CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.
” Matthew 21:22
In UNION, There is STRENGTH
POLITICAL LAW REVIEW: CONSTITUTIONAL LAW AS
DISCUSSED BY JUDGE SINGCO
2015 - 2016
BILL OF RIGHTS
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any
person be denied the equal protection of the laws.
TN: You should know what these persons being referred to.
You have natural human beings and of course juridical
person. In so far as human beings, the rights that are
protected or guaranteed of protection, due process and
equal protection of law and the non-impairment of
obligations and contracts are the right to life, liberty and
property. In so far as the right of juridical person is concern,
the one that is being protected is only in so far as its right on
property. Take note of that. In so far as life and liberty, they
are all regulated by law.
DUE PROCESS OF LAW
 this does not include security. The right to security is
covered by Section 2, right against unreasonable
search and seizure, and Section 4, right to privacy of
communication.
 you have both PROCEDURAL and SUBSTANTIVE
due process.
For a valid exercise of SUBSTANTIVE due process, you go
by the requisites of a valid exercise of police power:
1st the subject matter is lawful and
2nd the means employed in achieving the purpose is likewise
lawful, that is reasonably necessary to carry out or to
accomplish or to achieve the purpose of the law.
With regards to PROCEDURAL dues process of law, take
note of the case of Pichay, that’s the most recent decision as
regards to procedural due process.
Pichay Jr. vs. Office of the Deputy Executive Secretary
for Legal Affairs July 24, 2012
The SC emphasized that for as long as one was given the
opportunity of hearing, there is substantial compliance to
due process of law. There is relativity of due process. SC
held that Pichay’s right to due process was not violated
when the IAD-ODESLA took cognizance of the
administrative complaint against him since he was given
sufficient opportunity to oppose the formal complaint filed by
Secretary Purisima. In administrative proceedings, the filing
of charges and giving reasonable opportunity for the person
so charged to answer the accusations against him constitute
the minimum requirements of due process, which simply
means having the opportunity to explain one's side. Here,
Pichay was given the opportunity to explain his side and
present evidence, the requirements of due process are
satisfactorily complied with because what the law abhors is
an absolute lack of opportunity to be heard.
Exception: No hearing at all is being conducted and yet
there is no violation of due process of law
1. When administrative agencies are exercising
quasi-legislative function no need for a hearing;
because if it is quasi-judicial, there must always be
observance of due process of law;
2. Abatement of nuisance per se, and not by accident;
3. Granting of court of provisional remedies, such as
the writ of preliminary attachment or a replevin,
there is no need for hearing. However, there is a
need for a notice, precisely, the writ has to be
served upon the defendant simultaneously with the
summon and copy of complaint;
4. Preventive suspension in administrative cases. Here
the correspondent may not be even notified that a
case has been already filed against him. He can
already be placed under preventive suspension
because after all it is not yet a penalty. It is just a
precautionary measure;
5. Removal of a temporary employee in the
government service because they do not enjoy
security of tenure;
6. Issuance of warrants of distraints or levy by the BIR
commissioner, because there has already been a
prior hearing when you are sent with the notice of
tax deficiency;
7. The cancellation of passport of the person charged
with the crime; because in the first place, the court
do not know where you are residing, you have
already absconded;
8. Issuance of sequestration orders/ judicial orders of ill
gotten wealth, that would not require any prior
hearing because of the urgency of the matter that its
going to be sequestered on the possibility of the
person in possession of the ill gotten wealth might
escape or hide the property subject of sequestration;
9. Judicial order on hold departure order. There is no
need for hearing especially when the court has not
yet obtained jurisdiction over the person of the
accused. But the moment the accused is under the
jurisdiction of the court where he posted bail, for
example, or has already been detained, then there
should be hearing;
10. And then you have suspension of bank operations
by the Monetary Board of the BSP upon a prima
facie finding of liquidity problems in such bank;
11. You have extradition proceedings – when it is still in
the evaluation stage, one can be arrested or
detained without being informed of the charges
against him. But the moment a case is filed in court,
he can now contest or ask for hearing as regards to
his position not to be extradited;
12. Then of course you have reinvestigation of criminal
cases already. These are cases that have been
already filed in court and the court order that the
case be remanded to the office of the prosecutor for
further investigation. Now even if the prosecutor will
maintain its finding of probable cause and the
accused has not been informed or furnished even
with the copy of the report, there cannot be a
violation there of due process because the accused
has been already informed before when three was
the first preliminary investigation being conducted. It
is just an affirmation of the findings of probable
cause of the prosecutor when the PI was conducted
in the first place. Thus, there is no need of hearing or
furnishing of copy of the investigation report to the
accused in the event the prosecutor would maintain
its earlier findings of probable cause.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
El Blanco Español - Filipino vs Palanca G.R. No. L-11390,
March 26, 1918
Requisites of due process in hearing in civil cases (the
minimum requirements), that must be satisfied for
procedural due process to be complied with:
1. There has to be an impartial court or tribunal clothed with
the judicial authority or the power to hear and determine that
matters before it. Impartial court, meaning, that has no
interest to the outcome of the case where it must observe
cold neutrality especially the presiding judge and that the
court must be clothed with the authority to hear and try the
case. This is of course determine by law.
2. It must have jurisdiction over the property or the
defendant or at least over the property subject of the case.
Question: How acquire jurisdiction over the defendant?
Answer: By service of summons.
Question: How summon serve?
Answer: Through personal service or substituted service of
summons and if he cannot be located or found, serve
through publication. Normally this is conducted in in rem
cases or quasi in rem cases.
There cannot be a violation there of due process because
the accused has already been informed before when there
was the first preliminary investigation being conducted. Its
just an affirmation of the findings of probable cause then of
the prosecutor when the preliminary investigation was
conducted in the first place. So there is no need of hearing
there or furnishing a copy of the investigation report to the
accused in the event the prosecutor would maintain its
earlier finding of probable cause.
Those are the exceptions where hearing is NOT required.
El Blanco Español - Filipino vs Palanca G.R. No. L-11390,
March 26, 1918
The requisites of due process in hearing in civil cases, the
minimum requirements that must be satisfied for procedural
due process that must be complied with:
1. There has to be an impartial court or tribunal clothed
with the judicial authority or power to hear and
determine the matters before it
- When we speak of impartial courts,
meaning that which has no interest in
the outcome of the case where it must
observe cold neutrality especially in the
presiding judge and the court must be
clothed with the authority to hear and try
the case, this is determine of course by
law
2. It must have jurisdiction over the property and over
the defendant or at least over the property subject
of the case
- How do you acquire jurisdiction over the
defendant? Through the service of the
summons. How is that summon serve?
Through personal service or substituted
service of summons and if he cannot be
located or found, you may serve the
summons through publication. Usually it
is conducted in in rem cases and quasi
in rem cases. Even today, personal
actions may be converted into a quasi in
rem and in which case you may publish
the order and the complaint through a
newspaper of general circulation in
order to effect the service of the
summons upon the defendant
3. Opportunity to be heard 1
4. Whatever judgments that may be rendered must be
based on after(?) hearing. Evidence presented
during the hearing or at least found in the records of
the case
As to administrative due process of law, read again Ang
Tibay vs Court of industrial Relations and more or less
the requirements are the same as that of the civil cases, as
observed in civil cases.
As well as in criminal cases, in criminal cases we have
People vs Pamaran and People vs Vera. Bottom line in
these cases is that there is the element of opportunity of
hearing.
Echavez vs Romulo
The license to carry a firearm is neither a property nor a
property right. Neither does it create a vested right. A permit
to carry firearm outside of one’s residence may be revoked
anytime without prior notice or hearing. Due process does
not apply because this is not involving any property right.
MMDA vs Garin
A license to operate a motor vehicle is not a property right
but a privilege granted by the state which may be suspended
or revoked by the state in the exercise of police power or
even without prior notice or hearing
Mercury Drug Corp vs Serrano
On dismissing the employee, the requirement of two notices,
that is in labor law in compliance with due process. (You
have mastered already your labor law  )
EQUAL PROTECTION OF LAWS
Basically, the concept is that all persons and properties
situated under the same circumstances must be treated
alike in terms of rights that may be conferred by law and
obligations that may be imposed.
The exception is when there is a valid classification.
When is there a valid classification? When there is:
1. Substantial distinction
2. Germane to the purpose of the law
3. Applicable not only to existing conditions but also in
the future for as long as the reason for the
classification still exist
4. It applies to all persons and things situated under
the same circumstances
What was asked in the bar exam is on the principles being
applied in determining whether classification is justifiable or
whether it is valid. You have on:
1. Rational basis
2. Strict scrutiny
3. Intermediate scrutiny
On rational basis, it depends on the reason of classification
in the first place. Based on the purpose.
Rational basis based on the purpose-- why is there a
classification in the first place. Usually this classification
applies in general such as economic or social legislation
1
I’m not sure if ang numbers 3 and 4 are still part of the requisites,
basta gi discuss pani ni maam, wala nalang niya gi numberan
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Example:
Central Bank Employees Association Incorporated vs
BSSP GR 148208
Prior to amendment of the law creating the BSP, there is a
law stating that in so far as officers of BSP they will receive
different scale of salary as compared to rank and file-- salary
grade 19 and lower. so there is no ceiling in so far as the
officers of BSP.
Rationale of classification uphold as valid:
Relativity in the constitutionality of the law
At the time, there was difficulty in attracting persons who are
competent in order to work for BSP especially for higher
positions. To attract them, there is an economic package
that cant be refused by the. There was no question of the
classification back then.
So things change cause the law was amended. Bsp is one of
the govt financial institution, like sss dbp, gsis ldb.. They are
exempted from standardization of salary including the rank
and file. So the rank and file is now asking, why are we
discriminated when we already belong to the government
financial institution and yet we have the same scale of salary.
SC sustained this that there is valid classification. It applied
STRICT SCRUTINY. They consist of a group that is
distinct that would justify a valid classification as to officers
and rank and file of BSP
TRUTH COMMISSION declared unconstitutional cause it
focused on the Arroyo administration. To curb graft and
corruption is a valid classification but in Arroyo, it is a
suspect classification, rather than a group.
Question: So they said why not other previous
administration? Justification?
A. Previous to arroyo admin, there is already an
investigation, thus double investigation
B. There was a previous commission called
PCGG investigating the marcos administration on
ill-gotten wealth
In PCGG, no one questioned it. But here, SC said it is
discriminatory as to the Arroyo administration in terms of
investigation by that particular body. It can hardly be
considered a class of its own to justify a valid classification.
RATIONAL BASIS (legislative basis is: legitimate)
- it is general in classification such as social and
economic legislation which do not affect fundamental
rights or suspect classes or not based on gender or
legitimacy
STRICT SCRUNITY (legislative basis is: compelling)
- applicable only to legislative classification
affecting fundamental rights or suspect classes as applied in
BSP case
ITERMEDIATE SCRUTINY (legislative basis is: important)
- applicable only to legislative classification based
only on gender or illegitimacy (? She said legitimacy at
first then illegitimacy daun)
As To The Legislative Purpose Of The Classification
1. in rational basis it must be legitimate
2. in strict scrutiny, it must be compelling
3. in intermediate scrutiny, it must be important
the classification in rational basis, must be rationally related
to the legislative purpose it has to be related.
what's the reason for classification in the first place in order
to justify the distinction
for example, the right to vote is enjoy only by the citizens of
the country because foreigners have nothing to do with the
establishment of government
Classification Under Strict Scrutiny
classification must be necessary and narrowly tailored to
achieve the legislative purpose. you recall the cybercrime
law one of the reasons for objecting this law is that it is
against a certain group of individuals using the social media
the internet. why this particular group of individuals only that
this law addressed. they are following strict scrutiny here
whether its applicable because it goes into the freedom of
expression.
Jose Jesus m. Disini, Et.Al v. The Secretary Of Justice
g.r. No. 203335 February 11, 2014
The Court has in a way found the strict scrutiny standard, an
American constitutional construct, useful in determining the
constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise
of fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed
unconstitutional. The burden is on the government to prove
that the classification is necessary to achieve a compelling
state interest and that it is the least restrictive means to
protect such interest. Later, the strict scrutiny standard was
used to assess the validity of laws dealing with the regulation
of speech, gender, or race as well as other fundamental
rights, as expansion from its earlier applications to equal
protection.
In the cases before it, the Court finds nothing in Section
4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is
involved in punishing what is essentially a condemnable
act – accessing the computer system of another without right.
It is a universally condemned conduct.
So this has not been applicable. the validity of the law has
been sustained because there is a valid classification in this
case
as to the intermediate scrutiny, the purpose of the
classification must be substantially related to the legislative
purpose. so it's not so strict.
Section 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
On searches and seizure this time. the rule is whatever
search and seizure. whatever it's purpose. or whatever is the
reason without a warrant, is unreasonable and therefore
unconstitutional.
this right is enjoyed not only by the citizens of the country.
also this is available to aliens whether accused of a crime or
not.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Question: how about artificial persons? do they enjoy this
right?
Answer: yes. they are required however to open their books
of accounts for examination by the state in the exercise of
police power or taxation power. and their premises may not
be searched nor their papers and effects be seized except
by virtue of a valid warrant.
Question: what is unreasonable search and seizure? is it
defined under the law?
Answer: it is not really defined but we have so many cases
where the supreme court has held whether the search and
seizure is valid or not. take note that this right is personal so
only that person whose right has been violated can invoke
that right.
recent decision relating to the writ of amparo in relation
to section 2.
THE SECRETARY OF NATIONAL DEFENSE v.
RAYMOND MANALO and REYNALDO MANALO G.R. No.
180906 October 7, 2008
Third, the right to security of person is a guarantee of
protection of ones rights by the government. In the context of
the writ of amparo, this right is built into the guarantees of
the right to life and liberty under Article III, Section 1 of the
1987 Constitution and the right to security of person (as
freedom from threat and guarantee of bodily and
psychological integrity) under Article III, Section 2
In other words, this also include the right to privacy. so you
go into the privacy of your body against drug test. what is the
recent decision on drug test.
SOCIAL JUSTICE SOCIETY (SJS) v. DANGEROUS
DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA) G.R. No. 157870 November 3, 2008
Essentially, the oil companies are fighting for their right to
property. They allege that they stand to lose billions of pesos
if forced [to] relocate. However, based on the hierarchy of
constitutionally protected rights, the right to life enjoys
precedence over the right to property. The reason is
obvious: life is irreplaceable, property is not. When the state
or [local government unit] LGU’s exercise of police power
clashes with a few individuals’ right to property, the former
should prevail,
You recall under RA 9165 if you are charged with a crime
where the penalty is 6 years and 1 day or if you are a
candidate for an elective position. also the requirement on
students secondary and tertiary
…..
(c) Students of secondary and tertiary schools. – Students of
secondary and tertiary schools shall, pursuant to the related
rules and regulations as contained in the school's student
handbook and with notice to the parents, undergo a random
drug testing: Provided, That all drug testing expenses
whether in public or private schools under this Section will be
borne by the government;
(d) Officers and employees of public and private offices. –
Officers and employees of public and private offices,
whether domestic or overseas, shall be subjected to
undergo a random drug test as contained in the company's
work rules and regulations, which shall be borne by the
employer, for purposes of reducing the risk in the workplace.
Any officer or employee found positive for use of dangerous
drugs shall be dealt with administratively which shall be a
ground for suspension or termination, subject to the
provisions of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;
…..
(f) All persons charged before the prosecutor's office with a
criminal offense having an imposable penalty of
imprisonment of not less than six (6) years and one (1) day
shall have to undergo a mandatory drug test; and
(g) All candidates for public office whether appointed or
elected both in the national or local government shall
undergo a mandatory drug test. (Section 36 RA 9165)
What happened to that case. take note that the supreme
declared it as unconstitutional the provisions of RA 9165
requiring mandatory drug testing of candidates for public
office and persons accused of crimes. however the supreme
court upheld the constitutionality of said law in so far as
random drug testing for secondary and tertiary students as
well for officials and employees of public and private offices
are concerned.
DRUG TEST (RIGHT TO PRIVACY)
SJS vs Dangerous Drug Board & PDEA (Nov 3, 2008)
Mandatory Drug Testing
Ruling: Unconstitutional the provisions of RA 9165
requiring mandatory drug testing of candidates for
elective positions and to persons accused of crimes.
However upheld the constitutionality of RANDOM DRUG
TESTING for secondary and tertiary school students and
for officials and employees of public and private offices
The confiscated items having been found in the place other
than the one described in the search warrant can be
considered as fruits of an invalid warrantless search the
presentation of which as an evidence in violation of Del
Castillo's constitutional guarantee against unreasonable
search and seizure.
Evidence obtained due to warrantless search conducted by
a Barangay Tanod is inadmissible in evidence since a
Barangay Tanod is an agent of a person in authority under
the Revised Penal Code and the Local Government Code
We go into the Exceptions
Where a search warrant is not needed, yet the warrantless
search is valid.
1. You have Search Incidental To A Lawful
Arrest. Take note, the requirements to justify a
search incidental to a lawful arrest. The search must
come after a lawful arrest, because if in the first
place the arrest was unlawful, then there is no
justification for a search incidental to that arrest. Or
at least the search is made simultaneous to the
arrest.
When is an arrest lawful?
If it is accompanied by a warrant of arrest. Otherwise, it falls
under the exceptions of a warrantless arrest under Rule 113
1. In Flagrante Delicto
2. Hot Pursuit
3. An Escapee can be arrested even without a
warrant
Now, you have to note the difference between this
one and a search that is made under a
Stop-And-Frisk or the Ohio vs. Terry case. Here,
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
what happened was that search was made first, and
in the event that a contraband is found, then you
have the lawful arrest.
Take note, ang search incidental, there's arrest
that's lawful, and then thereafter there is the search.
In Stop-And-Frisk, there is a search however limited
only to the outer clothing. Protective search only.
But in the event a contraband is found, or the person
is committing a crime in the presence of the
arresting officer, then he can be arrested without a
warrant, a thereafter an extensive search can be
made.
When you do a Stop-and-Frisk, it is deemed merely
based on suspicion. But the moment you make an
arrest, it must be based on probable cause. He must
have committed overt acts that would indicate that
he was committing a crime in the presence of the
arresting officer.
(Question by Nathan inaudible)
Judge: Alright. If it is a moving vehicle, it is limited to visual
search. Plain view. Where they found the contraband
through plain view... What was the justification? If it was with
the consent, then the search would be justified.
(Question continued still inaudible)
Judge: What was the probable cause? It has to be an act of
the accused that would lead to believe that a crime was
being committed.
(Question inaudible)
Judge: It has to be personal. Because even if it is a reliable
information, it's not personal to the arresting officer.
(Question inaudible)
Judge: That's too much extension. I'm not a justice of the
Supreme Court, but I had a lot of cases like those. If there is
no overt act then it should not be.. You are not supposed to
do that.
You stick to the basic. Unless if it is like a Stop-and-Frisk.
You stop him and then you frisk because of the suspicion
that he is committing the crime. I think that is the justification.
In Stop-and-Frisk, because of their experience as arresting
officers, his acting suspiciously, like he is restless. Then they
make a stop, and then they frisk him. So in the process of
frisking, they found the contraband. Then, that would justify
an extensive search. I suppose that was the justification.
Now, in relation to this guys, you also take note of the case
of Luz vs. People. This actually happened here in Cebu. This
is the roadside questioning of a motorist. He was stopped
and then he was asked to go to the police station.
Luz vs. People2 case actually happened in Cebu. This
involves the road side questioning of a motorist. The reason
he was apprehended was because he was not wearing his
helmet in violation of the city ordinance of Naga. He was
thereafter invited to the police station because it would be a
lot easier to issue a citation or a ticket to the motorist. So he
went to the police, however, he was restless which made the
police suspicious that he may be hiding something. So he
was asked to place all his things on the table. As a result of
which, the police found that he was in possession of illegal
drugs and so he got arrested and charged with violation of
R.A. no. 9165. So the question there was that whether there
2
G. R. No. 197788, February 29, 2012
was any justification for the search, because the search has
to be incidental to a lawful arrest. Was there an arrest in the
first place in this case? Supreme court said that there was
none because you cannot be arrested for violation of traffic
rules since the penalty is only administrative in nature and
not criminal which would have warranted imprisonment.
Therefore, it was not preceded by an arrest. So the search
conducted cannot be considered as incidental to a lawful
arrest. Ergo, the search was illegal as there was no warrant.
Being illegal, the things that were seized from the accused
cannot be used against him being fruits of the poisonous
tree.
That was also asked in the bar exams, “what is the concept
of the fruit of the poisonous tree?” AIE SUSMARYOSEP!
Kung di pa mo kamao ana, ambot lang!
So Supreme Court was saying in this case,
The question is whether or not a road side
questioning of a motorist detained pursuant to a
routine traffic stop can be considered as a formal
arrest.
Here, Luz was waiting for PO3 Alteza to write the
citation ticket. Luz could not have been considered
as “under arrest.” There was no intention on the part
of PO3 Alteza to arrest him, deprive him of his liberty
or take him under custody. Prior to the issuance of
the ticket, the period during which Luz was at the
police station may be characterized merely as
waiting time. In fact, PO3 Alteza himself testified that
the only reason they went to the place was that Luz
had been flagged down almost in front of that place.
Hence, it was only for the sake of convenience that
they were waiting there. There was no intention to
take Luz into custody. Therefore, there was no
arrest at all.
It also appears that, according to City Ordinance No.
98-012, which was violated by Luz, the failure to
wear a crash helmet while riding a motorcycle is
penalized by a fine only. Under the Rules of Court, a
warrant of arrest need not be issued if the
information or charge was filed for an offense
penalized by a fine only. There is no warrant.
Kanang BP 22, wa mana’y warrant kay fine ra mana
ang iyang penalty. You don’t issue warrant. It may
be stated as a corollary that neither can a
warrantless arrest be made for such an offense.
This ruling does not imply that there can be no arrest
for a traffic violation. Certainly, when there is an
intent on the part of the police officer to deprive the
motorist of liberty, or to take the latter into custody,
the former may be deemed to have arrested the
motorist. In this case, however, the officers issuance
(or intent to issue) a traffic citation ticket negates the
possibility of an arrest for the same violation.
If it were true that Luz was already deemed arrested
when he was flagged down for a traffic violation and
while he waiting for his ticket, then there would have
been no need for him to be arrested for a second
time after the police officers allegedly discovered the
drugs as he was already in their custody.
So there was no arrest, why arrest him when he was already
in the custody of the police?
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
SEARCH CONDUCTED IN A MOVING VEHICLE
Checkpoints
What you need to take note in moving vehicles is that it is
limited only to visual search or plain view search. Even if you
see only the handle of the gun, it depends kung kinsa ang
makakita. So let’s say the the gun was inside the vehicle and
was paartially covered by some papers and then they saw
only something bulging and the handle of the gun. So car
owner was asked to remove the papers and they found that
it was a handgun and so the car owner was arrested on the
basis of plain view. And the Supreme court would say that
“No, that is not plain view! You would not know that it was a
gun were it not for the removal of the papers.” But if you hear
the justification of the police, “Ma’am, I am very familiar of
how a gun looks like. By just seeing the handle, I know that it
is a gun.” Then I would have to accept that because indeed
being a police officer, he must know what a gun looks like.
For the police, it is plain view that it was a gun. That would
justify the search and seizure without a warrant. Now you
can make an extensive search and have him arrested even
without a warrant because it would be as if he was
committing a crime, especially when the gun has no license,
in the presence of the arresting officer.
Same in checkpoints, only plain view or visual search. Also
take note that it must be moving. That is the operative word.
Because if it was just parked, then there is no justification for
its seizure without a warrant. Usually, these are motorized
vehicles. Kung sikad-sikad lang, you need a warrant! Unsa
man tawn ang urgency? Maapsan man ganeh na nimu kung
magdagan lang ka so definitely no urgency.
SEIZURE IN PLAIN VIEW
Just because you saw prohibited drugs on the table when
you entered the house of your neighbor without his
permission, can you seize it without warrant and use it in
evidence against your neighbor? Take note of the requisites
of evidence in plain view:
1. There must be a prior valid intrusion
 May be based on valid warrantless arrest in which
the police are legally present in the pursuit of
their official duties because if you were a
trespasser in the place in the first place, there’s
no justification for you to be in the premises then
there is no basis to seize it because it is
however prohibited goods then you can seize it
but it cannot be used as evidence against the
person whose privacy has been violated – Del
Rosario Case
2. The evidence was inadvertently discovered by the
police who had the right to be where they are
 Inadvertently - It was not deliberately searched,
otherwise it cannot be considered evidence in
plain view
 Case where they were looking for a gun and they
found inside a teacup were the prohibited drugs.
How on earth will u able to find a gun inside a
teacup? So it was obvious that they were
looking for something else other than the gun. It
can be seized because it is prohibited by law but
it is inadmissible against person whose right
was violated.
3. Evidence be immediately apparent to the eye, and
to the hand and even to the smell of an expert.
 So if marijuana leaves was wrapped in a
newspaper, it’s not transparent so you can’t
see what’s inside that newspaper. In which
case, only by unwrapping it, you learn that
they are marijuana leaves then that would
not be admissible in evidence because it
seized illegally but it can be seized as it is
prohibited by law.
 But if you were an expert like a forensic
chemist and by the smell alone, you know
that something is different.
4. No further search is required
 In a moving vehicle, it was flagged down at
checkpoint. The police was peeping through the
window of the car and saw white substance in
the front seat, passenger seat. Accused was
arrested on the basis of that white substance
because they said they were shabu. It was later
confirmed that it was shabu. He was arrested on
the ground of committing a crime in the
presence of the officer. The evidence was the
white substance. Was arrest valid? Would that
be considered evidence in plain view?
o It cannot be considered evidence in plain
view because you need further search
by the forensic chemist before you can
be sure that indeed it is illegal drugs.
With drugs you can never be sure that
indeed it is drugs until you have it
further examined. Thus not evidence in
plain view.
o Will that establish probable cause? YES!
It can be considered probable cause to
allow extensive search but limited only
to the premises. But it cannot be basis
for plain view because you need further
examination. So no justification then for
an arrest.
Favorite sa bar exam:
 Incidental to lawful arrest
 Evidence in plain view
 Check points
 Moving vehicles
STOP AND FRISK
 We have already discussed that
CUSTOMS SEARCH
 They can do it even without a warrant for goods that
are concealed to avoid payment of taxes.
 TN:
o if bodega i-search – no need of search
warrant
o if you search a resident where these
smuggled goods are placed – you need a
warrant
FOR REASONS OF EXIGENCY AND EMERGENCY
CIRCUMSTANCES
 no need of warrant
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
CONDUCT OF ARIAL TARGET ZONE & SATURATION
DRIVES
 no need of warrant
ROUTINE AIRPORT SECURITY
 included na ang BUS TERMINAL and SEA PORTS
in the exceptions
Airports, seaports are included already in the exceptions so
you take note of those.
Question: In the matter of airports, how about those
managed by private airline?
Answer: That’s a waiver, another exception. That is now
however established even if it is not the government, it is
now an established exception to a warrantless search. It is
now considered as valid for reasons of public safety. It is
now established. It can be justified by valid waiver. So take
note of valid waiver.
First you should know that you have that right. Second,
despite knowing that you have that right, you voluntarily,
freely and intelligently waive that right by allowing the
arresting officer to search your person.
The only issue here is the sniffing dogs because they are
saying that you should have probable cause, but that is the
probable cause of the dog not the officer. That is debated
now but there is still no challenge because the probable
cause here is personal to the dog not the officer.
Question by Yasmin. (Cannot be heard and Judge Singco
just laughs haha)
Answer: I think this is because of the consent given in the
first place, there is only then the question of whether or not
there was a valid waiver of that right.
Question again by Yasmin (Cannot be heard)
Answer:That would be evidence in plain view by the dog but
not by the officer. So the usual justification is plain view that
is if you do not intentionally look for it. That’s why I gave an
example wherein police officers searched for guns but
looked at the tea cup. Why would you look inside a tea cup
for a gun? You can only then file a case for illegal
possession of firearms but not for illegal drugs in cases of
shabu found in the teacup because it was illegally seized.
Pero kung ang shabu naa ra sa lamesa, it’s white crystalline
and there are several of them, even if you are looking for
guns, they can be seized under evidence in plain view.
Question by Russel (Cannot be heard)
Answer: Then you will become an illegal drug den Dakop
tanan, you committed a crime in the presence of the officer.
If you say possession, it is not only physical possession, also
legal possession if it is within your control. Illegal possession
ka if you are in the place where the drug was found.
Q:
Answer: Usually they would file a case against the person
residing in the house. The presumption of the law is that you
own it because you are residing in the house.
Judge’s story: I have a case wherein gipakita kog Titulo og
Tax Declaration. It is in a different name your honor because
it is not my house. But nag-abang man siya! Da! Convicted!
Buang! Illegal possession of firearm na. I’m not stupid,
presented me a title and a tax declaration that the house was
owned by another person.
Question by Grace:
In relation to the earlier question of shabu found in the car,
why was it not evidence in plain view?
Answer: This is because it could be baby powder, this
recent example is in sachets and numerous it is the regular
container of these shabu.
Question: So there is no need to further examine it?
Answer: Yes, probable cause is already established.
Question by Ron:
How about in search of moving vehicles? What is their
ground to look for stuff when looking for registration papers
of motorbikes?
Answer:No they can’t do that. They’re not supposed to do
that. Plain view ra gyud.
Question: What if the policeman asked for the registration of
the car then checked your toolbox?
Answer: They can’t unless probable cause is established.
That’s why we need to educate these policemen that they
can’t do that. Of course they can ask for your registration but
it’s not for them to search inside your toolbox. They can
pursue someone na nikalit lang ug U-turn because he was
afraid. Thus, they pursued him then later he was found out to
have possessed an unlicensed firearm. Pero lahi pud ng ni
u-turn lang kay nay nakalimtan sa ilang balay.
One thing that is for sure is that any evidence that is
obtained in violation of this right is inadmissible in any
proceeding whether criminal, civil or administrative. That’s
what you call the fruit of the poisonous tree. This is also
called the exclusionary rule.
Let’s go to warrantless arrests. Hot pursuit, In flagrante
Delicto, then escapee.
In Inflagrante Delicto – the crime is committed in the
presence of the arresting officer.
- Just take note of the continuing offenses. Even if the
arresting officer was not present when the crime
was committed but because the nature of the
offense is continuing, then it would be as if the crime
is continuously being committed and therefore they
can be arrested even without a warrant of arrest.
Another point with regard inflagrante delicto, even when in
the hearing distance, you can make the arrest because it’s
as if the crime was committed in the presence of arresting
officer.
Then on HOT PURSUIT.
Take note of the hot pusuit. Requisites thrat must be
compiled. Otherwise, there’s no justification for the hot
pusuit.
1. The pursuit must be continuous from the time of the
commission of the offense to the time of the arrest.
So what they usually do, they would create a task
force in order to establish continuity in the pursuit
and the arrest of the perpetrator.
2. There must be no supervening event which breaks
the continuity of the chase because the moment it is
broken, there cannot be any justification of a hot
pursuit. What you must do is for you to simply file the
case in the fiscal office so that if there is any basis,
then the case would be filed in court and a warrant
of arrest shall be issued.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
 Read the case of Luz vs. People where the
Supreme Court said that under the Rules of
Court, a warrant of arrest need not be issued if
the information charged was for an offense
penalized with a fine only. It may be stated that
neither can a warrantless offense can be made
for such offense.
 People vs. Del Rosario – there must be large
measure of immediacy between the time when
the offense was committed and the time of the
warrantless arrest. If there was an appreciable
amount of time between the arrest and the
commission of the crime, a warrant of arrest
must be secured.
 An escapee, never mind that one. Wa nay
pangutana ana. It’s self-explanatory.
Question: What would be the consequences if there is
violation of searches and seizure?
Answer: Inadmissible.
Question: Can you recover the property that was illegally
seized?
Answer: Kung contraband, ang2x naman I uli nimo ang
shabu or ang unlicensed firearm, of course you will not
return it.
Question: If money? What about if it’s the money that was
the payment for the shabu sold?
Answer: Money is not illegal per se, and since the crime
was not established and also that it was not established that
it was the fruit of the crime, then definitely it will be returned.
Question: If not returned by the police, what will be your
remedy?
Answer” Sue them at the Office of the Ombudsman or if you
want to get the money right away then you go to the court
and ask for a writ of replevin.
WARRANTLESS ARREST
What would happen if you are arrested illegally? What are
the two options?
1. Post Bail
- Even if the case was not yet filed in court, yes you
can for as long as you are deprived of your
physical liberty. You petition that you be allowed
to post bail.
- If you post bail, would that be a waiver for you to
question the validity of your arrest? No. Under
the New Rules of Procedure, you can still
question while you can file a writ of habeas
corpus.
- Maayo man tong bail kay hangtud inig file ug kung
mutaas imung charge.. for example, homicide
then it is bailable. Pero kung ma murder, it may
be cancelled.
2. Habeas Corpus
- Now, ang habeas corpus on the other hand, ma
mooted man cya if a case is filed in court and a
warrant is issued. The issuance of the warrant
would ratify the illegality of the arrest but it will
still be a defense on your part for QUASHING
THE INFORMATION or QUASH THE
EVIDENCE that was seized.
Again, the petition for habeas corpus will be mooted the
moment the warrant of arrest is issued by the court.
The last remedy there will be to file a motion before
arraignment to quash the information. Why? Because the
information was invalid because the arrest was illegal. Or,
the inquest therefore that was conducted as a consquence
of that illegal arrest was invalid. If the proceedings is invalid,
then the information consequently is invalid too. If it is
quashed, the case will be dismissed.
If it is not quashed, then the presented is going to be
presented in court. This time, the remedy is to OBJECT
when the evidence is presented. Even before you do
that(OBJECTING), you can move for the quashal of the
evidence. But this is tedious. You just have to wait when it is
presented nalang.
If the court will sustain the admission, don't lose hope.
Remember, ADMISSION of the evidence is one thing, giving
PROBATIVE VALUE is another. During the making of the
decision, the judge may decide not to consider it if it was
illegally seized.
ADMINISTRATIVE ARREST
What are the causes of administrative arrest?
1. You breached the peace or you were planning to do so,
but only if it is absolutely necessary.
ex. nanghagis kay kay you were drunk, you
can be arrested without warrant, even if you were
not committing a crime!
2. If you are disturbing a court hearing
3. In a drunken state in a public highway. (You are not only
causing threats to public safety but also to yourself)
4. In case of Brawling.
5. If you block traffic without authorization
6. If you refuse to present your Identification documents or
such are questionable
7. If you are staying in the country illegally
Sec. 3 Privacy on Communication and Correspondence.
Read Disini Jr., et.al vs. Secretary of Justice-
On the right to privacy, this pertains to your communications
and correspondence, including LETTERS, ELECTRONIC
COMMUNICATION and OTHER WAYS of communicating
thru the INTERNET.
SC said that in the Constitution, there are those(?) of privacy
that are guaranteed:
1. The right against unreasinable searches and seizure
2. The right to privacy of communication and
correspondence
"The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet of the
right protected by the guarantee against unreasonable
searches and seizures xxx"
Relevant to the discussion is the topic on Zones of Privacy.
This was discussed in IN THE MATTER OF THE PETITION
FOR ISSUANCE OF WRIT OF HABEAS CORPUS OF
CAMILO L. SABIO vs. Senator GORDON.
"Zones of privacy are recognized and protected in our
laws.46 Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance
with customary legal process"
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
In this case, Sabio(member of PCGG) was asked to produce
papers and documents pertaining to a transaction, however
he refused. He said that he was exempt from examination as
mandated by the PCGG. He also invoked his right to privacy.
SC said that there is this least expectation of privacy in this
case because while the law mandated that PCCG should be
immune from any kind of investigation, it was congress, the
maker of the law itself requiring them to produce the
documents. Here, they cannot refuse the CONGRESS.
Sabio was detained until he released the documents
because there were accusations that they were using the
cars sequestered.
Just take note here of the limitations in invoking the right to
privacy.
In the Disini Case, it was mentioned that:
"In evaluating a claim for violation of the right to privacy, a
court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government
intrusion. Applying this determination to these cases, the
important inquiries are: first, did the directors and officers of
Philcomsat Holdings Corporation exhibit a reasonable
expectation of privacy?; and second, did the government
violate such expectation? xxx"
Take note of the limitations on the invocation of the right to
privacy. The Supreme Court in Disini vs. The Secretary of
Justice (G.R. No. 203335, February 11, 2014 ) was saying
that –
“In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, a
court must determine (1) whether a person has
exhibited a reasonable expectation of privacy
and, if so, (2) whether that expectation has been
violated by unreasonable government
intrusion.”
Those are the requisites. This was applied in that case
involving the opening of letters of detention prisoners. The
SC was saying that you are a detainee. Even if it’s only
preventive detention, there is least expectation of privacy
compared to the people outside jail. This was the case In
the Matter of the Petition for Habeas Corpus of Capt.
Gary Alejano (G.R. No. 160792, August 25, 2005) where
the Supreme Court said that –
“The right to privacy of those detained is subject to
Section 4 of RA 7438, as well as to the limitations
inherent in lawful detention or imprisonment. By the
very fact of their detention, pre-trial detainees and
convicted prisoners have a diminished expectation
of privacy rights.”
Then there was the case of Zulueta vs. CA (G.R. No.
107383. February 20, 1996). This was a landmark case.
Even private letters, if you can recall, cannot be intruded into
and cannot be used in evidence if seized illegally. This was
the case of the paramour. The letters coming from the
paramour were kept by the husband and found by the wife.
Are they admissible in evidence if they were seized without
the consent of the husband? The Supreme Court said you
can’t use them.
Excerpt from the case –
Indeed the documents and papers in question are
inadmissible in evidence. The constitutional
injunction declaring the privacy of communication
and correspondence [to be] inviolable is no less
applicable simply because it is the wife (who thinks
herself aggrieved by her husband’s infidelity) who is
the party against whom the constitutional provision
is to be enforced. The only exception to the
prohibition in the Constitution is if there is a lawful
order [from a] court or when public safety or order
requires otherwise, as prescribed by law. Any
violation of this provision renders the evidence
obtained inadmissible for any purpose in any
proceeding.
The intimacies between husband and wife do not
justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any
telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity
or his right to privacy as an individual and the
constitutional protection is ever available to him or to
her.
When can you seize them? Or when can you intrude into
the privacy of communication and correspondence?
1. When there is a lawful order from a court;
How do you get the lawful order? You apply like applying for
a search warrant.
2. When public safety and order requires otherwise as
prescribed by law.
Who determines if public safety and order justifies intrusion
into the right? It is Congress but basically, it is the President,
in so far as the Anti-Wire Tapping Law (RA 4200) is
concerned being the Commander in Chief of the Armed
Forces of the Philippines.
Take note also of RA 9372 or The Human Security Act of
2007 where there is a guarantee of privacy in
communications between lawyers and clients, doctors and
patients and journalists and their sources as well as
confidential business correspondence.
Tapping of these communications is not authorized although
under the same law, the tapping of conversations of judicially
declared terrorists groups is allowed.
SEC. 7. Surveillance of Suspects and Interception
and Recording of Communications. -The provisions
of Republic Act No. 4200 (Anti-Wire Tapping Law) to
the contrary notwithstanding, a police or law
enforcement official and the members of his team may,
upon a written order of the Court of Appeals, listen to,
intercept and record, with the use of any mode, form,
kind or type of electronic or other surveillance
equipment or intercepting and tracking devices, or with
the use of any other suitable ways and means for that
purpose, any communication, message, conversation,
discussion, or spoken or written words between
members of a judicially declared and outlawed terrorist
organization, association, or group of persons or of any
person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording
of communications between lawyers and clients,
doctors and patients, journalists and their sources and
confidential business correspondence shall not be
authorized.
On RA 4200, what is prohibited?
1. Possession of tapes with the knowledge of their
nature as illegal wiretap.
2. Replaying the tapes to any person.
3. To communicate the contents thereof either verbally
or in writing such as provision of transcript.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
What is the penalty? Six (6) months to six (6) years prision
correccional.
The most recent decision on this right to privacy guys – you
have that concerning Facebook. The STC case. Recently,
the Supreme Court pronounced that there is no privacy in
Facebook. So you be careful, I got a lot of cases where
evidence were downloaded from Facebook accounts. Even
if you’re not friends with that person whose pictures you are
downloading. Now, can you sue that person for violation of
your right to privacy? The answer is no. In the STC case,
who downloaded those pictures? It was the friend of those
students involved. And then thereafter, the friend gave the
pictures to the teacher. SC was saying that the teacher is not
liable for violation of the right to privacy. You go back to the
two requisites – was there a reasonable expectation of
privacy? When you publish and post it in Facebook, there is
no privacy. Everybody knows even if you delete it. The
moment it goes into your friends’ accounts, then it will be
there forever. I keep telling my nieces that when you have
boyfriends now, please do not publish it. Sus mga gahi ug
ulo. Every year you change boyfriends. You have this guy
one time then you break up with that guy and then you have
another boyfriend. Susmaryosep. Ay dios ko. Hambog pa
Excerpt from the STC case (Vivares and Sps. Suzara vs.
STC G.R. No. 202666, September 29, 2014) –
STC did not violate petitioners’ daughters’ right to
privacy
Without these privacy settings, respondents’ contention that
there is no reasonable expectation of privacy in Facebook
would, in context, be correct. However, such is not the
case. It is through the availability of said privacy tools
that many OSN users are said to have a subjective
expectation that only those to whom they grant access
to their profile will view the information they post or
upload thereto.35
This, however, does not mean that any Facebook user
automatically has a protected expectation of privacy in all of
his or her Facebook activities.
Before one can have an expectation of privacy in his or her
OSN activity, it is first necessary that said user, in this
case the children of petitioners, manifest the intention to
keep certain posts private, through the employment of
measures to prevent access thereto or to limit its
visibility.36 And this intention can materialize in cyberspace
through the utilization of the OSN’s privacy tools. In
other words, utilization of these privacy tools is the
manifestation, in cyber world, of the user’s invocation of
his or her right to informational privacy.37 XXXXX
As applied, even assuming that the photos in issue are
visible only to the sanctioned students’ Facebook friends,
respondent STC can hardly be taken to task for the
perceived privacy invasion since it was the minors’
Facebook friends who showed the pictures to Tigol.
Respondents were mere recipients of what were posted.
They did not resort to any unlawful means of gathering the
information as it was voluntarily given to them by persons
who had legitimate access to the said posts. Clearly, the
fault, if any, lies with the friends of the minors. Curiously
enough, however, neither the minors nor their parents
imputed any violation of privacy against the students who
showed the images to Escudero.
Furthermore, petitioners failed to prove their contention that
respondents reproduced and broadcasted the photographs.
In fact, what petitioners attributed to respondents as an act
of offensive disclosure was no more than the actuality that
respondents appended said photographs in their
memorandum submitted to the trial court in connection with
Civil Case No. CEB-38594.52 These are not tantamount to a
violation of the minor’s informational privacy rights, contrary
to petitioners’ assertion.
In sum, there can be no quibbling that the images in question,
or to be more precise, the photos of minor students scantily
clad, are personal in nature, likely to affect, if indiscriminately
circulated, the reputation of the minors enrolled in a
conservative institution. However, the records are bereft of
any evidence, other than bare assertions that they utilized
Facebook’s privacy settings to make the photos visible only
to them or to a select few. Without proof that they placed the
photographs subject of this case within the ambit of their
protected zone of privacy, they cannot now insist that they
have an expectation of privacy with respect to the
photographs in question.
Had it been proved that the access to the pictures posted
were limited to the original uploader, through the “Me Only”
privacy setting, or that the user’s contact list has been
screened to limit access to a select few, through the
“Custom” setting, the result may have been different, for in
such instances, the intention to limit access to the particular
post, instead of being broadcasted to the public at large or all
the user’s friends en masse, becomes more manifest and
palpable.
*Question about whether one can invoke violation of the right
to privacy against private individuals given that the Bill of
Rights can only be invoked against violations of government
and its agents.
Judge: This right on privacy applies even to private
individuals. Section 2 (right against unlawful searches and
seizures) can only be invoked against law enforcers. Section
3 (privacy of communication and correspondence) applies to
both government and private individuals. The only limitations
being that there is a lawful order from the court or when
public safety and order requires otherwise.
So mail matters, packages sa postal, magovernment or
maprivate – the moment it is sealed, you cannot open it.
That would be a violation of the right t o privacy. Worse,
kawaton pa ang sud. Qualified theft! Do you understand
guys? Take note of that.
Again, if the right is violated, any evidence that is obtained is
inadmissible in any proceedings.
Another limitation to the right of privacy of communication
and correspondence – The Writ of Habeas Data
What is your remedy if your privacy is intruded into on the
basis of some communication or document; however, you
cannot obtain them because it’s private to this agency or
institution? You apply for a writ of habeas data. And this
information will be brought to court and for the court to
determine if indeed your privacy has been intruded into.
Your privacy therefore with regards to that document is
regulated by the writ of habeas data.
Section 1. Habeas Data. - The writ of habeas data is a
remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family,
home and correspondence of the aggrieved party (A. M. No.
0 1-16-SC, The Rule On The Writ Of Habeas Data)
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
What is your remedy if your privacy is being intruded into by
some communication, documents or correspondence?
However you cannot obtain them because it is with a private
person, agency or entity.
- You demand for a writ of habeas data. The
information will be brought to court and it is the court
who will determine whether or not your privacy is
violated. If such is the case, the document can be
destroyed.
- Your privacy referred to by the document is
protected by the writ of habeas data.
Two test to determine reasonableness of expectation of
privacy:
1. Whether by one’s conduct, the individual has
exhibited an expectation of privacy.
2. Whether this expectation is recognized by society as
reasonable.
-so if you post something on Facebook, do you expect it to
be private? And as far as the public is concerned, is it
reasonable that you demand privacy after posting publicly all
your personal things there? Pati pangotot you have to say
that?! Doklon tamo ron
-there is no reasonable expectation in facebook ha! be
careful sa inyung epang post
FREEDOM OF EXPRESSION
Includes:
1. the freedom of speech
-the freedom of speech includes:
1. acts that are communicative in nature.
Example picketing
2. also it includes the freedom to be heard and
listened to. Example your talking to the audience
but there’s a big Trumpa (?!) making noise, so in
effect, your speech cannot be heard. That would
be a violation of your freedom to be heard!
2. the freedom of press
3. the freedom of expression in general
4. the right to peaceably assemble and petition the
government to express grievances
5. the freedom of religion
There are corollary rights to the freedom of expression:
1. freedom from prior restraint or censorship.
Includes:
-Content-neutral regulation= limitations on
the time, place, and manner of your exercise of the
freedom of expression
Example: Whether or not you should be given a
permit to hold rallies in a public place (whether they
are allowed to use the street)
-Content-based regulation= the basis used
on whether you would be issued a permit is the
content of the speech itself.
Example: the contents of the film or your material.
Example: In a matter of your attitude towards the
rallyist in stopping or regulating them in their
exercise of their freedom of assembly, where they
have to observe maximum tolerance.
2. freedom from subsequent liability.
The tests involved are:
A. clear and present danger rule
-In normal circumstances, the
test we use in order to hold a person liable
after exercising the freedom of expression
B. dangerous tendency rule
C. balancing of interest test
-When it does not involve public
safety or national security, but rather
involves a conflict between rights that are
equally important that require protection
under the law.
On Subsequent Liability (whether you will be punished after
the exercise of the freedom of expresion); TEST:
1. Clear And Present Danger Rule
2. Dangerous Tendency Rule
3. Balancing Of Interest
In normal circumstances within our jurisdiction—what is the
test that we follow to hold you liable as in exercising the
freedom of expression? It is the CLEAR AND PRESENT
DANGER RULE.
When it does not involve public safety or national
security—when there is conflict between rights that are
equally important that require protection of the law; what do
you use? The BALANCING OF INTEREST.
RECAP:
 If prior restraint; 2 TEST:
o 1)Content-based;
o 2)Content-Neutral regulation
 Subsequent liability; 3 TEST:
o 1)Clear And Present Danger Rule;
o 2)Dangerous Tendency Rule;
o 3)Balancing Of Interest
 But normal circumstances; 2 TESt:
o 1)Clear And Present Danger Rule;
o 2)Balancing Of Interest
NOT protected by law on speeches:
1. Libelous (defined by the RPC); defenses:
a. private communication made by any
person to another in the performance of
any legal, moral or social duty;
b. a fair and true report, made in good faith,
without remarks, of any judicial,
legislative or other official proceeding
which are not confidential in nature
including any statement made therein or
act performed by public officer.
2. Seditious (defined by the RPC)
3. Obscene
FREEDOM OF PRESS
Case: Chavez v. Gonzales February 15, 2008
 4 ASPECTS of the press freedom:
a.freedom from prior restraint
b.freedom from subsequent ? through
publication
c. freedom of acess to information
d.freedom of circulation
Included or covered by the freedom of press: films (movies),
television programs
In relation to freedom on prior restaint, how do you consider
the role of MTRCB? REEGULATION only on programs but
no authority/jurisdiction or even supervision over—case of
Soriano v. Laguardi
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Answer:
SC:the MTRCB may not suspend television
personalities, for such would be beyond its
jurisdiction (this is inconsonance with freedom of
expression).
Can you do a facial challenge on the constitutionality of a law
that affects on the freedom of speech? YES—case of Disini,
Jr. et al v. The Sec. Of Justice; Southern Hemishpere v.
Anti-Terrorism Council
The TEST whether or not this be reviewed by the Supreme
court involving the freedom of expression on a facial
challenge; TN:2 GROUNDS used to challenge on the face of
the law—
1. Void for being Vauge Doctrine
2. Overbreadth Doctrine
*both applies in freedom of speech in particular
So it has been established that you can challenge any
law, on its face, when it involves:
 Free Speech,
 Religious Freedom: and
 Other Fundamental Rights.
Under no case may ordinary penal statutes be subjected to a
facial challengeCriminal statutes have general in terrorem
effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may
well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot
take chances as in the area of free speech. (so, this is with
regards to the challenge to the anti-terrorism act—Southern
Hemisphere Case)
There is a discussion also of the overbreadth doctrine in the
Disini case with regards to the cybercrime prevention act.
*READ DAW BOTH THE DISINI CASE AND THE
SOUTHERN HEMISPHERE CASE.
Also, A HECKLER'S VETO, a limitation on the freedom of
expression, occurs when an acting party's right to freedom of
speech is curtailed or restricted by the government in order
to prevent a reacting party's behavior. Like for example:
when you are delivering your speech, someone was
heckling or gi.buno baka ug kamatis—so, just to avoid
further disturbance of peace and order in the premises, you
will be stopped from further delivering your speech. So,
that’s Heckler’s veto. This is a valid limitation on one’s
exercise of freedom of expression.
Q; with reagrds to the two test (void for vaugeness and
overbreadth doctrine), does these apply also to all rights
under the Bill of Rights? Or thus these only apply to the
freedom of expression?
Answer: particulary to the freedom of _ only and on the
freedom of religion as well. it cannot be used.
In Re: Mr. Garcia’s question about the Void for Vagueness
and Overbreadth Doctrines.
Q: Does it apply also to other rights under the Bill of Rights
or does it only apply to the freedom of expression?
Answer: Particularly on the freedom of speech only or
freedom of religion as well is included.
Estrada vs Desierto
Where he questioned the constitutionality of the plunder law
as being vague and the SC said you cannot apply unless it
relates to the freedom of speech.
FREEDOM OF EXPRESSION
Q: The heckler’s veto, is this justified by any of the 3 tests,
the dangerous tendency test, balancing of interest or the
compelling state interest?
Answer: Prior restraint I suppose it may be covered by, how
do you call this. It’s not even covered by clear and imminent
danger. Not the dangerous tendency. I think compelling
state interest. Just compelling. Not even extreme. Peace
and order only. Yes. It’s not as extreme as when it involves
public safety or national security.
Heckler’s Veto
Restriction on the delivery of your speech publicly if it
disturbs the peace and order. You may be stopped right
away from continuing the delivery of the speech so that it will
not disturb the peace and order.
Q: The dangerous tendency how is it different from clear and
compelling state interests? Isnt it that if there’s dangerous
tendency it tends to undermine the state interest?
Answer: But it may not happen at all. It’s just like preventive.
You’re only speculating that it could happen. In this case it
happened. For the heckler’s veto there is already a
disturbance of the peace and order being committed. And to
just stop further causing disturbance of the peace and order
in the community, you are just being asked to stop your
delivery of your speech. That’s it.
Q: So how is the compelling state interest different from the
dangerous tendency? In the dangerous tendency, the
speech that is suppose to be attacked is (inaudible) national
security?
Answer: Yes in most cases. Usually its like, they use it like
there is martial law. That is why they use the dangerous
tendency because martial law is decalred to maintain or
restore peace and order. And here you are you’re instigating
people prior search to go against the govt then by just even,
if it would not actually instigate people you can already be
punished for it.
Compelling State Interest - more on the prior restraint
Dangerous Tendency - the determination of subsequent
liability or punishment
Do you see the difference? While you can be stopped from
there’s prior restraint, there’s censorship there, prior
censorship. On the dangerous tendency, you have already
committed or you have already exercised the right and now
it’s the determination of your liablity. So they use either the
clear and present danger rule, the dangerous tendency or
the balancing of interests.
As I was saying earlier, that is why I made a distinction.
To determine whether there should be prior restraint or
censorship of the exercise of your freedom of expression
you can use 2 tests:
1. Content-based restriction
2. Content-neutral regulation
To determine subsequent liability or punishment for the
exercise of the freedom of expression, you have the three:
1. The Clear and Present Danger Rule
2. Dangerous Tendency
3. Balancing of Interests.
You see the difference?
Because both are guaranteed in the exercise of your
freedom of expression. But it can be tested whether you
should be restrained before or after actually exercising the
right. Whether you should be punished for it. So to determine
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
whether it is seditious, they use clear and present danger
rule, the dangerous tendency or the balancing of interests.
Example:
It is like if you shout now, outside, “fire!” nobody would
believe you esp you don’t see any smoke or smell anything,
if the skies are clear. Then you just shout there, maybe you
are hungry, so you’ve gone crazy and you shouted that
there’s fire. To determine the liability of alarm and scandal,
you follow the clear and present danger rule. Bahala nag
mushagit ka dira. After all, affecting people or endangering
people is kinda remote. If you do that outside of the building.
But if you do that inside a movie house, and it’s full and you’ll
shout “fire” and the place is dark, and it’s a standing capacity,
even if your shouting fire may not have caused any danger
to the lives of the people in the movie house you can be
liable under the dangerous tendency rule not under the
clear and present danger rule.
As to liability:
Under the clear and present danger rule its more lenient
because somebody must be hurt to hold you liable. In
dangerous tendency, even if nobody was hurt but there is
capacity of hurting people by your exercising your freedom
of expression then you can be punished for that.
FREEDOM OF ASSEMBLY
Read: Batas Pambansa Blng. 880 (The Public Assembly
Act)
General Rule: The requirement of a permit.
Supreme Court said its not unconstitutional because its only
a content-neutral regulation. You are not being stopped
from holding a rally only that there’s a regulation on the time,
manner and place of the holding of the rally.
Exceptions:
However, you take note that you don’t need a permit:
1. When you use a freedom park
2. A school campus owned by the govt, state university
or college
3. A private place.
B.P. No. 880
SEC. 4. Permit when required and when not required.-- A
written permit shall be required for any person or persons to
organize and hold a public assembly in a public
place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly
established by law or ordinance or in private property, in
which case only the consent of the owner or the one entitled
to its legal possession is required, or in the campus of a
government-owned and operated educational institution
which shall be subject to the rules and regulations of said
educational institution. Political meetings or rallies held
during any election campaign period as provided for by law
are not covered by this Act.
GR: Permit required.
EXC:
1. Freedom park – duly established by law or
ordinance
2. Private property –with consent of owner with legal
possession
3. Campus of government-owned and operated
educational institution
IBP vs. Atienza GR No. 175241, February 24, 2010
IBP was granted a permit to hold a rally somewhere in
Mendiola and it was change by Mayor Atienza. Remember
when you apply for a permit, and it was denied then you can
appeal within a period of time, and if it was granted then,
that’s it. If it will be changed, then you have to notify the party
concerned if it will be changed. It was an issue in this case
because there was no notice to the IBP regarding the
change of venue.
SC: Atienza gravely abused his discretion when he did not
immediately inform the IBP which should have been heard
first on the matter of his perceived imminent and grave
danger of a substantive evil that may warrant the changing
of the venue under BP 880, the Public Assembly Act. It
found that Atienza failed to indicate how he had arrived at
modifying the terms of the permit against the standard of a
clear and present danger test which is an indispensable
condition to such modification. “Nothing in the issued permit
adverts to an imminent and grave danger of a substantive
evil, which ‘blank’ denial or modification would, when
granted imprimatur as the appellate court would have it,
render illusory any judicial scrutiny thereto,”
COMMERCIAL SPEECH – is just practically a proposal of
commercial transaction for as long as:
(Limit:)
1. No fraud
2. Not misleading the pubic
3. Government has no interest to protect
Example: bench/penshoppe billboard (where two
males are holding hands) or the mannequins
suggesting males kissing
Judge: there is no clear and present danger, or
substantive evil that needs to be protected and as
long as there is no interest of the government that
must be protected, then I suppose there is no
violation there. Commercial speech is allowed and
protected by law.
Private Speech vs. Public Speech
Private Speech – you can say anything you want to say
under the sun as long as it is not libelous, seditious, or
obscene.
Public Speech (Government Speech) – The government is
not neutral. Once it has its stands on an issue, then they
have to promote that.
Example: RH Law (TN: not yet settled)
The government is promoting the RH Law. You are a
devoted Catholic and you don’t want to promote the use of
contraceptives and all, but you are working at PubCom?
Remember, there is an administrative liability should you
refuse to implement the law if you are with government. But
that was declared unconstitutional, by the way, by the SC
saying that there is a violation of your freedom of religion.
But what I’m talking about is you, by being in the government,
you’re supposed to promote the use of contraceptives for
example however you refused, and you are being charged
with insubordination, can you invoke your freedom of speech?
You can’t, because you can’t be neutral in so far as public
speech or government speech is concerned. There is no
freedom in so far as speech is concerned with public position.
Our laws regarding freedom of expression are copied from
the US, laws and jurisprudence of US.
You cannot invoke your freedom of expression if
you are speaking for a government program/working for the
government because this is different as to government
speech.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
In the RH Law, it has nothing to do with religion, it
has something to do with imposing penalty for those who do
not believe it and not implement it, there is liability. And the
Supreme Court was saying that it would not be fair. It might
violate his freedom of religion or his freedom of expression.
There is punishment in that context. There might be
administrative sanctions but not criminal. And you cannot
invoke there your freedom of speech or freedom of
expression.
Conscientious Objector Test
(The part in the ruling applying the conscientious
objector test, the religious freedom is more important than
the proper implementation of the law, which is strange
because if you are a government officer, you have to
implement the rule whether or not there is religious objection
to that because you have to protect the interest of the RH
Law. So what I am interested in is like, what are the effects
on that ruling on the matter of speech?)
 We just adopted this from American jurisprudence
and it was not enacted into a law, it is just an opinion
that was derived from American jurisprudence but
this RH law where they sustained the Conscientious
Objector Test it is in the law that was declared
unconstitutional for being violative of the religious
freedom.
If for example we would apply the punishment for
the speech an administrative liability, is it possible that you
as a government officer be removed for not following the
stand of the government regarding the RH Law?
 You cannot. That is under the decision of the SC
that you can’t be removed. That particular provision
of the law was already declared unconstitutional by
the SC so there is no more law that would be a basis
to remove you from office or punish you.
Reconciliation of the two doctrines on private and public
speech in relation to the freedom of religion more particularly
on the Conscientious Objector Test
Let me go over that and we will discuss this in the next
meeting. (freedom of speech with regards to the RH law.)
FREEDOM OF RELIGION
Things need to take note:
1. Non establishment of religion
2. Freedom of religion
3. No religion test
NON ESTABLISHMENT OF RELIGION
How is this being enforce? You have the prohibitions. We
have gone over this before right guys. So I don’t have to
repeat that guys. You have the exceptions to the non
establishment of religions, so I don’t have to go over that
guys because we have discussed about that guys.
FREEDOM OF RELIGION
2 ASPECTS:
1. Freedom to exercise
2. Freedom to believe
To believe is absolute, however, to exercise is limited and
what you follow as basis is the clear and present danger
rule and compelling state interest.
Take note of some cases where these two principles were
being applied.
1. Ebralinag vs. Division Superintendent of schools -
regarding on saluting the flag. Now it is being prohibited if it
will violate one’s freedom of religion or the religious beliefs
on certain groups of individuals
2. Ang Ladlad LGBT party vs COMELEC April 8, 2010.
Where religion is used as basis in disqualifying LGBT as a
partylist, saying that being gay or lesbian is against the
Koran, and the Bible. Supreme Court was saying that you
cannot use it as basis to disqualify because the government
has nothing to do with religion.
Also take note conscientious objector test. You read the
case of the RH law where the conscientious objector test
was being applied in order to declare unconstitutional those
provisions that would punish anyone who would not
implement the RH law. That was already been declared as
unconstitutional.
So what is the concept of this conscientious objector test.
read Ang Ladlad case.
So you also have the case of Estrada vs. Escritor.
(Nachura page 163) Compelling State Interest and
Benevolent Neutral Accommodation. Benevolent neutrality.
Take note of the tests in intruding into your freedom of
religion:
1. Clear and present danger test
2. Compelling state interest test
3. Conscientious objector test
In conscientious objector test, I suppose, that you cannot be
compelled or there is no liability by reason of your freedom of
religion. We have a limit in the application of the
conscientious objector test.
For example: your refusal to render military service because
of your religion like you are a Jehovah’s Witness. That is not
acceptable under present jurisprudence. But this one has
been used in America, in determining liability for those who
refuse to render military service for it is against their religion
for as long as there is consistency according to the supreme
court in America, that is an accepted test in determining
liability.
A person who because of principles of religious training and
moral beliefs is opposed to all war regardless of its cause, so
the conscientious objector may be release from the
obligation to serve in the Armed Forces or to participate in a
selective service registration. A conscientious objector must
opposed to war in any form and not just a particular war in
order to avoid military service.
I suppose that you can apply this to the Muslims. They are
allowed to have four wives. If they are married to two wives
and is charged with bigamy, then they can always invoke
their religion if it is allowed to by their religion as a
conscientious objector. But if you are a former catholic and
you convert yourself to Muslim so you can marry the second
wife as the first wife’s marriage cannot be annulled then you
are not a conscientious objector. You have no
conscience(hehehe). This does not justify. You cannot be
considered as a conscientious objector. It is not based on
religion or your belief but based on your convenience to
avoid criminal liability for bigamy. Simply put, you apply it in
religion, so this was applied in the RH law.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Question (classmate)(inaudible) (about singer of ANAK)
Judge: He can be charged with violation of child abuse.
Jusmariajoseph. I wonder if he is not married, this is the first
time he got married? Ahw, second. Second na ni niya? He
can be charged with bigamous marriage. Ohh, nagpa
convert. Can he be charge criminally? YES. Can he invoke
freedom of religion? Certainly NOT. He cannot used the
objector’s conscientious test in applying the law against him.
Conscientious Objector’s Test in RH Law
The conscientious objector’s test in relation to government
speech.
Let me just emphasize on the nature of Government Speech
after each particular side the government has to adopt - it
cannot be neutral to a particular subject matter. Therefore, if
you are connected with the government or receiving funding
from the government, for example, then there is no freedom
in so far as taking a stand either for or against. It is expected
of you to follow the stand of the government - that is
basically the gist of government speech. There is no
neutrality.
In relation to conscientious objector’s test, this is only
applied where it may affect your beliefs, religious or moral
beliefs. But this originated actually from the rendition of
military service because back then in America they are
selling or either accept payment for not serving the military
or otherwise because of their beliefs they refuse to render
military service. Now then, on the basis of the belief of that
person that needs to be respected as long as it is consistent,
then there may not be liability.
If you are connect it with RH Law, on the objector’s test,
generally it should have not been applied in the case of RH
Law. Nonetheless, it was in a sense applied because that
liability on the part of a private or government practitioner
has been deleted in so far as refusing to implement or to
assist the government in the implementation of the program
under the RH Law. In the sense that if you are a private
practitioner, in that RH Law, you can, supposedly, held liable
if you refuse to render service that would support RH Law,
example, the giving of contraceptives or even providing
services for abortion.
There is liability to both government doctor or a health
worker and a private doctor or private health worker. So they
may be compromised except because of the respect of one’s
religious or moral beliefs. Under the concept of
conscientious objector’s test, they are given such leeway
that instead of being compelled to follow the law, they have
now the option that if it is against the religious belief, they
may refer that to another facility or another doctor if he is a
private practitioner. If you are a government practitioner or
health worker who has, supposedly, the obligation to follow
the policy and program of the government, you have now the
option to refer that person to another facility of the
government providing that service if personally out of his
religious belief.
LIBERTY OF ABODE
Section 6. There are 2 rights involved here. On the liberty of
abode, we don’t have much any problem here. It is simply
the (1) right to choose where do you want to live and the (2)
changing of your residence within the limits prescribed by
law
The only limitation to the liberty of abode is when there is a
lawful order of the court. That is the only limitation.
On the right to travel, take note, that is the freedom to go
wherever you want to go either within the country or outside
of the country. The only limitation being in the interest of
national security, public safety or public health as within the
limits prescribed by law. In other words, the limitation to right
to travel is not, as a general rule, prescribed by an order of
the court. It is only by an administrative agency and there are
only 2 grounds, that is, national security, public safety and
public health.
In other words, the limitation to the right to travel is not as a
general rule prescribed by an order of the court, it is only by
an administrative agency and there can be three grounds:
1. national security
2. public safety
3. public health
Take note of the jurisprudence regarding on a court order
such as hold departure order simply because you are facing
criminal charges wherein you have posted bail. So bail now
is kind of a limitation on your right to travel because you
need permission form the court before you are allowed to
travel. This is because of your undertaking under that bail
bond that wherever you are required to appear before that
court, you will appear. So that is precisely the reason why if
you failed to appear when you’re out on bail, the court can
always issue a bench warrant to compel you to appear in
court.
Now if you have gone abroad already without the consent or
without the knowledge of the court, most likely you will
appear in court when you are required to appear. So the
court will be compelled to issue the warrant. But how can the
court now enforce or implement the warrant when you are
already beyond its reach? That’s basically the reason why
there is a limit to one’s right to travel if one is facing criminal
charges and out of jail or enjoying his provisional liberty
under a bail bond.
Take note of these cases:
1. Manotoc
2. Santiago vs ombudsman
3. Romualdez vs Sandiganbayan
- Read: Villavicencio vs. Lukban; Manotoc
vs. CA; Silverio vs CA- Relate to
suspension of deployment of OFWs to
SARs infected countries. In relation to
bail (Manotoc vs. CA; Santiago vs.
Vasquez)- valid restriction on his right
to travel.
- Marcos vs. Sandiganbayan, GR No.
115132, August 9, 1995- The person’s
right to travel is subject to the usual
constraints imposed by the very
necessity of safeguarding the system of
justice. Whether the accused should be
permitted to leave the country for
humanitarian reasons is a matter
addressed to the court’s discretion. (Yap
vs. CA, GR No. 141529, June 6, 2001).
- Yap vs. CA- 6/6/01- court my restrict right
of abode in granting bail.
(Pre-Bar)
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
The only thing that is new as regards to the right to travel is
with respect to court personnel and judges and justices
being required to first ask permission from the Supreme
Court before they are allowed to travel abroad.
Judge: We cannot travel abroad without that permit, aw we
can, why not? but the thing is there is administrative
liabilities. And the question on the constitutionality of this
requirement saying that we are guaranteed of our
constitutional right such as to travel, why are we now being
required to secure that permit considering how tedious it is to
apply for it because you have to give your reason why you
have to go abroad.
Office of the administrative services – Office Of The
Court Administrative Vs Judge Ignacio Macarile
Judge was sanction because he did not ask for permission,
the supreme court said that there is actually no prohibition, it
is only being regulated. The right to travel is guaranteed by
the constitution however the exercise of such right is not
absolute. Sec 6 Art 3 of the 1987 Consti allows restrictions
on such right provided that such restriction is in the interest
of national security, public safety and public health as may
be provided by law. This however should no means
construed as limiting, the supreme court in their power of
administrative supervision over the courts. It does not restrict
in this case but merely regulates. To make sure that kung
nag suroy-suroy ka abroad and you got a lot of cases to hear
and resolve, you might prejudice public service particularly in
the administration of justice. The supreme court said to
restrict is to restrain or prohibit a person from doing
something. To regulate however is to govern or direct
according to rule. To ensure management of court dockets,
and to avoid disruption in the administration of justice, thus
the circular of the supreme court requiring a judge who
wishes to travel abroad to submit together with his
application of absence, duly recommended for approval by
his executive judge, a certification from the statistic division
court management office of the OCA. That the certification
shall state the condition of his docket based on his certificate
of service for the month immediately preceding the date of
his intended travel that he has decided and resolve all cases
and incidence within three months from date of submission.
On the hold departure order, only RTC and the higher court
can issue HDO, courts of first level cannot issue HDO. That
can be issued even without informing the accused especially
when he is still at large. But when he is already within the
jurisdiction of the court such as he is detained if not out of
bail, then there has to be a hearing before the HDO is issued
by the court. And usually the HD issued by the court is
indefinite.
A:TN the case of the Office the Administrator services, office
of the court administrator in Judge Ignacio Makarili, where the
supreme court said the right to travel guaranteed by the
constitution should by no means be construed as limiting the
supreme court’s inherent power of administrative supervision
over lower courts. The law does not restrict but merely
regulates by providing guidelines to be complied by the judges
and court personnel before they can go on leave to travel
abroad. To restrict is to restrain or prohibit a person from
doing something to regulate however is needed to govern or
direct according to rule. There is no prohibition but merely a
regulation.
“It has been argued that OCA Circular No. 49-2003 (B) on
vacation leave to be spent abroad unduly restricts a citizen's
right to travel guaranteed by Section 6, Article III of the 1987
Constitution. 10 Section 6 reads:
Sec. 6.The liberty of abode and of changing
the same within the limits prescribed by law
shall not be impaired except upon lawful
order of the court. Neither shall theright to
travel be impaired except in the interest
of national security, public safety,
or public health, as may be provided by
law. [Emphases supplied]
Let there be no doubt that the Court recognizes a citizen's
constitutional right to travel. It is, however, not the issue in this
case. The only issue in this case is the non-compliance with
the Court's rules and regulations. It should be noted that
respondent, in her Comment, did not raise any constitutional
concerns. In fact, she was apologetic and openly admitted that
she went abroad without the required travel authority. Hence,
this is not the proper vehicle to thresh out issues on one's
constitutional right to travel. Cdasia
Nonetheless, granting that it is an issue, the exercise of one's
right to travel or the freedom to move from one place to
another, 11 as assured by the Constitution, is not absolute.
There are constitutional, statutory and inherent limitations
regulating the right to travel. Section 6 itself provides that
"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."
Inherent limitations on the right to travel are those that
naturally emanate from the source. These are very
basic and are built-in with the power. An example of
such inherent limitation is the power of the trial courts
to prohibit persons charged with a crime to leave the
country. 13 In such a case, permission of the court is
necessary. Another is the inherent power of the
legislative department to conduct a congressional
inquiry in aid of legislation. In the exercise of
legislative inquiry, Congress has the power to issue
a subpoena and subpoena duces tecum to a witness
in any part of the country, signed by the chairperson
or acting chairperson and the Speaker or acting
Speaker of the House; 14 or in the case of the
Senate, signed by its Chairman or in his absence by
the Acting Chairman, and approved by the Senate
President. 15”aEcHCD |||
(Leave Division, Office of Administrative
Services-OCA v. Heusdens, A.M. No.
P-11-2927, December 13, 2011)
(warrior notes)
Hold Departure Order (chika ni judge)
- accused went abroad without informing the court and the
HDO was not yet filed, naniguwang naxa and he came back
here , when she went back to america he was held by the
Bureau of Immigration because in the record an HDO was
still issued by the court supposedly it should not be more
than five years but there is no updating of records in
immigration
Watchlist order of the Department of Justice
- not more than 60 days but it cannot stop anyone from going
abroad but it will only delay his flight-- his fight will not wait
for him. He is practically stopped from going abroad on
account of a watch list order.
RIGHT TO INFORMATION AND ACCESS TO
INFORMATION
Sec. 7. Accessible to people as a matter of public concern
and the determination is discretionary:
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
That is why they are demanding that he Freedom of
Information Bill be passed so that it will no longer be
discretionary of the Supreme Court to determine its propriety
as being part of public concern. The moment it is declared as
a matter of public concern it becomes ministerial on the part
of the government to give out the information to the public.
The MANNER OF ACCESS IS DISCRETIONARY-- like the
hours on which they are available, the circumstances, fees,
etc.
What are the matters that are of public concern:
- contracts under negotiation as long as concrete
propositions before consummation because whats the point
of giving this right if the contract is already concluded. How
can you question the terms if i is already consummated.
* EXC. TREATY NEGOTIATION
- contracting loans with GSIS
MANNER is discretionary of government or the
custodian of the information
The cornerstone of this republican
system of government is delegation of power
by the people to the State. In this system,
governmental agencies and institutions
operate within the limits of the authority
conferred by the people. Denied access to
information on the inner workings of
government, the citizenry can become prey to
the whims and caprices of those to whom the
power had been delegated. The postulate of
public office is a public trust,
institutionalized in the Constitution to
protect the people from abuse of
governmental power, would certainly be
mere empty words if access to such
information of public concern is denied x x
x x x The right to information goes
hand-in-hand with the constitutional policies of full
public disclosure and honesty in the public service. It
is meant to enhance the widening role of the citizenry
in governmental decision-making as well as in
checking abuse in government. (Emphases supplied)

NOT ACCESSIBLE TO PUBLIC Originally, that is confidential. you cannot access this
- national security information. in a recent decision of the supreme court, now it
- intelligence is accessible to the public.
- Trade secrets
- Banking transaction Question: what was the reason why it was not accessible?
- Diplomatic correspondence Answer: because the justices were afraid that they might be
- executive session the subject of kidnapping, extortion, robbery, etc. it might be
- closed door public meeting used against them. precisely you have this new ruling now
- Supreme court deliberation saying that the information disclosed in the SALN is now
- Judicial privilege considered a matter of public concern and interest. in other
- executive privilege words a duty to disclose sprang from the right to know.
Thus, while public concern like public interest eludes exact
SALN CASE: REQUEST FOR COPY OF 2008 definition and has been said to embrace a broad spectrum of
STATEMENT OF ASSESTS, LIABILITIES AND NET subjects which the public may want to know, either because
WORTH AND PERSONAL DATA SHEET OR such matters directly affect their lives, or simply because
CURRICULIM VITAE OF THE JUSTICES OF THE such matters naturally arouse the interest of an ordinary
SUPREME COURT AND EMPLOYEES OF THE citizen, the Constitution itself, under Section 17, Article XI,
JUDICIARY has classified the information disclosed in the SALN as a
matter of public concern and interest. In other words, a duty
RE: REQUEST FOR COPY OF 2008 STATEMENT OF to disclose sprang from the right to know. Both of
ASSETS, LIABILITIES AND NETWORTH [SALN] AND constitutional origin, the former is a command while the latter
PERSONAL DATA SHEET OR CURRICULUM VITAE is a permission. Hence, the
OF THE JUSTICES OF THE SUPREME COURT AND
OFFICERS AND EMPLOYEES OF THE JUDICIARY. duty on the part of members of the government to disclose
A.M. No. 09-8-6-SC June 13, 2012 their SALNs to the public in the manner provided by law:

“Corollary to the above pronouncements, Section 7, Section 17. A public officer or employee shall, upon
Article III of the Constitution is relevant in the issue of assumption of office and as often thereafter as may be
public disclosure of SALN and other documents of public required by law, submit a declaration under oath of his
officials, viz: assets, liabilities, and net worth. In the case of the President,
the Vice-President, the Members of the Cabinet, the
Sec. 7. The right of the people to Congress, the Supreme Court, the Constitutional
information on matters of public concern Commissions and other constitutional offices, and officers of
shall be recognized. Access to official the armed forces with general or flag rank, the declaration
records, and to documents, and shall be disclosed to the public in the manner provided by
paperspertaining to official acts, law. (A.M. No. 09-8-6-SC June 13, 2012)
transactions, or decisions, as well as to
government research data used as basis for Take note as i have emphasized earlier,
policy development, shall be afforded the
citizen, subject to such limitations as may be While public officers in the custody or control of public
provided by law. records have the discretion to regulate the manner in which
records may be inspected, examined or copied by interested
Emphasizing the import and meaning of the persons, such discretion does not carry with it the authority
foregoing constitutional provision, the Court, in the to prohibit access, inspection, examination, or copying of the
landmark case of Valmonte v. Belmonte, records. After all, public office is a public trust. Public officers
Jr.,[50] elucidated on the import of the right to information and employees must, at all times, be accountable to the
in this wise: people, serve them with utmost responsibility, integrity,

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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
loyalty, and efficiency, act with patriotism and justice, and
lead modest lives. (A.M. No. 09-8-6-SC June 13, 2012)
Hold Departure Order (Question ni Kay. inaudible)
It's not automatic, you have to file a motion because there
are requirements you have to comply like you have to state
the place of birth, his aliases, his pictures, etc. because if
they are not complied the court will certainly not issue an
HDO.
It's more of an exception than a general rule and therefore
the court has to follow the rules because this would be a
restriction on the right or liberty of abode and travel.
Another point. On returning to the country,
that is not included in the right to travel or the liberty of
abode.
it is provided for by the declaration of human rights and
convention on political and civil rights which are generally
accepted principles of international law and under the
incorporation clause they are automatically adopted as part
of the legal system
FERDINAND E. MARCOS v. HONORABLE RAUL
MANGLAPUS G.R. No. 88211 September 15, 1989
Section 8. The right of the people, including those employed
in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law
shall not be abridged.
On the right to association. emphasis on public employees
they can now for unions for as long as the purpose is not
contrary to law.
this also include the right not to be compelled to be a
member of a union or organization for that matter if you do
not like to become a member of such organization
Take note of some exceptions here:
1. Prohibition against security guards from forming a union.
For obvious reasons they are armed and they can easily
hold the owner of the security agency hostage should the
owner not agree with the terms that they want in a collective
bargaining
2. supervisory (incorrect. later in the discussion)
On the other hand, one may be compelled for reasons of
public interest. in the exercise of police power, all lawyers
are integrated under one organization and the membership
is compulsory. this is only to regulate them with their
shenanigans. there is only one way of monitoring them by
the supreme court through the integrated bar of the
Philippines because they are too many they are so
dangerous that they need to monitored closely through the
integrated bar of the Philippines. nonetheless the supreme
court was saying anyway you are compelled only insofar as
membership. in fact you cannot practice law if you are not a
member of IBP and you have not paid your annual dues. that
is what is compulsory. the members however are never
compelled to join the activities of the IBP. its only the
payment of the annual dues that is compulsory.
IBP membership of Lawyers (continuation)
-cannot continue practicing law if not a member of the
IBP and if you did not pay your annual dues.
-this is compulsory, the members however are not
compelled to join the activities of the IBP. It is only the
payment of the annual fess that is compulsory.
Correction as to the non-application of right to form
unions as to Supervisor
-Art 125 (or is it 245?) of the Labor Code has been
amended and now, the supervisors may form labor
unions, so long as they do not co-mingle with the
rank-and-file employees in the same union. (so the case
Supervisory Union vs Laguesma that judge cited, that
supervisors are prohibited from forming unions, has
been superseded)
Government Employees forming unions
-they are not allowed in engaging concerted activities
such as strikes.
-the prohibition to strike (as to government employees)
is provided by statute, and not by the Constitution.
NON-IMPAIRMENT OF OBLIGATION OF CONTRACTS
Sec 10: There should not be any retroactive application
of any law that would affect the rights of the parties to a
contract.
This actually originated from America, where some
persons have been relieved of their debts because of a
subsequent law passed by Congress, relieving them or
exonerating them from any civil liability and thereby
affecting the contract they entered thereto.
It should only be contemporary application of the law of
contracts. Anything that would modify or change the
terms and conditions of the contract that would diminish
the rights and obligations of the parties to a contract is
not allowed.
This is only addressed to the Congress, not to the courts
or other offices of the government exercising
quasi-judicial functions. Again, this is only addressed
to the Congress, being prohibited from passing laws that
would impair existing obligations of contract.
Exceptions (to the application of Non-impairment
clause):
1. Stipulation in the contract (Waiver)
“unless otherwise provided by law.” That is the
reservation clause.
2. Police Power of the State.
Police power that is curative in nature, it might be
applied retroactively even if it would affect existing
rights of parties in a contract
3. Eminent Domain of the State
As between this and non-impairment clause, eminent
domain is superior.
4. Taxation
It could apply retroactively to an existing contract,
adding to the burden to the parties in a contract like
increase in the tax rate on whatever it is agreed upon
under the context that it would be applied retroactively
as well.
5. Public Utility Franchise
No less than the constitution provides for an
exemption, it is subject to alteration, repeal and
amendment.
No less than the Constitution provides for the exception that
it is subject to alteration, repeal and amendment. Again I
repeat this does not apply to the courts and quasi-judicial
bodies.
INVOLUNTARY SERVITUDE
"Section 17. (2) No involuntary servitude in any form shall
exist except as a punishment for a crime whereof the party
shall have been duly convicted."
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
You cannot be compelled to render service for another
against your will without your consent. The exceptions are:
* When you are convicted of a crime and part of the penalty
is forced labor. For as long as the judgment is already final
and executory.
* Or under Patria Potestas
* Or under Posse Comitatus - able citizens of the community
may be compelled to render service
* Military defense
* When you are employed in a merchant vessel. You cannot
just leave the vessel.
Exception to involuntary servitude; among
others:
1. Punishment for a crime;
2. service in defense of the state
3. naval enlistment
4. posse comitatus
5. return to work order
6. patria potestas
NON-PAYMENT OF DEBTS
"Section 20. No person shall be imprisoned for debt or
non-payment of a poll tax."
As long as the debt arises from a contractual obligation. That
includes rental. You cannot be imprisoned for the
non-payment of rentals for your house. But if you don’t pay
your hotel bills that would be a different story. That would be
Estafa.
On the non-payment of Poll Tax, you cannot also be put to
jail. But income tax, you go to jail if you fail to pay, especially
under this administration.
(Question Inaudible)
Judge: I suppose they can. That would be a conflict of
interest. So if supervisory employees they cannot join
rank-and-file employees in a union, but among themselves,
they can now.
"Article 245. Ineligibility of managerial employees to join any
labor organization; right of supervisory employees. —
Managerial employees are not eligible to join, assist or form
any labor organization. Supervisory employees shall not be
eligible for membership in a labor organization of the
rank-and-file employees but may join, assist or form
separate labor organizations of their own."
Can they engage in strike too? No, they can form a union but
they cannot engage in concerted activities.
THE RIGHTS OF THE ACCUSED
1. Before criminal prosecution, and
2. During criminal prosecution
Before criminal prosecution this is what we call as The
Rights Of A Suspect. That is when he is placed in the
custody of law. Or if he has been in any manner deprived of
his freedom of action in any significant way.
Invitation of the police, under RA 7438 is included as already
being placed in the custody of law. Then he stands enjoying
the rights of a suspect.
Rights of a suspect
1. The right to remain silent
2. The right to be assisted with counsel and to make this
available to him while in custody
3. To be informed that he has these rights
Take note that a police line-up is not yet part of custodial
investigation. It is for purposes of identification only, as long
as he is in a police line-up. So when he is the only person in
the room where he is being identified by the witness as the
perpetrator then in that case, he is already entitled to the
assistance of a lawyer. So kung police line-up lang, that is
still exploratory, there is no particular suspect yet being
pointed out as the culprit or perpetrator, then you need not
be accorded with those custodial rights that we have
enumerated. But even if he is in a police line-up however, it
zeroes in on him as the suspect who committed the crime,
then he is entitled to such custodial rights.
***The latter is called a suggestive police line-up
based from american jurisprudence. A commentator
provides some striking examples:
In a Canadian case ... the defendant had been
picked out of a line-up of six men, of which he was
the only Oriental. In other cases, a black-haired
suspect was placed among a group of light-haired
persons, tall suspects have been made to stand with
short non-suspects, and, in a case where the
perpetrator of the crime was known to be a youth, a
suspect under twenty was placed in a line-up with
five other persons, all of whom were forty or over.
Similarly state reports, in the course of describing
prior Identifications admitted as evidence of guilt,
reveal numerous instances of suggestive
procedures, for example, that all in the lineup but the
suspect were known to the Identifying witness, that
the other participants in a lineup were grossly
dissimilar in appearance to the suspect, that only the
suspect was required to wear distinctive clothing
which the culprit allegedly wore, that the witness is
told by the police that they have caught the culprit
after which the defendant is brought before the
witness alone or is viewed in jail, that the suspect is
pointed out before or during a lineup, and that the
participants in the lineup are asked to try on an
article of clothing which fits only the suspect.**
RIGHT TO REMAIN SILENT
The thing you need to remember for the right to remain silent,
this is not limited to giving answers that would place him at
the crime scene but also includes requiring him to do acts
that will belater used against him that are communicative,
that is what is prohibited. This does not include when his
body or anything connected thereto is used as object
evidence. It is only when he is required to do an act, for
example to reenact the crime, he cannot be compelled, that
is tantamount to compelling him to answer to
self-incriminating questions when he has the right to remain
silent. Or asking him to sign the booking sheet or the arrest
record showing that he has been arrested, he may not be
compelled because that is communicative in nature. Also,
when he is asked to give a sample of his handwriting, that is
still not allowed since it is communicative in nature. It is a
different story when he is asked to give a sample of his hair,
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
blood, urine or saliva or he is required to place his foot for a
foot print or he may be required to remove his clothes or
undergo pregnancy test. Where the body is used as the
object evidence, then he may be compelled because what is
prohibited here is only testimonial compulsion. When he is
asked to give a part of himself for DNA testing, he cannot
say no because it involves a mechanical act. It does not
use intelligence or freewill to produce this evidence.
What is prohibited is when he is forced to give information or
answer to questions that will incriminate him. So if he is
asked what is his name, that is not self-incriminating
because the name does not matter for it is not an element
of the crime. Like, where he lives, that is also not
self-incriminating so you may be compelled to answer those
questions.
Also take note that when it is part of res gestae, such that he
made the statement when he was not yet placed under the
custody of the police, then that is admissible in evidence. In
other words, these were spontaneous statements. When
he makes the statements, even when he has admitted the
crime, to a private individual, then that is admissible because
this does not apply to statements given to private individuals.
This is only applicable when he gives the testimony to a law
enforcer, including a barangay tanod for the latter is an
agent of a person in authority. So a confession made by a
person when he is under custody of the barangay tanod
without being informed of his custodial rights, whatever
information that was extracted, is inadmissible in evidence.
Even Bantay Bayan – case of PP vs Lauga
where SC says that a Bantay Bayan is also a person in
authority. Here the sc said that “a barangay based volunteer
or organization of watch group as in the case of Bantay
Bayan are recognized by LGU to perform functions relating
to preservation of peace and order at the barangay level.” So
that’s why precisely if testimony during investigation was
given to him without being informed of his constitutional
rights or rights of suspect will be inadmissible. The supreme
court find the extrajudicial confession of Lauga who was the
accused in this case as being taken without a lawyer and
therefore inadmissible in evidence. He admitted to have
raped the victim in this case to the Bantay Bayan and yet it
was inadmissible in evidence because a Bantay Bayan is
considered to be performing functions which is related to
preservation of peace and order. In other words, a law
enforcer.
Admissions in administrative cases are likewise are
admissible in evidence because these custodial rights are
not available in administrative cases. It is only in criminal
cases.
That’s why admission of police to have committed the crime
or infraction in administrative case is admissible. But that
cannot be used in the criminal aspect of the complaint if it
was made by him without assistance of lawyer.
Say for example, a police charged for bribery (this was a
decided case) he was charged for both grave misconduct
and bribery. Grave misconduct is administrative, bribery is
criminal. His admission was admitted in the administrative
case because the custodial rights there are not available in
administrative cases but inadmissible in the criminal case.
THE RIGHT TO BE ASSISTED WITH COUNSEL
 Who is competent and independent
o tn: choice is not exclusive to the suspect. If
suspect cannot afford the service of a
lawyer, the police has the obligation to
provide him a lawyer (counsel de officio)
and he (suspect) cannot say no.
 Can there be a waiver for this right?
o Yes as long as done in writing and in the
presence of another lawyer.
RIGHT TO REMAIN SILENT
 Can that be waived?
o Yes! For as long as it is done in accordance
with the provisions of RA 7438 like it should
be in writing, in the presence of his lawyer or
his relatives or government officials
responsible in his community.
RIGHT TO BE INFORMED OF HIS CUSTODIAL RIGHTS
 Is this waivable?
o NO!
RIGHT TO BAIL
 This is also another right of the suspect while he is in
custodial investigation.
 What is this right to bail?
o In the meantime that he is being charged or
detained, he can continue to enjoy his
provisional liberty provided that he post bail.
 When is it a matter of right? When is it a matter of
discretion? When should it be denied? “kani dapat ni
ninyu MASTERON”
 This is only available in CRIMINAL CASES
 This is not available in military proceeding or
extradition proceedings or deportation proceedings.
o But in the recent case of Government of
Hongkong Special Administrative vs
Judge Olaliya Jr - this is a case of
extradition proceeding. The sc was saying,
you cannot deny the fact that if you are a
deportee, you are denied of your physical
liberty or if you are charged of a criminal
case before a court martial and you are
being detained, you are still being deprived
of your physical liberty or when you are for
extradition already while you are arrested
while you are going to be extradited, then
you are deprived of physical liberty. The
mere fact that you are deprived of physical
liberty, according to the sc, bail is generally
available in criminal proceeding. But in the
DISCRETION OF THE COURT, bail may be
granted (in extradition cases).
- Government of Hongkong Special Administrator
Region vs. Judge Olalia, Jr., April 19, 2007 –
Potential extraditee may be granted bail on the
basis of “clear and convincing evidence” that the
person is not a flight risk and will abide with all the
orders and processes of the extradition court.
Pre-Bar
This is an extradition proceeding. The Supreme Court
was saying you cannot deny the fact that if you are a
deportee, you are denied of your physical liberty. Or if
you are charged of a criminal case before a
court-marshall and you are detained, you are still being
deprived of your physical liberty. Or if you are already
for extradition, and you are arrested while you are going
to be extradited then you are deprived of physical liberty.
According to SC, right to bail is only available in
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
criminal proceedings. That at the discretion fo the court,
bail may be granted. For example, what could be the
reason in so far in deportation proceedings, for
humanitarian reasons when an alien is already very sick
and his country of origin refuses to accept him. For as
long as there is a clear and convincing evidence that the
person is not a flight risk and he will abide with the
orders and processes of a deportation or extradition
court. It is a matter of discretion, not a matter of right.
For military proceedings, it should be denied. It is not
discretionary, not a right. It should be denied. Military men
facing charges in a military court should be denied. That is
the prevailing principle in so far as military men facing
charges in a military tribunal.
When it is a matter of right, discretionary or should be
denied?
 If it is in the first level court, it is punishable for 6 years
or less, it is a matter of right.
 Bisan kapila pa na mu jump bail, basta before
conviction, a matter of right.
 Now what will the court do?
 They will raise the amount of the bail, but you
cannot deny him the right to bail. Convicted with
appeal to RTC, he jumped bail and re-arrested.
 Can he demand bail as a matter of right?
 Yes it is a matter of right. Basta gani first level court,
a matter of right.
 Now RTC na ta. Before conviction, depende kung unsa
ang iyang charge, When the penalty is less than
reclusion perpetua, meaning these are punishable with
6 years and 1 day to 20 years (reclusion temporal).
 Before conviction, it is a matter of right. Even if the
evidence is strong, it is a matter of right, before
conviction. He jumped bail, still it is a matter of right
before conviction.
 Now convicted, but the penalty is less than
reclusion perpetua or death.
 IS it a matter of right? Discretionary or should be
denied?
 Discretionary on the court.
 But if attended by circumstances such as recidivist,
evaded sentence, frequently jumped bail, flight risk,
habitual delinquent, previously convicted, violated
probation, evaded sentence that discretion of the court
is removed.
 When the accused is convicted of more than six
years of imprisonment, it should be denied.
 That is why we should always ask the accused after
conviction especially those who are bonded to justify
why he should continue to enjoy liberty while he is
appealing the decision of the RTC.
 Now when the accused is CHARGED of an offense
punishable by reclusion perpetua or death, before
conviction, it is a matter of right, discretionary or should
be denied? Is it automatic that it should be denied?
 The fiscal merely recommends no bail but it is
ultimately the court who will decide whether he
should be allowed to post bail or not. If it is a capital
offense, it is discretionary on the court which would
first determine if evidence of guilt is strong hence
there should be a hearing.
Even if the fiscals says no objection to the application of bail
the court still MUST hear the application for bail for the court
to determine whether the evidence of the prosecution is
strong. The moment that is established, then the discretion
of the court to rove bail should be denied even before
conviction.
Assume he was convicted for a lesser offense. Is it now
discretionary of the court to grant the appeal of bail? Let’s
say, charge with murder but lowered to homicide or rape to
acts of lasciviousness. Can he now ask that he be allowed to
post bail now that it isn’t a capital offense?
A matter of right? Discretionary? Denied?
SHOULD BE DENIED.
Remember the requirements
1. Charge with a capital offense
a) He was charge only he was convicted of a lesser
offense
2. Evidence of Guilt is Strong
a) Guilt has been proven beyond reasonable doubt
only for a lesser offense; remember that when he
appeals to the appellate court, it may still revert
back to the original charge
Thus, DENY!.
Example:
17 year old charge with murder. A matter of right?
Discretionary? Denied?
Regardless of the suspension of the sentence, he is
CHARGE with murder (reclusion perpetua to death) BUT
because he is minor he is accorded with qualified/privileged
mitigating. Thus, it will NO LONGER BE CAPITAL as far as
he is concern, even if evidence of guilt is strong. IT IS A
MATTER OF RIGHT.
CONVICTED OF MURDER!
A matter of right? Discretionary? Denied?
It will now be Discretionary upon the court.
BUT because it is more than 6 years of imprisonment, if
attended with circumstances such as recidivism, habitual
delinquency, etc. THEN IT SHOULD BE DENIED.
Other Rights of the Suspect....
SPEEDY DISPOSITION
This is in contrast to Speedy Trial.
Speedy Disposition is available to not just an accused.
Speedy TRIAL, available only to Criminal Proceedings.
Speedy DISPOSITION, available in judicial, quasi-judicial,
and administrative bodies.
Effect of Violation of Speedy DISPOSITION
Tatad vs. Sandiganbayan
It is tantamount to violation of due process. Thus, case
dismiss.
The delay of the conduct of preliminary examination or
investigation for 3 years is a violation of the right to SPEEDY
DISPOSITION of the case or the right to DUE PROCESS. In
effect, case dismissed when it reached Sandiganbayan
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Where the case for violation of the Anti-Graft Law was
pending for preliminary investigation with the Office of the
Tanodbayan for 3 years and it is indicated that the case is of
simple nature and was prosecuted for political reasons, it is
held that there was violation of the accused’s right to speedy
disposition of case. Right to speedy disposition extends to
preliminary investigations.
SPEEDY TRIAL
Let's go to Speedy Trial in contrast.
That is a right available to the ACCUSED facing a criminal
prosecution. If it is invoked by the accused and granted by
the court, that is tantamount to HAVING THE CASE
DECIDED ON THE MERIT as PROOF OF GUILT WAS NOT
PROVED BEYOND REASONABLE DOUBT. Therefore,
there is ACQUITTAL. Double Jeopardy will therefore come
in. In Speedy Disposition, there is no double jeopardy!
So it cannot be filed anymore if you invoked Right to Speedy
Trial.
Also, he has the right to be assisted by a counsel. Poverty
should not be a reason to deny him of legal assistance. As to
what are these types, you just go over that. This came out in
the bar though:
1. IBP
2. Circulars of the SC requiring lawyers to extend free legal
assistance
3. PAO
Rights of the Accused during Criminal Prosecution
1. Presumption of Innocence- You have mastered this na.
Just take note of the Presumption of Laws.
Will this violate the presumption of innocence?
NO. This is because the connection of the Fact Proved and
Fact that is Presumed. The burden of proving or overcoming
of the presumption of the fact will now shift to the accused.
The moment the accused is able to explain the presumption
of the law, then he again is restored to his right to
presumption of innocence.
Also, take note of this Equipoise Rule.
When the evidence are even, then it should be resolved in
favor of presumption of innocence.
2. Right to be heard by himself and counsel- TN that he has
the right to be present at every stage of the trial beginning
from the arraignment up to the promulgation of the judgment.
However, this right is waivable. If he did not appear, then he
is deemed to have waive it. However, if he is unable to
appear because he was sick, then it should be postponed
because that is his right to be present.
An exception to that is when he got bail(?) or escaped, then
trial in absentia may proceed.
Requirements of trial in absentia:
1. There must be an arraignment of the accused where he
had entered a valid plea.
2. He should have been notified of the date and place of his
trial.
3. His absence is unjustified.
If these are complied, then you can proceed with the
reception of evidence of the prosecution even if the accused
was absent. Otherwise, he should have been present
because it was his constitutional right.
3. Right to have a speedy, impartial, and public trial-
On public trial, just take note that PUBLICIZED TRIAL is
prohibited. Broadcasting of the trial is prohibited. If the
court will be influenced by public opinion or the accused will
be subjected to public opinion, then that will deny him due
process of law.
Public trial on the otherhand means that anyone who is
interested may just walk in and observe by himself how the
trial is conducted by the just.
Ampatuan Case- at first the court allowed it and then it was
prohibited. Finally, in Estrada, this was prohibited.
Just take note of the Ampatuan case guys. At first the Court
allowed it but then it changed its mind. It was prohibited. We
went back to the ruling in the case of Estrada where
publicized trial is prohibited.
On speedy trial, this is not inconsistent to postponing the
trial. What is prohibited is whimsical, capricious and
oppressive postponements. If allowed, that would violate the
right to speedy trial of the accused. In which case, the
accused may demand for the dismissal of the case if there is
delay in the prosecution of the case as when the prosecution
has no witnesses despite the number of postponements
granted by the court. And if granted by the court then that is
tantamount to dismissal of the case on the merits or an
acquittal. And therefore, it cannot anymore be refilled without
violating the right against double jeopardy.
RIGHT TO CONFRONT WITNESSES
The accused has the right to a face to face confrontation of
witnesses through cross-examination.
Take note of the exceptions to this –
1. Dying declaration – you cannot confront a dead
person;
2. When it is an examination of a child witness
There cannot be a face to face confrontation. Here,
we do not have the technology. Not all family courts
have that technology like sa TV lang ka where the
child would be inside one chamber separate from
the accused. I had a murder case where the mother
was murdered. I had no choice. I can’t bring the
child witness somewhere else. So I had the child in
my chamber. But it is the right of the accused to be
present during his trial. You have to leave the
accused kay nahadlok man ang bata. You have to
leave the accused outside of the chamber, in the
courtroom, while the defense lawyer is attending to
the cross-examination of the child.
3. Trial in absentia – the accused did not appear so
how can he cross-examine the witnesses of the
prosecution?
Compulsory processes
1. Subpoena ad testificandum
2. Subpoena duces tecum
What if the witness refused to testify simply because it would
violate his right against self-incrimination?
Then there are immunities available. Either a –
1. Transactional immunity – to discharge him as a
State witness so that his testimony cannot be used
against him in any criminal proceeding or any
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proceeding that would relate to the compelled
testimony;
2. Use and fruit immunity – the immunity from
criminal prosecution is limited only to his compelled
testimony that is given in that particular criminal
proceeding.
So the use and fruit immunity is more limited than the
transactional. In the latter, the immunity is likened to that
immunity afforded a State witness.
RIGHT AGAINST SELF-INCRIMINATION
The right against self-incrimination is not just available to
criminal proceedings. It is available in all government
proceedings – administrative, quasi-judicial, legislative
inquiry and even in impeachment proceedings.
Take note that what is prohibited is testimonial
compulsion, not when the body of the accused is object
evidence in which case he may be required to give a sample
of his secretions or part of his body. These are, according to
the Supreme Court, mechanical acts and one can be
compelled.
Read the case of People vs. Yatar (G.R. No. 150224, May
19, 2004) –
In an attempt to exclude the DNA evidence, the appellant
contends that the blood sample taken from him as well as
the DNA tests were conducted in violation of his right to
remain silent as well as his right against self-incrimination
under Secs. 12 and 17 of Art. III of the Constitution.
This contention is untenable. The kernel of the right is not
against all compulsion, but against testimonial
compulsion.37 The right against self- incrimination is simply
against the legal process of extracting from the lips of the
accused an admission of guilt. It does not apply where the
evidence sought to be excluded is not an incrimination but
as part of object evidence.
xxxxx
Hence, a person may be compelled to submit to
fingerprinting, photographing, paraffin, blood and DNA, as
there is no testimonial compulsion involved. Under People v.
Gallarde,39 where immediately after the incident, the police
authorities took pictures of the accused without the presence
of counsel, we ruled that there was no violation of the right
against self-incrimination. The accused may be compelled to
submit to a physical examination to determine his
involvement in an offense of which he is accused.
That includes paraffin tests.
Are you familiar with that blue powder? It’s not seen by the
naked eye, the blue powder in the skin of a person. The
moment you made contact with that substance, it can be
seen through a special light. There’s a special light to see
the specks of the blue powder on your skin.
Are you familiar with that blue powder that is applied to the
skin of a person which can be seen through a special light?
The presence of such powder would imply that that person
was in contact with the object (money) from which the
powder was originally placed. It is your body which is the
subject of the evidence. That is admissible.
The imposition of cruel and inhuman/degrading penalty
-death penalty which was emphasized in the case of
echegarai is not one among these. In fact, lethal injection is
the most humane way of killing a person.
-fines must not be excessive as well. It must be
commensurate to the crime being charged against the
accused in order not to violate this rule.
DOUBLE JEOPARDY
Requisites:
1. First jeopardy
-there is a valid first jeopardy when:
 There is a valid information or
complaint filed against the accused.
 He was arraigned
 He made a valid plea
 That the court is competent to hear
the case

-if one of these elements is missing and a case is
re-filed, there is no double jeopardy because there
never was a first jeopardy in the first place.
Example: the accused was charged with homicide
with the RTC. He entered a plea of guilty. Then the
court allowed him to present evidence that would
mitigate the penalty. Then he convinced the court
that it was committed out of self-defense. The court
instead of convicting him, acquitted him! Can the
prosecution appeal the judgment of acquittal?
-Ans: generally the prosecution cannot appeal the
judgment of acquittal because that would
tantamount to double jeopardy (you’re already being
tried and then you’re tried again in the appellate
court). However, in this case, the accused entered a
plea of guilty but when trial was done, he presented
evidence that he is not guilty! In effect there was a
withdrawal of his original plea. It was as if there was
no valid plea entered. Therefore, the element of a
valid plea is missing. Double jeopardy will not arise
because there was no first jeopardy in the first place.
2. Termination of the first jeopardy through conviction,
acquittal, or dismissal without the consent of the
accused,
3.
Acquittal- - cannot be appealed otherwise it would
tantamount to double jeopardy for as long as the
acquittal was valid. If the acquittal was not valid it
can be the subject of certiorari and you cannot
invoke double jeopardy. Take note of the case of
Webb where a motion for reconsideration in the SC
would amount to double jeopardy.
Conviction—can the prosecution appeal the
conviction? Yes, especially when the penalty given
by the court is contrary to law. Example: convicted of
murder but given a penalty of 6 years only.
Because on acquittal guys, dili man sa siguro mu.appeal.a
ang accused- it is only the prosecution and that is not allow
as a general rule.
Q: Convicted--can the prosecution appeal the conviction
(because the prosecution is not satisfied of the penalty
imposed by the court)?
EX: Murder—nya gitagaan lang ug 6years of imprisonment.
Convicted tinuod but the penalty is—contrary to law.
A: YES, because the penalty is wrong.
GOING BACK TO ACQUITTAL: case in point is the Webb
case--
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That even if a motion for consideration in the Supreme Court
(wala naman lain appellate court) will not be given due
course because it will amount to double jeopardy.
MR here in the RTC, acquitting the accused, may be allowed
because there can still be an appeal in the court of appeals.
MR in the Supreme Court, is not allowed because there is
no/ even if its reconsidered that would amount to double
jeopardy. Not even an MR. Kung acquittal lang, basta valid;
valid acquittal—cannot be appealed. How much more filling
an MR.
Re MR in Lejano vs. People, GR No. 176389,
January 18, 2011--
As a rule, a judgment of acquittal cannot be
reconsidered because it places the accused under
double jeopardy.
Back to CONVICTION
If the accused appeals the judgement of conviction
then, definitely, the prosecution can appeal too
because in this case the accused is considered to
have waived his right against double jeopardy—it
reopens the case and even can go back to the original
charge.
DISMISSAL WITHOUT THE CONSENT OF THE
ACCUSED (favorite in the Bar exam)
When the court dismisses the case, you should
manifest your vehement objection to the dismissal
because if you agree to the dismissal—that is
tantamout to a waiver in which usually the courts will
put it–“provisional dismissal with the consent of the
accused” because that can still be refiled—
 Where the penalty is more than 6years of
improsonment - within 2years;
 Where the penalty is 6years or less - within 1
year.
The moment the period lapse and expires, if 1year or
2years have passed and it has never been refiled
then—double jeopardy will set in (case: Pp v. Lacson
or the Koratong Baleleng case)
Provisional Dismissal case will last only for 1year or
2years, depending on the penalty, but once the period
expires then doulble jeopardy will sets in.
SO WHEN WE SPEAK OF: DISMISSAL WITH THE
CONSENT OF THE ACCUSED
There has to be a vehement of objection from the
accused for having the case dismissed, and instead
he must invoke his right to speedy trial. The moment
the right to speedy trial is invoked by the accused and
dismissal is granted—that is tantamount to an
acquittal for failure to prosecute, in which case,
double jeopardy will set in if refiled.
How would you know if it is with the consent of the
accused ang dismissal? Because the accused himself
filed the motion to dismiss and granted that it is a
dimissal with a consent. EXC: even if the motion to
dismiss was filed by the accused but the groud are:
1. After the prosecution rested its
case—demurre to evidence (that the
evidence of the prosecution is insufficient to
prove the guilt of the accused beyond
reasonable doubt); or
Ex. Demurre was granted; accused
was acquitted—can it be refiled? NO,
because this would be a dismissal
without the consent even if the
demurre to was filed by the accused
himself.
2. The invocation to the right to speedy trial
Always remember: if granted, in case
it is dismissed, is tantamount to
dismissal without the consent of
the accused; tantamount to acquittal;
double jeopardy will lie.
Take note: To constitute a double jeopardy, there must be a
second jeopardy.
What is a second jeopardy?
1. When one offense is identical with the other offense.
How do you know? What is the test?
The evidence you presented in proving the first offense
would be the same evidence that is required to prove the
second offense even if they have different names. Then that
would constitute double jeopardy.
Example:
Murder to homicide they are identical, different names but
the same death, the same killing of the same victim. Only the
difference is the attendance of aggravating circumstance.
That is prohibited.
Or when one offense, ang confusion lang gyud aning second
jeopardy is when is it considered as identical?
Just TN of the test. The test of determining whether the
offense is identical with the second on jeopardy.
2. When one offense is a frustration or an attempt with
another offense. So first attempted murder, convicted man,
inspite, let’s have him charged with frustrated murder this
time, they can’t do that. Or consummated then you will
change it to frustrated or attempted because it would be
much lesser to establish the evidence. That is not allowed.
3.When one offense necessarily includes the other offense
or is necessarily included in the other offense then that
would constitute double jeopardy.
Ex: Gi charge nmu with rape tapos charge him with acts of
lasciviousness. Acts of lasciviousness is necessarily
included in the crime of rape.
Take note: However, on the Rule on Supervening Event.
So in the case of serious physical injuries, convicted and
thereafter the victim died because of his injuries. Even if
there was already a termination of the first case, he can still
be charged with homicide under the rule on supervening
event. There’s no double jeopardy there.
Asked in the bar exam. What are the 2 kinds of double
jeopardy.
1. If it is the same offense, similar offense. When
there’s similar offense with the first jeopardy and the
second jeopardy.
2. When an act or omission is punished by law and
ordinance. Conviction or acquittal under either will
bar to another prosecution.
Same act of violating. Crossing the street that is not the
pedestrian lane punished by law and a city ordinance.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
You were already convicted, this was asked in the bar exam,
for violation of the city ordinance, you cannot anymore be
charged for violation of the law punishing the same act. TN
of the 2 kinds of double jeopardy.

EX POST FACTO LAW

TN of the requisites.
1. It always refer to criminal matters(penal in nature)
2. It is applied retroactively to the accused
3. Always to the disadvantage of the accused

That is prohibited. Substantive law dili lang procedural ha to

constitute an ex post facto law. You master the requirements
and you will never go wrong. If you have all the requisites
present then it is considered an ex post facto law prohibited
by law. The only thing in ex post facto law, this does not
apply only to legislative actions passed by congress but as
well as judicial decisions.

- Applies not only to legislative enactments but also to

judicial decisions. Judicial decisions that are
disadvantageous to an accused cannot be applied
retroactively. It applies only to retrospective penal
laws.

BILL OF ATTAINDER

- When it punishes an act without judicial trial.

- Anti-Cyber Crime Law, whether it is a bill of
attainder:

o Disini vs. The Secretary of Justice, G.R.

No. 20335, February 18, 2014
Judge: because the moment you don’t
comply with the Cyber Crime Law,
according to the law, you are considered to
have violated it. But still, would that be
considered as a bill of attainder because
you will be punished for it? No, not yet,
because the prosecution still has to prove
that you have knowingly and willfully
violated and did not comply with the law. So
SC was saying that there must still be a
judicial determination of guilt during which
defense and justifications for
non-compliance may be raised. Thus, Sec.
20 is valid in so far as it applies to the
provisions of Chapter IV which are not
struck down by the Court. It’s not a bill of
attainder according to SC.

Question on Right against self-incrimination; where a

foreigner refused to provide information pertaining to the
laws of his country, and his ground in refusing was his right
against self-incrimination. It has nothing to do with him being
incrimination for the commission of the crime; of course he
can be compelled to give the information.

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