, letters, and the like. These forms of

communication and correspondence may be
intruded into by means of wiretapping or
other means of electronic eavesdropping.
What the constitution prohibits is government
intrusion, by means of wiretapping or
electronic eavesdropping, into the privacy of
communication without a lawful court order
or when public safety and order does not
demand.
2. Rule. As a rule, the government cannot
intrude into the privacy of communication
and correspondence. The exceptions are: (a)
when the court allows the intrusion, and (b)
when public safety and order so demands.
Anti-Wire Tapping Act
1. R.A. 4200 or the Anti-Wire Tapping Act, as
a reinforcement of privacy of communication,
is a law which prohibits a person not
authorized by all the parties to any private
communication, to wire tap or use any devise
to secretly overhear, intercept, record, or
communicate the content of the said
communication to any person.
2. Wire tapping or the use of record may be
permitted in civil or criminal proceedings
involving specified offenses principally
affecting national security, and only with
previous authorization by the court which
must comply with the requirements of a
warrant. The authority is effective only for
sixty days.
Writ of Habeas Data
The writ of habeas data is a remedy available
to any person whose right to privacy in life,
liberty, or security is violated or threatened to
be violated by an unlawful act or omission of
a public official or employee, or of a private
individual or entity engaged in the gathering,
collecting or storing of data or information
regarding the person, family, home, and
correspondence of the aggrieved party.
Exclusionary Rule

1. The exclusionary rule states that any

evidence unlawfully obtained is inadmissible
as evidence before the courts. This is based
on Section 3(2), Article III which provides
that any evidence obtained in violation of
right to privacy of communication or right to
due process of law shall be inadmissible for
any purpose in any proceeding. The same rule
is applied to any evidence taken in violate of
R.A. 4200.
2. The rule is also called Fruit of the
Poisonous Tree Doctrine. The name of the
doctrine metaphorically describes what
happens to an evidence (fruit) taken
through unlawful means (poisonous tree).
The evidence-fruit is discarded because it
may infect or destroy the integrity of the case
and forfeit the purpose of the law.
3. For example, if police officers search a
house without a search warrant and the same
does not fall under any of the instances of a
valid warrantless search, the evidence
obtained even if material in the case cannot
be admitted in court. Or if police officers
wiretap a conversation without court
authorization, the recorded conversation shall
be excluded as an evidence in court. Thus, the
evidences are said to be fruits of a poisonous
tree.
FREEDOM OF EXPRESSION
Meaning and Scope
1. Constitutional Provision. Section 4, Article
III provides that no law shall be passed
abridging the freedom of speech, of
expression, or of the press, or the right of the
people peaceably to assemble and petition the
government for redress of grievances. The
right underscores tolerance to different views
and thoughts.

right to access to information on matters of

public concern, and freedom of religion.
These are all crucial to the advancement of
beliefs and ideas and the establishment of an
uninhibited, robust and wide-open debate in
the free market of ideas.[23]
3. Importance of the Right. Freedom of
expression is accorded the highest protection
in the Bill of Rights since it is indispensable
to the preservation of liberty and democracy.
Thus, religious, political, academic, artistic,
and commercial speeches are protected by the
constitutional guarantee.
4. Limitation. The right is not absolute. It
must be exercised within the bounds of law,
morals, public policy and public order, and
with due regard for others rights. Thus,
obscene, libelous, and slanderous speeches
are not protected by the guarantee. So are
seditious and fighting words that advocate
imminent lawless conduct.
Freedom from Prior Restraint and
Subsequent Punishment
1. Freedom of speech and of the press has two
aspects: (a) freedom from prior restraint, and
(b) freedom from subsequent punishment.
2. On the one hand, freedom from prior
restraint means freedom from censorship or
governmental screening of what is politically,
morally, socially, and artistically correct. In
here, persons and the media are freed from
total suppression or restriction by the
government of what could be disseminated,
and prevents the government from being a
subjective arbiter of what is acceptable and
not. Although the system of prior restraint is
presumed unconstitutional, it is allowed under
the following instances:[24]
(a) Undue utterances in time of war;

2. Aspects of the Right. Freedom of

expression has four aspects, to wit: (a)
freedom of speech; (b) freedom of
expression; (c) freedom of the press; and (d)
freedom of assembly. Nonetheless, the scope
of the protection extends to right to form
associations or societies not contrary to law,

(b) Actual obstruction or unauthorized

dissemination of military information;
(c) Obscene publication; and
(d) Inciting to rebellion.

3. On the other hand, freedom from

subsequent punishment refers to the assurance
that citizens can speak and air out their
opinions without fear of vengeance by the
government. Subsequent chastisement has the
effect of unduly curtailing expression, and
thus freedom therefrom is essential to the
freedom of speech and the press. The State,
however, can validly impose subsequent
punishment under the following instances:

depending on the specific circumstances of

the case. This rule is consistent with the
principle of maximum tolerance and is
often applied by the Court in freedom of
expression cases;
(c) Balancing of Interest Test which provides
that when there is conflict between a
regulation and freedom of speech, the court
has the duty to determine which of the two
demands greater protection;

(a) Libel which is the most common form of

subsequent punishment, refers to a public and
malicious imputation of a crime, vice or
defect, real or imaginary or any act or
omission, status tending to cause dishonor,
discredit or contempt of a natural or juridical
person, or blacken the memory of one who is
dead;[25]

(d) Grave-but-Improbable Danger Test which

was meant to supplant the clear and present
danger test, determines whether the gravity of
the evil, less its improbability to happen, can
justify the suppression of the right in order to
avoid the danger;[29]

(b) Obscenity which includes works (taken as

a whole) appealing to prurient interest or
depicting sexual conduct as defined by law or
lacking of serious literary, artistic, political or
scientific value;[26]

(e) OBrien Test which provides that when

speech and non-speech elements are
combined in the same course of conduct, a
sufficiently important government interest
that warrants the regulation of the nonspeech element can also justify incidental
limitations on the speech element; and

(c) Criticism of official conduct made with

actual malice;[27] and
(d) School articles which materially disrupt
class work or involves substantial disorder or
invasion of rights of others.[28]
Tests to Determine When Right Maybe
Suppressed
There are six tests or rules to determine when
the freedom may be suppressed. These are:
(1) Dangerous Tendency Test which provides
that if a speech is capable of producing a
substantive evil which the State is mandated
to suppress or prevent, even if it did not
materialize, the State is justified of restricting
the right. This rule has already been
abandoned;
(2) Clear and Present Danger Test which is a
more libertarian rule, provides that the finding
out of substantive evil is not enough to
suppress the right. Rather the substantive evil
must have clear and present danger type

(f) Direct Incitement Test which determines

what words are uttered and the likely result of
the utterance, that is, whether or not they will
directly incite or produce imminent lawless
action.
Restrictions on Freedom of Speech
1. Two Kinds of Restrictions. The State may
impose two kinds of restrictions on speech
under a system of prior restraint: contentbased restriction and content-neutral
restriction. The restriction is content-based
when restriction is directed to the speech
itself, while the restriction is content-neutral
when it is directed, not to the speech itself,
but to the incidents (such as time, place, or
manner) of the speech. An example of a
content-based restriction is when the
government prohibits speeches against the
President, in which case the restriction is on
the speech itself. An example of a contentneutral restriction is when the government
regulates the manner of posting campaign

advertisements, in which case the restriction

is on the manner the right is made.
2. Appropriate Tests for Each Restriction. If
the governmental restriction is content-based,
the applicable rule or test is the clear and
present danger test. This is to give the
government a heavy burden to show
justification for the imposition of such prior
restraint which bears a heavy presumption of
unconstitutionality. If the restriction is
content-neutral, the applicable rule is only an
intermediate approach, inasmuch as the
restraint is only regulatory and does not attack
the speech directly.

the inferred opinion is wrong, the comments

as justified. As long as the opinion might
reasonably inferred from the facts, it is not
actionable. In order to that such discreditable
imputation to a public official may be
actionable, it must either be a false
allegation or a baseless comment.[32]
2. Example. If a case of theft was filed against
a barangay official, and someone commented
that he maliciously stole things from the local
residents, the doctrine of fair comment is
applicable, inasmuch as the opinion was
based on such fact. In here, the comment is
justified.

3. Example. In one case, the court held that

the act of granting a permit to rally under the
condition that it will be held elsewhere is a
content-based restriction and not contentneutral because it is directed to the exercise of
the speech right itself and not merely to the
manner. As such, the applicable test is the
clear and present danger test.[30]

Commercial Speech

Regulations on Mass Media

2. But if the government has a substantial

interest to protect, even a truthful and lawful
commercial speech may be regulated.[34]

Mass media may be broadcast media (e.g.

television and radio) or print media (e.g.
newspaper). The two have a substantial
difference in that broadcast media has a
uniquely pervasive presence in the lives of
Filipinos. Thus, freedom of television and
radio broadcasting is somewhat lesser than
the freedom accorded to the print media;[31]
greater regulation is imposed over broadcast
media because of its greater tendency to
invade the privacy of everyone than print
media.
Doctrine of Fair Comment
1. Meaning. Under the doctrine of fair
comment, a discreditable imputation directed
against a public person in his public capacity,
does not necessarily make one liable.
Although generally every discreditable
imputation publicly made is deemed false and
malicious because every man is presumed
innocent until proven guilty, nevertheless, if
the imputation directed against a person in his
public is based on established facts, even if

1. Meaning. Commercial speech is one that

proposes a commercial transaction done in
behalf of a company or individual for
purposes of profit. It is a protected speech for
as long as it is not false or misleading and
does not propose an illegal transaction.[33]

3. Private speech is accorded more freedom

and protection than commercial speech.
Freedom of Assembly
1. Meaning. Freedom of assembly refers to
the right to hold a rally to voice out
grievances against the government.
2. Freedom not Subject to Prior Restraint. As
a rule, freedom of assembly is not subject to
prior restraint or prior issuance of permit by
government authorities. Nevertheless, it must
be exercised in such a way that will not to
prejudice public welfare. Freedom of
assembly is reinforced by Batas Pambansa
Blg. 880, otherwise known as the Public
Assembly Acts of 1985, which basically
provides the requirements and procedure for
holding rallies. It also implements the
observance of maximum tolerance towards
participants of rallies consistent with the clear
and present danger test.

3. Permit Requirement. Under the said law,

permit is required to hold a rally. It must be
emphasized, however, that the permit is not a
requirement for the validity of the assembly
or rally, because the right is not subject to
prior restraint. Rather, the permit is a
requirement for the use of the public place.
4. When Permit not Required. Permit is not
required if the rally is held in a private place,
in a campus of a state college or university, or
in a freedom park, in which case only
coordination with the police is required. If the
application for permit is not acted upon by the
mayor within two working days, then the
same is deemed granted.
5. Political rally during election is regulated
by the Omnibus Election Code, not by BP
880.
Right to Form Associations
1. Constitutional Provision. Section 8, Article
III provides that 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.
2. Who may Exercise the Right. The right of
association may be exercised by the
employed or the unemployed and by those
employed in the government or in the private
sector. It likewise embraces the right to form
unions both in the government and private
sector. The right of civil servants to unionize
is expressly provided in Section 2(5), Article
IX-B: The right to self-organization shall not
be denied to government employees. The
right of labor in general to unionize is
likewise provided in Section 3, Article XIII:
[The State] 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.
3. Right to Strike not Included. The right to
form associations or to self-organization does
not include the right to strike. Thus, public
school teachers do not enjoy the right to strike

even if they are given the constitutional right

of association.[35] The terms and conditions
of employment in the Government, including
in any political subdivision or instrumentality
thereof and government owned and controlled
corporations with original charters, are
governed by law and the employees therein
shall not strike for purposes of securing
changes.[36]
Right to Information
1. Constitutional Provision. Section 7, Article
III provides that the right of the people to
information on matters of public concern
shall be recognized. Access to official
records, and to documents and papers
pertaining to official acts, transactions, or
decisions, as well as to government research
data used as basis for policy development,
shall be afforded the citizen, subject to such
limitations as may be provided by law.
2. Scope and Limitation. The right guarantees
access to official records for any lawful
purpose. However, access may be denied by
the government if the information sought
involves: (a) National security matters,
military and diplomatic secrets; (b) Trade or
industrial secrets; (c) Criminal matters; and
(d) Other confidential information (such as
inter-government exchanges prior to
consultation of treaties and executive
agreement, and privilege speech).
FREEDOM OF RELIGION
Two Aspects of Freedom of Religion
1. Freedom of religion has two aspects: (a)
the freedom to believe, and (b) the freedom to
act on ones belief. The first aspect is in the
realm of the mind, and as such it is absolute,
since the State cannot control the mind of the
citizen. Thus, every person has the absolute
right to believe (or not to believe) in anything
whatsoever without any possible external
restriction by the government. The aspect
refers to the externalization of belief as it is
now brought out from the bosom of internal
belief. Since it may affect peace, morals,

public policy, and order, the government may

interfere or regulate such aspect of the right.

facilities in parochial schools for secular

activities;[46]

2. The second aspect is expressed in Section

5, Article III, thus 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.

(c) Religious instruction in public schools,

elementary and high school, at the option of
parents or guardians expressed in writing,
within regular class hours by designated
instructors, and without additional costs to the
government;[47]

Non-establishment Clause
1. Constitutional Provision. Section 5, Article
III provides that no law shall be made
respecting an establishment of religion, or
prohibiting the free exercise thereof.
2. Explanation. The non-establishment clause
holds that the State cannot set up a church or
pass laws aiding one religion, all religion, or
preferring one over another, or force a person
to believe or disbelieve in any religion.[37] In
order words, it prohibits the State from
establishing an official religion. It discourages
excessive government involvement with
religion and manifest support to any one
religious denomination. Manifestly, the clause
is rooted in the principle of separation of
church and state.
3. Particular Prohibitions. In particular, the
non-establishment clause prohibits, among
others, prayers of a particular denomination to
start a class in public schools,[38] financial
subsidy of a parochial school,[39] display of
the ten commandments in front of a
courthouse,[40] law prohibiting the teaching
of evolution,[41] mandatory reading of the
bible,[42] and using the word God in the
pledge of allegiance.[43]
4. Exceptions to the Prohibition. The clause,
however, permits the following:
(a) Tax exemption on property actually,
directly and exclusively used for religious
purposes;[44]
(b) Religious instruction in sectarian
schools[45] and expansion of educational

(d) Financial support given to priest, preacher,

minister, or dignitary assigned to the armed
forces, penal institution or government
orphanage or leprosarium;[48]
(e) Government sponsorship of town fiestas
which traditions are used to be purely
religious but have now acquired secular
character;[49] and
(f) Postage stamps depicting Philippines as
the venue of a significant religious event, in
that the benefit to religious sect is incidental
to the promotion of the Philippines as a
tourist destination.[50]
Tests to Determine whether Governmental
Act Violates Freedom of Religion
1. Different tests are used to determine if
there are governmental violations of nonestablishment clause and free exercise clause.
On the on hand, Lemon Test is used to
determine whether an act of the government
violates the non-establishment clause. Under
this test, a law or a governmental act does not
violate the clause when it has a secular
purpose, does not promote or favor any set of
religious beliefs, and does not get the
government too entangled with religion.[51]
2. On the other hand, Compelling State
Interest Test and Clear and Present Danger
Test are used to determine whether there is
violation of free-exercise clause. Compelling
state interest test is used to determine if the
interests of the State are compelling enough
to justify intrusion into an individuals
freedom of religion. Under this test,
government infringement is justified if the
burden it creates on freedom of religion is due
to a sufficiently compelling state interest and

the means used to attain its purpose is the

least intrusive. Clear and present danger test
is used to determine whether the circumstance
are of such nature as to create a clear and
present danger that will bring about a
substantive evil which the state has the right
to prevent.
3, Example. In one case,[52] the Court held
that expulsion from school is unjustified if is
based on the conflict between religious
beliefs and school practices (saluting the
flag). The expulsion violates the right of
children to education. Using the clear and
present danger test, the Court held that the
danger of disloyalty which the government is
trying to prevent may be the very same thing
that it advocates if expulsion is validated.
Times have changed. Freedom of religion is
now recognized as a preferred right.
Religious Solicitations
Under Presidential Decree No. 1564, also
known as the Solicitation Law, permit is
required before solicitations for charitable
and public welfare purposes may be carried
out. The purpose of the law is to protect the
public from fraudulent solicitations.
Nonetheless, permit is no longer required if
the solicitation is for religious purposes.
Fraud is much less in religion. If the law is
extended to religion, then it becomes
unconstitutional; it constitutes restriction on
freedom of religion as resources necessary for
maintenance are deprived of churches.
Conscientious Objector Test
A conscientious objector is someone who
sincerely claims the right to refuse to perform
military service[53] and salute a flag[54] on
the grounds of freedom of thought,
conscience, and/or religion. He may be
granted exemption from military service or
from saluting the flag if he establishes that his
objection is sincere, based on religious
training and belief, and not arbitrary.
LIBERTY OF ABODE AND RIGHT TO
TRAVEL

Freedom of Movement
1. Constitutional Provision. Section 6, Article
III provides that 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.
2. Aspects of the Freedom. Freedom of
movement has two aspects: (a) Freedom to
choose and change ones domicile, and (b)
Freedom to travel within and outside the
country. A persons place of abode or
domicile is his permanent residence.
Limitations
1. Freedom of movement is not an absolute
right. It has limitations. Liberty of abode may
be impaired or restricted when there is a
lawful court order.
2. The right to travel may also be restricted in
interest of national security, public safety, or
public health, or when a person is on bail, or
under a watch-list and hold departure order.
Right to Return to Ones Country
Although the right to return to ones country
is not among the rights expressly mentioned
in the Bill of Rights, it is nonetheless
recognized and protected in the Philippines. It
is a generally accepted principle of
international law, and as such it is part of the
law of the land, pursuant to the doctrine of
incorporation. It is different from the right to
travel and is guaranteed under the
International Covenant on Civil and Political
Rights.[55]
NON-IMPAIRMENT OF CONTRACTS
Contract Clause
1. Section 10, Article III provides that no
law impairing the obligation of contracts shall
be passed. This is the so-called contract
clause, which seeks to restrain substantial

legislative impairment of, or intrusion into,

the obligations of contracts. What the clause
guarantees is the integrity of contracts against
undue interference by the government.
2. For example, if a lawyer enters into a
contract with a client by which the latter will
pay 5% of the value of the monetary claim, a
subsequent law which deprives the lawyer of
the said value is arbitrary and unreasonable
since it is destructive of the inviolability of
contracts, and therefore invalid as lacking of
due process.[56]
Contracts Affected
1. Only valid contracts, either executed or
executory, are covered by the guarantee.
2. The agreement of the parties, as long as it
is valid, is the law between them. Their will
should prevail, and this must be respected by
the legislature and not tampered with by
subsequent laws. Well-established is the
policy that the subject of contractual
agreements is imbued with paramount public
interest.
Kind of Impairment Covered
1. For the clause to be operative, the
impairment caused by law must be
substantial. Substantial impairment happens
when the law changes the terms of a legal
contract between parties, either in the time or
mode of performance, or imposes new
conditions, or dispenses with those expressed,
or authorizes for its satisfaction something
different from that provided in its terms.[57]
In other words, the act of impairment is
anything that diminishes the value of the
contract.[58]
2. The cause of the impairment must be
legislative in nature. The obligation of
contract must be impaired by a statute,
ordinance, or any legislative act for it to come
within the meaning of the constitutional
provision.[59] An administrative order or
court decision is not included in the scope of
the constitutional guarantee.

3. In one case,[60] the Court held that a

Rehabilitation Plan approved by the
Securities and Exchange Commission which
suspends contractual claims against an
insolvent or bankrupt corporation does not
violate the contract clause. The impairment
must be legislative in character. SECs
approval of the plan is not a legislative act but
an administrative act. Thus, there is not
impairment of the freedom to contract.
Limitations
1. As between freedom of contract and police
power, police power prevails. Thus, laws
enacted in exercise of police power will
prevail over contracts. After all, private rights
and interest in contracts must yield to the
common good. Every contract affecting
public welfare is presumed to include the
provisions of existing laws and a reservation
of police power.
2. The supremacy of police power is felt most
clearly in labor contracts and agricultural
tenancy contracts. For instance, a law (Blue
Sunday Law) which provides for work or play
on a Sunday is upheld as valid even if it
nullifies existing labor contracts, since it is a
legitimate exercise of police power.[61] In
another case, a law (R.A. No. 34) changed the
crop-sharing system between the landlord and
tenants from 50-50 to 55-45 in favor of the
tenants. The Court held that the law is valid.
Consistent with the policy of social justice,
the law favored the tenants as well as the
general welfare of the people in exchange of
contractual rights.
3. The power of taxation and power of
eminent domain, inasmuch as they are also
sovereign powers of the state, can validly
impair obligations of contracts.
4. Licenses are different from contracts.
Licenses are franchises or privileges given by
the State to qualified entities that may be
withdrawn or relinquished when national
interests so require. However, like contracts,
they yield to police power.

LEGAL ASSISTANCE AND FREE

ACCESS TO COURTS
1. Constitutional Provision. Section 11,
Article III provides that free access to the
courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any
person by reason of poverty.
2. Protection for the Poor. Free access is a
right covered by the due process clause,
because a person, regardless of his status in
life, must be given an opportunity to defend
himself in the proper court or tribunal.
Nonetheless, the right is placed in a separate
provision to emphasize the desire for
constitutional protection of the poor.[62]
3. Litigation in Forma Pauperis. In
consonance with this constitutional provision,
the Rules of Court provide for litigation in
forma pauperis in which paupers and
indigents, who have only their labor to
support themselves, are given free legal
services and access to courts.
RIGHTS OF PERSONS UNDER
CUSTODIAL INVESTIGATION
Miranda Rights
1. Constitutional Provision. Section 12,
Article III enumerates the rights of a person
under custodial investigation for the
commission of an offense, to wit:
(a) Right to remain silent, right to have a
competent and independent counsel
preferably of his own choice, right to free
legal services if he cannot afford one, and the
right to informed of these rights. These rights
cannot be waived except in writing and in the
presence of counsel;
(b) Right against the use of torture, force,
violence, threat, intimidation, or any other
means which vitiate his free will. Prohibition
against secret detention places, solitary,
incommunicado, or other similar forms of
detention;

(c) Exclusion of any confession or admission

obtained in violation of this provision or the
right against self-incrimination as evidence
against him; and
(d) Sanctions against violators and
compensation for rehabilitation of victims.
2. Why called Miranda Rights. The present
provision is usually referred to as the
Miranda Rights because it is an adoption of
the rights provided in the American case
Miranda v. Arizona.[63]
Purpose of the Right
The provision emphasizes on the duty of law
enforcement officers to treat properly and
humanely those under investigation. It
recognizes the fact that the environment in
custodial investigations is psychologically if
not physically coercive in nature,[64] so that
law enforcers should be reminded of the
sanctity of individual rights and the
limitations on their means of solving crimes.
In fact, as far as the present provision is
concerned, the presumption of regularity of
official acts and the behavior of police or
prosecution is not observed if the person
under investigation was not informed.[65]
Custodial Investigation
1. This enumeration of rights above may be
invoked during custodial investigations.
Custodial investigation refers to any
questioning initiated by law enforcement
officers after a person has been taken into
custody. The rights are available when the
person interrogated is already treaded as a
particular suspect and the investigation is no
longer a general inquiry into an unsolved
crime. However, during this stage, no
complaint or criminal case has been filed yet.
As such, the person suspected to have
committed a crime is not yet an accused,
since no case was instituted against him.
2. During custodial investigations, suspects
are identified by way of show-ups, mug shots,
and line ups. Show-ups are done by bringing
the lone suspect face-to-face with the witness

for identification. Mug shots are performed

by showing photographs to witnesses to
identify the suspect. And in line ups, the
witness identifies the suspect from a group of
persons.
Extrajudicial Confession
1. Meaning. Extrajudicial consfession refers
to a confession or admission of guilt made
outside (extra) the court (judicial). It is a
critical area of study in Constitutional Law.
With respect to the present provision, it refers
to a confession given during a custodial
investigation, which is not judicial in nature.
Under the Miranda Rights, a person may
waive his right to remain silent and admit the
charge against him because anything that he
says may be used against him. However, the
waiver or confession must be valid to be
admissible as evidence against him.
2. Requisites for Validity. For an extrajudicial
confession to be valid and admissible as
evidence in court, it must be: (a) voluntary;
(b) made in the assistance of a competent and
independent counsel; (c) express; and (d) in
writing.
3. Involuntary Confession. There are two
kinds of involuntary confession: (a)
confession through coercion;[66] and (b)
confession without being informed of the
Miranda rights.[67] Both forms are invalid
and cannot be admitted as evidence against
the confidant, the confession considered as a
fruit of a poisonous tree. Extrajudicial
confessions must be given voluntarily.
However, there is a distinction between the
two. On the one hand, an extrajudicial
confession alleged to be taken through torture
or coercion is presumed voluntarily given and
valid since the law enforcers are presumed to
perform their duty regularly, so that the
complainant-suspect should prove that there
is torture to invalidate his confession. On the
other hand, a confession given without being
informed of the Miranda rights is presumed
involuntarily given, so that the law enforces
must prove its regularity.[68]

4. Assistance of Counsel. An extrajudicial

confession made in the absence of a counsel,
or even in his presence but without adequate
assistance, is also invalid and inadmissible.
The rule requires that the assisting counsel
must be independent and competent. For this
matter, a fiscal or a public prosecutor, who
represents the interest of the State, cannot
assist the suspect or person under
investigation. His interest is adverse to the
latter. Thus, even if competent, he cannot be
an independent counsel for the suspect.
5. A counsel from the Public Attorneys Office
is qualified to assist a person in executing an
extrajudicial confession, his interest not
adverse to the latter.
6. An extrajudicial confession to a mayor,
even if uncounselled, may be admissible.[69]
While a mayor has power of supervision over
the police, an admission to him, not in the
capacity of a law enforcer, is deemed freely
given. The uncounselled admission to him
does not violate the right to legal assistance
and therefore the confession is admissible as
evidence against the confidant. In addition,
extrajudicial confession to a media man who
is acting as a news reporter and not under the
supervision of the police, is admissible.
7. Because of the inherent danger of using
information from broadcast media, extreme
caution must be taken in further admitting
similar evidence or confession. There is
presumption of voluntariness in confessions
which media describes as freely given. They
must be strictly scrutinized.
RIGHT TO BAIL
Meaning of Right
1. Constitutional Provision. Section 13,
Article III provides that all persons, except
those charged with offenses punishable by
reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by
sufficient sureties, or be released on
recognizance as may be provided by law. The
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.
2. Meaning of Bail. Bail refers to the security
given for the temporary release of a person in
custody of the law, furnished by him or a
bondsman, conditioned upon his appearance
before any court as may be required. For
instance, a person arrested and detained for
the offense of homicide may post a bond for
his temporary release on the condition that he
will appear in the court during the trial or
when the court so requires.
3. Purpose of Bail. Probational release
through bail is corollary to the right to be
presumed innocent and a means of
immediately obtaining liberty.[70] During the
duration of release, the accused is given the
chance to prepare his defense,[71] and thus
level the playing field for the parties. Worth
emphasizing is the reason why those charge
with offenses punishable by reclusion
perpetua and against whom evidence of guilt
is strong, are not allowed to bail. Under such
circumstances, there is improbability of
appearance, and bail merely becomes an
instrument of evading the law.
Standards for Fixing Amount of Bail
1. The law does not prescribe for a fix amount
of bail. What it requires is that the amount
should be reasonable and not excessive
otherwise the right is rendered useless. Under
the Rules of Court, the amount is reasonable
if the judge bases it primarily, but not
exclusively, on the following guidelines:[72]
(a) Financial ability of the accused;
(b) Nature and circumstances of offense;
(c) Penalty for offense charged;
(d) Character and reputation of accused;
(e) Age and health of the accused;
(f) Weight of evidence against him;
(g) Probability of his appearance at trial;

(h) Forfeiture of other bonds by him;

(i) The fact that he is a fugitive from justice
when arrested; and
(j) Pendency of other cases where he is also
under bail.
When Right May be Invoked
1. General Rule. The right to bail may be
invoked from the moment of detention or
arrest. Even if no formal charges have been
filed yet, for as long as there is already an
arrest, the right may already be availed of.
2. Bail as a Matter of Right. Bail may be
invoked as a matter of right if the charge is
not punishable by reclusion perpetua and
there is no final judgment of conviction yet.
Technically, the instances when bail is a
matter of right are: (a) Before or after
conviction by the MTC; and (b) Before
conviction of the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment.
3. Bail as a Matter of Discretion. Bail may be
invoked as a matter of discretion on the part
of the court in the following instances:
(a) After conviction by the RTC of an offense
not punishable by death, reclusion perpetua
or life imprisonment;
(b) Pending appeal subject to the consent of
the bondsman; and
(c) After conviction, pending appeal when the
court imposed a penalty of imprisonment for
more than six years but not more than twenty
years, and it is not shown that the accused
repeated a crime, an escapee, committed an
offense while under the custody of the
probational release, or had the tendency of
flight or to commit another offense.
3. Right not Suspended. The present
constitutional provision clearly provides that
the right to bail is not suspended when the
President suspends the privilege of the writ of
habeas corpus. While bail and habeas corpus

are remedies intended for the immediate

release of a detainee, there are fundamental
differences between them so that the
suspension of one does not mean the
suspension of the other. Firstly, in bail, there
is an implicit recognition of the validity of
detention or arrest, while in habeas corpus,
there is an assumption that the detention or
arrest is illegal. And secondly, the prayer in
bail is for the temporary release of the
detainee, whereas in habeas corpus, the
prayer is for permanent release.
When the privilege of habeas corpus is
suspended, the remedy of immediate release
cannot be availed of (although filing is still
allowed). Under the current rules, if the
detainee files a bail for his temporary release,
then it moots the purpose of habeas corpus,
because it destroys the assumption of
illegality of the arrest or detention.

when there are coup attempts. Allowing them

to bail could mean resumption of widespread
commission of heinous activities.
Mandatory Hearing
When the offense charged is punishable by
reclusion perpetua, before rendering a
judgment, due process demands that the court
must conduct a mandatory hearing to
determine if evidence of guilt is strong. This
is one of the instances when bail is a matter of
discretion. But if the prosecutor simply
manifested that he leaves it to the sound
discretion of the judge to grant bail and the
judge grants the same without hearing, then
the judge commits an error because he cannot
repose solely on the prosecutor his decision.
Even if there is no objection, there must be a
hearing.[76]
RIGHTS OF THE ACCUSED

4. The law still allows those who jumped bail

to exercise the right before conviction for as
long as bail is still a matter of right. What the
court must do in such cases is to increase the
amount of bail.
5. Bail is now available in extradition[73]
cases, consistent with the developments in
international law which now treats an
individual as a subject or party.[74]
When Right May not be Invoked
1. It could be inferred from the present
provision that the right to bail may not be
invoked if the offense for which the person is
detained is punishable by reclusion perpetua
and the evidence of guilt is strong.
2. Important also to note is that the military
may not invoke the right to bail.[75] Among
other reasons, allowing military members to
bail would pose a great danger to national
security. They are allowed to use firearms and
they are paid using government money. Their
sheer number and unique structure, as well as
the military mentality that they carry, may
very well result to the overthrow of the
government if continuous allowance of the
right to bail is given them most especially

Criminal Cases
1. Section 14, Article III deals with the rights
of the accused. It contemplates a scenario
where a case has already been filed against a
person, in contrast to custodial investigations
where a case may not have been filed yet. The
case filed is a criminal case, in which the
parties are the People of the Philippines and
the accused. The People of the Philippines
is the complainant, while the accused is the
person formally charged of a crime or offense
punishable by law.
2. A case is said to be criminal when it
involves the prosecution of a crime by the
State and the imposition of liability on erring
individuals. It highlights the relation of the
individual and the state, with the state having
the right to inflict punishment to an offender
once his guilt is proven beyond reasonable
doubt.
3. The real offended party or victim in a
criminal case is the State or the People of the
Philippines, and not the private complainant.
This is because what has generally been
violated is the law of the Philippines which
provides protection to the people and

guarantees peace and order in the land.

Violation of the law poses danger not just to a
private person, but to the people as a whole,
and is a threat to the sovereignty of the State.
4. The accused, who is the person charged in
a criminal case, is pitted against the State.
With all its machineries, manpower, and
almost unlimited sources of money, the State
is placed in an advantaged position. To level
therefore the playing field, the Constitution
provides for numerous rights of the accused
and of persons under investigation. Justice
demands that they should be given a fighting
chance against the most power institution,
which is the State.
Criminal Due Process
1. Constitutional Provision. Section 14(1),
Article III provides that no person shall be
held to answer for a criminal offense without
due process of law.
2. The provision refers to due process in
criminal cases. As to its procedural aspect,
criminal due process requires that: (a) The
accused is brought into a court of competent
jurisdiction; (b) He is notified of the case; (c)
He is given the opportunity to be heard; and
(d) There is a valid judgment deliberated and
rendered by the court.[77] As to its
substantive aspect, the criminal cases must be
based on a penal law.

so-called trial by publicity. When preliminary

investigations are held for purposes of
determining whether an information or a case
should be filed against the respondent, the
investigating prosecutor should not be swayed
by the circumstances of pervasive and
prejudicial publicity. It was held that
prejudicial publicity may be invoked as denial
of due process if it prevents the observance
of those decencies or requirements of
procedural due process.[78]
5. A military court has its own unique set of
procedures consistent with the nature and
purpose of the military. Because of its distinct
features, a military court cannot try and
exercise jurisdiction, even during martial law,
over civilians for offenses allegedly
committed by them as long as civilian courts
are still open and functioning.[79] Due
process therefore demands that civilians can
only be tried for an offense in civilian courts
and not in military courts, unless no civilian
court is available.
Rights of the Accused during Trial
1. Constitutional Provision. Section 14(2),
Article III enumerates rights of the accused in
all criminal prosecutions, to wit:
(a) Right to be presumed innocent until the
contrary is proved;
(b) Right to be heard by himself and counsel;

3. The right to appeal is not a constitutional

right. It is a statutory right granted by the
legislature. But when it is expressly granted
by law, then it comes within the scope of due
process.
4. Criminal due process requires impartiality
or objectivity on the part of the court.
Although a separate right to impartial trial is
granted in Section 14, paragraph 2 of the Bill
of Rights, it refers only to the right of the
accused during trial. Impartiality in criminal
due process (Section 14, paragraph 1) is
broader since it extends to preliminary
investigations conducted before the filing
criminal cases in court. One of the instances
wherein impartiality is compromised is the

(c) Right to be informed of the nature and

cause of the accusation against him;
(d) Right to have a speedy, impartial, and
public trial;
(e) Right to meet the witnesses face to face;
and
(f) Right to have compulsory process to
secure the attendance of witnesses and the
production of evidence in his behalf.
2. Criminal Prosecution. These are rights of
the accused in criminal prosecutions. Under
the Rules, criminal proceedings start from

arraignment up to the rendition of final

judgment by the court. Arraignment refers to
that stage of the criminal proceeding when the
information is read to the accused to which he
pleads guilty or not guilty. The proceeding
continues until a final judgment is entered by
the court. The judgment is final when there is
nothing for the court to do but to execute it.
Thus, during this duration the accused can
invoke the said rights under the proper
circumstances.
Right to be Presumed Innocent
1. Meaning. The right refers to the
constitutional guarantee that the accused
should be treated as if innocent until he is
proven guilty beyond reasonable doubt.
2. Presumption of Innocence and Criminal
Due Process. Basically, the rights in Section
14(2) are elaborations of criminal due
process. The right to presumption of
innocence, for instance, is based on the
fundamental procedural rule that the court
must hear first before it condemns. If what the
court presumes is the guilt of the accused,
then procedural due process is violated. In
fact, the accused is already in a disadvantaged
position since he is pitted against the State.
Presumption of guilt renders the rights of the
accused nugatory. To protect therefore
individual rights, in particular ones liberty, it
should be the State that proves the guilt of
accused, and not that the accused proves his
innocence. It is the prosecution (State) who
has the burden of overcoming the
presumption of innocence. It should rely on
its own merits and not on the weakness of the
defense.
2. When Presumption is Overcome. The
presumption of innocence is overcome by
proof beyond reasonable doubt. Under the
rules of evidence, proof beyond reasonable
doubt is the highest quantum of evidence.
Such proof requires that the court is morally
certain that the accused is guilty of the crime,
so that if there is reasonable doubt that lurks
in the mind of the judge, the accused must be
acquitted. When the defense creates
reasonable doubt, the presumption of

innocence remains. It must be noted that the

certainty required by law is not absolute
certainty but moral certainty as to every
proposition of proof requisite to constitute the
offense.[80]
3. Why Right is Granted. The philosophy
behind the very high quantum of evidence to
establish the guilt of the accused is expressed
by the court as follows: It is better to acquit
a person upon the ground of reasonable doubt
even though he may in reality be guilty, than
to inflict imprisonment on one who may be
innocent.[81]
4. Presumption of Guilt. The law and rules,
however, allow that presumption of innocence
may be overcome by another presumption
through prima facie evidence. Prima facie
evidence means an evidence deemed
sufficient unless contradicted. The is based on
logic and human experience. When the
prosecution, for instance, establishes that the
stolen object is in the possession of the
accused, it creates a prima facie evidence that
the accused committed the crime of theft. The
presumption of innocence is overturned, and
the evidence creates a prima facie proof of
the guilt of the accused. This does not,
however, mean that the presumption of
innocence is finally overcome. The burden of
proof simply shifts from the prosecution to
the defense (side of the accused) who will in
turn present contradictory evidence to
overcome the prima facie proof.
Right to be Heard by Himself and
Counsel
1. Right to be Heard. The right to be heard is
the heart of criminal due process. Basically, it
refers to all the mechanisms afforded to the
accused during the criminal proceedings. It is
a safeguard against prejudicial and partial
judgments by the courts, as well as a
guarantee that the accused be given an
opportunity to participate during trial in
defense of himself.
2. Related Rights. Participation of the accused
in the right to be heard includes three specific
rights: (a) the right to present evidence and to

be present at the trial; (b) the right to be

assisted by counsel; and (c) the right to
compulsory process to compel the attendance
of witnesses in his behalf.[82]
3. Ratio of Right to Counsel. The right of the
accused to counsel is based on the reason that
only a lawyer has a substantial knowledge of
the rules of evidence, and a non-lawyer, in
spite of his education in life, may not be
aware of the intricacies of law and procedure.
Depriving a person of such right constitutes
violation of due process.
4. Related Right. Included in the right to
counsel is the duty of the court to inform the
accused of his right to counsel before
arraignment and to give a counsel in case the
accused cannot afford the services of one.
The counsel representing the accused must be
independent and competent. A counsel who
has a divided interest between the prosecution
(State) and the defense (accused) is
disqualified on the ground of lack of
independence and conflict of interest.
Right to be Informed of Nature and Cause
of Accusation
1. Right to be informed is again an essential
aspect of procedural due process. The
constitutional mandate is complied with by
the arraignment of the accused in which he is
informed by the court of the offense charged
to which the accused either pleads guilty of
not guilty.
2. Well-settled is the rule that the allegations
in the complaint and not the title of the case
that determines the nature of the offense.
Right to Speedy, Impartial and Public Trial
1. Right to speedy trial is based on the
maxim that justice delayed is justice
denied. Unreasonable delays may result to a
prolonged suffering of an innocent accused or
an evasion of justice by a truly guilty person.
It offends not just the accused but also the
State, inasmuch as what is at stake is the
speedy, inexpensive, and orderly
administration of justice. Undue

postponements not only depletes the funds of

the defense but also of prosecution. Thus, if
the prosecution unreasonably delays the
criminal proceedings because of too many
postponements and unjustifiable absences, the
accused may be acquitted on the ground of
violation of right to speedy trial. This does
not, however, mean that the court cannot
grant reasonable postponements. What is
prohibited is oppressive and vexatious
postponements.
2. Right to impartial trial primarily requires
that the judge who sits in the case must be
objective and renders a decision based on the
cold neutrality of the evidence presented. For
instance, a judge who is hostile to the accused
based on his comments and utterances, or
who is substantially swayed by the prejudicial
publicity of the case, is a partial judge and
must be inhibited from the case.
3. Right to public trial demands that the
proceedings be conducted in such a way that
the public may know what transpires during
the trial. It is not necessary that the entire
public can witness the proceedings; it is
enough that the relatives and friends of the
interested parties are accommodated in the
trial venue. In fact, the court is allowed under
the rules to order the public to leave the
premises of the court room in interest of
morality and order.
Right to Meet the Witnesses Face-to-Face
The right to confrontation enables the accused
to test the credibility of the witnesses. The
right is reinforced under the rules of criminal
procedure by the so-called cross-examination.
Cross-examination is conducted after the
presentation and direct examination of
witnesses by the opposing side. Both parties
are allowed to test the veracity of the
testimonies presented by the other.
Right to Compulsory Process
1. Reason for the Right. The form of criminal
proceeding is adversarial because two
opposing parties battle out against each other
and only one of them could emerge as victor.

It is often the case that the party with the

weightier evidence wins. In criminal
proceedings, the accused needs only to create
reasonable doubt on the mind of the court to
be acquitted. Nevertheless, evidence is
difficult to find because of peoples anxiety in
testifying in court as well as their dislike for
burdensome court processes. In recognition
therefore of this fact, the law and the rules
give the accused the right to avail of
compulsory means for attendance of
witnesses and production of needed document
or things.

3. When Right not Waivable. It must be noted

that the presence of the accused becomes a
duty, and therefore not waivable, in the
following: (a) During arraignment and plea;
[84] (b) When he is to be identified;[85] (c)
During the promulgation of judgment, except
when it is for a light offense.[86] In all these
instances, the accused must appear because
his non-appearance may either prejudice his
rights or that of the State.

2. Kinds of Compulsory Processes. When the

person sought to testify is uncooperative or
just afraid of court-related actions, the remedy
of subpoena ad testificandum may be availed
to compel the person to testify. When relevant
documents are needed but the holder thereof
refuses to produce them, the remedy of
subpoena duces tecum may be availed of to
compel the production of the same.[83] These
remedies are also available to the prosecution.

1. Constitutional Provision. Section 15,

Article III states that 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. This is a
reiteration of Section 18, Article VII. What is
constitutionally guaranteed is the right of a
person detained by another to test or
challenge, through habeas corpus, the validity
of his detention when the authority of the
detaining person or agency is at issue.

PRIVILEGE OF THE WRIT OF HABEAS

CORPUS

Right to be Present
1. Meaning and Purpose of the Right. As a
rule, the accused has the right to be present at
all stages of trial, from arraignment to
rendition of judgment, in order that he may be
informed of what transpires in every stage of
the proceedings, to guard himself from
technical blunders, and ultimately, to fully
defend himself from the accusation against
him. Thus, it is again an incident of criminal
due process.
2. Waiver of Right. Right to be present,
inasmuch as it is a right, may be waived by
the accused. For as long as it does not
prejudice others, rights may be waived by its
possessor. An example of a valid waiver of
the right to be present is the so-called trial in
absentia. Even in the absence of the accused,
trial may still proceed (trial in absentia) if
after his arraignment and notification of the
date of the hearing, he still unjustifiably failed
to appear. The effect of the waiver is that the
accused will no longer have the right to
present evidence and confront the witnesses.

2. The writ of habeas corpus is a written order

issued by the court directed to a person
detaining another commanding him to
produce the body of the prisoner at a
designated time and place, with the day and
cause of his capture and detention, to do, to
submit to, and to receive whatever court or
judge awarding the writ shall consider in his
behalf. When a person is illegally confined or
detained, or when his liberty is illegally
restrained, he has the constitutional right to
file a petition of habeas corpus. Should the
court find out that the person is illegally
confined or detained, he shall be immediately
released from detention.
3. When Privilege Suspended. The privilege
of habeas corpus is suspended in cases of
rebellion or invasion. This is in order to meet
the exigencies in such cases.
4. Writ of Amparo. Aside from the writ of
habeas corpus, the writ of amparo is another
available remedy to any person whose right to
life, liberty, and security has been violated or
threatened to be violated by an unlawful act

or omission of a public official or employee,

or of a private individual or entity. This
remedy is especially available in cases of
enforced disappearances and extrajudicial
killings.
RIGHT TO SPEEDY DISPOSITION OF
CASES
Section 16, Article III states that all persons
shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial,
or administrative bodies. Unlike the right to
speedy trial which applies only in criminal
proceedings, the right to speedy disposition of
cases may be invoked in all cases, whether
judicial, quasi-judicial, or administrative.
Thus, right to speedy disposition of cases is
broader than right to speedy trial.
RIGHT AGAINST SELFINCRIMINATION
Meaning of Right against SelfIncrimination
Section 17, Article III provides that no
person shall be compelled to be a witness
against himself. This constitutional
guarantee is better known as right against
self-incrimination. The right allows a person
not to answer an incriminating question. An
incriminating question is one that if answered
renders a person liable for an offense.
However, it is only when the incriminating
question is put to a witness stand that the right
may be invoked.
When Right Available
1. The right is available in all government
proceedings, whether criminal or civil, and
whether judicial or quasi-judicial or
administrative. It is even available in
legislative investigations and impeachment
proceedings. In addition, the right may be
invoked by all persons subject to judicial
examination and legislative investigation.
Thus it may be invoked not just by the
accused in criminal cases, but also defendants
in civil cases, and witnesses in all kinds of
proceedings.

2. The right, nonetheless, is not selfexecuting. It is not automatically operational

once an incriminating question is asked. It
must be properly invoked by objecting to an
incriminating question. For example, when a
witness is subjected to direct examination by
the opposing party, and the opposing counsel
asked was there an instance that you cheated
on your wife?, the right may be invoked by a
timely objection to the incriminating
question. If no objection is raised, then the
answer may be used as evidence against the
witness for the proper criminal charge.
3. Although all persons subject to judicial,
quasi-judicial, administrative, and legislative
investigations can invoke the right under
proper circumstances, special utilization of
the right is given to the accused. A witness
can invoke the right only when the question
tends to be self-incriminating, but an accused
can invoke the same in two ways. First is by
refusing to testify altogether during trial. And
the second is, when he chooses to testify, by
refusing to answer questions that tend to
incriminate him for another offense.
4. In criminal proceedings what is prohibited
is physical or moral compulsion to extort
communication from the accused. Subjecting
the body of the accused when material to
solve the case is allowed and not violative of
the right. In one case, the Court held that
writing is not a pure mechanical act but
requires the use of the intellect. Thus, an
accused cannot be compelled to write or sign
and use the same as evidence against him.
5. State witnesses cannot avail of the right
because the very purpose of their being state
witnesses is to give them immunity or
protection to testify. Their testimonies are so
crucial to the resolution of a criminal case so
that in attainment thereof immunity is given
to them by the State. This means that they
will no longer be prosecuted for the crime for
which they are testifying. Since they have to
unravel everything, even their guilt, in
exchange of immunity, the right against selfincrimination could no longer be invoked.
Basis of the Right

1. The philosophy behind the constitutional

guarantee is similar to the other rights of the
accused. From the very start, the accused is
already in an adverse position pitted against
the entire machinery of the State. If evidence
will still be taken from the lips of the accused,
it would even tilt the scales heavily in favor
of the State.
2. The right is founded on public policy and
humanity.[87] Public policy demands that a
person be spared from answering
incriminating questions because requiring
him would likely lead to the crime of perjury,
which is basically lying to the court after
having promised to tell the truth and nothing
but the whole truth. Humanity prevents
extorting confession by duress.
RIGHT AGAINST INVOLUNTARY
SERVITUDE

person, because of poverty or lack of money,

works for another in payment of his debt, the
same is prohibited by the present guarantee
even if the service is rendered voluntarily.
This voluntary service in payment of debt is
called peonage. While it appears voluntary,
peonage is prohibited because the person is
forced to work by the circumstances of his
indebtedness, although not by his creditor.
2. Exceptions. Involuntary servitude may be
allowed under the following instances: (a) as
punishment for crime; (b) in the case of
personal, military or civil service in defense
of the State; and (c) in compliance to a return
to work order issued by the Department of
Labor and Employment.
RIGHT AGAINST EXCESSIVE FINES
AND CRUEL PUNISHMENTS
Meaning of Excessive Fine and Cruelty

1. Constitutional Provision. Section 18,

Article III provides that no person should be
detained solely by reason of his political
beliefs and aspirations, nor should
involuntary servitude in any form exist,
except as a punishment for a crime. The first
part of the provision deals with the right not
to be detained by reason solely of political
beliefs and aspirations. This is essentially
embodied in the freedom of expression but
with emphasis on the prohibition against
incarceration of political prisoners. The
second part deals with the right against
involuntary servitude. Involuntary servitude
refers to the compulsory service of another or
simply modern day slavery. The right is based
on the egalitarian principle of democracy
which prescribes equality of everyone in law,
and on humanity which prevents degradation
of human dignity through enforced labor.
2. Slavery is an ancient practice of treating
man as a commodity under the complete
power of the master. This has never been
practiced in the Philippines, but has its
remnants in modern forms of enforced labor
and peonage. Enforced labor happens when a
person is unlawfully compelled to work
against his will; it is involuntary and to a
certain extent resembles slavery. When a

1. Constitutional Provision. Section 19(1),

Article III states that excessive fines shall
not be imposed, nor cruel, degrading or
inhuman punishment inflicted
2. A fine is excessive when it is unreasonable
and beyond the limits prescribed by law. The
amount of the fine is said to be unreasonable
if the court does not take into consideration
certain standards, such as the nature of the
offense, and the circumstances of the person
punished by fine. The imposed fine may
never go beyond the statutory prescription,
otherwise it is unlawfully excessive.
3. A punishment is cruel when it is shocking
to the conscience of mankind and it involves
prolonged suffering and agony to the person
punished. For a penalty to violate the
constitutional guarantee, it must be so flagrant
and oppressive so as to be degrading to
human dignity, and it must be unreasonably
disproportionate to the nature of the offense
as to shock the senses of the community.[88]
The mere severity of a penalty does not make
the punishment cruel or inhumane, for as long
as it is within the limits provided by law. As
one maxim states, even if the law is harsh, it
is still the law (dura lex sed lex). A penalty

that is germane to purpose of the penal law is

not cruel and inhumane.
4. Lastly, a penalty must be acceptable to the
contemporary society. Ancient forms of
punishment, such as pillory, disembowelment,
and crucifixion, which are already considered
barbarous practices, are cruel and inhumane.
If a person, for instance, is paraded around
town naked with a tag on his neck saying I
am a thief; do not imitate me, the form of
punishment is cruel and inhuman; it is
barbarous and so ancient that it is no longer
acceptable to the present-day society.
Death Penalty
1. Constitutional Provision. Section 19(2)
also states that neither shall death penalty
be imposed, unless, for compelling reasons
involving heinous crimes, the Congress
hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion
perpetua. The present provision abolishes
death penalty, although with a reservation that
the Congress can subsequently pass a law
imposing it for compelling reasons involving
heinous crimes.
2. Death Penalty not Cruel. The constitutional
provision on death penalty or capital
punishment does not explicitly mention that it
is cruel and inhumane. In fact, the
Constitution allows the Congress to impose
death penalty for the right reasons. It could
even be argued that extinguishment of human
life is not cruel and inhumane for the
following reasons:
(a) It is proportionate to the nature of the
offense. Death penalty may only be imposed
by Congress in the commission of heinous
crimes and for compelling reasons. Heinous
crimes are crimes which are so flagrant and
evil so as to be shocking to the conscience of
civilized persons, such as genocide, rape with
homicide, murder, rebellion, and treason,
especially when committed against the
innocent and helpless. With compelling
reasons, Congress may impose death penalty
since it is proportionate to the atrocities
committed;

(b) This form of penalty still has currency in

the contemporary time. Death by lethal
injection is prevalently practiced by many
countries for the punishment of heinous
offenses; and
(c) Death by lethal injection is not cruel and
inhumane because it does not prolong
suffering or inflict excruciating agony to the
person punished. In truth, it only induces the
person to sleep through a lethal substance
injected in the bloodstream which thereafter
painlessly put the person to death.
Proper Treatment of Persons Legally
Detained or Imprisoned
1. Constitutional Provision. Section 19(2),
Article III provides that the employment of
physical, psychological, or degrading
punishment against any prisoner or detainee
or the use of substandard or inadequate penal
facilities under subhuman conditions shall be
dealt with by law.
2. Purpose of the Right. This constitutional
guarantee recognizes the inalienability of
human dignity. Even when a person is
imprisoned or detained, and even if he
commits heinous crimes, he is still a person
entitled to proper treatment and protection.
Paraphrasing it, the Constitution provides that
even if a person is imprisoned or detained, he
must be protected against physical,
psychological, or degrading punishment, and
is entitled to the use of standard or adequate
penal facilities under humane conditions.

RIGHT AGAINST IMPRISONMENT

FOR DEBT
1. Constitutional Provision. Section 20,
Article III provides that no person shall be
imprisoned for debt or non-payment of a poll
tax.
2. A debt, as covered by the constitutional
guarantee, refers to a contractual obligation
by a debtor to pay money to the creditor. If by
reason of poverty or lack of money a person

cannot pay his debt, he cannot be imprisoned

by reason thereof. The creditor only has
himself to blame if he voluntarily agreed to
lend money to someone who apparently
cannot pay or whom he thought could pay but
did not. Nevertheless, although the debtor
cannot be imprisoned, his property may be
taken or attached by the court, and then sold
at public auction in payment of his debt to the
creditor.
3. Estafa is not covered by this constitutional
guarantee. What is punished in estafa is not
the non-payment of debt but the deceit
accompanying the act of non-payment.
4. Non-payment of poll tax cannot be a cause
of imprisonment. A poll tax is a tax of a fixed
amount imposed on individuals residing
within a specified territory, whether citizens
or not, without regard to their property or the
occupation in which they may be engaged.
[89] Community tax or residence tax is an
example of poll tax. As far as poll tax is
concerned, non-payment is not punished by
the government in consideration of the plight
of the poor who cannot even afford to pay it.
Poverty could never be a reason for a persons
imprisonment. It must be emphasized,
however, that as regards other forms of taxes,
non-payment may be a cause of
imprisonment. Failure to pay income taxes is
considered a crime (tax evasion), and
punishable under the law by imprisonment.

RIGHT AGAINST DOUBLE JEOPARDY

Meaning of Double Jeopardy
1. Constitutional Provision. Section 21,
Article III states that no person shall be
twice put in jeopardy of punishment for the
same offense. If an act is punished by a law
and an ordinance, conviction or acquittal
under either shall constitute a bar to another
prosecution for the same act. This is more
famously known as the right against double
jeopardy.

2. Double jeopardy means that a person is

twice put at the risk of conviction for the
same act or offense. The right against double
jeopardy therefore means that a person can
only be indicted or charge once by a
competent court for an offense. When a
person, for instance, has been charged of
homicide and the court acquitted him of the
case, he can no longer be prosecuted for the
same offense or act. He can now invoke his
right against double jeopardy.
3. There are two types of double jeopardy.
The first happens when a person is put twice
in jeopardy of punishment for the same
offense, and the second happens when an act
is punishable by a law and an ordinance at the
same time, in which case the conviction or
acquittal in either one of them constitute as
bar to another prosecution for the same act.
3. The requisites of double jeopardy are:[90]
(a) A valid complaint or information;
(b) Filed before a competent court;
(c) To which the defendant has pleaded; and
(d) The defendant was previously acquitted or
convicted or the case dismissed or otherwise
terminated without his express consent.
When Double Jeopardy Could Be Claimed
1. Before double jeopardy could be claimed,
there must be a first jeopardy. The first
jeopardy attaches only: (a) upon good
indictment; (b) before a competent court; (c)
after arraignment; (d) when a valid plea has
been entered; and (e) the case was dismissed
or otherwise terminated without the consent
of the accused. A case is said to be terminated
without the consent of the accused when there
is acquittal or a final decision convicting him.
2. To substantiate therefore the claim for
double jeopardy, the following must be
proven:
(a) A first jeopardy must have attached prior
to the first jeopardy;

(b) The first jeopardy must have been validly

terminated; and
(c) The second jeopardy must be for the same
offense, or the second offense includes or is
necessarily included in the offense charged in
the first information, or is an attempt to
commit the same or is a frustration thereof.
RIGHT AGAINST EX POST FACTO
LAW AND BILL OF ATTAINDER
Meaning of Ex Post Facto Law
1. Constitutional Provision. Section 22,
Article III provides that no ex post facto law
or bill of attainder shall be enacted.
2. An ex post facto law is one which:
(a) Makes criminal an act done before the
passage of the law which was innocent when
done, and punishes such an act;
(b) Aggravates a crime, or makes it greater
than it was, when committed;
(c) Changes the punishment and inflicts a
greater punishment than the law annexed to
the crime when committed;
(d) 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;
(e) 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
(f) 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.[91]
3. Applicable only in Criminal Cases. The
constitutional prohibition applies only in
criminal cases.[92] One of the characteristics
of criminal law is prospectivity in which only
crimes committed after the enactment of a

penal are punishable. It cannot retroact and

punish acts which were not yet criminalized
before its passage. The basic rule is that
before an act may be considered an offense or
crime, it must first be defined as a crime and a
penalty must be imposed for it under a law
passed by the legislative body. An act
therefore is not a crime if there is no law
punishing it. In the same vein, a person does
not commit a crime, no matter how
apparently illegal it is, if there is no law
defining and punishing it. It is for this reason
that an ex post facto law is not allowed
because it criminalizes what was not yet a
crime during its commission.
Meaning of Bill of Attainder
1. Definition. A bill of attainder is a
legislative act which inflicts punishment
without trial. Its essence is the substitution of
a legislative for a judicial determination of
guilt.[93]
2. Two Kinds of Bill of Attainder: (a) the bill
of attainder proper which involves the
legislative imposition of death penalty, and
(b) bill of pains and penalties which involves
imposition of a lesser penalty.
3. Reason for Prohibition. The prohibition
against bill of attainder is an implementation
of the principle of separation of powers. The
legislature cannot bypass the judiciary by
enacting a law that punishes an act without
need of judicial proceedings. The legislative
department should be confined to its lawmaking function; it cannot encroach the
authority of the courts by prescribing a law
that directly adjudges guilt without judicial
determination.
4. Example. In one case, the Court held that
the Anti-Subversion Law (R.A. 1700) is not a
bill of attainder.[94] The law declared the
Communist Party of the Philippines (CPP) a
clear and present danger to Philippine
security, and thus prohibited membership in
such organization. It is not a bill of attainder
because it does not define a crime, but only
lays a basis for the legislative determination
that membership in CPP and any other

organization having the same purposes is a

crime. It does not automatically secure
judgment by mere membership. In operation,
the law does not render unnecessary judicial
proceedings. The guilt of the individual
members of subversive groups must still be
judicially established.
[1] Bernas, p. 101.

[18] Sec. 5, Rule 113

[19] See Umil v. Ramos, G.R. No. 81567
(October 3, 1991).
[20] Morano v. Vico, 20 SCRA 526
[21] The constitutional provisions dealing
with the right to privacy are Secs. 1, 2, 3, 6, 8,
and 17 of Article III.

[2] See Bernas, p. 110.

[22] Bernas, p. 217
[3] De Leon, p. 130.
[23] Abraham v. U.S., 250 U.S. 616 (1919)
[4] See Smith, Bell & Co. v. Natividad, 40
Phil 136.
[5] See Morfe v. Mutuc, L-20387, January 31,
1968.
[6] Felix Frankfurter, Mr. Justice Holmes and
the Supreme Court. Emphasis provided

[24] See Near v. Minesota, 238 U.S. 697

[25] Article 353, Revised Penal Code
[26] See Miller v. California, 413 U.S. 15
(1973)
[27] New York Times v. Sullivan, 376 US 254

[7] Lopez v. Director of Lands, 47 Phil 23

(1924)

[28] Miriam College Foundation v. C.A., G.R.

No. 127930, December 15, 2000

[8] Banco Espanol Filipino v. Palanca, 37

Phil. 921 (1918)

[29] Dennis v. U.S., 341 U.S. 494

[9] Ang Tibay v. Court of Industrial Relations,

69 Phil. 635 (1940)

[30] See Reyes v. Bagatsing, G.R. No. L65366 (November 9, 1993).

[10] Bernas, p. 116.

[31] Telecommunications and Broadcast

Attorneys of the Philippines v. COMELEC,
G.R. No. 132922 (April 21, 1998).

[11] Tolentino v. Board of Accountancy, 90

Phil. 83 (1951)

[32] See Borjal v. CA, 301 SCRA 1.

[12] People v. Cayat, 68 Phil. 12 (1939)
[13] Quinto v. COMELEC
[14] Stonehill v. Diokno, 20 SCRA 383;
People v. Damaso, 212 SCRA 457.
[15] Salazar v. Achacoso, G.R. No. 81510,
March 14, 1990
[16] See Soliven v. Makasiar, 167 SCRA 393
(1998)
[17] See Stonehill v. Diokno, 20 SCRA 383

[33] Friedman v. Rogers, 440 US 1;

Pittsburgh Press Co. v. Human Relations
Commission, 413 US 376.
[34] Central Hudson Gas & Electric Corp. v.
Public Service Commission of NY, 447 US
557.
[35] Manila Public School Teachers
Association v. Secretary of Education, G.R.
No. 95445, August 6, 1991
[36] SSS Employees Association v. CA, 175
SCRA 686

[37] Everson v. Board of Education, 30 US 1

[58] Manila Trading Company. v. Reyes, 1935

[38] Abington School District v. Schemp, 374

US 203

[59] See Philippine Rural Electric

Cooperatives Association v. DILG Secretary,
G.R. No. 143076, June 10, 2003

[39] Lemon v. Kurtzman, 403 US 602

[40] Glassroth v. Moore, 335 F.3d 1282 (11th
Cir. 2003)
[41] Epperson v. Arkansas, 393 US 97
[42] Abington School District v. Schemp, 374
US 203

[60] See China Banking Corporation v. ADB

Holdings, G.R. No. 172192, December 23,
2008
[61] Asia Bed Factory v. National Bed and
Kapok Industries Workers Union, 100 Phil.
837
[62] See Bernas, p. 464

th

[43] Newdow v. US, No. 00-16423 (9 Cir.

2003)
[44] Sec. 28(3), Article VI of the 1987
Constitution

[63] 384 US 436 (1966)

[64] Bernas, p. 448.
[65] See People v. Tolentino, 145 SCRA 597

[45] Ibid., Sec. 4(2), Article XIV

[66] Sec. 12(2), Art. III
[46] Tilton v. Richardson, 403 US 672
[67] Sec. 12 (1), Art. III
[47] Sec. 3(3), Art. XIV, Constitution
[48] Ibid., Sec. 29(2), Art. VI
[49] Graces v. Estenzo, 104 SCRA 510

[68] See People v. Obrero, G.R. No. 122142

(May 17, 2000).
[69] People v. Andang, GR 116437 (March 3,
1997).

[50] Alipay v. Ruiz, 64 Phil 201

[70] Bernas, p. 486.
[51] Lemon v. Kurtzman, 403 US 602
[71] Ibid.
[52] See Ebralinag v. Division
Superintendent of Schools of Cebu, 219
SCRA 256.
[53] Cassius Clay v. US, 403 US 698; See
also Article 18, International Covenant on
Civil and Political Rights
[54] Ebralinag v. Division Superintendent of
Schools of Cebu, 219 SCRA 256
[55] See Marcos v. Manglapus, G.R. No.
88211, Sept. 15, 1989 & Oct. 27, 1989

[72] Sec. 6, Rule 114

[73] Procedure of returning an extraditee to
the requesting state.
[74] See Government of Hong Kong v. Judge
Olalia, G.R. No. 153675 (April 19, 2007).
[75] See Comendador v. De Villa, 200 SCRA
80, 96.
[76] See Narciso v. Sta. Romana-Cruz, G.R.
No. 134504 (March 17, 2000).

[56] People v. Zeta, 98 Phil. 143

[77] US v. Grant, 18 Phil 154.
[57] Clemons v. Nolting, 42 Phil. 702

[78] Martelino v. Alejandro, 32 SCRA 115.

[79] Olaguer v. Military Commission No. 34,
150 SCRA 165.
[80] Mupas v. People, G.R. No. 172834,
February 6, 2008.
[81] People v. Manoji, 68 Phil. 471.
[82] Bernas, p. 514
[83] Aside from these remedies, the Rules of
Court also provide for other modes of
discovery.
[84] Sec. 1, Rule 116, Rules of Court.
[85] Aquino v. Military Commission No. 2, 63
SCRA 546.
[86] Sec. 6, Rule 120, Rule of Court.
[87] U.S. v. Navarro, 3 Phil 63.
[88] Green Notes, Political Law, Handout No.
002, p. 42.
[89] De Leon, p. 196.
[90] Rule 117, Sec. 7; People v. Obsania, 23
SCRA 249.
[91] Mekin v. Wolfe, 2 Phil. 74.
[92] In re Kay Villegas Kami, Inc., 35 SCRA
428.
[93] People v. Ferrer, 48 SCRA 382.
[94] Ibid.