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NOTES, UPDATES AND TEASERS

*
CONSTITUTIONAL
L
AW
(Bar Review 2012)

RENE B. GOROSPE
Recoletos Law Center
OUTLINE
A. The Fundamental Powers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Bill of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
D. Equal Protection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
E. Searches and Seizures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
F. Privacy of Communications.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
G. Freedom of Expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
H. Freedom of Religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
I. Freedom of Movement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
J. Right to Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
K. Right of Association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
L. Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
M. Contract Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
N. Poverty and Legal Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
O. Rights of Suspects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
P. Rights of the Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Q. Writs of Habeas Corpus and Amparo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
R. Self-Incrimination Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
S. Excessive Fines, Cruel and Inhuman
Punishments.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Recoletos
Law. .Center
T. Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

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U. Ex Post Facto Laws and Bills of Attainder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114


*

Caveat: While most of the materials here are taken from cases, caution should be exercised in looking at the notes as some are
personal views designed to make the principle or rule discussed more interesting through side comments, musings and other asides. Utmost
discernment, discipline and discretion are thus advised to avoid any misunderstandings.
Attempt had been made
to carefully proofread
everythingvis--vis
but it almost always
happens that Of
despite
best efforts errors will still crop
A Library
Of Liberties
An Arsenal
Arms
up. Well, as Justice Kennedy observed in his dissenting opinion in Groh v. Ramirez, 540 U.S. 551 (2004), at 568: We all tend toward
myopia when looking for our own errors. Every lawyer and every judge can recite examples of documents that they wrote, checked, and
doublechecked, but that still contained glaring errors.
Murphys Law, anyone?

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Constitutional Law, in the context of these notes, refers only to the Bill of Rights. Accordingly, on
some other aspects of constitutional law as a broad term and expansive subject, resort must be had to
other sources and materials.
These notes are to be taken as a quick reference to general ideas and recent decisions which light up
and enliven the study of the subject. They presuppose that one has at least done his or her homework
through the years and these are just reminders of what were, ticklers of recent application of rules and
principles, and an invitation to an exploration of what may lie beyond.
The study of law is best had if enjoyed. These notes are intended to be both informative and
entertaining. Reviewees are also entitled to fun even while preparing to take on the Bar exams.1 As had
been writ: A judicial decision does not have to be a bore.1 Neither must a Bar review material be. It
need not be a bland presentation of what has been. It might as well pick brains and prick some civic
conscience in preparation for eventual practice as a responsible and respectable particle of sovereignty.
So, heres to humoring the Bar exams.2 Theres nothing as unnerving as approaching a problem from
1

In regard to the need for an examination in the first place, take note of what the Court said in Antolin v. Domondon, 623 SCRA 163
(2010): Examinations have a two-fold purpose. First, they are summative; examinations are intended to assess and record what and how
much the students have learned. Second, and perhaps more importantly, they are formative; examinations are intended to be part and parcel
of the learning process. In a perfect system, they are tools for learning.
Incidentally, [t]he examination questions were of the multiple choice type, where each question was followed by four possible
answers to choose from. The examinee was required to indicate his or her answer by shading in pencil one of four small circles
corresponding to each choice. (n. 1) Sounds familiar? Does it ring a bell?
1

Francisco v. Permskul, 173 SCRA 324 (1989)

The justices themselves are not beyond humoring the study of law with all its quirks and esoteric twists and turns, as could be seen
by their occasional references to matters more mundane as a manner of making the legal aspects easier to grasp and appreciate.
In Camid v. Office of the President, 448 SCRA 711 (2005), the Court spoke of what might have been memories about a movie from
years, and years, and years ago. The Court introduced the case in this wise: This Petition for Certiorari presents this Court with the
prospect of our own Brigadoon the municipality of Andong, Lanao del Sur which like its counterpart in filmdom, is a town that is not
supposed to exist yet is anyway insisted by some as actually alive and thriving. Yet unlike in the movies, there is nothing mystical, ghostly
or anything even remotely charming about the purported existence of Andong. So where, when and whatever is Brigadoon? The Court
explained that it is a 1954 film based on the well-known eponymous Broadway musical by Alan Jay Lerner and Frederick Loewe. The
plot pertains to a magical Scottish town touted to appear once every hundred years on some otherworldly plain according to legend.
Parenthetically, and by way of an excursive exercise in the tiring and tedious travails of reviewing, it might also be helpful and
reassuring to note that writing decisions does not stop Justices from humming a tune or simply warbling a song into their opinions,
decisions, as what the Court did in Pamatong v. Commission on Elections, 427 SCRA 96 (2004), where we find this line: Owing to the
superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the
song goes, their trips to the moon on gossamer wings. The line, from the song, Just One of Those Things, must have been swaying
in Justice Tingas mind or the melody wafting in the air as he wrote the ponencia in that case.

Recoletos Law Center

And, you might as well take note of Palaganas v. People, 501 SCRA 533 (2006), where the Court opened up with lines from My
Way to say that it was not the first time that that particular song had triggered violent behavior resulting in people coming to blows! (The
Court went on to give appropriate credits that the music is by Paul Anka and that the song was popularized by Frank Sinatra. Now, even
decisions could be sources of musical trivia.) As for the apostles of Bacchus, one might as well pay heed to what the Court said in People
v. Glino, 539 SCRA 432 (2007): BEWARE of drunk passengers. They pose danger to life and limb. Merely talking to them or telling
them to sit properly can be fatal, . . .

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The U.S. Supreme Court is also not beyond recognizing the message of songs, particularly Imagine by John Lennon. The Court
reproduced the entire lyrics in Pleasant Grove City v. Summum, 555 U.S. ___ (2009), noting: Some observers may imagine the musical
contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that
obviously inspired the [Greco-Roman] mosaic [of the word Imagine that was donated to New York Citys Central Park in memory of
John Lennon] and may imagine a world without religion, countries, possessions, greed, or hunger.

Of
Liberties
AnArsenal
Of Arms
Or, they could as wellAbeLibrary
into literature
words
melodiousvis--vis
without the tunes
as when the Court,
in pointing out the importance of
affording protection to ones employment, noted: As Shylock declared, you take my life, when you do take the means whereby I live.
(Shakespeare, The Merchant of Venice) (n. 26, Anonymous v. Radam, 541 SCRA 12 [2007]) In Orocio v. Roxas, 562 SCRA 347 (2008),
the Court opened with lines from Sharepeares Hamlet, Act III, SceneI, Lines 56-72 To be, or not to be: that is the question. . . . (Well,
what are you: to be, or not to be, . . . a lawyer?)

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a perspective of trepidation. March on with confidence, head up high, a smile on your face and faith in
yourself. The Bar exercise is just a good opportunity to prove and improve yourself. It is not an adversary
but an ally, and even if it were, it is one that you can persuade and convince to become a lifelong friend.

THE FUNDAMENTAL POWERS AND THE BILL OF RIGHTS


Governance is the art and science of carefully balancing competing needs, concerns, wants,
desiderata and values of society, all demanding acceptance and preeminence. Insofar as the government
and the people are concerned, their interests may every now and then clash or compete for ascendancy,
for which a careful weighing of various considerations has to be done to ensure that the demands of
authority do not lead to slavery and the claims of liberty do not end up in anarchy.3 Or, in the words of
a more recent case, [o]nce again, the Court is faced with an age-old but persistently modern problem.
How does the Constitution of a free people combine the degree of liberty, without which, law becomes
tyranny, with the degree of law, without which, liberty becomes license?4 Months later, the Court once
more declared: The true role of Constitutional Law is to effect an equilibrium between authority and
liberty so that rights are exercised within the framework of the law and the laws are enacted with due
deference to rights.5
On the side of authority, you have the inherent and fundamental powers of the government police
power, eminent domain, and taxation powers by which its goals may be achieved and its will enforced
and implemented. On the other end, you have the guarantees and safeguards found in the Bill of Rights.
Being in the Court does not also have to lead to loss of memory about stories told and learned during ones salad days. Who can
forget, for instance, memories of the transformation of the ugly duckling? This Motion for Partial Judgment and to Dismiss Petition
is truly an odd duckling of a pleading, which unfortunately did not blossom into a swan but from it instead emerged an even uglier duck
the 6 September 2002 Order, . . . (Republic v. Nolasco, 457 SCRA 400 [2005])
In the same way, taking the Bar examinations need not make you a different person from what you really are. You can study and
prepare for and pass the Bar while enjoying the experience and the opportunity which you may only have to go through but once in
your life. Savor the moment as you may never pass this way again.
But if you were more concerned with food something never far away when reviewing for the Bar exams note the exchange
between Chief Justice Roberts and Justice Scalia in Washington State Grange v. Washington State Republican Party, 552 U.S. ___(18
March 2008), a case involving a law that allegedly infringed the associational rights of political parties. The former, in support of his
concurring opinion said: Assuming the ballot is so designed, voters would not regard the listed candidates as party candidates, any more
than someone saying I like Campbells soup would be understood to be associated with Campbells. In response, the latter in his dissent
wrote: [T]here is simply no comparison between statements of preference for an expressive association and statements of preference
for soup. The robust First Amendment freedom to associate belongs only to groups engage[d] in expressive association, Dale, 530
U.S., at 648. The Campbell Soup Company does not exist to promote a message, and there is only minimal constitutional protection of
the freedom of commercial association, . . . Furthermore, he said: If we must speak in terms of soup, Washingtons law is like a law
that encourages Oscar the Grouch (Sesame Streets famed bad-taste resident of a garbage can) to state a preference for Campbells at
every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial
locations. Reserving the most critical communications forum for statements of preference by a potentially distasteful speaker alters public
perceptions of the entity that is preferred; and when this privileged connection undermines not a companys ability to identify and
promote soup but an expressive associations ability to identify and promote its message and its standard bearer, the State treads on the
constitutionally protected freedom of association. Ahh, food, politics and garbage characters.

Recoletos Law Center


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Or, if you are fond of the art of cooking and preparing the meat for that purpose to be better expressed in a menu of legal issues,
how about this line from Chief Justice Punos dissent in Neri v. Senate Committee on Accountability of Public Officers and Investigations,
549 SCRA 77 (2008)? A holistic view of the doctrine of executive privilege will serve as a hermeneutic scalpel to excise the fat of
information that does not fall within the ambit of the privilege and to preserve only the confidentiality of the lean meat of information it
protects in the particular setting of the case at bar. (Choice cuts, anyone?)
3

A Library
Liberties
See Calalang v. Williams,
70 Phil. Of
726 (1940)

vis--vis An Arsenal Of Arms

David v. Macapagal-Arroyo, 489 SCRA 160 (2006), referencing the writings of the Greek philosopher, Heraclitus of Ephesus,
540-480 B.C., who propounded universal impermanence and that all things, notably opposites are interrelated.
5

Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530 SCRA 341 (2007)

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And, in this regard the Court has held that [i]n the complex but exquisite scheme laid down by the
Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental
power.6
And in this interplay between power and authority, on one hand, and liberty and freedom, on the
other, note must be taken of the fact that just like anything else, values, concepts and weights change
through time. What may have been recognized as outside the domain of State regulation in the past
would no longer be so immune from governmental interference in later years.7 As was said in one case,
What was robbery in 1874 is now called social justice.8 Or, as stated in elsewhere, Social justice
is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.9
A.

THE FUNDAMENTAL POWERS

These fundamental powers are inherent in the national government, exercised by the legislature, and
are only bestowed upon others, like the local government units, as a result of delegation.
In the exercise of police power, there must be compliance with the requirements of legitimate ends
being accomplished through legitimate means.10 This power is the most pervasive, illimitable and
plenary power affecting liberty and property of individuals for the advancement of the common good.
It essentially embodies the right of the State to enact laws for the purpose of promoting the public
welfare by restraining and regulating liberty and the use of property. Its also been said that the test of
constitutionality of a police power measure is limited to an inquiry on whether the restriction imposed
on constitutional rights is reasonable, and not whether it imposes a restriction on those rights, and that
it does not rely upon the existence of definitive studies to support its use. Indeed, no requirement exists
that the exercise of police power must first be conclusively justified by research. . . . Scientific certainty
and conclusiveness, though desirable, may not be demanded in every situation. Otherwise, no
government will be able to act in situations demanding the exercise of its residual powers because it will
be tied up conducting studies.11
As for the power of condemnation, the Constitution already provides the allowable standards for its
exercise public use and just compensation.12 But then note must be taken of the expanded meaning of
the term public use the concept of public use is not limited to traditional purposes. Here as
elsewhere the idea that public use is strictly limited to clear cases of use by the public has been
discarded.13 And case law has recently come up with newer rules relative to the exercise of this power.
Taxation, of course, must not be exercised in an unreasonable, oppressive and confiscatory manner.14
Or, in the language of Philippine Health Care Providers, Inc. v. Commissioner of Internal Revenue, 600

Recoletos Law Center

People v. Rapeza, 520 SCRA 596 (2007), penned by Justice Tinga. This is a reiteration of his earlier ponencia in People v. Tudtud,
412 SCRA 142 (2003), where it was held: The Bill of Rights is the bedrock of constitutional government. If people are stripped naked
of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights,
contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on
governmental power.

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See People v. Pomar, 46 Phil. 440 (1924)

Bengzon v. Drilon, 208 SCRA 133 (1992)

Agabon v. National Labor Relations Commission, 442 SCRA 573 (2004)

10

Ynot v. Intermediate Appellate Court, 148 SCRA 659 (1987)

11

A Library
Of Liberties
An(2006)
Arsenal
Mirasol v. Department
of Public Works
and Highways,vis--vis
490 SCRA 318

12

Article III, 9

13
14

Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 (1983)


See Reyes v. Almanzor, 196 SCRA 322 (1991)

Of Arms

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SCRA 413 (2009), [l]egitimate enterprises enjoy the constitutional protection not to be taxed out of
existence. Also, it must not be forgotten that the exercise of the power of taxation constitutes a
deprivation of property under the due process clause, and the taxpayers right to due process is violated
when arbitrary or oppressive methods are used in assessing and collecting taxes.15 Further, in regard to
the delegation by the Constitution itself of the taxing power to the Local Government Units, Congress
is not stripped of its power to exempt certain entities from local taxation.16
1. Social Justice Society v. Atienza, Jr., 517 SCRA 657 (2007)
If an ordinance says something to be done, then the mayor can only comply and implement it. Here
the City Council of Manila passed an ordinance reclassifying an area where the oil depot of the big
petroleum companies was located from industrial to commercial. That meant that the oil terminals had
to go. A timetable was provided but after some time the oil depot was still there. The Court held that the
mayor had no discretion but comply with the ordinance. Its well within the police power of the city. The
objective of the ordinance is to protect the residents from the catastrophic devastation that will surely
occur in case of a terrorist attack on the Pandacan Terminals.
On motion for reconsideration, the Court stood pat on its earlier position. The ordinance was
intended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just
of a particular class. The depot is perceived, rightly or wrongly, as a representation of western interests
which means that it is a terrorist target. As long as there is such a target in their midst, the residents of
Manila are not safe. It therefore became necessary to remove these terminals to dissipate the threat.
With regard to zoning ordinances, the Court expounded: A zoning ordinance is defined as a local
city or municipal legislation which logically arranges, prescribes, defines and apportions a given political
subdivision into specific land uses as present and future projection of needs. As a result of the zoning,
the continued operation of the businesses of the oil companies in their present location will no longer
be permitted. The power to establish zones for industrial, commercial and residential uses is derived
from the police power itself and is exercised for the protection and benefit of the residents of a locality.
In coming up with a new zoning ordinance, would that not result in some taking for which there
should be compensation? In the exercise of police power, there is a limitation on or restriction of
property interests to promote public welfare which involves no compensable taking. Thus, [t]he
restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the
prohibition or abatement of a noxious use which interferes with paramount rights of the public. Nobody
else acquires the use or interest therein, hence there is no compensable taking.
2. Pharmaceutical and Health
Care Association
of Center
the Philippines v. Duque III, 535 SCRA 265
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(2007)

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2012
Health is a legitimate subject matter
forReview
regulation by
the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter
precludes the need to further discuss it. However, health information, particularly advertising materials
on apparently non-toxic products like breastmilk substitutes and supplements, is a relatively new area
for regulation by the DOH, thus declared the Court. Accordingly, the DOH's power under the Milk
Code to control information regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the
power to control does
not encompass
the powervis--vis
to absolutely
prohibit the
marketing, and
A Library
Of Liberties
An Arsenal
Ofadvertising,
Arms

15

Yamane v. BA Lepanto Condominium Corporation, 474 SCRA 258 (2005)

16

City Government of Quezon City v. Bayan Telecommunications, Inc., 484 SCRA 169 (2006)

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promotion of breastmilk substitutes. Implementing rules and regulations imposing labeling


requirements and limitations such as that there be a statement that there is no substitute to breastmilk,
and that there be a statement that powdered infant formula may contain pathogenic microorganisms and
must be prepared and used appropriately, as well as a prohibition against health and nutrition claims of
increased emotional and intellectual abilities of the infant and young child are consistent with the Milk
Code. These provisions of the Milk Code expressly forbid information that would imply or create a
belief that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as
such information would be inconsistent with the superiority of breastfeeding. Correct information as
to infant feeding and nutrition is infused with public interest and welfare.
But to what extent may the Department of Health, in promoting the health and nutritious needs of
children, regulate the businesses which promote breastmilk substitutes as acceptable alternative to
mothers milk? In this case, the Court declared that the DOH, in imposing an absolute prohibition on
advertising, promotion, and marketing, went beyond its authority since the same was not within the
provisions of the Milk Code itself.
3. Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530 SCRA
341 (2007)
Some change but still remain the same oxymorons, anyone?
Here the Court noted that the deteriorating traffic conditions way back in 1969 have remained
unchecked and have reverberated to this day. Traffic jams continue to clog the streets of Metro Manila,
bringing vehicles to a standstill at main road arteries during rush hour traffic and sapping peoples
energies and patience in the process. Accordingly, the ever-pressing need to address the problem. This
took the form of E.O. 179, Providing for the Establishment of Greater MANILA MASS TRANSPORT
SYSTEM, designating MMDA as implementing agency, with mandate to eliminate bus terminals along
major thoroughfares of Metro Manila, particularly EDSA, and a provision for mass transport terminal
facilities. Is E.O. 179 valid? Unfortunately, no.
The authority of the President to order the implementation of the Project notwithstanding, the
designation of the MMDA as the implementing agency for the Project may not be sustained. It is ultra
vires, there being no legal basis therefor. It is the DOTC, and not the MMDA, which is authorized to
establish and implement such a project. It is simply that the MMDA is not vested with police power.
What about if the DOTC instead of the MMDA was designated as the implementing arm? Still, the
Court said that it failed to see how the prohibition against the existence of terminals can be considered
a reasonable necessity to ease traffic congestion in the metropolis. On the contrary, the elimination of
the bus terminals brings forth the
distinct possibility
the equally harrowing reality of traffic
Recoletos
Law and
Center
congestion in the common parking areas, a case of transference from one site to another. What then?
Bar
Less intrusive measures such as curbing
theReview
proliferation2012
of colorum buses, vans and taxis entering
Metro Manila and using the streets for parking and passenger pick-up points, as respondents suggest,
might even be more effective in easing the traffic situation. So would the strict enforcement of traffic
rules and the removal of obstructions from major thoroughfares. In short, the elimination of the
terminals does not satisfy the standards of a valid police power measure.

4. St. Lukes Medical Center Employees Association-AFW (SLMCEA-AFW) v. National Labor


A Commission,
Library Of Liberties
Relations
517 SCRAvis--vis
677 (2007)An Arsenal Of Arms
Here, the guarantee of the right to security of tenure came into conflict with a law subsequently
passed requiring a qualification that was not present when the employee started working. Santos, an

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Associate in Radiologic Technology graduate, got employed at St. Lukes Hospital in 1984 as an X-Ray
Technician. Then came R.A. 7431 (Radiologic Technology Act of 1992) which requires that no person
shall practice or offer to practice as a radiology and/or x-ray technologist without having obtained the
proper certificate of registration from the Board of Radiologic Technology. St. Lukes notified all
radiologic practitioners to comply with RA 7431. Santos failed to comply and eventually lost her job.
The Court held: While the right of workers to security of tenure is guaranteed by the Constitution,
its exercise may be reasonably regulated pursuant to the police power of the State to safeguard health,
morals, peace, education, order, safety, and the general welfare of the people. Consequently, persons who
desire to engage in the learned professions requiring scientific or technical knowledge may be required
to take an examination as a prerequisite to engaging in their chosen careers. The rationale for the
regulation of medicine applies as well in the field of radiologic and x-ray technology.17
5. Carlos Superdrug Corp. v. Department of Social Welfare and Development (DSWD), 526
SCRA 130 (2007)
Speaking of retirees, can the State, in promoting the health and welfare of a special group of citizens,
impose upon private establishments the burden of partly subsidizing a government program? Yes, the
Court declared, upholding in the process the constitutionality of 4(a) of the Expanded Senior Citizens
Act of 2003 (R.A. No. 9257, amending R.A. 7432), which considered the twenty percent (20%) discount
given by drugstores to senior citizens as tax deductions and no longer as tax credits.
The Court acknowledged that treating the discount as tax deduction does not offer full
reimbursement of the senior citizen discount, thus, not meeting the definition of just compensation.18
Nevertheless, it could be justified as a police power measure. The Senior Citizens Act was enacted
primarily to maximize the contribution of senior citizens to nation-building, and to grant benefits and
privileges to them for their improvement and well-being as the State considers them an integral part of
our society. The law is a legitimate exercise of police power which, similar to the power of eminent
domain, has general welfare for its object. Accordingly, [w]hen the conditions so demand as
determined by the legislature, property rights must bow to the primacy of police power because property
rights, though sheltered by due process, must yield to general welfare.
6. Guadines v.Sandiganbayan, 650 SCRA 422 (2011)
This case involves a prosecution for violation of the Anti-Graft and Corrupt Practices Act, the
petitioner having supplied illegally cut lumber which were subsequently confiscated after she delivered
them for the repair of a public bridge, thus defrauding the government. It is her defense that she already
complied with her undertaking so she should not be held liable for what happened after that. The Court
did not agree, for [b]asic is the rule
that provisions
of existing
laws and regulations are read into and
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Law
Center
form an integral part of contracts, moreso in the case of government contracts. Verily, all contracts,
Bar to
Review
2012of the State. Being an inherent attribute
including Government contracts, are subject
the police power
17

Cf. Garcia, Jr. v. Salvador, 518 SCRA 568 (2007). In this case, an employee who was seeking regularization had to
undergo a medical examination. She was misdiagnosed as suffering from Hepatitis B. When she informed her father, the latter
suffered a heart attack. The employee also got separated from her employment. Subsequent tests disclosed the error. The
employee was then rehired. Nonetheless, she and her father sued the medical technologist for gross negligence. The Court
found for them, awarding them P
=50,000 as moral damages, P
=50,000 as exemplary damages, and P
=25,000 as attorneys fees.

Lesson to be learned?
UnderstandOf
properly
the question
for a misappreciation
or misdiagnosis
A Library
Liberties
vis--vis
An Arsenal
Of Armsof the problem is a sure
avenue to a wrong answer. Right answers start with correct premises.
18

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure
is not the takers gain but the owners loss. The word just is used to intensify the meaning of the word compensation, and to convey the
idea that the equivalent to be rendered for the property to be taken shall be real, substantial, full and ample. (Carlos Superdrug Corp.)

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of sovereignty, such power is deemed incorporated into the laws of the land, which are part of all
contracts, thereby qualifying the obligations arising therefrom. Thus, it is an implied condition in the
subject contract for the procurement of materials needed in the repair and construction of the Navotas
Bridge that petitioner as private contractor would comply with pertinent forestry laws and regulations
on the cutting and gathering of the lumber she undertook to supply the provincial government.
7. Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue, 541 SCRA 316
(2007)
Can a taxpayer, who obtained in good faith and for value Tax Credit Certificates (TCCs), and after
having paid its tax liabilities by means of TCCs, be subsequently made to pay the same amounts again
if it turns out that the said TCCs had been fraudulently issued and transferred? The Court said no.
TCCs are immediately valid and effective after their issuance. Accordingly, a tax payment
through a TCC cannot be both effective when made and dependent on a future event for its effectivity.
Our system of laws and procedures abhors ambiguity. In short, [t]he transferee in good faith and for
value may not be unjustly prejudiced by the fraud committed by the claimant or transferor in the
procurement or issuance of the TCC. . . . It is not only unjust but well-nigh violative of the constitutional
right not to be deprived of ones property without due process of law. Thus, a re-assessment of tax
liabilities previously paid through TCCs by a transferee in good faith and for value is utterly
confiscatory, more so when surcharges and interests are likewise assessed.
Then, harking back to the traditional attribution of destructive power to the taxing prerogative, the
Court said: The power of taxation is sometimes called also the power to destroy. Therefore it should
be exercised with caution to minimize injury to the proprietary rights of a taxpayer. It must be exercised
fairly, equally and uniformly, lest the tax collector kill the hen that lays the golden egg.
8. Chamber of Real Estate and Builders Inc. v. Romulo, 614 SCRA 605 (2010)
In this case, even as the Court upheld the validity of the assailed tax measures, it came up with some
interesting tidbits about the nature of the taxing power and the limitations attendant to it. It referred, for
instance, to the shopworn reality that [t]axes are the lifeblood of the government. Without taxes, the
government can neither exist nor endure. The exercise of taxing power derives its source from the very
existence of the State whose social contract with its citizens obliges it to promote public interest and the
common good. Taxation is an inherent attribute of sovereignty. It is a power that is purely legislative.
Essentially, this means that in the legislature primarily lies the discretion to determine the nature (kind),
object (purpose), extent (rate), coverage (subjects) and situs (place) of taxation. It has the authority to
prescribe a certain tax at a specific rate for a particular public purpose on persons or things within its
jurisdiction. In other words, the legislature
wields Law
the power
to define what tax shall be imposed, why
Recoletos
Center
it should be imposed, how much tax shall be imposed, against whom (or what) it shall be imposed and
Bar Review 2012
where it shall be imposed.
Then, while the Court recognized that, as a general rule, the power to tax is plenary and unlimited
in its range, acknowledging in its very nature no limits, so that the principal check against its abuse is
to be found only in the responsibility of the legislature (which imposes the tax) to its constituency who
are to pay it, the same is circumscribed by constitutional limitations. The constitutional safeguard of
due process is embodied in the fiat [no] person shall be deprived of life, liberty or property without due
A Library
Of Liberties
An
Arsenal
Of Armsin appropriate cases,
process of law. . . . [T]he
due process
clause mayvis--vis
properly be
invoked
to invalidate,
a revenue measure when it amounts to a confiscation of property. [Nevertheless, t]here must be a factual
foundation to such an unconstitutional taint. This merely adheres to the authoritative doctrine that, where

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the due process clause is invoked, considering that it is not a fixed rule but rather a broad standard, there
is a need for proof of such persuasive character. Also, an income tax is arbitrary and confiscatory if
it taxes capital because capital is not income. In other words, it is income, not capital, which is subject
to tax. In the case under consideration, however, the subject tax minimum corporate income tax
(MCIT) is not a tax on capital but on income.
9. Planters Products, Inc. v. Fertiphil Corporation, 548 SCRA 485 (2008)
LOI No. 1465, issued by then President Marcos, imposed a Capital Recovery Component (CRC)
of P
=10.00 on each bag of fertilizer sold by fertilizer importers and mother companies in the Philippines,
which amount was to be paid to Planters Products, Inc. until it shall have become viable. Fertiphil was
one of those who had to pay the CRC, but after the EDSA Revolution in 1986 it stopped paying the
same. Instead it filed suit to recover what it had paid. Can it recover? Or, was the imposition justified
by either the power ot taxation or police power. The Court said neither police power nor taxation could
be validly invoked to justify LOI 1465. The refund must have to be made.
The P10 levy under LOI No. 1465 is too excessive to serve a mere regulatory purpose. The levy,
no doubt, was a big burden on the seller or the ultimate consumer. Also, [a] plain reading of the LOI
also supports the conclusion that the levy was for revenue generation. In this regard, [a]n inherent
limitation on the power of taxation is public purpose. Taxes are exacted only for a public purpose. They
cannot be used for purely private purposes or for the exclusive benefit of private persons. The reason for
this is simple. The power to tax exists for the general welfare; hence, implicit in its power is the
limitation that it should be used only for a public purpose. It would be a robbery for the State to tax its
citizens and use the funds generated for a private purpose. Further, the Court added: When a tax law
is only a mask to exact funds from the public when its true intent is to give undue benefit and advantage
to a private enterprise, that law will not satisfy the requirement of public purpose. Then, for a final
dig at the measure itself, the Court declared: We find it utterly repulsive that a tax law would expressly
name a private company as the ultimate beneficiary of the taxes to be levied from the public. This is a
clear case of crony capitalism. LOI 1465 could not also be justified as a police power measure because
it did not promote public interest but simply that of one ailing private corporation.

B. BILL OF RIGHTS
Taking up the cudgels for liberty are the guarantees contained basically in the Bill of Rights. As the
Court observed in People v. Legaspi, 331 SCRA 95 (2000), the Bill of Rights is the mechanism for the
delicate balance between governmental power and individual liberty, without which man is stripped of
Center
his humanity and society becomes Recoletos
a putrid dump ofLaw
lost lives.
The very purpose of a Bill of Rights was
to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the
Review
reach of majorities and officials and toBar
establish
them as2012
legal principles to be applied by the courts.
Ones right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to vote; they depend on the outcome of no
elections.19

The bundle of freedoms and liberties guaranteed by the Bill of Rights is essentially directed against
the State and its agencies and instrumentalities only. It could not be invoked against private persons.20
vis--viscannot
An Arsenal
Of Arms
Nevertheless, even A
asLibrary
it is true Of
thatLiberties
[t]he Constitution
control such
[private] prejudices, but
19

West Virginia State Board of Education v. Barnette, 319 US 624 (1943)

20

See People v. Marti, 193 SCRA 57 (1991) and Serrano v. NLRC, 323 SCRA 445 (2000).

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neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot,
directly or indirectly, give them effect.21
And, even as there might be no constitution following a revolution, if the new dispensation does not
repudiate the countrys adherence to the international instruments in which it is signatory, the guarantees
found in the Bill of Rights might still be available, like the exclusionary rule.22
1. Atienza, Jr. v. Commission on Elections, 612 SCRA 761 (2010)
The employee in the private sector in Yrasuegui v. Philippine Airlines, Inc., 569 SCRA 467 (2008),
invoked the Equal Protection Clause with regard to the alleged discrimination done to him by his
employer, the Court said: [I]n the absence of governmental interference, the liberties guaranteed by the
Constitution cannot be invoked. Put differently, the Bill of Rights is not meant to be invoked against acts
of private individuals. Indeed, the United States Supreme Court, in interpreting the Fourteenth
Amendment, which is the source of our equal protection guarantee, is consistent in saying that the equal
protection erects no shield against private conduct, however discriminatory or wrongful. Private actions,
no matter how egregious, cannot violate the equal protection guarantee.
In Atienza, members of a political party claim denial of due process in their expulsion from the
group. The Court held the claim unavailing. Requirements of administrative due process do not apply
to the internal affairs of political parties. The due process standards set in Ang Tibay cover only
administrative bodies created by the state and through which certain governmental acts or functions are
performed. Although political parties play an important role in our democratic set-up as an intermediary
between the state and its citizens, it is still a private organization, not a state instrument. The discipline
of members by a political party does not involve the right to life, liberty or property within the meaning
of the due process clause. An individual has no vested right, as against the state, to be accepted or to
prevent his removal by a political party. The only rights, if any, that party members may have, in relation
to other party members, correspond to those that may have been freely agreed upon among themselves
through their charter, which is a contract among the party members. Members whose rights under their
charter may have been violated have recourse to courts of law for the enforcement of those rights, but
not as a due process issue against the government or any of its agencies. Then, the Court added: But
even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and
disciplinary matters within a political party. A political party is free to conduct its internal affairs,
pursuant to its constitutionally-protected right to free association.

C. DUE PROCESS

Recoletos Law Center

Due process might as well provide a sort of a Swiss Army Knife guarantee given its adaptability
Bar Review 2012
and flexibility as a legal argument. The Due Process Clause is a handy legal tool for the protection of
the valued rights to life, liberty and property, and all other freedoms and liberties that inhere or adhere
to them. It provides both a safeguard to ensure fairness in the proceedings that may be taken towards the
deprivation of any liberty or property interests, or the impairment of any other right or freedom, as well
as the guarantee of reasonableness in the enactment of laws and other regulations which impact life,
liberty and property.23
A Library Of Liberties vis--vis An Arsenal Of Arms

21

Palmore v. Sidoti, 466 U.S. 529 (1984)

22

See Republic v. Sandiganbayan, 407 SCRA 10 (2003)

23

Take for instance what the Court said in regard to annulment of judgments: Although Section 2 of Rule 47 of the Rules of Court

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Person includes both citizens and aliens, natural and juridical. It may not encompass, however, the
foetus, or the unborn child24 though the 1987 Constitution has thought it advisable to provide protection
for the unborn together with its mother.25 As for life, liberty and property, while all of these are
protected, the extent of the care and importance they get are not the same some things are simply worth
much more than others. Thus, when property rights come into conflict with human rights, the former
must give way to the latter.26 [W]hen freedom of the mind is imperiled by law, it is freedom that
commands a momentum of respect; when property is imperiled, it is the lawmakers judgment that
commands respect. This dual standard may not precisely reverse the presumption of constitutionality in
civil liberties cases, but obviously it does set up a hierarchy of values within the due process clause.27
And, more recently, the Court also stated that, 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 LGUs exercise of police power clashes with a few
individuals right to property, the former should prevail.28 As between right not to join labor
organizations, the Court had this to say: In the hierarchy of constitutional values, this Court has
repeatedly held that the right to abstain from joining a labor organization is subordinate to the policy of
encouraging unionism as an instrument of social justice.29
And, if there is a hierarchy of rights, there is also a hierarchy of evidentiary values which calls into
play the guarantee of the Due Process Clause if the inappropriate quantum of proof is demanded by the
adjudicator in a particular proceeding.30
Relevant to the chore of weighing conflicting values are so-called standards of review or levels of
scrutiny, those instruments of measurement for validity of rules and regulations, adjustable and flexible
depending on the interests involved.
As for property, aside from those normally owned, it must not be overlooked that a final judgment
vests in the prevailing party a right recognized and protected by law under the due process clause of the
Constitution it is a vested interest which the government should recognize and protect, and of which
the individual could not be deprived arbitrarily without committing an act of injustice.31
Public office is not property, and one cannot insist on staying in office if the office has already been
abolished. But to the extent that ones right to security of tenure may be implicated, to that extent may
due process be called upon for assistance. Unduly long preventive suspension could also be assailed on
due process grounds.32
Licenses, while merely in the nature of a privilege, are not also insulated from the checking effects

Recoletos Law Center

provides that annulment of a final judgment or order of an RTC may be based only on the grounds of extrinsic fraud and lack of
jurisdiction, jurisprudence recognizes denial of due process as additional ground therefor. (Benatiro v. Heirs of Evaristo Cuyos, 560
SCRA 478 [2008])
24

See Roe v. Wade, 410 U.S. 113 (1973)

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25

The State shall equally protect the life of the mother and the life of the unborn from conception. (Art. II, 12)

26

PBM Employees Org. v. PBM Co., Inc., 51 SCRA 184 (1973)

27

Tolentino v. Secretary of Finance, 235 SCRA 630 (1994)

28

Social Justice Society v. Atienza, Jr., 545 SCRA 92 (2008)

29

Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions in BPI Unibank, 627 SCRA 590

(2010)
30

A Library Of Liberties vis--vis An Arsenal Of Arms

Manalo v. Roldan-Confesor, 215 SCRA 808 (1992)

31

Manotok Realty, Inc. v. CLT Realty Development Corporation, 476 SCRA 305 (2005)

32

See Layno, Sr. v. Sandiganbayan, 136 SCRA 536 (1985) and Deloso v. Sandiganbayan, 173 SCRA 409 (1989)

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of the Due Process Clause, especially if abuse attended their withdrawal or discontinuance.33 The mere
fact that ones claim to something might be based on a privilege and not a right is not determinative of
the appropriateness of invoking due process reliance on the right privilege dichotomy has long been
denigrated by leading lights in administrative law as too crude for consistent application by courts.34
Under traditional form of property ownership, recipients of privileges or largesses from the government
could be said to have no property rights because they possessed no traditionally recognized proprietary
interest therein. . . . But the right-privilege dichotomy came to an end when courts realized that
individuals should not be subjected to the unfettered whims of government officials to withhold
privileges previously given to them. Indeed to perpetuate such distinction would leave the citizens at the
mercy of State functionaries, and worse, threaten the liberties protected by the Bill of Rights.35
Sight must not be lost of the fact that the Clause has two faces or components the procedural and
the substantive. The former is essentially directed at officers who adjudicate while the latter is directed
basically at those who enact the laws. The first refers to the guarantees of fairness in the process of
determining whether a right, liberty or freedom is to be impaired or otherwise taken away while the latter
goes to the very power of the authorities to come up with rules and other strictures under which man may
live and enjoy the blessings of a civilized society, including the price that he has to pay to stay.
Then again, it must not also be forgotten that procedural due process operates differently under
changing circumstances. Classic procedural due process issues are concerned with what kind of notice
and what form of hearing the government must provide when it takes a particular action.36 Or, as stated
in another case: Procedural due process requires a determination of what process is due, when it is due,
and the degree of what is due.37 What may be required for purposes of judicial proceedings would not
be the same in administrative proceedings.38 Those that satisfy the requirements of due process in the
investigation of local appointive officials would not suffice for elective officials,39 and so on. It has also
been held that where the trial court simply considered the person and past performance of the witness,
and decided on this basis that he was a credible witness, rather than look at the merits of his testimony,
such act, by itself, was a major error, a violation of due process a court must always decide on the basis
of the evidence presented, not on the basis of any other extraneous consideration not before it.40
Basic to the idea of procedural due process is the presence of an impartial magistrate or tribunal, if
fairness is to be had. In Office of the Court Administrator v. Floro, Jr., 486 SCRA 66 (2006), it was held
that where a judge entertains an unorthodox belief system such as believing in psychic visions, and
in dwarfs, and in being able to write while on trance, of having been seen by several people in two places
at the same time, and of foreseeing the future because of his power of psychic phenomenon the same
indubitably shows his inability to function with the cold neutrality of an impartial judge. Such beliefs,
specially so when acted upon by the judge, are so at odds with the critical and impartial thinking required

Recoletos Law Center


Bar Review 2012

33

[P]ilotage as a profession has taken on the nature of a property right. (Corona v. United Harbor Pilots Association of the
Philippines, 283 SCRA 31 [1997])
On the other hand, it has been held that an airman license cannot be considered a property right, it is but a mere privilege, subject
to the restrictions imposed by the ATO and its revocation if warranted. (Ledesma v. Court of Appeals, 541 SCRA 444 [2007])

34

Mabuhay Textile Mills Corporation v. Ongpin, 141 SCRA 437 (1986)

35

Terminal Facilities and Services Corporation v. Philippine Ports Authority, 378 SCRA 82 (2002)

36

City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)

37

Av.Library
Of
Liberties
Secretary of Justice
Lantion, 343
SCRA
377 (2000)vis--vis

38

Cf. Banco Espaol-Filipino v. Palanca, 37 Phil. 921 (1918) and Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 (1940)

An Arsenal Of Arms

39

Joson v. Torres, 290 SCRA 279 (1998)

40

People v. Sanchez, 569 SCRA 194 (2008)

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of a magistrate. The judiciary is certainly not the proper place for such a person to stay.
On substantive due process, the discussions made by the Court in Estrada v. Sandiganbayan, 369
SCRA 394 (2001), are quite instructive and edifying. It explained the void-for vagueness doctrine
as most commonly stated to the effect that a statute establishing a criminal offense must define the
offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct
is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague
on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or
act may be said to be vague when it lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle. And what about the overbreadth doctrine? This doctrine decrees that a governmental purpose
may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms. If ones purpose is simply to roast a pig, then he need not have to burn the barn.
Justice Mendoza, concurring, also elucidated on the meaning, importance and relevance of the socalled standards of review or levels of scrutiny, those yardsticks used by the courts to determine the
constitutionality of statutes impairing protected rights, liberties and freedoms. Determining whether there
is sufficient justification for the governments action depends very much on the level of scrutiny used.41
This simply means that if the liberty involved were freedom of the mind or the person, the standard for
the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed
affects what are at the most rights of property, the permissible scope of regulatory measures is wider.
Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental
interest, without courts seriously inquiring into the substantiality of such interest and examining the
alternative means by which the objectives could be achieved. Under intermediate review, the
substantiality of the governmental interest is seriously looked into and the availability of less restrictive
alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than
substantial governmental interest and on the absence of less restrictive means for achieving that interest.
Strict scrutiny is a judicial standard for determining the quality and the amount of governmental interest
brought to justify the regulation of fundamental freedoms. It is used today to test the validity of laws
dealing with the regulation of speech, gender, or race and facial challenges are allowed for this purpose.42
The Court has also declared: [C]onstitutional due process demands a higher degree of clarity when
infringements on life or liberty are intended. . . . In the matter of statutes that deprive a person of physical
liberty, the demand for a clearer standard in sentencing is even more exacting.43

Recoletos Law Center

If one were to have a better appreciation of these standards of review, why not try to reminisce
Bar Review
2012
about the law school years where classroom
sessions were
either a bore, moments of trepidation and
41

City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)

42

In League of Cities, 571 SCRA 263 (2008), we also find this in n. 23:

The rational basis test is the minimum level of scrutiny that all government actions challenged under the equal protection clause
must meet. The strict scrutiny test is used in discriminations based on race or those which result in violations of fundamental rights. Under
the strict scrutiny test, to be valid the classification must promote a compelling state interest. The intermediate scrutiny test is used in
discriminations based on gender
or illegitimacy
of children. Under
the intermediate
scrutiny test, Of
the classification
A Library
Of Liberties
vis--vis
An Arsenal
Arms must be substantially
related to an important government objective. Laws not subject to the strict or intermediate scrutiny test are evaluated under the rational
basis test, which is the easiest test to satisfy since the classification must only show a rational relationship to a legitimate government
purpose. See Erwin Chemerinsky, Constitutional Law, Principles and Policies, 2nd Edition, pp. 645-646.
43

People v. Bon, 506 SCRA 168 (2006)

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incessant prayers or occasions for hilarious incidents, courtesy of members other than the ones enjoying
the fun? A students preparations for each subject then were generally dictated by the kind of professors
he or she might have had whether members of terrorist cells or the soft and kind apostles of nonviolence and charity. Another way of looking at it, of course, is to see how those who graduated with
honors are feeling the pressure to perform well in the Bar they should be better than the rest, or so it
would logically seem to be. Otherwise, for what reason did they graduate with better distinctions than
the rest if not their assumed and presumed more exemplary qualifications? (Of course, for others, beating
such favored crop is a vindication of sorts nothing could be sweeter than being an underdog and
trumping everyone, then showing up proud and confident in front of professors who saw no promise in
them when still students.)
Due Process guarantees have far-reaching consequences and ramifications. In the United States, for
instance, it has been implicated in the right of a woman to have an abortion,44 and likewise it has been
attempted unsuccessfully to justify a claim to a right to suicide.45 Elsewhere, it has been referred to
in relation to the rights to counsel,46 information,47 equal protection,48 public trial,49 need for courts to
explicitly state the factual and legal bases for their judgments,50 reasonableness of presumptions,51 and
even the right not to be subjected to excessive exemplary damages.52 It has likewise been considered in
connection with expropriations,53 the determination of the voluntariness and admissibility of
extrajudicial confessions,54 as well as the reasonable doubt standard in criminal cases.55 And, it has also
been invoked to justify the compelled production of relevant presidential materials as against a
generalized assertion of executive privilege.56 Court access by prisoners is also considered part of the
guarantee. The constitutional guarantee of due process of law has as a corollary the requirement that
prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress
for violations of their constitutional rights. This means that inmates must have a reasonable opportunity
to seek and receive the assistance of attorneys.57 Further, inordinate reliance on technical rules of
procedure may also offend the guarantee.58 In another case, it was held that the Special Prosecutor cannot
44

See Roe v. Wade, 410 U.S. 113 (1973)

45

See Washington v. Glucksberg, 521 U.S. 702 (1997)

46

E.g., People v. Bermas, 306 SCRA 135 (1999); People v. Santocildes, Jr., 321 SCRA 310 (1999); and, People v. Liwanag, 363
SCRA 62 (2001). In People v. Ferrer, 406 SCRA 658 (2003), the Court declared: The right to counsel proceeds from the fundamental
principle of due process which basically means that a person must be heard before being condemned. The due process requirement is part
of a persons basic rights; it is not a mere formality that may be dispensed with or performed perfunctorily.
47

Taada v. Tuvera, 136 SCRA 27 (1985) and 146 SCRA 446 (1986)

48

Philippine Judges Association v. Prado, 227 SCRA 703 (1993). (The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate
clause in Article III, Sec. 1, of the Constitution to provide a more specific guaranty against any form of undue favoritism or hostility from
the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes
of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause.)

Recoletos Law Center


Bar Review 2012

49

Re Oliver, 333 U.S. 257 (1948)

50

Yao v. Court of Appeals, 344 SCRA 202 (2000)

51

Tot v. United States, 319 U.S. 463 (1943)

52

See BMW of North America, Inc. v. Gore, Jr., 517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532
U.S. 424 (2001); and, State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003).
53

Visayan Refining Co. v. Camus, 40 Phil. 550 (1919)

54

See Dickerson v. United States, 530 U.S. 428 (2000)

55

Library
Of
In Re Winship, 397AU.S.
358 (1970)

56

United States v. Nixon, 418 U.S. 683 (1974)

Liberties vis--vis An Arsenal Of Arms

57

Procunier v. Martinez, 416 U.S. 396 (1974)

58

See Banaga v. Majaducon, 494 SCRA 153 (2006)

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act on his own and direct the filing of an Amended Information without the Ombudsmans go-ahead
signal, for to do so would be violative of the guarantee of due process.59
Nevertheless, caution should also be had in using it indiscriminately for it could as soon lend itself
to noticeable misuse. Depending on how well one may wield the due process argument, he may find an
ally or just an illusory companion. In one case, the Supreme Court opened its opinion with this
observation: It has not escaped the attention of the Court that when a party runs out of arguments, or
never had any to begin with, it usually pleads a denial of due process. The plea may impress at first
glance, what with all its plaintive invocation of the Bill of Rights, but it does not often succeed upon
closer examination.60 In another case, it concluded with this observation: The Court is not unaware
of the practice of some lawyers who, lacking plausible support for their position, simply claim a denial
of due process as if it were a universal absolution. The ground will prove unavailing, and not surprisingly
since it is virtually only a pro forma argument. Due process is not to be bandied like a slogan. It is not
a mere catch-phrase. As the highest hallmark of the free society, its name should not be invoked in vain
but only when justice has not been truly served.61 The Court also observed in another case: The Court
shall not fake naivet of the prevalent practice among lawyers who, for lack of better argument to bolster
their position, engage in waxing lyrical to a denial of due process.62
Finally, the Court has come up with the concept of statutory due process in order to distinguish it
from constitutional due process. In Serrano v. National Labor Relations Commission, 323 SCRA 445
(2000), the Court held that the dismissal of an employee who was separated for cause without affording
him the notice required by law was considered ineffectual until validated by final judgment. In effect,
the employee would be deemed still an employee in the meantime, and accordingly entitled to his wages
until his dismissal would have been affirmed. The Court majority in that case was also emphatic that
such dismissal was not a violation of due process as the guarantee in the Bill of Rights is directed against
governmental action, not private acts. Then, in Agabon v. National Labor Relations Commission, 442
SCRA 573 (2004), the Court characterized the dismissal without complying with the notice requirement
as a violation of due process. How did it turn around in a manner that is not entirely contrary to what it
said four years earlier? Simple. It came up with something new two concepts of due process: (a)
constitutional due process, and, (b) statutory due process. While under the former, its violation would
lead to the nullity of the action made, in the latter it would not necessarily be the case, depending on
what the statute itself provides.63
1. Republic v. Cagandahan, 565 SCRA 72 (2008)
Most persons may simply take whatever may come their way, specially in regard to the gender that
nature may have blessed or cursedRecoletos
them with. Others
want to take matters into their own hands.
Lawmay
Center
Here, Cagandahan, Jennifer and female at birth, is afflicted with the condition called Congenital
Bar Review
2012
Adrenal Hyperplasia (CAH), or intersexuality.
As she grew
up, she also developed the attributes of
being male. Biologically, nature endowed her with a mixed (neither consistently and categorically female
nor consistently and categorically male) composition. She has female (XX) chromosomes but her body

59

Perez v. Sandiganbayan, 503 SCRA 252 (2006)

60

Bautista v. Secretary of Labor and Employment, 196 SCRA 470 (1991)

61

Pacific Timber Export Corporation v. National Labor Relations Commission, 224 SCRA 860 (1993)

62

NEECO II v. National Labor Relations Commission, 469 SCRA 169 (2005)

63

A Library Of Liberties vis--vis An Arsenal Of Arms

Note what the Court said in this case, a good window to what it had done recently in changing its mind on its earlier decisions.
This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and related cases. Social justice is not based
on rigid formulas set in stone. It has to allow for changing times and circumstances.

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system naturally produced high levels of male hormones (androgen). As a result, she now has ambiguous
genitalia and the phenotypic features of a male. Before the Court, she wants to have correction of her
birth certificate to reflect changes in her gender and name male and Jeff. Can she be accommodated?
The Court said yes. It is a recognition of her or his liberty to choose what she or he really is. CAH
is one of many conditions that involve intersex anatomy. During the twentieth century, medicine adopted
the term intersexuality to apply to human beings who cannot be classified as either male or female.
The term is now of widespread use. According to Wikipedia, intersexuality is the state of a living thing
of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are
determined to be neither exclusively male nor female. An organism with intersex may have biological
characteristics of both male and female sexes. The Court explained: In deciding this case, we consider
the compassionate calls for recognition of the various degrees of intersex as variations which should not
be subject to outright denial. It has been suggested that there is some middle ground between the sexes,
a no-mans land for those individuals who are neither truly male nor truly female. The current
state of Philippine statutes apparently compels that a person be classified either as a male or as a female,
but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid
classification. The Court concluded: Ultimately, we are of the view that where the person is
biologically or naturally intersex the determining factor in his gender classification would be what the
individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex.
Respondent here thinks of himself as a male and considering that his body produces high levels of male
hormones (androgen) there is preponderant biological support for considering him as being male. Sexual
development in cases of intersex persons makes the gender classification at birth inconclusive. It is at
maturity that the gender of such persons, like respondent, is fixed.
In short, to the person with CAH belongs the human right to the pursuit of happiness and of health,
and to him should belong the primordial choice of what courses of action to take along the path of his
sexual development and maturation, and in absence of evidence to show that classifying him as male will
harm other members of society, the Court will affirm as valid and justified his position and his personal
judgment of being a male.64
2. Board of Medicine v. Ota, 558 SCRA 234 (2008)
Here, the Board of Medicine and Professional Regulation Commission refused to grant a license to
Ota, a Japanese who took medical education in the Philippines and who thereafter passed the Board
exam, on the ground that there is no real reciprocity between Japan and the Philippines conditions for
practice in Japan are not practical or attainable (practically impossible for a Filipino), and that, in any
event, the grant is discretionary with Board.

Recoletos Law Center

It must be stressed however that the power to regulate the exercise of a profession or pursuit of an
occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner.
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A political body which regulates the exercise of a particular privilege has the authority to both forbid and
grant such privilege in accordance with certain conditions. As the legislature cannot validly bestow an
arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike
down license legislation that vests in public officials discretion to grant or refuse a license to carry on
some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions
for the guidance of said officials in the exercise of their power. The Court noted that [n]owhere in said
A Library
OfAct
Liberties
statutes [R.A. No. 2382
(Medical
of 1959)vis--vis
and P.D. An
223 Arsenal
(Creating Of
the Arms
PRC)] is it stated that the

64

This is to be distinguished from Silverio v. Republic, 537 SCRA 373 (2007), where the petitioner wanted correction of his birth
certificate to reflect the effects of his sex change through sex reassignment surgery. He wanted to change his name from Rommel to Mely,
and from male to female. The Court said that there is no law which allows such corrections.

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foreign applicant must show that the conditions for the practice of medicine in said country are practical
and attainable by Filipinos. Neither is it stated that it must first be proven that a Filipino has been
granted license and allowed to practice his profession in said country before a foreign applicant may be
given license to practice in the Philippines. In other words, [i]t is enough that the laws in the foreign
country permit a Filipino to get license and practice therein. Requiring respondent to prove first that a
Filipino has already been granted license and is actually practicing therein unduly expands the
requirements provided for under R.A. No. 2382 and P.D. No. 223.
3. Parreo v. Commission on Audit, 523 SCRA 390 (2007)
When do retirement benefits accrue and become vested rights? And, what is the nature of the
retirement benefits of military men?
Section 27 of P.D. No. 1638, as amended by PD 1650, withdraws pension benefits of retired military
men who have lost their Philippine citizenship. Is this not a violation of the right to due process,
particularly on non-deprivation of property? PD 1638, as amended, does not impair any vested right
or interest of petitioner. Where the employee retires and meets the eligibility requirements, he acquires
a vested right to the benefits that is protected by the due process clause. At the time of the approval of
PD 1638 and at the time of its amendment, petitioner was still in active service. Hence, petitioners
retirement benefits were only future benefits and did not constitute a vested right. . . . It is only upon
retirement that military personnel acquire a vested right to retirement benefits.
And what is the nature of the retirement benefits of military men? [T]he retirement benefits of
military personnel are purely gratuitous in nature. They are not similar to pension plans where employee
participation is mandatory, hence, the employees have contractual or vested rights in the pension which
forms part of the compensation.
4. Kuwait Airways Corporation v. Philippine Airlines, Inc., 587 SCRA 399 (2009)
The Philippine Government, through the Civil Aeronautics Board, or any of its officials, cannot
unilaterally terminate an air agreement between a private Philippine air carrier and a foreign airline.
The Court acknowledged that the CAB has ample power under its organizing charter, to compel
Philippine Airlines to terminate whatever commercial agreements the carrier may have. However, it
noted that this is not a case where the CAB had duly exercised its regulatory authority over a local airline
in order to implement or further government air policy. What happened instead was an officer of the
CAB, acting in behalf not of the Board but of the Philippine government, had committed to a foreign
nation the immediate abrogation of Philippine Airliness commercial agreement with Kuwait Airways.
And while we do not question that ability of that member of the CAB to represent the Philippine
Recoletos Law Center
government in signing the CMU [Confidential Memorandum of Understanding], we do question whether
such member could have bound Philippine Airlines in a manner that can be accorded legal recognition
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by our courts. The Court then went on to state that, We, as magistrates in a functioning democratic
State with a fully fleshed Bill of Rights and a Constitution that emphatically rejects letat cest moi as
the governing philosophy, think not. There is nothing to prevent the Philippine government from
utilizing all the proper channels under law to enforce such closure, but unless and until due process is
observed, it does not have legal effect in this jurisdiction. Even granting that the agreement between
the two governments or their representatives creates a binding obligation under international law, it
Library
Of Liberties
Of Arms
remains incumbentAfor
each contracting
partyvis--vis
to adhereAn
to Arsenal
its own internal
law in the process of
complying with its obligations. The promises made by a Philippine president or his alter egos to a
foreign monarch are not transubstantiated by divine right so as to ipso facto render legal rights of private

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persons obviated. . . . The President or his alter egos do not have the legal capacity to dictate insuperable
commands to private persons. And that undesirable trait would be refuted on the President had
petitioners position prevailed, since it is imbued with the presumption that the commitment made to a
foreign government becomes operative without complying with the internal processes for the divestiture
of private rights.
5. Aberca v. Ver, SCRA (G.R. No. 166216, 14 March 2012)
In this case, defendants military men were sued for damages by persons they arrested, detained
and allegedly tortured. The trial court granted the defendants motion to dismiss but the Supreme Court
reversed and remanded the case for further proceedings. While the case was with the Court, the EDSA
Revolution occurred. On remand, the records were burned when the Quezon City Hall burned in 1988.
They were later reconstituted at the instance of the plaintiffs. In the meantime, the trial court required
the plaintiffs to report the addresses of the defendants, specially so as most of said defendants were no
longer in office and the Solicitor General who represented them initially (Estelito Mendoza) left office
following the EDSA Revolution. The new Solicitor General (Francisco Chavez) withdraw the OSGs
representation of the defendants. For failure to do so, the case was dismissed, only to be reconsidered.
Then, the trial court ordered that the notice to file answer be done through publication. The defendants
were then declared in default for failure to answer and an adverse judgment was subsequently rendered.
On petition before the Court of Appeals, the appellate court set aside the judgment Now, the issue before
the Court is whether the trial court acted properly. The Court said there was denial of due process which
invalidated the proceedings against the defendants.
The Court explained that the acceptable modes of service of pleadings, motions, notices, orders,
judgments, and other papers under Rule 13 are (1) personal service, (2) service by mail, and (3)
substituted service, in case service cannot be effected either personally or by mail. [T]he basic rules on
modes of service of pleadings, motions, notices, orders, judgments, and other papers are mandatory in
nature and, therefore, must be strictly observed. In the instant case, the defendants were completely
deprived of due process when they were declared in default based on a defective mode of service
service of notice to file answer by publication. The rules on service of pleadings, motions, notices,
orders, judgments, and other papers were not strictly followed in declaring the respondents in default.
The Court agrees with the CA that the RTC committed procedural lapses in declaring the respondents
in default and in allowing the petitioners to present evidence ex-parte.
Then for further edification in Remedial Law, Court explained that after failure of personal or mail
service, there was still another less preferred but proper mode of service available substituted service
which is service made by delivering the copy to the clerk of court, with proof of failure of both
personal service and service by mail.
Unfortunately,
this substitute
Recoletos
Law
Centermode of service was not resorted to
by the RTC after it failed to effect personal service and service by mail. Instead, the RTC authorized an
unrecognized mode of service underBar
the Review
Rules, which2012
was service of notice to file answer by
publication. In any event, [i]n case the preferred modes were impractical, the Court should have
required the petitioners to at least report in writing why efforts exerted towards personal service or
service by mail failed. In other words, a convincing proof of an impossibility of personal service or
service by mail to the respondents should have been shown first. The RTC, thus, erred when it ruled that
the publication of a notice to file answer to the respondents substantially cured the procedural defect
equivalent to lack of
due process.
The RTC cannot
just An
abandon
the basic
requirement of personal
A Library
Of Liberties
vis--vis
Arsenal
Of Arms
service and/or service by mail.

And, for emphasis, [t]o stress, the only modes of service of pleadings, motions, notices, orders,

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judgments and other papers allowed by the rules are personal service, service by mail and substituted
service if either personal service or service by mail cannot be made, as stated in Sections 6, 7 and 8 of
Rule 13 of the Rules of Court. Nowhere under this rule is service of notice to file answer by publication
is mentioned, much less recognized. Furthermore, the Court would like to point out that service by
publication only applies to service of summons stated under Rule 14 of the Rules of Court where the
methods of service of summons in civil cases are: (1) personal service; (2) substituted service; and (3)
service by publication. Similarly, service by publication can apply to judgments, final orders and
resolutions as provided under Section 9, Rule 13 of the Rules of Court, . . .
Now, have you not yet gotten the drift? Most often, in learning about Constitutional Law, you may
also digress into learning about other subjects fringe benefits!
6. Anonymous v. Radam, 541 SCRA 12 (2007)
Speaking of birth certificates, whats wrong with anonymous or unknown authors, a.k.a. fathers?
Radam, a court utility worker, was charged with immorality for having a child outside marriage. In
her explanation, she admitted that she and her boyfriend, who had a pending application to migrate to
Canada, had a mutual plan to remain unmarried. The Office of the Court Administrator recommended
exoneration but submitted that Radam should be held liable for Conduct Unbecoming and fined for
stating in the birth certificate that the father was unknown when she knew all along who it was.
The Court agreed that she should could not be held liable as charged.65 But, could she be found guilty
for conduct unbecoming? No, for that would run afoul of due process. Radam was indicted only for
alleged immorality for giving birth out of wedlock. It was the only charge of which she was informed.
Thus, the recommendation of the OCA that she be held administratively liable in connection with an
entry in the birth certificate of her son came like a thief in the night. It was unwarranted. She was neither
confronted with it nor given the chance to explain it. To hold her liable for a totally different charge of
which she was totally unaware will violate her right to due process. The essence of due process in an
administrative proceeding is the opportunity to explain ones side, whether written or verbal. This
presupposes that one has been previously apprised of the accusation against him or her. Here, Radam
was deprived of both. Unless the constitutional guarantee of due process is a mere platitude, it is the
Courts duty to insist on its observance in all cases involving a deprivation, denigration or dilution of
ones right to life, liberty and property.
7. Civil Service Commission v. Colanggo, 553 SCRA 640 (2008)
65

The Court held that [f]or purposes of determining administrative responsibility, giving birth out of wedlock is not per se immoral
under civil service laws. For such conduct to warrant disciplinary action, the same must be grossly immoral, that is, it must be so corrupt
and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree. Thus, [f]or a particular conduct to
constitute disgraceful and immoral behavior under civil service laws, it must be regulated on account of the concerns of public and
secular morality. It cannot be judged based on personal bias, specifically those colored by particular mores. Nor should it be grounded
on cultural values not convincingly demonstrated to have been recognized in the realm of public policy expressed in the Constitution
and the laws. At the same time, the constitutionally guaranteed rights (such as the right to privacy) should be observed to the extent that
they protect behavior that may be frowned upon by the majority. Otherwise stated, two things may be concluded from the fact that an
unmarried woman gives birth out of wedlock: (1) if the father of the child is himself unmarried, the woman is not ordinarily
administratively liable for disgraceful and immoral conduct. It may be a not-so-ideal situation and may cause complications for both mother
and child but it does not give cause for administrative sanction. There is no law which penalizes an unmarried mother under those
circumstances by reason of her sexual conduct or proscribes the consensual sexual activity between two unmarried persons. Neither does
the situation contravene any fundamental state policy as expressed in the Constitution, a document that accommodates various belief
A Library
OfIf Liberties
An
Arsenal
Of married
Armsto a woman other than the
systems irrespective of dogmatic
origins. (2)
the father of thevis--vis
child born out
of wedlock
is himself
mother, then there is a cause for administrative sanction against either the father or the mother. In such a case, the disgraceful and immoral
conduct; consists of having extramarital relations with a married person. The sanctity of marriage is constitutionally recognized and
likewise affirmed by our statutes as a special contract of permanent union. Accordingly, judicial employees have been sanctioned for their
dalliances with married persons or for their own betrayals of the marital vow of fidelity.

Recoletos Law Center


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In this case, it was discovered that there were significant irregularities in Colanggos documents
photographs attached to Professional Board Examination for Teachers (PBET), application form and
picture seat plan did not resemble Colanggo, and signature on PBET form was markedly different from
that affixed on his personal data sheet (PDS), i.e., someone other than he filed his PBET application and
still another took the exam on his behalf. As a consequence, he was charged with dishonesty and conduct
prejudicial to the best interest of the service. After a formal hearing, the Civil Service Commission
dismissed him. The Court of Appeals reversed, however, holding that photocopies of PBET application
form, picture plan and PDS should have been authenticated. The Supreme Court held otherwise.
Administrative rules of procedure are construed liberally to promote their objective and to assist
parties in obtaining just, speedy and inexpensive determination of their respective claims and defenses.
The CSC, in investigating complaints against civil servants, is not bound by technical rules of procedure
and evidence applicable in judicial proceedings. Accordingly, the CSC correctly appreciated the
photocopies of PBET application form, picture seat plan and PDS (though not duly authenticated) in
determining whether there was sufficient evidence to substantiate the charges against Colanggo who did
not even object to the veracity of their contents but merely disputed their admissibility on the ground that
they were not authenticated.
8. Geronga v. Varela, 546 SCRA 429 (2008)
In this case, Geronga, an Engineer in Cadiz City, was charged with 1) Unjust Vexation, Contempt,
Insubordination, Conduct Unbecoming a Public Officer, and Alarm and Scandal (Administrative Case
No. 96-04); and 2) Grave Misconduct and Engaging in Partisan Political Activity (with 2 other
respondents) (Administrative Case No. 96-05). The matter was referred by the mayor to the City Legal
Officer for investigation. After investigation, it was recommended that Geronga be dismissed for Grave
Misconduct in Adm. Case No. 96-04, and dismissed as well, together with others charged with him, in
the other case for grave misconduct and partisan politics. Both recommendations were approved by the
mayor and he dismissed Geronga and the others. Without assistance of counsel, Geronga filed notice to
appeal to CSC, then, still without assistance of counsel, filed a Joint Memorandum (together with
another respondent in Adm. Case No. 96-05), in which he discussed Administrative Case No. 96-05
only, and completely omitted reference to Administrative Case No. 96-04. The CSC ordered the
reinstatement of all 3 respondents, but on motion for reconsideration, the CSC reconsidered in regard
to Geronga since his dismissal in Adm. Case No. 96-04 was not appealed.
The Court, after noting that there is a material difference between a mere recommendation to dismiss
an employee and an administrative decision/resolution sentencing him with dismissal it is not the
recommendations which are theRecoletos
proper subject
matter
of an appeal to the CSC, but the
Law
Center
decision/resolution of dismissal rendered by the disciplining authority pointed out that in the Notice
of Appeal which Geronga filed, he distinctly
stated that2012
what he was appealing to the CSC is his
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dismissal as contained in the mayors Memorandum Order approving the recommendations of the City
Legal Officer. By so doing, he effectively included in his appeal not just Administrative Case No. 96-05
but also Administrative Case No. 96-04. Therefore, it was error to conclude that Administrative Case
No. 96-04 had become final and executory for failure of petitioner to appeal the same to the CSC.
Unfortunately for petitioner, the CA and CSC did not anymore look into the merits of the decision in
Administrative Case No. 96-04 simply because he raised no issue or argument against it.
Library
Ofcould
Liberties
vis--vis
An Arsenal
Of Arms
Understandably, theACA
and CSC
not be faulted
for doing
so; they were
merely adhering to a basic
rule that in any proceeding, a party who fails to cite specific grounds or raise particular arguments is
deemed to have waived them. Such rule, however, is not sacrosanct. It yields to the imperatives of

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equity, which often arise in administrative cases where at stake is the security of tenure of labor, the
protection of which no less than the Constitution guarantees. Deprivation of security of tenure may be
justified only for the causes specified and in the manner prescribed by law. Should there be doubt in the
legality of either cause or mode of dismissal, public interest demands the resolution of the doubt wholly
on its substance, rather than solely on technical minutiae. So what now?
While petitioner, unaided by legal counsel, may have omitted to raise specific grounds against the
decision insofar as Administrative Case No. 96-04 is concerned, it cannot be denied that he intended to
appeal from it. The least he deserves then is a scrutiny of the legal and factual bases of his dismissal.
And, the Court further pointed out: As it turns out, upon review, said decision, insofar as it relates to
Administrative Case No. 96-04, is patently void. How come? Two fundamental requirements of due
process in administrative cases are that a person must be duly informed of the charges against him; and
that he cannot be convicted of an offense or crime with which he was not charged. A deviation from
these requirements renders the proceeding invalid and the judgment issued therein a lawless thing that
can be struck down anytime. In the present case, the records of Administrative Case No. 96-04 reveal
that petitioner was dismissed for an act which was not alleged in the administrative charge filed against
him. The conclusion which the City Legal Officer arrived at in his recommendation, and which became
the basis of the dismissal of Geronga, has no bearing whatsoever on the offenses with which the latter
was charged under the Sworn Complaint nor to the incidents/acts described therein. Rather, the
conclusion pertains solely to the alleged defamatory statements which Geronga made in his
Letter-Answer to the Sworn Complaint. Nowhere in the records of Administrative Case No. 96-04 does
it appear that petitioner was charged with grave misconduct, or that he was held to answer for his alleged
defamatory statements in his letter. Thus, the recommendation and the dismissal order were issued in
utter contempt of the right of petitioner to due process. Both are void ab initio and should be treated as
inexistent. In effect, there was nothing for petitioner to appeal from in Administrative Case No. 96-04.
Is it then all good news for Geronga? No, not really. The Court added: That said, however, the
nullity of Memorandum Order No. 98-V-05 and the December 1, 1997 Resolution/Recommendation
leaves Administrative Case No. 96-04 unresolved. Although the Court may already decide said case
based on the records before us, the better policy is for us to defer to the prerogative granted under
Section 17, Rule 3 of the Rules of Court, to the primary disciplining authority, the incumbent mayor of
Cadiz City, whether or not to pursue said administrative case.
Well, if anything, the case could be good news for aspiring lawyers it highlights the pitfalls of
trying to do away with their services.
9. Uy v. Office of the Ombudsman, 556 SCRA 73 (2008)

Recoletos Law Center

Whats In a Name? In the plunder case against former President Estrada and others, included among
those charged was one Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Tan (with address at Valenzuela
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City or Mandaluyong City). In time, there was request for issuance of a warrant of arrest against Victor
Jose Tan Uy [with address in Cebu] alias Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy, based
allegedly on positive identification made through photographs, as early as the Senate Impeachment Trial
of Estrada, as well as on the Sworn Statement of Ma. Caridad Manahan-Rodenas executed before Atty.
Roxas of the Fact Finding and Intelligence Bureau of the Office of the Ombudsman (FFIB)
(identification documents).
A Library Of Liberties vis--vis An Arsenal Of Arms
Petitioner sought the conduct of preliminary investigation as to him which the Sandiganbayan
granted. The Ombudsman then issued an Order requiring the petitioner to file his counter-affidavit, the
affidavits of his witnesses, and other supporting documents. Attached to the Order were the

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Complaint-Affidavit in OMB-0-00-1756 and the NBI Report in OMB-0-00-1720. After the petitioner
filed his counter-affidavit in which he pointed out that he was not among those charged, the OMB
required him to appear for clarificatory hearing but he did not, claiming that there was no need for it. In
the resolution that the OMB subsequently issued, it found probable cause against petitioner. Petitioner
assailed the same before the Supreme Court, alleging grave abuse of discretion for, among other, having
relied on evidence and findings that were never part of the complaints-affidavits or their supporting
documents served upon him, and which were never adduced or presented in the course of the preliminary
investigation conducted. Specifically, he claimed that the duty of the Ombudsman is to determine the
existence of probable cause based on the evidence presented, not to fill up the deficiencies of the
complaint, nor to remedy its weaknesses. The Court agreed. At the core of the present controversy is
the regularity, in the context of accepted standards of due process, of the Ombudsmans conduct of the
Sandiganbayan-ordered preliminary investigation. The standards that at the very least assume great
materiality and significance are those enunciated in the leading case of Ang Tibay v. Court of Industrial
Relations which instructively tells us in defining the basic due process safeguards in administrative
proceedings that the decision (by an administrative body) must be rendered on the evidence presented
at the hearing, or at least contained in the record and disclosed to the parties affected. [T]he petitioner
was never identified in the previous preliminary investigation to be the person identified by assumed
names or aliases in the supporting complaint-affidavits; hence, a new preliminary investigation should
be conducted to identify him as the person who, using the aliases Eleuterio Tan, Eleuterio Ramos Tan
or Mr. Uy, opened and withdrew from the Landbank account in the course of a series of acts collectively
constituting the crime of plunder. The critical evidence linking the petitioner to the plunder case is his
identification through the identification documents. This notwithstanding and quite inexplicably, the
identification documents despite the fatal infirmity the Sandiganbayan found in the first preliminary
investigation were once again not given to the petitioner in the subsequent Sandiganbayan-ordered
preliminary investigation to inform him of his alleged links to the charges under the
complaint-affidavits.
Further, the Court added: That the petitioner may have actual prior knowledge of the identification
documents from proceedings elsewhere is not a consideration sufficiently material to affect our
conclusion. Reasonable opportunity to controvert evidence and ventilate ones cause in a proceeding
requires full knowledge of the relevant and material facts specific to that proceeding. One cannot be
expected to respond to collateral allegations or assertions made, or be bound by developments that
transpired, in some other different although related proceedings, except perhaps under situations where
facts are rendered conclusive by reason of judgments between the same parties a situation that does
not obtain in the present case. Otherwise, surprise which is anathema to due process may result
together with the consequent loss of adequate opportunity to ventilate ones case and be heard.
Recoletos Law Center
Following Ang Tibay, a decision in a proceeding must be rendered based on the evidence presented at
the hearing (of the proceeding), or at least contained in the record (of the proceeding) and disclosed to
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the parties affected (during or at the proceeding).
10. Formantes v. Duncan Pharmaceuticals, Phils., Inc., 607 SCRA 268 (2009)

In Genuino v. National Labor Relations Commission, 539 SCRA 342 (2007), the Court held that an
employee sought to be dismissed must be given the particulars of the acts or omissions which are
supposed to be the bases of the charge. They must not be too general in order to enable the employee to
A Library
Of Liberties
An
Of Janssen
Arms Pharmaceutica v.
intelligently and adequately
prepare
his or her vis--vis
defense. On
theArsenal
other hand,
Silayro, 546 SCRA 628 (2008), held that a person cannot be made to account for and explain an event
that has yet to happen. But can an employees dismissal be upheld by the Labor Arbiter based on a

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ground other than that specified by his employer? The Court said yes in Formantes.
The Court referred to its ruling in Rubberworld (Phils.), Inc. v. National Labor Relations
Commission,183 SCRA 421 (1990), at 424, where it held: It is now axiomatic that if just cause for
termination of employment actually exists and is established by substantial evidence in the course of the
proceedings before the Labor Arbiter, the fact that the employer failed, prior to such termination, to
accord to the discharged employee the right of formal notice of the charge or charges against him and
a right to ventilate his side with respect thereto, will not operate to eradicate said just cause so as to
impose on the employer the obligation of reinstating the employee and otherwise granting him such other
concomitant relief as is appropriate in the premises. It went on to observe: Although petitioner was
dismissed from work by the respondent on the ground of insubordination, this Court cannot close its eyes
to the fact that the ground of sexual abuse committed against petitioner's subordinate actually exists and
was established by substantial evidence before the LA.
11. Anillo v. Commission on the Settlement of Land Problems, 534 SCRA 228 (2007)
Due process does not always have to mean actual notice all the time. It may also be satisfied if and
when there is constructive notice, such as when one has been represented by a lawyer who has been
appearing all along for the interest of the party and others in the proceedings. In administrative
proceedings, procedural due process has been recognized to include the following: (1) the right to actual
or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2)
a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and
evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and
so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well
as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted
for consideration during the hearing or contained in the records or made known to the parties affected.
12. Benatiro v. Heirs of Evaristo Cuyos, 560 SCRA 478 (2008)
Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a final judgment
or order of an RTC may be based only on the grounds of extrinsic fraud and lack of jurisdiction,
jurisprudence recognizes denial of due process as additional ground therefor. And, of course, a void
judgment for lack of due process of law, is no judgment at all.
13. Jamsani-Rodriguez v. Ong, 628 SCRA 626 (2010)
Here, the Court said that Sandiganbayan justices should hear hearing collectively, or as a collegial
body, and not individually. We find that the procedure adopted by respondent Justices for their
provincial hearings was in blatant disregard of PD 1606, as amended, the Rules of Court, and the Revised
Recoletos Law Center
Internal Rules of the Sandiganbayan. Even worse, their adoption of the procedure arbitrarily denied the
benefit of a hearing before a duly constituted Division of the Sandiganbayan to all the affected litigants,
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including the State, thereby rendering the integrity and efficacy of their proceedings open to serious
challenge on the ground that a hearing before a duly constituted Division of the Sandiganbayan was of
the very essence of the constitutionally guaranteed right to due process of law.

What then is the effect on the proceedings? The Court said: [T]he Court clarifies that this decision
is limited to the determination of the administrative culpability of the respondent Justices, and does not
extend to the ascertainment
of Of
whatever
mightvis--vis
be the effects
of any irregularity
A Library
Liberties
An Arsenal
Of Arms they committed as
members of the Fourth Division on the trial proceedings. This clarification stresses that the proceedings,
if procedurally infirm, resulted from the acts of the Sandiganbayan as a collegial body, not from their
acts as individual Justices. The remedy against any procedural infirmity is not administrative but

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judicial.
14. EDI-Staffbuilders International, Inc. v. National Labor Relations Commission, 537 SCRA
409 (2007)
Failure to furnish the adverse party with a copy of the appeal is treated only as a formal lapse, an
excusable neglect, and hence, not a jurisdictional defect. Accordingly, in such a situation, the appeal
should not be dismissed; however, it should not be given due course either. The duty is then imposed
on the NLRC to require the appellant to comply with the rule that the opposing party should be provided
with a copy of the appeal memorandum. Such failure of the NLRC to order the appellant to furnish the
appellee with the Appeal Memorandum constitutes grave abuse of discretion and the NLRC should not
proceed with the adjudication of the case. This failure deprived the other party of procedural due process
which can serve as basis for the nullification of proceedings in the appeal before the NLRC. It is not a
level playing field. The rights of the employers to procedural due process cannot be cavalierly
disregarded for they too have rights assured under the Constitution.
15. Portuguez v. GSIS Family Bank, 517 SCRA 309 (2007)
Portuguez complained of having been constructively dismissed, and that he was forced to retire at
the prime of his life as a consequence of the discrimination, unfair treatment and intense pressure he got
from management. On the issue of discrimination, he alleged that he reliably learned that Bank records
show that your newly hired officers are being paid the basic salaries in the range of P
=25,000 to P
=30,000.
The Court shot this down with the observation that [s]uch bare and sweeping statement contains
nothing but empty imputation of a fact that could hardly be given any evidentiary weight by this Court.
It is indeed true that the demand letter made reference to bank records upon which petitioner purportedly
derived his allegation but no such bank records were ever presented as evidence at any stage of the
proceedings. Indubitably, such self-serving and unsubstantiated declaration is insufficient to establish
a case before quasi-judicial bodies.
In the same way, it is not enough to simply write something in your memorandum. You must have
more than conclusions to convince the examiner that at the very least you know what you are
supposedly talking about.
16. Viva Footwear Manufacturing Corporation v. Securities and Exchange Commission, 522
SCRA 609 (2007)
In Pefianco v. Moral, 322 SCRA 439 (2000), and echoed in Velasquez v. Hernandez, 437 SCRA 537
(2004), the Court held that a respondent in an administrative case is not entitled to be informed of
findings and recommendations of an investigating committee. He is only entitled to the administrative
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decision. Viva Footwear is to the same effect. Here, the Court said that a respondent in an administrative
case is not entitled to be informed of the preliminary findings and recommendations; he is entitled only
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to a reasonable opportunity to be heard, and to the administrative decision based on substantial evidence.
Note that it is the administrative order, not the preliminary report, which is the basis of any further
remedies the losing party in an administrative case may pursue. Its right to administrative due process
only entitles it to an opportunity to be heard and to a decision based on substantial evidence.

17. Solid Homes, Inc. v. Laserna, 550 SCRA 613 (2008)


Athe
Library
An of
Arsenal
Of Arms
The issue here is
validityOf
ofLiberties
an decisionvis--vis
of the Office
the President
which consisted of only
a page affirming the judgment of the HLURB, which was attached to it. The Court held that [t]he
constitutional mandate that, no decision shall be rendered by any court without expressing therein

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clearly and distinctly the facts and the law on which it is based, does not preclude the validity of
memorandum decisions,66 which adopt by reference the findings of fact and conclusions of law
contained in the decisions of inferior tribunals. And, in regard to that constitutional provision itself, the
Court said that Section 14, Article VIII of the 1987 Constitution need not apply to decisions rendered
in administrative proceedings, as in the case a bar. Said section applies only to decisions rendered in
judicial proceedings. In fact, Article VIII is titled Judiciary, and all of its provisions have particular
concern only with respect to the judicial branch of government. Certainly, it would be error to hold or
even imply that decisions of executive departments or administrative agencies are obliged to meet the
requirements under Section 14, Article VIII. The rights of parties in administrative proceedings are not
violated as long as the constitutional requirement of due process has been satisfied.67
Making reference to what was held in the venerable Ang Tibay v. Court of Industrial Relations, 69
Phil. 635 (1940), the Court said: Note that there is no requirement in Ang Tibay that the decision must
express clearly and distinctly the facts and the law on which it is based. For as long as the administrative
decision is grounded on evidence, and expressed in a manner that sufficiently informs the parties of the
factual and legal bases of the decision, the due process requirement is satisfied.
18. Espia v. Cerujano, 550 SCRA 107 (2008)
Can one charged with Conduct Grossly Prejudicial to the Best Interest of the Service be found guilty
of Grave Misconduct? The Court said it cannot be done. Conduct grossly prejudicial to the service does
not necessarily include the elements of grave misconduct. The word gross connotes something beyond
measure; beyond allowance; not to be excused; flagrant; shameful while prejudicial means
detrimental or derogatory to a party; naturally, probably or actually bringing about a wrongful result.
Conduct grossly prejudicial to the best interest of the service may or may not be characterized by
corruption or a willful intent to violate the law or to disregard established rules. Under the Civil Service
law and rules, there is no concrete description of what specific acts constitute the grave offense of
conduct grossly prejudicial to the best interest of the service, although this Court has considered the
following acts or omissions, among others, as such: misappropriation of public funds, abandonment of
office, failure to report back to work without prior notice, failure to safe keep public records and
property, making false entries in public documents and falsification of court orders. While grave
misconduct and conduct grossly prejudicial to the best interest of the service are both grave offenses
under the Omnibus Rules Implementing Book V of Executive Order No. 292, grave misconduct has a
graver penalty.

66

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In Francisco v. Permskul, 173 SCRA 324 (1989), the Court declared: The memorandum decision, to be valid, cannot incorporate
the findings of fact and the conclusions of law of the lower court only by remote reference, which is to say that the challenged decision
is not easily and immediately available to the person reading the memorandum decision. For the incorporation by reference to be allowed,
it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said
decision. In other words, the memorandum decision authorized under Section 40 of P.P. Blg. 129 should actually embody the findings
of fact and conclusions of the lower court in an annex attached to and made an indispensable part of the decision. Then came up with
this admonition: The Court finds it necessary to emphasize that the memorandum decision should be sparingly used lest it becomes an
addictive excuse for judicial sloth. It is an additional condition for its validity that this kind of decision may be resorted to only in
cases where the facts are in the main accepted by both parties or easily determinable by the judge and there are no doctrinal
complications involved that will require an extended discussion of the laws involved. The memorandum decision may be employed
in simple litigations only,Asuch
as ordinary
cases,vis--vis
where the appeal
obviously groundless
and deserves no more than
Library
Ofcollection
Liberties
An isArsenal
Of Arms
the time needed to dismiss it.

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67

Cf. Pilipinas Kao, Inc. v. Court of Appeals, 372 SCRA 548 (2001), where the Court said the constitutional and statutory mandate
that no decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which
it is based applies as well to dispositions by quasi-judicial and administrative bodies.

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19. Romagos v. Metro Cebu Water District, 533 SCRA 50 (2007)


This is a case regarding separation from the service due to mental incapacity. Mental incapacity
could be a ground for either a disciplinary or non-disciplinary separation. It is disciplinary if the mental
incapacity or disability is due to immoral or vicious habits, in which case separation from the service
is done by way of a disciplinary proceeding. On the other hand, [w]hile Section 46 of E.O. No. 292 is
silent on this matter, mental incapacity not arising from immoral or vicious habits is also a cause for
separation under Section 26 of E.O. No. 292 and Section 2(2), Article IX(B) of the 1987 Constitution,
which demand of government officers and employees continuing merit and fitness. Separation from the
service for such cause is carried out through a non-disciplinary process governed by CSC Memorandum
Circular No. 40, series of 1998 (MC 40-98). Any difference in the two modes of separation? Yes, the
first carries administrative disabilities, such as forfeiture of retirement benefits and perpetual
disqualification from employment in the government service, while the second does not. But both result
in loss of employment a property right protected under the due process clause. Hence, even if
considered a non-disciplinary mode of separation, dropping from the rolls due to mental incapacity not
arising from immoral or vicious habits is subject to the requirements of due process.
So what would be the due process requirements then in cases where an employee has to be separated
from the service due to mental incapacity? Clearly, before an officer or employee may be dropped from
the rolls for mental incapacity, the following elements and process must obtain: first, that it has been
observed that the subject officer or employee has been behaving abnormally for an extended period;
second, that it has been established through substantial evidence that such abnormal behavior manifests
a continuing mental disorder and incapacity to work; third, that a written notice is issued by the subjects
immediate supervisor, describing the formers continuing mental disorder and incapacity to work and
citing the reports of his co-workers or immediate supervisor, as confirmed by the head of office; and
finally, that another notice is issued by the appointing authority or head of office, informing the subject
of his separation from the service due to mental incapacity. Thus, a declaration of mental disorder does
not automatically translate to a judgment of mental incapacity to perform work. A window remains open
for the affected officer or employee to counter opinion on his mental condition and to show that his
ability to work remains unimpaired. Only then may the appointing authority or head of office decide on
whether said officer or employee is no longer mentally capable of performing his work and should be
discharged. These requirements are designed to obviate misuse of non-disciplinary modes of separation
for petty vengeance or vicious harassment.
20. De La Salle University, Inc. v. Court of Appeals, 541 SCRA 22 (2007)
While it is within the academic freedom of learning institutions to impose discipline upon students
Center
guilty of certain offenses, the sameRecoletos
must, however,Law
be exercised
prudently and not just whimsically or
arbitrarily wielded. In short, the penalty must be appropriate for the misdeed committed. The power to
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2012 to impose a penalty which is not
discipline does not give schools untrammeled
discretion
commensurate with the gravity of the misdeed. If the concept of proportionality between the offense
committed and the sanction imposed is not followed, an element of arbitrariness intrudes. That would
give rise to a due process question.

68

Thus, the Court held that the penalty of expulsion is grossly disproportionate to the gravity of the
acts committed by the students who were found guilty in two mauling incidents which lasted only for
A victims
Librarynot
Of
Liberties
An Disciplinary
Arsenal Of measures
Arms especially where
few seconds, with the
suffering
any vis--vis
serious injury.
68

An extreme penalty of an erring pupil or student consisting of his exclusion from admission to any public or private school in
the Philippines and which requires the prior approval of the Secretary. (Manual of Regulations for Private Schools [1992])

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they involve suspension, dismissal or expulsion, cut significantly into the future of a student. They attach
to him for life and become a mortgage of his future, hardly redeemable in certain cases. Officials of
colleges and universities must be anxious to protect it, conscious of the fact that, appropriately construed,
a disciplinary action should be treated as an educational tool rather than a punitive measure. The
students were meted only the penalty of exclusion.69
21. Office of the Ombudsman v. Sison, 612 SCRA 702 (2010)
Can the Office of the Ombudsman intervene in the appeal from the Court of Appeals decision
reversing the OMBs earlier decision? No. It should remain detached it must keep in mind that it is an
adjudicator, not an advocate Clearly, the Office of the Ombudsman is not an appropriate party to
intervene in the instant case. It must remain partial and detached. More importantly, it must be mindful
of its role as an adjudicator, not an advocate. It is an established doctrine that judges should detach
themselves from cases where their decisions are appealed to a higher court for review. The raison detre
for such a doctrine is the fact that judges are not active combatants in such proceeding and must leave
the opposing parties to contend their individual positions and the appellate court to decide the issues
without the judges active participation. When judges actively participate in the appeal of their judgment,
they, in a way, cease to be judicial and have become adversarial instead.70
22. Ledesma v. Court of Appeals, 541 SCRA 444 (2007)
Is it part of the guarantee of due process before administrative agencies which oversee certain
professions that there must first be a complainant before they could investigate and eventually take back
a license that might have been irregularly obtained? In this case the Court said no, not necessarily. As
opposed to a regular trial court, an administrative agency, vested with quasi-judicial functions, may
investigate an irregularity on its own initiative. Particularly in the instant case, the overriding
considerations of public safety warranted the investigation of the falsification of the subject ATO-AEB
certification, which allowed petitioner to undergo training despite his lack of qualifications.
And, as reminder about the proper scope of judicial review of administrative determinations, the
Court said: In reviewing administrative decisions of the executive branch of the government, the
findings of facts made therein are to be respected so long as they are supported by substantial evidence.
Hence, it is not for the reviewing court to weigh the conflicting evidence, determine the credibility of
witnesses, or otherwise substitute its judgment for that of the administrative agency with respect to the
sufficiency of evidence. Administrative decisions in matters within the executive jurisdiction can only
be set aside on proof of gross abuse of discretion, fraud, or error of law. These principles negate the
power of the reviewing court to re-examine the sufficiency of the evidence in an administrative case as
if originally instituted therein, and do not authorize the court to receive additional evidence that was not
Recoletos Law Center
submitted to the administrative agency concerned.

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23. Macias v. Macias, 601 SCRA Bar
203 (2009)

2012

For a time the Court has been saying in some cases that administrative cases against judges71 must
69

A penalty in which the school is allowed to exclude or drop the name of the erring pupil or student from the school rolls for being
undesirable, and transfer credentials immediately issued. (Manual of Regulations for Private Schools [1992])
70

In National Appellate Board (NAB) of the National Police Commission (NAPOLCOM) v. Mamauag, 466 SCRA 624 (2005), the
Court held: [T]he government party that can appeal is not the disciplining authority or tribunal which previously heard the case and
imposed the penalty of demotion
or dismissal
from the service.
The government
party appealing
be one that is prosecuting the
A Library
Of Liberties
vis--vis
An Arsenal
Ofmust
Arms
administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal
hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent.
71

See, for instance, Alcuizar v. Carpio, 529 SCRA 216 (2007) and Tan v. Pacuribot, 540 SCRA 246 (2007), which were promulgated
only four months apart 7 August and 14 December. Alcuizar demanded proof beyond reasonable doubt, while Tan made reference only

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be substantiated by proof beyond reasonable doubt though in some other cases it would refer to mere
substantial evidence. In Macias, the Court came up with this clarificatory pronouncement:
[M]embers of the judiciary are not a class of their own, sui generis, in the field of public service
as to require a higher degree of proof for the administrative cases filed against them other than, perhaps,
the fact that because of the nature of the responsibility judges have, they are required to live up to a
higher standard of integrity, probity and morality. When we dismiss a public officer or employee from
his position or office for the commission of a grave offense in connection with his office, we merely
require that the complainant prove substantial evidence. When we disbar a disgraceful lawyer, we require
that complainant merely prove a clear preponderance of evidence to establish liability. There appears
no compelling reason to require a higher degree of proof when we deal with cases filed against judges.
24. Carag v. National Labor Relations Commission, 520 SCRA 28 (2007)
Do corporate officers incur personal liability in closures of establishment without the required onemonth notice to the employees? The failure to give notice is not an unlawful act because the law does
not define such failure as unlawful. Such failure to give notice is a violation of procedural due process
but does not amount to an unlawful or criminal act. Such procedural defect is called illegal dismissal
because it fails to comply with mandatory procedural requirements, but it is not illegal in the sense that
it constitutes an unlawful or criminal act.
So what does the foregoing mean? For a wrongdoing to make a director personally liable for debts
of the corporation, the wrongdoing approved or assented to by the director must be a patently unlawful
act. Mere failure to comply with the notice requirement of labor laws on company closure or dismissal
of employees does not amount to a patently unlawful act. Patently unlawful acts are those declared
unlawful by law which imposes penalties for commission of such unlawful acts. There must be a law
declaring the act unlawful and penalizing the act. Article 283 of the Labor Code, requiring a one-month
prior notice to employees and the Department of Labor and Employment before any permanent closure
of a company, does not state that non-compliance with the notice is an unlawful act punishable under
the Code. There is no provision in any other Article of the Labor Code declaring failure to give such
notice an unlawful act and providing for its penalty. In short, no personal liability.
25. White Light Corporation v. City of Manila, 576 SCRA 416 (2009)
Following City of Manila v. Laguio, 455 SCRA 308 (2005), in which the Court invalidated an
ordinance which provided for the phasing out of motels and similar establishments in the Ermita-Malate
are, the Court again rebuffed the City in the latters continuing fight crusade against the practices of
motels and similar establishments in offering short time admissions and wash-up rate schemes, a case
presenting an instance of balancingRecoletos
between policeLaw
powerCenter
and substantive due process.
The apparent goal of the Ordinance
to minimize
if not eliminate the use of the covered
Bar isReview
2012
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability
of these ends do not sanctify any and all means for their achievement. Those means must align with the
Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of Rights
stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political majorities

to substantial evidence.

A Library Of Liberties vis--vis An Arsenal Of Arms

Arnado v. Suarin, 467 SCRA 402 (2005), even had to call for the application of the quantum of proof beyond reasonable doubt in
regard to administrative cases involving judicial employees. Said the Court: Administrative proceedings against judicial employees are
by nature, highly penal in character and are to be governed by the rules applicable to criminal cases. The quantum of proof required to
support the administrative charges should thus be more substantial and they must be proven beyond reasonable doubt.

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animated by his cynicism.


In the process of deciding against the City, the Court gave a lecture on the standards of review: The
general test of the validity of an ordinance on substantive due process grounds is best tested when
assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene
Products. Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the
legislature unless there is a discrimination against a discrete and insular minority or infringement of
a fundamental right. Consequently, two standards of judicial review were established: strict scrutiny
for laws dealing with freedom of the mind or restricting the political process, and the rational basis
standard of review for economic legislation. A third standard, denominated as heightened or immediate
scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and
legitimacy. . . . While the test may have first been articulated in equal protection analysis, it has in the
United States since been applied in all substantive due process cases as well. Further expounding, the
Court said: In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation of
fundamental freedoms. Strict scrutiny is used today to test 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. The United States Supreme Court has expanded the scope of strict scrutiny to protect
fundamental rights such as suffrage, judicial access and interstate travel. Then, after noting that [t]he
rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of
Manila v. Hon. Laguio, Jr., the Court proceeded to hold that the Ordinance prevents the lawful uses
of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another
constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear
that the interests of the public generally, as distinguished from those of a particular class, require an
interference with private rights and the means must be reasonably necessary for the accomplishment
of the purpose and not unduly oppressive of private rights. It must also be evident that no other
alternative for the accomplishment of the purpose less intrusive of private rights can work. More
importantly, a reasonable relation must exist between the purposes of the measure and the means
employed for its accomplishment, for even under the guise of protecting the public interest, personal
rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking
a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into
private rights.
So what does it all lead to? What is the long and short of it? [I]ndividual rights may be adversely
affected only to the extent that may fairly be required by the legitimate demands of public interest or
public welfare. The State is a leviathan that must be restrained from needlessly intruding into the lives
Recoletos
Lawmay
Center
of its citizens. However well-intentioned
the Ordinance
be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains
Bar Review
the operation of the businesses of the petitioners
as well as2012
restricting the rights of their patrons without
sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice
a day with immorality without accommodating innocuous intentions.

26. Betoy v. Board of Directors, National Power Corporation, 658 SCRA 420 (2011)
Where the employee retires and meets the eligibility requirements, he acquires a vested right to
benefits that is protected
by the due
clause.
RetireesAn
enjoy
a protected
A Library
Ofprocess
Liberties
vis--vis
Arsenal
Of property
Arms interest whenever
they acquire a right to immediate payment under pre-existing law. Thus, a pensioner acquires a vested
right to benefits that have become due as provided under the terms of the public employees pension
statute. No law can deprive such person of his pension rights without due process of law, that is, without

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notice and opportunity to be heard. Verily, when an employee has complied with the statutory
requirements to be entitled to receive his retirement benefits, his right to retire and receive what is due
him by virtue thereof becomes vested and may not thereafter be revoked or impaired.
The Court declared that if Section 63 of the EPIRA law is misinterpreted as proscribing payment of
retirement benefits under the GSIS law, it would be unconstitutional as it would be violative of Section
10, Article III of the 1987 Constitution or the provision on non-impairment of contracts.
27. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, 632 SCRA 146
(2010)
In Romualdez v. Sandiganbayan, 435 SCRA 371 (2004), Justice Tinga, all by his lonesome, wrote
a spirited dissent to the majoritys pronouncement that the void-for-vagueness doctrine only has
application to free speech cases. To him, it was more a dictate of due process. That debate continued in
Romualdez v. Commission on Elections, 553 SCRA 370 (2008), but this time he was joined by the Chief
Justice and Justices Austria-Martinez, Carpio Morales, and, Nachura. Justice Carpio himself came up
with a separate dissenting opinion, along the same lines as Justice Tingas.
In Southern Hemisphere, the Court finally clarified without much debate the apparent confusion
brought about the mix-up in regard to facial challenges, overbreadth doctrine, and the void-forvagueness doctrine. The Court lectured thus: The confusion apparently stems from the interlocking
relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge
against a penal statute (under a claim of violation of due process of law) or a speech regulation (under
a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of
vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers
from the defect of vagueness when it lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution
in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the Government muscle. The overbreadth doctrine,
meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject
to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms. As distinguished from the vagueness doctrine, the overbreadth
doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain
from that behavior, even though some of it is protected.
Further on esoteric learning, the Court said: A facial challenge is likewise different from an
as-applied challenge. Distinguished from an as-applied challenge which considers only extant facts
Recoletos Law Center
affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws
and defects, not only on the basis of its actual operation to the parties, but also on the assumption or
Bar Review 2012
prediction that its very existence may cause others not before the court to refrain from constitutionally
protected speech or activities. Any difference between speech cases and penal laws in regard to these
concepts? Yes, a litigant cannot successfully mount a facial challenge against a criminal statute on either
vagueness or overbreadth grounds. The allowance of a facial challenge in free speech cases is justified
by the aim to avert the chilling effect on protected speech, the exercise of which should not at all times
be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear
A Library
Of Liberties
vis--vis
An Arsenal Of Arms
an in terrorem effect
in deterring
socially harmful
conduct.

Also, take note that the application of the overbreadth doctrine is limited to a facial kind of
challenge and, owing to the given rationale of a facial challenge, applicable only to free speech

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cases. By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before the court,
that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot
be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied
to the litigants. And, one must always remember the high value placed on speech which explains why
[a]ttacks on overly broad statutes are justified by the transcendent value to all society of
constitutionally protected expression.
On the facts of the case, the Court concluded that since a penal statute may only be assailed for being
vague as applied to petitioners, a limited vagueness analysis of the definition of terrorism in RA 9372
is legally impermissible absent an actual or imminent charge against them. Again, harking back to
American experience, it observed: American jurisprudence instructs that vagueness challenges that do
not involve the First Amendment must be examined in light of the specific facts of the case at hand and
not with regard to the statutes facial validity. For more than 125 years, the US Supreme Court has
evaluated defendants claims that criminal statutes are unconstitutionally vague, developing a doctrine
hailed as among the most important guarantees of liberty under law. On the other hand, [i]n this
jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes.
But does not R.A. No. 9372 actually regulate speech, thus justifying a facial analysis? The Court said
no. In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend
that the element of unlawful demand in the definition of terrorism must necessarily be transmitted
through some form of expression protected by the free speech clause. The argument does not persuade.
What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under
RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key
qualifying phrases in the other elements of the crime, including the coercion of the government to accede
to an unlawful demand. Given the presence of the first element, any attempt at singling out or
highlighting the communicative component of the prohibition cannot recategorize the unprotected
conduct into a protected speech. Petitioners notion on the transmission of message is entirely inaccurate,
as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime
entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts
against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful
transaction. In fine, [u]tterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the
whole act as conduct and not speech. This holds true a fortiori in the present case where the expression
figures only as an inevitable incident of making the element of coercion perceptible. In other words:
Recoletos
Law Center
Certain kinds of speech have been
treated as unprotected
conduct, because they merely evidence a
prohibited conduct. Since speech is not involved here, the Court cannot heed the call for a facial
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analysis.
Finally, to make sure that there is no possible conflict with what the U.S. Supreme Court said in a
recent case, Holder v. Humanitarian Law Project, 561 U.S. ___ (2010), the Court explained that the
former allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since
the therein plaintiffs there faced a credible threat of prosecution and should not be required to await
and undergo a criminal prosecution as the sole means of seeking relief. In Southern Hemisphere,
A Library
Libertiesneither
vis--vis
Arsenal
Ofnor
Arms
however, the petitioners
haveOfestablished
an An
actual
charge
a credible threat of
prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of terrorism
is thus legally impermissible.

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Then this parting admonition: The Court reminds litigants that judicial power neither contemplates
speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be
used as an extension of a failed legislative lobbying in Congress.
28. Securities and Exchange Commission v. GMA Network, Inc., 575 SCRA 113 (2008)
Exorbitant and unreasonable filing fees violate due process. A filing fee, by legal definition, is that
charged by a public official to accept a document for processing. The fee should be just, fair, and
proportionate to the service for which the fee is being collected, . . . The due process clause permits the
courts to determine whether the regulation imposing such fees is reasonable and within the bounds of
its rate-fixing authority and to strike it down when it arbitrarily infringes on a persons right to property.

D. EQUAL PROTECTION
The guarantee of equal protection is no argument for absolute equality, for what it only assures is
legal equality. It would hardly be fair nor just that people who are not equally circumstanced be given
the same treatment, otherwise, it would be as offensive to the notion as the very idea of unequal
treatment among equals. Inherent therefore in the application of the Equal Protection Clause is the need
for valid classifications so as to determine who or what could properly be grouped together for particular
treatment, and excluding all others. As the Court intoned in Mirasol v. Department of Public Works and
Highways, 490 SCRA 318 (2006), [t]o begin with, classification by itself is not prohibited, and then
went on to state that [n]ot all motorized vehicles are created equal. In this regard, the classification
must be related to the very purpose of the law and that there should be substantial distinctions which
make for real differences. Gender may be relevant in regard to certain classifications but not in others.
Age, legitimacy, academic performance, courses of study, office and status, and other bases for
classification may make for some valid differences at times, but not so under other situations and climes,
and so on. And, what may be constitutional when seen from one perspective may not be so from another
vantage point.72
As for you taking the Bar exams, consider yourself not just anyone. While you are like your fellow
examinees, you are still different from everyone else. And if youre good enough, you may even end up
as a class by yourself.73
1. Pimentel III v. Commission on Elections En Banc Sitting as the National Board of
Canvassers, 548 SCRA 169 (2008)
Would there be violation of theRecoletos
equal protection
clauseCenter
if a candidate is not allowed to question the
Law
election officials involved in the canvass proceedings in one province even as he is allowed to do so for
other provinces or districts? The Court
no. The point
Barsaid
Review
2012of reference should be whether other
candidates are allowed to do so while he is not, such that he may validly complain of others being given
undue favor, while he is the only one unjustly discriminated against.

2. Santos v. People, 563 SCRA 341 (2008)

If a tax evasion charge against one show business personality is dismissed, should a similar charge
against another similar
personality
dismissed,
too? Of An
course,
not! Of Arms
A Library
Of be
Liberties
vis--vis
Arsenal
72

See Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 446 SCRA 299 (2004)

73

See Nixon v. Administrator of General Services, 433 U.S. 425 (1977)

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The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality. Recognizing the existence of real differences among
men, the equal protection clause does not demand absolute equality. It merely requires that all persons
shall be treated alike, under like circumstances and conditions, both as to the privileges conferred and
liabilities enforced. Here, the Court said that the petitioner was not able to duly establish to the
satisfaction of this Court that she and Velasquez were indeed similarly situated, i.e., that they committed
identical acts for which they were charged with the violation of the same provisions of the NIRC, and
that they presented similar arguments and evidence in their defense, yet they were treated differently.
Furthermore, that the Prosecution Attorney dismissed what were supposedly similar charges against
Velasquez did not compel Prosecution Attorney Torrevillas to rule the same way on the charges against
petitioner. In People v. Dela Piedra, this Court explained that: The prosecution of one guilty person
while others equally guilty are not prosecuted, however, is not, by itself, a denial of the equal protection
of the laws. Where the official action purports to be in conformity to the statutory classification, an
erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not
without more a denial of the equal protection of the laws. The unlawful administration by officers of a
statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike,
is not a denial of equal protection unless there is shown to be present in it an element of intentional or
purposeful discrimination. In fine, While all persons accused of crime are to be treated on a basis
of equality before the law, it does not follow that they are to be protected in the commission of
crime. It would be unconscionable, for instance, to excuse a defendant guilty of murder because others
have murdered with impunity. The remedy for unequal enforcement of the law in such instances
does not lie in the exoneration of the guilty at the expense of society * * *. Protection of the law will
be extended to all persons equally in the pursuit of their lawful occupations, but no person has the right
to demand protection of the law in the commission of a crime.74
3. Nicolas v. Romulo, 578 SCRA 438 (2009)
If foreign troops charged with the commission of crimes in the country are treated differently from
other persons similarly charged, is there violation of the equal protection clause? Here, the petitioners
argue that to allow the transfer of custody of an accused foreign soldier to the custody of a foreign power
is to provide for a different rule of procedure for that accused.
The Court said there is no violation of the equal protection clause because there is a substantial
basis for a different treatment of a member of a foreign military armed forces allowed to enter our
territory and all other accused. The rule in international law is that a foreign armed forces allowed to
enter ones territory is immune from local jurisdiction, except to the extent agreed upon. The Status of
Recoletos
Law
Center
Forces Agreements involving foreign
military units
around
the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the principle
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2012
remains, i.e., the receiving State can exercise
jurisdiction over
the forces of the sending State only to the
extent agreed upon by the parties.

4. Serrano v. Gallant Maritime Services, Inc., 582 SCRA 254 (2009)


At issue here is the constitutionality of the last clause of the 5th paragraph of 10 R.A. No. 8042
(Migrant Workers and Overseas Filipinos Act of 199). The 5th paragraph provides: In case of
A Library Of Liberties vis--vis An Arsenal Of Arms
74

Earlier, in Reyes v. Pearlbank Securities, Inc., 560 SCRA 518 (2008), the Court held: While the right to equal protection of the
law requires that litigants are treated in an equal manner by giving them the same rights under similar circumstances, it may not be
perversely used to justify desistance by the authorities from prosecution of a criminal case, just because not all of those who are probably
guilty thereof were charged.

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termination of overseas employment without just, valid or authorized cause as defined by law or
contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of
twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract
or for three (3) months for every year of the unexpired term, whichever is less. Does this violate the
guarantee of equal protection among OFWs? Yes.
The Court noted that [t]he enactment of the subject clause in R.A. No. 8042 introduced a
differentiated rule of computation of the money claims of illegally dismissed OFWs based on their
employment periods, in the process singling out one category whose contracts have an unexpired portion
of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards
limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the
while sparing the other category from such prejudice, simply because the latters unexpired contracts fall
short of one year. The Court further observed that the subject clause creates a sub-layer of
discrimination among OFWs whose contract periods are for more than one year: those who are illegally
dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire
unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in
their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries
for three months only.
From there, the Court went on to hold: The Court concludes that the subject clause contains a
suspect classification in that, in the computation of the monetary benefits of fixed-term employees
who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired
portion of one year or more in their contracts, but none on the claims of other OFWs or local workers
with fixed-term employment. The subject clause singles out one classification of OFWs and burdens
it with a peculiar disadvantage. There being a suspect classification involving a vulnerable sector
protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and
determines whether it serves a compelling state interest through the least restrictive means. So, is there
any compelling state interest? Assuming that, as advanced by the OSG, the purpose of the subject
clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies,
such callous and cavalier rationale will have to be rejected. There can never be a justification for any
form of government action that alleviates the burden of one sector, but imposes the same burden on
another sector, especially when the favored sector is composed of private businesses such as placement
agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the
Constitution commands. The idea that private business interest can be elevated to the level of a
compelling state interest is odious.
Then, on the use of the standards of review, the Court noted: Under American jurisprudence, strict
Recoletos
Law Center
judicial scrutiny is triggered by suspect
classifications
based on race or gender but not when the
classification is drawn along income categories. It is different in the Philippine setting. . . . Admittedly,
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the view that prejudice to persons accorded special protection by the Constitution requires a stricter
judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign
decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive
and have been used to support many of our decisions. We should not place undue and fawning reliance
upon them and regard them as indispensable mental crutches without which we cannot come to our own
decisions through the employment of our own endowments. . . . But if the challenge to the statute is
A Library
Of Liberties
An Arsenal
Of Arms
premised on the denial
of a fundamental
right, orvis--vis
the perpetuation
of prejudice
against persons favored
by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and
watered down view would call for the abdication of this Courts solemn duty to strike down any law

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repugnant to the Constitution and the rights it enshrines.75


5. League of Cities of the Philippines (LCP) v. Commission on Elections, 571 SCRA 263 (2008),
608 SCRA 636 (2009), 628 SCRA 819 (2010), 643 SCRA 149 (2011), 648 SCRA 344
(2011), and 652 SCRA 798 (2011)
When the 11th Congress76 adjourned in June 2001, there were on deck bills to convert 24
municipalities into cities but which were never enacted into law. In the meantime, R.A. 9009 became
law, effective on 30 June 2001.This law amended the Local Government Code by increasing the annual
income requirement for conversion of municipalities to cities from P
=20 Million to P
=100 Million. After
th
the effectivity of RA 9009, the House of Representatives of the 12 Congress adopted Joint Resolution
No. 29, which sought to exempt from the P
=100 million income requirement in RA 9009 the 24
municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th77
Congress ended without the Senate approving Joint Resolution No. 29. During the 13th Congress,78 the
House of Representatives re-adopted Joint Resolution No. 29 as Joint Resolution No. 1 and forwarded
it to the Senate for approval. However, the Senate again failed to approve the Joint Resolution. The 16
municipalities then filed, through their respective sponsors, individual cityhood bills, which bills
contained a common provision exempting all the 16 municipalities from the P
=100 million income
requirement in RA 9009. Both Houses of Congress approved the cityhood bills, which bills lapsed into
law (Cityhood Laws) on various dates from March to July 2007 without the Presidents signature. In
questioning the validity of their enactment, one of the issues raised is about alleged violation of the
Equal Protection Clause.
In the original decision, the Court said the Equal Protection Clause was violated. An exemption
based solely on the fact that the 16 municipalities had cityhood bills pending in the 11th Congress
when RA 9009 was enacted does not constitute a valid classification between those entitled and those
not entitled to exemption from the P
=100 million income requirement. To be valid, the classification in
the present case must be based on substantial distinctions, rationally related to a legitimate government
objective which is the purpose of the law, not limited to existing conditions only, and applicable to all
similarly situated. There is no substantial distinction between municipalities with pending cityhood bills
in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood
bill in the 11th Congress is not a material difference to distinguish one municipality from another for the
purpose of the income requirement. The classification criterion mere pendency of a cityhood bill in
the 11th Congress is not rationally related to the purpose of the law which is to prevent fiscally
non-viable municipalities from converting into cities. Further, the fact of pendency of a cityhood bill in
the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009,
which specific condition will never happen again. This violates the requirement that a valid classification
Recoletos Law Center
must not be limited to existing conditions only. The exemption provision in the Cityhood Laws gives
the 16 municipalities a unique advantage based on an arbitrary date the filing of their cityhood bills
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before the end of the 11th Congress as against all other municipalities that want to convert into cities

75

Congress seems to have wittingly or unwittingly defied the Supreme Court in enacting R.A. No. 10222 (approved on 8 March
2010). Section 7 of the new law, amended 10, 5 of R.A. 8042, by writing the same language invalidated in Serrano, viz:
In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any
unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement if his placement fee and
the deductions made with interest at twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment
A Library
Of of
Liberties
AnisArsenal
Of Arms
contract or for three (3) months
for every year
the unexpiredvis--vis
term, whichever
less.
76

June 1998 to June 2001.

77

June 2001 to June 2004.

78

June 2004 to June 2007.

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after the effectivity of RA 9009. Furthermore, limiting the exemption only to the 16 municipalities
violates the requirement that the classification must apply to all similarly situated.
Subsequently, the following year, when the Court reconsidered its earlier ruling (which had already
become final and and entry of judgment made)79 the following year, it held, among others, on equal
protection issue, that this particular constitutional protection extends likewise to natural or artificial
persons, but with regard to artificial persons are concerned, they are entitled to protection only in so far
as their property is concerned. Accordingly, the petitioner LCP and the intervenors cannot plausibly
invoke the equal protection clause, precisely because no deprivation of property results by virtue of the
enactment of the cityhood laws. The LCPs claim that the IRA of its member-cities will be substantially
reduced on account of the conversion into cities of the respondent LGUs would not suffice to bring it
within the ambit of the constitutional guarantee. Indeed, it is presumptuous on the part of the LCP
member-cities to already stake a claim on the IRA, as if it were their property, as the IRA is yet to be
allocated. For the same reason, the municipalities that are not covered by the uniform exemption clause
in the cityhood laws cannot validly invoke constitutional protection. For, at this point, the conversion
of a municipality into a city will only affect its status as a political unit, but not its property as such.
On the requisites for valid classification, the Court found that all of them were met. The favorable
treatment accorded the sixteen (16) municipalities by the cityhood laws rests on substantial distinction.
Indeed, respondent LGUs, which are subjected only to the erstwhile PhP 20 million income criterion
instead of the stringent income requirement prescribed in RA 9009, are substantially different from other
municipalities desirous to be cities. Looking back, we note that respondent LGUs had pending cityhood
bills before the passage of RA 9009. There lies part of the tipping difference. They were qualified
cityhood applicants before the enactment of RA 9009 but because of events they had absolutely nothing
to do with, a spoiler in the form of RA 9009 supervened. Thus, to impose on them the much higher
income requirement after what they have gone through would appear to be indeed unfair. The peculiar
conditions of respondent LGUs provide sufficient grounds for legislative classification. A law can be
violative of the constitutional limitation only when the classification is without reasonable basis.
The Court also found the classification to be germane to the purpose of the law. The exemption of
79

Here, it is interesting how the Court arrived at its basis for lifting the entry of judgment, an excellent lesson in imaginative and
creative legal reasoning. It said, inter alia:
The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009, which denied the initial motion on the sole ground that
the basic issues had already been passed upon betrayed an evenly divided Court on the issue of whether or not the underlying Decision
of November 18, 2008 had indeed passed upon the issues raised in the motion for reconsideration of the said decision. But at the end of
the day, the single issue that matters and the vote that really counts really turn on the constitutionality of the cityhood laws. And be it
remembered that the inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was the last vote on the issue of whether or not
the cityhood laws infringe the Constitution. Accordingly, the motions of the respondent LGUs, in light of the 6-6 vote, should be
deliberated anew until the required concurrence on the issue of the validity or invalidity of the laws in question is, on the merits, secured.

Recoletos Law Center


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It ought to be clear that a deadlocked vote does not reflect the majority of the Members contemplated in Sec. 4 (2) of Art. VIII
of the Constitution.

On the postulate then that first, the finality of the November 18, 2008 Decision has yet to set in, the issuance of the precipitate entry
of judgment notwithstanding, and second, the deadlocked vote on the second motion for reconsideration did not definitely settle the
constitutionality of the cityhood laws, the Court is inclined to take another hard look at the underlying decision. Without belaboring in
their smallest details the arguments for and against the procedural dimension of this disposition, it bears to stress that the Court has the
power to suspend its own rules when the ends of justice would be served thereby. In the performance of their duties, courts should not
A Library
Liberties
vis--vis
Arsenal
be shackled by stringent rules
which wouldOf
result
in manifest injustice.
Rules ofAn
procedure
are onlyOf
toolsArms
crafted to facilitate the attainment
of justice. Their strict and rigid application must be eschewed, if they result in technicalities that tend to frustrate rather than promote
substantial justice. Substantial rights must not be prejudiced by a rigid and technical application of the rules in the altar of expediency.
When a case is impressed with public interest, a relaxation of the application of the rules is in order. Time and again, this Court has
suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice so require.

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respondent LGUs/municipalities from the P


=100 million income requirement was meant to reduce the
inequality occasioned by the passage of the amendatory RA 9009. From another perspective, the
exemption was unquestionably designed to insure that fairness and justice would be accorded respondent
LGUs. What were then the cityhood bills covering respondent LGUs were part and parcel of the original
57 conversion bills filed in the 11th Congress, 33 of those became laws before the adjournment of that
Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to the
impeachment of then President Estrada, the related jueteng scandal investigations conducted before, and
the EDSA events that followed the aborted impeachment. The enactment of the cityhood laws was in
a real sense an attempt on the part of Congress to address the inequity dealt the respondent LGUs. These
laws positively promoted the equality and eliminated the inequality, doubtless unintended, between
respondent municipalities and the thirty-three (33) other municipalities whose cityhood bills were
enacted during the 11th Congress. And in this regard, the Court noted that to deny respondent
LGUs/municipalities the same rights and privileges accorded to the 33 other municipalities when, at the
outset they were similarly situated, is tantamount to denying the former the protective mantle of the
equal protection clause. In effect, petitioners and petitioners-in-intervention are creating an absurd
situation in which an alleged violation of the equal protection clause of the Constitution is remedied by
another violation of the same clause. The irony is not lost to the Court.
With regard to alleged applicability to existing conditions only, the Court said it is not so. Then too
the non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time
of its enactment. It is intended to apply for all time, as long as the contemplated conditions obtain. To
be more precise, the legislative intent underlying the enactment of RA 9009 to exclude would-be-cities
from the =
P100 million criterion would hold sway, as long as the corresponding cityhood bill has been
filed before the effectivity of RA 9009 and the concerned municipality qualifies for conversion into a
city under the original version of Sec. 450 of the LGC of 1991. Viewed in its proper light, the common
exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009 on the
cityhood bills. It is not a declaration of certain rights, but a mere declaration of prior qualification and/or
compliance with the non-retroactive effect of RA 9009. In fine, the uniform exemption clause would
apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were
compliant with then Sec. 450 of the LGC of 1991, which prescribed an income requirement of P
=20
million. It is hard to imagine, however, if there are still municipalities out there belonging in context to
the same class as the sixteen (16) respondent LGUs. Municipalities that cannot claim to belong to the
same class as the 16 cannot seek refuge in the cityhood laws.
Then the Court reverted to its original decision in 2010, only to reconsider anew in 2011. This last
time, perhaps, the Court said: Verily, the determination of the existence of substantial distinction with
Recoletos
Law
Center
respect to respondent municipalities
does not simply
lie on
the mere pendency of their cityhood bills
th
during the 11 Congress. This Court sees the bigger picture. The existence of substantial distinction with
Bar Review
2012Laws is measured by the purpose of the
respect to respondent municipalities covered
by the Cityhood
law, not by R.A. No. 9009, but by the very purpose of the LGC, as provided in its Section 2 (a), . . .
Indeed, substantial distinction lies in the capacity and viability of respondent municipalities to become
component cities of their respective provinces. Congress, by enacting the Cityhood Laws, recognized
this capacity and viability of respondent municipalities to become the States partners in accelerating
economic growth and development in the provincial regions, which is the very thrust of the LGC,
th
manifested by the pendency
of their
cityhood bills
during the
Congress
their relentless pursuit
A Library
Of Liberties
vis--vis
An11
Arsenal
Of and
Arms
for cityhood up to the present. Truly, the urgent need to become a component city arose way back in the
11th Congress, and such condition continues to exist. In other words, Congress merely recognized the
capacity and readiness of respondent municipalities to become component cities of their respective

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provinces.
How about the alleged reduction in petitioners property a just share in the IRA: To be sure,
petitioners are entitled to a just share, not a specific amount. But the feared reduction proved to be false
when, after the implementation of the Cityhood Laws, their respective shares increased, not decreased.
In any event, What these petitioner cities were stating as a reduction of their respective IRA shares was
based on a computation of what they would receive if respondent municipalities were not to become
component cities at all. Of course, that would mean a bigger amount to which they have staked their
claim. After considering these, it all boils down to money and how much more they would receive if
respondent municipalities remain as municipalities and not share in the 23% fixed IRA from the national
government for cities. And, in this regard, the Court noted: It is like the elder siblings wanting to kill
the newly-borns so that their inheritance would not be diminished.
On 12 April 2011, the Court decreed the Ad Cautelam Motion for Reconsideration (of the Decision
dated 15 February 2011) is denied with finality. (Whewww, after four different decisions in four years,
hopefully we now see an end to the zigzagging route to the final destination.)80
6. Quinto v. Commission on Elections, 606 SCRA 258 (2009) and 613 SCRA 385 (2010)
Here the issue is about the alleged discrimination against appointive officials and employees in
regard to the effect of the filing of their Certificates of Candidacy (CoCs) they are deemed immediately
resigned while elective officials are not so treated. The Court said: In considering persons holding
appointive positions as ipso facto resigned from their posts upon the filing of their CoCs, but not
considering as resigned all other civil servants, specifically the elective ones, the law unduly
discriminates against the first class. The fact alone that there is substantial distinction between those who
hold appointive positions and those occupying elective posts, does not justify such differential
treatment. It then proceeded to declare that the classification is not germane to the purpose of the law.
The obvious reason for the challenged provision is to prevent the use of a governmental position
to promote ones candidacy, or even to wield a dangerous or coercive influence on the electorate. The
measure is further aimed at promoting the efficiency, integrity, and discipline of the public service by
eliminating the danger that the discharge of official duty would be motivated by political considerations
rather than the welfare of the public. The restriction is also justified by the proposition that the entry of
civil servants to the electoral arena, while still in office, could result in neglect or inefficiency in the
performance of duty because they would be attending to their campaign rather than to their office work.
If we accept these as the underlying objectives of the law, then the assailed provision cannot be
constitutionally rescued on the ground of valid classification. Glaringly absent is the requisite that the
classification must be germane to the purposes of the law. Indeed, whether one holds an appointive
Recoletos Law Center
office or an elective one, the evils sought to be prevented by the measure remain. . . . As to the danger
of neglect, inefficiency or partisanship in the discharge of the functions of his appointive office, the

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80

The original Decision on 18 November 2008 was by a 6-5 vote, with four abstentions, while the motion for reconsideration was
decided by a vote of 7-5, with 2 abstentions. On the second motion for reconsideration, the votation was evenly split, 6-6, with 3
abstaining.

On 21 December 2009, the Court voted 6-4 for the reversal of its original decision, with 3 abstentions. (There were then 2 vacancies
in the Court.) On 24 August 2010, a new majority of 7 voted for the original decision, while 6 voted against, and 2 took no part.
By a new 7-6-2 vote A
on 15
February 2011,
the table was turned
upside down
the latestOf
majority
uphoding the Cityhood laws,
Library
Of Liberties
vis--vis
Ananew,
Arsenal
Arms
a judgment reiterated by the 12 April 2011 Resolution.
So what does one make of all these? Well, for the 2011 Bar Examinations Chairman, Justice Abad, he wrote in his separate concurring
opinion to the 15 February 2011 Resolution: This to me is a healthy sign of democracy at work, the members being blind to the need
to conform.

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inverse could be just as true and compelling. The public officer who files his certificate of candidacy
would be driven by a greater impetus for excellent performance to show his fitness for the position
aspired for.
On motion for reconsideration, the Supreme Court reversed itself and said that the classification is
germane to the purpose of the law. The Court made reference to the long-standing rule that to remedy
an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed one
step at a time. In addressing a societal concern, it must invariably draw lines and make choices, thereby
creating some inequity as to those included or excluded. Nevertheless, as long as the bounds of
reasonable choice are not exceeded, the courts must defer to the legislative judgment. We may not strike
down a law merely because the legislative aim would have been more fully achieved by expanding the
class. Stated differently, the fact that a legislative classification, by itself, is underinclusive will not
render it unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation
must reach each and every class to which it might be applied; that the Legislature must be held rigidly
to the choice of regulating all or none.
In fine, the assailed Decision would have us equalize the playing field by invalidating provisions
of law that seek to restrain the evils from running riot.
7. Biraogo v. Philippine Truth Commission of 2010, 637 SCRA 78 (2010)
In this case, the Court held that the Creation of the Truth Commission specifically mandated to
investigate reported cases of graft and corruption allegedly committed during the previous (Arroyo)
administration without including other past administrations was violative of the guarantee of equal
protection.
It declared that the classification must not be based on existing circumstances only, or so constituted
as to preclude addition to the number included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and conditions. It must not leave out or
underinclude those that should otherwise fall into a certain classification. Thus, it struck down
Executive Order No. 1. In this regard, it must be borne in mind that the Arroyo administration is but
just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include
past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot
sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle
for vindictiveness and selective retribution. It further pronounced that Executive Order No. 1 suffers
from arbitrary classification. . . . While reasonable prioritization is permitted, it should not be arbitrary
lest it be struck down for being unconstitutional.
The Court also added that it is Recoletos
not unaware thatLaw
mere Center
underinclusiveness is not fatal to the validity
of a law under the equal protection clause. With regard to equal protection claims, a legislature does
Bar Review
2012
not run the risk of losing the entire remedial
scheme simply
because it fails, through inadvertence or
otherwise, to cover every evil that might conceivably have been attacked. In Executive Order No. 1,
however, there is no inadvertence. That the previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was underscored at least three times in the assailed
executive order. It must be noted that Executive Order No. 1 does not even mention any particular act,
event or report to be focused on unlike the investigative commissions created in the past. The equal
protection clause isAviolated
by Of
purposeful
andvis--vis
intentionalAn
discrimination.
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Liberties
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E. SEARCHES AND SEIZURES


A citizen in a democratic and republican state, where sovereignty resides in the people and all
government authority emanates from them, may consider it his birthright to be free from unwarranted
and unreasonable intrusions into his life. He would not want to have a Big Brother looking over his
shoulders and minding his affairs. The guarantee against unreasonable searches and seizures upholds that
expectation of privacy. And, for starters, it requires that before any searches or seizures be had, the same
must be, as a general rule, accompanied by a warrant, issued by one who is disinterested and detached
from the task of law enforcement. But even in the issuance of such warrants by a judge, the magistrate
is not that free to simply issue it for no reason at all or on flimsy grounds. He must have probable cause
for the same, which he must determine personally by carefully examining the complainant, his witnesses
and other supporting documents for such purpose. Further, reasonableness also goes to the manner of
serving and executing it. Accordingly, not because one is armed with a warrant that he would now have
the perfect right to simply barge into houses or dwellings like the gestapo. He must abide by the knock
and announce procedure.81 As much as possible, he must still do it in a civilized manner, unless his life
or safety may be in danger, or the evidence would likely be destroyed by any delay.
The requirement of a search warrant being a general rule, it necessarily follows that some exceptions
would have to be accommodated, exceptions which are better understood when seen in the context in
which they developed, such as search incident to a lawful arrest, search of moving vehicles, the plain
view doctrine, and, lately, airport searches. In regard to warrantless arrests, there are the in flagrante
delicto, hot pursuit and escaped-prisoners exceptions.
But in considering the things and circumstances relative to the question of whether a search or
seizure was in accordance with the Constitution, one must always remember that the touchstone is
reasonableness.82 And that is not something cast in rigid and inflexible forms and shapes. [T]he Fourth
Amendment83 does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules
can capture the ever changing complexity of human life.84
It has also been stated that a search warrant proceeding is, in no sense, a criminal action or the
commencement of a prosecution. The proceeding is not one against any person, but is solely for the
discovery and to get possession of personal property. It is a special and peculiar remedy, drastic in
nature, and made necessary because of public necessity. It resembles in some respect what is commonly
known as John Doe proceedings. Further, private complainants can participate in these proceedings
they may appear, participate and file pleadings in said proceedings to maintain, inter alia, the validity
of the search warrant issued by the court and the admissibility of the properties seized in anticipation of
a criminal case to be filed. As for the search warrant itself, the Court said that it is a legal process which
Recoletos
Law
Center
has been likened to a writ of discovery
employed by
the State
to procure relevant evidence of crime. It
is in the nature of a criminal process, restricted to cases of public prosecutions. A search warrant is a
85
Review
2012
police weapon, issued under the policeBar
power.
In regard to anticipatory warrants where they are applied for even before the contraband is yet to
be delivered to the place to be searched the U.S. Supreme Court declared in United States v. Grubbs,

81

See People v. Go, 411 SCRA 81 (2003)

82

[B]ecause the ultimate touchstone of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain
Av.Library
exceptions. (Brigham City
Stuart, 547 Of
U.S.Liberties
398 [2006]) vis--vis An Arsenal Of Arms
83

This is the American counterpart to Art. III, 2 of the Philippine Constitution.

84

Justice Breyer, concurring in Georgia v. Randolph, 547 U.S. 103 (2006)

85

United Laboratories, Inc. v. Isip, 461 SCRA 574 (2005)

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547 U.S. 90 (2006): Because the probable-cause requirement looks to whether evidence will be found
when the search is conducted, all warrants are, in a sense, anticipatory. In the typical case where the
police seek permission to search a house for an item they believe is already located there, the
magistrates determination that there is probable cause for the search amounts to a prediction that the
item will still be there when the warrant is executed. In that sense, anticipatory warrants are no different
in principle from ordinary warrants. They also require the magistrate to determine (1) that it is now
probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3)
when the warrant is executed. In other words, for a conditioned anticipatory warrant to comply with
the Fourth Amendments requirement of probable cause, two prerequisites of probability must be
satisfied. It must be true not only that if the triggering condition occurs there is a fair probability that
contraband or evidence of a crime will be found in a particular place, . . . but also that there is probable
cause to believe the triggering condition will occur.
Directly related to the right against unreasonable searches and seizures is the right to privacy. In this
regard, the Court said in Sabio v. Gordon, 504 SCRA 704 (2006): Zones of privacy are recognized and
protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law
and in accordance with customary legal process. The meticulous regard we accord to these zones arises
not only from our conviction that the right to privacy is a constitutional right and the right most valued
by civilized men, but also from our adherence to the Universal Declaration of Human Rights which
mandates that, no one shall be subjected to arbitrary interference with his privacy and everyone has
the right to the protection of the law against such interference or attacks.
1. Bayaca v. Ramos, 577 SCRA 93 (2009)
In Talingdan v. Eduarte, 366 SCRA 559 (2001), the judge was found administratively liable for
having improvidently issued a warrant as a consequence of letting his criminal docket clerk practically
determine the existence of probable cause through the expedient of a checklist. In Bayaca, the judge
issued a Warrant of Arrest and Commitment to Final Sentence leading to the incarceration of the convict
despite the fact that his earlier decision was modified on appeal, deleting imprisonment as penalty and
imposing instead the penalty of fine. In his explanation, he clarified that his issuance of the warrant of
arrest was a mistake done in good faith. He added that for almost sixteen (16) years it was the practice
in his sala that before acting on a motion it passed through his Clerk of Court who studied the records
to determine whether or not to grant it. If it would be granted, the Clerk of Court would then request the
stenographer to type the order and thereafter, he would affix his initial for respondent Judges signature.
Such was the procedure followed in the instant case and the path taken to that unfortunate mistake. The
Court found the judge inexcusably negligent. He was not fined, however, because death snatched him
from the claws of punishment. Recoletos Law Center
2. Yao, Sr. v. People, 525 SCRA Bar
108 (2007)
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2012

In support of the application for warrants, [t]he applicant or his witnesses must have personal
knowledge of the circumstances surrounding the commission of the offense being complained of.
Reliable information is insufficient. Mere affidavits are not enough, and the judge must depose in
writing the complainant and his witnesses. And, how are we to know what constitutes probable cause?
As the term implies, probable cause is concerned with probability, not absolute or even moral
certainty. The standards
of judgment
are those ofvis--vis
a reasonably
man,
the exacting calibrations
A Library
Of Liberties
Anprudent
Arsenal
Ofnot
Arms
of a judge after a full blown trial.

And, would it be fatal to the establishment of probable cause if the persons who conducted the

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preliminary footwork prior to application for warrant used a fictitious name? The fact that Oblanca and
Alajar used different names in the purchase receipts do not negate personal knowledge on their part. It
is a common practice of the law enforcers such as NBI agents during covert investigations to use
different names in order to conceal their true identities. This is reasonable and understandable so as not
to endanger the life of the undercover agents and to facilitate the lawful arrest or apprehension of
suspected violators of the law. Further, [t]here is nothing in the provisions of law concerning the
issuance of a search warrant which directly or indirectly mandates that the applicant of the search
warrant or his witnesses should state in their affidavits the fact that they used different names while
conducting undercover investigations, or to divulge such fact during the preliminary examination.
What about searching questions? The searching questions propounded to the applicant and the
witnesses depend largely on the discretion of the judge. Although there is no hard-and-fast rule
governing how a judge should conduct his investigation, it is axiomatic that the examination must be
probing and exhaustive, not merely routinary, general, peripheral, perfunctory or pro forma. The judge
must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and
justification of the application.
How about the particularity of description requirement? The long standing rule is that a description
of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort,
ascertain and identify the place intended and distinguish it from other places in the community. Any
designation or description known to the locality that points out the place to the exclusion of all others,
and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement. In addition,
a search warrant may be said to particularly describe the things to be seized when the description therein
is as specific as the circumstances will ordinarily allow; or when the description expresses a conclusion
of fact not of law by which the warrant officer may be guided in making the search and seizure; or when
the things described are limited to those which bear direct relation to the offense for which the warrant
is being issued. While it is true that the property to be seized under a warrant must be particularly
described therein and no other property can be taken thereunder, yet the description is required to be
specific only in so far as the circumstances will ordinarily allow. The law does not require that the things
to be seized must be described in precise and minute details as to leave no room for doubt on the part
of the searching authorities; otherwise it would be virtually impossible for the applicants to obtain a
search warrant as they would not know exactly what kind of things they are looking for.86
Must the property to be seized be owned by the person against whom the warrant is issued? No, not
necessarily. The law does not require that the property to be seized should be owned by the person
against whom the search warrants is directed. Ownership, therefore, is of no consequence, and it is
sufficient that the person against whom the warrant is directed has control or possession of the property
Recoletos Law Center
sought to be seized.

Bar
Review
2012in Civil Actions For Infringement of
On A.M. No. 02-1-06-SC (Rule on
Search
and Seizure
Intellectual Property Rights), the Court said that it governs only searches and seizures in civil actions
for infringement of intellectual property rights it does not cover criminal violation of Section 155 in
relation to Section 170 of Republic Act No. 8293.

3. Valeroso v. Court of Appeals, 598 SCRA 41 (2009)


In this case, the A
search
purportedly
incidentvis--vis
to arrest was
the suspect was taken out
Library
Of Liberties
Anconducted
Arsenalafter
Of Arms
of his room and the police had tied his hands. Thereafter, a revolver with live ammunition was allegedly
86

See People v. Tee, 395 SCRA 419 (2003), where the Court held that the phrase undetermined amount of marijuana satisfies
the particularity requirement.

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found in a locked cabinet inside the room. Could this qualify as a valid search incident to a lawful arrest?
The Court explained that when an arrest is made, it is reasonable for the arresting officer to search
the person arrested in order to remove any weapon that the latter might use in order to resist arrest or
effect his escape, or for the protection of the officer, as well as to prevent the concealment or destruction
of evidence on the suspects person. [A] valid arrest allows the seizure of evidence or dangerous
weapons either on the person of the one arrested or within the area of his immediate control. The
phrase within the area of his immediate control means the area from within which he might gain
possession of a weapon or destructible evidence. The Court said that the cabinet which was locked
could no longer be considered as an area within his immediate control because there was no way for
him to take any weapon or to destroy any evidence that could be used against him. The Court further
added that this exception should not be strained beyond what is needed to serve its purpose.
Could the warrantless search be justified under the plain view doctrine? No, not also.
The plain view doctrine may not be used to launch unbridled searches and indiscriminate seizures
or to extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine
is usually applied where a police officer is not searching for evidence against the accused, but
nonetheless inadvertently comes across an incriminating object.
In regard to the plain view doctrine, the Court also had this to say in United Laboratories, Inc. v. Isip,
461 SCRA 574 (2005): The plain view doctrine is not an exception to the warrant. It merely serves
to supplement the prior justification whether it be a warrant for another object, hot pursuit, search as
an incident to a lawful arrest or some other legitimate reason for being present, unconnected with a
search directed against the accused. The doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last emerges. It is a recognition of the fact
that when executing police officers come across immediately incriminating evidence not covered by the
warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of the
crime they are investigating or evidence of some other crime. As for the immediacy requirement, this
means that the executing officer can, at the time of discovery of the object or the facts therein available
to him, determine probable cause of the objects incriminating evidence to be immediate, probable
cause must be the direct result of the officers instantaneous sensory perception of the object. The
immediately apparent test does not require an unduly high degree of certainty as to the incriminating
character of evidence. As to the requirement of inadvertence, it means that the officer must not have
known in advance of the location of the evidence and intended to seize it. Further, the immediately
apparent aspect is central to the plain view exception.
4. Sony Computer Entertainment, Inc. v. Bright Future Technologies, Inc., 516 SCRA 62 (2007)

Recoletos Law Center

Violation of the Two-Witness Rule in searches and seizures results in quashal of the warrant. The
BarofReview
2012
two-witness rule governing the execution
search warrant
is mandatory to ensure regularity in the
execution of the search warrant. Accordingly, the rule is violated where the police were already
searching the area when the two (2) barangay tanods who served as witnesses arrived.

How about security guards? A security guard may not be considered a lawful occupant or a
member of the lawful occupants family under Section 8 of Rule 126.
5. Summerville
Co. v. Court
Appeals, Of
525Arms
SCRA 602 (2007)
A General
LibraryMerchandising
Of Liberties vis--vis
AnofArsenal
The Constitution does not provide a blanket prohibition against all searches and seizures rather,
the fundamental protection accorded by the search and seizure clause is that, between persons and the

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police, there must stand the protective authority of a magistrate clothed with the power to issue or refuse
such search warrant. The responsibilities of the magistrate do not end with the granting of the warrant,
but extends to the custody of the articles seized.
Where there is no allegation that the design and/or mark of a particular brand of playing cards is a
reproduction, counterfeit, copy, or colorable imitation of another registered mark legally owned by
another, there is no crime of trademark infringement that appears to have been committed or perpetrated
to warrant the inference that aid playing cards are subject of the offense as contemplated by Sec. 4 of
Rule 126 of the Rules of Court. The Court also held in this case that, where there is the availability of
actual samples, there is no need for the court to take custody of the countless articles seized. There is no
law prohibiting the trial court from returning the articles seized before a case is actually filed in court
and even before the final determination by the prosecutor or the Department of Justice of whether a case
should be filed in court. Also, where the articles seized have already been found not to be the subject
of the offense and the purpose of presenting them as evidence is no longer served, there is no
justification for severely curtailing the rights of a person to his property. To value the privacy of home
and person and to afford its constitutional protection against the long reach of the government are no less
than to value human dignity and this privacy must not be disturbed except in the overriding social
need, and then only under the stringent procedural rules.
6. Los Angeles County v. Rettele, 550 U.S. 609 (2007)
In Wilson v. Layne, 526 U.S. 603 (1999), the occupants of the house complained about the police
practice known as media ride along where police enter residences serving warrants with the media in
tow. In said case the police went in unannounced early one morning, at a time when the two occupants
were still in bed. When the husband went down to investigate, he was still in his sleeping attire. Here,
in Rettele, it was worse. The policemen surprised the two occupants in bed naked. And then they were
not allowed to immediately put on anything as they were made to stand au naturel for about two
minutes. Would this constitute an unreasonable manner of conducting a search?
In relation to a fraud and identity-theft crime ring investigation, police secured a warrant to search
two houses. They were unaware that the suspects four African-Americans had moved out of the
house three months earlier and the house had been sold to Rettle who moved in there with his girlfriend
and her son all Caucasians. Accordingly, when the police made the search at around 7:15 one morning,
they found in a bedroom two residents who were of a different race than the suspects. The deputies
ordered these residents, who had been sleeping unclothed, out of bed, and required them to stand for a
few minutes before allowing them to dress.
The Court held that the search was reasonable under the circumstances. When the deputies ordered
Recoletos Law Center
respondents from their bed, they had no way of knowing whether the African-American suspects were
elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the
Bar Review 2012
possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not
uncommon in our society for people of different races to live together. Just as people of different races
live and work together, so too might they engage in joint criminal activity. The deputies, who were
searching a house where they believed a suspect might be armed, possessed authority to secure the
premises before deciding whether to continue with the search. Accordingly, [t]he orders by the police
to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect
A Library
Of Liberties
vis--vis
An Arsenal
the safety of the deputies.
Blankets
and bedding
can conceal
a weapon,Of
andArms
one of the suspects was
known to own a firearm, factors which underscore this point. The Constitution does not require an
officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. Moreover,

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[t]he deputies needed a moment to secure the room and ensure that other persons were not close by or
did not present a danger. In other words, when officers execute a valid warrant and act in a reasonable
manner to protect themselves from harm, the Fourth Amendment is not violated.
Be properly attired then when going to sleep and when going to take the Bar exams.
7. People v. Tuazon, 532 SCRA 152 (2007)
The police received a confidential information through telephone that a Gemini car with plate
number PFC 411 would deliver an unspecified amount of shabu in Marville Subdivision, Antipolo City.
Policemen dispatched to conduct a surveillance saw the said Gemini car and immediately flagged it
down. When the car window was lowered, one of the policemen saw a gun tucked on Tuazons waist.
He was then asked to go down, and the policeman saw five plastic sachets of shabu on the drivers seat,
the contents of which Tueazon allegedly admitted to be shabu. Is this a valid moving vehicle search?
In the case of People v. Lo Ho Wing, [193 SCRA 122, 128-129 (1991),] this Court had the occasion
to elucidate on the rationale for the exemption of searches of moving vehicles from the requirement of
search warrant, thus: [T]he rules governing search and seizure have over the years been steadily
liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so
considering that before a warrant could be obtained, the place, things and persons to be searched must
be described to the satisfaction of the issuing judge a requirement which borders on the impossible in
the case of smuggling effected by the use of a moving vehicle that can transport contraband from one
place to another with impunity. We might add that a warrantless search of a moving vehicle is justified
on the ground that it is not practicable to secure a warrant because the vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant must be sought.
The Court cautioned, however, in regard to vehicle searches, that the exception from securing a
search warrant when it comes to moving vehicles does not give the police authorities unbridled
discretion to conduct a warrantless search of an automobile. To do so would render the aforementioned
constitutional stipulations inutile and expose the citizenry to indiscriminate police distrust which could
amount to outright harassment. Surely, the policy consideration behind the exemption of search of
moving vehicles does not encompass such arbitrariness on the part of the police authorities. In
recognition of the possible abuse, jurisprudence dictates that at all times, it is required that probable
cause exist in order to justify the warrantless search of a vehicle. Here, the police had such probable
cause.
8. People v. Laguio, Jr., 518 SCRA 393 (2007)
Following a descriptions made by persons earlier arrested by the police of the supplier of shabu, the
Recoletos Law Center
police conducted a surveillance in the place indicated and when they saw someone who fitted the given
description walking from the apartment to his car they approached him, frisked him and found an
Bar Review 2012
unlicensed firearm. A search of his car yielded shabu and another unlicensed firearm. The Court held
both the arrest and the search unconstitutional: The facts and circumstances surrounding the present
case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang that
would reasonably invite the attention of the police. He was merely walking from the Maria Orosa
Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked
and searched his person and commanded him to open the compartment of the car, which was later on
A his
Library
Liberties
An Arsenal
Of Arms
found to be owned by
friend,Of
David
Lee. He vis--vis
was not committing
any visible
offense then. Therefore,
there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled
that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence

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and within the view of the arresting officers, is not sufficient to constitute probable cause that would
justify an in flagrante delicto arrest. Neither may the warrantless arrest be justified under paragraph (b)
of Section 5. What is clearly established from the testimonies of the arresting officers is that Wang was
arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who
were previously arrested and charged for illegal transport of shabu.
9. Valdez v. People, 538 SCRA 611 (2007)
The sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is
also zealously safeguarded. . . . Indeed, while the power to search and seize may at times be necessary
to the public welfare, still it must be exercised and the law implemented without contravening the
constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government.
While conducting routine patrol along the National Highway in Aringay, La Union, one early
evening, three barangay tanods noticed Valdez, lugging a bag, alight from a mini-bus. They observed
that he appeared suspicious since he seemed to be looking for something. They approached him but the
latter purportedly attempted to run away. They gave chase and caught up with him, arrested him and
thereafter brought him to the house of the Barangay Captain where he was ordered to open his bag. They
then allegedly found dried marijuana leaves. Is the search and seizure valid? For the exception in
Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the
person to be arrested must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within
the view of the arresting officer. Here, petitioners act of looking around after getting off the bus was
but natural as he was finding his way to his destination. That he purportedly attempted to run away as
the tanod approached him is irrelevant and cannot by itself be construed as adequate to charge the tanod
with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting
to engage in criminal activity. More importantly, petitioner testified that he did not run away but in fact
spoke with the barangay tanod when they approached him. Further, [e]ven taking the prosecutions
version generally as the truth, in line with our assumption from the start, the conclusion will not be any
different. It is not unreasonable to expect that petitioner, walking the street at night, after being closely
observed and then later tailed by three unknown persons, would attempt to flee at their approach. Flight
per se is not synonymous with guilt and must not always be attributed to ones consciousness of guilt.
. . . [F]light alone is inherently ambiguous. Alone, and under the circumstances of this case, petitioners
flight lends itself just as easily to an innocent explanation as it does to a nefarious one.
Could this not fall under Terry stop and frisk exception? [A] stop-and-frisk situation, following
Terry v. Ohio, must precede a warrantless
arrest, be
limited
to the persons outer clothing, and should
Recoletos
Law
Center
be grounded upon a genuine reason, in light of the police officers experience and surrounding
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Review
conditions, to warrant the belief that the
person
detained 2012
has weapons concealed about him.
How about waiver and consent? A waiver of an illegal warrantless arrest does not also mean a waiver
of the inadmissibility of evidence seized during an illegal warrantless arrest. Moreover, consent to a
search is not to be lightly inferred, but must be shown by clear and convincing evidence it is the State
which has the burden of proving, by clear and positive testimony, that the necessary consent was
obtained and that it was freely and voluntarily given.
A Library Of Liberties vis--vis An Arsenal Of Arms
Then, to show everyone that it is not blind to what may actually be happening in the outside world
of criminals and policemen, the Court said: A final word. . . . We are not oblivious to the fact that in
some instances, law enforcers resort to the practice of planting evidence to extract information or even

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harass civilians. Accordingly, courts are duty-bound to be [e]xtra vigilant in trying drug cases lest an
innocent person be made to suffer the unusually severe penalties for drug offenses. In the same vein,
let this serve as an admonition to police officers and public officials alike to perform their mandated
duties with commitment to the highest degree of diligence, righteousness and respect for the law.
Further in regard to bases for warrantless arrest, in People v. Racho, 626 SCRA 633 (2010), the
Court reminded everyone that the long standing rule in this jurisdiction is that reliable information
alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused
perform some overt act that would indicate that he has committed, is actually committing, or is
attempting to commit an offense.
10. Galvante v. Casimiro, 552 SCRA 304 (2008)
If a person has his vehicle searched without warrant and he claims that the same was uncalled for,
can he charge the policemen who did the searching before the Ombudsman? And, for what offense? The
Court said that there is no such crime as searching without warrant [t]he conduct of a warrantless
search is not a criminal act for it is not penalized under the Revised Penal Code (RPC) or any other
special law. What the RPC punishes are only two forms of searches: . . . Art. 129 (Search warrants
maliciously obtained and abuse in the service of those legally obtained) and Art. 130 (Searching domicile
without witnesses). The persons remedy against warrantless searches would be Art. 32 in relation to Art.
2219 (6) and (10) of the Civil Code, and/or disciplinary and administrative, under Section 41 of R.A.
6975 (DILG Act of 1990).
11. Superlines Transportation Company, Inc. v. Philippine National Construction Company, 519
SCRA 432 (2007)
Of accidents, investigations and impoundments of vehicles.
A Superlines bus crashed into the radio room of PNCC at Alabang Northbound Exit Lane way back
in December 1990. After initial investigation by PNCC toll way patrol, the bus was turned over to the
Alabang Traffic Bureau for its own investigation. Because of lack of adequate space, the bus was, on
request of traffic investigator (Lopera), towed by the PNCC patrol to its compound where it was stored.
Superlines request for return went unheeded by PNCC. The latter demanded sum of P
=40,000 or
collateral of same value, representing its estimate of the cost of reconstruction of damage but which
Superlines estimated only to be P
=10,000. Because of this stalemate, a replevin suit was filed by
Superlines. The trial court dismissed. The Court of Appeals ruled that storage of the bus for safekeeping
purposes partakes nature of deposit, hence custody or authority over it remained with the police traffic
investigator and in the absence of any instructions from him, PNCC could not release the bus, i.e., the
case should have been brought against
the police authorities.
Is the CA correct?
Recoletos
Law Center
In upholding the dismissal of petitioners complaint, the Court of Appeals held that while there is
Bar Review 2012
no law authorizing the impounding of a vehicle involved in an accident by the police authorities, * * *
neither is there a law making the impounding of vehicles involved in accidents illegal. It added that the
Supreme Court is of the view that there is yet no clear-cut policy or rule on the matter. The appellate
court is mistaken. The Constitution grants the right against unreasonable seizures. Here, the seizure and
impounding of the bus were unquestionably violative of the right to be let alone by the authorities as
guaranteed by the Constitution. This Courts statement in Victory Liner[, Inc. v. Bellosillo (425 SCRA
Library
Of Liberties
Anpractice,
Arsenal
Of Arms
79 [2004]),] on theAlack
of a clear-cut
policyvis--vis
refers to the
rightly
or wrongly, of trial court
judges of issuing orders for the impounding of vehicles involved in accidents. It has no application to
the instant case which involves the seizure and distraint implemented by respondents upon a verbal order

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by Lopera without the benefit or color of legality afforded by a court process, writ or order.
Further, the fact that a year after the incident the driver was criminally charged for reckless
imprudence in which the bus could possibly he held as evidence does not affect the outcome of the case
the rule that property held as evidence in a criminal case cannot be replevied applies only where the
property is lawfully held, i.e., seized in accordance with the rule on searches and seizures or its accepted
exceptions. Property subject of litigation is not by that fact alone in custodia legis.
12. Social Justice Society v. Dangerous Drugs Board, 570 SCRA 410 (2008)
Would the constitutional proscription against unreasonable searches and searches be violated by the
provisions of the Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165) mandating drug testing
of students of secondary and tertiary schools, officers and employees of public and private offices, and
persons charged before the prosecutors office with offenses punishable by more than six years
imprisonment? (Another issue was whether the same requirement for those running for public office
would constitute an impermissible addition to the qualifications for the office of Senator. The Court
answered in the affirmative.)
The Court held that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug
testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to
require, as a condition for admission, compliance with reasonable school rules and regulations and
policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable
requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country
that threatens the well-being of the people, particularly the youth and school children who usually end
up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a
random drug testing of students in secondary and tertiary schools is not only acceptable but may even
be necessary if the safety and interest of the student population, doubtless a legitimate concern of the
government, are to be promoted and protected.
How about for employees? Just as in the case of secondary and tertiary level students, the
mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public
and private offices is justifiable, albeit not exactly for the same reason. Here, there would be a more
careful balancing of values. [R]easonableness is the touchstone of the validity of a government search
or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the
balancing of the government-mandated intrusion on the individuals privacy interest against the
promotion of some compelling state interest. . . . Given that the drug-testing policy for employees and
students for that matter under RA 9165 is in the nature of administrative search needing what was
referred to in Vernonia as swift and informal disciplinary procedures, the probable-cause standard is
Recoletos Law Center
not required or even practicable. Be that as it may, the review should focus on the reasonableness of the
challenged administrative search in question. The first factor to consider in the matter of reasonableness
Bar Review 2012
is the nature of the privacy interest upon which the drug testing, which effects a search within the
meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as
the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug
testing requirement. The employees privacy interest in an office is to a large extent circumscribed by
the companys work policies, the collective bargaining agreement, if any, entered into by management
and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in
A privacy
Libraryexpectation
Of Liberties
vis--visoffice
An Arsenal
Of Arms
the workplace. Their
in a regulated
environment
is, in fine, reduced; and a
degree of impingement upon such privacy has been upheld. Further, [j]ust as defining as the first factor
is the character of the intrusion authorized by the challenged law.

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In other words, taking into account the reduced expectation of privacy on the part of the employees,
the compelling state concern likely to be met by the search, and the well-defined limits set forth in the
law to properly guide authorities in the conduct of the random testing, . . . the challenged drug test
requirement is, under the limited context of the case, reasonable and, ergo, constitutional.
How about for those charged with crimes? Unlike the situation covered by Sec. 36 (c) and (d) of
RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes.
In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug
testing for students emanates primarily from the waiver by the students of their right to privacy when
they seek entry to the school, and from their voluntarily submitting their persons to the parental authority
of school authorities. In the case of private and public employees, the constitutional soundness of the
mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test
policy and requirement. We find the situation entirely different in the case of persons charged before the
public prosecutors office with criminal offenses punishable with six (6) years and one (1) day
imprisonment. The operative concepts in the mandatory drug testing are randomness and
suspicionless. In the case of persons charged with a crime before the prosecutors office, a mandatory
drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are
antithetical to their being made defendants in a criminal complaint. They are not randomly picked;
neither are they beyond suspicion. When persons suspected of committing a crime are charged, they are
singled out and are impleaded against their will. The persons thus charged, by the bare fact of being
haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the
case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose
mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a
persons right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused
persons are veritably forced to incriminate themselves.
13. Lucas v. Lucas, 650 SCRA 667 (2011)
Here, the Court took note of the need for some safeguards in regard to DNA testing as part of
paternity suits, and the possible abuse that may ensue. It observed that in some foreign jurisdictions, a
court order for blood testing is considered a search, which, under their Constitutions (as in ours), must
be preceded by a finding of probable cause in order to be valid, hence, the requirement of a prima facie
case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable
cause. It then proceeded to declare that the same condition precedent should be applied in our
jurisdiction to protect the putative father from mere harassment suits thus, during the hearing on the
motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable
Recoletos Law Center
possibility of paternity.

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14. Pollo v. Constantino-David, 659
SCRA
198 (2011)
The case involves a search of office computer assigned to a Civil Service Commission employee and
whose personal files stored in said computer were used by the government employer as evidence of
misconduct. This came about following an anonymous complaint charging the employee of lawyering
for parties having pending cases before the CSC. The employee was found guilty of dishonesty, grave
misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.)
A Library
Ofdismissal.
Liberties vis--vis An Arsenal Of Arms
No. 6713 and penalized
him with

Here, the files in the computers in the division where the employee worked were backed up. All the
computers were then sealed and secured for the purpose of preserving all the files stored therein. After

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examining the contents, it was found that most of the files copied from the computer assigned to and
being used by the employee, numbering about 40 to 42 documents, were draft pleadings or letters in
connection with administrative cases in the CSC and other tribunals. He was then charged and
investigated, after which he was dismissed.
A pivotal issue is about the legality of the search conducted on the employees office computer and
the copying of his personal files without his knowledge and consent, allegedly a transgression on his
constitutional right to privacy.
Relying on American cases, particularly, OConnor v. Ortega, 480 U.S. 709 (1987), and United
States v. Mark L. Simons, 206 F.3d 392 (4th Cir. 2000), the Court ruled for CSC. In OConnor the U.S.
Supreme Court recognized that special needs authorize warrantless searches involving public
employees for work-related reasons, and laid down a balancing test under which government interests
are weighed against the employees reasonable expectation of privacy. This reasonableness test
implicates neither probable cause nor the warrant requirement, which are related to law enforcement.
Simons subsequently applied OConnor.
The Supreme Court then proceeded to state: Applying the analysis and principles announced in
OConnor and Simons to the case at bar, we now address the following questions: (1) Did petitioner
have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search
authorized by the CSC Chair, the copying of the contents of the hard drive on petitioners computer
reasonable in its inception and scope? In this inquiry, the relevant surrounding circumstances to consider
include (1) the employees relationship to the item seized; (2) whether the item was in the immediate
control of the employee when it was seized; and (3) whether the employee took actions to maintain his
privacy in the item. These factors are relevant to both the subjective and objective prongs of the
reasonableness inquiry, and we consider the two questions together. Thus, where the employee used a
password on his computer, did not share his office with co-workers and kept the same locked, he had
a legitimate expectation of privacy and any search of that space and items located therein must comply
with the Fourth Amendment.
To the first question, the answer is no. The Court explained: Petitioner failed to prove that he had
an actual (subjective) expectation of privacy either in his office or government-issued computer which
contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did
not share with anyone, or that his office was always locked and not open to other employees or visitors.
Neither did he allege that he used passwords or adopted any means to prevent other employees from
accessing his computer files. On the contrary, he submits that being in the public assistance office of the
CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown
people, whom he even allowed to use
his computerLaw
which Center
to him seemed a trivial request. He described
Recoletos
his office as full of people, his friends, unknown people and that in the past 22 years he had been
Bar
Review
2012incoming clients, receiving documents,
discharging his functions at the PALD, he
is personally
assisting
drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public
Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone,
that in fact he stays in the office as a paying customer. Under this scenario, it can hardly be deduced that
petitioner had such expectation of privacy that society would recognize as reasonable. Moreover, even
assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances,
that petitioner had A
at Library
least a subjective
expectation
of privacy
in his computer
as he claims, such is
Of Liberties
vis--vis
An Arsenal
Of Arms
negated by the presence of policy regulating the use of office computers. That policy put employees on
notice that they have no expectation of privacy in anything they create, store, send or receive on the
office computers, and that the CSC may monitor the use of the computer resources using both automated

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or human means. This implies that on-the-spot inspections may be done to ensure that the computer
resources were used only for such legitimate business purposes.
How about the second question was the search reasonable? The Court said yes. The search was
conducted in connection with investigation of work-related misconduct. A search by a government
employer of an employees office is justified at inception when there are reasonable grounds for
suspecting that it will turn up evidence that the employee is guilty of work-related misconduct. Here,
the search was justified at its inception and scope.
Incidentally, would it make any difference if the computer searched was personally owned by the
employee. It would, and here the Court referred to Anonymous Letter-Complaint against Atty. Miguel
Morales, Clerk of Court, Metropolitan Trial Court of Manila, 571 SCRA 361 (2008), which it then
distinguished from the instant case unlike the former which involved a personal computer of a court
employee, the computer from which the personal files of herein petitioner were retrieved is a
government-issued computer, hence government property the use of which the CSC has absolute right
to regulate and monitor.
15. United States v. Jones, 565 U.S. ___ (23 January 2012)
This case illustrates once more the adjustments and adaptations that would have to done in regard
to constitutional guarantees applied in relation to modern law-enforcement amenities, such as Global
Position System (GPS) tracking device. The U.S. Supreme Court held that the attachment of such a
device to an individuals vehicle, and subsequent use of that device to monitor the vehicles movements
on public streets, constitutes a search within the meaning of the Fourth Amendment. It is also said that
it is beyond dispute that a vehicle is an effect as that term is used in the Amendment.
The case also discussed some legal developments relative to the Fourth Amendment protection. The
text of the Fourth Amendment reflects its close connection to property, since otherwise it would have
referred simply to the right of the people to be secure against unreasonable searches and seizures; the
phrase in their persons, houses, papers, and effects would have been superfluous. Consistent with this
understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the
latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001); . . . Thus, in Olmstead v.
United States, 277 U. S. 438 (1928), we held that wiretaps attached to telephone wires on the public
streets did not constitute a Fourth Amendment search because [t]here was no entry of the houses or
offices of the defendants,. . . Our later cases, of course, have deviated from that exclusively
property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that the Fourth
Amendment protects people, not places, and found a violation in attachment of an eavesdropping device
to a public telephone booth. Our later cases have applied the analysis of Justice Harlan's concurrence in
Recoletos Law Center
that case, which said that a violation occurs when government officers violate a person's reasonable
expectation of privacy.

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16. Abelita III v. Doria, 596 SCRA 220 (2009)

In this case, the police officers received a report about an alleged shooting incident, they investigated
and learned from witnesses about a particular person being involved in the incident. After they found
him and invited him to the police headquarters to shed light on the incident, he initially agreed then sped
up his vehicle, prompting the police authorities to give chase. The Court said this justified a warrantless
Aact
Library
OftoLiberties
vis--vis
Of Arms
arrest. Such persons
of trying
get away, coupled
withAn
theArsenal
incident report
which they investigated,
is enough to raise a reasonable suspicion on the part of the police authorities as to the existence of
probable cause. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the

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arresting officers to personally witness the commission of the offense with their own eyes.
17. Case of S. And Marper v. The United Kingdom, Applications No. 30562/04 and 30566/04, 4
December 2008 {European Court of Human Rights, sitting as a Grand Chamber}
(http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action
=html&highlight=Dna&sessionid=16803951&skin=hudoc-en)
The issue here is whether the indefinite retention of fingerprints, DNA profile, and cellular samples
of persons who were charged but were not convicted would be violative of the right to respect for
private life which is guaranteed by Article 8 of the European Convention on Human Rights.87 Here, S,
11 years old, was charged with attempted robbery but was acquitted. Marter, on the other hand, was
charged with harassment of his partner but after they reconciled, the charge was no longer pressed.
Fingerprints and DNA samples were taken from both, S and Marter but police refused to destroy them
after the cases were terminated.
So what is private life? The Court recalls that the concept of private life is a broad term not
susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . .
. It can therefore embrace multiple aspects of the persons physical and social identity . . . . Elements
such as, for example, gender identification, name and sexual orientation and sexual life fall within the
personal sphere protected by Article 8 . . . . Beyond a persons name, his or her private and family life
may include other means of personal identification and of linking to a family . . . . Information about the
persons health is an important element of private life . . . . Article 8 protects in addition a right to
personal development, and the right to establish and develop relationships with other human beings and
the outside world . . . . The concept of private life moreover includes elements relating to a persons right
to their image. Then, the Court went on to state: The mere storing of data relating to the private life
of an individual amounts to an interference within the meaning of Article 8.
So what about personal data and modern developments? Indeed, bearing in mind the rapid pace of
developments in the field of genetics and information technology, the Court cannot discount the
possibility that in the future the private-life interests bound up with genetic information may be adversely
affected in novel ways or in a manner which cannot be anticipated with precision today.
How do these sum up then? Given the nature and the amount of personal information contained
in cellular samples, their retention per se must be regarded as interfering with the right to respect for the
private lives of the individuals concerned. And, the DNA profiles capacity to provide a means of
identifying genetic relationships between individuals . . . is in itself sufficient to conclude that their
retention interferes with the right to the private life of the individuals concerned. Accordingly, the
retention of both cellular samples and DNA profiles discloses an interference with the applicants right
Recoletos Law Center
to respect for their private lives, within the meaning of Article 8 1 of the Convention.

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How about fingerprints? While [i]t
is common
ground
that fingerprints do not contain as much
information as either cellular samples or DNA profiles, they objectively contain unique information
about the individual concerned allowing his or her identification with precision in a wide range of
circumstances. They are thus capable of affecting his or her private life and retention of this information
without the consent of the individual concerned cannot be regarded as neutral or insignificant. The Court
accordingly considers that the retention of fingerprints on the authorities records in connection with an
identified or identifiable
individual
in itselfvis--vis
give rise, notwithstanding
their
objective and irrefutable
A Library
Of may
Liberties
An Arsenal Of
Arms

87

Art. 8, European Convention on Human Rights provides: 1. Everyone has the right to respect for his private ... life ... 2. There
shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary
in a democratic society ... for the prevention of disorder or crime...

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character, to important private-life concerns. Further, the Court said: It is accepted in this regard that,
because of the information they contain, the retention of cellular samples and DNA profiles has a more
important impact on private life than the retention of fingerprints. However, the Court, . . . considers
that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the
one hand, and samples and profiles, on the other, in determining the question of justification, the
retention of fingerprints constitutes an interference with the right to respect for private life.
So what do we make of all these? In conclusion, the Court finds that the blanket and indiscriminate
nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons
suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike
a fair balance between the competing public and private interests and that the respondent State has
overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue
constitutes a disproportionate interference with the applicants right to respect for private life and cannot
be regarded as necessary in a democratic society.
Respect for private life also means, of course, not copying the answers of the persons beside you.
18. Writ of Habeas Data
To provide further protection to the people against assaults on their right to privacy, the Supreme
Court has also come up with the Rule on the Writ of Habeas Data.88 This is a remedy available to any
person whose right to privacy in life, liberty and 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. Reliefs may include the enjoining of the act complained of, or the deletion,
destruction, or rectification of the erroneous data or information.89
In Manila Electric Company v. Lim, 632 SCRA 195 (2010), the Court held that the writ could not
be used to thwart the exercise of management prerogative to transfer employees. Her plea that she be
spared from complying with MERALCOs Memorandum directing her reassignment to the Alabang
Sector, under the guise of a quest for information or data allegedly in possession of petitioners, does not
fall within the province of a writ of habeas data. The Court explained that the habeas data rule, in
general, is designed to protect by means of judicial complaint the image, privacy, honor, information,
and freedom of information of an individual. It is meant to provide a forum to enforce ones right to the
truth and to informational privacy, thus safeguarding the constitutional guarantees of a persons right
to life, liberty and security against abuse in this age of information technology. It bears reiteration that
like the writ of amparo, habeas data was conceived as a response, given the lack of effective and
Recoletos
Law
available remedies, to address the
extraordinary
riseCenter
in the number of killings and enforced
disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as
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2012
a remedy independently from those provided
under prevailing
Rules. Further, the writs of amparo and
habeas data will NOT issue to protect purely property or commercial concerns nor when the grounds
invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property
right under the context of the due process clause of the Constitution.

Further, the Court noted that there is no showing from the facts presented that petitioners committed
any unjustifiable or unlawful violation of respondents right to privacy vis-a-vis the right to life, liberty
A Library Of Liberties vis--vis An Arsenal Of Arms
or security. To argue that petitioners refusal to disclose the contents of reports allegedly received on the
88

Effective 2 February 2008, pursuant to the A.M. No. 08-1-16-SC (22 January 2008).

89

See also the Writ of Amparo, discussed in relation to the Writ of Habeas Corpus.

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threats to respondents safety amounts to a violation of her right to privacy is at best speculative.

F. PRIVACY OF COMMUNICATIONS
Even without the explicit guarantee of the privacy of communications and correspondence in the
U.S. Constitution, the same privilege was still considered available, pursuant to the Fourth Amendment.90
This is because, wiretapping, or electronic eavesdropping, is also a form of a seizure, an intrusion into
ones sacred private precincts, which when not previously authorized by a judge, or demanded by
exigencies, would be considered unreasonable and thus violative of a persons right to be left and let
alone. Spying on a persons correspondence is also a form of unwarranted incursion into his private
world. It has likewise been held that this constitutional protection is available even in highly personal
relationships, such as in marital spats between Lothario-husbands and raging jealous wives.91
Related to privacy of communications is the Anti-Wiretapping Act (R.A. 4200) which the Court has
declared as prohibiting the secret recording of conversations either through wiretapping92 or tape
recorders. This means that whenever a recording is made of ones conversations, the same must be with
the knowledge and consent of everyone involved.93 However, this does not apply if the conversation is
not intended to be private, such as an altercation where the participants do not really care who are
listening.94 Also, overhearing by means of a telephone extension is not covered by R.A. No. 4200,
however, so held the Court in Gaanan v. Intermediate Appellate Court, 145 SCRA 112 1986). (But
nowadays, with the proliferation of cellphones, who still needs a telephone extension?)

G.

FREEDOM OF EXPRESSION

The right to freely speak ones mind is a highly valued freedom in a republican and democratic
society.95 If the people are really to be the source of power, and that sovereignty resides in them, then
they should rightfully determine the fate of the nation. But they can only do the same if they are free to
know and learn and to discuss matters unfettered by restrictions placed on them by the government. The
authorities are supposed to let the people decide what is good for them and the government, not the other
way around. If the government had its way, chances are it would only be allowing the free flow of
information that would be favorable to itself. In the process, it would be filtering and managing the news
and information that are to guide or influence the people in making their decisions. The interplay of
thought in the free and open market place of ideas provides the best means by which the interest of
society could be achieved, or so the philosophy of this freedom suggests. First Amendment freedoms
are most in danger when the government
seeksLaw
to control
thought or to justify its laws for that
Recoletos
Center
impermissible end. The right to think is the beginning of freedom, and speech must be protected from
the government because speech is theBar
beginning
of thought.
Review
2012 96 Parenthetically, the press is at the
forefront of expression, for without it dissemination could hardly be had.The best gauge of a free and

90

See Katz v. United States, 389 U.S. 347 (1967)

91

Zulueta v. Court of Appeals, 253 SCRA 699 (1996)

92

Salcedo-Ortaez v. Court of Appeals, 235 SCRA 111 (1994)

93

AAppeals,
Library
Of Liberties
Ramirez v. Court of
248 SCRA
590 (1995)

94

Navarro v. Court of Appeals, 313 SCRA 153 (1999)

vis--vis An Arsenal Of Arms

95

Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights. (Lopez v. People, 642 SCRA 668 [2011])

96

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

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democratic society rests in the degree of freedom enjoyed by its media.97 Without the mass media to
broadcast and propagate a persons ideas or speech, it would be more like flowers born to blush unseen,
wasting their sweetness in the desert air.98
In keeping with the underlying rationale for the freedom, this guarantee basically prohibits the State
from exercising prior restraint or censorship. If the people are to decide, they must be allowed access
to all available ideas and information, and not simply be given a sanitized version. At the same time, the
freedom also means a corresponding check on subsequent punishment. Otherwise, freedom to speak
unhindered may become a trap if a punishment so eagerly awaits a few steps away. Thus, only those
which are clearly outside the scope of free expression may be subject to sanctions. In this regard, there
is the concept of privileged communications which exempts the person communicating from
prosecution. And here, it has been said that the enumeration under Art. 354 of the Revised Penal Code
is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of
public interest are likewise privileged. The rule on privileged communications had its genesis not in the
nations penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of
the press.99 It has also been held that the civic duty to see to it that public duty is discharged faithfully
is inconsistent with requirements placing on citizens the burden of proving good motives and justifiable
ends in airing their plaints, comments or criticisms.100
Indeed, a government that is not afraid of its own shadow should have no problem dealing with
peoples plaints. One that sees sinister plots in every group action, one that gives strange meanings to
ordinary words, one which employs force to prevent people from knowing about skeletons in the closets
may soon be hiding real skeletons if not checked at the earliest opportunity. More than a hundred years
ago, it was observed: It may be that it is the obnoxious thing in its mildest and least repulsive form; but
illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches
and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule
that constitutional provisions for the security of person and property should be liberally construed. A
close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of
the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon.101 Or, in the words
of Justice Black, dissenting in Board of Education v. Allen, it nearly is always by insidious approaches
that the citadels of liberty are most successfully attacked.102
Do we really know how to learn from the past?103 Or is it much easier to go along with our indolent
and careless ways to follow the path of least resistance, confident in our own safety and welfare, until
we realize we are already at the edge of the precipice, needing only a slight push or whiff of air to send
us plummeting into the abyss?

Recoletos Law Center

Estrada v. Sandiganbayan, 369 SCRA 394 (2001), discussed the concepts of facial challenge and
Bar Review
overbreadth, explaining that a facial challenge
is allowed 2012
to be made to a vague statute and to one which
is overbroad because of possible chilling effect upon protected speech. The theory is that [w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for

97

David v. Macapagal-Arroyo, 489 SCRA 160 (2006)

98

See Thomas Grays Elegy Written on a Country Churchyard

99

Borjal v. Court of Appeals, 301 SCRA 1 (1999)

100

Liberties
Vasquez v. CourtA
of Library
Appeals, 314Of
SCRA
460 (1999)

101

Boyd v. United States, 116 U.S. 616 (1886)

102

392 U.S. 236 (1968), citing Boyd.

103

Those who cannot remember the past are condemned to repeat it.

vis--vis An Arsenal Of Arms

S George Santayana

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rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement
that the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity. The possible harm to society in permitting some unprotected speech to
go unpunished is outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of the inhibitory effects of overly broad statutes. David v.
Macapagal-Arroyo, 489 SCRA 160 (2006), also spoke of such concepts. [T]he overbreadth doctrine
is an analytical tool developed for testing on their faces statutes in free speech cases, also known under
the American Law as First Amendment cases. The Court also noted: Moreover, the overbreadth
doctrine is not intended for testing the validity of a law that reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally unprotected conduct. Undoubtedly,
lawless violence, insurrection and rebellion are considered harmful and constitutionally unprotected
conduct. . . . Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words and again, that overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct. . . . [F]acial invalidation of laws is considered as manifestly strong
medicine, to be used sparingly and only as a last resort, and is generally disfavored; The reason
for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the
principle that a person to whom a law may be applied will not be heard to challenge a law on the ground
that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the
Court.
Assembly is also a form of expression. In this regard, the pronouncements of the Court in David v.
Macapagal-Arroyo, are also enlightening. The Court said: Assembly means a right on the part of the
citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of
our republican institution and complements the right of speech. As in the case of freedom of expression,
this right is not to be limited, much less denied, except on a showing of a clear and present danger of
a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not
be conditioned upon the prior issuance of a permit or authorization from the government authorities
except, of course, if the assembly is intended to be held in a public place, a permit for the use of such
place, and not for the assembly itself, may be validly required. The ringing truth here is that petitioner
David, et al. were arrested while they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present danger that warranted the
limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition and
violation of BP 880 were mere afterthought.
Even the
Solicitor
General, during the oral argument, failed
Recoletos
Law
Center
to justify the arresting officers conduct. In De Jonge v. Oregon, it was held that peaceable assembly
cannot be made a crime, . . .
Bar Review 2012
1. Chavez v. Gonzalez, 545 SCRA 441 (2008)

There simply are certain memories, certain faces, certain sounds which do not just fade into oblivion.
Such, apparently is the fate of the Hello, Garci Tapes. Even as that incident may be consciously sought
to be shoved into the dustbins of history, it just keeps on lingering in the subconscious years later.
A Library Of Liberties vis--vis An Arsenal Of Arms
The issue here is about the press pronouncements of the Secretary of Justice and the National
Telecommunications Commission warning about the adverse consequences that may be visited on those
who would air the tapes, such as possible criminal prosecution under the Anti-Wiretapping Act (R.A.

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No. 4200). Chavez, a non-broadcast practitioner, challenged the validity of said official actuations,
claiming that they constituted prior restraint. The Court observed: This presents a unique tinge to the
present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech
never had any issue of whether the governmental act or issuance actually constituted prior restraint.
Rather, the determinations were always about whether the restraint was justified by the Constitution.
With that, the Court, through the pen of the Chief Justice himself, practically got into an elucidating
lecture on the great importance of the freedom of the speech and of the press, such as the following legal
tidbits:

To be truly meaningful, freedom of speech and of the press should allow and even encourage
the articulation of the unorthodox view, though it be hostile to or derided by others; or though
such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger.

The protection afforded free speech extends to speech or publications that are entertaining as
well as instructive or informative. Further, [w]hile all forms of communication are entitled to
the broad protection of freedom of expression clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and
other print media, . . .

[A]ll speech are not treated the same. Some types of speech may be subjected to some
regulation by the State under its pervasive police power, in order that it may not be injurious to
the equal right of others or those of the community or society. The difference in treatment is
expected because the relevant interests of one type of speech, e.g., political speech, may vary
from those of another, e.g., obscene speech. Distinctions have therefore been made in the
treatment, analysis, and evaluation of the permissible scope of restrictions on various categories
of speech. We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene
speech, as well as fighting words are not entitled to constitutional protection and may be
penalized.

On Press Freedom: It is the chief source of information on current affairs. It is the most
pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument
by which citizens keep their government informed of their needs, their aspirations and their
grievances. It is the sharpest weapon in the fight to keep government responsible and efficient.
Without a vigilant press, the mistakes of every administration would go uncorrected and its
abuses unexposed.

Four Aspects of Press Freedom: (1) freedom from prior restraint h (2) freedom from
Recoletos Law Center
punishment subsequent to publication h (3) freedom of access to information h (4) freedom of
circulation
Bar Review 2012

Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior restraint is
largely freedom from government censorship of publications, whatever the form of censorship,
and regardless of whether it is wielded by the executive, legislative or judicial branch of the
government. . . . Any law or official that requires some form of permission to be had before
publication A
canLibrary
be made,Of
commits
an infringement
of Arsenal
the constitutional
right, and remedy can
Liberties
vis--vis An
Of Arms
be had at the courts.

Given that deeply ensconced in our fundamental law is the hostility against all prior restraints

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on speech, and any act that restrains speech is presumed invalid, and any act that restrains
speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows,
it is important to stress not all prior restraints on speech are invalid.

Content-Neutral Regulation v. Content-Based Restraint or Censorship: In content-neutral


regulations, substantial governmental interest is required for their validity, and they are not
subject to the strictest form of judicial scrutiny but an intermediate approach somewhere
between the mere rationality that is required of any other law and the compelling interest
standard applied to content-based restrictions. As for content-based restrictions, they are given
the strictest scrutiny in light of their inherent and invasive impact. Thus, when the prior
restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A
content-based regulation, however, bears a heavy presumption of invalidity and is measured
against the clear and present danger rule. The latter will pass constitutional muster only if
justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague.

Dichotomy of Free Press: Print v. Broadcast Media: The regimes presently in place for each
type of media differ from one other. Contrasted with the regime in respect of books,
newspapers, magazines and traditional printed matter, broadcasting, film and video have been
subjected to regulatory schemes. And what is the basis for the difference in treatment? The
dichotomy between print and broadcast media traces its origins in the United States. There,
broadcast radio and television have been held to have limited First Amendment protection, and
U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard
that they would otherwise apply to content-based restrictions. According to U.S. Courts, the
three major reasons why broadcast media stands apart from print media are: (a) the scarcity of
the frequencies by which the medium operates [i.e., airwaves are physically limited while print
medium may be limitless]; (b) its pervasiveness as a medium; and (c) its unique accessibility
to children.

Modern Amenities and Changing Legal Landscape: Historically, the scarcity of frequencies
was thought to provide a rationale. However, cable and satellite television have enormously
increased the number of actual and potential channels. Digital technology will further increase
the number of channels available. But still, the argument persists that broadcasting is the most
influential means of communication, since it comes into the home, and so much time is spent
watching television. Since it has a unique impact on people and affects children in a way that the
print media normally does not, that regulation is said to be necessary in order to preserve
pluralism. It has been argued further that a significant main threat to free expressionin terms
of diversitycomes not Recoletos
from government,
from private corporate bodies. These
Lawbut
Center
developments show a need for a reexamination of the traditional notions of the scope and extent
of broadcast media regulation.Bar
The Review
emergence of
digital technology which has led to the
2012
convergence of broadcasting, telecommunications and the computer industry has likewise led
to the question of whether the regulatory model for broadcasting will continue to be appropriate
in the converged environment. Internet, for example, remains largely unregulated, yet the Internet
and the broadcast media share similarities, and the rationales used to support broadcast
regulation apply equally to the Internet.

After those excursions


into the
andvis--vis
exoterics of
press
freedom,
about the merits of the
A Library
Ofesoterics
Liberties
An
Arsenal
Ofwhat
Arms
case itself? The records of the case at bar, however, are confused and confusing, and respondents
evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the
Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the

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taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed
to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents
on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes
different versions. The identity of the wire-tappers, the manner of its commission and other related and
relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the
tape, it is even arguable whether its airing would violate the anti-wiretapping law.
Is the possibility of violation of a law enough basis for restraints to be placed on the communication
of worthwhile news? It depends, but generally that should not be the case. In any event, one has to look
at the totality of the picture. We rule that not every violation of a law will justify straitjacketing the
exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some
of them provide norms of conduct which even if violated have only an adverse effect on a persons
private comfort but does not endanger national security. There are laws of great significance but their
violation, by itself and without more, cannot support suppression of free speech and free press. In fine,
violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether
to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to
private and public interest must be calibrated in light of the preferred status accorded by the Constitution
and by related international covenants protecting freedom of speech and of the press. . . . But to repeat,
the need to prevent their violation cannot per se trump the exercise of free speech and free press,
a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to
offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise
of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law
clearly endangers the national security of the State.
By the way, does it not matter that there were no official or formal issuances but just press releases?
[I]t is not decisive that the press statements made by respondents were not reduced in or followed
up with formal orders or circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made
his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of
media. Any act done, such as a speech uttered, for and on behalf of the government in an official
capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to
acts already converted to a formal order or official circular.
Ahh, the Chilling Effect Principle. There is enough evidence of chilling effect of the complained
acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can
cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary
of Justice, the alter ego of the Executive,
who wields
the awesome
Recoletos
Law
Centerpower to prosecute those perceived
to be violating the laws of the land.

Bar
2012
Justice Carpio, concurring, came up
withReview
interesting observations
and pronouncements, such as:

Protected and Unprotected Expression Expression not subject to prior restraint is protected
expression or high-value expression. Any content-based prior restraint on protected expression
is unconstitutional without exception. A protected expression means what it says it is
absolutely protected from censorship.

Exceptions A
to the
general
that therevis--vis
should be An
no prior
restraint
speech: (1) Pornography
Library
Ofrule
Liberties
Arsenal
Ofon
Arms
104
h (2) False or Misleading Advertisement h (3) Advocacy of Imminent Lawless Action h (4)

104

This Court recognized false or misleading advertisement as unprotected expression only in October 2007. (See separate
concurring opinion of C.J. Puno in Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535 SCRA 265 [2007])

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Danger to National Security

Expression that may be subject to prior restraint is unprotected expression or low-value


expression. By definition, prior restraint on unprotected expression is content-based since the
restraint is imposed because of the content itself.

Only unprotected expression may be subject to prior restraint. However, any such prior
restraint on unprotected expression must hurdle a high barrier. First, such prior restraint is
presumed unconstitutional. Second, the government bears a heavy burden of proving the
constitutionality of the prior restraint. Thus, Courts will subject to strict scrutiny any
government action imposing prior restraint on unprotected expression. The government action
will be sustained if there is a compelling State interest, and prior restraint is necessary to protect
such State interest. In such a case, the prior restraint shall be narrowly drawn only to the extent
necessary to protect or attain the compelling State interest.

Prior Restraint and Subsequent Punishment: While there can be no prior restraint on
protected expression, such expression may be subject to subsequent punishment, either civilly
or criminally.

Hierarchy of Speech: If ever there is a hierarchy of protected expressions, political expression


would occupy the highest rank, and among different kinds of political expression, the subject of
fair and honest elections would be at the top.

Garci Tapes and Privacy Rights: The airing of the Garci Tapes does not violate the right to
privacy because the content of the Garci Tapes is a matter of important public concern. The
Constitution guarantees the peoples right to information on matters of public concern. The
remedy of any person aggrieved by the public airing of the Garci Tapes is to file a complaint for
violation of the Anti-Wiretapping Law after the commission of the crime. Subsequent
punishment, absent a lawful defense, is the remedy available in case of violation of the
Anti-Wiretapping Law.

Prior Restraint and Judicial Determination: Any order imposing prior restraint on
unprotected expression requires prior adjudication by the courts on whether the prior restraint
is constitutional. This is a necessary consequence from the presumption of invalidity of any prior
restraint on unprotected expression. Unless ruled by the courts as a valid prior restraint,
government agencies cannot implement outright such prior restraint because such restraint is
presumed unconstitutional at inception.

Recoletos Law Center

2. Soriano v. Laguardia, 587 SCRA 79 (2009) and 615 SCRA 254 (2010)
Whether under the guarantee of freedom of speech or religious freedom, foul language uttered in a
2012
broadcast that is for general viewershipBar
couldReview
not be tolerated.
The Court observed: [T]he limits of the
freedom of expression are reached when the expression touches upon matters of essentially private
concern. In the oft-quoted expression of Justice Holmes, the constitutional guarantee obviously was not
intended to give immunity for every possible use of language. On the religious side, the Court said:
Plain and simple insults directed at another person cannot be elevated to the status of religious speech.
Foul language used in retaliation against persons espousing another religious view is not converted into
religious speech. We
cannot accept
that petitioner
made his
statements
defense
A Library
Of Liberties
vis--vis
An
ArsenalinOf
Armsof his reputation and
religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival
religious group. They simply illustrate that petitioner had descended to the level of name-calling and
foul-language discourse. Petitioner could have chosen to contradict and disprove his detractors, but opted

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for the low road.


As a reminder for everyone, the Court stated: It has been established in this jurisdiction that
unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false
or misleading advertisement, insulting or fighting words, i.e., those which by their very utterance inflict
injury or tend to incite an immediate breach of peace and expression endangering national security. The
Court finds that petitioners statement can be treated as obscene, at least with respect to the average
child. Hence, it is, in that context, unprotected speech.
And, speaking of the need see and hear in proper perspectives, the Court said: Following the
contextual lessons of the cited case of Miller v. California, a patently offensive utterance would come
within the pale of the term obscenity should it appeal to the prurient interest of an average listener
applying contemporary standards. A cursory examination of the utterances complained of and the
circumstances of the case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol
ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay
Michael ang gumagana ang itaas, o di ba! may not constitute obscene but merely indecent utterances.
They can be viewed as figures of speech or merely a play on words. In the context they were used, they
may not appeal to the prurient interests of an adult. The problem with the challenged statements is that
they were uttered in a TV program that is rated G or for general viewership, and in a time slot that
would likely reach even the eyes and ears of children. Accordingly, [w]hile adults may have
understood that the terms thus used were not to be taken literally, children could hardly be expected to
have the same discernment. Without parental guidance, the unbridled use of such language as that of
petitioner in a television broadcast could corrupt impressionable young minds. The term putang babae
means a female prostitute, a term wholly inappropriate for children, who could look it up in a
dictionary and just get the literal meaning, missing the context within which it was used. . . . In this
particular case, where children had the opportunity to hear petitioners words, when speaking of the
average person in the test for obscenity, we are speaking of the average child, not the average adult. The
average child may not have the adults grasp of figures of speech, and may lack the understanding that
language may be colorful, and words may convey more than the literal meaning. Undeniably the subject
speech is very suggestive of a female sexual organ and its function as such. In this sense, we find
petitioners utterances obscene and not entitled to protection under the umbrella of freedom of speech.
. . . With respect to the young minds, said utterances are to be treated as unprotected speech.
With regard to matters of first impression, the Court noted that while a jurisprudential pattern
involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably
one of first impression, it being the first time that indecent speech communicated via television and the
applicable norm for its regulation are, in this jurisdiction, made the focal point.

Recoletos Law Center

What test then should be used in matters like this? To be sure, the clear and present danger doctrine
Bar by
Review
is not the only test which has been applied
the courts.2012
Generally, said doctrine is applied to cases
involving the overthrow of the government and even other evils which do not clearly undermine national
security. Since not all evils can be measured in terms of proximity and degree the Court, however, in
several cases . . . applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in
Gonzales v. COMELEC, elucidated in his Separate Opinion that where the legislation under
constitutional attack interferes with the freedom of speech and assembly in a more generalized way and
where the effect of the
speech and
in terms
of the An
probability
of realization
A Library
Ofassembly
Liberties
vis--vis
Arsenal
Of Arms of a specific danger
is not susceptible even of impressionistic calculation, then the balancing of interests test can be
applied. The Court further explained that [t]his balancing of interest test, to borrow from Professor
Kauper, rests on the theory that it is the courts function in a case before it when it finds public interests

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served by legislation, on the one hand, and the free expression clause affected by it, on the other, to
balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on
balance, it appears that the public interest served by restrictive legislation is of such nature that it
outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the
balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those
stated in the free speech and expression clause, and that they may be abridged to some extent to serve
appropriate and important interests. To the mind of the Court, the balancing of interest doctrine is the
more appropriate test to follow. Accordingly, the governments interest to protect and promote the
interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint
on petitioners prayer to continue as program host of Ang Dating Daan during the suspension period.
And, for imagery, hows this? One who utters indecent, insulting, or offensive words on television
when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the parlor.
Public interest would be served if the pig is reasonably restrained or even removed from the parlor.
Ergo, petitioners offensive and indecent language can be subjected to prior restraint.
Further, would not the suspension of three months imposed on petitioner be prior restraint? No, the
Court explained that it was an administrative sanction or subsequent punishment. To clarify, statutes
imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the
freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast
censorship in view of its access to numerous people, including the young who must be insulated from
the prejudicial effects of unprotected speech. In this regard, all broadcast networks are regulated by the
MTRCB since they are required to get a permit before they air their television programs. Consequently,
their right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by
Justice Dante O. Tinga, government regulations through the MTRCB became a necessary evil with the
government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly
agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as
competing broadcasters will interfere or co-opt each others signals. In this scheme, station owners and
broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio
and television programs and impliedly agreed that said right may be subject to prior restraint denial
of permit or subsequent punishment, like suspension or cancellation of permit, among others. In short,
the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not
constitute forbidden censorship.
Finally, the Court highlighted the difference between the speaker and the medium when it comes to
the imposition of sanctions. But even as we uphold the power of the MTRCB to review and impose
sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere
Recoletos Law Center
in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative
Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to
Bar Review 2012
prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit the
broadcast of such television programs or cancel permits for exhibition, but it may not suspend television
personalities, for such would be beyond its jurisdiction. In other words, the program may be suspended,
but not the speaker himself.

On motion for reconsideration, one new aspect was put forward. What if the program had been
shown at a time a A
sort
of a safe
when
childrenAn
areArsenal
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to be
watching, would it have
Library
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Arms
made a difference? The Court said: The so-called safe harbor of 10:00 p.m. to 6:00 a.m., adverted to
in Action for Childrens Television [v. Federal Communications Commission, 58 F.3d 654 (1995)] as
the time wherein broadcast of indecent material may be permitted, is believed inapplicable here. As it

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were, there is no legislative enactment or executive issuance setting a similar period in the Philippines
wherein indecent material may be broadcast. Rather than fix a period for allowing indecent
programming, what is used in this jurisdiction is the system of classification of television programs,
which the petitioner violated. His program was rated G, purported to be suitable for all ages. We cannot
lose sight of the violation of his programs classification that carried with it the producers implied
assurance that the program did not contain anything unsuitable for children and minors. The hour at
which it was broadcasted was of little moment in light of the guarantee that the program was safe for
childrens viewing.
3. Pleasant Grove City v. Summum, 555 U.S. ___ (2009)
The U.S. Supreme Court presented the gist of the case in this way: This case presents the question
whether the Free Speech Clause of the First Amendment entitles a private group to insist that a
municipality permit it to place a permanent monument in a city park in which other donated monuments
were previously erected. The Court of Appeals held that the municipality was required to accept the
monument because a public park is a traditional public forum. We conclude, however, that although a
park is a traditional public forum for speeches and other transitory expressive acts, the display of a
permanent monument in a public park is not a form of expression to which forum analysis applies.
Instead, the placement of a permanent monument in a public park is best viewed as a form of
government speech and is therefore not subject to scrutiny under the Free Speech Clause.
With regard to the application of the freedom of speech to the government itself, the Court said: The
Free Speech Clause restricts government regulation of private speech; it does not regulate government
speech. . . . ([T]he Government's own speech . . . is exempt from First Amendment scrutiny) . . . .
(Government is not restrained by the First Amendment from controlling its own expression).
4. Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535 SCRA 265
(2007)
In his concurring opinion, Chief Justice Puno, said: I write to elucidate another reason why the
absolute ban on the advertising and promotion of breastmilk substitutes found under Sections 4(f) and
11 of A.O. No. 2006-0012 (RIRR) should be struck down. The advertising and promotion of breastmilk
substitutes properly falls within the ambit of the term commercial speech that is, speech that proposes
an economic transaction. This is a separate category of speech which is not accorded the same level of
protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection. Any parameters for commercial speech protection? Well, yes. C.J. Puno made
reference to the four-part analysis of Central Hudson Gas & Electric v. Public Service Commission, 447
U.S. 557 (1980): To begin with, the
commercialLaw
speechCenter
must concern lawful activity and not be
Recoletos
misleading if it is to be protected under the First Amendment. Next, the asserted governmental
interest must be substantial. If both ofBar
theseReview
requirements
are met, it must next be determined whether
2012
the state regulation directly advances the government interest asserted, and whether it is not more
extensive than is necessary to serve the interest. So what would all these lead to? I proffer the
humble view that the absolute ban on advertising prescribed under Sections 4(f) and 11 of the RIRR
is unduly restrictive and is more than necessary to further the avowed governmental interest of
promoting the health of infants and young children. It ought to be self-evident, for instance, that the
advertisement of such products which are strictly informative cuts too deep on free speech. The laudable
A Library
Ofpromotion
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Arms
concern of the respondent
for the
the health An
of infants
and Of
young
children cannot justify
105
the absolute, overarching ban.

105

In his separate opinion in Chavez v. Gonzales, 545 SCRA 441 (2008), Justice Carpio, referring to Pharmaceutical and Health

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5. Integrated Bar of the Philippines v. Atienza, 613 SCRA 518 (2010)


In Bayan v. Ermita, 488 SCRA 226 (2006), the Court spoke of the right to peaceable assembly in
this way: The first point to mark is that the right to peaceably assemble and petition for redress of
grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys
primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. At the
same time, though, it recognized the validity of the law Public Assembly Act of 1985 (B.P. 880)
providing for guidelines in the conduct of rallies and other mass actions. B.P. 880 provides a restriction
that simply regulates the time, place and manner of the assemblies it does not impose an absolute ban
on public assemblies. This set of regulations included the need to obtain a permit from the local chief
executive, which may only be denied on ground of clear and present danger to public order, public
safety, public convenience, public morals or public health.
In Integrated Bar of the Philippines, the issue is whether the mayor could unilaterally specify a place
other than the one indicated by the applicants for the public assembly? No, he cannot without an
acceptable basis. Here, the Court ruled that the mayor, in modifying the permit outright, gravely abused
his discretion, specially so as he did not immediately inform the applicants who 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. The opportunity to be heard precedes the action on the permit, since the
applicant may directly go to court after an unfavorable action on the permit. Respondent 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, it bears repeating, 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 thereof. It is true that the licensing official, here respondent Mayor, is not devoid
of discretion in determining whether or not a permit would be granted. It is not, however, unfettered
discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but
of what may probably occur, given all the relevant circumstances, still the assumption especially so
where the assembly is scheduled for a specific public place is that the permit must be for the assembly
being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be abridged on the plea that it may be exercised in some other
place. Notably, respondent failed to indicate in his Comment any basis or explanation for his action.
It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that was
slated for a specific public place.
Related to the foregoing is the holding of the Court in David v. Macapagal-Arroyo, 489 SCRA 160
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(2006), that wholesale cancellation of all permits to rally is a blatant disregard of the principle that
freedom of assembly is not to be limited,
much less denied,
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2012 except on a showing of a clear and
present danger of a substantive evil that the State has a right to prevent. Tolerance is the rule and
limitation is the exception. . . . With the blanket revocation of permits, the distinction between protected
and unprotected assemblies was eliminated.

6. Japan Airlines v. Simangan, 552 SCRA 341 (2008)

Can a passenger who had been unceremoniously bumped off by an airline be held liable for the injury
A Library
Ofthe
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Of Arms
that might have been
caused to
reputation
of the airline
as a result
of the publication of the
Care Association, pointed out that the Court recognized false or misleading advertisement as unprotected expression only in October
2007.

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passengers grievance? Here, the passenger who was already seated inside the plane was told to
disembark because the airline personnel doubted the validity of his travel papers. He then filed a
complaint against the airline for breach of contract of carriage. The airline, counterclaimed for damages.
JAL is a common carrier. JALs business is mainly with the traveling public. It invites people to
avail themselves of the comforts and advantages it offers. Since JAL deals with the public, its bumping
off of respondent without a valid reason naturally drew public attention and generated a public issue. The
publications involved matters about which the public has the right to be informed because they relate
to a public issue. This public issue or concern is a legitimate topic of a public comment that may be
validly published. Assuming that respondent, indeed, caused the publication of his complaint, he may
not be held liable for damages for it. The constitutional guarantee of freedom of the speech and of the
press includes fair commentaries on matters of public interest.
The Court further said that [e]ven though JAL is not a public official, the rule on privileged
commentaries on matters of public interest applies to it. The privilege applies not only to public officials
but extends to a great variety of subjects, and includes matters of public concern, public men, and
candidates for office. Hence, pursuant to the Borjal case, there must be an actual malice in order that a
discreditable imputation to a public person in his public capacity or to a public official may be
actionable. . . . Considering that the published articles involve matters of public interest and that its
expressed opinion is not malicious but based on established facts, the imputations against JAL are not
actionable. Therefore, JAL may not claim damages for them.
7. Re: Letter of the UP Law Faculty Entitled Restoring Integrity: A Statement by the Faculty
of the University of the Philippines College of Law on the Allegations of Plagiarism and
Misrepresentation in the Supreme Court, 644 SCRA 543 (2011)
May members of a faculty of a College of Law invoke the guarantee of freedom of expression and
academic freedom to shield themselves from any possible disciplinary proceedings against them for
having come up with a public statement which the Court took to be disrespectful and contemptuous? The
Court said no, saying that the legal reasoning used in the past by this Court to rule that freedom of
expression is not a defense in administrative cases against lawyers for using intemperate speech in open
court or in court submissions can similarly be applied to invocation of academic freedom. The Court also
pointed out that a reading of the Show Cause Resolution will plainly show that it was neither the fact
that respondents had criticized a decision of the Court nor that they had charged one of its members of
plagiarism that motivated the said Resolution it was the manner of the criticism and the contumacious
language by which respondents, who are not parties nor counsels in a pending case have expressed their
opinion in favor of the petitioners in said pending case. The right to criticize the courts and judicial
officers must be balanced against the
equally primordial
that the independence of the Judiciary
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Center
be protected from due influence or interference.

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The Court further reminded the respondents and everybody else that freedom of expression is not
an absolute there are other societal values that press for recognition, and one such societal value that
presses for recognition in the case at bar is the threat to judicial independence and the orderly
administration of justice that immoderate, reckless and unfair attacks on judicial decisions and
institutions pose. The constitutional right to freedom of expression of members of the Bar may be
circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the
Library
Of Liberties
vis--vis
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publics faith in theAlegal
profession
and the justice
system.

And, with higher standing in the community, as an educator, for instance, comes greater
responsibility, the Court declaring that the reason that freedom of expression may be so delimited in the

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case of lawyers applies with greater force to the academic freedom of law professors. When the criticism
comes from persons outside the profession who may not have a full grasp of legal issues or from
individuals whose personal or other interests in making the criticism are obvious, the Court may perhaps
tolerate or ignore them, but when law professors are the ones who appear to have lost sight of the
boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, the
Court cannot remain silent for such silence would have a grave implication on legal education in the
country. The Court failed to see how it can ennoble the profession if it allowed respondents to send a
signal to their students that the only way to effectively plead their cases and persuade others to their point
of view is to be offensive the mark of the true intellectual is one who can express his opinions logically
and soberly without resort to exaggerated rhetoric and unproductive recriminations.
Further, it was pointed out that lawyers, when they teach law, are considered engaged in the practice
of law their actions as law professors must be measured against the same canons of professional
responsibility applicable to acts of members of the Bar as the fact of their being law professors is
inextricably entwined with the fact that they are lawyers.

H.

FREEDOM OF RELIGION

A mans relationship with his idea of a deity or a Supreme Being is something which the State is not
supposed to interfere with. Nor is it really competent to deal with it. Like matters of thought, concerns
about conscience and belief are a mans own business. In any case, it is hardly possible for a worldly
institution that the government is to try to interest itself in spiritual matters. Religion is a matter of faith
and belief, not of scientific fact and verification. And, getting into the act on religious matters could
hardly be beneficial to anyone, either for the government itself or for any particular religion. Lessons
from the past have made any such unions disastrous and counterproductive.
Freedom of religion guarantees complete freedom to believe without any interference from the State.
The right to act, or to translate that belief into action, however, may be subject to certain regulations
consistent with the mandate of the State to promote the welfare of everyone and to provide for an orderly
society. Nevertheless, this right on the part of the government is not to be lightly assumed, as it must
have to be weighed carefully with any religion-grounded freedom or interest that may be interfered with.
In Estrada v. Escritor, 408 SCRA 1 (2003), the Court noted that in the Philippines we adopt a policy
of benevolent neutrality which allows for accommodation of religious practices and morality, and that
an act or practice grounded on religious freedom may only be overcome by a compelling state interest.
Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the
Recoletos
Law Center
same time strives to uphold religious
liberty to the greatest
extent possible within flexible constitutional
limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow
Review
for accommodation of morality based onBar
religion,
provided2012
it does not offend compelling state interests.
In the final decision on the case, Estrada v. Escritor, 492 SCRA 1 (2006), the Court then went on to
allow a court interpreter to continue with her conjugal arrangement with a married man not her husband,
since the same was sanctioned by her religion and there was no compelling state interest that would have
warranted overriding her religion-grounded practice we find that in this particular case and under
these distinct circumstances, respondent Escritors conjugal arrangement cannot be penalized as she
has made out a caseA
forLibrary
exemption
the lawvis--vis
based on her
right
to freedom of religion.
Offrom
Liberties
Anfundamental
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I. FREEDOM OF MOVEMENT
Man is a peripatetic being. He keeps moving about. He would likely develop bedsores and other
maladies if he simply stayed in one place. In any case, being able to move about and go to other places
could have an informative and educative benefit, aside from the mere pleasure of going to places and
seeing sights other than the same old boring commonplace views. And, for the purpose of going places,
even as he cannot run like cheetahs, fly like birds, or swim like fishes, he might as well approximate the
same by building vehicles by which he can.
And, talking of contemporary events, seen in light of the ease with which men and women move and
fly across boundaries, the implications of trans-national illnesses might as well be factored in the
calculus. With the swine flu concerns, could one just be irresponsible in his travels?
Also, just because you have a vehicle by which you can move about does not necessarily mean that
you can use it anywhere and everywhere. You can not insist on using a tricycle to traverse the
expressways. In this regard, the following lines from Mirasol v. Department of Public Works and
Highways, 490 SCRA 318 (2006), may enlighten. A toll way is not an ordinary road. As a facility
designed to promote the fastest access to certain destinations, its use, operation, and maintenance require
close regulation. Public interest and safety require the imposition of certain restrictions on toll ways that
do not apply to ordinary roads. As a special kind of road, it is but reasonable that not all forms of
transport could use it.
And, of course, this particular guarantee was at the center of the controversy involving the former
President, the incumbent President, the Supreme Court and the impeachment of the Chief Justice.

J. RIGHT TO INFORMATION
Corollary to the right to express oneself freely is the right to be informed on matters which concern
himself and the rest of the body politic. If the people are to make meaningful contributions to their
governance, then they must know what is happening inside and outside the halls of government.
Basic to this right to be informed is the necessity for laws to be published in order to be effective.
It makes no sense presuming knowledge106 if the government itself has not made provisions for the
dissemination of statutes and regulations which affect the peoples lives and interests. And here, it must
not be lost sight of that not only laws but also administrative circulars which are not merely internal or
interpretative which must also be published.
On the need to balance the right
to know and
theCenter
governments need to keep certain things
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Law
confidential, the Court had this to say in Senate of the Philippines v. Ermita, 488 SCRA 1 (2006): A
transparent government is one of the hallmarks
of a truly2012
republican state. Even in the early history of
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republican thought, however, it has been recognized that the head of government may keep certain
information confidential in pursuit of the public interest. . . . History has been witness, however, to the
fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it
zealously. And in that spirit, it did the delicate balancing involving the invocation of executive privilege
and the power of legislative inquiry, with the concomitant right of the people to know as a consequence
of such hearings. It held: Executive privilege, whether asserted against Congress, the courts, or the
A Library Of Liberties vis--vis An Arsenal Of Arms
public, is recognized only in relation to certain types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the

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Ignorance of the law excuses no one from compliance therewith. (Art. 3, Civil Code)

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ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that
executive officials are exempt from the duty to disclose information by the mere fact of being executive
officials. Indeed, the extraordinary character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of disclosure. Then, noting the exceptional
and personal nature of Executive privilege, the Court found it essential to limit to the President the
power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive Secretary must state that the authority is By order
of the President, which means that he personally consulted with her. The privilege being an
extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to exercise such power.
How is peoples right to information implicated in all of these? E.O 464 is concerned only with the
demands of Congress for the appearance of executive officials in the hearings conducted by it, and not
with the demands of citizens for information pursuant to their right to information on matters of public
concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy
is not merely the legislative power of inquiry, but the right of the people to information. There are, it
bears noting, clear distinctions between the right of Congress to information which underlies the power
of inquiry and the right of the people to information on matters of public concern. . . . To the extent that
investigations in aid of legislation are generally conducted in public, however, any executive issuance
tending to unduly limit disclosures of information in such investigations necessarily deprives the people
of information which, being presumed to be in aid of legislation, is presumed to be a matter of public
concern. The citizens are thereby denied access to information which they can use in formulating their
own opinions on the matter before Congress opinions which they can then communicate to their
representatives and other government officials through the various legal means allowed by their freedom
of expression.107
Moreover, even as E.O. 464 applies only to officials of the executive branch, it does not follow that
the same is exempt from the need for publication. Since the subject matter of said executive issuance
is a matter of public interest which any member of the body politic may question in the political forums
or, if he is a proper party, even in courts of justice, logic dictates that the challenged order must be
covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right
of the people to information on matters of public concern. It is, therefore, a matter of public interest
which members of the body politic may question before this Court. Due process thus requires that the
people should have been apprised of this issuance before it was implemented.
With regard to judicial records, Hilado v. Reyes, 496 SCRA 282 (2006), teaches us that the term
judicial record or court record does not only refer to the orders, judgment or verdict of the courts
Recoletos Law Center
it comprises the official collection of all papers, exhibits and pleadings filed by the parties, all
processes issued and returns made thereon, appearances, and word-for-word testimony which took place
Bar Review 2012
during the trial and which are in the possession, custody, or control of the judiciary or of the courts for
purposes of rendering court decisions. The interest of the public hinges on its right to transparency in
the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial
proceedings, safeguard the integrity of the fact-finding process, and foster an informed public discussion

107

In Sabio v. Gordon, 504 SCRA 704 (2006), the Court said:

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[T]he conduct of inquiries
in aid of legislation
is not onlyvis--vis
intended to benefit
but also
citizenry. The people are equally
concerned with this proceeding and have the right to participate therein in order to protect their interests. The extent of their participation
will largely depend on the information gathered and made known to them. In other words, the right to information really 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 the government.

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of public affairs. Accordingly, justice requires that all should have free access to the opinions of judges
and justices, and it would be against sound public policy to prevent, suppress or keep the earliest
knowledge of these from the public. In fine, once a particular information has been determined to be of
public concern, the accessory right of access to official records, including judicial records, becomes
available. However, there is a difference, between court orders or judgments and the parties pleadings
and whatever may go with the same. Unlike court orders and decisions, pleadings and other documents
filed by parties to a case need not be matters of public concern or interest. Information regarding the
financial standing of a person at the time of his death and the manner by which his private estate may
ultimately be settled is not a matter of general, public concern or one in which a citizen or the public has
an interest by which its legal rights or liabilities may be affected. If the information sought is not a matter
of public concern or interest, denial of access thereto does not violate the constitutional right to
information.
Then, on privacy concerns, People v. Cabalquinto, 502 SCRA 419 (2006), comes to the fore. If one
were to wonder why AAA is so familiar a rape victim, it is because of the policy adopted by the Court
in Cabalquinto. It is normally the case that the names of the parties involved in a case, from the plaintiffs
to defendants, to accused and the victims, are identified in the reports of cases which are disseminated
for everyone to read. In Cabalquinto the Court adopted a new policy in regard to crimes involving
violence to women and their children. Taking into consideration the need to maintain the confidentiality
of information in cases involving violence against women and their children, the Court, starting with said
case, withheld the real name of the victim-survivor and used fictitious initials instead to represent her.
The Court further declared that, [l]ikewise, the personal circumstances of the victims-survivors or any
other information tending to establish or compromise their identities, as well those of their immediate
family or household members, shall not be disclosed. Subsequently, in People v. Rentoria, 533 SCRA
708 (2007), the Court also decreed that the exact addresses of the victims should be deleted. Thus, if you
now read initials that sound like battery sizes or advertisements comparing a named brand with their
competitors, you would understand why.
1. Neri v. Senate Committee on Public Accountability and Investigations (Blue Ribbon), 549
SCRA 77 (2008)
Following the pronouncements in Senate v. Ermita, this case of Neri puts to actual application what
were said in the former. Neri, in response to the Senate Committees demands that he answer three (3)
questions (1) whether the President followed up on the NBN project, (2) whether Neri was dictated
upon to prioritize ZTE, and, (3) whether the president said go ahead and approve the project after being
told about the bribe attempt by former COMELEC Chairman Benjamin Abalos invoked executive
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privilege, the Executive Secretary
advising the Law
SenateCenter
Committee of the same by order of the
President. In the meantime, on 6 March 2008, Memorandum Circular No. 151 revoked E.O. 464. Did
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2012
that affect the invocation of executiveBar
privilege?
No, it did
not in any way diminish our concept of
executive privilege. This is because this concept has Constitutional underpinnings.

On executive privilege itself, the Court distinguished between presidential communications


privilege and deliberative process privilege. Presidential communications privilege applies to
decision-making of the President while, the deliberative process privilege, to decision-making of
executive officials. The first is rooted in the constitutional principle of separation of power and the
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Presidents unique constitutional role; the second on common law privilege. Unlike the deliberative
process privilege, the presidential communications privilege applies to documents in their entirety,
and covers final and post-decisional materials as well as pre-deliberative ones. As a consequence,

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congressional or judicial negation of the presidential communications privilege is always subject to


greater scrutiny than denial of the deliberative process privilege. In this regard, the claim of
executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually
committed by the Constitution to the President, such as the area of military and foreign relations. Under
our Constitution, the President is the repository of the commander-in-chief, appointing, pardoning, and
diplomatic powers. Consistent with the doctrine of separation of powers, the information relating to
these powers may enjoy greater confidentiality than others.
So to what extent may legislative inquiries be allowed into matters that may be claimed to be within
executive privilege? The courts are enjoined to resolve the competing interests of the political branches
of the government in the manner that preserves the essential functions of each Branch. Here, the record
is bereft of any categorical explanation from respondent Committees to show a compelling or critical
need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more
towards the exercise of the legislative oversight function under Section 22 of Article VI rather than
Section 21 of the same Article. Senate v. Ermita ruled that the the oversight function of Congress may
be facilitated by compulsory process only to the extent that it is performed in pursuit of
legislation. It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and
an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the
content of the questions and the manner the inquiry is conducted.
And in relation to right of the people to information, the Court cautioned: The members of
respondent Committees should not invoke as justification in their exercise of power a right properly
belonging to the people in general. This is because when they discharge their power, they do so as public
officials and members of Congress.
2. Akbayan CitizensAction Party v. Aquino, 558 SCRA 468 (2008)
The Court reiterated here what it earlier held in an extended unpublished resolution in Peoples
Movement for Press Freedom (PMPF) v. Manglapus, G.R. No. 84642 (13 September 13, 1988) the
privileged character of diplomatic negotiations has been recognized in this jurisdiction. Here, what is
involved is the Japan-Philippine Economic Partnership Agreement (JPEPA). The Court held: Applying
the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not
be kept perpetually confidential since there should be ample opportunity for discussion before [a
treaty] is approved the offers exchanged by the parties during the negotiations continue to be
privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese
representatives submitted their offers with the understanding that historic confidentiality would
govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with
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Law
Center A ruling that Philippine offers in
Japan but with other foreign governments
in future
negotiations.
treaty negotiations should now be open to public scrutiny would discourage future Philippine
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2012
representatives from frankly expressing
theirReview
views during
negotiations. While, on first impression, it
appears wise to deter Philippine representatives from entering into compromises, it bears noting that
treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and
oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in
order to obtain more favorable terms in an area of greater national interest. Nevertheless, the
Court added that such privilege is only presumptive. The Court also noted that the ruling in PMPF v.
Manglapus is grounded
more Of
on Liberties
the naturevis--vis
of treaty An
negotiations
than on a particular
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socio-political school of thought.

It was also noted that [t]he diplomatic negotiations privilege bears a close resemblance to the

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deliberative process and presidential communications privilege. It may be readily perceived that the
rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential
communications is similar, if not identical. The privilege for diplomatic negotiations is meant to
encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such
negotiations from public view. Similar to the privilege for presidential communications, the diplomatic
negotiations privilege seeks, through the same means, to protect the independence in decision-making
of the President, particularly in its capacity as the sole organ of the nation in its external relations, and
its sole representative with foreign nations. And, as with the deliberative process privilege, the privilege
accorded to diplomatic negotiations arises, not on account of the content of the information per se, but
because the information is part of a process of deliberation which, in pursuit of the public interest, must
be presumed confidential. Clearly, the privilege accorded to diplomatic negotiations follows as a
logical consequence from the privileged character of the deliberative process.
3. Macapagal-Arroyo v. De Lima, SCRA (G.R. Nos. 199034 and 199046, 13 December 2011)
In this case involving a Temporary Restraining Order issued by the Court against the implementation
of DOJ Circular No. 49 which provided for the issuance of Watch List Orders, the Court suddenly came
out disclosing in public their bickering behind the confines of the Court walls. The TRO was in favor
of GMA and Mike Arroyo, but subject to three (3) conditions: (a) posting of P
=2,000,000.00 bond, (b)
appointment of a legal representative common to both of them who shall receive subpoena, orders and
other legal processes on their behalf, (c) notification of the Philippine embassies or consulates in the
foreign countries they may traveling to. The bond was immediately posted but SPA that was filed
authorized the legal representative to produce not to receive summons and other processes. This then
led to further deliberations by the Court as to whether TRO was complied with, and whether it was
suspended if there was failure to comply. By 7-6,108 the majority held that there was failure to comply,
but by another 7-6 vote, the TRO was not considered suspended. In these deliberations, Justice Sereno
disagreed with majority of her colleagues and undertook to submit her dissenting opinion on 1 December
2011. She did not submit on said date but on the following day, a Friday, at 4:00 pm. Because of this
delay, Justice Velasco requested the Clerk of Court to hold in abeyance the promulgation of Justice
Serenos opinion so that the matter of the promulgation could be discussed in the next en banc session.
Justice Velasco explained that the late submission effectively prevented him from responding to her
opinion since he was already booked to leave for Jakarta on 4 December 2011 to attend the ASEAN
Chief Justices Roundtable on Environment. He also said that he could have filed a separate opinion on
her dissent had she filed it on 1 December 2011. For then, he would have had the rest of December 1 and
the whole day of December 2, 2011 to prepare and submit one.
On another score, Justice Velasco also said that he felt the need to have the dissenting opinion of
Recoletos Law Center
Justice Sereno discussed by the Court en banc because it disclosed confidential matters taken up during
the deliberations of the Court. Specifically, Justice Velasco noted that confidential matters, discussed
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during the November 18, 2011 session, are embodied in the Dissenting Opinion of Justice Sereno
promulgated on the same date, to wit: * * * . Further, he further observed that Justice Carpios
confidential letter aforementioned became part of the discussion during the En Banc session on
November 29, 2011 which ought not to be divulged to the public. To him, his fellow justices
unpromulgated dissenting opinion appears to me as a clear breach of Sec. 2, Rule 10 of the IRSC,
which pronounces, in an unequivocal manner, that Court deliberations are confidential and shall not be
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disclosed to outsideA
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aforesaid excerpts from the promulgated November 18, 2011 Dissenting Opinion and the unpromulgated

108

Leonardo-de Castro, J., was on official business, while Del Castillo, J., was on official leave

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Dissenting Opinion of Justice Sereno are confidential matters taken up during the November 18, 2011
and November 29, 2011 En Banc sessions. They cannot be incorporated in an opinion of a member of
the Court as this will be tantamount to a proscribed disclosure to outside parties even if contained in an
opinion. Justice Sereno has not shown that such disclosure is allowed by any rule of the IRSC or
authorized by the Court. More importantly, it is the Chief Justices task under Sec. 2, Rule 10 of the
IRSC to record the action or actions taken in each case. The notes of the Chief Justice shall be the bases
of the minutes of the session which, in turn, resolutions shall be predicated upon. Nowhere in the Rules
does it say that a member can incorporate the deliberations in his/her opinion. This caveat is to obviate
the possibility of conflicting statements of facts that will likely arise especially if the member takes a
contrary position to that of the majority. Justice Sereno, by stating what are allegedly the result of the
deliberations of the En Banc and the votation on cases or incidents, appears to encroach into the
functions of the Chief Justice. This should not be countenanced as once a vote is taken on an issue, the
majority view then becomes that of the Court. To say that such was not the case, as is the position of J.
Sereno, would sow doubt and suspicion on the veracity of the resolutions of the en banc as authenticated
by the Clerk of Court. Else the stability of judicial decisions and resolutions is compromised.
Justice Velasco then came up with this passage which appears to be an oxymoron109 keeping
confidential what has already been disclosed to the entire world:110 Accordingly, I recommend that the
portions of the unpromulgated Dissenting Opinion of Justice Sereno delving on what under the Rules
are considered confidential be expunged for being violative of Sec. 2, Rule 10 of the IRSC. In the same
token, confidential matters contained in this separate opinion should likewise be expunged in the event
the Court decides to adopt the recommendation herein made. It should be made clear, however, that
what impelled me to include matters in this opinion that only members of the Court ought to know is
to show that, should the dissenting opinion of Justice Sereno be promulgated in its present form, it in
itself is a departure from the IRSC.
Justice Abad, who was repeatedly referred to in Justice Serenos dissent as having been a pivotal
Justice, also came up with a separate opinion the need for confidentiality in Court deliberations,
explaining how he finally came up with a view different from his initial submission. For one, he saidthat
Justice Sereno has breached this rule, narrating in her dissenting opinion her recollection of the En
Bancs deliberation in executive session on the effect of the petitioners failure to comply with the
second condition of the temporary restraining order (TRO) that the Court issued in the case.
Enunciating further, he wrote: When the proceedings in any collegial meeting is intended to be
preserved and cited as a memorial of what had taken place in such a meeting, the proceedings are
recorded. This is true of Congress of the Philippines and of the Constitutional Convention. But when
what is important in a collegial meeting are the actions or the resolutions that the body passed by votes,
Recoletos
Law
Center
only such actions or resolutions constitute
a faithful
recording
of the bodys will. This is true of the
sessions of the Supreme Court, past or present. The main purpose of En Banc or Division sessions is to
Bar Review
2012 in the cases before it. And its decisions
deliberate on and decide the disputes between
contending parties
are, by Constitutional mandate, written by a member upon authority of the Court. The Courts
109

Could one still expunge from the peoples consciousness what theoretically should remain legally confidential after the same had
been publicly disseminated?
110

The separate opinions discussing confidentiality and disclosing what are supposed to be internal and limited to knowledge of the
justices are found in http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_reso.pdf,
http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_carpio.html,
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11/1 9 9 0 34_velasco.htm,
http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_brion.htm,
http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_abad.htm,
http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_sereno.htm (Last visited Monday, 16 April 2012
[10:01:42am])

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deliberations are not evidence of what it voted on. That vote is restricted within the confines of the
written order, resolution, or decision that it issues. The Courts deliberations are confidential simply
because the Court realizes that only by making it so can the Justices freely discuss the issues before it.
Broadcasting such discussions to the public would have a chilling effect on those who take part in it. One
would be careful not to take unpopular positions or make comments that border on the ridiculous, which
often is a way of seeing the issues in a different perspective. Personally, I often take temporary positions
on issues, weighing each one as the discussion goes. I could take the role of a devils advocate before
settling on the opposite view. The danger, as what has happened here, is that Justice Carpio and Sereno
may have taken something I said out of context or before I made up my mind when the voting took
place. Then, he concluded, [i]f our deliberations cannot remain confidential, we might as well close
down business.
From the discussions in the dissenting opinions of Justice Carpio and Sereno, it was Justice Abad
who said then, after the majority concluded that there was failure to comply with the second condition
regarding the appointment of a legal representative, that there was no need to state the obvious in the
Courts Resolution that the TRO was suspended. But when the Court eventually voted on the effect of
such failure to comply with a condition, he joined the other group to constitute a new majority saying
the TRO was not suspended. So how did he explain the apparently conflicting positions? I may have
suggested the point sometime during the debate but I recall withdrawing it when I realized that the TRO
did not subject its issuance and effectivity to petitioners prior or immediate compliance with such
conditions. Indeed, the collective recollection of the majority of the Justices who did not join Justices
Carpio and Serenos dissents is that the vote was taken to conclude categorically that the non-compliance
did not suspend the force and effect of the TRO.
As for Justice Serenos dissent, she said that it was part of her role as a magistrate to register her
disagreement with the majority if that is how she looks at the issue before the Court. She wrote, inter
alia: I know of no precedent in the entire history of the Supreme Court when the promulgation of a
Dissenting Opinion was withheld at the instruction of a fellow Associate Justice or even of a Chief
Justice. . . . It is a constitutional right of any Member of the Court to issue his or her Dissenting
Opinion; and in cases wherein the issue of compliance with a TRO and the efficacy of that TRO, is being
subjected to intense national scrutiny, as in this case, such issuance is also a constitutional duty.
Further, I know of no precedent in the entire history of the Supreme Court where the promulgation of
a signed Dissenting Opinion has been withheld because it would be the subject of discussion in a next
Court session. It is only by our Decisions and Opinions that we, as Members of this Court, are able to
account for our actions. Any attempt to muzzle the opinion of a dissenting Justice for the sole reason that
the majority will find such writing inconvenient is unconstitutional. This is especially true when the
Recoletos
Center
account of the voting and the reasons
for the votesLaw
are being
contested, as the 18 November 2011 vote
on the TRO was.

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What about the need for confidentiality in Court deliberations? She declared: I do not believe that
a disclosure of the internal deliberations of the Court is warranted in each and every case. My 18
November 2011 Dissenting Opinion, as well as my unpromulgated 2 December 2011 Dissenting Opinion
which has now been superseded by this Dissenting Opinion ! finalized and signed this 19th of December
2011 ! made the disclosures only because (1) the promulgated Resolution of 18 November 2011 did not
reflect that days voting and the reasons for that vote; and (2) the Acting Chief of the PIO continues to
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misinform the public.
the Of
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session are being disputed, it is the constitutional duty of the Members of the Court, especially the
minority, to speak up and put on record what actually took place. This duty becomes especially necessary

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when an officer of the judiciary, who has been clothed with apparent authority by the Chief Justice,
continues to misinform the public, and such behavior is not being corrected. As is highly obvious from
the organizational constraints within the Supreme Court, the minority Members of the Court have a
limited opportunity to correct the misinforming officer. The minority will also not have a fair chance to
correct the resolution, in this case drafted by a ponente designated by the Chief Justice, until after its
promulgation. To keep quiet in such times and not make use of opportunities available to the minority
to present the truth through Dissenting Opinions would be a disservice to the country.
Then, no discussion of Justice Serenos dissent would be complete if one were to omit her obvious
mistrust of the official in charge of the Courts PIO if one were to read between her lines, that office
might as well be spelled out as Public misInformation Office. Consider, for instance, these tidbits from
her opinion: Despite serious efforts from my end to advise an officer of the Supreme Court that no
action of the Court should be interpreted, such behavior has continued. This opinion is thus rendered in
part to remedy the present deficit in truth; [c]ontrary to statements made by the Acting Chief of the
Public Information Office (PIO) Atty. Jose Midas P. Marquez, there was no 9-4 voting that upheld the
effectivity of the TRO despite non-compliance with condition (ii); Atty. Marquez has been continuing
his misstatements on the TRO unabated; and, [t]he public continues to be fed information that distorts
the facts and the legal import of the voting that took place on the above dates. Well, so much for an
enlightened or benighted public.
Bickering, washing dirty linen and disrobing in public and the hoi polloi is amused with the
spectacle. Others might as well wonder, too, as to whatever might have become of honorable men and
women.
4. In Re: Production of Court Records and Documents and the Attendance of Court officials
and Employees as Witnesses Under the Subpoenas of February 10, 2012 and the Various
Letters for the Impeachment Prosecution Panel dated January 19 and 25, 2012, SCRA
(14 February 2012)
Relative to the presentation of evidence against the Chief Justice in his impeachment trial, requests
were made with the Supreme Court for the examination and production of certain documents and
records, as well as the testimony of Justices, officials and employees of the Court, including the issuance
of certified true copies of the rollos and the Agenda and Minutes of the Deliberations relative to certain
cases.
Here, the Court had to approach the matter from perspective of the principle of separation of powers
and the concomitant independence of the judiciary. From the constitutional perspective, a necessary
starting vantage point in this consideration is the principle of separation of powers through the
Recoletos Law Center
recognition of the independence of each branch of government and through the protection of
privileged and confidential documents and processes, as recognized by law, by the rules and by Court
Bar Review 2012
policies. Then, these considerations taken with the principle of comity the practice of voluntarily
observing inter-departmental courtesy in undertaking their assigned constitutional duties for the
harmonious working of government the Court proceeded to state that [i]nter-departmental courtesy
demands that the highest levels of each department be exempt from the compulsory processes of
the other departments on matters related to the functions and duties of their office.

With the foregoing


backdrop,
Court then
discussed
court deliberations and
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records. In the Judiciary, privileges against disclosure of official records create a hierarchy of rights
that protect certain confidential relationships over and above the publics evidentiary need or right to
every mans evidence. Accordingly, certain information contained in the records of cases before the

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Supreme Court are considered confidential and are exempt from disclosure. To reiterate, the need arises
from the dictates of the integrity of the Courts decision-making function which may be affected by the
disclosure of information. Specifically, the Internal Rules of the Supreme Court (IRSC) prohibits the
disclosure of (1) the result of the raffle of cases, (2) the actions taken by the Court on each case included
in the agenda of the Courts session, and (3) the deliberations of the Members in court sessions on
cases and matters pending before it.
What about the confidentiality requirement? [T]he rules on confidentiality will enable the Members
of the Court to freely discuss the issues without fear of criticism for holding unpopular positions or
fear of humiliation for ones comments. The privilege against disclosure of these kinds of
information/communication is known as deliberative process privilege, involving as it does the
deliberative process of reaching a decision. Written advice from a variety of individuals is an important
element of the governments decision-making process and that the interchange of advice could be stifled
if courts forced the government to disclose those recommendations; the privilege is intended to prevent
the chilling of deliberative communications. And, in this regard, confidentiality is not something that
the Court alone is claiming for itself. [A] Senator may invoke legislative privilege when he or she is
questioned outside the Senate about information gathered during an executive session of the Senates
legislative inquiry in aid of legislation. In the same manner, a justice of the court or a judge may invoke
judicial privilege in the Senate sitting as an Impeachment Court, for proceedings in the performance of
his or her own judicial functions. What applies to magistrates applies with equal force to court
officials and employees who are privy to these deliberations. They may likewise claim exemption
when asked about this privileged information.
What is then the extent of this rule of confidentiality applicable to courts? The Court explained that
while Section 2, Rule 10 of the Internal Rules of the Supreme Court (IRSC) speaks only of the
confidentiality of court deliberations, it is understood that the rule extends to documents and other
communications which are part of or are related to the deliberative process. The deliberative
process privilege protects from disclosure documents reflecting advisory opinions, recommendations
and deliberations that are component parts of the process for formulating governmental decisions and
policies. Obviously, the privilege may also be claimed by other court officials and employees when
asked to act on these documents and other communications.
And, how do you draw the parameters of this judicial deliberative process privilege? To qualify
for protection under the deliberative process privilege, the agency must show that the document is both
(1) predecisional and (2) deliberative. Otherwise put, [a] document is predecisional under the
deliberative process privilege if it precedes, in temporal sequence, the decision to which it relates. In
other words, communications areRecoletos
considered predecisional
if they were made in the attempt to
Law Center
reach a final conclusion. A material is deliberative, on the other hand, if it reflects the give-and-take
of the consultative process. The key question
in determining
Bar Review
2012whether the material is deliberative in
nature is whether disclosure of the information would discourage candid discussion within the
agency. If the disclosure of the information would expose the governments decisionmaking process
in a way that discourages candid discussion among the decision-makers (thereby undermining the courts
ability to perform their functions), the information is deemed privileged. Court records which are
predecisional and deliberative in nature are thus protected and cannot be the subject of a
subpoena if judicial privilege is to be preserved. The privilege in general insulates the Judiciary from
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officials and employees from public scrutiny or the pressure of public opinion that would impair a
judges ability to render impartial decisions. The deliberative process can be impaired by undue exposure

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of the decision-making process to public scrutiny before or even after the decision is made,. . .
In addition, two other grounds may be cited for denying access to court records, as well as
preventing members of the bench, from being subjected to compulsory process: (1) the disqualification
by reason of privileged communication and (2) the pendency of an action or matter Members
of the Court may not be compelled to testify in the impeachment proceedings against the Chief Justice
or other Members of the Court about information they acquired in the performance of their official
function of adjudication, such as information on how deliberations were conducted or the material inputs
that the justices used in decision-making, because the end-result would be the disclosure of confidential
information that could subject them to criminal prosecution. Such act violates judicial privilege (or the
equivalent of executive privilege) as it pertains to the exercise of the constitutional mandate of
adjudication. How about court officials and employees? Well, the same rules on confidentiality apply
to them. In this regard, too, note must be taken of the fact that [u]nder existing laws, neither the
Impeachment Court nor the Senate has the power to grant immunity from criminal prosecution for
revealing confidential information.
The Court further clarified that the rule on confidentiality applied to internal deliberations and
actions (adjudicatory functions) as distinguished from external matters. To state the rule differently,
Justices of the Court cannot be compelled to testify on matters relating to the internal deliberations and
actions of the Court, in the exercise of their adjudicatory functions and duties. This is to be
differentiated from a situation where the testimony is on a matter which is external to their adjudicatory
functions and duties. For example, where the ground cited in an impeachment complaint is bribery, a
Justice may be called as a witness in the impeachment of another Justice, as bribery is a matter external
to or is not connected with the adjudicatory functions and duties of a magistrate. A Justice, however,
may not be called to testify on the arguments the accused Justice presented in the internal debates as
these constitute details of the deliberative process.
On the need to subpoena court personnel to testify, the court said, witnesses need not be
summoned to testify on matters of public record because entries in official records may be
presented without the necessity of presenting in court the officer or person who made the entries.
Entries in public or official books or records may be proved by the production of the books or records
themselves or by a copy certified by the legal keeper thereof. These records, however, may be
presented and marked in evidence only where they are not excluded by reasons of privilege and
the other reasons discussed above. Further, [t]he reasons for this rule are necessity and
trustworthiness. Necessity consists in the inconvenience and difficulty of requiring the officials
attendance as a witness to testify to the innumerable transactions in the course of his duty. A public
officer is excused from appearing
in court in order
that
public business may not be interrupted,
Recoletos
Law
Center
hampered or delayed. * * * Trustworthiness is a reason because of the presumption of regularity of
performance of official duty. The lawBar
reposes
a particular
Review
2012confidence in public officers that it
presumes that they will discharge their several trusts with accuracy and fidelity; and therefore,
whatever acts they do in the discharge of their public duty may be given in evidence and shall be
taken to be true under such a degree of caution as the nature and circumstances of each case may
appear to require.

And to make it clear for everyone, the Court declared: As a last point and mainly for purposes of
stress, the privilegesAdiscussed
that applyvis--vis
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andArsenal
judges apply
mutatis mutandis to court
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Of Arms
officials and employees with respect to their official functions. If the intent only is for them to identify
and certify to the existence and genuineness of documents within their custody or control that are not
otherwise confidential or privileged under the above discussed rules, their presence before the

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Impeachment Court can be and should be excused where certified copies of these non-privileged and
non-confidential documents can be provided.
In the end, the Court said:
To summarize these rules, the following are privileged documents or communications, and are not subject to
disclosure:
(1) Court actions such as the result of the raffle of cases and the actions taken by the Court on each case
included in the agenda of the Courts session on acts done material to pending cases, except where a party litigant
requests information on the result of the raffle of the case, pursuant to Rule 7, Section 3 of the IRSC;
(2) Court deliberations or the deliberations of the Members in court sessions on cases and matters pending
before the Court;
(3) Court records which are predecisional and deliberative in nature, in particular, documents and other
communications which are part of or related to the deliberative process, i.e., notes, drafts, research papers, internal
discussions, internal memoranda, records of internal deliberations, and similar papers.
(4) Confidential Information secured by justices, judges, court officials and employees in the course of their
official functions, mentioned in (2) and (3) above, are privileged even after their term of office.
(5) Records of cases that are still pending for decision are privileged materials that cannot be disclosed, except
only for pleadings, orders and resolutions that have been made available by the court to the general public.
(6) The principle of comity or inter-departmental courtesy demands that the highest officials of each
department be exempt from the compulsory processes of the other departments.
(7) These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her
individual capacity. Since the Court is higher than the individual justices or judges, no sitting or retired justice or
judge, not even the Chief Justice, may claim exception without the consent of the Court.

Everyone, take note. Know what could properly be known as to what are discussed in and pass
through the portals of the courts. But when you really come down to fundamentals, you find reassurance,
confidence and liberation in being able to bring out openly what you want to say, free from the fetters
of the fear that sooner of later what you say may come to the ears of those not really meant to know.
5. Philippine Savings Bank v. Senate Impeachment Court, SCRA (G.R. No. 200238, 9
February 2012)
Still on the on impeachment of Chief Justice Corona, one of the issues that cropped up is the need
to look into his alleged foreign currency deposit. There is a law, however, which stands in the way The
Foreign Currency Act (R.A. No. 6426) which explicitly provides for a single exception to the
confidentiality, i.e., if the depositor consents. Because of this problem, the bank where the purported
deposits are sought a TRO from the Supreme Court, which the Court granted. The Court111, in issuing
Center
the TRO, explained, citing earlierRecoletos
cases: A clearLaw
right to
maintain the confidentiality of the foreign
currency deposits of the Chief Justice is provided under Section 8 of Republic Act No. 6426, otherwise
Bar
2012 (RA 6426). This law establishes the
known as the Foreign Currency Deposit
ActReview
of the Philippines
absolute confidentiality of foreign currency deposits. * * * [W]here the accounts in question are U.S.
dollar deposits, the applicable law is not Republic Act No. 1405 but RA 6426. * * * Also, while
impeachment may be an exception to the secrecy of bank deposits under RA 1405, it is not an exemption
to the absolute confidentiality of foreign currency deposits under RA 6426.

Justice Brion, in particular, citing Republic of the Philippines v. Eugenio, 545 SCRA 384 (2008),
A Library Of Liberties vis--vis An Arsenal Of Arms
111

Concurring JJ. De Castro, Brion, Bersamin, Abad, Villarama, Perez, Mendoza and Reyes the Separate Concurring Opinions
to follow; Dissenting JJ. Carpio, Peralta, Del Castillo, Sereno and Bernabe the Separate Dissenting Opinions to follow; Inhibiting
Chief Justice Corona and Justice Velasco.

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is of the view that bank accounts laws are not covered by the right to information under Article
III, Section 7 and the requirement of full public disclosure under Article II, Section 28 of the
Constitution, which is statutorily implemented through RA No. 6713 (Code of Conduct and Ethical
Standards for Public Officials and Employees). The Constitution in fact declares that the publics right
to information is subject to such limitations as may be provided by law. The implied repeal of
inconsistent laws that RA No. 6713 mandates cannot be interpreted as a repeal of the express substantive
right granted to confidentiality under Section 8 of RA No. 6426, even if the latter was enacted earlier.
In his dissent, Justice Carpio said that the majority ruling makes a mockery of all existing laws
designed to insure transparency and good governance in public service. The majority ruling in effect
advises all government officials and employees that they can legally evade reporting their actual assets
in their Statement of Assets, Liabilities and Net Worth, which is required by the Constitution and RA
Nos. 3019 and 6713, by simply opening foreign currency deposit accounts with local banks. Adverting
to R.A. No. 6713, he submitted: Section 8 of RA No. 6713, as amended, mandates the disclosure of
the assets of government officials and employees who have an obligation to disclose their assets.
Moreover, Section 8 expressly states that the public has the right to know the assets of government
officials and employees. Accordingly, the government officials and employees obligation to
disclose their assets, and the peoples right to know such assets, as expressly mandated by Section 8
of RA No. 6713, prevails over the secrecy of foreign currency deposits under Section 8 of RA No. 6426,
granting that such secrecy applies to Philippine citizens. In fine, [a] government official or employee
who refuses to be accountable to the people by not disclosing assets he admittedly owns, despite his
obligation to so disclose to the people, who have the right to know his assets, puts himself beyond
accountability to the people.
The view of Justice Carpio on public accountability as a basis for allowing for disclosure was also
reflected in Justice Serenos dissenting opinion. To her, there appears to be a constitutionally-generated
permission on the latters part to disclose the FCDs. In other words, because of the fact that the Chief
Justice is a public officer, he is constitutionally and statutorily mandated to perform a positive duty to
disclose all of his assets and liabilities. This already operates as the consent required by law. She
likewise explained: More important, what the people at the gut level understand to be true is that they
have, through the Constitution, enshrined the doctrine on the accountability of public officers, on the
fundamental belief that public office is a public trust. It cannot get plainer, but truer, than that. The
Constitution wove, not only in the central motif on public accountability in Article XI of the
Constitution, but in every thread of its fabric, this legally demandable notion of public accountability.
No interpretation of law nor procedural requirement can be viewed in any manner that negates this
bedrock principle of Philippine constitutional governance. The way she sees the picture, for all public
Recoletos
Law
Center
officers, what is absolute is not the
confidentiality
privilege,
but the obligation of disclosure and
the Courts Resolution results in an iniquitous situation, where the supreme interest of the public to
Review
2012
maintain accountability among publicBar
officers
is relegated
to the sidelines in favor of a statutory
privilege that arose purely out of economic considerations.

6. Air Philippines Corporation v. Pennswell, Inc., 540 SCRA 215 (2007)


Can a party demand the other party to disclose the ingredients and chemical components of the
latters products on the assertion that the former had been misled into buying those items on the
fraudulent claim that
are different
from earlier
ones itAn
hadArsenal
earlier bought,
i.e., that they are really
Athey
Library
Of Liberties
vis--vis
Of Arms
the same but presented and packaged as different? This basically is the query in this case.
This is a collection suit for the purchase price of certain items. Air Philippines refused to pay,

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claiming fraud as to certain items lubricants, grease and fluid being mislabeled as belonging to a new
line but were in truth and in fact, identical with products it had previously purchased. They merely
carried altered names and labels, or so Air Philippines asserted. In the collection suit filed by Pennswell,
Air Philippines moved to compel the former to give a detailed list of the ingredients and chemical
components to prove its defense. Pensswell opposed, claiming that the data sought to be disclosed
involve trade secrets. The Court agreed. That trade secrets are of a privileged nature is beyond quibble.
The protection that this jurisdiction affords to trade secrets is evident in our laws. Further, the Court
said: Jurisprudence has consistently acknowledged the private character of trade secrets. There is a
privilege not to disclose ones trade secrets. Foremost, this Court has declared that trade secrets and
banking transactions are among the recognized restrictions to the right of the people to information as
embodied in the Constitution.
So is the confidentiality of trade secrets absolute? No, the privilege is not absolute; the trial court
may compel disclosure where it is indispensable for doing justice. We do not, however, find reason to
except respondents trade secrets from the application of the rule on privilege. The revelation of
respondents trade secrets serves no better purpose to the disposition of the main case pending with the
RTC, which is on the collection of a sum of money. As can be gleaned from the facts, petitioner received
respondents goods in trade in the normal course of business. To be sure, there are defenses under the
laws of contracts and sales available to petitioner. On the other hand, the greater interest of justice ought
to favor respondent as the holder of trade secrets. If we were to weigh the conflicting interests between
the parties, we rule in favor of the greater interest of respondent. Trade secrets should receive greater
protection from discovery, because they derive economic value from being generally unknown and not
readily ascertainable by the public. To the mind of this Court, petitioner was not able to show a
compelling reason for us to lift the veil of confidentiality which shields respondents trade secrets.
7. Antolin v. Domondon, 623 SCRA 163 (2010)
May someone who took a professional board examination and who did not pass demand that the
questionnaires, answer sheets, answer keys and explanations of the grading system be made available
to her? What if she passed in the meantime, would that make the demand moot? The Court said yes, the
examinee may demand, subject to some qualifications, and then left the matter to be decided by the trial
court in the meantime. Also, passing the examination in the meantime would not render the case moot.
In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his or her right
to information and may seek its enforcement by mandamus. And since every citizen possesses the
inherent right to be informed by the mere fact of citizenship, we find that petitioners belated passing
of the CPA Board Exams does not automatically mean that her interest in the Examination Papers has
become mere superfluity. Undoubtedly,
the constitutional
question presented, in view of the likelihood
Recoletos
Law Center
that the issues in this case will be repeated, warrants review.

Bar Review 2012

The Court then proceeded to hold in this wise: We are prepared to concede that national board
examinations such as the CPA Board Exams are matters of public concern. The populace in general, and
the examinees in particular, would understandably be interested in the fair and competent administration
of these exams in order to ensure that only those qualified are admitted into the accounting profession.
And as with all matters pedagogical, these examinations could be not merely quantitative means of
assessment, but also means to further improve the teaching and learning of the art and science of
Library
Of Arms
accounting. On theAother
hand,Of
weLiberties
do realize vis--vis
that there An
mayArsenal
be valid reasons
to limit access to the
Examination Papers in order to properly administer the exam. More than the mere convenience of the
examiner, it may well be that there exist inherent difficulties in the preparation, generation, encoding,

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administration, and checking of these multiple choice exams that require that the questions and answers
remain confidential for a limited duration. However, the PRC is not a party to these proceedings. They
have not been given an opportunity to explain the reasons behind their regulations or articulate the
justification for keeping the Examination Documents confidential. In view of the far-reaching
implications of this case, which may impact on every board examination administered by the PRC, and
in order that all relevant issues may be ventilated, we deem it best to remand these cases to the RTC for
further proceedings.
8. GMA Network, Inc. v. Movie and Television Review and Classification Board, 514 SCRA 191
(2007)
This highlights the importance not only of publication but also of submission and registration of
administrative rules and regulations to the Office of the National Administrative Register (ONAR).
GMA Network aired, through EMC Channel 27, Muro Ami: The Making without first securing
a permit from MTRCB pursuant to 7, PD 1986. For this the MRTCB imposed on said broadcast
company on 7 January 2000 the penalty of suspension of broadcast for seven (7) days, which penalty
GMA complied with. Nevertheless, GMA questioned the authority of MTRCB to require prior
submission. The Court, harking back to what it said in MTRCB v. ABS-CBN, 448 SCRA 575 (2005),
held that the MTRCB is empowered to screen, review and examine all motion pictures and television
programs including publicity materials, including a public affairs program described as a variety of
news treatment, a cross between pure television news and news-related commentaries, analysis and/or
exchange of opinions. Nevertheless, the Court held that while MTRCB had jurisdiction over the subject
program, Memorandum Circular 98-17, which was the basis of the suspension order, was not binding
on GMA since it was not registered yet with the ONAR as of 27 January 2000. The Administrative
Code of 1987, particularly Section 3 thereof, expressly requires each agency to file with the Office of
the National Administrative Register (ONAR) of the University of the Philippines Law Center three
certified copies of every rule adopted by it. Administrative issuances which are not published or filed
with the ONAR are ineffective and may not be enforced. Being ineffective and unenforceable, GMA
was not bound by said circular and should not have been meted the sanction provided thereunder.
It leaves a bad taste when someone is told that he should not have been punished at all, but then it
is conveyed to him when he had already served his sentence.
The need for filing with the ONAR was further highlighted in Republic v. Pilipinas Shell Petroleum
Corporation, 550 SCRA 680 (2008), and Securities and Exchange Commission v. PICOP Resources,
Inc., 566 SCRA 451 (2008).

Recoletos Law Center


RIGHT OF ASSOCIATIONBar Review 2012

K.

Man being a social being necessarily finds it part of his natural inclinations that he associate with
others. He would not relish the idea of simply being an island all by himself, isolated from the rest or
the mainland. And the act of so joining others could be a form of expression you link up with people
who are likely to share your interests, sentiments, philosophy, ideology or affection.1 And, the right to
associate may also include as a necessary corollary, the right not to associate, though such latter right
2
may not justify a lawyer
in refusing
to pay his dues
to the An
IBP.Arsenal
A Library
Of Liberties
vis--vis
Of Arms

See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965)

In re Edillon, 84 SCRA 554 (1978)

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The right to associate may also mean that an organization would have the right to choose who its
members are, excluding or expelling those whose personality traits may run into conflict with the
groups philosophy,3 or refusing participation to a group in a parade where that groups message would
not be in conformity with the organizers own idea of what the activity is all about.4
1. Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions
in BPI Unibank, 627 SCRA 590 (2010)
If two corporations merge, one of which had a CBA with its labor organization which contained a
Union Shop Clause requiring new employees to join as a condition for retaining their employment while
the one which was absorbed did not have, could the employees of the latter be obligated to join the labor
union of the surviving entity? The Court said yes.
In the case at bar, since the former FEBTC employees are deemed covered by the Union Shop
Clause, they are required to join the certified bargaining agent, which supposedly has gathered the
support of the majority of workers within the bargaining unit in the appropriate certification proceeding.
Their joining the certified union would, in fact, be in the best interests of the former FEBTC employees
for it unites their interests with the majority of employees in the bargaining unit. It encourages employee
solidarity and affords sufficient protection to the majority status of the union during the life of the CBA
which are the precisely the objectives of union security clauses, such as the Union Shop Clause involved
herein. . . . [S]ettled jurisprudence has already swung the balance in favor of unionism, in recognition
that ultimately the individual employee will be benefited by that policy. In the hierarchy of constitutional
values, this Court has repeatedly held that the right to abstain from joining a labor organization is
subordinate to the policy of encouraging unionism as an instrument of social justice. The Court
concluded: In sum, this Court finds it reasonable and just to conclude that the Union Shop Clause of
the CBA covers the former FEBTC employees who were hired/employed by BPI during the effectivity
of the CBA in a manner which petitioner describes as absorption. A contrary appreciation of the facts
of this case would, undoubtedly, lead to an inequitable and very volatile labor situation which this Court
has consistently ruled against.

L. EMINENT DOMAIN
While the government may negotiate with the owner for the acquisition of the latters property, such
a procedure may not always result in a successful transaction, however, especially if there is need for
more expeditious action, or, the owner may simply be disinclined to sell. Thus, this coercive power of
the government to take property even
if the owner opposes,
provided the same is for public use and there
Recoletos
Law Center
is payment of just compensation. Accordingly, questions on expropriation may deal with issues of
necessity,5 or arbitrary exercise,6 as well
as the
justness and
timeliness of the payment for the property
Bar
Review
2012
taken.7 As for judicial determination of just compensation, the Court has reverted to the old rule that the
3

See Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the U.S. Supreme Court upheld the right of the Boy Scouts to
exclude a homosexual. See also Ordinario v. People, 428 SCRA 773 (2004), which involves a teacher in Boy Scout who was convicted
of sexual assault for putting his organ into the mouth of a male ten-year old pupil.
4

Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)

City of Manila v. Chinese Community of Manila, 40 Phil. 349 (1919)

De Knecht v. Bautista, 100 SCRA 660 (1980)

A Library Of Liberties vis--vis An Arsenal Of Arms

The interest rate has been set at twelve per centum (12%) per annum, to be computed from the time of taking to the date of payment,
which rate should help eliminate the constant fluctuation and inflation of the value of currency over time. (Republic v. Court of Appeals,
383 SCRA 611 [2002]; Reyes v. National Housing Authority, 395 SCRA 494 [2003]; Republic v. Court of Appeals., 454 SCRA 516

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same is a judicial function, not one to be simply determined by looking at what is indicated in the tax
declaration.8 With regard to public use, the same has also been construed to have a more expansive
meaning so as to cover certain purposes which could not have been included in the past, such as
tourism,9 and setting up the birthplace of a known religious leader as a National Historical Landmark.10
Also, considering that the power of eminent domain involves the strong arm of the law to compel
an unwilling person to part with his property, extreme caution is called for in resolving complaints for
condemnation when a serious doubt arises regarding the supposed public use of property, the doubt
should be resolved in favor of the property owner and against the State,11 or, that eminent domain cases
are to be strictly construed against the expropriator.12 This perspective would make it easier to
understand the Courts recent rulings mandating payment within five (5) years from finality of the
judgment of expropriation, otherwise the owner would be entitled to demand recovery of possession,13
as well as the repurchase of the property when the purpose for which it was expropriated is abandoned.14
Further, note that the exercise of the power of eminent domain is not subject to the strictures of res
judicata or the principle of law of the case. The mere fact that the government or its agencies may not
have prevailed in the first attempt to expropriate a property does not preclude them from doing so again,
making adjustments or rectifications in whatever may have been the earlier deficiencies.15
1. Manotok Realty, Inc. v. CLT Realty Development Corporation, 582 SCRA 583 (2009)
Here, the Court spoke of the cleansing effect of expropriation proceedings. The fact of
expropriation is extremely significant, for titles acquired by the State by way of expropriation are
deemed cleansed of whatever previous flaws may have attended these titles. . . . In an [in] rem
proceeding, condemnation acts upon the property. After condemnation, the paramount title is in the
public under a new and independent title; thus, by giving notice to all claimants to a disputed title,
condemnation proceedings provide a judicial process for securing better title against all the world than
may be obtained by voluntary conveyance.
In this particular case, the Court noted that [i]n annulling the Manotok titles, focus was laid on the
alleged defects of TCT No. 4211 issued in September of 1918. However, TCT No. 4211 was issued
decades before the property was expropriated. Thus, any and all defects that may have attended that
particular title would have been purged when the property covered by it was subsequently acquired by
the State through eminent domain.
2. Republic v. Phil-Ville Development and Housing Corporation, 525 SCRA 776 (2007)
Because an order of expropriation merely determines the authority to exercise the power of eminent
Recoletos
Center
domain and the propriety of such
exercise, its Law
issuance
does not hinge on the payment of just
compensation. Thus, payment of just compensation is not a condition sine qua non to the issuance of

Bar Review 2012

[2005])

EPZA v. Dulay, 149 SCRA 305 (1987)

Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 (1983)

10

Manosca v. Court of Appeals, 252 SCRA 412 (1996)

11

Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007)

12

OfCorporation
Liberties
vis--vis
An 493
Arsenal
San Roque Realty A
andLibrary
Development
v. Republic,
532 SCRA
(2007)

13

Republic v. Lim, 462 SCRA 265 (2005)

14

Mactan-Cebu International Airport Authority v. Lozada, Sr., 613 SCRA 618 (2010)

15

See Municipality of Paraaque v. V.M. Realty Corporation, 292 SCRA 678 (1998)

Of Arms

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an order of expropriation it is the transfer of title to the land expropriated that must wait until the
indemnity is actually paid.
3. Ortega v. City of Cebu, 602 SCRA 601 (2009)
Where the expropriation case had long become final and executory, both the Order of expropriation
and the Order fixing just compensation can no longer be modified the expropriator can no longer
withdraw from the expropriation proceedings.
Also, the expropriation court cannot, by itself, order the expropriating local government to enact an
appropriation ordinance in order to satisfy its judgment the land owner must file a separate mandamus
case for that purpose.
4. Manapat v. Court of Appeals, 536 SCRA 32 (2007)
[T]he foundation of the right to exercise eminent domain is genuine necessity, and that necessity
must be of a public character. As a rule, the determination of whether there is genuine necessity for the
exercise is a justiciable question. However, when the power is exercised by the Legislature, the question
of necessity is essentially a political question.
As for the concept of public use, the same is a flexible and evolving concept influenced by changing
conditions. At present, it may not be amiss to state that whatever is beneficially employed for the general
welfare satisfies the requirement of public use. It now includes the broader notion of indirect public
benefit or advantage, including in particular, urban land reform and housing.
If a person might be one of the intended beneficiaries of the so-called socialized housing, does he
have the right to object to the expropriation of the land that he occupies on the contention that it would
be incongruous for government to take his land away from him only to give it back to him? The Court
said that [t]his contention sadly fails to comprehend the public purpose for the taking under the
socialized housing program. The parcels of land subject of the expropriation are, precisely, being taken
so that they can be subdivided into much smaller lots at an average of 66.5 square meters per lot for
distribution to deserving dwellers in the area. Upon the completion of the project, Manapat, and those
similarly situated as he, cannot assert any right to be awarded the very same lots they currently occupy,
nor be entitled to the same area of the land they now have.
Earlier, in Masikip v. City of Pasig, 479 SCRA 391 (2006), the Court said: Where the taking by the
State of private property is done for the benefit of a small community [such as a homeowners
association] which seeks to have its own sports and recreational facility, notwithstanding that there is
such a recreational facility only a short distance away, such taking cannot be considered to be for public
use. Its expropriation is not valid.Recoletos
The members Law
of the association
Center are apparently desirous of having
their own private playground and recreational facility. The purpose is not clearly and categorically
Review
public. The Court also sympathized Bar
with the
plight of2012
persons whose property are sought to be
expropriated. The right to own and possess property is one of the most cherished rights of men. It is so
fundamental that it has been written into organic law of every nation where the rule of law prevails.
Unless the requisite of genuine necessity for the expropriation of ones property is clearly established,
it shall be the duty of the courts to protect the rights of individuals to their private property. Important
as the power of eminent domain may be, the inviolable sanctity which the Constitution attaches to the
property of the individual
requires
not only that
the purpose
for the taking
of private property be
A Library
Of Liberties
vis--vis
An Arsenal
Of Arms
specified. The genuine necessity for the taking, which must be of a public character, must also be shown
to exist.

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5. Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007)
In this case a barangay sought to expropriate private lands purportedly to be used as a feeder road.
It was shown by the land owners, however, that their lands would actually be used to benefit only the
homeowners of a private subdivision in the place, whose developer would be excused from complying
with its obligation to secure a right-of-way for its lot buyers. The Court held, among others that:
Expropriation, if misused or abused, would trench on the property rights of individuals without due
process of law. Further, it declared that the failure of the subdivision owner to provide an access road
does not shift the burden to barangay itself. To deprive the private persons of their property instead of
compelling the subdivision owner to comply with its obligation under the law is an abuse of the power
of eminent domain and is patently illegal, which misuse of public funds for a private purpose could
amount to a possible case of malversation.
The Court added: Taking an individuals private property is a deprivation which can only be
justified by a higher goodwhich is public useand can only be counterbalanced by just compensation.
Without these safeguards, the taking of property would not only be unlawful, immoral, and null and
void, but would also constitute a gross and condemnable transgression of an individuals basic right to
property as well. For this reason, courts should be more vigilant in protecting the rights of the property
owner and must perform a more thorough and diligent scrutiny of the alleged public purpose behind the
expropriation. Extreme caution is called for in resolving complaints for condemnation, such that when
a serious doubt arises regarding the supposed public use of property, the doubt should be resolved in
favor of the property owner and against the State.
6. Republic v. Holy Trinity Realty Development Corp., 551 SCRA 303 (2008)
In case of expropriation under R.A. No. 8974, if the payment has been deposited in the bank in the
meantime, to whom should the interest belong? The interest that accrues in the meantime goes to the
owner since the principal amount was supposed to have been directly paid to him in the first place.
Under Section 4 of Republic Act No. 8974, the implementing agency of the government pays just
compensation twice: (1) immediately upon the filing of the complaint, where the amount to be paid is
100% of the value of the property based on the current relevant zonal valuation of the BIR (initial
payment); and (2) when the decision of the court in the determination of just compensation becomes
final and executory, where the implementing agency shall pay the owner the difference between the
amount already paid and the just compensation as determined by the court (final payment).
7. Tiongson v. National Housing Authority, 558 SCRA 56 (2008)
In this case the NHA took possession of the properties way back in 1978 pursuant to P.D. Nos. 1669
Recoletos Law Center
and 1670. Subsequently, however, in Manotok v. National Housing Authority, 150 SCRA 89 (1987), said
decrees were declared unconstitutional. Following that decision, the NHA filed expropriation
Bar Review 2012
proceedings, also in 1987. What should be the reckoning date for the computation of just compensation
1978 or 1987? Where the initial taking of a property subject to expropriation was by virtue of a law
which was subsequently declared unconstitutional, just compensation is to be determined as of the date
of the filing of the complaint, not the date of taking.

8. Nepomuceno v. City of Surigao, 560 SCRA 41 (2008)


Library
OfofLiberties
vis--vis
An
Arsenal
Of Arms proceeding being
Here, there was A
taking
in 1960
land for use
a city road,
without
an expropriation
first instituted. Since no amicable settlement was effected, the owners subsequently filed years later an
action for recovery or payment of market value, and they claimed valuation at time of actual payment.

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When is the reckoning date? The Court held that where actual taking is made without the benefit of
expropriation proceedings and the owner seeks recovery of the possession of the property prior to the
filing of expropriation proceedings, it is the value of the property at the time of taking that is controlling
for purposes of compensation. Thus, the value of the property must be ascertained as of 1960 when it
was actually taken. It is as of that time that the real measure of their loss may fairly be adjudged. The
value, once fixed, shall earn interest at the legal rate until full payment is effected, conformably with
other principles laid down by case law.
Can exemplary damages be recovered? Exemplary damages would have been appropriate had it
been shown that the city government indeed misused its power of eminent domain. In this case, both the
RTC and the CA found there was no socially deleterious action or misuse of power to speak of.
9. Figuracion v. Libi, 539 SCRA 50 (2007)
This case involves an expropriation for a local road and the subsequent decision of the City of Cebu
to reconvey an unused portion of the same. On the right of a local government unit to sell roads, the
Court declared that, as a general rule, local roads used for public service are considered public property
under the absolute control of Congress; hence, local governments have no authority to control or regulate
their use. However, under Section 10, Chapter II of the Local Government Code, Congress delegated
to political subdivisions some control of local roads.
For a valid reconveyance, one of the requirements is a showing that the former owner or his
successors-in-interest has the right to repurchase said property. As to the right to repurchase itself, it
went back to Fery v. Municipality of Cabanatuan, 42 Phil 28 (1921): If, for example, land is
expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned
the property shall return to its former owner, then, of course, when the purpose is terminated or
abandoned the former owner reacquires the property so expropriated. . . . If, upon the contrary, however,
the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the
absolute property of the expropriator, whether it be the State, a province, or municipality, and in that case
the non-user does not have the effect of defeating the title acquired by the expropriation proceedings.
Then it held that [t]he enunciated rule in Fery is still controlling to this day. However, in Moreno v.
Mactan-Cebu International Airport Authority, we clarified that where there is preponderant evidence
of the existence of a right to repurchase, the former owner of an expropriated property is entitled to
exercise such option once the public purpose for which the local government initially intended the
expropriated property is abandoned or not pursued. . . . [However,] where there is insufficient evidence
that the former owners of expropriated properties were granted the right to repurchase the same, the latter
may not insist on recovering their properties even when the public purpose for which said properties
were expropriated is abandoned. Recoletos Law Center
10. Mactan-Cebu International Airport Authority v. Lozada, Sr., 613 SCRA 618 (2010)

Bar Review 2012

When property taken through eminent domain is no longer needed for the public purpose for which
it was expropriated, does the former owner have the right to repurchase it? Generally, no. And this traces
back to Fery v. Municipality of Cabanatuan. In this case of Mactan-Cebu, the Court revisited Fery and
came up with a new rule. After noting that Fery was not decided pursuant to our now sacredly held
constitutional right that private property shall not be taken for public use without just compensation, it
proceeded to declare
[t]hese
partake ofAn
the Arsenal
nature of implied
conditions that should
Athat
Library
Ofrequirements
Liberties vis--vis
Of Arms
be complied with to enable the condemnor to keep the property expropriated. More particularly, with
respect to the element of public use, the expropriator should commit to use the property pursuant to the
purpose stated in the petition for expropriation filed, failing which, it should file another petition for the

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new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private
owner, if the latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an
intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent
domain, namely, the particular public purpose for which the property will be devoted. Accordingly, the
private property owner would be denied due process of law, and the judgment would violate the property
owners right to justice, fairness, and equity.
Then, it held: In light of these premises, we now expressly hold that the taking of private property,
consequent to the Governments exercise of its power of eminent domain, is always subject to the
condition that the property be devoted to the specific public purpose for which it was taken. Corollarily,
if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned,
then the former owners, if they so desire, may seek the reversion of the property, subject to the return
of the amount of just compensation received. In such a case, the exercise of the power of eminent
domain has become improper for lack of the required factual justification.
11. Vda. de Ouano v. Republic, 642 SCRA 384 (2011)
This case reiterates Heirs of Moreno16 and Lozada, making the application of the principle
enunciated in Moreno and Lozada more explicit. Here, the Court said, failing to keep its end of the
bargain, MCIAA can be compelled by the former landowners to reconvey the parcels of land to them,
otherwise, they would be denied the use of their properties upon a state of affairs that was not conceived
nor contemplated when the expropriation was authorized. In effect, the government merely held the
properties condemned in trust until the proposed public use or purpose for which the lots were
condemned was actually consummated by the government. Since the government failed to perform the
obligation that is the basis of the transfer of the property, then the lot owners Ouanos and Inocians can
demand the reconveyance of their old properties after the payment of the condemnation price. It was
also made clear here that MCIAA v. Lozada, Sr., revisited and abandoned the Fery.
Expounding on the Courts holding, it stated: In esse, expropriation is forced private property
taking, the landowner being really without a ghost of a chance to defeat the case of the expropriating
agency. In other words, in expropriation, the private owner is deprived of property against his will.
Withal, the mandatory requirement of due process ought to be strictly followed, such that the state must
show, at the minimum, a genuine need, an exacting public purpose to take private property, the purpose
to be specifically alleged or least reasonably deducible from the complaint. Public use, as an eminent
domain concept, has now acquired an expansive meaning to include any use that is of usefulness,
utility, or advantage, or what is productive of general benefit [of the public]. If the genuine public
necessity the very reason or condition as it were allowing, at the first instance, the expropriation of
a private land ceases or disappears,
then there is no
moreCenter
cogent point for the governments retention
Recoletos
Law
of the expropriated land. The same legal situation should hold if the government devotes the property
Barfrom
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2012
to another public use very much different
the original
or deviates from the declared purpose to
benefit another private person. It has been said that the direct use by the state of its power to oblige
landowners to renounce their productive possession to another citizen, who will use it predominantly
for that citizens own private gain, is offensive to our laws. A condemnor should commit to use the
property pursuant to the purpose stated in the petition for expropriation, failing which it should file
another petition for the new purpose. If not, then it behooves the condemnor to return the said property
to its private owner,
the latter
desires. The
government
cannot plausibly
A if
Library
OfsoLiberties
vis--vis
An Arsenal
Of Armskeep the property it
expropriated in any manner it pleases and, in the process, dishonor the judgment of expropriation. This
is not in keeping with the idea of fair play. The notion, therefore, that the government, via expropriation

16

Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport Authority, 413 SCRA 502 (2003).

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proceedings, acquires unrestricted ownership over or a fee simple title to the covered land, is no longer
tenable.
It also worth highlighting what the Court said about expropriated land compared to purchased
realty. Expropriated lands should be differentiated from a piece of land, ownership of which was
absolutely transferred by way of an unconditional purchase and sale contract freely entered by two
parties, one without obligation to buy and the other without the duty to sell. In that case, the fee simple
concept really comes into play. There is really no occasion to apply the fee simple concept if the
transfer is conditional. The taking of a private land in expropriation proceedings is always conditioned
on its continued devotion to its public purpose. As a necessary corollary, once the purpose is terminated
or peremptorily abandoned, then the former owner, if he so desires, may seek its reversion, subject of
course to the return, at the very least, of the just compensation received. To be compelled to renounce
dominion over a piece of land is, in itself, an already bitter pill to swallow for the owner. But to be asked
to sacrifice for the common good and yield ownership to the government which reneges on its assurance
that the private property shall be for a public purpose may be too much. But it would be worse if the
power of eminent domain were deliberately used as a subterfuge to benefit another with influence and
power in the political process, including development firms. The mischief thus depicted is not at all
far-fetched with the continued application of Fery. Even as the Court deliberates on these consolidated
cases, there is an uncontroverted allegation that the MCIAA is poised to sell, if it has not yet sold, the
areas in question to Cebu Property Ventures, Inc. This provides an added dimension to abandon Fery.
12. National Power Corporation v. Purefoods Corporation, 565 SCRA 17 (2008)
The rule that the market value is that sum of money which a person desirous but not compelled to
buy, and an owner willing but not compelled to sell, would agree to as a price to be given and received
therefor is modified where only a part of a certain property is expropriated in such a case the owner
is not restricted to compensation for the portion actually taken but he is also entitled to recover the
consequential damage, if any, to the remaining part of the property while, at the same time, from the total
compensation must be deducted the value of the consequential benefits.
13. National Power Corporation v. Tiangco, 514 SCRA 674 (2007)
Right-of-way easements, transmission lines, and just compensation.
NPCs charter (Republic Act No. 6395) authorizes the corporation to acquire private property and
exercise the right of eminent domain, and 3-A thereof, as inserted by PD 938, limits the easement fee
to 10 percent of the market value of the land. If the NPC is interested only in acquiring an easement of
right-of-way over a property and that ownership of the area over which the right-of-way will be
established shall remain with the owner
of the land,Law
how much
should it pay? NPC claimed that it should
Recoletos
Center
pay only an easement fee in an amount equivalent to ten per cent (10%) of the market value of the
2012
property as declared by the landowner Bar
or by Review
the Municipal
Assessor.
In several cases, the Court struck down NPCs consistent reliance on Section 3-A of Republic Act
No. 6395, as amended by Presidential Decree 938. True, an easement of a right-of-way transmits no
rights except the easement itself, and the respondents would retain full ownership of the property taken.
Nonetheless, the acquisition of such easement is not gratis. The limitations on the use of the property
taken for an indefinite period would deprive its owner of the normal use thereof. For this reason, the
Library
Liberties
vis--vis
An must
Arsenal
Of Arms
latter is entitled to A
payment
ofOf
a just
compensation,
which
be neither
more nor less than the
monetary equivalent of the land taken. While the power of eminent domain results in the taking or
appropriation of title to, and possession of, the expropriated property, no cogent reason appears why said

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power may not be availed of to impose only a burden upon the owner of the condemned property,
without loss of title and possession. However, if the easement is intended to perpetually or indefinitely
deprive the owner of his proprietary rights through the imposition of conditions that affect the ordinary
use, free enjoyment and disposal of the property or through restrictions and limitations that are
inconsistent with the exercise of the attributes of ownership, or when the introduction of structures or
objects which, by their nature, create or increase the probability of injury, death upon or destruction of
life and property found on the land is necessary, then the owner should be compensated for the monetary
equivalent of the land, . . . The Court likewise noted: The evidence suggests that NPCs transmission
line project that traverses the respondents property is perpetual, or at least indefinite, in nature.
Moreover, not to be discounted is the fact that the high-tension current to be conveyed through said
transmission lines evidently poses a danger to life and limb; injury, death or destruction to life and
property within the vicinity. . . . Finally, if NPC were to have its way, respondents will continue to pay
the realty taxes due on the affected portion of their property, an imposition that, among others, merits
the rejection of NPCs thesis of payment of a mere percentage of the propertys actual value.
14. National Power Corporation v. Ibrahim, 526 SCRA 149 (2007)
If one were ever to feel that sinking feeling, that might as well as have been the situation here. From
overhead wires, down to underground tunnels still about NPCs needs to expropriate pursuant to its
mandate. How much to pay for the surface land affected by unseen subterranean tunnels?
Underground tunnels 115 meters below surface were constructed by NAPOCOR way back in
1978, allegedly through stealth and without the landowners knowledge and consent, to be used for
NPCs hydroelectric project in Lanao, siphoning water from Lake Lanao. The clueless owners only
discovered them in 1992 when one owner (Maruhom) requested the Marawi City Water District for a
permit to construct and/or install a motorized deep well and was turned down because such construction
would cause danger to lives and property due to the presence of underground tunnels. When NPC was
asked for payment, it claimed that the sub-terrain does not belong to surface land owners but is part of
public dominion. Is it right? No. The sub-terrain portion of the property similarly belongs to the surface
owner, a conclusion drawn from Article 437 of the Civil Code17 the ownership of land extends to the
surface as well as to the subsoil under it. Registered landowners may even be ousted of ownership and
possession of their properties in the event the latter are reclassified as mineral lands because real
properties are characteristically indivisible. For the loss sustained by such owners, they are entitled to
just compensation under the Mining Laws or in appropriate expropriation proceedings. How far up or
down then do the rights extend? The landowners right extends to such height or depth where it is
possible for them to obtain some benefit or enjoyment, and it is extinguished beyond such limit as there
would be no more interest protected by law.

Recoletos Law Center

To NPCs contention that the underground tunnels in this case constitute an easement upon the
Bar
Review
property of the landowners which did not
involve
any loss2012
of title or possession, the Court ruled: The
manner in which the easement was created by petitioner, however, violates the due process rights of
respondents as it was without notice and indemnity to them and did not go through proper expropriation
proceedings. Petitioner could have, at any time, validly exercised the power of eminent domain to
acquire the easement over respondents property as this power encompasses not only the taking or
appropriation of title to and possession of the expropriated property but likewise covers even the
imposition of a mere
burden Of
upon
the owner
of the condemned
property.
Significantly, though,
A Library
Liberties
vis--vis
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Of Arms

17

The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any works or
make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special laws and
ordinances.

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landowners cannot be deprived of their right over their land until expropriation proceedings are instituted
in court. Further, the Court also observed that the last element of taking mentioned, i.e., that the entry
into the property is under warrant or color of legal authority, was patently lacking, all because of the
mistaken belief that the property formed part of the public dominion.
15. National Power Corporation v. Heirs of Macabangkit Sangkay, 656 SCRA 60 (2011)
And what is inverse condemnation? How does it differ from a claim for damages? The Court had
occasion to discuss the same in another case involving the National Power Corporation and its tunnels
bored deep under the lands of unsuspecting owners.
The Court explained that an action to recover just compensation from the State or its expropriating
agency differs from the action for damages. The former, also known as inverse condemnation, has the
objective to recover the value of property taken in fact by the governmental defendant, even though no
formal exercise of the power of eminent domain has been attempted by the taking agency. . . . On the
other hand, the latter action seeks to vindicate a legal wrong through damages, which may be actual,
moral, nominal, temperate, liquidated, or exemplary. When a right is exercised in a manner not
conformable with the norms enshrined in Article 19 and like provisions on human relations in the Civil
Code, and the exercise results to the damage of another, a legal wrong is committed and the wrongdoer
is held responsible. The two actions are radically different in nature and purpose. The action to recover
just compensation is based on the Constitution while the action for damages is predicated on statutory
enactments. Indeed, the former arises from the exercise by the State of its power of eminent domain
against private property for public use, but the latter emanates from the transgression of a right. The fact
that the owner rather than the expropriator brings the former does not change the essential nature of the
suit as an inverse condemnation, for the suit is not based on tort, but on the constitutional prohibition
against the taking of property without just compensation. It would very well be contrary to the clear
language of the Constitution to bar the recovery of just compensation for private property taken for a
public use solely on the basis of statutory prescription.
For Legal Research purposes, the Court referenced Corpus Juris Secundum (29A CJS, Eminent
Domain, 381): Inverse condemnation is a cause of action against a governmental defendant to recover
the value of property which has been taken in fact by the governmental defendant, even though no formal
exercise of the power of eminent domain has been attempted by the taking agency. While the typical
taking occurs when the government acts to condemn property in the exercise of its power of eminent
domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may
occur without such formal proceedings. The phrase inverse condemnation, as a common understanding
of that phrase would suggest, simply describes an action that is the inverse or reverse of a
condemnation proceeding.
Recoletos Law Center

Bar Review 2012


M.

CONTRACT CLAUSE

The weakest guarantee in the Bill of Rights, it is almost seen as a relic from days past where it must
have had its grandeur. The Clause easily yields to the demands of police power such that the occasions
in which it may prevail could more be the exception than the rule. The impairment clause is no longer
inviolate; in fact, there are many who now believe that is an anachronism in the present-day society.18
A Library
Of Liberties
vis--vis
An Arsenal
Of Armsclause, the principle
Nevertheless, [w]hile
it is true that
the police power
is superior
to the impairment
will apply only where the contract is so related to the public welfare that it will be considered
18

Juarez v. Court of Appeals, 214 SCRA 475 (1992)

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congenitally susceptible to change by the legislature in the interest of the greater number. Most presentday contracts are of that nature.19
Insofar as the taxing power is concerned, it has also been observed that: In truth, the Contract
Clause has never been thought as a limitation on the exercise of the States power of taxation save only
where a tax exemption has been granted for a valid consideration.20 And, that the contractual tax
exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can
rightly be invoked, are those agreed to by the taxing authority in contracts, such as those contained in
government bonds or debentures, lawfully entered into by them under enabling laws in which the
government, acting in its private capacity, sheds its cloak of authority and waives its governmental
immunity. Tax exemptions of this kind may not be revoked without impairing the obligations of
contracts. These contractual tax exemptions, however, are not to be confused with tax exemptions
granted under franchises. A franchise partakes the nature of a grant which is beyond the purview of the
non-impairment clause of the Constitution.21
In Lepanto Consolidated Mining Co. v. WMC Resources Intl. Pty. Ltd., 507 SCRA 315 (2006), the
Court had occasion to apply the Contract Clause. It held that Section 40 of the Philippine Mining Act
of 1995 requiring the approval of the President with respect to assignment or transfer of FTAAs, if made
applicable retroactively to the Columbio FTAA, would be tantamount to an impairment of the
obligations under said contract as it would effectively restrict the right of the parties thereto to assign
or transfer their interests in the said FTAA.

N.

POVERTY AND LEGAL PROTECTION

The Constitution guarantees free access to the courts and quasi-judicial bodies, and likewise
mandates that adequate legal assistance shall not be denied to any person by reason of poverty. This may
mean that those who cannot afford filing fees may get some form of accommodation, such as being
allowed to litigate as paupers, thereby being exempted from the payment of filing fees. Can this be
availed of a juridical person? In Re: Query of Mr. Roger C. Prioreschi re Exemption from Legal and
Filing Fees of the Good Shepherd Foundation, Inc., 596 SCRA 401 (2009), the Court held that only
individuals may be granted exemption from filing fees as indigents foundations, even if serving
indigents, are not entitled. The clear intent and precise language of the aforequoted provisions of the
Rules of Court indicate that only a natural party litigant may be regarded as an indigent litigant.
Accordingly, that the Good Shepherd Foundation, Inc. is working for indigent and underprivileged
people is of no moment. Clearly, the Constitution has explicitly premised the free access clause on a
persons poverty, a condition that Recoletos
only a natural person
suffer.
Lawcan
Center

O.

RIGHTS OF SUSPECTS

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A basket of rights that was refused recognition or parsimoniously applied by the Court in the past
has now grown and expanded to afford protection greater than the text of the original. While the
A Library Of Liberties vis--vis An Arsenal Of Arms

19

National Development Company v. Philippine Veterans Bank, 192 SCRA 257 (1990)

20

Tolentino v. Secretary of Finance, 235 SCRA 630 (1994)

21

Manila Electric Company v. Province of Laguna, 306 SCRA 750 (1999)

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Supreme Court in the not-too-distant past refused to apply the Miranda doctrine22 in People v. Jose, 37
SCRA 450 (1971), and likewise did not recognize any retroactive application of the 1973 Constitution
version of the Miranda warnings,23 the same is now part of the easily-forgotten past. The doctrine has
become firmly entrenched in law and jurisprudence, even constitutionalized at that.24
In regard to expanding the rights of suspects, take note of the newly minted Anti-Torture Act of
2009 (R.A. No. 9745 [2009]). It is meant to implement the guarantees in Section 12 of the Bill of
Rights against torture and other related acts. It adds the right, among others, to be informed of ones right
to demand physical examination by an independent and competent doctor of his/her own choice, which
may be waived, provided it is in writing and in the presence of counsel.25
The rights given to persons somehow thought of having committed a crime or those under custodial
investigation a.k.a., suspects are meant to ensure that they are afforded the chance to exercise
whatever protection is due them in any criminal prosecution. Thus, they are given the opportunity to
exercise their privilege not to incriminate themselves, otherwise there would be no point keeping ones
silence at trial if the damning statements had already been secured during the investigation. Then, to
make sure that the person under investigation knows what that privilege of silence is all about, he is also
given a chance to have the assistance of a lawyer. He may waive his rights, including the assistance of
counsel, provided the same is done in the presence of a lawyer. In the language of the Fundamental Law,
the lawyer must be competent and independent. He must be present from beginning to end, and his
loyalty to the cause of his client must be beyond reproach.26
Then, also, the lawyer should not simply be a lawyer in form. He must also be so in substance, a real
lawyer and not one who took up Law but never made it beyond the bar examinations.27 Moreover,
nobody could take the place of a lawyer. In People v. Ordoo, 334 SCRA 673 (2000), since the place
had no lawyers, the statement of the accused was taken in the presence of Parish Priest, Municipal
Mayor, Chief of Police, other police officers, plus the wife and mother of the accused. The Court held
the confession inadmissible. Even as it commended the police, it held that there is no substitute for
lawyers. To the credit of the police, they requested the presence of the Parish Priest and the Municipal
22

Miranda v. Arizona, 384 U.S. 436 (1966)

23

Magtoto v. Manguera, 63 SCRA 4 (1975)

24

In 2000, the U.S. Supreme Court revisited Miranda and came up with a declaration that Miranda is of constitutional moorings,
a constitutional decision, which could not therefore be overturned by Congress as it represents the Courts reading of what the
Constitution requires, at minimum. (Dickerson v. United States, 530 U.S. 428 [2000])
25

SEC. 12. Right to Physical, Medical and Psychological Examination. Before and after interrogation, every person arrested,
detained or under custodial investigation shall have the right to be informed of his/her right to demand physical examination by an
independent and competent doctor of his/her own choice. If such person cannot afford the services of his/her own doctor, he/she shall be
provided by the State with a competent and independent doctor to conduct physical examination. The State shall endeavor to provide the
victim with psychological evaluation if available under the circumstances. If the person arrested is a female, she shall be attended to
preferably by a female doctor. Furthermore, any person arrested, detained or under custodial investigation, including his/her immediate
family, shall have the right to immediate access to proper and adequate medical treatment.

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*****

Any person who does not wish to avail of the rights under this provision may knowingly and voluntarily waive such rights in writing,
executed in the presence and assistance of his/her counsel.
26

A awyer who notarizes the sworn statement of a suspect whom he assists seriously compromises his independence, because by so
doing, he vouches for the regularity of the circumstances surrounding the taking of the sworn statement by the police. (People v. Labtan,
320 SCRA 140 [1999]) A Library Of Liberties vis--vis An Arsenal Of Arms
Also, lawyers engaged by the police are generally suspect, as in many areas, the relationship between lawyers, and law enforcement
authorities can be symbiotic. (People v. Deniega, 251 SCRA 626 [1995])
27

People v. Basay, 219 SCRA 404 (1993)

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Mayor of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to
witness the voluntary execution by the accused of their statements before the police. Nonetheless, this
did not cure in any way the absence of a lawyer during the investigation. R.A. 7438 does not propose
that they appear in the alternative or as a substitute for counsel.
How about media interviews? In People v. Endino, 352 SCRA 307 (2001), the Court advised trial
courts not to simplistically admit such confessions. [B]ecause of the inherent danger in the use of
television as a medium for admitting ones guilt, and the recurrence of this phenomenon in several
cases, it is prudent that trial courts are reminded that extreme caution must be taken in further
admitting similar confessions. For in all probability, the police, with the connivance of unscrupulous
media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond
the exclusionary rule by having an accused admit an offense on television. Such a situation would be
detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system.28 With
the foregoing pronouncements of the Court relative to admissions or confessions made to media men,
should it not also consider having the right to be advised of ones Miranda rights including the right
to counsel to be done prior to any interviews made by the media? The right to counsel and the right
not to incriminate oneself might become useless if the print and broadcast reporters are allowed to make
the interviews even before the suspect had the opportunity to think for himself in a voluntary and an
informed manner whether to speak or not. This element of knowing and voluntary waiver may only be
safeguarded in the spirit of the Miranda doctrine through the assistance of counsel timely made.29
1. People v. Reyes, 581 SCRA 691 (2009)
When really do the Miranda Rights kick in? In People v. Marra,30 and People v. Ting Lan Uy, Jr.,31
the Court held, in effect, that the rights would only be available if a person has already been arrested and
in custody. However, in this case of Reyes,, we find this line: The mantle of protection afforded by the
above-quoted constitutional provision [Art. III, 12] covers the period from the time a person is taken
into custody for the investigation of his possible participation in the commission of a crime or from the
time he is singled out as a suspect in the commission of the offense although not yet in custody.
2. People v. Rapeza, 520 SCRA 596 (2007)
Where the participation of a lawyer in the proceedings was confined to the notarization of the
suspects confession, the same is not the kind of legal assistance that the suspect is accorded under the
Constitution. The suspect must also be advised that he has the option to reject the counsel provided him
by the police authorities, which must also appear in the written confession.32 (This latter statement, is
it the beginning of a new right in the mold of the seventh paragraph of Morales, Jr. v. Enrile, 121 SCRA
Recoletos
Law
Center
538 [1983] that the right to counsel
may be waived
provided
it is done with the assistance of counsel?)

Bar Review 2012


28

People v. Morada, 307 SCRA 362 (1999), also carried the same message that media men must not be acting for police.

29

See Rene B. Gorospe, Beyond Stonehill: Extending the Exclusionary Rule to Uncounselled Media Confessions, UST Law
Review, Vol. XLVIII (January-December 2004), at 131-190. (http://ustlawreview.com/pdf/vol.XLVIII/Articles/Beyond_Stonehill.pdf)
30

236 SCRA 565 (1994)

31

475 SCRA 248 (2005)


A Library

32

Of Liberties vis--vis An Arsenal Of Arms

The pronouncement in Rapesz may also be related to what the Court said in People v. Casimiro, 383 SCRA 390 (2002), on
incomplete Miranda Warning: The warning was incomplete. It did not include a statement that, if accused-appellant could not afford
a counsel, one would be assigned to him. The warning was perfunctory, made without any effort to find out if he understood it. It was
merely ceremonial and inadequate in transmitting meaningful information to the suspect.

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3. People v. Lauga, 615 SCRA 548 (2010)


In People v. Malngan, 503 SCRA 294 (2006), the Court considered the confessions made to a
barangay chairman inadmissible since there was no Miranda Warning given prior to questioning. The
Court observed: Arguably, the barangay tanods, including the Barangay Chairman, in this particular
instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1)
and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning
of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several
houses as well as killed the whole family of Roberto Separa, Sr. She was, therefore, already under
custodial investigation and the rights guaranteed by Article III, Section 12 (1), of the Constitution should
have already been observed or applied to her.33
Taking the teachings and spirit of Malngan further, the Court held in Lauga that Bantay Bayan
members or voluntary barangay-based anti-crime or neighborhood watch groups should similarly be
covered by the Miranda Doctrine. The Court observed that they are recognized by the local government
units to perform functions relating to the preservation of peace and order at the barangay level. Thus,
on the authority to conduct a custodial investigation, any inquiry they make has the color of a
state-related function and objective insofar as the entitlement of a suspect to his constitutional rights
provided for under Article III, Section 12 of the Constitution. Accordingly, any extrajudicial confession
taken without a counsel is inadmissible in evidence.
4. People v. Ganih, 621 SCRA 159 (2010)
Line-ups do not generally require that the suspect be informed of his Miranda Rights. However,
some line-ups or show-ups (only one person is presented to the witness) may be highly suggestive,
thus requiring some procedural safeguards. In this case, there was a line-up of sorts whereby the witness
stayed in her vehicle with tinted glass and took a look at the suspect and three other men. Was this
proper? The Court said yes. [T[he manner in which Mrs. Lee identified Ganih was substantially the
same as in any proper police line-up except that this one took place outside the police station on account
of Mrs. Lees desire not to be seen while making the identification. The police did not show Ganih alone
to Mrs. Lee, which would suggest that he was their suspect. They made three other men stand with Ganih
in front of the police station while Mrs. Lee gazed on them behind the tinted windows of her vehicle.
What the Court condemns are prior or contemporaneous improper suggestions that point out the suspect
to the witness as the perpetrator to be identified.

Recoletos Law Center


33

Bar Review 2012

In People v. Ulit, 423 SCRA 374 (2004), the Barangay chairman ordered the barangay tanods to invite and bring the accused
to the barangay hall, and thereafter asked the accused if he raped the complainant. The suspect admitted and executed a sworn statement
to that effect. The Court said that the uncounselled sworn statement of the accused was considered admissible because he was not then
under arrest nor under custodial investigation. The exclusionary rule is premised on the presumption that the defendant is thrust into an
unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and
psychological, is forcefully apparent. As intended by the 1971 Constitutional Convention, this covers investigation conducted by police
authorities which will include investigations conducted by the municipal police, the PC and the NBI and such other police agencies in
our government. The barangay chairman is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article
III of the Constitution. Under
these circumstances,
it cannot bevis--vis
successfully An
claimed
that the appellants
statement before the barangay
A Library
Of Liberties
Arsenal
Of Arms
chairman is inadmissible. (Both Ulit and Samus were en banc decisions.)

In People v. Tomaquin, 435 SCRA 23 (2004), the Court noted that a barangay captain is called upon to enforce the law and
ordinances in his barangay and ensure peace and order at all times. As such, he could not be considered as an independent counsel for
the purpose of assisting a suspect.

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P. RIGHTS OF THE ACCUSED


Once a person under investigation is found to be probably guilty of the commission of a crime, he
is charged in court thereby becoming an accused, entitled to another set of rights, from the presumption
of innocence to an opportunity to avail of momentary liberty through bail, to being informed of the
charges, to setting out his defense by himself or counsel, facing his accusers and testing their credibility,
speedy, impartial and public trial, and compulsory process for the production of witnesses and evidence
in his behalf. Through all of these, he is assured of the guarantee of being heard before judgment is
rendered.34
1. Lejano v. People, 638 SCRA 104 (2010)
The Court held here that an accused is not entitled to acquittal for the failure of the State to produce
the semen specimen at a late stage, when his case is already on appeal. The ruling in Brady v. Maryland,
373 U.S. 83 (1963), has long be overtaken by the decision in Arizona v. Youngblood, 488 U.S. 41
(1988), where the U.S. Supreme Court held that due process does not require the State to preserve the
semen specimen although it might be useful to the accused unless the latter is able to show bad faith on
the part of the prosecution or the police.
On the need for impartiality amidst tendency of some judges to take the easy way out, what the Court
said about downplaying at once the defense of alibi is also instructive. The Court admonished that not
all denials and alibis should be regarded as fabricated indeed, if the accused is truly innocent, he can
have no other defense but denial and alibi. A judge must keep an open mind, guarding against slipping
into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case a positive
declaration from a witness that he saw the accused commit the crime should not automatically cancel
out the accuseds claim that he did not do it. A lying witness can make as positive an identification as
a truthful witness can.
2. Government of Hong Kong Special Administrative Region v. Olalia, Jr., 521 SCRA 470
(2007)
Bail acts as a reconciling mechanism to accommodate both the accuseds interest in pretrial liberty
and societys interest in assuring the accuseds presence at trial, so said the Court in Leviste v. Court
of Appeals, 615 SCRA 619 (2010). An erroneously convicted accused who is denied bail loses his
liberty to pay a debt to society he has never owed. Is it also available for someone who is being sought
to be extradited?
In Government of the United States of America v. Purganan, 389 SCRA 623 (2002), the majority
Recoletos Law Center
ruled that a potential extraditee is not entitled to notice and hearing before the issuance of a warrant of
arrest. Confronted anew with the question as to whether a potential extraditee is entitled to bail, the
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Court in Government of Hongkong found occasion to revisit what it had earlier decreed in Purganan.
It noted that the modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights, citing the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights. Fundamental among the rights enshrined
in the International Covenant on Civil and Political Rights are the rights of every person to life, liberty,
and due process. While the Court in Purganan limited the exercise of the right to bail to criminal
A of
Library
Of Liberties
vis--vis
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Of Arms
proceedings, in light
the various
international
treaties An
giving
recognition
and protection to human

34

In People v. Alcanzado, 428 SCRA 681 (2004), the Court held that if a demurrer to evidence with leave of court is denied, the trial
court should give the accused the opportunity to present his evidence. It cannot simply proceed to convict him.

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rights, particularly the right to life and liberty, a reexamination of the Courts ruling in Purganan was
accordingly in order. The Court reasoned out that if bail can be granted in deportation cases, it saw no
justification why it should not also be allowed in extradition cases clearly, the right of a prospective
extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines
concerning respect for the promotion and protection of human rights.
While extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the
purpose of extradition is also the machinery of criminal law obviously, an extradition
proceeding, while ostensibly administrative, bears all earmarks of a criminal process . By any standard,
detention for an extended period of more than two (2) years is a serious deprivation of a potential
extraditees fundamental right to liberty. While the Philippines extradition law does not provide for the
grant of bail to an extraditee, however, there is no provision prohibiting him or her from filing a motion
for bail, a right to due process under the Constitution.
Nevertheless, the applicable standard of due process should not be the same as that in criminal
proceedings in the latter, the standard of due process is premised on the presumption of innocence of
the accused, in the former, the assumption is that such extraditee is a fugitive from justice. Thus, the
prospective extraditee bears the onus probandi of showing that he or she is not a flight risk and should
be granted bail. An extradition proceeding being sui generis, the standard of proof required in granting
or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of
proof of preponderance of evidence in civil cases. The potential extraditee must prove by clear and
convincing proof that he is not a flight risk and will abide with all orders and processes of the
extradition court.
3. Trillanes IV v. Pimentel, Sr., 356 SCRA 471 (2008)
What does the presumption of innocence entail? The Court said that the presumption of innocence
does not carry with it the full enjoyment of civil and political rights. Accordingly, in this case even as
someone charged with coup detat a non-bailable offense was elected to Congress, he was not
allowed to leave his prison cell in order to join his colleagues in the legislative branch.
The Court further held that [t]he rule stands that until a promulgation of final conviction is made,
the constitutional mandate of presumption of innocence prevails.
4. Re: Conviction of Judge Adoracion G. Angeles, RTC, Br. 121, Caloocan City in Criminal
Cases Nos. Q-97-69655 to 56 for Child Abuse, 543 SCRA 196 (2008)
Does the presumption of innocence come to an end when there is conviction by the trial court, even
Recoletos Law Center
if there is an appeal taken? In this case, the Court echoed what was said Trillanes the presumption is
lost only when there is a final judgment. Accordingly,the fact of [the judges] conviction by the RTC
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does not necessarily warrant her suspension. We agree with [her] argument that since her conviction of
the crime of child abuse is currently on appeal before the CA, the same has not yet attained finality. As
such, she still enjoys the constitutional presumption of innocence. It must be remembered that the
existence of a presumption indicating the guilt of the accused does not in itself destroy the constitutional
presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack
of any evidence or explanation, proves the accuseds guilt beyond a reasonable doubt.
A Library Of Liberties vis--vis An Arsenal Of Arms
5. People v. Abulon, 530 SCRA 675 (2007)

Rape through Sexual Intercourse v. Rape by Sexual Assault. In view of the material differences

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between the two modes of rape,35 the first mode is not necessarily included in the second, and vice-versa.
Thus, where the charge in the Information is rape through carnal knowledge, the accused cannot be
found guilty of rape by sexual assault even if proven, for this would violate his constitutional right to
be informed of the nature and cause of the accusation against him. However, following the variance
doctrine he can be found guilty of the lesser crime of acts of lasciviousness.
In contrast, we have Andaya v. People, 493 SCRA 539 (2006). Here, the charge was Falsification
of Private Documents but no damage to offended party was proved. The accused was still convicted by
the trial court, nevertheless, for intent to cause damage to the government through evasion of tax.
Despite the trial courts concession that the allegedly offended party (a savings and loan association)
suffered no damage, it still convicted the accused, reasoning out that the third essential element of
falsification of private document was present because the falsification of the voucher was done with
criminal intent to cause damage to the government considering that its purpose was to lower the tax base
of the recipient of the money, allowing him to evade payment of taxes. The Supreme Court disagreed,
however. The Court pointed out that [n]o matter how conclusive and convincing the evidence of guilt
may be, an accused cannot be convicted of any offense unless it is charged in the information on which
he is tried or is necessarily included therein. To convict him of a ground not alleged while he is
concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule
is that a variance between the allegation in the information and proof adduced during trial shall be fatal
to the criminal case if it is material and prejudicial to the accused so much so that it affects his
substantial rights.
6. Re: Petition for Radio and Television Coverage of the Multiple Murder Cases Against
Maguindanao Governor Zaldy Ampatuan, 652 SCRA 1 (2011)
In Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquinos Libel Case36
and Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against
the Former President Joseph E. Estrada, 360 SCRA 248 (2001), the Supreme Court did not allow for
live radio-TV coverage of the trials involved therein. Now, in regard to the so-called Maguindanao
Massacre where there were 57 victims and 197 accused, the Court is being asked once more to allow for
such live broadcast of the proceedings. Would the request fare any better. Yes, the Court said. Pro hac
vice.
Here, the Court highlighted the delicate balance between seemingly competing yet certainly
complementary rights the right of the accused to a fair trial free from prejudice caused by undue
publicity, and the right of the people to know what is happening inside the courthouse. The Court
explained: The rationale for an outright total prohibition was shrouded, as it is now, inside the
LawnoCenter
comfortable cocoon of a feared Recoletos
speculation which
scientific study in the Philippine setting
confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing
Bar
rules and exacting regulations. In this
day Review
and age, it is2012
about time to craft a win-win situation that
shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied
rights, and interfere with the integrity, dignity and solemnity of judicial proceedings. Compliance with
regulations, not curtailment of a right, provides a workable solution to the concerns raised in these
administrative matters, while, at the same time, maintaining the same underlying principles upheld in
the two previous cases. The Court further stated that the right of an accused to a fair trial is not
incompatible to a free
press, thatOf
pervasive
publicity
is notAn
perArsenal
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to the right of an accused
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Liberties
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35

Rape through sexual intercourse is also denominated as organ rape or penile rape. On the other hand, rape by sexual assault
is otherwise called instrument or object rape, also gender-free rape, or the narrower homosexual rape.
36

En Banc Resolution of October 22, 1991.

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to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render
a bias-free decision. Mere fear of possible undue influence is not tantamount to actual prejudice resulting
in the deprivation of the right to a fair trial.
Making use of the totality of circumstances test, the Court paved the way, pro hac vice, for the live
broadcast of the proceedings subject of the case. One apparent circumstance that sets the Maguindanao
Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the
cases the private complainants/families of the victims and other witnesses inside the courtroom. The
Court explained that [e]ven before considering what is a reasonable number of the public who may
observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already
necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57
victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the
proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that the
prosecution and the defense have listed more than 200 witnesses each. The impossibility of holding such
judicial proceedings in a courtroom that will accommodate all the interested parties, whether private
complainants or accused, is unfortunate enough. What more if the right itself commands that a
reasonable number of the general public be allowed to witness the proceeding as it takes place inside the
courtroom. Technology tends to provide the only solution to break the inherent limitations of the
courtroom, to satisfy the imperative of a transparent, open and public trial. In so allowing pro hac vice
the live broadcasting by radio and television of the Maguindanao Massacre cases, the Court lays down
the following guidelines toward addressing the concerns mentioned in Aquino and Estrada.
So, what are the guidelines?
(a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes
and for transmittal to live radio and television broadcasting.
(b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast
the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical
plan to carry out the same, with an undertaking that they will faithfully comply with the guidelines and regulations
and cover the entire remaining proceedings until promulgation of judgment.
No selective or partial coverage shall be allowed. No media entity shall be allowed to broadcast the proceedings
without an application duly approved by the trial court.
(c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single
wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid unduly
highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated
and controlled only by a duly designated official or employee of the Supreme Court. The camera equipment should
not produce or beam any distracting sound or light rays. Signal lights or signs showing the equipment is operating
should not be visible. A limited number of microphones and the least installation of wiring, if not wireless
Recoletos
LawbyCenter
technology, must be unobtrusively located
in places indicated
the trial court.
The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial
Review 2012
court on the physical set-up of the cameraBar
and equipment.
(d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be
conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and
solemnity of the proceedings and the exclusivity of the access to the media entities.

The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings
shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome
snaking cables inside
courtroom,
minimize thevis--vis
unnecessaryAn
ingress
or egress of
technicians,
A the
Library
Of(ii)Liberties
Arsenal
Of
Arms and (iii) preclude
undue commotion in case of technical glitches.
If the premises outside the courtroom lack space for the set-up of the media entities facilities, the media entities
shall access the audio-visual recording either via wireless technology accessible even from outside the court

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premises or from one common web broadcasting platform from which streaming can be accessed or derived to feed
the images and sounds.
At all times, exclusive access by the media entities to the real-time audio-visual recording should be protected
or encrypted.
(e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting
such portions thereof where Sec. 21 of Rule 119 of the Rules of Court37 applies, and where the trial court excludes,
upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved
identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony
(e.g., the dovetailing of corroborative testimonies is material, minority of the witness).
The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or
mute the audio output, or both.
(f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall
be allowed until the days proceedings are adjourned, except during the period of recess called by the trial court and
during portions of the proceedings wherein the public is ordered excluded.
(g) To avoid overriding or superimposing the audio output from the on-going proceedings, the proceedings shall
be broadcast without any voice-overs, except brief annotations of scenes depicted therein as may be necessary to
explain them at the start or at the end of the scene. Any commentary shall observe the sub judice rule and be subject
to the contempt power of the court;
(h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except
brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news
purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court;
(i) The original audio-recording shall be deposited in the National Museum and the Records Management and
Archives Office for preservation and exhibition in accordance with law.
(j)The audio-visual recording of the proceedings shall be made under the supervision and control of the trial
court which may issue supplementary directives, as the exigency requires, including the suspension or revocation
of the grant of application by the media entities.
(k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate
arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live
broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines. The Special Committee
shall also report and recommend on the feasibility, availability and affordability of the latest technology that would
meet the herein requirements. It may conduct consultations with resource persons and experts in the field of
information and communication technology.
(l) All other present directives in the conduct of the proceedings of the trial court (i.e., prohibition on recording
devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom)
shall be observed in addition to these guidelines.

And, talking of new and constantly developing technology seen alongside the slower and phlegmatic
38
movement of law, the Court observed:
Putts LawLaw
states
that technology is dominated by two types
Recoletos
Center
of people: those who understand what they do not manage, and those who manage what they do not
understand. Indeed, members of this Court
strip their
judicial robe and don the experts gown,
Bar cannot
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2012
so to speak, in a pretense to foresee and fathom all serious prejudices or risks from the use of technology
inside the courtroom. And, towards the end the Court concluded: Indeed, the Court cannot gloss over
what advances technology has to offer in distilling the abstract discussion of key constitutional precepts
into the workable context. Technology per se has always been neutral. It is the use and regulation thereof
that need fine-tuning. Law and technology can work to the advantage and furtherance of the various

37

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Exclusion of the public. The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced
during the trial is offensive to decency or public morals.He may also, on motion of the accused, exclude the public from the trial except
court personnel and the counsel of the parties.
38

Based on the 1981 book entitled Putts Law and the Successful Technocrat which is attributed to the pseudonym Archibald Putt.

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rights herein involved, within the contours of defined guidelines.39


As for taking the bar exams is concerned, the hardship and torture that go with it nee not necessarily
be in conflict with the quest for happiness. There is joy and thrill in the eventually prevailing after a hard
days work.

Q.

WRITS OF HABEAS CORPUS AND AMPARO

The privilege of the writ of habeas corpus affords one who may be unlawfully detained an
opportunity to have an expeditious inquiry into the nature of the deprivation of liberty such that if there
is no legal basis for the same then he should be set free. It also affords a remedy in custody fights in the
domestic battle grounds to determine who may have better right over a person who could not take care
of his own affairs. However, [t]he mere loss or destruction of the records of a criminal case subsequent
to conviction of the accused will not render the judgment of conviction void, nor will it warrant the
release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of
judicial records which is as much a duty of the prosecution as of the defense.40
In Martinez v. Mendoza, 499 SCRA 234 (2006), the Court held that the grant of relief in a habeas
corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. It may
not be used as a means of obtaining evidence on the whereabouts of a person, or as a means of finding
out who has specifically abducted or caused the disappearance of a certain person. When forcible taking
and disappearance not arrest and detention have been alleged, the proper remedy is not habeas
corpus proceedings, but criminal investigation and proceedings, or lately, the writ of amparo.
Years before the writ of amparo, the Supreme Court said in Subayno v. Enrile, 145 SCRA 282
(1986), that the writ of habeas corpus may not be used as a means of obtaining evidence on the
whereabouts of a person. Then, in Martinez v. Mendoza, 499 SCRA 234 (2006), the Court held that the
grant of relief in a habeas corpus proceeding is not predicated on the disappearance of a person, but on
his illegal detention. It may not be used as a means of obtaining evidence on the whereabouts of a
person, or as a means of finding out who has specifically abducted or caused the disappearance of a
certain person. When forcible taking and disappearance not arrest and detention have been alleged,
the proper remedy is not habeas corpus proceedings, but criminal investigation and proceedings. That
was then. Now, we have also the writ of amparo.
1. Aquino v. Esperon, 531 SCRA 788 (2007)
As a general rule, the writ of habeas
corpus will
not issue
where the person alleged to be restrained
Recoletos
Law
Center
of his liberty is in the custody of an officer under a process issued by the court which has jurisdiction
to do so it is unavailing where the legality
a military officers
BarofReview
2012 restraint has been settled, namely, that
he stands charged in court martial proceedings for alleged violations of Article 67 (Attempting to Begin
or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of
War. Habeas corpus is not the proper mode to question conditions of confinement. As a rule, the writ
of habeas corpus does not extend into questions of conditions of confinement but only to the fact and
duration of confinement not a means for redress of grievances or to seek injunctive relief or damages.

A Library Of Liberties vis--vis An Arsenal Of Arms


39

Have you noticed how you have made use of modern means of communications and entertainment as tools in your study of law,
such as in internet research not only for cases but also for digests, reliable or otherwise?
40

Feria v. Court of Appeals, 325 SCRA 525 (2000)

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Further, under the hands-off doctrine, the courts give deference to military custodians over prison
matters, especially on blanket restrictions on contact visit it is a form of judicial self-restraint, that
courts should decline jurisdiction over prison matters in deference to administrative expertise.
2. Manalo v. Calderon, 536 SCRA 290 (2007)
When policemen are subject to certain investigations, they may be placed on restrictive custody or
subjected to monitored movements. Are these subject to habeas corpus proceedings?
A restrictive custody and monitoring of movements or whereabouts of police officers under
investigation by their superiors is not a form of illegal detention or restraint of liberty which merits the
grant of a petition for habeas corpus. The prime specification of an application for a writ of habeas
corpus is an actual and effective, and not merely nominal or moral, illegal restraint of liberty:
[D]ecreeing the monitoring of their movements cannot, by any stretch of the imagination, be considered
as a form of curtailment of their freedom guaranteed under our Constitution. Moreover, the restrictive
custody complained of by petitioners is, at best, nominal restraint which is beyond the ambit of habeas
corpus. It is neither actual nor effective restraint that would call for the grant of the remedy prayed for.
It is a permissible precautionary measure to assure the PNP authorities that the police officers concerned
are always accounted for. Placing police officers facing a grave administrative case under restrictive
custody is a disciplinary measure authorized under the PNP law.
Does not the fact that the police force is actually civilian in nature rather than military in character
make a difference? [A]lthough the PNP is civilian in character, its members are subject to the
disciplinary authority of the Chief, Philippine National Police, under the National Police
Commission. Courts cannot, by injunction, review, overrule or otherwise interfere with valid acts
of police officials. The police organization must observe self-discipline and obey a chain of
command under civilian officials. Elsewise stated, police officers are not similarly situated with
ordinary civil service employees. The PNP has its own administrative disciplinary mechanism different
from those of other government employees.
3. WRIT OF AMPARO
Since the privilege of the writ of habeas corpus does not reach out to cases where the fact of
detention is denied, or the identity of those keeping a person, or his whereabouts are uncertain, the
Supreme Court came up with the Writ of Amparo.41 This is a remedy available to any person whose right
to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity. It covers extralegal killings and enforced
disappearances or threats thereof.Recoletos
In contrast to the
writ Center
of habeas corpus, under the Writ of Amparo
Law
it is not enough for the respondent to simply disclaim any knowledge of the aggrieved person subject
of the writ, or the surrounding circumstances
about the latter.
He is also duty bound to state the steps or
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2012
actions taken to determine the fate or whereabouts of said person and the person or persons responsible
for the threat, act or omission. He is also bound to disclose all relevant information in his possession
pertaining to the threat, act or omission against the aggrieved person, as well as to state other matters
relevant to the investigation, its resolution and the prosecution of the case.42 The writ of amparo is an
extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs
A Library Of Liberties vis--vis An Arsenal Of Arms
available to the petitioner. It is not an action to determine criminal guilt requiring proof beyond

41

Effective 24 October 2007, pursuant to A.M. No. 07-0-12-SC (25 September 2007).

42

See also the Rule on the Writ of Habeas Data discussed in the section on Searches and Seizures.

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reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative


responsibility requiring substantial evidence that will require full and exhaustive proceedings. Rather,
it serves both preventive and curative roles in addressing the problem of extrajudicial killings and
enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission
of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by
inevitably leading to subsequent investigation and action.43
Among the significant characteristics and features of the remedy of writ of amparo are the following:
(a) it does not determine criminal, civil or administrative liability; (b) it simply determines responsibility
and accountability;44 (c) it provides for flexibility in regard to rules of evidence, adopting the doctrine
of totality of evidence in that courts consider all the pieces of evidence adduced in their totality, and
consider any evidence otherwise inadmissible under usual rules to be admissible if it is consistent with
the admissible evidence adduced, thus allowing for the admission of hearsay evidence; (d) the doctrine
of command responsibility doctrine may likewise find application in proceedings seeking the privilege
of the writ of amparo; (e) the writ is immediately executory and need not to await a motion for
execution; (f) the retirement, reassignment or separation from the service of respondents does not
necessarily terminate their amenability to the amparo proceedings.
In Balao v. Macapagal-Arroyo, SCRA (G.R. No. 186050, 13 December 2011), the Court held
that the documented practice of targeting activists in the militarys counter-insurgency program by itself
does not fulfill the evidentiary standard provided in the Amparo Rule to establish an enforced
disappearance.
4. Secretary of National Defense v. Manalo, 568 SCRA 1 (2008)
While victims of enforced disappearances are separated from the rest of the world behind secret
walls, they are not separated from the constitutional protection of their basic rights. The constitution is
an overarching sky that covers all in its protection. Thus the Court began its decision in the first very
petition filed for a Writ of Amparo.45
As to the Writs origin and nature, the Court said: The writ of amparo originated in Mexico.
Amparo literally means protection in Spanish. Amparo combines the principles of judicial review
derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition
which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights
in particular cases, but prevents them from using this power to make law for the entire nation. Through
time, adoption and adaptations in some other places, it has also begun to assume different forms for
different purposes (1) amparo libertad for the protection of personal freedom, equivalent to the habeas
corpus writ; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3)

Recoletos Law Center

43
44

Rodriguez v. Macapagal-Arroyo, 660 SCRA 84 (2011), citing Secretary of National Defense v. Manalo, 568 SCRA 1 (2008)

Bar Review 2012

Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way,
by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file
the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, refers to the measure of
remedies that should be addressed to those [i] who exhibited involvement in the enforced disappearance without bringing the level of
their complicity to the level of responsibility; or [ii] who are imputed with knowledge relating to the enforced disappearance and who
carry the burden of disclosure; or [iii] those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance.

45

An earlier petition for writ of habeas corpus had been withdrawn following the escape of the the Manalo brothers who were until
A Library
Of Liberties
An
Arsenal
then illegally detained following
their abduction
by soldiers andvis--vis
members of the
CAFGU.
Even asOf
theyArms
were already not deprived of their
liberty, they still feared for their lives and security. Therefore, they filed a petition for Prohibition, Injunction and TRO to stop the Secretary
of National Defense and the Chief of Staff of the Armed Forces, as well as persons under them, from doing them harm. The moment the
rules on the writ of amparo became effective, however, they asked the Court to convert their petition to one for Writ of Amparo and the
Court forthwith acceded.

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amparo casacion for the judicial review of the constitutionality and legality of a judicial decision; (4)
amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the
protection of peasants rights derived from the agrarian reform process.
In the Philippines, before the adoption of the Amparo Rules, we had the constitutional guarantee of
right to life, liberty and security under the Due Process Clause and the right against unreasonable
searches and seizures (Art. II, 1 and 2), enforceable by means of the writ of habeas corpus (Art. III,
15) as well as the Grave Abuse Clause46 (Art. VIII, 1, 2). On the Grave Abuse Clause, the Court said:
The Clause accords a similar general protection to human rights extended by the amparo contra leyes,
amparo casacion, and amparo administrativo. Amparo libertad is comparable to the remedy of habeas
corpus found in several provisions of the 1987 Constitution. The Clause is an offspring of the U.S.
common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v.
Madison. But the means then available were obviously inadequate remedy to pressing problems of
extralegal killings and enforced disappearances which cried out for better solutions. Thus, the writ of
amparo. While constitutional rights can be protected under the Grave Abuse Clause through remedies
of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under
Rule 102, these remedies may not be adequate to address the pestering problem of extralegal killings and
enforced disappearances. However, with the swiftness required to resolve a petition for a writ of amparo
through summary proceedings and the availability of appropriate interim and permanent reliefs under
the Amparo Rule, this hybrid writ of the common law and civil law traditions borne out of the Latin
American and Philippine experience of human rights abuses offers a better remedy to extralegal
killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as
it partakes of a summary proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and exhaustive proceedings.
In fine, amparo writ serves both preventive and curative roles in addressing the problem of
extralegal killings and enforced disappearnces. The Amparo Rule was intended to address the
intractable problem of extralegal killings and enforced disappearances. Its coverage, in its present
form, is confined to these two instances or to threats thereof. And what do you mean by those terms?
Extralegal killings are killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings. On the other hand, enforced disappearances are attended by the following
characteristics: an arrest, detention or abduction of a person by a government official or organized groups
or private individuals acting with the direct or indirect acquiescence of the government; the refusal of
the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the
Law the
Center
deprivation of liberty which placesRecoletos
such persons outside
protection of law.
The writ of amparo is available to those whose right to life, liberty and security is violated or
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threatened with violation. So what does the right entail? The right to security or the right to security
of person finds a textual hook in Article III, Section 2 of the 1987 Constitution. This guarantees
immunity of ones person, including the extensions of his/her person houses, papers, and effects
against government intrusion. And while the right to life guarantees essentially the right to be alive
upon which the enjoyment of all other rights is preconditioned the right to security of person is a
guarantee of the secure quality of this life. So, what in more concrete terms are included within the right
A Library
vis--vis
An Arsenal
Arms
to security? The Court
spoke ofOf
theLiberties
permutations
of the right
to security.Of
The
first would be freedom
from fear. In the context of Section 1 of the Amparo Rule, freedom from fear is the right and any

46

This seems to be the first time that the Court made use of this term.

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threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. . . . Thus, in the amparo context, it is more correct to
say that the right to security is actually the freedom from threat. Viewed in this light, the
threatened with violation Clause in the latter part of Section 1 of the Amparo Rule is a form of
violation of the right to security mentioned in the earlier part of the provision. The second is a
guarantee of bodily and psychological integrity or security. Physical injuries inflicted in the context
of extralegal killings and enforced disappearances constitute more than a search or invasion of the body.
Also, [p]hysical torture, force, and violence are a severe invasion of bodily integrity. When employed
to vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information,
it constitutes an invasion of both bodily and psychological integrity as the dignity of the human person
includes the exercise of free will. The third is a guarantee of protection of ones rights by the
government. The right to security of person in this third sense is a corollary of the policy that the State
guarantees full respect for human rights under Article II, Section 11 of the 1987 Constitution. . . .
Protection includes conducting effective investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or
their families, and bringing offenders to the bar of justice. And, must there be a prior deprivation of
liberty? No. [T]here need not necessarily be a deprivation of liberty for the right to security of person
to be invoked.
How fares the petition in the instant case? On the aspect about freedom from threat the Court
held: [T]he circumstances of respondents abduction, detention, torture and escape reasonably support
a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even
executed. These constitute threats to their liberty, security, and life, actionable through a petition for a
writ of amparo. With regard to the right to Government protection, the Court observed: Apart from
the failure of military elements to provide protection to respondents by themselves perpetrating the
abduction, detention, and torture, they also miserably failed in conducting an effective investigation of
respondents abduction as revealed by the testimony and investigation report of petitioners own witness,
. . . The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided.
Further, amost a year after the policy directive was issued by petitioner Secretary of National Defense
on October 31, 2007, respondents have not been furnished the results of the investigation which they
now seek through the instant petition for a writ of amparo. The Court concluded: Under these
circumstances, there is substantial evidence to warrant the conclusion that there is a violation of
respondents right to security as a guarantee of protection by the government. In other words,
respondents right to security as freedom from threat is violated by the apparent threat to their life,
liberty and security of person. Their right to security as a guarantee of protection by the government is
likewise violated by the ineffectiveRecoletos
investigation and
protection
on the part of the military.
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Center
So what reliefs are available? One would be the production by the responsible officials and persons
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of all official and unofficial reports ofBar
the investigation
undertaken in connection with their case, all
medical reports, records and charts, reports of any treatment given or recommended and medicines
prescribed, if any, to include a list of medical and (sic) personnel (military and civilian) who attended
to the brothers while in detention. And, in this regard, the Court clarified the nature of an amparo
production order. The production order under the Amparo Rule should not be confused with a search
warrant for law enforcement under Article III, Section 2 of the 1987 Constitution. This Constitutional
provision is a protection
of theOfpeople
from vis--vis
the unreasonable
intrusion
the government, not a
A Library
Liberties
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Of of
Arms
protection of the government from the demand of the people such as respondents. Instead, the amparo
production order may be likened to the production of documents or things under Section 1, Rule 27 of
the Rules of Civil Procedure.

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Another relief is the disclosure of the present places of official assignments of identified military
personnel who might have had something to do with the abduction, detention and torture of the amparo
petitioners. The disclosure of the present places of assignment of [two military men] whom respondents
both directly implicated as perpetrators behind their abduction and detention, is relevant in ensuring the
safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help
ensure that these military officers can be served with notices and court processes in relation to any
investigation and action for violation of the respondents rights.
And by way of final note, the Court declared: The writ of amparo is a tool that gives voice to preys
of silent guns and prisoners behind secret walls. (Now, as for you, the Bar examinee, it is time to give
voice to your silent pens and to break free from the prison walls you have made out of your unfounded
trepidations about the Bar exams!)
5. Razon, Jr. v. Tagitis, 606 SCRA 598 (2009) and 612 SCRA 685 (2010)
The remedy under the Writ of Amparo is a work in progress, and we are all witnesses to the same.
In this case the Court further expounded on the nature and importance of the Writ of Amparo. The
Court said that the Writ of Amparo does not determine guilt nor pinpoint criminal culpability for the
disappearance; rather, it determines responsibility, or at least accountability, for the enforced
disappearance for purposes of imposing the appropriate remedies to address the disappearance. The
Court further explained that [i]n all these cases, the issuance of the Writ of Amparo is justified by our
primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty
and security are restored. We highlight this nature of a Writ of Amparo case at the outset to stress that
the unique situations that call for the issuance of the writ, as well as the considerations and measures
necessary to address these situations, may not at all be the same as the standard measures and procedures
in ordinary court actions and proceedings. In this sense, the Rule on the Writ ofAmparo (Amparo Rule)
issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and through the substantive
laws that Congress may promulgate.
In regard to the need for some adjustments, specially with respect to matters of evidence, the Court
explained that flexibility is necessary under the unique circumstances that enforced disappearance cases
pose to the courts. To have an effective remedy, the standard of evidence must be responsive to the
evidentiary difficulties faced. Thus, while we must follow the substantial evidence rule, we must
observe flexibility in considering the evidence we shall take into account. The fair and proper rule, to
our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under ourRecoletos
usual rules to be
admissible
if it is consistent with the admissible
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Center
evidence adduced. In other words, we reduce our rules to the most basic test of reason i.e., to the
relevance of the evidence to the issueBar
at hand
and its consistency
with all other pieces of adduced
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2012
evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.

In keeping with the idea that the remedy under the Writ of Amparo is a work in progress, take note
of what the Court said in Burgos v. Macapagal-Arroyo, 621 SCRA 481 (2010) even as some of the
named respondents had retired or been reassigned elsewhere, they, as present respondents, shall
continue to be personally impleaded for purposes of the responsibilities and accountabilities they may
47
have incurred during
incumbencies.
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47

In Burgos, the Court concluded that the PNP and the AFP have so far failed to conduct an exhaustive and meaningful investigation
into the disappearance of Jonas Burgos, and to exercise the extraordinary diligence (in the performance of their duties) that the Rule on
the Writ of Amparo requires. The Court also referred the case to the Commission on Human Rights as the Courts directly commissioned

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6. Rubrico v. Macapagal-Arroyo, 613 SCRA 233 (2010)


In this case, the Court discussed the doctrine of command responsibility in conjunction with the
remedy of the Writ of Amparo. The Court noted that while there are several pending bills on command
responsibility, there is still no Philippine law that provides for criminal liability under that doctrine.
Thus, it would be inappropriate to apply to amparo proceedings the doctrine of command responsibility
as a form of criminal complicity through omission, for individual respondents criminal liability, if there
be any, is beyond the reach of amparo the Court does not rule in such proceedings on any issue of
criminal culpability, even if incidentally a crime or an infraction of an administrative rule may have been
committed. On this point, Justice Carpio Morales in her separate opinion noted that the ponencias
ambivalence on the applicability of the doctrine of command responsibility overlooks its general
acceptance in public international law, which warrants its incorporation into Philippine law via the
incorporation clause of the Constitution.
At the same time, the Court also cautioned that the remedy of amparo ought to be resorted to and
granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the
indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and
protection and/or on the basis of unsubstantiated allegations.
In his separate opinion, Justice Brion took note of another new law, The Philippine Act on Crimes
Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (R.A. No.
9851). He said that with R.A. 9851, the Rule on the Writ of Amparo is now a procedural law anchored,
not only on the constitutional rights to the rights to life, liberty and security, but on a concrete statutory
definition as well of what an enforced or involuntary disappearance is, rendering academic and brings
to a close the search for a definition that the Court undertook in Razon v. Tagitis, supra. He also noted
that the doctrine of command responsibility is a substantive rule that establishes criminal or
administrative liability that is different from the purpose and approach of the Amparo Rule. Section 10
of R.A. 9851 explicitly makes superiors criminally liable under the doctrine of command responsibility
liability under the doctrine of command responsibility is no longer simply administrative (based on
neglect of duty but is now criminal. At the same time, he reiterated what was earlier said in Razon v.
Tagitis that it has never been the intention of the Amparo Rule to determine liability, whether criminal
or administrative the Court, under the Amparo Rule, can only direct that procedural remedies be
undertaken for the protection of constitutional rights to life, liberty and security.
7. Boac v. Cadapan, 649 SCRA 618 (2011)
Among the significant aspects of this case which arose from the abduction and disappearance of two
Recoletos
Law
Center
women and a man is the recognition
of the credibility
of the
testimony of Manalo in the earlier case of
Secretary of National Defense. The Court takes judicial notice of its Decision in the just cited Secretary
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2012
of National Defense v. Manalo whichBar
assessed
the account
of Manalo to be a candid and forthright
narrative of his and his brother Reynaldos abduction by the military in 2006; and of the corroborative
testimonies, in the same case, of Manalos brother Reynaldo and a forensic specialist, as well as
Manalos graphic description of the detention area. There is thus no compelling reason for the Court,
in the present case, to disturb its appreciation in Manalos testimony. The outright denial of petitioners
Lt. Col. Boac, et al. thus crumbles.
A Library Of Liberties vis--vis An Arsenal Of Arms
Hierarchy of Amparo Petitioners. Also, the Court spoke of a hierarchy of parties when it comes to

agency tasked with the continuation of the investigation of the Burgos abduction and the gathering of evidence, with the obligation to
report its factual findings and recommendations to this Court.

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petitions for writs of amparo. The exclusive and successive order mandated by Section 2 of the Rule on
the Writ of Amparo must be followed. The order of priority is not without reason to prevent the
indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life,
liberty or security of the aggrieved party. Thus, the parents of the two missing persons could not file
a petition on behalf of the third missing individual, specially if there is no showing that there were no
known members of the immediate family or relatives of the latter. Incidentally, in this regard the Court
noted that, in contrast, in a habeas corpus proceeding, any person may apply for the writ on behalf of
the aggrieved party.
Command Responsibility in Amparo Proceedings. While the Court maintained the pronouncement
in Rubrico in denying the application of command responsibility in amparo cases to determine criminal
liability, it nevertheless went on to state that command responsibility may be loosely applied in amparo
cases in order to identify those accountable individuals that have the power to effectively implement
whatever processes an amparo court would issue. In such application, the amparo court does not impute
criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect
the rights of the aggrieved party. Such identification of the responsible and accountable superiors may
well be a preliminary determination of criminal liability which, of course, is still subject to further
investigation by the appropriate government agency.
Motion for Execution of Writ of Amparo. [T]here is no need to file a motion for execution for an
amparo or habeas corpus decision. Since the right to life, liberty and security of a person is at stake, the
proceedings should not be delayed and execution of any decision thereon must be expedited as soon as
possible since any form of delay, even for a day, may jeopardize the very rights that these writs seek to
immediately protect. Moreover, The Rules of Court only find suppletory application in an amparo
proceeding if the Rules strengthen, rather than weaken, the procedural efficacy of the writ. As it is, the
Rule dispenses with dilatory motions in view of the urgency in securing the life, liberty or security of
the aggrieved party. Suffice it to state that a motion for execution is inconsistent with the extraordinary
and expeditious remedy being offered by an amparo proceeding. In fine, the appellate court erred in
ruling that its directive to immediately release Sherlyn, Karen and Merino was not automatically
executory. For that would defeat the very purpose of having summary proceedings in amparo petitions.
Summary proceedings, it bears emphasis, are immediately executory without prejudice to further appeals
that may be taken therefrom.
Effect of Transfer, Retirement or Separation from Service. Finally, it is also noteworthy that some
respondents remained to be such notwithstanding that they might have been reassigned or transferred
or retired. We find this in the dispositive portion: Respondents Lt. Col. Felipe Anotado, Lt. Francis
Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas shall
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remain personally impleaded in the petitions to answer for any responsibilities and/or accountabilities
they may have incurred during their incumbencies.

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8. Rodriguez v. Macapagal-Arroyo), 660 SCRA 84 (2011)

The Court discussed some noteworthy highlights regarding the writs of amparo and habeas data in
this petition filed by Rodriguez who claimed to have been abducted, detained and tortured by certain
elements of the military.
Grant of InterimAReliefs.
Being
interim reliefs,
they can
only
be granted
Library
Of Liberties
vis--vis
An
Arsenal
Of before
Armsa final adjudication
of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once
granted, necessarily entails the protection of the aggrieved party. Accordingly, since the Court granted
petitioner the privilege of the writ of amparo, there was no more need to issue a temporary protection

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order independently of the former. The order restricting respondents from going near Rodriguez is
subsumed under the privilege of the writ.
Concepts of Responsibility and Accountability. Since there is no determination of administrative,
civil or criminal liability in amparo and habeas data proceedings, courts can only go as far as
ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing.
Presidential Immunity from Suit. A non-sitting President does not enjoy immunity from suit, even
for acts committed during the latters tenure. Courts should look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a
right. Further, presidential immunity from suit exists only in concurrence with the presidents
incumbency. Former President Arroyo cannot use the presidential immunity from suit to shield herself
from judicial scrutiny that would assess whether, within the context of amparo proceedings, she was
responsible or accountable for the abduction of Rodriguez.
Command Responsibility in Amparo proceedings. Although originally used for ascertaining criminal
complicity, the command responsibility doctrine has also found application in civil cases for human
rights abuses. This development in the use of command responsibility in civil proceedings shows that
the application of this doctrine has been liberally extended even to cases not criminal in nature. The
Court held that command responsibility may likewise find application in proceedings seeking the
privilege of the writ of amparo. The doctrine of command responsibility may be used to determine
whether respondents are accountable for and have the duty to address the abduction of the petitioner in
order to enable the courts to devise remedial measures to protect his rights. Nothing precludes the Court
from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility
and accountability in extrajudicial killings and enforced disappearances.
Command responsibility of the President. The president, as commander-in-chief of the military, can
be held responsible or accountable for extrajudicial killings and enforced disappearances. To hold
someone liable under the doctrine of command responsibility, the following elements must obtain: (a)
the existence of a superior-subordinate relationship between the accused as superior and the perpetrator
of the crime as his subordinate; (b) the superior knew or had reason to know that the crime was about
to be or had been committed; and (c) the superior failed to take the necessary and reasonable measures
to prevent the criminal acts or punish the perpetrators thereof.
The president, being the commander-in-chief of all armed forces, necessarily possesses control over
the military that qualifies him as a superior within the purview of the command responsibility doctrine.
On the issue of knowledge, it must be pointed out that although international tribunals apply a strict
standard of knowledge, i.e., actual knowledge, such may nonetheless be established through
Recoletos Law Center
circumstantial evidence. In the Philippines, a more liberal view is adopted and superiors may be charged
with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226,
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otherwise known as the Institutionalization of the Doctrine of Command Responsibility in all
Government Offices, particularly at all Levels of Command in the Philippine National Police and other
Law Enforcement Agencies (E.O. 226 [1995]). Knowledge of the commission of irregularities, crimes
or offenses is presumed when (a) the acts are widespread within the government officials area of
jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility;
or (c) members of his immediate staff or office personnel are involved.
A Library Of Liberties vis--vis An Arsenal Of Arms
As to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief
of the armed forces, the president has the power to effectively command, control and discipline the
military.

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Responsibility or accountability of former President Arroyo. As to the question as to whether the


petitioner had proven through substantial evidence that former President Arroyo is responsible or
accountable for his abduction, the Court ruled in the negative. While the Alston Report states that there
is a policy allowing enforced disappearances and pins the blame on the President, the Court did not
automatically impute responsibility to former President Arroyo for each and every count of forcible
disappearance. Aside from general averments, there is no piece of evidence that could establish her
responsibility or accountability for the abduction subject of the case. Neither was there even a clear
attempt to show that she should have known about the violation of his right to life, liberty or security,
or that she had failed to investigate, punish or prevent it.
Doctrine of Totality of Evidence. Under the doctrine of totality of evidence in amparo cases, courts
consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise
inadmissible under the usual rules to be admissible if it is consistent with the admissible evidence
adduced. The Court reduced the rules to the most basic test of reason i.e., to the relevance of the
evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even
hearsay evidence can be admitted if it satisfies this basic minimum test.
Commission on Human Rights Shortcomings. Here, while the Court found that there was no
substantial evince to show that the personnel of the CHR who looked into the case of Rodriguez
violated, or threatened with violation, Rodriguezs right to life, liberty and security, it nonetheless
emphasized its criticism as regards their capacity to recognize torture or any similar form of abuse. The
Court pointed out that the CHR, being constitutionally mandated to protect human rights and investigate
violations thereof, should ensure that its officers are well-equipped to respond effectively to and address
human rights violations. The actuations of respondent CHR personnel unmistakably showed their
insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal.
Effect of Failure to Conduct a Fair and Effect Investigation. The Court also said that failure to
conduct a fair and effect investigation amounts to a violation of or threat to a persons rights to life,
liberty and security. The Rule on the Writ of Amparo explicitly states that the violation of or threat to
the right to life, liberty and security may be caused by either an act or an omission of a public official,
reiterating that in the context of amparo proceedings, responsibility may refer to the participation of
the respondents, by action or omission, in enforced disappearance, while accountability may attach to
respondents who are imputed with knowledge relating to the enforced disappearance and who carry the
burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance. Adverting to Secretary of National Defense
v. Manalo, 568 SCRA 1, 42 (2008), the Court reminded everyone that the right to security of a person
includes the positive obligation of the government to ensure the observance of the duty to investigate.
Recoletos Law Center
The Court noted that in this case, there was only perfunctory investigation by the superiors, exerting no
efforts to take Ramirezs account of the events into consideration. Rather, these respondents solely relied
Bar Review 2012
on the reports and narration of the military.
The Court then proceeded to rule that the privilege of the writs of amparo and habeas data must be
granted in Rodriguezs favor. As a result, there is no longer any need to issue a temporary protection
order, as the privilege of these writs already has the effect of enjoining respondents from violating his
rights to life, liberty and security.

A Library Of Liberties
Arsenal
Of Arms2011)
9. Balao v. Macapagal-Arroyo,
SCRA vis--vis
(G.R. No.An
186050,
13 December
In this case, even as the Court reversed the trial courts grant of the privilege of amparo, it proceeded
to direct the conduct of further investigation into the abduction of a missing person. Also, in regard to

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quantum of evidence for inspection order, the Court noted: A basic requirement before an amparo court
may grant an inspection order is that the place to be inspected is reasonably determinable from the
allegations of the party seeking the order. In this case, the issuance of inspection order was properly
denied since the petitioners specified several military and police establishments based merely on the
allegation that the testimonies of victims and witnesses in previous incidents of similar abductions
involving activists disclosed that those premises were used as detention centers. In the same vein, the
prayer for issuance of a production order was predicated on petitioners bare allegation that it obtained
confidential information from an unidentified military source, that the name of James was included in
the so-called Order of Battle. Indeed, the trial court could not have sanctioned any fishing expedition
by precipitate issuance of inspection and production orders on the basis of insufficient claims of one
party.
10. Canlas v. Napico Homeowners Assn., I XIII, Inc., 554 SCRA 208 (2008)
The threatened demolition of a dwelling by virtue of a final judgment of the court, is not included
among the enumeration of rights for which the remedy of a writ of amparo is made available. The
petitioners claim to their dwelling, assuming they still have any despite the final and executory
judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no
legal basis for the issuance of the writ of amparo. This new remedy of writ of amparo is intended for
the protection of the highest possible rights of any person, which is his or her right to life, liberty and
security. The Court will not waste its precious time and effort on matters not covered by the writ.

R.

SELF-INCRIMINATION CLAUSE

Under this privilege, a person is free to keep within his breast any incriminatory matters and he could
not be forced to disclose them. If the authorities want to pin him down, they have to come up with their
own proof independent of what might be concealed by the person himself. Nevertheless, it must be
remembered that the guarantee is against compelled testimonial evidence, not object evidence which
may include fingerprints, blood samples, urine samples, DNA samples and the like.
When it comes to availing of the privilege, distinctions have to be made as to whether the person
invoking it is an accused, a mere witness, or a party in a civil suit. While an accused can refuse
altogether to take the witness stand, a witness may only refuse to answer incriminating questions. If he
is the respondent in proceedings in which loss or forfeiture of property48 or loss of a license or
profession49 is a consequence, then he may also invoke the privilege like an accused.
No inference of guilt should be
made from theLaw
invocation
of the privilege, otherwise it would be
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Center
useless. The prosecution is still required to prove guilt by its own evidence, not by seizing upon the
exercise of the right.
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Further, while the language of the privilege suggests an absolute right not to be compelled to provide
an incriminating answer, the same is subject, however, to the so-called immunity statutes the use or
derivative use or the transactional immunity statutes. The courts have upheld the validity of such
statutes provided they accord the person compelled to testify a degree of protection coextensive with
what is otherwise guaranteed by the constitutional proscription against self-incrimination.
A Library Of Liberties vis--vis An Arsenal Of Arms

48

Cabal v. Kapunan, Jr., 6 SCRA 1059 (1962)

49

Pascual, Jr. v. Board of Medical Examiners, 28 SCRA 344 (1969)

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1. Disini v. Sandiganbayan, 621 SCRA 415 (2010)


In Tanchanco v. Sandiganbayan, 476 SCRA 202 (2005), the Court held that the kind of immunity
that may be granted in the Philippines is broader than American transactional immunity since the latter
are judge-made while in the Philippines they are granted by the legislature, while in Mapa v.
Sandiganbayan, 231 SCRA 783 (1994), the Government was held to its part of the bargain relative to
grant of transactional immunity.
Disini is again about the grant of immunity whereby, in exchange for Jesus Disinis agreement to
testify for the Government in relation to the dispute with Westinghouse regarding the Bataan Nuclear
Plant, he was granted immunity from having to testify against Herminio T. Disini. Subsequently the
Government said that Jesus Disini could not refuse to testify against Herminio. The Court said: Surely,
the principle of fair play, which is the essence of due process, should hold the Republic on to its
promise. The guarantee given to petitioner Disini against being compelled to testify in other cases
against Herminio constitutes a grant of immunity from civil or criminal prosecution. The grant,
therefore, of immunity to petitioner Disini against being compelled to testify is ultimately a grant of
immunity from being criminally prosecuted by the State for refusal to testify, something that falls within
the express coverage of the immunity given him. Then, as if to provide lessons on human relations, the
Court said that it should not allow respondent Republic, to put it bluntly, to double cross petitioner
Disini. . . . More than any one, the government should be fair.

S. EXCESSIVE FINES, CRUEL AND INHUMAN PUNISHMENTS


Punishment is supposed to be the price that has to be paid by those found guilty of crimes against
the State a way of making amends for violation of societys rules. It is the manner by which society
may somehow exact a form of retribution. The constitutional guarantee on punishments is geared
towards seeing to it that whatever penalty is imposed does not become such that it violates the very
notion of a civilized society where the mandates of substantive due process reigns. Penalties could not
be grossly disproportionate to the infraction of societys rules.50 Fines should not be excessive, and other
forms of punishments should not be cruel or inhuman as determined by present day standards.
Likewise, just because a person may have been sent to prison does it mean that he is completely cut
off from the world, stripped of all constitutional rights. He still retains some, though to the extent only
that would be consistent with his status as prisoner.
In the recent case of Brown v. Plata, 563 U.S. ___ (2011), the U.S. Supreme Court held that
overcrowding in prisons resulting in deficiencies in the medical care of the prisoners violate the Eighth
Amendment guarantee against cruel
and unusualLaw
punishments.
In other words, if a prison deprives
Recoletos
Center
prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to
remedy the resulting Eighth Amendment
violation.
Bar
Review 2012

T. DOUBLE JEOPARDY

The guarantee against double jeopardy is another assurance of fairness that a person be not exposed
more than once to the danger of being punished for the commission of the same offense. In this regard,
A Library
Of Liberties
vis--vis
Ansame
Arsenal
OfThus,
Arms
it must be remembered
that the guarantee
is in relation
to the
offense.
it may be that a single
50

See De La Salle University, Inc. v. Court of Appeals, 541 SCRA 22 (2007)

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act could give rise to two or more offenses,51 prosecution for which will not give rise to a violation of
the constitutional proscription. However, if the act gives rise to violation of a national law and a local
ordinance, conviction or acquittal under either shall be a bar to prosecution for the same act. It has also
been noted that double jeopardy attaches if one is tried by both a military court and a civilian court over
the same act.52
The rule is also that an acquittal puts an end to the criminal case and the prosecution could not
elevate it to a higher tribunal except in case of a mistrial53 or when there is grave abuse of discretion on
the part of the judge amounting to lack or excess of jurisdiction which then renders the resulting
judgment void.54 Neither may the prosecution appeal to increase the penalty, though if the accused
himself does appeal, he stands the risk of having the penalty rectified and increased!55 And, the
employer, too, cannot appeal on behalf of an employee who has jumped bail.56
1. Heirs of Jane Honrales v. Honrales, 629 SCRA 423 (2010)
The trial court acts with grave abuse of discretion where it grants the withdrawal of the Information
for parricide and recalls the warrant of arrest without making an independent assessment of the merits
of the case and the evidence on record. When it relies solely on the manifestation of the public
prosecutor that it is abiding by the Resolution of the Secretary of Justice, the trial court abdicates its
judicial power and refuses to perform a positive duty enjoined by law. The Court also held that since the
offense of reckless imprudence resulting in parricide was included in the charge for intentional parricide
pending before the RTC, the MeTC clearly had no jurisdiction over the subsequent criminal case for
reckless imprudence resulting in parricide filed before it, the RTC having retained jurisdiction over the
offense to the exclusion of all other courts. Finally, the Court also reiterated the principle that a decision
rendered without jurisdiction is not a decision in contemplation of law and can never become executory.
2. People v. Laguio, Jr., 518 SCRA 393 (2007)
While the prosecution cannot appeal from a judgment of acquittal or a favorable action on a demurrer
to evidence, it does not necessarily mean that the prosecution is altogether precluded from questioning
the trial courts disposition. If there was grave abuse of discretion, then the matter should be elevated
not by way of a petition for review on certiorari under Rule 45 (a mode of appeal) but by means of the
special civil action of certiorari under Rule 65 (an original action). So, the Court lectured the prosecution
in this case, pointing out as follows: By this time, it is settled that the appellate court may review
dismissal orders of trial courts granting an accuseds demurrer to evidence. This may be done via the
special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion,
amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment,
Center
does not result in jeopardy. Thus, Recoletos
when the order Law
of dismissal
is annulled or set aside by an appellate

Bar Review 2012

51

E.q., Nierras v. Dacuycuy, 181 SCRA 1 (1990) [bouncing checks], and, People v. Ortiz-Miyake, 279 SCRA 180 (1997) [illegal
recruitment]; and, Ramiscal, Jr. v. Sandiganbayan, 499 SCRA 375 (2006) [R.A. 3019 and Revised Penal Code]

52

See separate opinion of Justice Tinga in Gonzales v. Abaya, 498 SCRA 445 (2006).

53

Galman v. Sanidganbayan, 144 SCRA 43 (1986)

54

People v. Laguio, Jr., 518 SCRA 393 (2007)

55

People v. Rondero, 320 SCRA 383 (1999)

A Bus
Library
Of
Liberties
vis--vis
An
OfinArms
In Philippine Rabbit
Lines, Inc.
v. People,
427 SCRA
456 (2004),
the Arsenal
Court held that,
accordance with the rule that only
the accused may appeal, the employer cannot, independently of the convicted employee, appeal that aspect relating to its subsidiary civil
liability. Where the latter jumps bail, the former cannot, by itself alone, undertake to appeal the civil aspect of the judgment. If it were
otherwise allowed, such employers appeal would violate the employees right against double jeopardy since the judgment against the latter
could become subject to modification without his consent, appeal opening up the whole case for review.
56

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court in an original special civil action via certiorari, the right of the accused against double jeopardy
is not violated. Unfortunately, what petitioner People of the Philippines, through then Secretary of
Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court
in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising
a pure question of law, which is different from a petition for certiorari under Rule 65.57
3. Trinidad v. Office of the Ombudsman, 539 SCRA 415 (2007)
Does the rule on double jeopardy or res judicata apply in preliminary investigations? No. Res
judicata is a doctrine of civil law and thus has no bearing on criminal proceedings. But even if
petitioners argument were to be expanded to contemplate res judicata in prison grey or the criminal
law concept of double jeopardy, this Court still finds it inapplicable to bar the reinvestigation conducted
by the Office of the Ombudsman. For the dismissal of a case during preliminary investigation does not
constitute double jeopardy, preliminary investigation not being part of the trial. Accordingly, [t]he
Ombudsman is not precluded from ordering another review of a complaint, for he or she may revoke,
repeal or abrogate the acts or previous rulings of a predecessor in office. And Roxas v. Hon. Vasquez
teaches that new matters or evidence are not prerequisites for a reinvestigation, which is simply a chance
for the prosecutor, or in this case the Office of the Ombudsman, to review and re-evaluate its findings
and the evidence already submitted.
4. People v. Sandiganbayan, 559 SCRA 449 (2008)
Could a violation of basic rules of Statutory Construction constitute grave abuse of discretion? In
this case, the Court said yes. Accordingly, a judgment of acquittal was deemed useless.
The Court declared: The Sandiganbayan, Fourth Division held that the qualifications for a position
are provided by law and that it may well be that one who possesses the required legal qualification for
a position may be temporarily disqualified for appointment to a public position by reason of the one-year
prohibition imposed on losing candidates. However, there is no violation of Article 244 of the Revised
Penal Code should a person suffering from temporary disqualification be appointed so long as the
appointee possesses all the qualifications stated in the law. There is no basis in law or jurisprudence for
this interpretation. On the contrary, legal disqualification in Article 244 of the Revised Penal Code
simply means disqualification under the law. Accordingly, the trial court, in disregarding basic rules
of statutory construction, acted with grave abuse of discretion. Its interpretation of the term legal
disqualification in Article 244 of the Revised Penal Code defies legal cogency.
5. Castro v. People, 559 SCRA 676 (2008)
In this case, a school assistant head master advised a parent that talking to another parent who had
Recoletos Law Center
earlier filed a complaint against the school was dangerous. This resulted in his being charged with, and
convicted of, grave oral defamation. He was found guilty by the Metropolitan Trial Court. On appeal,
Bar Review 2012
the Regional Trial Court affirmed the finding of facts but found that the offense was only for slight oral
57

See, however, People v. Dumlao, 580 SCRA 409 (2009), where the Court entertained a petition for review on certiorari under Rule
45 from a dismissal of the criminal case after arraignment, eventually holding: The cardinal precept is that where there is a violation of
basic constitutional rights, courts are ousted of their jurisdiction. Where the denial of the fundamental right to due process is apparent,
a decision in disregard of the right is void for lack of jurisdiction. In the instant case, there was no error of judgment but a denial of due
process resulting in loss of jurisdiction. Respondent Dumlao would not be placed in double jeopardy because, from the very beginning,
A Library
Of Liberties
vis--vis
Arsenal
Of
the Sandiganbayan had acted
without jurisdiction.
Precisely, any
ruling issuedAn
without
jurisdiction
is, Arms
in legal contemplation, necessarily
null and void and does not exist. Otherwise put, the dismissal of the case below was invalid for lack of a fundamental prerequisite, that
is, due process. In rendering the judgment of dismissal, the trial court acted without or in excess of jurisdiction, for a judgment which is
void for lack of due process is equivalent to excess or lack of jurisdiction. This being the case, the prosecution is allowed to appeal because
it was not given its day in court.

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defamation, and since the complaint was filed almost five (5) months from discovery, the RTC ruled
that prescription had set in. It acquitted the accused. The Court of Appeals found that the RTC
committed grave abuse of discretion when it misapprehended the totality of the circumstances. The CA
reinstated the MeTC decision. Is the CA correct? No. An acquittal, whether ordered by the trial or
appellate court, is final and unappealable on the ground of double jeopardy. The only exception is when
the trial court acted with grave abuse of discretion or, when there was mistrial. In this particular case,
prosecution premised its allegation of grave abuse of discretion on the RTCs erroneous evaluation
and assessment of the evidence presented by the parties. This would only involve errors of judgment (or
those involving misappreciation of evidence or errors of law), not errors of jurisdiction (or those
involving the commission of grave abuse of discretion).
In fine, since no errors of jurisdiction were raised, the CA committed a mistake in taking cognizance
of the petition and in reviewing the factual findings of the RTC. This time, it is the turn of the RTC
judgment to be reinstated. Is the school official then completely off the hook? No, not necessarily. The
Court said that at most, he could have been liable for damages under Article 26 of the Civil Code for
intriguing to cause another to be alienated from his friends. He was then reminded that, as an
educator, he is supposed to be a role model for the youth. As such, he should always act with justice,
give everyone his due and observe honesty and good faith. (By what you preach you should also abide.)
6. Herrera v. Sandiganbayan, 579 SCRA 32 (2009)
In this case, two policemen were charged before the Sandiganbayan for the death of two men. During
arraignment, they pleaded not guilty, then filed a joint petition for bail raising the issue of lack of
jurisdiction on the ground that the prosecution failed to allege in the informations that the crimes were
committed by the petitioners in relation to their office. Whereupon the Sandiganbayan ordered the
amendment of the informations, after which the accused were arraigned anew. They entered pleas of not
guilty and also withdrew their objections to the issue of lack of jurisdiction. After trial, they were
convicted of murder. Were they placed in double jeopardy?
The Court held that the accused were not placed in double jeopardy in pleading not guilty under the
amended informations. For a claim of double jeopardy to prosper, the following requisites must concur:
(1) there is a complaint or information or other formal charge sufficient in form and substance to sustain
a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid
arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise
dismissed or terminated without his express consent. Here, the accused pleaded not guilty to the original
informations and thereafter raised the issue of lack of jurisdiction on the ground that the prosecution
failed to allege in the informations that the crimes were committed in relation to their office which
then resulted in the SandiganbayanRecoletos
order for the amendment
Law Center
of the informations. The first requirement
for double jeopardy to attach that the informations were valid has not been complied with.

Bar Review 2012

Likewise, the fourth element was lacking. Petitioners cannot be validly convicted on the basis of the
original information as the prosecution failed to allege in the informations that the crimes were
committed in relation to their office. Petitioners were thus not placed in danger of being convicted
when they entered their plea of not guilty to the insufficient information.

7. People v. Dumlao, 580 SCRA 409 (2009)


Of Liberties
An Arsenal
Of Arms
Where a MotionAtoLibrary
Dismiss/Quash
is basedvis--vis
on the ground
that the facts
charged do not constitute
an offense, the Sandiganbayan cannot proceed to dismiss the case based on insufficiency of evidence.
The Court reminded everyone that insufficiency of evidence is not one of the grounds for a Motion

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to Quash. Insufficiency of evidence is a ground for dismissal of an action only after the prosecution
rests its case. So what would be the consequence? In the case under consideration, the Sandiganbayan
dismissed the case against respondent for insufficiency of evidence, even without giving the prosecution
the opportunity to present its evidence. In so doing, it violated the prosecutions right to due process. It
deprived the prosecution of its opportunity to prosecute its case and to prove the accuseds culpability.
It was therefore erroneous for the Sandiganbayan to dismiss the case under the premises. Not only did
it not consider the ground invoked by respondent Dumlao; it even dismissed the case on a ground not
raised by him, and not at the appropriate time. The dismissal was thus without basis and untimely.
The long and short of it? The first jeopardy has not yet attached. There is no question that four of
the five elements of legal jeopardy are present. However, we find the last element valid conviction,
acquittal, dismissal or termination of the case wanting. As previously discussed, the Sandignabayan
violated the prosecutions right to due process. The prosecution was deprived of its opportunity to
prosecute its case and to prove the accuseds culpability. The dismissal was made in a capricious and
whimsical manner. The trial court dismissed the case on a ground not invoked by the respondent. The
Sandiganbayan dismissed the case for insufficiency of evidence, while the ground invoked by the
respondent was that the facts charged did not constitute an offense. The dismissal was clearly premature,
because any dismissal based on insufficiency of evidence may only be made after the prosecution rests
its case and not at any time before then. A purely capricious dismissal of an information deprives the
State of a fair opportunity to prosecute and convict. It denies the prosecution a day in court. It is void
and cannot be the basis of double jeopardy.
8. Ivler v. Modesto-San Pedro, 635 SCRA 191 (2010)
If irresponsible driving leads to a vehicular collision resulting in damage to property, injuries to a
passenger and death to another passenger, how many offenses are committed? Technically, only one
even as there would be two resulting charges one for reckless imprudence resulting in physical injuries,
and, another one for reckless imprudence resulting in homicide and damage to property. What if the
accused pleads guilty to the lesser charge involving physical injuries, could he plead this as a way to
preclude the second charge involving homicide? The Court said yes because double jeopardy would have
set in there is actually only one offense of reckless imprudence! In other words, reckless imprudence
is a single crime, and its consequences on persons and property are material only to determine the
penalty.

U.

EX POST FACTO LAWS AND BILLS OF ATTAINDER


Center
The constitutional proscriptionRecoletos
against ex post Law
facto laws
and bills of attainder ensures fundamental

fairness. No man should be punished for acts which when done were perfectly lawful. Due process
Review
requires at the very least that before Bar
a person
could be 2012
held to account for what alleged wrong he
committed, he was forewarned of the consequences of his act.

Both ex post facto laws and bills of attainder are retroactive in their application. They impose a
penalty or disability after the act has been committed when no such disadvantageous effect was yet
present when the act was done. Worse, in the case of bills of attainder, the sanction is imposed without
judicial proceedings. Thus, there is also a violation of the principle of separation of powers Congress
A judiciary
Library that
Of Liberties
legislates but it is the
adjudicates.vis--vis An Arsenal Of Arms
With regard to the rule against ex post facto laws, it has also been observed that, [a]s the text of the
Clause makes clear, it is a limitation upon the powers of the Legislature, and does not of its own force

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apply to the Judicial Branch of government. Nevertheless, limitations on ex post facto judicial
decisionmaking are inherent in the notion of due process. Indeed, [d]eprivation of the right to fair
warning, . . . can result both from vague statutory language and from an unforeseeable and retroactive
judicial expansion of statutory language that appears narrow and precise on its face.58
1. Salvador v. Mapa, 539 SCRA 34 (2007)
In this case, the Court claimed responsibility for adding two other types of ex post facto laws. An
ex post facto law has been defined as one (a) which makes an action done before the passing of the law
and which was innocent when done criminal, and punishes such action; or (b) which aggravates a crime
or makes it greater than it was when committed; or (c) which changes the punishment and inflicts a
greater punishment than the law annexed to the crime when it was committed; or (d) which alters the
legal rules of evidence and receives less or different testimony than the law required at the time of the
commission of the offense in order to convict the defendant. This Court added two (2) more to the list,
namely: (e) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty
or deprivation of a right which when done was lawful; or (f) that which deprives a person accused of a
crime of some lawful protection to which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.
And what are penal laws anyway? The constitutional doctrine that outlaws an ex post facto law
generally prohibits the retrospectivity of penal laws. Penal laws are those acts of the legislature which
prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their
nature, and provide for their punishment. Thus, mere administrative issuances governing the mission
and operation of a committee could not be considered as a penal law, such as Administrative Order No.
13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans. On the other hand,
Memorandum Order No. 61 merely provides a frame of reference for determining behest loans.
2. Valeroso v. People, 546 SCRA 450 (2008)
R.A. No. 8294 lowered the penalty for illegal possession of firearms but at the same time imposed
a penalty of fine which was not found in P.D. No. 1866. Could this new penalty be imposed on someone
who committed the crime before the amendment, and if so, would this not be a form of an ex post facto
law? In Gonzales v. Court of Appeals, 277 SCRA 518 (1997), as well as in Cadua v. Court of Appeals,
312 SCRA 703 (1999), the Court said the new penalty may be imposed since an appeal throws the entire
case open for review. One may wonder, however, how such reasoning could provide a satisfactory
answer to the question as to why the imposition of the new penalty (fine) is not a violation of the
proscription against ex post facto laws. Would it not be a case of a law which changes the punishment
Recoletos
LawtoCenter
and inflicts a greater punishment than
the law annexed
the crime when it was committed?
In Valeroso, the Court finally pronounced
that there is no
violation since overall the resulting penalty
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2012
is still beneficial to the accused. The Court said: Although an additional fine of P
=15,000.00 is imposed
by R.A. No. 8294, the same is still advantageous to the accused, considering that the imprisonment is
lowered to prision correccional in its maximum period from reclusion temporal in its maximum period
to reclusion perpetua under P.D. No. 1866.

Finally, a reason that could at least be more convincing.


A Library Of Liberties vis--vis An Arsenal Of Arms

58

Rogers v. Tennessee, 532 U.S. 451 (2001)

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3. Bureau of Customs Employees Association (BOCEA) v. Teves, 661 SCRA 589 (2011)
Here, the argument was advanced that the Attrition Law (R.A. No. 9335) is a bill of attainder. The
Court said no, it is not. It explained that [a] bill of attainder is a legislative act which inflicts
punishment on individuals or members of a particular group without a judicial trial. Essential to a bill
of attainder are a specification of certain individuals or a group of individuals, the imposition of a
punishment, penal or otherwise, and the lack of judicial trial. It also gave a brief background on bills
of attainder as discussed by Justice Feliciano in his concurring opinion in Tuason v. Register of Deeds,
Caloocan City, 157 SCRA 613 (1988), specifically that bills of attainder are an ancient instrument of
tyranny whereby Parliament would at times enact bills or statutes which declared certain persons
attainted and their blood corrupted so that it lost all heritable quality, though [i]n more modern terms,
a bill of attainder is essentially a usurpation of judicial power by a legislative body. It envisages and
effects the imposition of a penalty the deprivation of life or liberty or property not by the ordinary
processes of judicial trial, but by legislative fiat. While cast in the form of special legislation, a bill
of attainder (or bill of pains and penalties, if it prescribed a penalty other than death) is in intent
and effect a penal judgment visited upon an identified person or group of persons (and not upon
the general community) without a prior charge or demand, without notice and hearing, without
an opportunity to defend, without any of the civilized forms and safeguards of the judicial process
as we know it.
The long and short of it, R.A. No. 9335 does not possess the elements of a bill of attainder. It does
not seek to inflict punishment without a judicial trial. R.A. No. 9335 merely lays down the grounds for
the termination of a BIR or BOC official or employee and provides for the consequences thereof. The
democratic processes are still followed and the constitutional rights of the concerned employee are amply
protected.

If one were to simply follow and abide by his adversarys definition of the problem, or his
characterization of the issue, then he would have lost half the battle. One must know how to see things in
proper context and in appropriate perspective in order not to be blindly led or misled. Others may want you
to take the path they may prefer or have gotten accustomed to but then it may be better to take the road
less traveled as it might make all the difference in the Bar . . . and in your life.59
Go forth in your quest, head up high with the self-generated confidence, motivated by what you want
to be and guided by your best lights, liberated from pressures or other extraneous influences, for nothing
is more satisfying and fulfilling than knowing at the end of the day that you did it in your own way!

Recoletos
Law Center
Look forward then to a beautiful,
refreshing
and exhilarating morning when the
results of your toils would finally
bearReview
fruits that
you, your family and friends would
Bar
2012
savor and enjoy.

A Library Of Liberties vis--vis An Arsenal Of Arms


59

Two roads diverged in a wood, and I


I took the one less traveled by,
And that has made all the difference. (Robert Frost, The Road Not Taken [1916])