CONSTITUTIONAL LAW 2 REVIEW

From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

INDIVIDUAL RIGHTS again the Bill of Rights is supposed to be a limitation on

the powers of the State.
marcos v I. DUE PROCESS AND EQUAL PROTECTINO AS LIMITATIONS ON
(2) To some extent, it has also been applied to schools
manlapus POLICE POWER, EMINENT DOMAIN AND TAXATION
disciplinary tribunals. When the school exercises its
ie art 7 sec 18 authority to impose the school’s rules on discipline in
A. Fundamental Principles on Constitutional Law and the Bill of
limit power the tertiary level, there have been so several cases
Rights
already stating that there is supposed to be procedural
due process to be observed and extended to the
The study of Constitutional Law primarily hinges on the Bill of
students in the tertiary level before these students can
Rights, and there are only a few provisions thereunder. So let’s
be sanctioned, much more if they are supposed to be
start with the Fundamental Powers of the State. There are three
expelled by reason of violation of the school’s
of them.
disciplinary tribunal. We have been made to
understand that with respect to academic rules, there’s
And by concept and application they are supposed to be
not much difficulty because the due process there is
INHERENT. It means that once the State comes into being,
always extended when there are examinations or
these can be exercised by the State. It does not need any
recitations given. You are given the opportunity to be
Constitutional or Statutory conferment for the State to
heard every time you are called for recitation or every
exercise them.
time there is an examination or a test administered on
the students.
And precisely as we understand the reason why specific
provisions in the Constitution apply to specific powers or
But with respect to the school’s rules on discipline,
inherent powers of the State is because they are more of
starting with the case of Ateneo de Manila, the
LIMITATIONS rather than grants. Largely the Bill of Rights are
Supreme Court has made a rule that students in the
limitations on the power of the State but there are still
tertiary level enjoy procedural due process. So, is that
specific provisions in the Constitution like Article III Section 9
an act of the State where due process is supposed to be
on Eminent Domain which is a specific provision affecting
imposed on the school before it is allowed to impose
Eminent Domain as an inherent power of the State.
sanctions? In the Constitutional context, it should not
be required because the school is not the State. But
Most of these powers are largely exercised THROUGH
because on the other hand, students have what we
LEGISLATION. And of course, by reason of legislation, their
know as academic freedom.
execution or implementation maybe extended or granted to
the Executive branch or other entities if there is allowable
There are three ____ in the scope of academic
delegation.
freedom, we have:
a) the schools,
B. Basic Principles on the Fundamental Powers of the State,
b) the members of the faculty and
their characteristics, similarities and distinctions, and their
c) that of the students.
Limitations
And so to that extent, due process is extended to the
students before they are supposed to be sanctioned.
The first of which, in our outline, would be the discussion on the
applicability of the Bill of Rights in the study of Constitutional
(3) Also by reason of law, not by the Constitution, the twin
Law. The basic principle is that the Bill of Rights is a LIMITATION
notice rule under the Labor Code, though clearly it has
ON STATE AUTHORITY. It does not apply strictly to conflict
been stated that it is not part of the Constitutional due
involving private rights.
process requirement, but because of the statutory rule
that employees, before they are sanctioned, employers
Perhaps the only exceptions based on your readings would be:
must have to extend to them what the law requires
(1) with respect to privacy of communication and
under the so called twin notice rule. Employers would be
correspondence that has been applied by the Supreme
considered the State when they impose sanctions. But
Court in the case of Zulueta, where the private matter
because the statute has required that they must have
involving the couple who had marital problems, where
to be informed before they are to be penalized or
the wife forcibly took documents, pictures to prove the
sanctioned, to that extent there is limited application of
extra marital affair of the husband, where these
the right in the due process clause generally in this
documentary evidence where presented in court, the
situation.
Supreme Court, in that lone case, which is still good law
today, applied the limitation under the Bill of Rights on
The case of Yrasuegi v. PAL, this is a 2008 case, you
privacy of communication and correspondence saying
have already read this, involving a labor case, the
that because of the violation of the private right of the
steward of an airline was eventually terminated for
husband, the evidence so obtained are considered
failing to meet the weight requirement. Supposedly
inadmissible. The application or the ruling of the
stewardesses and stewards have a maximum allowable
Supreme Court, well, it will largely be questionable, but
weight to be able to effectively function as attendant.
simply because it is still the decision of the Supreme
But because this petitioner has failed despite the grace
Court, it remains to be good law today. To that extent,
period for him to lose weight, he was terminated and
the Bill of Rights has been applied involving conflict of
filed a labor case. In the petition before the Supreme
private persons involving their private rights because
manila hotel - state action 1 public function
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Court, without any of those issues raised in the lower
tribunal, he questioned the policy of the airline
company as being violative of the Equal Protection; that
there is undue prejudice and disadvantage to the fat
people, because they would only want to hire and
continue to engage those who are macho and sexy. The
Supreme Court made it clear that this is an action by an
employer as against an employee, so the Equal
Protection guarantee in the Constitution does not apply
as this is not a State action where there is a violation of
a private right by reason of the imposition of a State
act.
Due process is discussed in light with regulatory powers. In the
light also of what is required under the due process clause. The
due process clause would be considered as the most pervasive. It
is the least limitable of all the powers, and so this normally comes
in the form of regulatory measures.
POLICE POWER
So when the State exercises its Police Power - the power to
regulate liberty and property for the promotion of the general
welfare, it normally comes in a form of regulation. So when a
regulatory measure is enacted, there are basically two
considerations:
(1) whether the law is in substance valid and
(2) whether the applicability of the law is equally applied to
everyone in that class or category.
The regulatory functions or powers of the State can also be used
through its power to tax and or power of eminent domain. A
good example with respect to eminent domain and regulatory
powers would be your Comprehensive Agrarian Reform Law. To
regulate property ownership in order to promote the welfare of
the farm workers or tenants, property ownership has been
limited. So outside of what we know as retention areas, the
remainder of the agricultural land are distributed. Now is this in
its strict sense a regulatory measure? The answer is no. And it is
not also in its strict sense the eminent domain exercise as
allowed in the Constitution.
Now the usual test to determine a valid regulatory measure
would be the LAWFULNESS OF THE SUBJECT and the
LAWFULNESS OF THE MEANS.
Regardless of the further discussions with respect to
ordinances, because in ordinances we have the case of
White Light Corp v. City of Manila which establishes certain
requirements for validity when it comes to ordinances; but
when it comes to general statutes, what we follow would be
the two test: the lawfulness of the subject test and the
lawfulness of the means.
Lawfulness of the subject
There’s not much difficulty in understanding what a lawful
subject is because police power being in relation to general
welfare, any public interest matter is always considered as a
lawful subject for purposes of regulation. The only discussion
here is whether regulation affords only protection to a few and
not the general welfare of the many. So it’s not so difficult to
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
understand. So you talk about public health, public safety, public
morality, and all those public interest matters.
Lawfulness of the means
The discussion is mostly on whether the means are lawful. The
rule being that the end, which is the intention to promote the
interest of the general welfare, should not justify the means
used. There must have to be reasonable necessity to the means
used to accomplish the desired end. So if the means imposed by
the law is reasonably necessary to accomplish the intention of
the law, then the means would be considered as lawful.
onlywhenthe
propertyownerisnotgoingtosellorthatthereisno
POWER OF EMINENT DOMAIN agreementastothepricetothepropertylikeinan
ordinarysale,thatthereshouldbeeminentdomain.
Section 9. Private property shall not be taken for public use
without just compensation.
Eminent domain on the other hand is the highest and most exact
idea of property right remaining in the State. This is a reflection
of the Regalian Doctrine that all property belongs to the State.
That if the State would want to get back its property, what it used
to own which was given up for private ownership, it would
exercise through eminent domain.
But just like in the exercise of eminent domain by a local
government unit, the Local Government Code has provided for
some other CONDITIONS OR REQUIREMENTS. But generally, the
Constitution under Section 9 Article III, simply requires that there
must have to be taking of private property for public use upon
payment of just compensation.
The concepts of taking have not changed. Well, it has changed
from the old traditional understanding but it has changed
somehow to include any substantial effect on the usual and
reasonable uses of the property. Taking in eminent domain is not
physical dispossession alone. If there is substantial effect on the
usual uses of the property by the property owner, then there may
be considered as taking. Also the concept of public use has
changed from the old traditional concept of direct benefit to the
many. It has changed to include now the indirect benefit to the
many. Even if those directly benefited are only a few, but if the
public is indirectly benefited as well, then there is also taking for
public use. not momentary
The property to be taken must have to be private property. So
any kind of private property (?), of course except money, will
have to be exempted from the private property requirement. Just
compensation is usually made by giving money.
cannot be appropriated: money, personal actions or personal optiond of an indiv
Just compensation as a condition for a valid exercise of eminent
domain has not also changed. It still refers to the full and fair
equivalence of the loss of the property owner. The value is based
on the loss and not on the gain. For which reason if there is
consequential benefit or consequential damage, if not the entire
land is expropriated, the consequential benefit shall be deducted
from the value of the just compensation, while the consequential
damage shall be added to the value of the property for purposes
of computing the just compensation.
cannot enact as to maximum value
valuations/tax declarations - not conslusive as to value for just compensation
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POWER OF TAXATION
With respect to taxation, except for the provisions of the
Constitution regarding the uniformity in the rule of taxation and
equitable rule, the exemption from real property taxation for
certain listed properties directly, exclusively and primarily used
for religious and other educational purposes and also for tax
exemption of income of non stock non profit educational
institutions as well as the tax credit for donations to these
institutions, the rest of the specifics in your taxation laws, you will
have to take up in your taxation law review.
DELEGATION
In relation to delegation, police power and power of eminent
domain may be delegated. But power of taxation can never be.
Well, to some extent, it has been delegated to LGU’s with respect
to their taxation powers under the Local Government Code, but
not to private entities unlike in eminent domain where private
sec 18 lgc entities may be granted the power to expropriate. Normally, we
refer to public utility companies; they have power to expropriate.
Police power has also been delegated to the LGU’s. This is your
Section 16 of the Local Government Code, which refers to the
General Welfare clause. In that clause, the LGU’s have delegated
authority either direct or general. At any given time, Congress
may enact a law delegating authority on police power to LGU’s.
But there is a general grant under Section 16 as well that LGU’s
can legislate on these matters.
The requirement for validity of regulatory powers for purposes
of the LGU’s.
First, it must have to be passed within the corporate powers of
the LGU’s.
Second, it must be passed in accordance with the legal procedure
as provided in the Local Government Code, and it must satisfy six
substantive requirements as follows:
LGC - 15% but (1) it must not contravene the Constitution or the law;
sec 60 whole value. (2) it must not be unfair or oppressive;
? (3) it must not be partial or discriminatory;
(4) it must not prohibit but merely regulate;
(5) it must be general and consistent with public policy;
and
(6) it must not be unreasonable.
So in any regulatory measure, LGU, as a matter of law, cannot
prohibit the conduct of what otherwise is a legitimate business. It
can only regulate. The problem is: what should happen if the
regulatory measure would amount to a prohibition.
The expanded liquor ban. Drinking now can only be allowed
up to 1. I think the Mayor has not yet signed it because he
has second thoughts whether it would pass the scrutiny of
constitutionality. It has always been discussed among, well
some lawyers are discussing, those lawyers are drunkards,
but the argument is that: why should the Mayor want an
ordinance which would prevent or prohibit law abiding
drinkers of legal age to drink? If the intention of the
legislation is to curb drinking among minors, why not ID up
the minors? Let the adults, generally with money, to drink
until they die in the morning. Prevent the minors from
drinking by requiring the bar or club owners to ID up
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
everybody. If you cannot present a what is purportedly a
validation government ID with your photograph, so you have
your drivers license, SSS cards, wala pa giud school cards,
government issued identification cards lang giud, then do
not serve that person any alcoholic beverage. Magkano ba
pera nung minors as compared to those adults na gustong
uminon? Kaya siguro hindi niya pinirmahan.
With respect to eminent domain, what is required under the
Local Government Code is that there must have to be an
ordinance.
In all eminent domain exercises, we must understand that
while the Constitution does not mention it, there is a
precondition for the exercise of eminent domain, and that is
the condition of necessity. Is it necessary for the State or the
public corporation or the LGU to exercise eminent domain?
Because eminent domain again is exercised as a last resort if
the State or the expropriator would want to get that
property. As it is required in the Local Government Code,
there must have to be an offer made by the expropriator to
the property owner. Firm offer to buy the property. Of
course, if the firm offer is not accepted or is rejected, then
the expropriator may opt to expropriate. Expropriation is
not the first option, because again there is a precondition or
prerequisite not provided for in the Constitution but in
decisions of the Supreme Court that there is a necessity to
exercise eminent domain.
So just like if you are Napocor, Napocor would not file a
petition for expropriation but would have to ask the
property owner how much would they be willing to part
with their property because Napocor would want to use it.
In almost all cases though, the offer will not be accepted or
is rejected because the offer actually is very very low. It’s not
the same as in the open market.
Just compensation in some cases has been described as the
amount of the property which a buyer, who is not willing to
buy a property, is willing to pay and the amount a seller,
who is not willing to sell a property, is willing to part with. So
that’s the sole difficult to determine. That’s why there are
factors to consider to determine just compensation. Even if
you go through our Rules of Court on expropriation or
eminent domain, the court is even tasked to assign
commissioners if there’s a problem with the issue of just
compensation.
So firm offer first, it must have to be rejected and not
accepted, before expropriation can be exercised. In the LGU,
the Local Government Code requires that firm offer first, and
if not accepted or is rejected, then the local legislative
council must have to pass an ordinance authorizing the
mayor to exercise eminent domain. And the rest of the
provisions in the Local Government Code is reflective of the
constitutional requirement that there must have to be
payment of just compensation before there could be taking
in eminent domain.
The only difference in the Local Government Code is that
the Constitution provides for public purpose or public use. In
the Local Government Code, the public uses are specified.
So, housing, and some other specific public purposes. That’s
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the only difference with respect to public use in relation to
the Constitution and the Local Government Code.
C. Due process
Art III Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
denied the equal protection of the laws.
RELATIVITY OF DUE PROCESS
Still with due process. The Concept of Relativity of Due Process.
The relativity of due process as a concept simply means that
while due process is required under Section 1 of Article III that no
person shall be deprived of life, liberty or property without due
process of law, the requirement of due process is not strictly
applied to all persons under all circumstances absolutely. In
different types of cases, the requirement of due process may be
different. Although due process is really required, more so in
procedural due process, it is not the same as it is in all cases, in all
persons, in all parties.
A good example would be your due process in judicial
proceedings and due process in administrative proceedings.
While there may have been 4 in judicial procedural due process,
there are 7 in administrative procedural due process, your so
called 7 cardinal primary rights in administrative due process.
Administrative cases do not require the strict presentation
of evidence, as it is required in the judicial proceedings.
There are even situations where there is no right to cross
examine because there is no presentation of witness. So the
question is how do you dispute the claims of the other party
or the witnesses of the other party? By presenting you own
witnesses as well and more in documentary form. In the
Rules of Evidence, generally applied in court cases, affidavits
are hearsay. They do not have any evidentiary value unless
they are generally testified to by the affiant or the one who
executed them. That is in judicial proceedings. But if it is in
administrative proceedings, like in labor cases, affidavits are
good as testimonies. Because the quantum of proof required
is different in judicial cases as it is in administrative cases.
So, is there denial of due process if there is no right to cross
examine or if affidavits are accepted as testimonies of
witnesses to a case in administrative cases? The answer is
no, again because the principle in due process is that due
process though required is applied differently in different
types of cases, in different situations of persons affected by
or in a particular case.
Even if you go through the Bill of Rights, starting with
Section 14, the first paragraph reiterate the due process in
Section 1 with respect to an accused in a criminal case. And
there is a listing, in the second paragraph of Section 14, of all
the rights of the accused, and there are no rights of the
private complainant.
Section 14. (1) No person shall be held to answer for a
criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to
appear is unjustifiable.
Why is that so is because due process is more, shall we say,
necessary with respect to an accused in a criminal case
because he is up against the entire machinery of the State in
a criminal prosecution. In civil cases, no matter how big the
claim is or how many hectares of land is involved, nobody’s
liberty is affected, nobody goes to jail in a civil case.
So, while it is so it does not mean that the parties do not
have rights to due process, of course they have. But again, it
is applied differently in different situations. But largely,
because the constitutional grant of due process or limitation
of due process is against State authority for which reason
that largely explains why the accused’s right to due process
is reemphasized in Section 14 of Article III.
In civil cases involving private rights, the State has nothing to
do with it generally. But because we all understand in
judicial proceedings whether criminal or civil cases, parties
must have a right to due process in relation to the actuations
of a judge. You talk about jurisdiction. The impartiality of a
judge. If these are violated, then there may be a violation of
due process. Because here is a state agent, a judge,
exercising authority over a case which he has no right to do
so. So, if that civil case decided by a judge without
jurisdiction, has taken the property of another in favor of the
other party of the case, then there may be taking of his
property without due process of law in that context.
Relativity of due process simply means that it is not absolute
in all the cases, it is not the same nor hard and fast
applicable to all in any and all circumstance. There is
difference in application and it refers to certain cases and to
certain parties.
SUBSTANTIVE DUE PROCESS
(recording lacking)….Must not be oppressive or arbitrary. And in
the case of Tanada v. Tuvera, there must have to publication
because even in the law is as a given, valid, if there is no
publication, then that law even if valid will have to be invalidated
for lack of publication.
PROCEDURAL DUE PROCESS
The other aspect of due process is procedural and as we have
mentioned, PDP is relative in different situations, actions and
cases with respect to the parties of the case. We made special
mention of the right of the accused because his right to due
process is emphasized in the present constitution.
PDP in judicial proceedings require that there be an impartial
court of competent jurisdiction, that jurisdiction was lawfully
acquired, there must have to be opportunity to be heard
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(essence of procedural due process), and that judgment must be
rendered by the court after hearing.
7 cardinal rules -In administrative cases, there must have to substantial
evidence—there is no necessity of presenting evidence strictly as
if you were in a judicial proceeding because for so long as the
evidence presented is known to the parties and form part of the
records, then the evidence can be invalidated and can be
considered by the tribunal. In some cases even, there is no need
for cross examination as it were in judicial proceedings.
We also made mention that due process in the Constitution is not
strictly applied if it were not against the actions of the state
because of certain statutory grants of opportunity to be heard. In
that extent, we have to consider that is also part of the due
process, required not by the constitution but by statutory grants.
Common example would be right to appeal, especially to
criminal cases. It is part of the right of the accused under
rule 115, section 1(i) which is now included in section 14,
article 3 of the constitution. The opportunity to be heard on
the part of the accused with respect to his constitutional
right to due process is already granted and observed when
his time is had with the trial court. For purposes of appeal,
however, if the Rules of Court does not allow or there is no
law allowing it, technically, there is no right to appeal. But
because there is such right to appeal in the rules of court,
there is observance of his right to due process not by the
Constitution but by the Rules of court as granted to him.
HIERARCHY OF RIGHTS
In relation to the exercise of the state of its power relative to due
process and deprivation of some liberties, the concept of
hierarchy of rights in the constitution come into play. Meaning, is
there such as a thing as ‘preferred or preferential Constitutional
rights as provided for in the constitution which the state may not
regulate easily or could not be derogated at all? Technically,
when the state regulates some of our rights, or mostly of our
liberties, the question is the application of the limitations of the
powers of the state. But there are some situations where that
conflict of rights involves conflict of Constitutional rights of
individuals, in which case, court may also come into play because
there may be some laws applicable that may regulate some
rights.
For example, the freedom of expression or free speech
rights as against right to privacy of individual. As you can
see, ostensibly the conflict of rights is between 2 individuals.
But the reason why the right to privacy is protected is
because there are certain laws which were legislated
protecting this right to privacy. We all know that right to
privacy is NOT expressly granted in the constitution and the
school of thought is that it is not so expressed because it is
admitted, in fact, the most common right to privacy
provision would be Sections 2-3 and there are other
provisions in law which are part of the Zones of privacy. In
which case, if there is such violation of the right to privacy,
what ostensibly pertains to conflicting rights of individuals,
because of the application of state legislation, then the
power of the state to prohibit or prevent such invasion to
right to privacy would also come into play and in which case,
the court is tasked to weigh and deliberately consider which
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
of these conflicting rights will have to be preferred in a given
case.
In relation to human rights law, the hierarchy of rights in the
constitution would be espoused: the arbitrary deprivation of life,
freedom from torture, cruel and inhuman punishments, freedom
of thought, conscience and religion. This would include political
beliefs and aspirations and no religious test for exercise of civil
and political rights. The first 3 rights generally do not allow
regulation by State legislation. Not that It does not really allow
but there is some prohibition for regulation on this. The other
rights in the constitution would be freedom from arrest, arbitrary
detention; this would include ex-post facto and bill of attainder
legislation, involuntary servitude, equal protection, rights of the
accused, privacy and privacy of communication, abode and travel,
speech and assembly and information, and right to association.
But these rights can be derogated by reason of any public
emergency by reason of national interest and security. Even the
free speech right is not absolute. If there is compelling state
interest, the free speech right can be derogated.
Now the rest of the rights in the constitution are granted only in
the Philippine constitution right to eminent domain, non-
impairment clause, bail, suspension of habeas corpus, speedy
disposition of cases, use of substandard or inadequate penal
facilities and non-imprisonment for debt. The non-imprisonment
for debt takes its roots from the slavery in the US. This is the most
appropriate equivalent of that.
JUDICAL STANDARD REVIEW
The judicial standard review of legislation involving substantive
due process were first used in equal protection questions or
issues.
The 3 tests used are:
1. Strict scrutiny test or compelling state interest test
2. Intermediate scrutiny or intermediate review test
3. Differential or rational review test
 In the level of tests or which of these tests is used, The
STRICT SCRUTINY is the most stringent. What this requires is
that the presumption of validity of the regulation has a
narrow application. The state must show that there is a
compelling state interest that must be protected. You
should justify that. Secondly, that that means is the least
restrictive of all measures or alternatives. to allow such
regulation in order to achieve the objective of such
legislation
 INTERMEDIATE SCRUTINY TEST considers the substantiality
of government interest and the availability of less restrictive
alternatives. As compared to compelling state interest,
which is more stringent because the state must be able to
show compelling state interest, and that must be protected
and that that means is the least restrictive of all measures or
alternatives. In intermediate, there is no need to show that.
There is only a need to show that the less restrictive
alternatives have been considered and that the government
interest needed to be shown is merely substantial interest.
 The least stringent of all is the DIFFERENTIAL OR RATIONAL
REVIEW. The regulations are valid if it rationally furthers a
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legitimate government interest without of course inquiring
into such interest and examining the alternatives.
Generally, when judicial review is invoked for purposes of
questioning the validity of legislation under Substantive due
process:
The most common is GRAVE ABUSE OF DISCRETION as it is in
judicial review. Meaning, if the legislation is fair, or whether
legislation amounts to grave abuse of discretion, then they can be
subjected to judicial review. But as to whether the court will hold
that legislation invalid, these 3 tests are used to determine
whether this legislation can be allowed or should be nullified.
In relation to judicial standards of review, the VOID FOR
VAGUENESS DOCTRINE comes into play.
This case of PEOPLE V. SITON, this is a 2010 case, the
question was WON the accused should be held liable in the
tax measure. If a statute is vague, it is void because it
violates due process. First question: when does it become
vague? A statute is considered vague if it lacks
comprehensible standards that men of common intelligence
must necessarily guess as to its meaning or differ as to its
application. It is not vague simply because the words or
phrases are ambiguous. If the statute can be saved by
statutory construction or by saving clause, it is not
considered vague and there is not void.
It is considered as violative of due process because
(1) it fails to give fair notice to the person targeted and
(2) it gives state through its law enforcement agencies
unbridled discretion in the implementation or
execution of the law.
So how vague it is means that the words or phrases must not
be capable of given meaning despite the application of
statutory rules of construction. There have been several
cases you have encountered by which SC has gone through
congressional records to explain or give meaning to what the
provision of the law should pertain to. If after use of these
rules and aids in guiding the court in interpreting the
provision of the law as to what would be the legal meaning
and then it is considered as vague, and therefore void. But
again, if only a portion of that law is declared invalid, then
the rest of the remainder would be given meaning, then that
part is not vague and not void.
In relation to that void for vagueness doctrine, there are 3
usual traits which make the statute vague and therefore
void, have been used.
1. Facial invalidation
2. Overbreadth doctrine
3. As applied application
 When a statute is vague and declared therefore to be
void, most of the question on cases on this will be
placed as a form of FACIAL INVALIDATION. Meaning,
the law which on its face is vague should be declared
unconstitutional. The facial invalidation theory to
declare the law as unconstitutional is generally allowed
when it refers to cases or laws free speech rights and
not to criminal or penal statutes. The reason given is
that it will prevent the state from prosecuting lawful
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
offenders if the statute is declared void on its face
because it is vague. So this only applies when it involves
free speech rights or expression.
 OVERBREADTH DOCTRINE is the reverse of facial
invalidation because Overbreadth would require that
the law is not really vague on its face. The law is clear as
to what acts are covered or penalized, although the law
also penalizes what is also supposed to be protected
rights. So the law has been applied to cover acts even if
these acts are protected. That’s why they use the term
‘Overbreadth’. Can the law be declared
unconstitutional because it tends to cover acts which
are supposed to be declared protected? Again, this is
allowed if it involves free speech rights and free speech
regulations. The reason for this is, even if the person is
not charged before the courts in a case, but because it
affects protected rights, the court may actually declare
that law to be unconstitutional so that the protected
rights will not be impaired.
 AS APPLIED DOCTRINE is the limited case or petition to
declare a law unconstitutional because it is vague if
applied to a particular accused or defendant in the
case. It may not be vague to everybody but if applied to
him, it may be vague and the court may be allowed to
declare a law unconstitutional because it is vague if
applied to this particular individual. Just like this case of
Siton, this would require payment of taxes for lessees,
owners of fish pens and ponds and for non-failure of
which, would subject these persons to certain criminal
liability. The accused here was a fish pen manager and
so is he covered by the term ‘owner or lessee’ of the
farm or fish pen? Facial invalidation cannot be applied
because it does not involve free speech. Overbreadth
doctrine could not also be applied because it is a tax
legislation but if using ‘as applied’ to him doctrine, there
is a possibility that the law can be declared as
unconstitutional if applied to him only. The issue is
when applied to him, is he covered in the term ‘owner
or lessee’ as covered by the enumerated terms in that
law? The SC said he is covered anyway .But just to show
that ‘as applied’ doctrine can be used to declare a
criminal statue as unconstitutional as against a
particular defendant and not only limited to free
speech rights or regulations but it applies to any
criminal statute for that matter.
D. Equal Protection
We all understand that equal protection or equal protection
clause is included under the due process clause it is under section
1 and we have been made to understand that its part of due
process but general question of arbitrariness is usually
questioned under the due process clause but specific instances of
bias and partiality is usually questioned under the equal
protection clause.
Equal protection simply requires that all persons or things should
be treated alike both as to rights conferred and as to
responsibilities imposed. It does not require absolute equality but
only substantive equality based on a valid classification. And for
there to be a valid classification, Persons or things are similar in
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some particulars of which they are not similar to the rest. It is not
required that they are similar in all these particulars but only that
in some particulars, they are similar which in others do not hold
any similarity.
The requisites for valid classification would be:
1. Classification must be based on a substantial distinction
2. It must be germane to the purpose of the law
3. must not be limited to existing or present conditions
4. it must be applied equally to all those who belong to
the same class
The law does not require absolute equality to all provided there
must be absolute equality to all those who belong to the same
class.
Substantial Distinction/ Germane to the purpose of the law
When we say substantial distinction, while substantial
means it must not be superficial, the substantiality of
distinction is based on its reasonable connection to the
intent of the law because classification must have to be
germane to the purpose of the law.
Age—may or may not be substantial depending on the
objective/intent of the legislation. Gender—when used on
maternity or paternity laws, it would be substantial. But
when used for purposes of minimum wage, that should not
be substantial distinction because in labor law, we know that
is a fair day’s wage for a fair day’s labor. So it largely
depends on the intent of the law to make the classification
based on substantial distinctions.
Must not be limited to existing or present conditions
For so long as the matter or issue sought to be addressed by
the legislation where the classification is made is existing or
will continue to exist, that classification must continue to
exist.
It must be applied equally to all those who belong to the same
class
It cannot be made applicable to existing conditions only
because it will amount to CLASS LEGISLATION. Or anything
or Any person which is supposed to be covered by the
legislation but because of the classification becoming
applicable to present conditions only, it will be violative of
equal protection of those who may be similarly situated in
the future who will no longer be covered by the legislation.
There must have to be symmetrical applicability of the
legislation based on the classification of all those falling in
the same class. Symmetrical because our common example
there for easy reference is our income tax base whereby
classification in legislation--- there are several amounts of
money as your net income will belong to the same class, you
may not earn the same amount but the law would put you in
the same category because that is the intent. They are
capable of paying the same tax worth.
The standards for judicial review of classification would still
follow the 3 tests—(1) The strict scrutiny, (2) intermediate and (3)
rational basis test. This simply means that in strict scrutiny, there
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
must have to compelling state interest as to why that law has
been made and the intent of that legislation subject of
classification is the less restrictive means of achieving that
purpose of the legislation. With respect to intermediate scrutiny,
the classification must have to be substantially related to a
government interest. While on rational basis, there must have to
be a rational relationship of this classification to a legitimate
government purpose.
In the constitution, there are equal protection that is imposed.
We have
(1) Political Equality ,
(2) Economic Equality and
(3) Social Equality.
 With respect to POLITICAL EQUALITY, we have policy that
our candidates must be free from harassment and
discrimination, reduction of political inequality by reducing
wealth in political power, reduction of acquisition, use,
ownership of property for purposes of political equality, and
also guarantees the power of the people’s initiative in
government decision making. Then there is equal access to
government service, prohibition on political dynasties,
sectoral representative in congress and LGUS.
Art IXC, Sec 10 – Discrimination
Art XIII, Sec 1 – Social Justice
 With respect to ECONOMIC EQUALITY, fundamental
equality for the law, reduction of inequality by reducing
wealth in political power, nationalization, mining, land
ownership of public utilities, mass media, advertising and
preservation of marine wealth and protection to labor and
social justice provision.
Art II Sec 14
Art III, Sec 11 - Free access
Art VIII, Sec 5(5) – Legal Aid
Art XII, Sec 2 – Marine Resources
Art XII, Sec 10 – Naturalization
Art XIII, Sec 1-2 – Social Justice
Art XIII, Sec 3 – Protection of Labor
 This is the same with SOCIAL EQUALITY provision except
that in addition to those, we have free access to courts and
legal aid.
Art XIII, Sec 1 – Social Justice
There is a question, yesterday there was an opinion in the
newspaper because of the statement of Santiago as to WON
those members of congress who are accused of plunder be
placed in suspension under the Plunder law. Remember the case
of Santiago v. Sandiganbayan, she used to be BID commissioner
and she was charged for violation of RA 3019. Under that law,
when a valid info is filed in court, the public officer charged shall
be placed under preventive suspension for 90 days or 6months.
Miriam Defensor became senator and SB issued an order
suspending her. Ang nakalagay sa law, ‘shall be suspended from
office’. There were 2 issues there as to whether (1) a sitting
senator can be suspended by a court and not by his/her peers
under section 16 of article 6 that by vote of 2/3 of the members
of the house, a member of congress may be suspended or
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expelled and the (2) second issue is to what office should that
public officer be suspended? The suspension ordered by the
court under RA 3019 is not the suspension under the constitution
which only the peers of the members of congress can impose.
Preventive suspension is not a penalty while the suspension of
the members of the congress is. Since the law merely mentions,
‘office’, then in whatever office you are occupying now, you
should be suspended in that office. So senator Santiago should
have been suspended but she was not suspended because she
was already acquitted by the SC when it rendered its decision in
2001. But when she was still sitting then, she could have been
suspended. Could this happen to those senators who are accused
of plunder now? Of course they should NOT be suspended yet
because there is no valid information yet filed in court. But the
plunder law says that once a valid information is filed in court,
they should be suspended until the case is terminated. Question:
what if hindi xa senator from 2016-2019 but next election, nanalo
ulet and the case is still pending, can that senator be suspended?
Is it going to be a perpetual preventive suspension? Nobody says
in the law yet but you see, if you go by the reason why the
suspension should not be more than 60 days, the traditional
reason is that, you deny the constituents of legislative
representation that’s why its limited to 60 days. SC said that
there is no problem for expulsion. Iba kasi pag expulsion. From
the time the member is expelled, the constituents are deprived of
representation but the constituents have a chance to have
another representative because there may be a special election.
Unlike in a suspension, the position cannot be filled up because
the representative is still there only that he is suspended. That’s
why the suspension is only limited to 60 days. Here comes
plunder law saying that officer is suspended until case is
terminated. Alam mo naman sa pilipinas, dugay mahuman ang
case. I doubt if they will still be covered by that preventive
suspension.
II. REQUIREMENTS OF FAIR PROCEDURE
A. Arrests, Searches and Seizures, Privacy of Communications
Art III Section 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and
the persons or things to be seized.
Section 3. (1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
RULE 126 Search and Seizure
Section 1. Search warrant defined. — A search warrant is an order
in writing issued in the name of the People of the Philippines,
signed by a judge and directed to a peace officer, commanding
him to search for personal property described therein and bring it
before the court. (1)
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
Section 2. Court where application for search warrant shall be
filed. — An application for search warrant shall be filed with the
following:
a) Any court within whose territorial jurisdiction a crime was
committed.
b) For compelling reasons stated in the application, any court
within the judicial region where the crime was committed if
the place of the commission of the crime is known, or any
court within the judicial region where the warrant shall be
enforced.
However, if the criminal action has already been filed, the
application shall only be made in the court where the criminal
action is pending. (n)
Section 3. Personal property to be seized. — A search warrant
may be issued for the search and seizure of personal property:
1. Subject of the offense;
2. Stolen or embezzled and other proceeds, or fruits of the
offense; or
3. Used or intended to be used as the means of committing an
offense. (2a)
Section 4. Requisites for issuing search warrant. — A search
warrant shall not issue except upon probable cause in connection
with one specific offense to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized
which may be anywhere in the Philippines. (3a)
Section 5. Examination of complainant; record. — The judge must,
before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn
statements, together with the affidavits submitted. (4a)
Section 6. Issuance and form of search warrant. — If the judge is
satisfied of the existence of facts upon which the application is
based or that there is probable cause to believe that they exist,
he shall issue the warrant, which must be substantially in the
form prescribed by these Rules. (5a)
Section 7. Right to break door or window to effect search. — The
officer, if refused admittance to the place of directed search after
giving notice of his purpose and authority, may break open any
outer or inner door or window of a house or any part of a house
or anything therein to execute the warrant or liberate himself or
any person lawfully aiding him when unlawfully detained therein.
(6)
Section 8. Search of house, room, or premise to be made in
presence of two witnesses. — No search of a house, room, or any
other premise shall be made except in the presence of the lawful
occupant thereof or any member of his family or in the absence
of the latter, two witnesses of sufficient age and discretion
residing in the same locality. (7a)
Section 9. Time of making search. — The warrant must direct that
it be served in the day time, unless the affidavit asserts that the
property is on the person or in the place ordered to be searched,
in which case a direction may be inserted that it be served at any
time of the day or night. (8)
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Section 10. Validity of search warrant. — A search warrant shall
be valid for ten (10) days from its date. Thereafter it shall be void.
(9a)
Section 11. Receipt for the property seized. — The officer seizing
property under the warrant must give a detailed receipt for the
same to the lawful occupant of the premises in whose presence
the search and seizure were made, or in the absence of such
occupant, must, in the presence of at least two witnesses of
sufficient age and discretion residing in the same locality, leave a
receipt in the place in which he found the seized property. (10a)
Section 12. Delivery of property and inventory thereof to court;
return and proceedings thereon. — (a) The officer must forthwith
deliver the property seized to the judge who issued the warrant,
together with a true inventory thereof duly verified under oath.
(b) Ten (10) days after issuance of the search warrant, the issuing
judge shall ascertain if the return has been made, and if none,
shall summon the person to whom the warrant was issued and
require him to explain why no return was made. If the return has
been made, the judge shall ascertain whether section 11 of this
Rule has been complained with and shall require that the
property seized be delivered to him. The judge shall see to it that
subsection (a) hereof has been complied with.
(c) The return on the search warrant shall be filed and kept by the
custodian of the log book on search warrants who shall enter
therein the date of the return, the result, and other actions of the
judge.
A violation of this section shall constitute contempt of court.(11a)
Section 13. Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or anything
which may have been used or constitute proof in the commission
of an offense without a search warrant. (12a)
Section 14. Motion to quash a search warrant or to suppress
evidence; where to file. — A motion to quash a search warrant
and/or to suppress evidence obtained thereby may be filed in
and acted upon only by the court where the action has been
instituted. If no criminal action has been instituted, the motion
may be filed in and resolved by the court that issued the search
warrant. However, if such court failed to resolve the motion and
a criminal case is subsequent filed in another court, the motion
shall be resolved by the latter court. (n)
SEARCH AND SEIZURE
Now we go to search and seizure. The concept of search and
seizure or the right against unreasonable search and seizure in
our Constitution is based on the general concept of Right to
Privacy. The right to be left and be let alone by the State, unless
there is a compelling reason, the State cannot interfere with our
right to privacy in our houses, structures, buildings, persons,
documents and other rights. The prohibition or proscription in
the Constitution is only against UNREASONABLE SEARCHES AND
SEIZURES. There are two situations contemplated:
1. When a search is conducted without any warrant validly
issued and the instances not fall under any of those
valid warrantless searches and seizures then it is
considered to be unreasonable; and
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
2. Even if there is a warrant issued by the court, either a
warrant is invalidly issued by the court (invalid
warrants) or warrant has been implemented illegally.
So in those two general situations the search and seizure is
supposed to be considered as unreasonable.
1. Requirements for Search Warrants
Based on the Constitution and what is required under Rule 126 of
your Rules of Court, the REQUIREMENTS FOR THE ISSUANCE OF
A VALID SEARCH WARRANT WILL BE AS FOLLOWS:
1. There must be an application filed or petition by the
applicant and/or his witnesses before a court of proper
jurisdiction;
2. It must have to be issued after the judge has determined the
probable cause which is the requirement in the Constitution;
3. The determination of the probable cause by the judge must
have to be personally done by him, it could not be delegated
to any other; and
4. The judge must have to satisfy himself as to the existence of
probable cause by asking searching questions based on the
personal knowledge or based on responsive or answers of
the applicant and/or his witnesses.
Probable Cause- this refers to such amounts of facts and
circumstances which would lead the judge to believe that a crime
may have been committed and that the tools, effects and things
that will be used in the commission of the offense are in the place
to be searched and therefore must have to be seized. So it
depends on the determination by the judge as to what would
constitute as to satisfying the requirement of probable cause.
With respect to these questions to be asked the Rules of Court
requires based on the interpretation of the Supreme Court on
what would constitute these questions, the standard rule made
by the SC is that they must have to ask searching questions.
Searching in the sense that the judge must have to ask non-
leading questions and with these responses the judge will be able
to satisfy himself of the existence of probable cause. Of course
the responses must have to be based on personal knowledge and
as we have known in the Rules on Evidence, personal knowledge
is the basic rule in what we know as matters which a person can
testify on. If he has no personal knowledge on facts that would be
beyond his competence to satisfy. It must have to be acquired by
him through the use of any of his senses. If that fact would turn
out to be false later, he could be charged criminally for such false
testimony or perjury testimony.
The Rules of Court also requires that the application during the
taking of the testimonies of the applicant and/or his witnesses,
they must have to be in writing. What we normally would do is
that there would be transcription of the testimonies of the
applicant and/or his witnesses.
It also required that the warrant must have to be issued in
connection to one specific offense. The entire idea is to prohibit
the issuance of what is known as SCATTER-SHOT WARRANT OR
GENERAL WARRANT. Since the application for a search warrant is
precisely made in order for the State or his agents to seize and
secure evidence which will be used against the person or persons
to be charged later. Meaning there is no criminal case pending
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yet as it is normally had in search warrant applications. The
problem is that the State would want to seize evidence to be
used later on in a criminal case or cases to be filed against the
person subject of the warrant. That is why the warrant must
specify as to what particular offense is the warrant to be issued
for.
Then there must have to be particularity of description of the
place to be searched and of the things to be seized. Of course,
the particularity of the description of the place to be searched
also as required by the Rules of Court now, the applications for
search warrant must include a sketch in order to avoid any
problems with respect to the variance in the place applied for and
the place as indicated in the warrant. The problem being
compounded or brought about by the fact that in the country
addresses are not too specific. If you say No. 5, there is even no
number in our streets as common as it is. Streets are not even
identifiable by name. That’s the reason why the particularity in
the description of the place largely depends on how under the
circumstances it could be particularized. Same way in the
particularity in the description of the thing or things to be seized.
 For example in one case it would require, for example
the warrant is applied and issued for illegal possession
of firearms, if the application and search warrant would
indicate even the serial numbers of the fire arm, then
the SC said it would require an impossibility.
 Or if it would require to the prohibited drugs to
particularize it in terms of correct amount or quantity
or volume that would require an impossibility, because
of the sheer difficulty in particularization simply
because these things or theses items would not
normally be sold under ordinary circumstances. There is
utmost secrecy in drugs or fire arms trade where it is
usually by surveillance determinable that there is an
undetermined caliber of fire arms inside that place
intended to be searched or with respect to the
prohibited drugs as well.
For so long as there is particularization sufficient enough to grant
authority to the implementing agents as to what items to seize
then that would be sufficient.
Of course it would be different if the subject of the search
warrant are items which are ordinarily not illegal per se because
by the manner that they have been used they have become
illegal and therefore subject of the search and seizure.
 For example in gambling, normally gambling
paraphernalia and money. The money must have to be
specified as having been used in relation to gambling
like bets, because if what is indicated there is money,
possession of cash or bills is not illegal per se.
 Same thing with video piracy in old cases involving
Columbia pictures and similar other motion pictures the
possession and custody VCRs or video recording
machines and other paraphernalia which are ordinarily
found as items or equipment in a video store if they are
not specified as having been used in relation to illegal
video piracy then they cannot be seized because there is
no specification that they are illegal.
 Same thing with this other intellectual property
violation, if say it is an illegal operating system or it is an
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
operating system it must have to be specified as having
been illegally obtained and/or illegally downloaded or
used in that particular computer, otherwise there
would be no allowance for seizing a CPU simply because
it is a computer unit because possessing the computer
units is not illegal per se.
With respect to the other Rules of Court provisions we made
mention about the issuing court, the warrant now must have to
applied for and issued by the court which has territorial
jurisdiction of the place where the crime has been committed,
that is the general rule.
As an exception for compelling reasons any court of the
judicial region where the crime is committed or where the
warrant is to be enforced if the court which has territorial
jurisdiction over the place or the crime has been committed
is not functioning.
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So Davao City is part of the 11 Judicial Region, this
would include the other Davao provinces and I think
part of the General Santos if I am not mistaken. So if
the warrant is supposed to be implemented in Davao
City, we could not ordinarily apply in the Davao
provinces court, it must have to be applied for and
issued by the Davao Court. Unless again for compelling
reasons you can apply in a court within the same
judicial region.
Of course if there is already a case filed the application must
be made and the warrant must be issued by the court where
the case is pending.
The other exception there would be under special rules and
that refer violation of intellectual property laws.
Under your Intellectual Property Rights Act, the SC has
issued a resolution allowing the executive judge of the
RTC of Manila and the executive judge of the RTC of
Quezon City to receive process and issue search
warrants to be implementable in any part of the
Philippines for violation of intellectual property rights.
Another requirement in the Rules of Court with respect to
validity in the implementation of the warrant you have your 10-
day period. The search warrant is valid for 10 days only from the
date of issuance. Of course the question normally asked there is
whether or not the search can be conducted continuously or to
be stopped let say 5 o’clock and then continued the following
day? It would largely depend on whether or not the nature of the
search would require continuous search, because we have also to
contend with one rule that the rule in searches under a warrant is
day time search. There could be no nighttime search unless there
is a special application made and also a special order granted by
the court that a nighttime search is allowed.
The reason for that in one of a very old case is that in
nighttime normally there are more violations committed and
because to allow a search in the house or premises by
reasonable search warrant is already a violation of one’s
privacy, the intrusion must have to be minimal allow a
nighttime search would be more that the minimal intrusion
allowable.
Again, is the search has to be made and it is required that it will
not be completed in one day then it can be done the following
day if there is no nighttime search order granted. For so long as
the search is done within the 10-day period then the search
would still be valid.
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Of course it will not be the same if the subject of the search
is a 20sq. meter residential unit, how long would it take a
police officer to search this place do not tell me that you
would have to continue the following day or next day. It is
no longer reasonable; it will be a violation already, even if
the subsequent searches are conducted within the 10-day
period. We have to consider the nature of the search to be
conducted.
Finally with respect to witnesses, search of houses, roads any
premises there must have to be witnesses, either the lawful
occupant, a family member or if they are strangers, 2 witnesses.
We follow the witness rule in searches that is required not only
because the Rules of Court under Rule 126 on searches requires it
there is also a felony under the Revised Penal Code for searches
conducted without the presence of the witnesses. That is why in
most searches conducted they would have 2 members of the
barangay to act as witnesses for them because of the
requirement of 2-witness rule.
In relation to the issuance of the warrants, you have this
2011 case of Pollo v. Constantino David, this involves the
issuance of memorandum order by the CSC allowing searches
of files in government computers in the workplace to ensure
that the computers are only used for official purposes. The
validity of the memorandum of the CSC was questioned
because it is supposed to be an unwarranted search. The SC
upheld the validity of the memorandum order saying that it
is an order issued for purposes of searching a government-
owned computer so the government owns the computer so if
the government issues an order authorizing a search on its
own property then that is not constitutionally infirmed.
It must have to be distinguished from the 2008 case of Atty.
Morales, clerk of court of MTC Manila. Atty. Morales was
charged administratively for engaging in private practice
despite the fact of being clerk of court of MTC-Manila. One
of the objects which was subject to a search was his
personal computer which he has been using in his office. The
purpose of the search was to look into the files to determine
whether or not Atty. Morales was actually practicing law
with the presence of pleadings and other documents in his
personal computer, it could be evidence to prove that he is
engaged in the private practice. The SC did not allow the use
these files from the computer because it was an
unwarranted search. There was also no waiver on the part of
Atty. Morales. The distinction must be made because the
computer was a personal computer and so there must have
to be a valid search without a warrant if no warrant was
secured prior to the search. But for government issued
computers, there is no need for a warrant because it is a
government property.
2. Valid Instances of Warrantless Searches and Seizure
(1) Search of Moving Vehicles
(2) Search incident to a Valid Arrest
(3) When things seized are within plain view of a searching
party
(4) Stop and Frisk
(5) Express Waiver
(6) Search of Warehouse in Violation of Customs and Tariff
Code or to enforce Customs Law
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
(7) Exigency
(8) Search and seizure by Private persons
(9) Airport Security
(10) Jail Safety
The common denominator in search without warrant which are
valid is the so-called lack of sufficient opportunity to secure a
warrant. Because of the circumstances that would prevent the
state agents to secure a warrant first. While search warrants may
be issued even in a minutes application for so long as the judge is
convinced that probable cause exists, still there is a delay caused
if the warrant is still to be applied and secured from the court.
Lack of sufficient opportunity to secure a warrant then it might
fall under valid warrantless search and seizure.
SEARCH OF MOVING VEHICLES
Highly regulated by the government, the vehicle's inherent
mobility reduces expectation of privacy especially when its transit
in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a
criminal activity. It is based on the nature of the vehicle which is
movable it can be taken from the jurisdiction of the issuing court.
Assuming it were to follow the procedure for securing a warrant,
by the time the warrant is issued the vehicle sought to be
searched would no longer be there and the warrant could not be
effective.
Also while it is allowed to be conducted in a moving vehicle all
these cases would show that there is still a minimum
requirement that probable cause must have to be established
not by any applicant but by the searching officer meaning the
searching officer must have to determine at least the minimum
that there is a need to stop the vehicle and cause the search on
the vehicle. It is not correct to say that just because search of
moving vehicles is a valid instance of warrantless search the
police officers can just flag down vehicles even if there is no
reasonable suspicion that the crime is being committed, that the
effects, tools or objects or things to be used in the commission of
the crime are inside the moving vehicle that is why it has to be
flagged down, stopped and it has to be searched. There must
have to be that minimum determination to be made by the police
officer. So the problem is it is not determined by the judge it is
determined by the police officer. Because of such determination
made by a non-judicial person who is a law enforcement agent,
what he is up to is always up to securing or seeking evidence for
the purposes of filing cases against those persons. There is no
concept of impartiality as it were if the warrant is to be issued or
probable cause is to be determined by a judge because police
officer is always interested in having evidence obtained in filing
criminal cases he being a law enforcement agent. But again that
is still required as a minimum so that vehicles could be flagged
down and thereafter can be searched.
 In relation to search of moving vehicles will be our Search in
Checkpoints that has been established in the case of Revilla
for a very long time, where in Metro Manila checkpoints
were established by the National Capital Police Command
and the question was raised whether ot not the searches in
these checkpoints are valid. But For most Davao City
residence that is already a common occurrence so there is
not much issue, but in Metro Manila that is not something
that they see on a daily basis.
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These rules were established:
1. The checkpoints must not be movable; they must have
to be stationery.
2. The locations of the checkpoints has to be determined
by the commanding officer in charge of that particular
area of responsibility, it could not be determined by the
police officers manning the checkpoints. The idea being
that it is for the commanding officer to determine
which area would be the best area to do a checkpoint
considering the limited resources in personnel and/or
manpower of the police command.
3. The police checkpoint must be manned by a police
officer. You may have noticed during elections as
required under COMELEC Resolutions there must also be
the participation of an election officer for every
COMELEC established checkpoint that is during the
conduct of the elections.
4. Search is limited to a visual search. When you say visual
search, ideally occupants must not be detained in the
checkpoint longer than what is necessary for a visual
search. Also, they must not be required to open any
compartment in their vehicle nor do they have to be
required to get off the vehicle.
However, as always as an Exception, if there is probable
cause for these police officers manning the checkpoint to
conduct a more extensive search then they can conduct a
more extensive search, just like on our discussion earlier on
search of moving vehicle, the determination probable cause
is made by police officers and men manning the checkpoint
and so if there are facts and circumstances would permit
them to conclude that there is a probability that there is an
ongoing criminal activity inside the moving vehicle and there
is a need to conduct a more extensive search they can
conduct a more extensive search. In these situations the SC
made clear that even if all of these are complied with, it
doesn’t mean that searches in checkpoints are generally
valid, because there may be individual cases where there are
violation of one’s rights to privacy or unreasonable searches
and seizures and even if all these are complied with they can
still file cases for such individual violations.
SEARCH INCIDENT TO A VALID ARREST
There must have to be a valid arrest before a search incident
thereto could be valid. If the arrest is not valid there can be no
search incident to a lawful arrest.
As to a subsequent or incidental search there are 2
considerations to remember:
1. There is a limitation on space and
2. There is a limitation on time.
 Limitation on Space. Limitation on Space would require that
the search be made on the person or body of the person
arrested
 Limitation on Time. That it made within this his immediate
vicinity where he has effective control. So that even if that
person who is supposedly is arrested validly would say throw
evidence like drugs or whatever those can still be seized and
can be used against him because he has effective control
over that immediate vicinity.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
The same thing with the other purpose for allowing search
incident to a valid arrest with respect to weapons. The real
reason a person can be searched bodily and also of his immediate
vicinity where he has effect control is to ensure that the arresting
officers will remain in the entire duration until he is taken into
custody because that person might have a concealed weapon
with him or there are weapons within the immediate vicinity for
he could take control of them to use them to effect escape or to
commit acts of violence. So limitation in time and limitation in
space.
WHEN THINGS SEIZED ARE WITHIN PLAIN VIEW OF A
SEARCHING PARTY (PLAIN VIEW DOCTRINE)
This is a normal justification for seizure of items during a search
by virtue of a warrant where the item is seized is not included in
the warrant. Meaning if there are items found during the conduct
of the search by virtue of a warrant and they are considered as
evidence in plain view, they could be seized not because of the
warrant (because they are not listed there) but because they fall
under the so-called Plain View Doctrine.
The elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest
in which the police are legally present in the pursuit of their
official duties;
(b) the evidence was inadvertently discovered by the police who
had the right to be where they are;
(c) the evidence must be immediately apparent[;] and;
(d) “plain view” justified mere seizure of evidence without
further search.
For plain view doctrine to apply:
1. There must be justification for the prior intrusion E.g. a
search warrant issued by the court so that justifies your
intrusion. Why were you there? It is because there is a
warrant issued by the court. Of course not all valid intrusions
are by virtue of a warrant. There are also intrusions where
you have the right to be there even if there is no warrant
issued. You are trying to arrest a person and the person ran
towards an enclosure, and so you got inside the enclosure to
effect the arrest of that person and while you are there you
discovered this evidence that is under the law considered as
evidence under the plain view. First is the validity of the
intrusion or justification of the intrusion. Again the first
would be the justification of the intrusion; the common
question asked is “Did the police officers have the right to be
there in the first place?” If they did not have any right to be
there then they could not apply the plain view doctrine.
2. The evidence is inadvertently discovered. Meaning in the
state of mind they are not actually looking for it because
they were just discovered when they were there then they
are supposed to fall under the plain view doctrine.
3. The evidence is open to the eye or hand of the police. So
ordinarily in plain view viewing it. But why is it in some cases
the SC has said open to the hands because the search by
virtue of a warrant is conducted and a drawer is searched,
you have seen that in movies right , they search drawers and
they don’t actually take everything out they just try to feel
what’s beneath or under those garments. When they feel
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something like a gun then that would be seized because it is
open to the hand.
4. The evidence of illegality is immediately apparent. That’s
where most of the discussions are. The last is the evidence
of illegality is immediately apparent.
In one case the SC did not apply the plain view doctrine
because of the facts of the case: There was a buy-bust
made and the drug transaction was done in the living
room of the house. When they announced the arrest,
they went to search the kitchen of the house. The
kitchen and the living room were divided, there was a
divider, and one cannot directly see the kitchen from
the living room where the buy-bust operation was
actually done. When they went to the kitchen they
found a plastic bag which is not even transparent, it is
opaque, meaning colored. It is hung by the nail tucked
in the wall and so they had to bring it down had to open
the plastic bag and they found something wrapped in a
newspaper and they had to open it and they found
bricks of dried marijuana leaves. So the question there
is whether or not those marijuana leaves are admissible
as evidence. The SC said they could not be because they
could not be seized under evidence in plain view. Why?
because the evidence of illegality is not immediately
apparent just by looking at it. The SC seems to suggest
that you already know that it is illegal. So normally this
plain view doctrine would apply to items which are
open to the eye or the hand and that by nature they are
illegal.
That would refer to only two things: GUNS and DRUGS.
We don’t have right to bear arms. Possession of
firearms does not enjoy the presumption of validity and
the presumption is that it is not permitted. It is for the
person who has control or in possession of the hand
gun to show that he is duly permitted by the State to
possess it. So the presumption is that it is not
permitted. So the evidence of illegality is immediately
apparent. So with prohibited drugs, perhaps with
regulated there may be some legal excuse because you
might have been allowed by the State to possess
regulated drugs. Like for your medication. Prohibited
drugs are illegal per se so the evidence of illegality is
immediately apparent. That would be the requirement
which is most discussed with respect to evidence in
plain view.
I would often refer or cross-reference this to the case of
CA vs. PITA, involving that seizure of “pornographic or
obscene materials”, the Chief of Police of Manila
directed his police officers to seize all obscene or
pornographic materials being sold in the streets of
Manila. These police officers confiscated all the
magazines which are according to the pornographic and
obscene. The SC said the determination of what is
obscene or what is pornographic is a matter of judicial
discretion, simply because the evidence of illegality is
not immediately apparent. Who could say that that is
pornographic or that is obscene, unlike the prohibited
drugs or guns. There is no argument. Unless you are
duly permitted to possess that then you can be excused
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
otherwise the presumption is, it is not permitted. When
it comes to magazines which are apparently
pornographic based on the determination of the police
officers the problem is obscenity at least per
jurisprudence is based on contemporary community
standards. If the material taken as a whole would only
cater to the __ interest based on contemporary
community standards, whose community are we talking
about? Whose standards? The illegality is not
immediately clear because there has yet to be a
determination whether or not these materials are
appealing purely to the __ interest or is there any social
redeeming value.
STOP-AND-FRISK
The stop-and-frisk situation is based in the US case of Terry
v. Ohio, a 1968 case. This was based on the discussion of the
SC in the US that in a stop-and frisk situation, there is
actually no intent to search a person, to seek evidence, other
than to protect the safety of the police officer in an
appropriate circumstance while he’s investigating possible
criminal activity. In this old case of Terry v. Ohio, a police
officer was on duty and he had observed two persons upon
the casing a store and he suspected that there might be a
robbery to be committed. So, he stopped these two persons
and frisked them, one of the accused is John Terry, and
where he bodily topped them, they were found to have
concealed weapons with them. So, they were charged with
concealment of a deadly weapon under Ohio statute and
they were convicted. On appeal to the US SC, the SC
affirmed conviction. The appeal was supposed to be on the
th th
violation of their 4 amendment right. The 4 amendment
right is similar to our search and seizure clause. The US SC
affirmed the conviction by a majority saying that in that
situation, in an appropriate circumstance, what was done
was actually to search, no not search, they actually avoided
the use of the word searching, but to frisk a person for
possible concealed deadly weapons to ensure the safety of
police officer while investigating possible criminal activity.
So, this was applied in that Philippine case of Posadas v. CA
which originated here in Davao where the local court
refused to exclude the evidence on the ground that it was
not an instance of that search where the police officers have
already a personal knowledge that there’s a criminal activity
on going and that the search was done to secure and seize
evidence. What was applied in that Posadas ruling was the
stop-and-frisk situation under the Terry v. Ohio decision and
this was affirmed by the Philippine SC as well. What was to
be emphasized in stop-and-frisk situation was the lack of
intent on the part of the police officer or law enforcement
agent to seize evidence because he already had knowledge
that there’s an on-going criminal activity. What the decision
allows is for the police officer to stop that person in order for
the police officer to frisk him for possible concealed deadly
weapon (not for evidence that can be used against him) but
to ensure his safety while he’s investigating possible criminal
activity. The appropriateness of the circumstance must have
to be likened to a situation where like in the dead of the
night, in the dark, in a secluded alley, there is a person acting
suspiciously, so the police officer has the right to conduct a
stop-and frisk situation. In the Terry v. Ohio case, though it
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was not in the dead of the night, but the main avenue where
the store was suspected to have been cased by these
suspects was somewhat deserted.
In the Philippine case of People v. Mengote, this was also an
old case, the SC did not apply the stop-and-frisk situation
because the circumstance was not appropriate. If you can
remember this case, this case involved a police tip or the
police station received an informant’s tip or call for
assistance because apparently there was a person walking
into-and-from in front of a store and there was something
bulging in his waist line and he was acting suspiciously. So,
the police responded to the call and in fact saw this person
walking in front of a store and, true to the description, he fit
the description, and so they arrested him and found in his
possession was a fan-knife and I think a local pistol. So he
was charged accordingly. The SC did not affirm the
conviction because it was not appropriate. The SC noticed or
observed that based on the records in the trial court, the
incident took place about 12 noon in the corner of two busy
streets or intersection and it was not actually ascertained
and there were several people passing in that corner or
intersection. The person may have been acting suspiciously,
there might have been something bulging in his stomach, but
the SC said that that alone would not arouse suspicion where
the police officers would have the right to stop-and-frisk him
in order to investigate possible criminal activity. So, the
appropriateness of the situation or circumstance has to be
emphasized in order to allow a stop-and-frisk situation.
In relation to plain view and stop-and-frisk, you have the
2012 case of Ong v. People. Ong was driving a motorcycle
and he was apprehended for not wearing a helmet. When he
was waiting for the TOP (temporary operator’s permit) to be
issued to him because he was apprehended, he was I think
acting suspiciously according to the apprehending officer for
which he was bodily searched and taken from him, actually
from the pocket of his jacket, several items, one of which
was a tin can and when it was opened, because he was
asked to open it, it contained a prohibited drug. So the
question is whether these items are admissible against him
having been charged of violation of the Revised Dangerous
Drugs Act, the SC said that it could not be search incident to
a valid arrest validating the search and therefore making the
evidence admissible because there was no arrest to begin
with. When you are actually apprehended by reason of a
traffic violation without any other resulting acts or damage,
for example, traffic violation nabunggo nimo ang poste
human nahulugan ang tao patay may resulting damage yun,
but ordinary traffic violation, nag beat ka ng red light
without a helmet, no other resulting violation, according to
the traffic manual, that is not supposed to be an arrest, you
are just to be issued a temporary operator’s permit and your
driver’s license is taken, so if that is the situation as with Ong
in this particular case, the SC said there was no arrest and
therefore there could be no search incident to a valid arrest.
It could not also fall under evidence in plain view because the
facts would show that the prohibited drug was found inside a
tin can which was taken from his pocket meaning just by
looking at the person or even by the tin can, the evidence of
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illegality is not apparent which is the 4 condition of the
plain view doctrine to be applicable. It could not also fall
under the stop-and-frisk according to the SC because in stop-
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
and frisk situation, again you go to the appropriateness of
the circumstance, and assuming according to the SC that it
was appropriate for the police officer to frisk him. Frisking
according to the SC is to tap the person on his outer
garment. You could not tap a person like tap or frisk his
pockets and everything, you could not ask that person to
empty his pockets because that is outside the ambit of what
is allowed in stop-and-frisk. Frisking is actually to tap the
person from his outer bodily clothing. I-fefeel lng kung may
posibleng krimen. The prohibited drug was taken inside a tin
can, inside the pocket which the SC said was beyond the
allowable frisk under the stop-and-frisk situation.
EXPRESS WAIVER
In express waiver, several considerations:
1. The waiver must declare, with full understanding, the
consequences of the waiver. Of course it presupposes that
the person understands his rights (meaning his rights against
unreasonable search and seizure) and that he is willing to
waive such right knowing the full consequences of the waiver
(meaning that any evidence that is seized can be used
against him in any court of law).
2. The waiver must have been given by the person to whom it
pertains. A classic example would be in a hotel room where
the police officers would want to search that room of a legal
occupant of a hotel room, but when the police officers have
knocked on the door and asked for permission or consent,
an unauthorized or unregistered occupant of the hotel room
was the one who answered that knock and eventually gave
them consent, is that a valid consent or waiver? If occupancy
or possession of the room is to the authorized occupant,
then it is that person who has the right to give consent or
waiver.
It must have to be distinguished from what could be an
IMPLIED WAIVER OR CONSENT. Normally, there are
situations where people whose rights are to be affected
would fail to object or protest to the intended search simply
because they are afraid to do so. The waiver must have to be
express, meaning again there must have to be full
understanding of his rights and the consequences of his
waiver and it must not be based upon implication simply by
reason of one’s failure to protest or object to the intended
search.
In the case of Veroy, an old case also based in a Davao
incident, the search by reason of a waiver or consent must
have to be done consistent with the terms or conditions of
the waiver. In that case the waiver was to allow the police
officers to search the house for presence of military soldiers
who were considered to be rebels and so the fact that there
were some supposedly subversive materials which were
found, discovered, and seized from places in the house where
no person where suspected to fit, where excluded by the SC
simply because the search has been done outside of the
parameters of the waiver or allowance or consent. So, they
must conduct the search in relation to waiver or permission
granted by the person to whom the right pertains.
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SEARCH OF WAREHOUSE IN VIOLATION OF CUSTOMS AND
TARIFF CODE OR TO ENFORCE CUSTOMS LAW
The last would be under the Tariff and Customs Code. This is
search in violation of the tariff and customs code and limited to
warehouses and modes of transport. This does not include
dwelling houses or places use for residence. That is why the joke
is that if you are a smuggler you’ll try to keep smuggled goods
inside your house, don’t keep it inside a warehouse so that they
must have to secure a search warrant first before they would
seize it otherwise it will be an invalid instance of warrantless
search.
SEARCH AND SEIZURE BY PRIVATE PERSON
Now you have your Rule 27 Production and Inspection of
documents. The question is: Is this a species of warrantless
search? Rule 27 allows upon a valid order issued by a court upon
application to allow the adverse party to inspect photographs,
documents, papers, books, accounts, objects, letters or tangible
things not privileged which constitute or contain evidence
material to any matter involved in the action, or order any party
to permit entry upon designated land or other property in his
possession or control. It is not a species of search when there is
no warrant but there is court order. Well ostensibly looking at it, it
may be but technically is not.
Production of Documents is a form of discovery. As we all know
the rules of court as to discovery primarily would involve civil
cases although the same modes of discovery or some of the
modes of discovery are applicable to criminal cases. And these
involve private rights of private parties. It is not the state
imposing itself or its authority to seize or enter premises to
inspect and seize “these” to form part of the evidence material to
the case.
AIRPORT SECURITY
Has not been the subject of cases traditionally considered as valid
instance of warrantless arrest but by reason of all these acts of
terrorism they say airport security has been a subject of 3 or 4
cases of Philippine SC where searches conducted by airport
security personnel are considered as a valid instance of
warrantless search and seizure.
JAIL SAFETY
Not traditionally considered as one of the valid instance of
warrantless search and seizure but because of jurisprudence SC
has said that as part of jail security to maintain the security in the
jail premises, not only for the purposes of keeping the inmates in
but also for the protection of the jail guards and of the public
then searches and seizures by reason of jail security procedure is
also allowed even if there is no search warrant issued.
3. Wire Tapping
REPUBLIC ACT No. 4200 - AN ACT TO PROHIBIT AND PENALIZE
WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE
PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.
Section 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication or
spoken word, to tap any wire or cable, or by using any other
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
device or arrangement, to secretly overhear, intercept, or record
such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or dictaphone or walkie-
talkie or tape recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or not
in the act or acts penalized in the next preceding sentence, to
knowingly possess any tape record, wire record, disc record, or
any other such record, or copies thereof, of any communication
or spoken word secured either before or after the effective date
of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the
contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other
person: Provided, That the use of such record or any copies
thereof as evidence in any civil, criminal investigation or trial of
offenses mentioned in section 3 hereof, shall not be covered by
this prohibition.
Section 2. Any person who willfully or knowingly does or who
shall aid, permit, or cause to be done any of the acts declared to
be unlawful in the preceding section or who violates the
provisions of the following section or of any order issued
thereunder, or aids, permits, or causes such violation shall, upon
conviction thereof, be punished by imprisonment for not less
than six months or more than six years and with the accessory
penalty of perpetual absolute disqualification from public office if
the offender be a public official at the time of the commission of
the offense, and, if the offender is an alien he shall be subject to
deportation proceedings.
Section 3. Nothing contained in this Act, however, shall render it
unlawful or punishable for any peace officer, who is authorized
by a written order of the Court, to execute any of the acts
declared to be unlawful in the two preceding sections in cases
involving the crimes of treason, espionage, provoking war and
disloyalty in case of war, piracy, mutiny in the high seas,
rebellion, conspiracy and proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit sedition, inciting to
sedition, kidnapping as defined by the Revised Penal Code, and
violations of Commonwealth Act No. 616, punishing espionage
and other offenses against national security: Provided, That such
written order shall only be issued or granted upon written
application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and a showing: (1)
that there are reasonable grounds to believe that any of the
crimes enumerated hereinabove has been committed or is being
committed or is about to be committed: Provided, however, That
in cases involving the offenses of rebellion, conspiracy and
proposal to commit rebellion, inciting to rebellion, sedition,
conspiracy to commit sedition, and inciting to sedition, such
authority shall be granted only upon prior proof that a rebellion
or acts of sedition, as the case may be, have actually been or are
being committed; (2) that there are reasonable grounds to
believe that evidence will be obtained essential to the conviction
of any person for, or to the solution of, or to the prevention of,
any of such crimes; and (3) that there are no other means readily
available for obtaining such evidence.
The order granted or issued shall specify: (1) the identity of the
person or persons whose communications, conversations,
discussions, or spoken words are to be overheard, intercepted, or
recorded and, in the case of telegraphic or telephonic
communications, the telegraph line or the telephone number
involved and its location; (2) the identity of the peace officer
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authorized to overhear, intercept, or record the communications,
conversations, discussions, or spoken words; (3) the offense or
offenses committed or sought to be prevented; and (4) the
period of the authorization. The authorization shall be effective
for the period specified in the order which shall not exceed sixty
(60) days from the date of issuance of the order, unless extended
or renewed by the court upon being satisfied that such extension
or renewal is in the public interest.
All recordings made under court authorization shall, within forty-
eight hours after the expiration of the period fixed in the order,
be deposited with the court in a sealed envelope or sealed
package, and shall be accompanied by an affidavit of the peace
officer granted such authority stating the number of recordings
made, the dates and times covered by each recording, the
number of tapes, discs, or records included in the deposit, and
certifying that no duplicates or copies of the whole or any part
thereof have been made, or if made, that all such duplicates or
copies are included in the envelope or package deposited with
the court. The envelope or package so deposited shall not be
opened, or the recordings replayed, or used in evidence, or their
contents revealed, except upon order of the court, which shall
not be granted except upon motion, with due notice and
opportunity to be heard to the person or persons whose
conversation or communications have been recorded.
The court referred to in this section shall be understood to mean
the Court of First Instance within whose territorial jurisdiction the
acts for which authority is applied for are to be executed.
Section 4. Any communication or spoken word, or the existence,
contents, substance, purport, effect, or meaning of the same or
any part thereof, or any information therein contained obtained
or secured by any person in violation of the preceding sections of
this Act shall not be admissible in evidence in any judicial, quasi-
judicial, legislative or administrative hearing or investigation.
Section 5. All laws inconsistent with the provisions of this Act are
hereby repealed or accordingly amended.
Section 6. This Act shall take effect upon its approval.
4. What may be seized?
Section 3. Personal property to be seized. — A search warrant
may be issued for the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the
offense; or
(c) Used or intended to be used as the means of committing an
offense. (2a)
Now what are the objects of search warrants under Rule 126?
The objects of the search warrant would be your fruits or
proceeds of a crime or those which may be used for the
commission of the offense.
5. Remedies in Cases of Violation
Violation of your rights against unreasonable search and seizure,
your remedies would be:
(1) THE EXCLUSIONARY RULE. The evidence obtained may be
excluded in evidence.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
Art III Sec 3 (2) Any evidence obtained in violation of this or
the preceding section shall be inadmissible for any purpose
in any proceeding.
The question is when do you have that excluded? For objects
or things, you can have that excluded either you file a
motion to suppress evidence before you go to trial or you
can also file a motion to quash the warrant if there is a
warrant issued and items were seized under such warrant. If
the motion to quash the warrant is granted, then
automatically the evidence so obtained may be considered
as inadmissible.
(2) CIVIL ACTION FOR DAMAGES. under Article 32 of Civil Code
will also be one of the remedies and they are not exclusive
of each other.
Art. 32 NCC. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be
liable to the latter for damages: xxx (9) The right to be
secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(3) CRIMINAL CAUSES UNDER THE RPC. Articles 128, 129, and
130, RPC. These involve trespass to dwelling, searches
without witnesses, and felony for illegally implementing a
search warrant.
Section Two. — Violation of domicile
Art. 128. Violation of domicile. — The penalty of prision
correccional in its minimum period shall be imposed upon
any public officer or employee who, not being authorized by
judicial order, shall enter any dwelling against the will of the
owner thereof, search papers or other effects found therein
without the previous consent of such owner, or having
surreptitiously entered said dwelling, and being required to
leave the premises, shall refuse to do so.
If the offense be committed in the night-time, or if any
papers or effects not constituting evidence of a crime be not
returned immediately after the search made by the
offender, the penalty shall be prision correccional in its
medium and maximum periods.
Art. 129. Search warrants maliciously obtained and abuse in
the service of those legally obtained. — In addition to the
liability attaching to the offender for the commission of any
other offense, the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period and a
fine not exceeding P1,000 pesos shall be imposed upon any
public officer or employee who shall procure a search
warrant without just cause, or, having legally procured the
same, shall exceed his authority or use unnecessary severity
in executing the same.
Art. 130. Searching domicile without witnesses. — The
penalty of arresto mayor in its medium and maximum
periods shall be imposed upon a public officer or employee
who, in cases where a search is proper, shall search the
domicile, papers or other belongings of any person, in the
absence of the latter, any member of his family, or in their
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default, without the presence of two witnesses residing in
the same locality.
Those are the remedies in case there are violations of rights
against unreasonable search and seizures.
6. Requirements for Issuance of Warrants of Arrest
Rule 112 Section 6. When warrant of arrest may issue. — (a) By
the Regional Trial Court. — Within ten (10) days from the filing of
the complaint or information, the judge shall personally evaluate
the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record
clearly fails to establish probable cause. If he finds probable
cause, he shall issue a warrant of arrest, or a commitment order if
the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation
or when the complaint or information was filed pursuant to
section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue
must be resolved by the court within thirty (30) days from the
filing of the complaint of information.
(b) By the Municipal Trial Court. — When required pursuant to
the second paragraph of section 1 of this Rule, the preliminary
investigation of cases falling under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court may be
conducted by either the judge or the prosecutor. When
conducted by the prosecutor, the procedure for the issuance of a
warrant or arrest by the judge shall be governed by paragraph (a)
of this section. When the investigation is conducted by the judge
himself, he shall follow the procedure provided in section 3 of
this Rule. If the findings and recommendations are affirmed by
the provincial or city prosecutor, or by the Ombudsman or his
deputy, and the corresponding information is filed, he shall issue
a warrant of arrest. However, without waiting for the conclusion
of the investigation, the judge may issue a warrant of arrest if he
finds after an examination in writing and under oath of the
complainant and his witnesses in the form of searching question
and answers, that a probable cause exists and that there is a
necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice.
(c) When warrant of arrest not necessary. — A warrant of arrest
shall not issue if the accused is already under detention pursuant
to a warrant issued by the municipal trial court in accordance
with paragraph (b) of this section, or if the complaint or
information was filed pursuant to section 7 of this Rule or is for
an offense penalized by fine only. The court shall then proceed in
the exercise of its original jurisdiction. (6a)
Rule 126 Section 4. Requisites for issuing search warrant. — A
search warrant shall not issue except upon probable cause in
connection with one specific offense to be determined personally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized
which may be anywhere in the Philippines. (3a)
Now with respect to WARRANTS OF ARRESTS, the same
constitution or provision of the constitution requires only a
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
determination of probable cause by a judge. However, the Rules
of Court would require that the judge in determining probable
cause would have, based on SC decisions, would have to go over
personally all the records of the criminal indictment, meaning
from the affidavit complaint, the affidavit of witnesses, the
counter affidavit of the respondent now the accused and his
witnesses if any, the resolution of the prosecution or the
investigating officer who filed the information, the information
and all other available records during the preliminary
examination or investigation for him to determine the existence
of probable cause. The judge is not required to take deposition or
testimonies of applicants or witnesses unlike in search warrants
because the difference lies in the fact that in search warrant
applications there is no criminal case yet pending unlike in
issuances of warrant of arrest that there is already a criminal
indictment started with the investigation conducted by the
appropriate investigating office, what is before the court is the
entire records of the case ending with the information filed
before it for him to determine that there is probable cause to
issue the warrant. Under the Rules of Court now, traditionally, it
is said that the determination of probable cause to file the case
is an executive function, while the determination of probable
cause to issue the warrant is a judicial function. So there seems
to be a difference between determination of probable cause by
an investigating officer to file a case and determination of
probable cause to issue a warrant of arrest.
But under the Rules of Criminal Procedure now, the judge is
authorized to determine the existence of probable cause to
continue with the indictment even if the investigating officer has
already found that there is probable cause, once the entire
record inclusive of the information is before the judge, the judge
can go over it and determine whether or not there is probable
cause to continue with the case. So, the judge is given “the
authority to review the findings of the investigating officer”, in
effect, the judge can nullify the finding of probable cause by the
investigating officer and order the dismissal of the case.
For example perhaps you have read in the news last week,
those charged in the killing of a law student of San Beda by
the family name Marcus, they were charged with the anti-
hazing law violation, several accused were dropped upon
orders of the court because the judge found that there was
no probable cause against most of the accused, and
apparently De Lima who belongs to the same sorority and
fraternity has ordered an investigation why it has
happened as if we are surprised why the charges against
most of them were dismissed. If the judge finds that there
is probable cause to continue with the indictment or does
not find probable cause to continue with the indictment,
the judge may require the prosecution to submit additional
documentary evidence, and the judge must resolve
whether or not probable cause exists as to continue with
the indictment. If the judge finds to continue with the
indictment, he will have to determine now whether there is
probable cause to issue a warrant of arrest.
Probable cause to charge a person would refer to such facts and
circumstances which would convince the judge that the crime has
been committed and that the person charged must have to be or
the respondent must be charged in court. Probable cause to
issue the warrant of arrest is such facts and circumstances which
would lead the judge to conclude that there is a need to place
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this person under the custody, meaning to place them under
arrest. To charge them is technically different from the need to
place them under arrest or custody. So the judge can now do
both, whereas before the judge can only do one because to
charge is an executive function and to arrest is a judicial one.
There’s not much requirements with the issuance of the warrant
of arrest except that determination of probable cause based
upon the entire records.
In the old case of Lim v. RTC of Makati, the SC said that the judge
could not have determined the existence of probable cause to
issue the warrant of arrest because not the entire records are
before him. This case originated in Masbate but the SC ordered
the transfer of venue to RTC of Makati, but what was before the
Makati judge was only the information and resolution, the entire
affidavits, counter affidavits, and affidavits of witnesses were
never forwarded to the RTC of Makati. So the SC said that the
judge could not have determined probable cause based on an
incomplete record of the case.
How long or how short or how should the judge go over the
record of the case? Is there a hard and fast rule? This was raised
in the old case of Webb v. de Leon. We all know that Webb has
been acquitted in the case of People v. who is his co-accused?
well anyway, because of the personalities involved in the case
when it started, the DOJ has to create a committee for purposes
of conducting a preliminary investigation and because the father
was a senator then, he would have expected a barrage of lawyers
filing all the documents to (?) the investigating committee on the
bullshit of what probable cause is. So eventually the probable
cause was found and he (?) the court Judge De Leon and judge de
leon took only a couple of hours to issue a warrant of arrest
despite the fact that the records from the preliminary
investigation conducted by the DOJ panel was almost half truck so
Webb said arguing that how could a judge have found probable
cause with such a short time when the judge is required to go
over the entire records personally. Well the SC said that there is
no hard and fast rule on how the judge should go over the records
but what the constitution and the previous rulings of the SC would
all require that the task is personally done by the judge and not
delegated to another. How the judge would go over the entire
record whether he will peruse over it carefully or peruse over it in
a different manner is for the judge to determine, only that it must
be consistent that he or the judge is convinced that there is a
need to place the person of the accused under custody. So it does
not mean that if the record is a full thick that there must have to
be 3 hours that the judge should spend , but if the judge is not
voracious and fast reader, or what if the other judge would be (?).
Actually in real terms if you are going to practice later, the
warrant is already prepared by the clerk and once the entire
records would reach the court after the raffling, tanawon lang
mana ang information and this time the warrant of arrest and put
the bail recommendation from the information as prepared by
the investigating office. So from the prosecution, bail
recommended or no bail recommended. And it is now for the
judge to sign it. Whether the judge would really issue or will (?)
the records, it will be up to him whether he will review the
records or just sign it.
That is why it has to be established as a practice not recently but
when the new rules of court of criminal procedure was revised to
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
allow now the judge to determine probable cause whether to
continue with the indictment, it has been a standard practice
which you cannot find in rules of court that lawyers will file for
the accused a motion to determine probable cause or motion for
judicial determination of probable cause. Kasi iba yung
determination ng probable cause ng prosecution. Iba naman yung
determination ng probable cause ng judge based on that rules of
court provision. So judges now have also granted motions for
judicial determination of probable cause and eventually order the
dismissal of cases because they think that there is no sufficient
evidence to continue with the indictment.
Other distinctions with search warrants
In search with warrants, you have 10-day efficacy period, in
warrant of arrest, there is none. The 10-day period
mentioned in the rules of court refers to the reportorial
requirement if the warrant is not served or is served within
that 10-day period, there must have to be a return made
informing the court that the warrant has not been
implemented or has been implemented and that the accused
has been arrested. If the accused has not been arrested
within the 10-day period, the warrant continues to be valid
but the serving party must inform the court by making a
return that the warrant is still outstanding. After awhile, the
warrant of arrest will become “stale” that’s why there is that
motion for the issuance of ALIAS WARRANT. It does not
mean that the first warrant has lost its efficacy but since it
has been returned it is no longer in the possession of the
implementing officer. So there might be a need to seek
another warrant of arrest.
Also in searches, we’ve made mention of the daytime
searches, in arrest there is no such thing as daytime arrest
rule. The arrest can be made daytime or night time.
Also, while technically search warrant can be implemented
within the territorial jurisdiction of the issuing court because
under the rules you should apply search warrants in the
court which has territorial jurisdiction in the place intended
to be searched or if there is no such judge in the court, you
have judicial region, unless or excepted is under the
intellectual property code. In warrant of arrest, there is no
such thing, it can be issued in one court, it is technically valid
anywhere in the Philippines.
Also in searches, it is required that the search warrant be
shown to the person who has control over the premises
subject of the search in the search warrant. In arrest, there
is no need to present the warrant of arrest to the person
object of the arrest, the arrest warrant is not even required
to be in the possession of the person effecting the arrest,
but under the rules, the warrant must be presented to the
person arrested within reasonable time after the arrest.
In the implementation of warrants there is a special rule in
allowing the implementing person to break in an enclosure to
effect the arrest, if the person arrested is inside the enclosure
and funny the same rules allow the same arresting person to
break out of the enclosure, meaning if he is locked inside in the
place where he effected the arrest, he could also employ
necessary force in breaking himself out of the enclosure.
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7. When Arrest may be made without a warrant
RULE 113 Arrest
Section 1. Definition of arrest. — Arrest is the taking of a person
into custody in order that he may be bound to answer for the
commission of an offense. (1)
Section 2. Arrest; how made. — An arrest is made by an actual
restraint of a person to be arrested, or by his submission to the
custody of the person making the arrest.
No violence or unnecessary force shall be used in making an
arrest. The person arrested shall not be subject to a greater
restraint than is necessary for his detention. (2a)
Section 3. Duty of arresting officer. — It shall be the duty of the
officer executing the warrant to arrest the accused and to deliver
him to the nearest police station or jail without unnecessary
delay. (3a)
Section 4. Execution of warrant. — The head of the office to
whom the warrant of arrest was delivered for execution shall
cause the warrant to be executed within ten (10) days from its
receipt. Within ten (10) days after the expiration of the period,
the officer to whom it was assigned for execution shall make a
report to the judge who issued the warrant. In case of his failure
to execute the warrant, he shall state the reasons therefor. (4a)
Section 5. Arrest without warrant; when lawful. — A peace officer
or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b) When an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
In cases falling under paragraph (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 112. (5a)
Section 6. Time of making arrest. — An arrest may be made on
any day and at any time of the day or night. (6)
Section 7. Method of arrest by officer by virtue of warrant. —
When making an arrest by virtue of a warrant, the officer shall
inform the person to be arrested of the cause of the arrest and of
the fact that a warrant has been issued for his arrest, except
when he flees or forcibly resists before the officer has
opportunity to so inform him, or when the giving of such
information will imperil the arrest. The officer need not have the
warrant in his possession at the time of the arrest but after the
arrest, if the person arrested so requires, the warrant shall be
shown to him as soon as practicable. (7a)
Section 8. Method of arrest by officer without warrant. — When
making an arrest without a warrant, the officer shall inform the
person to be arrested of his authority and the cause of the arrest,
unless the latter is either engaged in the commission of an
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
offense, is pursued immediately after its commission, has
escaped, flees or forcibly resists before the officer has
opportunity so to inform him, or when the giving of such
information will imperil the arrest. (8a)
Section 9. Method of arrest by private person. — When making
an arrest, a private person shall inform the person to be arrested
of the intention to arrest him and cause of the arrest, unless the
latter is either engaged in the commission of an offense, is
pursued immediately after its commission, or has escaped, flees,
or forcibly resists before the person making the arrest has
opportunity to so inform him, or when the giving of such
information will imperil the arrest. (9a)
Section 10. Officer may summon assistance. — An officer making
a lawful arrest may orally summon as many persons as he deems
necessary to assist him in effecting the arrest. Every person so
summoned by an officer shall assist him in effecting the arrest
when he can render such assistance without detriment to
himself. (10a)
Section 11. Right of officer to break into building or enclosure. —
An officer, in order to make an arrest either by virtue of a
warrant, or without a warrant as provided in section 5, may break
into any building or enclosure where the person to be arrested is
or is reasonably believed to be, if he is refused admittance
thereto, after announcing his authority and purpose. (11a)
Section 12. Right to break out from building or enclosure. —
Whenever an officer has entered the building or enclosure in
accordance with the preceding section, he may break out
therefrom when necessary to liberate himself. (12a)
Section 13. Arrest after escape or rescue. — If a person lawfully
arrested escapes or is rescued, any person may immediately
pursue or retake him without a warrant at any time and in any
place within the Philippines. (13)
Section 14. Right of attorney or relative to visit person arrested.
— Any member of the Philippine Bar shall, at the request of the
person arrested or of another acting in his behalf, have the right
to visit and confer privately with such person in the jail or any
other place of custody at any hour of the day or night. Subject to
reasonable regulations, a relative of the person arrested can also
exercise the same right. (14a)
Valid instances of WARRANTLESSS ARREST there are also 6 in the
same rules of court.
 IN FLAGRANTE DELICTO CASES (a) When, in his presence,
the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
 HOT PURSUIT CASES (b) When an offense has just been
committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
 RE-ARREST OF ESCAPE PRISONER (c) When the person to be
arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or
is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to
another.
In case of re-arrest of person previously arrested, so if the
person is validly arrested with or without a warrant, and he
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has escaped or has been rescued, he could be rearrested
without a warrant of arrest;
Arrest by a bondsperson when an accused is bonded , the
characterization is that the state is relieved of the obligation to
detain him or put him in jail but his bondsperson becomes his
jailer, while he is not in actual detention the court does not lose
jurisdiction over him and the bondsperson becomes his
custodian. And so, by the warranty undertaking of the
bondsperson, the bondsperson is allowed to effect the arrest of
an accused under his undertaking to present that person in court
when required without the necessity of a warrant, in order to
avoid liability on the bond put up by the bondsperson for the
temporary liberty of the accused. And finally, if an accused
attempts to depart from the country, the accused can be arrested
at any time without any warrant. This is to prevent the person to
escape from the applicability of our judicial system because our
criminal justice system follows the principle of territoriality.
Now most of the discussion of warrantless arrest would be on
section 5(b) when a person or when a crime has just been
committed and the person arresting has personal knowledge of
facts indicating that the person to be arrested has committed it.
In in flagrante delicto cases, the personal knowledge is on the
crime, not on the person arrested though it goes with it because
the crime is committed, is being committed or is about to be
committed in the presence of the person effecting the arrest. So
personal knowledge is on the crime. For the emphasis, personal
knowledge is on the crime although it goes with it the identity of
the person who committed it.
In section 5(b), that is where most of the cases are because there
are two operative phrases there.
(1) First, the offense has just been committed.
(2) Second, on the personal knowledge of facts indicating
that the person to be arrested has committed it.
First, the offense has just been committed
The phrase has just been committed has been interpreted
to mean to cover a period of less than 24 hours, last count I
think is the case involving 18 hours but not longer than that.
Again, just like warrantless searches and seizures, the
common denominator is that there is no reasonable
opportunity to secure a warrant of arrest. If the commission
of the crime and the time of the arrest is separated by
reasonable time then there must have to be opportunity to
secure a warrant and in the police lingo they called it the
regular filing because you have to file it regularly and then
the court eventually issued a warrant of arrest. Excepted to
this, in some cases, what is known as your situations
involving your arrest by reason of hot pursuit. That would be
the only exception if there is really a hot pursuit operation.
There is one old case when the arrest was made after 3
days, this was a carnapping case that started here and
the arrest was eventually had in Surigao after 3 days
but because it was a hot pursuit operation the SC said it
would fall within the phrase that the crime has just
been committed.
Second, on the personal knowledge of facts indicating that the
person to be arrested has committed it.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
Now personal knowledge of facts indicating the person to be
arrested has committed it would refer to the identity of the
person to be arrested. Of course, the arresting persons or officers
were not there when the crime has been committed, they would
not have actual personal knowledge on the identity of the person
to be arrested. But the identity of the person can be established
based on two things:
(1) one, the testimonies of witnesses in the area, and
(2) some other object evidence that they were able to
personally perceived in the area.
If it is largely based on testimonies of the witnesses that would
not be sufficient to establish probable cause because again these
are based on testimonies therefore hearsay as to them but if the
testimonies of the witnesses are coupled with object evidence or
documentary evidence that they may have found then personally
perceived in the scene of the crime then it would be sufficient to
establish the identity of the person in the crime scene.
8. Administrative Arrests
Art VI Section 11. A Senator or Member of the House of
Representatives shall, in all offenses punishable by not more than
six years imprisonment, be privileged from arrest while the
Congress is in session. No Member shall be questioned nor be
held liable in any other place for any speech or debate in the
Congress or in any committee thereof.
From the term used, it refers to arrests ordered in relation to
administrative (dili masabtan ang audio saba kayo ang door basta
dli daw ni pareha atung gina issue sa regular courts after a strict
discussion on probable cause by reason of a criminal case filed
before regular courts) .
However, in relation to the power of the President over Foreign
affairs, specifically on undesirable aliens we have made mention
that the President can direct the arrest of an undesirable alien
and order his immediate deportation. The authority of the
President is not based on making constitutional grants but it is
based on the fact that as head of state, he is the one tasked with
foreign relations and in that specific instance, allowing an alien to
stay in the country.
We even made mention that under our system, there is no need
for any violation of law for a foreigner to be declared an
undesirable alien in the country. The declaration of
undesirability is based on national interest issue. Meaning, if the
foreigners’ stay in the country is affecting national interest, he
could be or his stay could be declared as no longer allowable or
undesirable. He could be ordered arrested by virtue of an
Administrative Warrant issued by the President through the
Bureau of Immigration and Deportation and that is a known
exception for warrants issued outside of the parameters of
section 2 of Article 3 of the Const.
Also, in relation to the power of certain bodies or tribunals to
issue orders citing a person in contempt, such tribunals can
order the arrest of a person having cited him for contempt for
purposes of arresting him and making him suffer the penalty.
That is also an exception to the requirement that such warrants
must have to be issued by a court on determination of probable
cause.
In the US, there is also a practice there by reason of the
aftermath of the 9/11 incident. They have this new
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regulations and laws regarding arrests and detention of
suspected terrorists. The US authorities could detain or
arrest a person even without warrant under suspicion of
having committed acts of terrorism. Also, it is part of the
policy of the US but it has been somehow watered down in
the Obama administration what has been known as
Extraordinary Rendition. Because of the observance of
human rights laws and regulations in the US, those persons
suspected of committing acts of terrorism can be placed
under extraordinary rendition. Rendition is the practice of
arresting and detaining persons suspected of committing
acts of terrorism but they are placed in another jurisdiction.
They could not be detained after arrest in the US territory
because of the observance of the human rights laws and
regulations. What they do is they arrest these persons, bring
them to another jurisdiction outside of US territory and
there, these persons are supposed to be interrogated and
there is no limitation on the procedure of interrogation just
to get the necessary information. Extraordinary rendition
has not been denied by the US authorities that it has been
considered as a practice although again, it has been watered
down in the Obama administration. So those are examples
of administrative arrests.
9. Immunity from arrests of the members of Congress
After the complaint against Napoles implicating several
senators and members of the lower house was filed with the
office of the ombudsman, many questions were asked
whether they should be suspended or whether they should
be arrested. The question on whether they should be
arrested, the fact that matters is that there is no information
yet filed. So there could be no warrant issued so there is no
worry that they should be arrested. Of course, if the
information is filed and the warrant is issued, plunder carries
a penalty of more than 6 years imprisonment.
The immunity from arrest covers only for felonies or offenses
which carries a penalty of not more than six years imprisonment.
If it is more than that, they can be arrested even when the
congress is in session.
The 1986 constitution has changed in phraseology whereas from
previous constitutions, the immunity from arrests will only or are
granted only “if they are going to or while in attendance in or is
coming from the session”. In the 1986 constitution, the phrase
“while congress is in session” was used so for the entire duration
of the regular session of congress, or of the special session if
there is, they are immune from arrest regardless of whether or
not they are actually going to, in attendance in or coming from a
session.
With respect to suspension, we all know that in that old case
of: Santiago vs Sandiganbayan. There was this issue of
suspension as I may have mentioned here before, the
penalty of suspension imposable by congress for disorderly
behavior is not that suspension that is imposed which is
preventive when a valid information is filed before the SB
under the plunder law or under RA 3019. So, they could be
suspended if a valid information has been filed and it is
allowed not because the court is supreme over congress but
because of the penalty imposed for such disorderly
behavior.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
10. Right to Privacy
Art III Section 2. The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and
the persons or things to be seized.
If you remember that 1998 decision in the case of: Ople vs Torres
The Supreme Court had the opportunity to discuss whether or
not the right to privacy is an express right granted by the
constitution. The factual background of the case is that they
wanted to, by administrative order, go with a national ID system
where there were certain basic information is to be taken from
each individual for purposes of a national identification system.
So, the validity or constitutionality of that admin order was
questioned including the purpose of the national ID system in
relation to this right of privacy. The end result of that case was
that the admin order was struck down as violative of the
constitution on two grounds: (1) it was not within the authority of
the President to issue by admin order the national ID system. The
SC said it must have to be a legislation. As we all know under the
admin code, the President has ordinance powers in relation to
the execution of the laws. He has the authority to issue executive
orders, admin orders, etc which are all in line with his power to
implement and execute the law. So if there is no law on the
matter yet, there can be no ___ issued under his ordinance
powers. (2) It is violative of the right to privacy. There is no issue
that the state can impose as part of police power some form of a
national ID system taking some valuable info from an individual
but the reason why the SC maintained that it was violative of
one’s right to privacy was because there was no sufficient
safeguard to guarantee that there won’t be unnecessary release
of info and there is also no appropriate penalty in case of
unauthorized release of info. The language of the court it said as
an obiter “in no uncertain terms we underscore that the right to
privacy does not bar all incursions into individual privacy. The
right is not intended to (murag I hinder) scientific or technological
advancements that enhance public service and the common
good. They require that the law be narrowly focused and that a
compelling interest justifies such intrusion. Intrusions to the right
must be accompanied by proper safeguards and well designed
standards to prevent unconstitutional invasion.” There seems to
be a lack in that admin order as to how these info can be kept
and in what instances are these info be allowed to be released
and who shall be held responsible and what are the penalties for
such unauthorized violations of one’s right to privacy if these info
are released without proper authorization. In the same case, the
SC mentioned that there is NO express provision on the right to
privacy in the constitution. They said that perhaps the reason is
that it is inherent or included even if not there. What they said is
that the right to privacy is recognized in several provisions of the
Constitution and they cited:
1.) Section 1 of Article III
2.) Section 2 of article III
3.) Privacy of Communications in section 3
4.) Liberty of Abode and changing the same under section 6
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5.) The right of people to form associations in public and
private sectors under section 8
6.) Privilege against self-incrimination under section 17.
Also, the SC noted that there is such a thing as Zones of Privacy
which means that the state through the legislature have in
certain laws recognized that we have privacy rights in certain
zones of privacy in day to day activities.
1. The civil code, under Article 26 provides that every
person shall respect the dignity, personality, PRIVACY,
and peace of mind of his neighbors and provides
penalties for such violations.
2. Under Article 32, one of the remedies in case of
violation of our right against unreasonable searches
and seizure. This is technically the basis of our claim for
damages and these claims for damages are not only for
actual damages, but also include claims for moral
damages.
3. Under Article 723 of the Civil Code, it recognized the
privacy of letters and other private communications.
4. In the RPC under Article 229, it makes violation of
secrets by an officer as a felony
5. Under Article 290-292 of the RPC, revelation of trade
and industrial secrets is also a felony
6. Under Article 280 of the RPC, trespass to dwelling
Invasion to privacy is also an offense under other special laws.
1. Anti-wiretapping Act. We all know that it has not been
amended despite the “hello Garci” scandal. This law
prohibits the recording and subsequent introduction into
evidence of such recorded conversation when the recording
is made through an actual tap. In the Hello Garci incident,
the recorded conversation was not through actual tap but by
some other form of devise where they could actually record
conversations made through the use of cellular or mobile
phones. That is not covered by the anti-wiretapping Act
because there is no actual wire tapping.
2. Secrecy of Bank deposits (RA 1405 yata). It prevents the
unauthorized release of information on any bank account.
However, this must have to be modified accordingly by your
Anti Money Laundering Act. Under the AMLA, the AMLC is
authorized to look into all accounts in the banks and before
its amendment, the “Red flag” so to speak, that is allowed
for the AMLC to look into accounts if the deposit is 500,000
or more. So if there is a deposit of 500k made in a single
account, that is supposed to be a subject of scrutiny if there
is no justifiable basis or reason for that. Of course, if that
account is subject to that transaction on a daily basis, there
is no need to flag it down as subject to any investigation. If
the account is not usually infused with that amount of
money, it must have to be considered for investigation. (so
499k ra daw ideposit para dili mahalata hehe kuyawa tlga ds
guy).
3. RA 8294 (Intellectual Prop Code) - protects one’s right to be
let alone in his intellectual property.
4. Privileged Communication under the rules of Court- where it
cannot be elicited via compulsion by reason of the nature of
the privacy of these info.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
In relation to that, the discussion on the right to privacy in the
Philippines has not been decided very early on simply because
there were no cases filed involving this right to privacy. We have
somehow taken our decisions from American jurisprudence as to
how this right has developed.
The right to privacy in the Philippines has been related to our
basic human right that we have this right to be let alone and in
the context of the Constitution, if there is no express provision,
this has included the right to prevent intrusion into certain
thoughts and activities which includes the freedom of speech, to
form or join associations, aside of course form the obvious, the
right against unreasonable searches and seizures, and freedom
from self-incrimination. As applied in the US, it has been applied
in many situations with respect to:
 Right to privacy and education. In the 1923 decision,
the SC in the US invalidated a local statute prohibiting
the teaching in any school of any language other than
English. In the state of Nebraska, a local statute was
passed prohibiting in school the teaching of language
other than English. The SC said that it is violative of the
right to privacy because the right to privacy in the US
includes the right to pursue their happiness (gusto ko
happy ka! More energy mas happy). It is part of their
constitutional right. So if a school child is happy to be
taught in ilonggo, the he must be taught in ilonggo
(how old are you nab a gid haw? Ooh very good ka gid
nga bata you ah lol). The Phils has adopted this. There
are allowable languages in the teaching of subjects in
the public elem schools. The problem there is that
there are certain subj which cannot really be taught in
the local language.(Bisaya daw ang square root? Ahm
upat ka haliging ugat? Aw kanang ugat daw nga iskwer)
 Right to privacy and marriage and in the family. In
1967, a statute prohibiting the possession of an adult
material otherwise considered as obscene was declared
unconstitutional. No law can be passed which would
regulate much more prohibit the right of a person to be
let alone in his pursuit of happiness. If he’s happy to
watch adult films or read adult publications then so be
it. It is different if it is done in public. Just like in the
Phils, is an adult movie prohibited? In the cases
involving the MTRCB, the SC had repeatedly said that
the MTRCB is not a censors board. It is simply a rating
and classification Board. It cannot prevent the public
exhibition of TV shows or motion pics which are adult
rated. The problem here is that there are no x-rated
movie houses here. That is why there can be no public
exhibition allowed in the ordinary theaters. If there
were, then it cannot be prevented by the state if it
complies with the existing regulations.
With respect to marriage, in the 1967 decision of
Loving vs Virginia, the right to marry is the choice of an
individual and should not be subjected to unjustified
interference by the state. If you remember just recently,
the US SC has made a ruling with respect to a federal
statute what is known as the Defense of marriage Act.
In 1996, the state of Massachusetts passed a law which
prevented or denied benefits of certain rights of same
sex couples. Now apparently, there was one woman
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who married another woman. When the wife died
(puro man sila wife), the estate tax was at 363k US
dollars which the internal revenue service wanted to
___ because they were not legally married kay same
sex man daw. So that provision, the defense of
marriage Act was tested before the SC and in a vote of
5-4, the majority said that the Defense of Marriage Act
is unconstitutional. When the law passed in 1996, same
sex marriage was not yet recognized in the states. At
present, there are 12 states in the US which recognized
same sex marriage. So is marriage as a social institution
beyond the protection by the state anymore because of
the right to privacy of individuals to choose whom to
marry regardless of the definition of what marriage
should be? So marriage now is not a union between a
man and a woman. It includes a union between adam
and steve lol.
 Right to reputation. I don’t know if you have noticed
that there is a convenience store chain in Davao which
has this practice of posting pictures of persons they
have caught shoplifting. In 1971 ruling in the US, the SC
nullified the local ordinances distributing flyers
containing the names and matches of persons described
as criminally active in shoplifting. The SC said that there
must have to be notice as well as opportunity to be
heard before their pictures and match-ups be posted to
safeguard the person’s right to privacy in relation to his
name, reputation, honor and integrity.
 Use of contraceptives. In a hospital in Connecticut, by
reason of a local ordinance or statute, the married
couples were given medical advice on how to prevent
contraception and providing an advice for the wife to
use on such procedure because the doctors were not
able to do so otherwise, doctor will be penalized (unsa
dawwww??!). That statute was declared as
unconstitutional because whatever the married couple
would do in the privacy of their homes is beyond state
regulation. Sterilization. In the 1947 decision of Bach vs
Bell, the SC affirmed a state law requiring sterilization
of unfit people as proper use of police power to prevent
transmission of insanity, imbecility, and kind. Right to
Choose. With respect to the right to choose and to be
left alone on your choice, probably the most common to
you would be the right to abortion. In the 1970 decision
of Roe vs Wade, which is still good law today—this
allowable right of women to have abortion provided it
is done within the first 3 months of the pregnancy. First
3 months, no questions asked, no state regulation
nd
allowable—it is a matter of choice. In the 2 trimester
there may be some state regulation. It is not an
absolute right for a woman to have an abortion at this
rd
stage. In 3 trimester, there would be more allowable
st
state regulation. It seems that in the 1 3 months, there
is no child yet to consider. But in the Phils, the RH bill
has taken so long because there has been some debate
whether there is a child even if it has not yet been
delivered or if it should be delivered…(bla bla di
msabtan basta ga debate daw sa RH bill ah). For the
strict catholics, the use of contraceptives is abortion.
Well its up to the SC to determine if it is considered as
part of the right.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
11. Privacy of Communication
Art III Section 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful order of
the court, or when public safety or order requires otherwise, as
prescribed by law.
Going back to our Constitution, the right to privacy of
Communications, we have made mention that section 3 the
Privacy of Communication and Correspondence has been applied
in the case of Zulueta vs CA in a limited sense between 2 private
individuals to some extent it is applicable therefore when it refers
to communication and correspondence.
The Right to Privacy of Communication and
Correspondence was included for the 1 time in the
st
Philippines under the 1935 Constitution because the
applicable rule before as it was in the US was that we follow
what is known as the “Tangibles Only Rule”. TANGIBLES
ONLY RULE - The subject of a search and what to be seized
must have to be tangible objects only if you are to follow the
right against unreasonable searches under section 2. Non-
tangibles like your communication and correspondence like
in the context of the anti-wiretapping Act could not be
envisioned to be included under section 2. So, it has to be
included by providing another provision which is your
section 3 of article III. This is an extension of the search and
seizure rule to cover even intangibles as part of protected
privacy as the term communications is used in its general
sense. It does not covered by the Tangibles only rule under
the section 2 of article III of our Constitution.
If you recall under RA 4200, how could you legally have a
tap and record through the tap the conversation made?
You must have to apply for a warrant. It is not actually a
search warrant per se, but the warrant issued by the court
still with the same requirement of probable cause that
there’s a need to make a tap and the recording shall be used
as evidence against any of those persons in the
conversation. The court must have to be convinced that
there is probable cause to allow the tap and eventually use
the recorded conversation. If there is no warrant issued or if
such warrant is defective, the exclusionary rule applies as
well. Of course that is by statute but under art 3 sec 3 of the
constitution, any violation of sec. 3 and of sec 2 with respect
to items seized or with respect to communications recorded,
they are considered to be inadmissible as evidence.
Another thing about privacy in relation to the case of SJS vs
Dangerous Drugs Board, this case mentioned the validity of the
law which requires DRUG TESTING for certain class of individuals.
 The first of which refers to National Elective Officials
requiring a certificate of drug testing as an additional
qualification for office. The issue on the validity of drug
testing has something to do with our right to privacy, that
we are supposed to be free from unwarranted intrusion or
exploitation into our private activities. Because most of the
qualifications are listed in the Constitution, there could be
no law amending this provision requiring additional
qualification. So that would be INVALID. There is only a
minimal qualification. They would not have to be free from
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4 Manresa Batch 2013-2014 | Page 23

criminal case unlike if you take the bar exam, you have to
inform any pending charges.
 Employees in the private sector. SC held that it is a VALID
regulation because when a person employs himself in a
Company there should be an expectation of diminished right
to privacy. An example would be the undertaking of an
employee to comply with rules and policies which are
reasonable. To comply with drug testing is reasonable
provided of course that it follows the intent of the law. The
law is supposed to be RANDOM AND SUSPICIONLESS TEST.
In fact, it does not provide for any sanction or obligation on
the part of the employer to report the result but it can be
the basis for suspending if not, terminating the employee.
 For any other official in the government whose
appointment or election is not provided in the
Constitution. The drug test policy is VALID and reasonable
as a qualification for continued employment because the
Supreme Court said that public employees are supposed to
be accountable at all times and they must serve with utmost
responsibility and efficiency. Under the normal
understanding, incompetency may be brought about by
addiction and so it can be the basis for termination. Further,
the SC held that there is no substantial distinction of
employees from the private sector and those from the public
sector. Again, for those whose qualifications are not
provided by the Constitution.
 For students, in the primary, secondary or tertiary level for
as long as minors. The imposition of random and
suspicionless testing is VALID as well under the concept of
parens patriae where the state would exercise parental
authority through the school administration. The school also
has the right to impose rules for the continued admission.
 Accused in Criminal Cases. They cannot be subjected to drug
testing unless if made under the Comprehensive Dangerous
Drugs Act (RA 9165). But you can only be tested if you are
charged under the provision of the same. Because if it were
for any other offense, it is INVALID because it will no longer
be suspicionless.
How about ALCOHOL? We have a new law which provides for
violations and penalties for driving under the influence of alcohol
depending on the level of allowable alcohol content in the blood.
However, here we have no apparatus to test drivers with such
alcohol content. They just subject the accused to SOBERIARITY
TEST. Can this be used to prove liability in such instances? Yes
because you have already been arrested for traffic violations and
there is no violation for right to privacy since there is already a
reduced expectation of the right to privacy.
BLOOD TEST. Generally if it were in relation to DNA for purposes
of a commission of an offense, the problem of our system is we
do not have a data bank for DNA. In US, it is a standard practice
that if they are charged with offense, DNA is taken. If we were
going to take a look at the test of Torres vs Ople, the state has to
put a mechanism where there is responsibility imposed in the
information taken then sanction imposed, if there is an
unauthorized release of information. For purposes of paternity
vis a vis child and parent, it has been accepted that DNA results
are admissible. Again, it is not because it is admissible per se but
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
because it is a suit between individuals and not against the state
imposing some penal sanctions. The problem will arise if it is a
state action against the individual liberties or right to privacy.
The final matter with respect to right to privacy is your WRIT OF
HABEAS DATA.
The difference between a writ of amparo, habeas data and
habeas corpus. The WRIT OF HABEAS DATA is different
because here it does not pertain to life, liberty or security
but privacy in life liberty and security so it has to do
something with authorized or unauthorized gathering or
recording of any data or information regarding a person, his
family, his home and correspondence. It intends to ensure
that if there is a sanction in gathering and keeping, that it is
kept and not release without authority and if it is inaccurate,
the petitioner can have it corrected or if not legally gathered
and kept, it is to be removed because this violates our right
to privacy.
III. FREEDOM OF EXPRESSION
Art III Section 4. No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress
of grievances.
Section 18. (1) No person shall be detained solely by reason of his
political beliefs and aspirations.
A. Philosophic Basis of Guarantee
1. For the discovery of political truth
2. For self-government
3. For individual perfection
Freedom of Expression is anchored on the theory that
democratic society is ruled ultimately by freedom of thought.
That we are free to talk about state affairs and discussed them
and compete in what we know as the freedom market of ideas,
then the best idea will rule. And that would eventually be
defining what our society should be. If we are not free to talk
therefore then the excesses of the government will not be known
and therefore the government will not be able to correct itself
and there would be more violations of our fundamental liberties.
Freedom of Expression is only limited to any matter involving
public interest. There are cases defining the fine line with respect
to public persons on matters within the so called protective
speech. The scope of Freedom of Expression does not involve
private matters because this situation of privacy is not sanctioned
by the Constitution.
FREEDOM OF THE PRESS has 4 aspects.
1. Freedom from prior restraint
2. Freedom from subsequent punishment
3. Freedom for access of information
4. Freedom from state regulation/ freedom of the press
strictly
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4 Manresa Batch 2013-2014 | Page 24

B. Prior Restraints/ Subsequent Punishment
1. Prior restraint – Censorship. The state regulates even
before it is published or delivered. Our discussion
before on the test on equal protection on due process.
Remember the discussion on the compelling state
interest test, the intermediate and rational review test
which in relation to the facial invalidation as applied.
the main discussion is that they are mostly applicable in
free speech violation more so in censorship. The narrow
grant of presumption of Constitutionality is the rule
when it is censorship or prior restraint. Stated
differently, if the state regulation is in the form of
censorship, there is no presumption of
Constitutionality, the presumption is that it is not
constitutional because it is a violation of the first
amendment right in our context, Freedom of
Expression or Freedom of the Press.
Censorship has never been allowed although
Censorship may come in different forms. There is that
2009 case involving Bombo Radyo. This is in the
province of Isabela where Bombo Radyo was supposed
to have anti political dynasty. The Bombo Radyo was
not issued a business permits for the year 2008
although it was issued in previous years. The basis was
that they were in a zone not classified for that type of
industry. While it is in the form of a licensing the SC
considered it as Censorship as well. Although in ordinary
understanding, the requirement of securing a business
permit before a media outfit can engage in the business
of broadcasting is not Censorship because it is part of
licensing. It is not preventing a person form exercising
his freedom. But because of the manner by which the
provincial government imposes it, the SC considered it
as Censorship.
In the old case of American Bible Society, which
required permit and license before it can distribute
bibles for free. The SC considered it as a form of
Censorship because freedom of Religion is part of
Freedom of expression. It could not be censored prior to
publication. It would be different if it would be ordinary
business person selling religious items. They are
engaged in business therefore they should pay
appropriate business fees and comply prior licensing as
these are not considered as prior restraint.
2. Freedom from subsequent punishment. The most
common form of state regulation comes in the form of
subsequent punishment. So the regulation comes after
the violation so if the sanction is allowable because it
passes any of the applicable test even if it is content-
based then the regulation is allowable. Punishment is
not considered in violation of the component of
freedom of expression.
C. Content-Based Restriction
Content based restrictions regulations are based on the
expressions withheld and in your outline there is a listing of the
test normally used to determine whether or not the content
based restriction is allowable.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
Some tests of validity of Content-Based Restrictions
1. DANGEROUS TENDENCY. When the legislative body has
determined generally that utterances of a certain kind
involve such danger or substantive evil that they may be
punished, the question whether any specific utterance
coming within the prohibited class is likely, in and of
itself, to bring about the substantive evil is not open to
consideration. In such cases the general provision of the
statute may be constitutionally applied to specific
utterance if its natural and probable effect was to bring
about the substantive evil that the legislative body
might prohibit. Gitlow vs New York.
The legislative body has the right to determine what
evil the state prevents from happening. If the
expression has the tendency to elicit or make the evil
possible, that mere tendency is sufficient for it to be
regulated in the form of subsequent punishment. This is
normally used when evil involves national security or
when the very existence of organized government is at
stake. The most common is in your RPC, in inciting to
sedition. The mere incitement to commit sedition is
penalized.
2. CLEAR AND PRESENT DANGER. The question in every
case is whether the words are used in such
circumstances and are of such nature as to create a
clear and present danger that they will bring about the
substantive evil that the state has a right to prevent.
Shenck vs US. Two operative words. Clear, there is a
causal connection between the acts prevented and the
evil which the state has the right to present. Danger,
means the evil that would result is not only probable
but inevitable if not regulated. This is tested under the
circumstances that it is made. That under the
circumstances, there is a clear and present danger that
the evil sought to be prevented will happen.
3. BALANCING OF INTEREST. The court must undertake
the delicate and difficult task of weighing the
circumstances and appraising the substantiality of the
reasons advanced in support of the regulation of the
free enjoyment of rights. American Communication vs
Doubs. Normally involves conflict of rights among
individuals where there is Freedom of Expression in one
hand, and right of privacy on the other. Whose rights
should prevail? In the Hierarchy of Rights, the preferred
is freedom of thought which should include Freedom of
Expression. Nonetheless, right to privacy is also a
preferred right because it is preferred as against the
state’s unauthorized intrusion into one’s right to
privacy. So if this should happen the court should have
to weigh based on the circumstances whose right
should prevail. There is no hard and fast rule but the
court must have to weigh the issues.
The nearest to this discussion would perhaps be one of
the older cases involving depiction of a public event of
a life of a public person in relation to a public event. Is
there a need for permission from that person if a part
of his life is depicted in one’s film, artwork as part of
Freedom of Expression? If it were to be a true to life
depiction of that person in a public event not private
life. The SC said it is allowable because his inclusion into
that depiction of public event is just incidental. It is not
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about them. If it were be a fictional depiction of public
event or depiction of a life of a public or private person
which involves an aspect of private life, then there must
be licensing agreement because it is no longer part of
protected speech because it involves private life.
4. DIRECT INCITEMENT. The guarantees of free speech
and free press do not permit a state to forbid or
prescribe the advocacy of the use of force or of law
violation except where such advocacy is directed to
inciting or producing imminent lawless action and is
likely to incite or produce such action. Salonga vs Pano
5. GRAVE-BUT-IMPROBABLE DANGER. Whether the
gravity of the evil, discounted by its improbability,
justifies such an invasion of speech as is necessary to
avoid the danger. Dennis vs US.
Application of tests in various context
a) Freedom of expression and national security
b) Freedom of expression and the right of privacy
c) Symbolic Expression – The Flag-Burning case
d) Assembly and Petition
e) Freedom of expression and criticism of official conduct: THE
TEST OF “ACTUAL MALICE”
The most common form of subsequent punishment which is still
valid as of today although there is a move to decriminalize it, is
LIBEL. It is still good law today. Any imputation of a vice or defect
whether directed against the person or one committed to
blacken his memory is considered libelous and there is
presumption that any defamatory remarks is done with malice.
Malice here is presumed because there is no other motive that
can be thought of in defamatory statements.
 Malice is not presumed in what is known as
RELATIVELY PRIVILEGED STATEMENT. So you have this
private communication in legal or moral duty provided
no unnecessarily publication.
 The second one is known information in any proceeding
involving branches of government provided there is no
unnecessary comment. ABSOLUTELY PRIVILEGED
STATEMENT, even if defamatory, will not be the subject
of libel whether criminal or civil.
Examples
 Freedom of the congress under the speech and
debate clause.
 Statement or allegations in pleading in court or
any cases in quasi-judicial bodies which are
material and relevant to the case. If the allegations
are no longer necessary or relevant it may now be
considered libellous.
Now if the speech is privileged, malice is not presumed but
actual malice has to be proven. So this is where discussions on
reckless disregard of truth or falsity of that item by media person
will come into play to prove there is actual malice.
Also in libel, you have the proof of truth as a defense. Generally,
in defamatory statement if published, if made with good
intentions or good faith, that is always a defense. However, if the
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
defamatory statement constitutes a crime, proof of the truth of
the act constituting a crime is a defense in libel.
 If it is made against a private individual, then if you can
prove the truth of that crime, it is a defense. If it is not a
crime and made against a private individual then it is not a
defense.
 But if it is made against a public officer in relation to his
public life or private life which is embedded on his public
life, even if it is not a crime, it will be a defense.
“You are a prostitute” if you tell that to a private person.
Proof of truth of that, can you escape liability? Is it a crime?
Is there a crime of prostitution? Different ang reaksyon sa
lalake ug babae. Difference of opinion.
f) Freedom of expression and the administration of justice
(Contempt of Court)
FAIR CRITICISM OF COURT DECISIONS
 If what is criticized is a LOWER COURT JUDGE, the SC applied
US vs Bustos, which is applicable to other public official. So
you should not take offense when people criticized actions.
 But if you criticized the SUPREME COURT, then SC applied
the fair criticism rule. So it must be fair and this aspect of
Subjudice Rule which must consider the difference in
treatment of a private person making remarks or offending
actions and a lawyer who will also make criticisms.
FAIR CRITICISM is allowed if made in good faith,
couched in respectful language, directed to the merits
and must not downgrade or ridicule the Court.
Now, if it were to be made by a person who is not a lawyer,
there may be greater allowance for criticism but if a lawyer,
because of the code of professional responsibility, that lawyers
are officers of court and should protect the integrity of the court,
they must be the last person to criticise the court.
So if you take the case of Tulfo and the one in Manila
standard who is a lawyer. Tulfo said that the SC judges are
“sangaktutak na bobo”. He was cited for contempt. That
lawyer columnist did not say the same but he said that the
SC decided this way but the decision was not published yet,
he was cited for contempt an officer of the court so the
processes of the SC are supposed to be respected.The
Subjudice Rule has always been discussed in today’s papers.
Secretary Delima said that she was asked for an order citing
Capunan for contempt by the subjudice rule because “the
Atty Capunan” publicly discussed the case in a TV show.
The SUBJUDICE RULE basically suggests that persons especially
lawyers should not discuss the case publicly in order to sway the
decision of the court. There is intent to put pressure in the court
to rule one way and not the other. But the history of this rule
tends to apply in trial by jury where the jury tends to decide the
cases. Jury is supposed to be cloistered. That is the concept of the
Subjudice Rule. Where the case is under judicial litigation pending
decision, nothing should be said to sway the judgment on that
case. But we have taken this too literally by not going to discuss
anything. Now is there something new that is not part of the
record that the person has discussed on the pending case that
would sway the court. Contempt here is a form of indirect
contempt.
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TWO POLICIES as to the right to freely express opinion or
commentary on court decisions:
 Open Justice Policy - The open justice policy, is the first
principle. The open justice policy follows the general rule on
criticisms of official conduct of public officers. The courts are
not free from any criticisms, the public has the right to
criticize the judiciary, but not to affect public’s confident on
the judicial system.
 Judicial Independence - The second, the principle of judicial
independence, is actually the basis for the fair criticisms rule
- that courts must be free from unjust criticisms. Though they
may be criticized under the open justice policy, the criticisms
must have to be fair.
The fair criticism rule involves two aspects:
 first one would be institutional or the entire judiciary; and
 the second one, would be individual.
D. Content-Neutral Restrictions
The second restriction under the freedom from subsequent
punishment is what is known as content neutral restrictions,
where the regulation is largely on the circumstances -- when the
expression shall be made, and not from what or how the
expression was made.
It generally follow, based on the 1968 US decision, the case of US
vs O’Brien.
O’BRIEN TEST – A government regulation is sufficiently
justified if:
a) it is within the constitutional power of the government;
b) if it furthers an important or substantial governmental
interest;
c) if the governmental interest is unrelated to the
suppression of free expression; and
d) if the incidental restriction on alleged freedom of
expression is no greater than is essential to the
furtherance of that interest. US vs O’Brien
The restriction must be such that it must not be directed on the
content, because there is the need for the State to protect an
interest substantial, in the least restricted measures to further
government interest.
Examples of content neutral restrictions in Philippine context:
1) Freedom of Assembly (Batas Pambansa 880, Public Assembly
Act of 1985)
There is a particular requirement that if a public assembly is
held outside of what is known as freedom park, there is a
requirement of permit. This is not to violate the exercise of
public assembly right, the issuance of permit is in order for
administration to make sure that the use of the public places
will be fairly allocated. Of course, if it will be in a private
place, there is no need for such permit. If it is an established
freedom park, there is also no permit required.
BP 880 also established the standard rules of engagement,
dispersals of public assembly with or without permits
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
because the entire objective is to protect lives and for
avoidance the any property will be damaged.
Also you have your SC Circular No. 19-7-02-SC, this is the so-
called, 200-METER RADIUS RULE. That there should be no
public assembly to be held within the 200 meter radius from
the court room, or a court house, or hall of justice because
the objective of the regulation is to prohibit any public
assembly, or any activities that will disrupt the workings or
processes of our judicial system.
There is a provision there, which the SC stated that it
guarantees freedom of expression, and the right to
peaceably assemble, but considering the need to deliver or
administer justice through or judicial system, the public
assembly cannot be held within the 200 meter radius. The
regulation does not differentiate on what kind of activity or
public assembly, for so long as it is conducted within the
200-meter radius. Persons violating this circular will be held
liable for direct contempt, or shall be penalized accordingly.
2) Regulation of political campaign/election activity
You also have your regulation of election activity, which is part of
the provision of the Omnibus Election Code, where requirements
for political advertisements before elections were prepared by
the COMELEC, of what was known then as COMELEC space and
COMELEC time. In order to give meaning to the Constitutional
policy of equal opportunity and access to office, by trying to level
the playing field to those who can and cannot afford. Political ads
can only be posted, pasted or published, and printed in what was
known as the COMELEC time and space.
But because of the Fair Elections Act of 2001, there has been
liberality in the grant of allowable medium by which these
political advertisements could be printed, posted, pasted,
published, or broadcasted. And so, while the right to sell your
selves during an election is not totally unregulated, there is much
leeway now given under the Fair Elections Act of 2001.
You may have read in the newspapers early this week, or last
week, that there has already been an officer, who is first
time in Philippine election history, been disqualified for over
spending. Apparently, the COMELEC has imposed the rule,
that based on the contracts of the broadcasting company
that have been submitted to the COMELEC to determine the
number or total amount of the advertisements, the
governor of Laguna (Asiong Salonga. Haha!) was declared
disqualified by COMELEC first division. Of course, you know
the whole process, before it even reach the SC, the last thing
you’ll know, it is already 2016 elections. (Korek!) But
because of the regulation of election-related political
advertisements in relation to its allowable spending, the
COMELEC has imposed those provisions and renders
decision.
The problem with the provisions in the Omnibus Election Code, it
has been enacted before the present Congress has been
reestablished under the 1987 Constitution. The 3.00 per
registered voter in a political district where you wish to be voted
on, if you are with a party; 5.00 per registered voter, if you are
running without a party. The 3.00 in 1979 would be unreasonable
for purposes of elections today. The problem with plain television
broadcast, the COMELEC computation, at least, on 2013, has
required the submission of the original copy or complete
contracts. The candidates are not the only one that were
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required to submit, the outputs will also be submitted to the
COMELEC.
Regulation of election-related activity can also gone into
plebiscite, the SC has made a ruling that if it would be a
plebiscite, the normal computation for time and space in an
election should not be applicable because in a plebiscite and for a
referendum, we vote, not for candidates in public office, so there
must have to free or more avenues for commentaries,
advertisements for purposes of information dissemination so the
public may know what the issues are it would have to voted on a
plebiscite or a referendum.
So, the rules are:
1. the regulation must not be too general in giving the time,
and scope allocation;
2. it does not restrict one’s expression or belied in a candidate,
or opinion to its qualification;
3. it does not cut the flow of media reporting; and
4. it gives a clear and reasonable connection with the sanction
objective of the regulation.
The objective of the regulation must be to give everybody equal
opportunity of selling themselves to the public. There must be
greater state regulation allowable if it were an election. But if it
were to be on election on issues, like a plebiscite or referendum,
the regulation in election should not be applicable in a plebiscite
or referendum.
And if you notice, what most candidates are doing in the
elections because of these conditions, they will have to have
themselves subject of news reporting because no matter
what despite the limitation on time and space news
reporting should not be restricted if it is considered as
legitimate news reporting.
In 2010, when Aquino ran for President, because of the debt
of gratitude of ABS to the Aquino family, when Martial Law
was declared, the collateral damage was the closure of ABS-
CBN. When Cory came to power, she practically gave back
the entire network to the Lopez family. And so, when Cory
died, you may have noticed that all of the regular
programming was all suspended.
3) Anti-Photo and voyeurism
You also have your RA 9995, which is the Anti-Photo and
Voyeurism Act of 2009. It penalizes certain acts of recording and
publishing or making public photos and videos of sexual acts.
Even if there is an expectation of privacy, actors to that videos,
the act of uploading or publishing is supposed to be penalized.
The entire text of the law has the similar allowable disclosure of
these photos or videos may be a subject of the certain warrant.
The applicant can apply for an order to court to refrain from
uploading, downloading or viewing of the said videos or photos.
Has it something to do with content-neutral? The law does not
penalize the act not because of the content itself, it is the act of
taking the photo or thereafter publishing it. The first form of
prohibited acts would be limited in applicability because it says
taking of photo or video. So, there must be a publication at the
very least.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
As we have mentioned yesterday, the three special
regulations are vested with Facial Invalidation. Can you
invalidate a regulation of free speech, based on the fact that
on its face it is valid? It is allowed, because it is a free speech
regulation. The entire speech, it is not only invalid as to the
particular person, to whom this regulation is applied, it
should be applicable to everybody, because free speech is
supposed to be the discussion of matters of public interest.
Over-breadth, the same, and moreso if As Applied
Challenge. When we say “as applied challenge” is limited to
this regulations, if applied to any kind of criminal statutes,
which is applied to a particular defendant or accused in a
particular case, it may be considered as unconstitutional. It
is allowed because it does not prevent the state from
prosecuting other offenders based on the same law. The law
does not become unconstitutional for everybody. It is only
considered as unconstitutional in a particular case, as
applied in a particular defendant.
4. Freedom of Association and the right to stike in the public
sector
Art III Section 8. The right of the people, including those
employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall
not be abridged.
Art IX B Section 2 (5) The right to self-organization shall not be
denied to government employees.
Art XIII Section 3. It shall guarantee the rights of all workers to
self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of tenure,
humane conditions of work, and a living wage. They shall also
participate in policy and decision-making processes affecting their
rights and benefits as may be provided by law.
5. Movie Censorship
6. Radio Broadcast
As applied in different context on content-based restriction, lets
go to media. There is a difference in print and broadcast media.
There is greater restriction in broadcast media than in print
media.
In print, for one, there is a need for a person to at least have that
ability to read and because it is not interactive, there is still time
for that person, reading the material, to process what is
expressed in print media and there is also time for him to react
and think of what its intent or analyse it. In broadcast where
most of the listeners or viewers are normally listening to it and
they don’t have much thought on what is being said, that it
cannot be taken back because it just passes. As between radio
and television, there is greater restriction in television because
there may be some audience to programs which are age
inappropriate.
With respect to reach, there is greater restriction on radio, radio
is more accessible in many areas as compared to television. We
have the MTRCB which is the regulatory board. In several cases
involving MTRCB, the SC said that it is not a censors board but a
rating and classifications board. So it rates and classifies. It has no
right to prevent the public exhibitions of any show or motion
pictures provided that it is publicly distributed in appropriate
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medium as well. Because we do not have appropriate medium for
x rated films and shows. When you say PG 13 what does it mean?
In print media, there is also a difference in treatment in allowable
regulation or extent of protected speech if it is a leading news
title and if it were a features story. Because of the deadline that
reporters have to meet there is much leeway in the leading news
category. If it were a features story, since there is more time for
writers to check or recheck they may be held liable or
accountable.
There is a difference between an act of inadvertent or honest
omission from malicious assertion of falsehood. NEW York vs
Sullivan where the entire decision on what is allowable remark
against actions of public officers where the SC has said that there
must have to be malice in the publication or reckless disregard of
ascertaining its truth or falsehood. So if you are media person
writing story and if there is no reason for you to question or
doubt the authenticity of the story then if the story becomes
false later then you should not be held accountable. This was the
ruling in US vs Bustos. These cases have been off cited with
respect to discussions on freedom of expression vsi a vis freedom
of press.
Other matters with respect to freedom of expression,
commercial speech and government speech.
 Commercial speech is the one which proposes the
commercial transactions. Commercial speech does not enjoy
the state protection because it does not involve the
expression on matters involving public interest, but more on
the proprietary or business transactions. The liability there is
limited when the assertions in the advertisements are false.
 Government speech, on the other hand, is generally subject
to regulation. What’s a government speech? You may have
seen that on tv, nung panahon ni Gloria uso ito. The
Secretary of DENR saying that these are our report, bumili
kami ng lupa, ganun ganun. Can that be subject of
regulation? Meaning, if what was said there were false, can
these people be held liable? Technically, government
speeches are not subject to regulation as if it were in a
commercial speech because government, following the old
principle that there can be no right against the state. It gives
the law on which the right depends.
Like today, you have this DAP, also known as incentive,
bribe. Ano ba talaga? Can they be liable for that? If so, who
shall hold them accountable? The context of regulations
over government speeches.
E. Freedom of Information
Art III Section 7. The right of the people to information on
matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
In your outline, there’s the Freedom of Information. That is the
only right in the Constitution which is supposed to be served
_______. In the context of the Bill of Rights, in the old case
of______, the SC made clear that the rights under the Bill of
Rights are claimable by any person, regardless of the nationality
even if they are not residents, or merely sojourning here because
they are limitations of government power.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
The access to information under Section 7 is largely limited to the
claim of Filipino citizens of any matters involving public interest.
But the freedom of information would, except those involving
national security, still foreigners cannot ordinarily claim this right.
In relation to freedom of expression, the freedom of information
is a corollary right because the idea is how to be able to discuss
matters of public interest, if they do not have access to this kind
of information to begin with. Of course, the right to have access
does not mean the right is for free. There may be some
reasonable regulatory measures to be able to have access to
these documents. The need to have access must be based on a
_____ need. You don’t have the right to have access to ______.
F. Academic Freedom
In relation to that is your Academic Freedom. This is in relation to
freedom of expression because the rights of academic freedom of
students in the tertiary level, the discussion is based on the cases
involving imposition of sanctions to students of tertiary level by
reason of exercise of free speech rights. Some were suspended,
some were expelled based on school’s rules and policies.
Academic freedom has THREE ASPECTS:
1. for the institution;
2. for the members of the faculty;
3. for the students
For the institution, it is for them to determine, subject to very
limited state regulation:
1. what subjects to offer;
2. their objectives, mission in offering education;
3. the regulation based on the provisions of Commission
on Higher Education
4. whom to accept to be part of the administration,
including members of the faculty, as well as the
students to be accepted in their programs;
5. the school has the right to impose rules consistent with
the Labor Code on the members of the faculty or its
employees, and consistent in the Magna Carta of
Students;
6. reasonable regulation on admission and continued
enrollment
Members of the faculty, they have the academic freedom with
respect to:
1. the manner of teaching;
2. pursue further studies and be held accountable for any
result of their further studies.
Students have the right to:
1) be admitted if they have complied to the reasonable
requirement of admission
Remember that old case of DECS vs San Diego. The
main question there is whether the state can regulate
the entry of students in the medical schools in the
country by requiring them to pass the NMAT? The
reason behind the regulation, the SC said that state
regulation is allowed where there is a public interest
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involved. And the link between the exercise of
profession with public interest issue, the greater the
state regulation there can be. Justice Isagani Cruz made
mention that public health and public lives are a public
interest, thus, there must be more state regulation.
The students may have the right to be admitted, but they
are subject to the reasonable rules of admission. While
under the Magna Carta of their right, they can compel
readmission, until the completion of the degree or course
that they are enrolled in, they are subject to the rules of
discipline, and they are also subject of school rules. And
from the cases decided by SC on rules of discipline, we made
mention that the unlimited sense is applied on issues
involving a school, university, and students’ private entity,
where the students are given procedural process for
sanctions or violation of school’s policies.
With respect to academic proficiency, again, examinations,
there is due process already.
IV. FREEDOM OF RELIGION
pimentel v office of pres
Art III Section 5. No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil
or political rights.
Any practice like worship, conduct, which ought to include _____
is considered a religion regardless of the existence belief of God
or Supreme Being. It also includes the right not to believe in the
existence of a God.
The Constitution provides for a separation of the church and
state. As correctly understood, the principle of separation of
church and state prevents or prohibits the state from intruding
into the religion, or church affair or matters. It does not work the
other way around. The church is not prohibited from intruding
the state or political matters. That has been an acceptable
practice that the church has always been vocal of its thought or
stand on certain political matters. The principle is that the state is
prohibited from intruding church matters. There are several
provisions in the constitution which allows what we call as “Non-
discriminatory Provisions” because of the non-establishment
clause.
There are TWO ASPECTS OR SCOPE of prohibitions:
1. Non-establishment Clause
2. Free Exercise Clause - The scope of the freedom follows
what we call as Belief Action Test. The two aspects of
freedom which is the belief of religion or existence of a
religion, for as long as it remains in the thought or in
the minds, it is not supposed to be subject to any state
regulation. But if that belief is turned into action or
what we call as Belief Action Test, then that action may
be subject to regulation in which that the practice of
religion or religious belief converted into overt acts
which maybe violative of the existing laws, any
regulation will not be considered as violative of the
freedom of religion.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
A. NON-ESTABLISHMENT CLAUSE
Non-establishment Clause – that there should be no “state
imposed religion” or “no religion”, the idea there is that the state
follows the Benevolent Neutrality or Accommodation Test. The
state must be an innocent by-stander as to religion or religious
practice of a religious sect. The entire idea is, the religion must
compete/convince people based on their own teaching or
convince the people to practice their teachings and that there is
no entanglement by the government to establish a religion or
promote a particular religion.
The Non-establishment Clause prohibits:
a) Excessive governmental entanglement with religious
institutions and
b) Government endorsement or disapproval of religion
1) Operation of Sectarian Schools
Art XIV Section 4 (2) Educational institutions, other than those
established by religious groups and mission boards, shall be
owned solely by citizens of the Philippines or corporations or
associations at least sixty per centum of the capital of which is
owned by such citizens. The Congress may, however, require
increased Filipino equity participation in all educational
institutions.
The control and administration of educational institutions shall be
vested in citizens of the Philippines.
No educational institution shall be established exclusively for
aliens and no group of aliens shall comprise more than one-third
of the enrollment in any school. The provisions of this subsection
shall not apply to schools established for foreign diplomatic
personnel and their dependents and, unless otherwise provided
by law, for other foreign temporary residents.
Again, our constitutions provide for non-discriminatory
concession. In your outline it states the operation of sectarian
schools. The state allows operation of sectarian schools and this
is exempted from Filipino capital requirement. The only
requirement here of the constitution is that head of the school,
of which is run by foreign mission which could be a religious
institution, must have to be a Filipino.
2) Religious Instructions in Public Schools
Art XIV Section 3 (3) At the option expressed in writing by the
parents or guardians, religion shall be allowed to be taught to
their children or wards in public elementary and high schools
within the regular class hours by instructors designated or
approved by the religious authorities of the religion to which the
children or wards belong, without additional cost to the
Government.
The religious instructions in public schools refers to primary and
secondary schools, there must have to be observance of certain
rules, the rules can be stated in a manner that the parent of the
students which belong to a particular religion must request and
there must be an allowed teaching during school hours without
additional expenses on the part of the government so that no
government funds be used in primary and secondary schools for
religious teachings. The teacher must come from a religious
sector to which the majority of the students belong and there
shall be no compulsion.
3. Tax Exemption
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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
Art VI Section 28 (3) Charitable institutions, churches and
parsonages or convents appurtenant thereto, mosques, non-
profit cemeteries, and all lands, buildings, and improvements,
actually, directly, and exclusively used for religious, charitable, or
educational purposes shall be exempt from taxation.
We also have tax exemption - real property tax (RPT) exemptions.
There is also an income tax exemption for educational
institutions.
4. Public Aid to Religion
Art VI Section 29 (2) No public money or property shall be
appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of
any priest, preacher, minister, other religious teacher, or
dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.
The prohibition on public expense on religion, the only exemption
there is under Article 6 section 29 (2). That is allowed, they are
paid not because they are religious persons but they are paid of
government funds because they are employed by the
government but only in those allowed categories.
B. FREE EXERCISE CLAUSE
Now, the Free Exercise Clause prohibits the government from
inhibiting of religious beliefs which is impositions of penalties for
religious beliefs and practices, so this is where the Belief Action
Test comes in, that when belief is converted to overt acts, the
actions will be subject to regulation which is an exercise of police
powers. The state may impose sanctions for any violation.
The requirement for this regulation to be valid regulations and
not violative of the exercise clause. The first test is
1. Clear and present danger – this is like the clear and present
danger in your freedom of expression, if a religious act poses
a clear and present danger that the evil sought to be avoided
will inevitably happen to a religious practice will not be
prevented by a subsequent punishment then the state has
the right to prevent that from happening. Conversely, if
there is no clear and present danger and the act is allowed
and the evil sought to be avoided by the state will inevitablly
happen is not considered as valid regulation.
2. Compelling Interest of the State Test
The next case which is established in the case of Estrada vs.
Escritur, where a couple previously married to separate
individuals and without knowing their respective marriages
had this cohabitation and their religious practice has this age
old practice that you sign a covenant with the other person
regardless of any legal infirmities and that covenant is to be
witnessed by their God and such union is considered allowed
and blessed under their practice. They were charge with
gross immorality having been employed with the judiciary
and Chief Justice Puno wrote the majority decision saying
that they should not be held liable administratively for
immorality because of their religious rites. The imposition of
penalty based Civil Service law for gross immorality if applied
to them shall be considered as violation of the free exercise
clause and the chief justice used Compelling Interest of the
State Test. Applying Compelling Interest Test, we apply this
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
to our discussion if freedom of expression, there must be
compelling state interest that the state has the right to
protect. And in the case of this 2 individuals who marry
another person without the annulling their respective
marriage, there was no compelling state interest outside of
the fact that they are having their union that constitute their
actions as constituting as an act of immorality. The Supreme
Court also held that the rule must not be narrow-tailored to
achieve the goal interest. Gross immorality based on a claim
of invalid union out of a religious practice, the court must
look into whether or not the claim of religious rights is valid.
The SC made a discussion that of course not all claim of
exemptions from liability on the ground of religious rites
should be allowed. The practice must have an established
practice although the court said that we should not look on
the morality or legality of it but whether the practice is well
established and that practice in the religious sect or religion
is not blindly made under existing laws.
It must be emphasized in the case of Estrada vs. Escritur
that they were not charged with any criminal act for bigamy
or concubinage or adultery. The charge was for an
administrative liability based on gross immorality. If it were a
charge for concubinage or adultery, I think the decision
would have to be different because as against administrative
liability for religious rights, religious rights or freedom of
religion must be preferred than an administrative liability.
But if were a criminal liability, one cannot invoke freedom
from religious rights against a penal law unless it would
really constitute violation of freedom of religion.
Based on the discussion of SC on compelling state interest,
the third one which is that the policy is the least restrictive
of achieving the interest of the state, result in 3-step process
question:
1. Has the statute / government action created a burden
of the free exercise of religion? We must look into
whether the state act or law has imposed a limitation
on free exercise of a religious right. The court must look
into the sincerity of the claim, it must not be claimed
for convenience or avoid liability.
2. Is there sufficient compelling state interest to justify the
infringement of religious liberty?
3. As the state is achieving its ultimate purpose, use the
least intrusive means as possible? The state ought to
show that of all the regulations possible or feasible, this
is the least intrusive of all.
SC finally resolved that in applying compelling state interest
test will result to state accommodation:
1. Mandatory accommodation – under the free exercise
clause that the act must be accommodated otherwise It
will result to violation of freedom of religion
2. Permissive accommodation – the state may or may not
allow the act under religious rights or may regulate it.
3. Prohibited accommodation – the state cannot allow It
to happen otherwise it will result to violation of non-
establishment clause. Meaning if one religion is
allowed, it will mean accommodating that particular
religion. State must be an innocent bystander with the
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clash of religion or religious sect in their exercise of
freedom of religion.
Cases:
 Flag Salute case. The latest of which is to correct the
decision 30 years earlier that flag salute was not violative of
freedom of religion. In that old case, school children
belonging to a particular religion were compelled to salute
the flag as discipline of school authorities based on DECS
Memo order. They question that as violative of freedom of
religion because they are compelled to do an act in violation
of their religious rights which is not to salute or show
reverence to the iconics symbols or god. In that case, SC said
that DECS memo is valid and does not violate freedom of
religion because it has nothing to do with your religious
rights. A flag is not a symbol of any religious significance and
therefore to compel children to salute the flag will not make
violate their religious beliefs rather it gives them sense of
patriotism that they will show respect and reverence to the
republic. Flag is supposed to be a symbol of the history of
our country.
In the 1998 decision of Ebralinag case, SC totally reversed
the earlier ruling and said that the DECS order is considered
unconstitutional for violating religious rights. SC said that the
reason not to compel school children to salute the flag will
bring about a generation of unpatriotic school children has
not come to pass. They cannot establish patriotism simply by
compelling them to salute the flag. How many of us salute
the flag here? Do we salute the flag? SC said while they
cannot be compelled to salute flag on the basis of religious
rights, the school children must not disrupt the flag
ceremony or flag retreat ceremony.
 Exemption from Union Shop, we all know that this can be
provided in the CBA to guarantee the right of the union. The
CLOSED SHOP is a problem on the persons who belong to a
religious sect which do not allow to associate themselves to
others other than their own church member. The question is
asked in the two case whether they can be compelled to join
the union or should their religious claim be upheld and shall
not be compelled to join though the Union Security clause is
in the CBA? The SC upheld the freedom of religion, when
there is a clash of rights and SC is called to balance, the court
shall refer to the hierarchy of rights. Freedom or religion is a
preferred right over the rest and that while Union Security
clause is a right granted to unions under our labor code, it is
not a constitutionally granted right.
V. LIBERTY OF ABODE AND FREEDOM FOR MOVEMENT
Art III Section 6. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired except
upon lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public safety,
or public health, as may be provided by law.
CONSCIENTIOUS OBJECTOR TEST - A test which develop during
the draft in the US to the armed forces. In the World war up to
Vietnam war there was a mandatory drafting. The young persons
or teenagers were drafted to the armed forces to render service
during these wars. Can a person based on religious rights refuse
the draft in the army because his conscience would not allow it?
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
That was the origin of conscientious objector test and according
to SC that in some countries, Consent objector allowed to refuse
to perform military service on the grounds of freedom of thought,
conscience or religion. Like Mohammad Ali as the famous
conscience objector. While one may refuse military service, by his
freedom of conscience or freedom of religion. They are required to
render civil service or in a non-combat position. Unlike in our
constitution, Article 2, in times of war all able bodied citizens may
be compelled to render compulsory military or civil service.
Pwede ka tigluto ka sa army but it is still a government service.
ABODE – is one’s home or residence. So you choose where to live
and you can also change it. The only allowable state regulation or
prohibition is a lawful order of a court. Like the penalty of
destierro under the RPC. Unless upon a lawful order of a court
that you cannot be forced to change your residence.
Right now it can be done by reason of national security, public
safety or public health but this does not mean that the courts
cannot impair your freedom to travel only pertaining to the act of
congress or act of executive especially that the right to travel
cannot be impaired except by reason of this. An exception to this
is the Hold Departure Order because HDO is based on the rules
promulgated by the SC. Secretary De Lima now refused to re-
implement this because this is a source of legal issues. The court’s
inherent power to make sure that the processes are effective and
our criminal law follows the principle of territoriality. It falls
under the exception of the right of the accused to travel although
it is not constitutionally vested limitation. If an accused under
bond attempts to depart the country, he can be arrested without
warrant to ensure that he can still be under the jurisdiction of the
Philippine laws and courts.
Intercountry or intra country is what is contemplated in section 6,
it does not include the right to travel back to the country.
As discussed in the old case of Marcos vs Manglapus, when
Marcos wanted to return to the country, the SC said, it is not
part of Section 6. The reason why it is part of other law or
laws is that it is a generally accepted principle of
international law and subject to several conventions. We
have the declarations of human rights and internal
covenants on civil political rights, and under section 13 of
the universal declaration of Human Rights, it includes the
right to return to one’s country. Since we adhere to those
declarations being signatory thereto under the Doctrine of
Incorporation in Article 2, the right to return to one’s
country is also part of the law of our land, so the right to
travel back is a right though not included in section 6 but
under the doctrine of incorporation article 2.
right to travel - not travel back or reenter country once he left. onlly within
country or to oitside national safety, public safety public health
VI. RIGHT OF PERSON UNDER CUSTODIAL INVESTIGATION
Art III Section 12. (1) Any person under investigation for the
commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the
presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
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detention places, solitary, incommunicado, or other similar forms
of detention are prohibited.
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and their
families.
Republic Act No. 7438, April 27, 1992, AN ACT DEFINING CERTAIN
RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING,
DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING
PENALTIES FOR VIOLATIONS THEREOF
Section 1. Statement of Policy. – It is the policy of the Senate to
value the dignity of every human being and guarantee full respect
for human rights.
Section 2. Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under custodial investigation
shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting under his
order or his place, who arrests, detains or investigates any person
for the commission of an offense shall inform the latter, in a
language known to and understood by him, of his rights to
remain silent and to have competent and independent counsel,
preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under
custodial investigation. If such person cannot afford the services
of his own counsel, he must be provided with a competent and
independent counsel by the investigating officer.
(c) The custodial investigation report shall be reduced to writing
by the investigating officer, provided that before such report is
signed, or thumbmarked if the person arrested or detained does
not know how to read and write, it shall be read and adequately
explained to him by his counsel or by the assisting counsel
provided by the investigating officer in the language or dialect
known to such arrested or detained person, otherwise, such
investigation report shall be null and void and of no effect
whatsoever.
(d) Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in writing and
signed by such person in the presence of his counsel or in the
latter's absence, upon a valid waiver, and in the presence of any
of the parents, elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district school supervisor,
or priest or minister of the gospel as chosen by him; otherwise,
such extrajudicial confession shall be inadmissible as evidence in
any proceeding.
(e) Any waiver by a person arrested or detained under the
provisions of Article 125 of the Revised Penal Code, or under
custodial investigation, shall be in writing and signed by such
person in the presence of his counsel; otherwise the waiver shall
be null and void and of no effect.
(f) Any person arrested or detained or under custodial
investigation shall be allowed visits by or conferences with any
member of his immediate family, or any medical doctor or priest
or religious minister chosen by him or by any member of his
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
immediate family or by his counsel, or by any national non-
governmental organization duly accredited by the Commission on
Human Rights of by any international non-governmental
organization duly accredited by the Office of the President. The
person's "immediate family" shall include his or her spouse,
fiancé or fiancée, parent or child, brother or sister, grandparent
or grandchild, uncle or aunt, nephew or niece, and guardian or
ward.
As used in this Act, "custodial investigation" shall include the
practice of issuing an "invitation" to a person who is investigated
in connection with an offense he is suspected to have committed,
without prejudice to the liability of the "inviting" officer for any
violation of law.
Section 3. Assisting Counsel. – Assisting counsel is any lawyer,
except those directly affected by the case, those charged with
conducting preliminary investigation or those charged with the
prosecution of crimes.
The assisting counsel other than the government lawyers shall be
entitled to the following fees;
(a) The amount of One hundred fifty pesos (P150.00) if the
suspected person is chargeable with light felonies;
(b) The amount of Two hundred fifty pesos (P250.00) if the
suspected person is chargeable with less grave or grave felonies;
(c) The amount of Three hundred fifty pesos (P350.00) if the
suspected person is chargeable with a capital offense.
The fee for the assisting counsel shall be paid by the city or
municipality where the custodial investigation is conducted,
provided that if the municipality of city cannot pay such fee, the
province comprising such municipality or city shall pay the fee:
Provided, That the Municipal or City Treasurer must certify that
no funds are available to pay the fees of assisting counsel before
the province pays said fees.
In the absence of any lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Article
125 of the Revised Penal Code.
Section 4. Penalty Clause. – (a) Any arresting public officer or
employee, or any investigating officer, who fails to inform any
person arrested, detained or under custodial investigation of his
right to remain silent and to have competent and independent
counsel preferably of his own choice, shall suffer a fine of Six
thousand pesos (P6,000.00) or a penalty of imprisonment of not
less than eight (8) years but not more than ten (10) years, or
both. The penalty of perpetual absolute disqualification shall also
be imposed upon the investigating officer who has been
previously convicted of a similar offense.
The same penalties shall be imposed upon a public officer or
employee, or anyone acting upon orders of such investigating
officer or in his place, who fails to provide a competent and
independent counsel to a person arrested, detained or under
custodial investigation for the commission of an offense if the
latter cannot afford the services of his own counsel.
(b) Any person who obstructs, prevents or prohibits any lawyer,
any member of the immediate family of a person arrested,
detained or under custodial investigation, or any medical doctor
or priest or religious minister chosen by him or by any member of
his immediate family or by his counsel, from visiting and
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conferring privately with him, or from examining and treating
him, or from ministering to his spiritual needs, at any hour of the
day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6)
years, and a fine of four thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security
officer with custodial responsibility over any detainee or prisoner
may undertake such reasonable measures as may be necessary to
secure his safety and prevent his escape.
Section 5. Repealing Clause. – Republic Act No. No. 857, as
amended, is hereby repealed. Other laws, presidential decrees,
executive orders or rules and regulations, or parts thereof
inconsistent with the provisions of this Act are repealed or
modified accordingly.
Section 6. Effectivity. – This Act shall take effect fifteen (15) days
following its publication in the Official Gazette or in any daily
newspapers of general circulation in the Philippines.
What’s the difference between inquest, preliminary
investigation and rights under investigation? Inquest involves
preliminary investigation (PI), this is not PI under rule 112
because the entire process is part of PI, person arrested without
warrant he has to be charged in 12, 18 or 36 hours under RPC.
The determination of the probable cause is called the inquest. If
you read the rules on inquest, the person arrested may even
asked for a regular PI, provided he must a request within 5 days
from knowing of such case to be filed, and he must not waive his
rights under rule 125. PI has also its rules (just check).
So where’s the custodial investigation comes in? It comes when
there is an inquest or when he is arrested with warrant. Rights of
investigation presuppose that he is under investigation, this is
under the old case of Miranda vs. the State of Arizona.
Miranda vs. the State of Arizona. Miranda was arrested
because a woman was abducted and raped and a witness
saw a car with plate number and a woman was found dead.
The eye witness saw the plate number and it was traced
belonging to Ernest Miranda. He was arrested and detained.
He was interrogated and after that there was a written
statement and confession and Mr. Miranda was convicted.
On appeal, they claimed that there was a violation for the
right to counsel that was the main cause before SC. The only
evidence of his conviction was an extra judicial statement
which he apparently signed. The SC reversed the conviction,
directed trial court to conduct new hearing without using
the extra judicial confession. Luckily, Mr. Miranda was
convicted again. The SC established the Miranda rule. When
a person is brought into a police and investigated in the
police room, you cannot expect that they are in a similar
position. The attending pressure on the part of the person
investigated because he is alone and there is a possibility
that there is torture, that his confession will be coerced. The
only possible protection so that his confession is not taken by
force is to give him the right to counsel. That is the ruling
which places a requirement of allowing a person under
investigation to be assisted by counsel.
It was introduced in the Philippines in 1970 and was expanded or
modified to give more protection. We follow the same ruling that
if a person is investigated. Before, it was custodial interrogation.
Custodial interrogation means he is already arrested.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
Instances where a person not arrested but is question may not be
covered by custodial investigation or the some practices of police
officers to take a certain person and on the way to police station
istorya istorya sila. So the time they reached the police station, he
has already confessed. Dal on siya sa basurahan or isalvage bah.
So to cover all kinds of questioning, we follow the old ruling of
Escobedo vs. State of Illinois, where investigation is a kind of
line of
questioning where it ceases to be a general inquiry into the crime
question
under investigation but is now looking into the possible complicity ing
or the participation of person being questioned. If the question is if asks
directed towards eliciting an answer to be able to establish a on w/r he
person’s participation in the crime then that becomes an committ
investigation which the Miranda rights has to be afforded. To ed the
ensure the person’s right under the Miranda rights is being crime
even if
afforded to him, there is a need for recitation of Miranda
he is not
warning. RA 7413 expanded it, the context of our constitution yet
that when a person is arrested, detained but not investigated the arrested,
Miranda warnings cannot be given; the right need not be he is
afforded. RA 7413 expanded to include those arrested, detained consider
and investigated. Even if the person is not investigated but ed under
investigxn
arrested or has been detained the Miranda rights has to be given
and be afforded that is the expansion under RA 7413.
There must have to be a meaningful transmission of the rights
which therefore requires the consideration of certain factors
affecting such meaningful transmission. So the language spoken
is understood, perhaps the capacity of the person to understand.
Age may be considered and all other facts to ascertain that the
person has understood what his Miranda Rights are.
Of course the Miranda Rights would only refer to his continuing
right to remain silent, his right to be assisted by counsel pending
any investigation, and if he cannot afford the assistance of
counsel, the counsel may be afforded for him, and preferably of
his own choice.
Now, despite the fact that the person arrested, detained or
investigated may be knowledgeable in law, the requirement
to apprise him of his Miranda Rights, through the Miranda
warnings is not dispensed with simply because he already
understands what those rights are. In that situation, what is
important is for the person knowledgeable in law to know
that those investigating him are willing to grant or afford
him his Miranda rights.
Now, when a person is informed of his right to remain silent, he
must have to be informed also that anything he says can and will
be used against him in a court of law to enable him to understand
the consequences of a waiver of that right.
Right to Counsel
Now with respect to the lawyer, before RA 7438, there were
a lot of cases involving the question or issue of who are
allowed to be assisting as counsel during the taking of
statements during the investigation. RA7438 now defined
who an assisting counsel is. Simply put, an Assisting Counsel
is one who is not interested in the prosecution of offenses.
So, in any capacity, if a person by his designation is
interested in the implementation of the law, and is therefore
prosecuting offenders or law violators, that person cannot
be an assisting counsel.
The phrase “preferably of his own choice” should be
understood literally. Meaning if there is such possible or
reasonable choice of the counsel, that must have to be
extended to him. Of course if the choice of counsel is not
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either appoint to him
a counsel or
reasonable—he prefers to be represented by Estrelito
no investigation Mendoza, one of the most expensive lawyers in the country
willbe made and he does not even know him, or Mendoza does not know
him, the choice is no longer reasonable. That should not be
left to the discretion of the person being investigated.
Waiver of Miranda Rights
Now, what generally happens if there is no valid waiver of
the rights under the Miranda rights, this is not to say that
the prosecution of the accused could no longer proceed?
What it simply does is if there is no valid waiver is that the
person could not be investigated. And even if there is a valid
waiver, for so long as the accused or the person investigated
would reclaim his rights under the Miranda Rights, the
investigation should not continue. Even if there is a prior
waiver, valid under the Constitution, the waiver does not
mean that he could not be taken back and that the
investigation will continue. Also, it does not mean that if
there is a waiver of any of these rights that automatically,
there would be a confession or admission which is done
extra-judicially.
What the waiver does is simply to allow the person
investigation to proceed and conduct such investigation. If
the investigation results into an admission or confession,
then it would be good for the prosecution. But if it does not,
it does not make the investigation illegal because there was
no confession or admission.
Now the constitution now requires that for there to be a valid
pp v galit waiver, there must have to be the assistance of counsel, and that
meaningful
there must have to be waiver in writing. And the waiver must also
transmission
be made under the general context of a valid waiver. That it must
have to be made intelligently, voluntarily, knowing the full
consequences of the waiver. The requirement that the waiver
must be valid, must be intelligent, voluntary and knowing the full
consequences of the waiver presupposes that there was a prior,
meaningful transmission of his rights. Now while the right to be
assisted with counsel during the investigation may be waived, the
requirement that the waiver must have to be made with the
assistance of counsel can never be waived. All waivers must have
to be with the assistance of counsel. And if there is a valid waiver,
then the investigation can now be conducted without the
assistance of counsel.
1) Miranda Rule not applicable to confessions executed before
January 17, 1973
Okay, in your outline it’s not applicable to confessions prior
to January 7, 1973, again simply because the Miranda rights
were first incorporated in the 1973 constitution based on
the 1966 ruling in the case of Miranda vs Arizona.
2) Miranda Rule is not applicable to res gestae statements or
spontaneous statements.
The entire reason for the Miranda ruling is that the person is
forced or compelled to admit or to confess to the crime
under investigation. So you take that element away, the
admission is voluntarily made or voluntarily offered, even
without questioning, the Miranda rights and the Miranda
warnings are not claimable for the simple expediency that
there was no opportunity for the police to ask or investigate
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
that person as the confession or admission was voluntarily
offered.
3) Miranda Rule is not applicable to statements made in
Administrative Investigations.
This is where most of the discussion in Sec. 17 and Sec. 12
are made. Sec. 17 of Article 3 is the provision against self-
incrimination. They may be of the same or similar
characterization, but section 17 is exclusively applicable to
persons investigated in relation to a criminal case or criminal
charge, it must therefore be a criminal case.
Art III Section 17. No person shall be compelled to be a
witness against himself.
Section 12 (3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
Privilege against self-incrimination refers to the refusal or
avoidance of a person to incriminate himself by admitting to
something which is incriminating. A person may refuse to
answer an incriminating question. An incriminating question
need not be asked or is not solely asked in a criminal case.
You can ask it in any kind of proceeding. But Sec. 12,
because of this right to counsel, the Miranda warnings does
not apply to administrative investigations no matter what
the imposable penalty is.
So for example it is an administrative investigation in
relation to a violation of a company policy on theft, and
during the conduct of the investigation which mandated
under the Labor Code, can the employee request that he be
assisted with counsel? Or that if he is not assisted by counsel,
because his Miranda rights were not given, should his
admission there be excluded in evidence? With respect to the
right of counsel, it has nothing to do with the Miranda rights
in that situation. But the employees can request that they be
represented by a counsel or by any representative for that
matter. And it is his right, not because of the Miranda right,
but because the Labor Code has granted it to put a balance
between the power of the employer to impose sanctions,
and the position of the employee as against the employer.
So that if the testimony of the employee in an administrative
proceeding in the company level resulted in his admission
despite the fact that he was not apprised of his Miranda
rights, those admissions will still be considered as
admissible. So that is the distinction with respect to privilege
against self-incrimination.
Thus, if an incriminating question is asked in that
administrative hearing, the employee can refuse to answer.
The problem with section 17 and section 12 is that section
17 is claimable, meaning confession is inadmissible even if
there is no objection when the answers were given unlike in
section 17, once the incriminating question is answered
there is automatically a waiver of the right thereby making a
confession or admission admissible.
4) Miranda rule is applicable to custodial phase of investigation
- police lineups.
For the simple reason that there is no investigation
conducted, We said that investigation for purposes of the
Miranda warnings before RA7438, requires the questioning
to illicit confessions or admissions on the crime under
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investigation, the question ceases to be questions of general
inquiry. When a person is made to stand in a police lineup,
there are no questions asked.
Now if you factor in RA7438, when the person is taken for
police lineups for identification, should he be informed of his
Miranda rights? The answer is yes because the person who is
invited to the station to shed light on the investigation,
under RA7438 it is covered. The law says “it shall include the
practice of issuing an invitation to a person who is
investigated in connection to an offense which he is
suspected to have committed”. So if a person is invited to
stand in a police lineup because he is a suspect, RA7438 is
applicable. He should be given his Miranda rights.
Now you ask the question, if he is identified in that police
lineup but was not previously apprised of his Miranda
rights, is the identification considered admissible? Of
course it is admissible. There is nothing to be excluded there
simply because his Miranda rights were not given. What
RA7438 provides as part of the exclusionary rule in the
constitution, considering the intent of sec. 12 is with respect
only to the extra-judicial confession.
Tests of validity of Waiver of Miranda Rights “To be informed”
a) Pre-Galit Rule (January 17, 1973 to March 20, 1985)
b) The Galit Rule (March 20, 1985 to February 2, 1987)
Does the Galit rule have retroactive application?
In the outline, there has been a reference to the case of
People vs Galit. This was because the Supreme Court
interpreted the previous constitution that there is the
requirement of that right to counsel. While there was
no express provision in the 73 constitution, starting
March 20, 1985 the Supreme Court said that all waivers
must have to be with the assistance of counsel. That
was the prevailing law before the 1987 constitution.
c) New rule on Waiver (February 2, 1987)
Art III Section 12. (1) xxx These rights cannot be waived
except in writing and in the presence of counsel.
RA7438 clarifies that there are documents that must be
executed, signed, meaning interpreted, signed, and that he
has understood them. This is the custodial investigation
report and the extra judicial confession. They are to be
signed after there is full understanding, if there is a need to
interpret these documents; they must have to be
interpreted before the confessant will sign it. If it is validly
signed, there must have to be the signature of the assisting
counsel if any. Or if there is a valid waiver of the right to
counsel, then any of those persons listed must have to sign
them as well. They are the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal
judge, district school supervisor or priest or minister of the
gospel as chosen by him. These persons will sign if there is a
valid waiver of the right to counsel.
The burden of proving voluntariness of waivers is on the
prosecution
Now the final item with respect to the extra judicial confession or
admission on Sec 12 will be proving voluntariness of the waiver
and the voluntariness of the confession. The confession is
presumed to be voluntary because there is always that principle
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
that a person who is sorry for what he has done would easily
admit to his culpability. So if there is a claim that the confession
was involuntarily made, then it is for the accused-confessant to
prove that the confession was taken from him involuntarily.
But because the constitution has required certain preconditions
before the confession is to be taken, then the burden of proving
the voluntariness of the waiver falls upon the state. The
prosecution must prove to the court that the waiver was validly
made. There is no presumption as the regularity of the
performance of duty with respect to this waiver of a
constitutional right.
What may be waived: The right to remain silent and the right to
counsel, but not the right to be given “Miranda Warnings”
Exclusionary Rule
Art III Sec 12 (3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
VII. RIGHT TO BAIL
Art III Section 13. All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient sureties,
or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended. Excessive bail shall not be
required.
RULE 114 - BAIL
Section 1. Bail defined. – Bail is the security given for the release
of a person in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any court as
required under the conditions hereinafter specified. Bail may be
given in the form of corporate surety, property bond, cash
deposit, or recognizance.
Sec. 2. Conditions of the bail; requirements. – All kinds of bail are
subject to the following conditions:
(a) The undertaking shall be effective upon approval, and unless
cancelled, shall remain in force at all stages of the case until
promulgation of the judgment of the Regional Trial Court,
irrespective of whether the case was originally filed in or
appealed to it;
(b) The accused shall appear before the proper court whenever
required by the court of these Rules;
(c) The failure of the accused to appear at the trial without
justification and despite due notice shall be deemed a waiver of
his right to be present thereat. In such case, the trial may proceed
in absentia; and
(d) The bondsman shall surrender the accused to the court for
execution of the final judgment.
The original papers shall state the full name and address of the
accused, the amount of the undertaking and the conditions
required by this section. Photographs (passport size) taken within
the last six (6) months showing the face, left and right profiles of
the accused must be attached to the bail.
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Sec. 3. No release or transfer except on court order or bail. – No
person under detention by legal process shall be released or
transferred except upon order of the court or when he is
admitted to bail.
Sec. 6. Capital offense defined. – A capital offense is an offense
which, under the law existing at the time of its commission and of
the application for admission to bail, may be punished with
death.
Sec. 7. Capital offense or an offense punishable by reclusion
perpetua or life imprisonment, not bailable. – No person charged
with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the state of the criminal
prosecution.
Sec. 8. Burden of proof in bail application. – At the hearing of an
application for bail filed by a person who is in custody for the
commission of an offense punishable by death, reclusion
perpetua, or life imprisonment, the prosecution has the burden
of showing that evidence of guilt is strong. The evidence
presented during the bail hearing shall be considered
automatically reproduced at the trial but, upon motion of either
party, the court may recall any witness for additional examination
unless the latter is dead, outside the Philippines, or otherwise
unable to testify.
Sec. 10. Corporate surety. – Any domestic or foreign
corporation, licensed as a surety in accordance with law and
currently authorized to act as such, may provide bail by a bond
subscribed jointly by the accused and an officer of the
corporation duly authorized by its board of directors.
Sec. 11. Property bond, how posted. – A property bond is an
undertaking constituted as lien on the real property given as
security for the amount of the bail. Within ten (10) days after the
approval of the bond, the accused shall cause the annotation of
the lien on the certificate of title on file with the Registry of
Deeds if the land is registered, or if unregistered, in the
Registration Book on the space provided therefore, in the
Registry of Deeds for the province or city where the land lies, and
on the corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned.
Within the same period, the accused shall submit to the court
his compliance and his failure to do so shall be sufficient cause for
the cancellation of the property bond and his re-arrest and
detention.
Sec. 12. Qualifications of sureties in property bond. – The
qualifications of sureties in a property bond shall be as follows:
(a) Each must be a resident owner of real estate within the
Philippines;
(b) Where there is only one surety, his real estate must be worth
at least the amount of undertaking;
(c) If there are two or more sureties, each may justify in an
amount less than that expressed in the undertaking but the
aggregate of the justified sums must be equivalent to the whole
amount of the bail demanded.
In all cases, every surety must be worth the amount specified in
his own undertaking over and above all just debts, obligations
and properties exempt from execution.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
Sec. 13. Justification of sureties. – Every surety shall justify by
affidavit taken before the judge that he possesses the
qualification prescribed in the preceding section. He shall
describe the property given as security, stating the nature of his
title, its encumbrances, the number and amount of other bails
entered into by him and still undischarged, and his other
liabilities. The court may examine the sureties upon oath
concerning their sufficiency in such manner as it may deem
proper. No bail shall be approved unless the surety is qualified.
Sec. 14. Deposit of cash as bail. – The accused or any person
acting in his behalf may deposit in cash with the nearest collector
of internal revenue or provincial, city, or municipal treasurer the
amount of bail fixed by the court, or recommended by the
prosecutor who investigated or filed the case. Upon submission
of a proper certificate of deposit and a written undertaking
showing compliance with the requirements of section 2 of this
Rule, the accused shall be discharged from custody. The money
deposited shall be considered as bail and applied to the payment
of fine and costs while the excess, if any, shall be returned to the
accused or to whoever made the deposit.
Sec. 15. Recognizance. – Whenever allowed by law or these
Rules, the court may release a person in custody on his own
recognizance or that of a responsible person.
Sec. 16. Bail, when not required; reduced bail or recognizance. –
No bail shall be required when the law or these Rules so provide.
When a person has been in custody for a period equal to or
more than the possible maximum imprisonment prescribed for
the offense charged, he shall be released immediately, without
prejudice to the continuation of the trial or the proceedings on
appeal. If the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after thirty (30) days
of preventive imprisonment.
A person in custody for a period equal to or more than the
minimum of the principal penalty prescribed for the offense
charged, without application of the Indeterminate Sentence Law
or any modifying circumstance, shall be released on a reduced
bail or on his own recognizance, at the discretion of the court.
Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may be
filed with the court where the case is pending, or in the absence
or unavailability of the judge thereof, with any regional trial
judge, metropolitan trial judge, municipal trial judge, or municipal
circuit trial judge in the province, city or municipality. If the
accused is arrested in a province, city, or municipality other than
where the case is pending, bail may also be filed with any
regional trial court of said place, of if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge,
or municipal circuit trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance, the application
may only be filed in the court where the case is pending, whether
on preliminary investigation, trial, or appeal.
Any person in custody who is not yet charged in court may
apply for bail with any court in the province, city, or municipality
where he is held.
Sec. 18. Notice of application to prosecutor. – In the application
for bail under section 8 of this Rule, the court must give
reasonable notice of the hearing to the prosecutor or require him
to submit his recommendation.
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Sec. 19. Release on bail. – The accused must be discharged
upon approval of the bail by the judge with whom it was filed in
accordance with section 17 of this Rule.
When bail is filed with a court other than where the case is
pending, the judge who accepted the bail shall forward it,
together with the order of release and other supporting papers,
to the court where the case is pending, which may, for good
reason, require a different one to be filed.
Sec. 20. Increase or reduction of bail. – After the accused is
admitted to bail, the court may, upon good cause, either increase
or reduce its amount. When increased, the accused may be
committed to custody if he does not give bail in the increased
amount within a reasonable period. An accused held to answer a
criminal charge, who is released without bail upon filing of the
complaint or information, may, at any subsequent stage of the
proceedings and whenever a strong showing of guilt appears to
the court, be required to give bail in the amount fixed, or in lieu
thereof, committed to custody.
Sec. 21. Forfeiture of bail. – When the presence of the accused
is required by the court or these Rules, his bondsmen shall be
notified to produce him before the court on a given date and
time. If the accused fails to appear in person as required, his bail
shall be declared forfeited and the bondsmen given thirty (30)
days within which to produce their principal and to show why no
judgment should be rendered against them for the amount of
their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his
non-production; and
(b) explain why the accused did not appear before the court
when first required to do so.
Failing in these two requisites, a judgment shall be rendered
against the bondsmen, jointly and severally, for the amount of
the bail. The court shall not reduce or otherwise mitigate the
liability of the bondsmen, unless the accused has been
surrendered or is acquitted.
Sec. 22. Cancellation of bail. – Upon application of the
bondsmen, with due notice to the prosecutor, the bail may be
cancelled upon surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal
of the accused, dismissal of the case, or execution of the
judgment of conviction.
In all instances, the cancellation shall be without prejudice to
any liability on the bail.
Sec. 23. Arrest of accused out on bail. – For the purpose of
surrendering the accused, the bondsmen may arrest him or, upon
written authority endorsed on a certified copy of the
undertaking, cause him to be arrested by a police officer or any
other person of suitable age and discretion.
An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the
Philippines without permission of the court where the case is
pending.
Sec. 24. No bail after final judgment; exception. – No bail shall
be allowed after a judgment of conviction has become final. If
before such finality, the accused applies for probation, he may be
allowed temporary liberty under his bail. When no bail was filed
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
or the accused is incapable of filing one, the court may allow his
release on recognizance to the custody of a responsible member
of the community. In no case shall bail be allowed after the
accused has commenced to serve sentence.
Sec. 25. Court supervision of detainees. – The court shall
exercise supervision over all persons in custody for the purpose
of eliminating unnecessary detention. The executive judges of the
Regional Trial Courts shall conduct monthly personal inspections
of provincial, city, and municipal jails and the prisoners within
their respective jurisdictions. They shall ascertain the number of
detainees, inquire on their proper accommodation and health
and examine the condition of the jail facilities. They shall order
the segregation of sexes and of minors from adults, ensure the
observance of the right of detainees to confer privately with
counsel, and strive to eliminate conditions inimical to the
detainees.
In cities and municipalities to be specified by the Supreme
Court, the municipal trial judges or municipal circuit trial judges
shall conduct monthly personal inspections of the municipal jails
in their respective municipalities and submit a report to the
executive judge of the Regional Trial Court having jurisdiction
therein.
A monthly report of such visitation shall be submitted by the
executive judges to the Court Administrator which shall state the
total number of detainees, the names of those held for more
than thirty (30) days, the duration of detention, the crime
charged, the status of the case, the cause for detention, and
other pertinent information.
Sec. 26. Bail not a bar to objections on illegal arrest, lack of or
irregular preliminary investigation. – An application for or
admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued
therefore, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea. The court
shall resolve the matter as early as practicable but not later than
the start of the trial of the case.
When right may be invoked
If you look at the provision, a person is protected before he is
charged before the court, he has his rights against unreasonable
searches and seizure, warrantless arrests and now when arrested,
he has his rights while being investigated, this has been expanded
by RA 7438. Now he is charged before the court. The first of the
rights which the accused can claim, after he is charged in court
after his arrest and/or investigation is his right to bail.
When is bail a matter of right and when is it a matter of
discretion
Sec. 4. Bail, a matter of right; exception. – All persons in custody
shall be admitted to bail as a matter of right, with sufficient
sureties, or released on recognizance as prescribed by law or this
Rule (a) before or after conviction by the Metropolitan Trial
Court, Municipal Trial Court, Municipal Trial Court in Cities, or
Municipal Circuit Trial Court, and (b) before conviction by the
Regional Trial court of an offense not punishable by death,
reclusion perpetua, or life imprisonment.
Sec. 5. Bail, when discretionary. – Upon conviction by the
Regional Trial Court of an offense not punishable by death,
reclusion perpetua, or life imprisonment, admission to bail is
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discretionary. The application for bail may be filed and acted
upon by the trial court despite the filing of a notice of appeal,
provided it has not transmitted the original record to the
appellate court. However, if the decision of the trial court
conviction the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be filed
with and resolved by the appellate court.
Should the court grant the application, the accused may be
allowed to continue on provisional liberty during the pendency of
the appeal under the same bail subject to the consent of the
bondsman.
If the penalty imposed by the trial court is imprisonment
exceeding six (6) years, the accused shall be denied bail, or his
bail shall be cancelled upon a showing by the prosecution, with
notice to the accuse, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent,
or has committed the crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;
(c) That he committed the offense while under probation, parole,
or conditional pardon;
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
where
to file? The appellate court may, motu proprio or on motion of any
party, review the resolution of the Regional Trial Court after
right to notice to the adverse party in either case.
travel
Now constitutionally, the threshold when bail is a matter of right
and when it is a matter of discretion is the penalty of reclusion
perpetua or higher.
 If the penalty for which the accused is charged is reclusion
perpetua or higher, bail is a matter of discretion.
 Below that, bail is a matter of right.
But in the provisions of the Rules of Court there have been some
changes. The Rules now provide that:
 In all cases pending before the MTC before and after
conviction. bail is a matter of right
 In the RTC and BEFORE conviction if the penalty is NOT
reclusion perpetua or higher. bail is a matter of right
 In the RTC and BEFORE conviction if the penalty is reclusion
perpetua or higher, bail is a matter of discretion.
 In the RTC AFTER conviction if the penalty is more than 6
years and not more than 20 years and the accused-convict
suffers any of those disabilities listed bail is a matter of
discretion:
1. he is a recidivist;
2. habitual delinquent or it is committed under the
circumstance of reiteracion;
3. the accused has previously escaped,
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
4. he committed the crime under parole, probation,
or conditional pardon;
5. there is an increased flight risk;
6. there is an undue risk of committing a crime if
granted bail.
When bail is a matter of right, the question is should there be a
HEARING CONDUCTED?
 When bail is a matter of right and bail is posted in cash -
there is no more need for a hearing
 But if bail is a matter of right but the accused is asking for a
reduction of bail, or the accused posts a property bond, or
posts a surety bond, there is a need for a hearing.
In surety bond, hearing may be dispensed with but
sometimes there is a need for a hearing because the
surety companies must have prior clearance from the
SC. It’s not in the Rules of Court but surety companies
must have been issued clearances from the SC that they
are still allowed to post bonds for accused in criminal
cases.
For property bond - for the court to determine whether
the property is sufficient to be posted as a bond. It’s
market value must have to be equal to or more than
the amount of bond required by the court over and
above any liabilities on the property. Say the bail bond
required is 200,000, the property is worth a million, but
it is also encumbered to the bank for another million so
it is no longer proper for that property to be put as a
bond.
 If bail is a matter of discretion, then hearing is mandatory. It
cannot be dispensed with.
There was a 2012 case involving an RTC judge in
General Santos who granted bail bond when bail is a
matter of discretion without conducting a hearing. He
was charged and found liable administratively for gross
ignorance of the law.
The reason why there is a need for a hearing is:
 If the reason for the bail to be discretionary is that the
imposable penalty is Reclusion Perpetua or higher - to
afford the judge the discretion to rule that either the
evidence of guilt is strong.
 If the reason for the bail to be discretionary is if it were to be
any of those 6 disabilities - to determine whether or not the
accused suffers any of those disabilities.
The prosecution must be given sufficient opportunity to present
such evidence to prove that the evidence of guilt is strong or that
the accused suffers from any of those disabilities. Any evidence
presented during the bail hearing are deemed to be part of the
hearing on the main case.
Bail in Military Courts
There is no such thing as bail in military courts. This must have to
be understood in the light of the fact that these are military
persons charged with the military courts or what we know as
court martial for violation of military laws. These are not military
persons charged for common offenses charged with the regular
or ordinary courts. The reason why there is no need in court
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martial proceeding is because they are charged normally with
acts of disloyalty against the state. If for example, 1 brigade
committed mutiny against the republic and all of them are
charged, incarcerated or detained, if they will be granted bail,
one will be sure that they will commit the same mutiny. And
there is supposed to be a period of trial in a court martial
proceeding which is more speedy that our speedy trial case.
Standards for fixing bail
Sec. 9. Amount of bail; guidelines. – The judge who issued the
warrant or granted the application shall fix a reasonable amount
of bail considering primarily, but not limited to, the following
factors:
(a) Financial liability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when
arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required.
These are just standards. The courts will not be compelled to
grant bail using only those standards. They may be used as guides
and they may also be used as factors. But they are not the entire
list of factors that the court can use.
Now, the recommendations of bail would come first from the
prosecution. If you have seen an information filed in court, in the
bottom of that paper there is “bail recommendation”. If bail is a
matter of discretion, you find the words “no bail recommended”.
But if bail is a matter of right, there is that amount
recommended. Now the DOJ has placed it at P1,000 per year of
service for non-heinous offenses and P10,000 per year of service
for heinous offenses.
That is why it is always an example by analogy that if you slap a
minor, it should have been slight physical injuries or slander by
deed. What is the penalty for slight physical injuries and slander
by deed? Answer: 30days imprisonment or fine or both. So the
recommended bail if it were at 1000 per year is a thousand at
most. But if the case falls under RA7610, or the child abuse act
then that will be prision mayor. Prision mayor is 6years and 1day
to 12years multiplied by 10,000. That is 120,000. So the next time
you are about to slap a child or person, ask his age.
VIII. RIGHTS DURING TRIAL
Art III Section 14. (1) No person shall be held to answer for a
criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
be heard by himself and counsel, to be informed of the nature
and cause of the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However,
after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified
and his failure to appear is unjustifiable.
RULE 115 - RIGHTS OF ACCUSED
Section 1. Rights of accused at trial. – In all criminal
prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond
reasonable doubt.
(b) To be informed of the nature and cause of the accusation
against him.
(c) To be present and defend in person and by counsel at every
stage of the proceedings, from arraignment to promulgation of
the judgment. The accused may, however, waive his presence at
the trial pursuant to the stipulations set forth in his bail, unless
his presence is specifically ordered by the court for purposes of
identification. The absence of the accused without justifiable
cause at the trial of which he had notice shall be considered a
waiver of his right to be present thereat. When an accused under
custody escapes, he shall be deemed to have waived his right to
be present on all subsequent trial dates until custody over him is
regained. Upon motion, the accused may be allowed to defend
himself in person when it sufficiently appears to the court that he
can properly protect his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-
examination on matters covered by direct examination. His
silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against
himself.
(f) To confront and cross-examine the witnesses against him at
the trial. Either party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or can not with
due diligence be found in the Philippines, unavailable, or
otherwise unable to testify, given in another case or proceeding,
judicial or administrative, involving the same parties and subject
matter, the adverse party having the opportunity to cross-
examine him.
(g) To have compulsory process issued to secure the attendance
of witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by
law.
So now, after bail, you are now to be brought to trial. Section 14
of Article 3 provides the right of persons during trial. The rules of
court under Rule 115 provides for the same listing of rights
during trial. 2 differences are notable:
 In section 14 or article 3 first paragraph reiterates the due
process clause. This is to put emphasis on the fact that when
an accused is charged criminally, he is up against the entire
machinery of the state (People of the Philippines vs. the lone
accused). The state has all the resources; the accused only
has his resources. So the reiteration of the due process
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clause is not by accident, it is to put emphasis on the need of
due process more in a criminal case for or in favor of the
accused. Under the second paragraph there is a listing of
rights. But in Rule 115 there is the right to appeal which is
not found in the constitution. As we mentioned before, the
right to appeal is not a constitutional right. It is a statutory
right. But since it is given in certain cases, such violation will
largely be questioned as a violation of due process if not
afforded. Generally, there is no violation of due process
simply because there is no law or rule allowing appeal. But
since, again, there is the right to appeal in criminal cases in
the rules of court, all the way to the Supreme Court, to that
extent it becomes a violation of due process rights if such
appeal has not been afforded.
Right to free legal assistance
Art III Section 11. Free access to the courts and quasi-judicial
bodies and adequate legal assistance shall not be denied to any
person by reason of poverty.
Under the provisions, no person shall be denied free legal
assistance and free access to courts by reason of poverty. There is
no counterpart in the US Constitution with respect to these
rights. It is peculiar in the Philippines and indigent litigants are
now to prosecute cases or file their claims under what we know
in the procedural rules as the ______.This has been improved
because the free access and free legal assistance is not limited to
our regular courts but also includes quasi-judicial bodies.
You have gone through the entire Rules of Court provisions
respecting right to have free legal assistance which is also
protected with the right to counsel during trial. We have, first,
would be the appointment of the counsel de-officio, if a person
appears in court without a lawyer. We also have provisions on
the Limited Law Student Practice Rule. A law student who has
NOT 3 years finished his third year in lawschool may engaged in the practice
of law under the supervision of a lawyer. These are some of the
provisions in the rules which would give meaning to the right to
have free legal assistance and free access.
Presumption of innocence
Art III Sec 14 (2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, xxx
nd
The first right of the accused under the 2 paragraph of Section
14 would be the presumption of innocence. Of course, this is only
the prima facie presumption, not conclusive because the State
may, if it has met its burden of proving the guilt of the accused
also by prima facie proof shifts the burden of proving the
innocence or defending the innocence to the accused. The
prosecution has the primary obligation of proving the guilt of the
accused beyond reasonable doubt in order to overcome the
presumption.
As a matter of fact, in most disposition of criminal cases where
the accused is acquitted, the disposition of the court does not
relate to the fact that the accused is not guilty but that because
the presumption of innocence has not been overcome or that the
prosecution has failed to prove or overcome the presumption or
prove his guilt beyond reasonable doubt. The court is not in the
position to say that the accused did or did not commit it or that
he is not guilty of the offense per se because it is largely
dependent upon the amount of evidence presented by the
pp v pio? counsel de officio
appointment as counsel de officio continues in the logical proceedings (even until appeal)
until court revokes appointment
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
prosecution. The constitution however does not proscribe
Congress from legislating presumptions of liability or culpability.
Again, while there is a presumption of innocence, that is by
reason of the Constitution. Congress is not precluded from
legislating creating a presumption of liability provided that that
presumption is also prima facie. not conclusive otherwise it becomes
a BILL OF ATTAINDER
 A good example of that would be your presumption of
liability in falsification, Art 172 in relation to Article 171 of
the RPC. A person who introduces a falsified document in
any proceeding is presumed to be the author of the
falsification. Of course, that is a prima facie presumption.
 Also in your Law on Anti-Fencing, there is a presumption
that if the thing bought outside of the allowed public auction
or any legal means of sale or trading, the fact that the price
of the item sold is so disproportionate to its regular pricing,
there is a presumption that the person has known or should
have known that the item was fenced and therefore, he
could be liable under anti-fencing. Of course, that is a prima
facie presumption simply because the price of acquisition
was disproportionately lower than that of the regular
pricing.
Right to be heard personally or by counsel
If personally by himself, he has the right to present his evidence,
that’s why when you are going to be in litigation, in criminal
cases, that is always the dilemma on the part of the defense
counsel. The person of the accused may want to testify. Two
things come to mind. One, he has the continuing right to remain
silent so he may not testify. Secondly, he also has the right to
testify because he has that right to be heard in person. What if he
knows that he is going to perjure himself in testifying? Will you
present him as a witness knowing that he will perjure himself or
would you deny him his right to be heard in person because you
don’t want to be a participant to a perjuring testimony. So that
would be a moral dilemma. The problem is both are
constitutional rights of the accused and therefore, he must have
to be presented.
With the assistance of counsel, it is based on that old saying that
a lay person who wants ____ in law may be convicted not
because he is guilty but because he does not know how to defend
his innocence. Even the most, perhaps knowledgeable lawyer, if
he is the person subject of the case, the accused for that matter,
he may not be in the best objective position to defend himself
that’s why it is always suggested to get a counsel to represent
him. Again, because of the lack of objectivity that lawyer-accused
may not be able to defend his constitutional presumption of
innocence.
The duty of the court whenever an accused appears in court in
relation to his right to be heard and counsel is to inquire whether
he is represented by counsel. The Rules of Court requires the
judge to allow the person to secure the services of counsel if he
so wants. Of course if he does not want or he could not afford the
services of a regular counsel, the court is obligated to appoint a
counsel-de officio for him. The appointment of the counsel de
officio is mandated in order for the accused to be protected of his
right or his right will be protected during the trial of that criminal
case against him. In theory, the appointment of the counsel de
officio must depend largely on his experience, his field of
expertise as well as the complexity or nature of the case but in
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practice or in reality, new lawyers would normally get appointed
as counsel de officio because they are not too busy with any
other litigation anyway and there is not much possibility of
conflict of interest. A lawyer appointed as counsel de officio
cannot refuse the appointment unless for justified reasons.
Anyway, the counsel de officio appointed by the court can seek
payment for services rendered in the SC. The Rules of Court allow
counsel de officio to seek payment for his services. The court will
require you to submit a lot of documents and will pay you so less.
So might as well not claim from the SC.
The discussion with respect to right to counsel during trial and
right to counsel during preliminary investigation is the fact that
during custodial investigation or during investigation under
Section 12, the choice of counsel follows the phrase “ preferably
of the choice of that person investigated” which is not found
under Section 14. The distinction is explained by the fact that
under Section 12 there is yet to be any court case. The accused
has not yet been officially charged and the appointment of the
counsel is by the person investigating. The person investigating
must apprise the person investigated that he has the right to
counsel and that the right to counsel is preferably his own choice
and that if he could not afford a counsel then the state could
appoint one for him. That is to be apprised and to be extended by
the person investigating. Under section 14, the appointment is
made by a judge and that is already a court case or proceeding so
that any counsel for that matter assisting the accused as counsel
de officio will be performing his task under the supervision of the
court or of the judge. There is not much risk involve unlike in an
extra-judicial setting.
Right to be informed of nature and cause of accusation
The right to be informed, one of the more important rights of the
rights of the accused because this would define the validity of the
proceedings taken thereafter in the criminal case. Generally, if
there is no compliance of the right to be informed which is
complied during the arraignment of the accused in a criminal
case, no proceedings will be valid in the criminal case without
arraignment. Even a ____cannot be had if the accused has not
trial in absentia been validly arraigned. The right to double jeopardy cannot be
claimed if the first jeopardy did not attach simply because the
accused has not been arraigned in that previous or prior criminal
case. also meaningful transmission
The right of the accused to be informed is based on the need for
the accused to know what are the charges, or what is the nature
of the charges, which is basic. You have come across a lot of cases
where the person is arrested for one cause but is charged for
another. Accused is arrested perhaps of traffic incident or
violation but is eventually charged in the court for illegal
possession of firearms or prohibited drugs. So, the reason for the
arrest may not be the reason for the case.
The accused must have to be informed of this because of the
objectives. The court said, one, to furnish him of the charge in
order for him to prepare for his defense, two, for him to avail of
any conviction or acquittal from any further prosecution and
third, to inform the court of the sufficiency of the information, if
it warrants a conviction.
Now, just like in the recitation of the Miranda warnings in order
to grant him his Miranda rights, during arraignment there must
have to be meaningful recitation as well. So if the accused does
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
not speak the language or understand English, it must have to be
translated to him for him to understand what the nature of the
charges would be. Okay, if there is no valid arraignment there is
no valid proceeding thereafter. Based on your study or the review
on criminal procedure, if the accused does not enter any plea; a
plea of not guilty will be entered for him by the court, which was
what was done by Miss Janet Lim Napoles. She refused to enter
any plea for the crime of serious illegal detention.
Right to Speedy, Impartial and Public Trial
 IMPARTIAL TRIAL - When you say impartial trial, this goes to
the requirement of procedural due process. If you
remember, one of the first conditions for procedural due
process is that there must be an impartial court or tribunal
clothed with jurisdiction over the subject matter and of the
persons, of the parties to the case. The impartiality requires
that the court must not only be impartial but that also
appear to be impartial.
So you have your rules of disqualifications in the Rules of
Court, disqualification of judges in cases, as well as the
voluntary grounds for inhibition. That the disqualifications
are mandatory grounds while inhibitions are voluntary
ground. In order to avoid any semblance of partiality, you
know, some years ago, there was a big case in the SC where
the Chief Justice was Narvasa and one of the lawyers of the
accused engaged was the son of the Chief Justice. So if a
party or a counsel is related within the fourth civil degree of
affinity or consanguinity to the magistrate, that is a ground
for disqualification. So if you are not comfortable with this
judge, and you think there is that relationship, better hire a
lawyer who is related to the judge so that he or she will
disqualify himself.
The impartiality does not however prevent a judge from
participating in the trial while ideally the judge must be an
innocent by-stander to the parties to the case, the judge
must only rule on legal objections because the judge will
eventually hear and decide the cases. The judge is not
prevented from participating in the sense that the judge is
precluded from asking questions to clarify himself on certain
matters. Sometimes in the eagerness perhaps to ascertain
the truth will try to illicit responses or answers which would
not have been elicited by the counsel. So , how are going to
go about it? can you object to the judge? For example, the
prosecutor was asking questions, propounded on the
witness, on the elements of the crime. But the questions
were phrased and delivered that they were all objectionable,
the defense counsel successfully objected to them all, which
the judge sustained. So, nothing was elicited. And the end of
that, the judge would say, okay questions from the court,
and the court starts asking questions, leading questions at
that. Can you object to the judge asking leading questions?
While the Rules of Court does not state, the Rules of
Evidence does not state that you can or you cannot.
Prudence would dictate that you should at least. It will
appear on record that the matters were elicited not by the
counsels to the case but by the judge, which may show that
the judge may have been partial.
 PUBLIC TRIAL - The right to public trial simply requires that
the trial is open to the public so that the possibility of
impropriety in the conduct of the proceedings would be
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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
avoided. Of course, it does not require that everybody is
allowed to enter or observe, only so much as the court could
accommodate. Of course, the right to be there to observe
would be subject to the certain rules of decorum in the
court. The first has something to do with the dress code, the
way you are supposed to conduct yourselves. In fact, the
publicity of the trial, the requirement of the public trial does
not ordinarily allow it to be subject of, where pictures are
taken, video recordings are made. It has to be by reason of a
court-allowed taking of these photographs and video
recording. What comes to mind perhaps was that trial of
Estrada in the plunder case where he had to ask permission
from the SC, and the rule has been establish that there
should be no live screening of the proceeding because it will
violate the right of the accused, generally, to due process
because it might sway the public opinion of his guilt or
innocence. It can be recorded for purposes of keeping the
recording as part of the legal history, but it cannot be
recorded and viewed publicly as it were in other proceedings
in other branches of government.
The publicity of the trial however allows the exclusion of
the public under your Rule 119 of the Rules of Court If the
nature of the testimony is delicate, or is offensive to decency
or public morals. The public can be excluded also in the
same provision, Section 21 of Rule 119, if the accused
requests that the public be excluded and the Rules of Court
does not require any reason. Ayaw lang ng accused. Anyway
the publicity of the trial is his right. He does not want any
public trial and so be it. the court can exclude the public.
Section 21. Exclusion of the public. — The judge may, motu
proprio, exclude the public from the courtroom if the
evidence to be produced during the trial is offensive to
decency or public morals. He may also, on motion of the
accused, exclude the public from the trial, except court
personnel and the counsel of the parties. (13a)
The last one there is when, in relation to child witnesses.
Child witnesses are supposed to be protected from the
publicity of the trial because of its effect on them. Therefore,
the public may be excluded. There is even a Special Rule For
Some Child Witnesses whenever they are not comfortable
testifying in the court. There is supposed to be a video
conferencing procedure. It used to be in one of our courts
here in Branch 12 which is a Family Court, but I don’t think
that the system is working.
 SPEEDY TRIAL - Now the last right there is the right to
speedy trial. The right to speedy trial is characterized as one,
which is free from capricious, oppressive, or inordinate
delay. That is theory behind, or the characterization of what
a delay is to constitute a violation of such right.
This right to speedy trial is often confused if not
distinguished from the right to speedy disposition of cases
because both follow what is known as the Four-fold test or
Four-fold factor. The reason for the delay, the length of the
delay, the assertion or non-assertion of the right, meaning
the right to speedy trial or the right to speedy disposition of
cases, and the prejudice that it has caused and the delay has
caused on the party claiming it. It is not the length of time
that is measured for purposes of determining whether there
is violation of the right. This four-fold test or factors will
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
have to be considered and the court must have to balance,
that between the right of the accused and the right of the
offended party.
Now the distinction or confusion with respect to, in relation
to right to speedy disposition of cases is when is this or are
these rights claimable. Correctly understood, right to speedy
trial will only be claimable by the accused in criminal cases.
No other person can claim, not in any other proceeding. The
right to speedy disposition of cases however is claimable by
any party in any proceeding.
That was part of the ruling in the case of Cocofed vs.
Republic, 2012 case, which involved a civil case.
Cocofed claimed that for almost 20 years, the Republic
which filed a civil case for forfeiture of ill-gotten wealth
has not presented its evidence because of some delay
brought about by certain petitions or actions taken
after the main case was filed. SC said the right to
speedy trial is not claimable in civil cases, it is only
claimable in criminal cases. It is only claimable by the
accused and not by any other. The right that should
have been invoked is the right to speedy disposition of
cases because it can be claimed in any proceedings and
it could be claimed by any party.
Also, the distinction lies in the fact that right to speedy trial
is claimable because of the delay when the criminal case is
filed up to the time the prosecution rests its case. So if there
is that delay, the right to speedy trial can be claimed. Its not
even from the start of the filing of the criminal case up to
the time the defense rests because it is only up to the time
the prosecution should have rested its case. Speedy
disposition of cases does not involve the time elapsed from
the filing to the submission of the case for decision in that
same criminal case. If we were to make an example of that
criminal case mentioned, the right to speedy disposition of
cases would refer to the period of time before the filing of
the information in court, meaning the time the complaint is
filed and the time the information is filed upon the finding of
probable cause or from the time the defense rests up to the
time the court renders its decision.
 So in the spectrum of a criminal case, for example,
when the complainant files his case with the
investigating office up to the time that investigating
office finds probable cause or dismisses the case , right
to speedy disposition of cases can be claimed in that
time span.
 When the information is filed eventually up to the time
that criminal case is submitted for decision, right to
speedy trial can be claimed, the right to speedy
disposition of cases cannot be claimed in that time
span.
 It can be claimed again when the case is now submitted
for decision up to the time the case is eventually
decided, right to speedy disposition of cases can be
claimed.
That’s why in some cases where the right to speedy
disposition of cases has been granted, perhaps one of
the more familiar case with you would be the case of
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Duterte vs. Sandiganbayan where the criminal
complaint for the violation of R. A. 3019 was filed
against them, it took the investigating office, the Office
of the Ombudsman sometime to find probable cause
against them. So that when the information was
eventually filed, they have sought the dismissal of the
case on the ground of violation of right to speedy
disposition of cases which the SC granted. Again,
because the delay in the filing of the case in the court
by the ombudsman has been characterized as
oppressive and or inordinate delay. The rationale
behind is simple. When a criminal complaint is filed with
the investigating office to find probable cause for the
filing of the information in the appropriate court, the
investigating office does not preside the case to find
guilt beyond reasonable doubt. The task or job of the
office is just to determine whether there is a well-
founded belief to engender the filing of the case in court
or probable cause. So, why should it take them so long
to file the case in court against the accused. So if the
reason is because of the failure of that office to resolve
it, then there is a violation of the right to speedy
disposition of cases.
For the time that the case is submitted for decision up
to the time the decision is rendered, while the right to
speedy disposition of cases may be claimed, it does not
necessarily operate to acquit the accused or will have
the case dismissed. There may be some delay, it may be
inordinate, there may be a violation of that right but
the liability rests upon the person or magistrate who is
tasked to issue the decision. It should not affect the
rights of parties simply because there was delay in the
promulgation of the decision. Know that both parties
have already presented their evidence in full, there is
nothing much that they could have done except for the
court to render its ruling. So that there is a difference in
the appreciation and grant of the right with respect to
the effect if you were to view it at the period or time
elapsed or span before the criminal information is filed
and with that other time span in our spectrum when
the case has already been submitted for decision. If
there is nothing much that the parties can do because
the case has already been submitted for decision, the
right to speedy disposition of cases may not necessarily
be granted and even if granted, may not necessarily
mean the acquittal of the accused or the dismissal of
the criminal case.
Right to confront witnesses
Okay. The next right of the accused is the right to confrontation.
To meet the witnesses face to face this is usually satisfied when
the accused has cross-examined the witness.
There are two reasons why the witnesses must have to be cross-
examined not only in criminal cases, not only for the accused, but
generally in cross-examination of witnesses. One of the basic
rules in _____of evidence is that evidence to be believable or
credible must not only be credible by itself but must also come
from a credible witness. So the two basic reasons why
confrontation is required:
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
1) For the accused to be able to test the credibility not
only of the story but also that of the witness
2) For the judge to observe the demeanor of the witness,
to assist or guide the judge in determining the
credibility of the witness as well as that of the story.
Of course, these are subject to certain exceptions. For example,
we all know that in the preliminary investigation stage of a
criminal case, the right to cross-examine is not given. Even the
investigating prosecutor would conduct clarificatory hearing, the
accused, at that time respondent, does not have the right to
cross-examine the witness. During clarificatory hearing, if you are
the respondent, you have a question to the complainant, how do
you propound it? No, you cannot ask questions. No, you can, but
you have to course it to the investigating officer. You could not
directly ask the complainant or the witnesses of the complainant
because the right to cross-examine does not exist during the
preliminary investigation stage of a criminal case.
Right to secure attendance of witnesses
Okay, the next would be the right to compulsory process. The
right to secure attendance of witnesses or compulsory process is
granted to the accused because the state or the prosecution has
no problem with respect to its witnesses or documentary
evidence. If the prosecution would want the police officer in the
fire and explosive division or unit before to testify on the
examination made or the ballistic examination made, and even if
he is coming from Camp Crame in Quezon City, the State has all
the money and resources to bring that person here to testify
,even in Davao City. Same with certain experts in the NBI, you
have your QED or Question ___ Division. If you have some
evidence to prove that the signature has been falsified, you just
send the falsified signature in that document and other specimen
signature contemporaneous with that. The NBI QED will do the
examination for you and fee is not required to determine
whether or not that question, signature in that document is
falsified or not falsified. And if you want that person to come for
the prosecution, with all the State resources, those witnesses
can.
The problem is with the accused. The accused does not have, may
not have all the resources to bring his witnesses in court. So the
accused has the right to compel attendance of witnesses in his
favor. However, that right will only allow him to ask a judge to
issue a subpoena to compel that person to testify. That right does
not grant him free access to these persons to testify for him. The
accused may have to pay for the expenses, which his right, under
the constitution does not provide. That’s why it has always been
said that ordinarily, justice in the Philippines are for those who
could afford it. To some extent it is true, simply because even if
there is the right to compulsory process, his right is only up to the
court issuing a subpoena.
Rule 21 Subpoena Section 10.Exceptions. — The provisions of
sections 8 and 9 of this Rule shall not apply to a witness who
resides more than one hundred (100) kilometers from his
residence to the place where he is to testify by the ordinary
course of travel, or to a detention prisoner if no permission of the
court in which his case is pending was obtained. (9a, R23)
The subpoena efficacy in the Philippines follows the 100 km rule.
Before it followed the 50 km radius rule, now it is 100 km in the
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ordinary course of travel. So, if the person or witness to be
presented by the accused is outside of that 100 km in the
ordinary course of travel, that person can refuse the lawful
subpoena. Refusal of the subpoena without justifiable reason is
punishable by contempt. It is considered a contumacious
behavior to disobey a lawful subpoena.
Also, the rules may require you to advance the fees and expenses
of the person to testify. If the accused does not have that money
say, for the fees and the expenses, the witness may refuse to
honor the subpoena. The right of the witness to honor the
subpoena is referred to as the Viatory Right of the witness. In one
bar exam, that had been asked. What is the Viatory Right of a
Witness.
Rule 119 Section 14. Bail to secure appearance of material
witness. — When the court is satisfied, upon proof or oath, that a
material witness will not testify when required, it may, upon
motion of either party, order the witness to post bail in such sum
as may be deemed proper. Upon refusal to post bail, the court
shall commit him to prison until he complies or is legally
discharged after his testimony has been taken. (6a)
There is Section 14 of Rule 119, if a witness whose testimony is
material to the case refuses to testify, he can actually ask for a
___ warrant meaning ask the court to issue a warrant to arrest
that person in order for that person to testify in a case. And Rule
114 allows that person to post bail, if he has been arrested as a
material witness or if he cannot post bail he should be
incarcerated until he testifies. My worry is that if you would
follow this process, this person is not willing to testify for you,
you know that he is material to your defense, you had him
arrested, and when he is incarcerated and then he testifies, my
worry is that he might not testify in your behalf. So that would be
the problem if you have a material witness arrested under Rule
114. You will never know what he is going to testify of. Even if
you were allowed to ask leading questions because that witness
may be hostile already, you might not be able to elicit favorable
responses for your defense simply because he does not want to
help you..
Trial in absentia
Rule 115 sec 1(c) To be present and defend in person and by
counsel at every stage of the proceedings, from arraignment to
promulgation of the judgment. The accused may, however, waive
his presence at the trial pursuant to the stipulations set forth in
his bail, unless his presence is specifically ordered by the court for
purposes of identification. The absence of the accused without
justifiable cause at the trial of which he had notice shall be
considered a waiver of his right to be present thereat. When an
accused under custody escapes, he shall be deemed to have
waived his right to be present on all subsequent trial dates until
custody over him is regained. Upon motion, the accused may be
allowed to defend himself in person when it sufficiently appears
to the court that he can properly protect his right without the
assistance of counsel.
In order to leave the disposition of criminal case, the presence
and absence of the accused and in order not to make mockery of
judicial system on the reason of absence of the accused, the rules
allow a possibility that the accused may be convicted provided
four conditions are complied:
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
(1) First, there must be a valid arraignment.
(2) Second, the accused must be notified.
(3) Third, the accused is absent.
(4) Fourth, the absence is not justified.
There are two situation contemplated.
 One, after the arraignment and there is setting because
under our rules now there is schedule preliminary
conference where the dates of trial are already agreed upon
by the parties and in fact no further postponement are
allowed unless justified. On the particular trial date, the
accused is absent. Can the prosecution proceed to present
evidence? If the conditions are present that because he was
notified and not justified, then the prosecutions may
proceed, for the trial date, trial in absentia.
 The second situation contemplated, the accused jumps bail
or escape detention during trial in which case, trial in
absentia can be had because of those events or occurrences
and there is no need to prove the absence is unjustified nor
that he has been duly notified because he has place himself
beyond the notification process or obligation of the court
simply because he has jump bail or escape detention. In that
situation then the case can proceed for the entire duration
provided the condition are met. Before that date, the
accused must be validly arraigned.
Now the next question asked is what would be the effect of trial
in absentia or the absence of the accused of his rights during
trial? Some commenters would says there should be no effect
even if there is in criminal law that flight is indicative of guilt and
because the accused jumps bail that presumption of innocence is
overcome.
What other rights? Rights to be heard personally that is waived
but the right to be heard with counsel is not affected. The
counsel whether____ or ex-officio must have to perform this
obligation to defend the rights of the accused even if under the
trial in absentia, the lawyer cannot refuse to render this work or
perform his task for reason that his client is no longer here
because he is obligated as an officer of the court. The right to be
informed has been done.
The right of speedy trial, perhaps it is not affected nor waived
even if he is absent or trial in absentia, the prosecution must have
present its evidence consistent with the right of speed trial.
Impartial trial of course there are not affected. The right to
confront witnesses, personally that is waived but with his counsel
that is not waived because he can conduct cross- examination to
test the credibility of the witnesses. Right to secure the
attendance of the witnesses that is not waived. Now, because we
said that the right of appeal is not constitutional right, there has
already been a decision the accused right of appeal is waived if he
is in trial in absentia and the promulgation is in absentia and he
has failed to reappear or place himself under jurisdiction of court
within 15 day period.
When presence of the accused is a DUTY
(1) Arraignment and plea, whether of innocence or guilt (Rule
116 Sec 1b)
(2) During trial, for identification
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 CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

(3) Promulgation of sentence, unless it is for a light offense, in the person cannot refuse to take the witness stand, it can only
which case accused may appear by counsel or a claim the privilege once incriminating is asked.
representative (Rule 120 Sec 6)
As also mentioned last night, this is waivable and does not need
any other special on waiver as it is under sec. 12 where waiver
IX. PRIVILEGE AGAINST SELF-INCRIMINATION must be in writing and with assistance of counsel. Here, once an
incriminating question is asked and answered then it is an
automatic waiver. There must be refusal to answer the question
Art III Section 17. No person shall be compelled to be a witness
if it is thought to be incriminating. In real practice when the
against himself.
person is testifying there is supposed to be a little time lag. You
always tell your witness do not answer immediately give some
The privilege against self-incrimination is based on two grounds:
time lag for a lawyer to interpose an objection.
 on the ground of public policy - Public policy is because if
Transactional Immunity vs Use Immunity
there was no right or privilege of self-incrimination, it would
place the person investigated to commit perjury There are some situation where a person may not be able to
 on the ground of humanity - humanity because this is refuse a subpoena testify particular matter under investigation
constitutional bar to prevent extortion of confession or and a person may be compelled to testify even the question is
admission. incriminating. In our system that is allowed provided there is a
legal excuse for the person for any liability even if he has
The scope of coverage – applies only to compulsory testimonial provided an answer and what we call as immunity provision. The
self-incrimination. This refers to use of physical or moral immunity provision is either transactional or use immunity.
composure to exact testimonial evidence. This is nothing to do
with any or other form of evidence which does not involve an oral  TRANSACTIONAL IMMUNITY - pertain to the immunity from
confession or admission. persecution as agreed between the one investigating and
the one investigated. And there is agreement that the
But because of jurisprudence, there has been inclusion of non- person will never be prosecuted despite the incriminating
verbal responses to be included under the privilege provided it
then he will not be prosecuted in relation to the crime being
would require the use of intelligence:
investigated.
 The most popular is the handwriting before the idea of
Art XIII Section 18. The Commission on Human Rights shall
handwriting is use for falsification of document is considered
have the following powers and functions: (8) Grant
as mechanical act. Requiring the person of his handwriting
immunity from prosecution to any person whose testimony
or signature for purposes comparison is not included in the
or whose possession of documents or other evidence is
privilege but subsequently the Supreme Court said it is
necessary or convenient to determine the truth in any
because when one person gives a specimen even a copy uses
investigation conducted by it or under its authority;
the intelligence to do so.
REPUBLIC ACT No. 1379 AN ACT DECLARING FORFEITURE IN
 The other is the re-enactment of a crime, when a crime is re-
FAVOR OF THE STATE ANY PROPERTY FOUND TO HAVE BEEN
enacted by the suspect supposedly covered by the privilege,
UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR
the person of the accused may refuse on the ground of self-
EMPLOYEE AND PROVIDING FOR THE PROCEEDINGS
incrimination.
THEREFOR.
Correctly understood the incriminating question or the right of
Section 8. Protection against self-incrimination. Neither the
privilege of self-incrimination is objectionable if the answer to the
respondent nor any other person shall be excused from
question is incriminating. We say incriminating when the answer
attending and testifying or from producing books, papers,
will subject the person to a criminal liability which results to a
correspondence, memoranda and other records on the
penalty. If the answer to the question may be against the interest
ground that the testimony or evidence, documentary or
but does not subject the person to any criminal liability that is not
otherwise, required of him may tend to incriminate him or
covered by the privilege.
subject him to prosecution; but no individual shall be
prosecuted criminally for or on account of any transaction,
As we have mention last night, the privilege in sec. 17 is capable
matter or thing concerning which he is compelled, after
on any proceeding, by any person, once the incriminating
having claimed his privilege against self-incrimination, to
question is asked, the right is claimable. In the case of the
testify or produce evidence, documentary or otherwise,
accused however, he has because it has the continuing the right
except that such individual so testifying shall not be exempt
to remain silent, he is treated specially with respect to the silence
from prosecution and conviction for perjury or false
in fact you cannot compel the accused to take the witness stand
testimony committed in so testifying or from administrative
because it is his continuing right in relation to the privilege itself.
proceedings.
And when he takes the witness stand, the accused cannot be
cross examine on any other important matter except on those
Republic Act No. 6832 AN ACT CREATING A COMMISSION TO
matter taken during direct examination, there is a strict rule on
CONDUCT A THOROUGH FACT-FINDING INVESTIGATION OF
cross examination on accused because it is to protect from any
THE FAILED COUP D′ÉTAT OF DECEMBER 1989
incriminating answers. For the rest of the witnesses in any
proceeding on that matter including administrative proceedings,

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Section 8. Immunity from Criminal Prosecution. – The
Commission is authorized to grant immunity from criminal
prosecution to any person who provides information or
testifies in any investigation conducted by it where, upon its
evaluation, such information or testimony is necessary and
vital to the investigation. The immunity thereby granted
shall continue to protect the witness who repeats such
testimony before the appropriate court when required to do
so by the latter. Should he refuse to repeat such testimony,
the immunity granted him shall cease.
Most common situation perhaps too easy to understand is
when the accused turns into a state witness. Under the rules
of court when there is no direct evidence and there are
several accused, the one is not the most guilty whose
testimony is material for the conviction of the rest can
become a state witness. The rules requires that you execute
a sworn statement of a propose testimony for the court to
appreciate whether to charge you as a state witness. Once
the person is admitted as state witness and performs an
undertaking which is to testify in a case, because if he will
not testify it will not resolved him being acquitted. But if he
eventually testifies as part of his condition then he cannot
longer be prosecuted and thereafter found guilty for an
offense he is charged. That is an example of transactional
immunity.
 USE IMMUNITY - The other immunity which is limited in
character is used and fruit immunity as the term suggest
whatever evidence that a person has given cannot be used
against him nor the fruits of the statement that he was
compelled to give but if there are other evidence that could
be use against him not those provided and the fruits he had
given, he can nevertheless prosecuted by the state. This
provision of immunity makes applicable in inquiries in aid of
legislation. So if a person is called and he is going to testify
he can invoke his privilege against self-incrimination. If there
is no immunity given to his testimony then he will no longer
be compelled to testify. Of course the investigating body can
grant some form of immunity for the answer to the question
which may be incriminating.
Being admitted under witness protection program does not mean
that you are automatically become a state witness. Part of the
witness protection program law requires witnesses to testify in
criminal cases where there testimony is material for the
prosecution of suspects and there eventual conviction.
X. RIGHT TO SPEEDY DISPOSITION OF CASES
Art VIII Section 15. (1) All cases or matters filed after the
effectivity of this Constitution must be decided or resolved within
twenty-four months from date of submission for the Supreme
Court, and, unless reduced by the Supreme Court, twelve months
for all lower collegiate courts, and three months for all other
lower courts.
(2) A case or matter shall be deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or
memorandum required by the Rules of Court or by the court
itself.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
(3) Upon the expiration of the corresponding period, a
certification to this effect signed by the Chief Justice or the
presiding judge shall forthwith be issued and a copy thereof
attached to the record of the case or matter, and served upon
the parties. The certification shall state why a decision or
resolution has not been rendered or issued within said period.
(4) Despite the expiration of the applicable mandatory period, the
court, without prejudice to such responsibility as may have been
incurred in consequence thereof, shall decide or resolve the case
or matter submitted thereto for determination, without further
delay.
Art VII Sec 18. Xxx The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty
days from its filing.xxx
Art IXA Section 7. Each Commission shall decide by a majority
vote of all its Members, any case or matter brought before it
within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this Constitution
or by law, any decision, order, or ruling of each Commission may
be brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof.
Right of disposition of cases, we discuss that already last night.
XI. SUBSTANTIVE RIGHT UNDER THE DUE PROCESS CLAUSE
What acts cannot be criminalized
1) Mere belief of aspirations (Art III sec.18 (1)) - No person shall
be subjected of penalty on account again it should follow the
same belief action test in freedom of religion for so long as it
is ___ that remain in the ___ of the mind, it cannot be
regulated nor could be penalized but if it is converted into
overt acts, this overt acts can be subject of regulation
including imposition of penalties for purposes. This was the
basis for decriminalization of anti-subversion law.
2) Debts and Civil Obligations (Art III Sec 20) - non
imprisonment of non-payment of debts and civil obligations.
Section 20. No person shall be imprisoned for debt or non-
payment of a poll tax.
This provision is anchored on personal liberty by prohibiting
the practice either sending the debtor to jail or making the
debtor personal slaves for failing to pay the debts. But it
must be clear that this has something to do with purely civil
debts, if you notice that in our Revised Penal Code there is a
provision which requires a subsidiary imprisonment of a
convict for non-payment of fine. The imposition of a fine is
not a civil debt. It may be a monetary obligation it belongs to
state as a form of penalty after due process in a criminal
case and the court decrees a judgment that the fine is not
paid then there is a subsidiary imprisonment. That is not
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imprisonment for non-payment of debts. Also civil debt does
not involve fraud, if there is criminal fraud, it may be
punishable just like estafa, Bp22..etc..
3) Acts which when done were innocent (Ex Post Facto Laws)
(Art III Sec 22)
Section 22. No ex post facto law or bill of attainder shall be
enacted.
Now this ex post facto law and bill of attainder involves
retroactive application of the law. The common
characteristics of both is that they applied retroactively so
there are traditionally six situation on ex post facto law, the
common denominator is that they are applied retroactively.
If they apply prospectively, it is not considered ex post facto.
So when a newer law criminalize an act which done when
innocent it becomes ex post facto because it was done
innocent. If it aggravates the crime or increases the penalty
or it requires less evidence or conviction are considered as
ex post facto law.
Bill of attainder traditionally refers to the legislative
adjudication of guilt without the need of judicial trial and the
penalty imposable is death. If it is less than death it is called
bill of tains(?). but in our country it refers to both whether
the resulting penalty is death or less than death. So what the
law provide is that it defines an act to be criminal provides
for liability imposes penalty without the need of judicial
hearing. Meaning, it is legislative determination of guilt as
we mention in the presumption of innocence, Congress is
not precluded from enacting a law providing for a prima
facie presumption of liability because it can be overcome by
evidence. But if presumption is conclusiveness, that is
considered as bill of attainder. Just like ex post facto, the bill
of attainder applies retroactively.
Remember the case of Bureau of Customs employee vs. sec.
of finance Tevez on the attrition law? The argument is that
the attrition law is a bill of attainder because it defines
certain misgivings and eventually serve as their dismissal
because the attrition law provides well benefits if the target
is met but if the target is not met they eventually be
dismissed. The SC said it is not bill of attainder because it is
not applied retroactively. When the law is applied
retroactively there is no escape from any liability that should
make the bill of attainder, the resulting penalty. Secondly, it
is not bill of attainder because while the law provides for the
targets for collection and eventual resulting from dismissal of
service. The SC said analyzing the law including the rules
issued by the secretary to promulgate the law provides for
______, there is no judicial or legislative determination of
their liability.
What punishments cannot be imposed
1) Involuntary servitude
Section 18. (2) No involuntary servitude in any form shall
exist except as a punishment for a crime whereof the party
shall have been duly convicted.
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Involuntary servitude was abused on 13 amendment of the
US Constitution which abrogated slavery. The constitution
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
however allows the involuntary servitude on the situation.
One, one declaration of principle on defense of the state, all
citizen may be compelled military or civil service. Second is
that the servitude is on account of upon order of the court.
Normally it is the sanction after criminal conviction so
accused is made to render service.
2) Excessive fines
Section 19. (1) Excessive fines shall not be imposed, nor
cruel, degrading or inhuman punishment inflicted. Neither
shall the death penalty be imposed, unless, for compelling
reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be
reduced to reclusion perpetua.
Excessive fines the characterization of excessive fine is not
measured on the amount imposed per se but rather on its
gross disproportionally on the amount of the fine with
respect to the act or the violation.
A good example as mentioned last night is the intents of the
law for special class of victims or special cases of interest, we
mention about the slapping of a child where to be under the
Revised Penal Code, slander by deed or physical injury but if
it under RA7610 on child abuse then imprisonment is prision
mayor but the intent to blow that is intent to protect a
special class or special situation. When a fine is imposed in
certain situation where the congress has special interest in
order to give some protection. The common here is the Price
Control Law, are we still have the price control now? We
have price control in times of certain emergencies where the
state can imposed sanction for violation of this supposed
standard retail pricing.
3) Cruel, degrading and inhuman punishments
Same thing with the inhuman or cruelty punishment, cruelty
does not mean that is the very thing of the penalty. Death is
the most severe. There is nothing more severe than that but
the manner which the death may imposed as will define
cruel, degrading.
4) Indefinite imprisonment
The Protection against Double Jeopardy
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a law
and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
TWO SITUATIONS CONTEMPLATED IN SEC 21, PROTECTION
AGAINST DOUBLE JEOPARDY.
1. Same Act Rule - the act must have to be punished both by a
statute and an ordinance. A conviction or acquittal or
dismissal of charges in one bars the prosecution of the
other. So, the point of consideration is the act and not the
punishing law per se because if that act is punishable by a
statute or an ordinance then the same act rule shall operate
if the first jeopardy attached in either of the cases filed.
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2. Same Offense rule – the more discussed aspect or situation
contemplated in double jeopardy protection. The act is
punishable by the same statue or different provisions of the
different statutes but nevertheless defined as criminal by
the same legislative body. It is not by a statute which is
promulgated by congress and an ordinance which is issued
by legislative council.
In the same offense test, invariably, the Supreme Court has
discussed that they have several conditions for it to be
claimable but technically speaking, there are only two.
 the first jeopardy must have attached
 the second case filed is the same as that of the first
case filed where the first jeopardy already attached.
RULES OF COURT PROVISIONS
Rule 117 Section 7. Former conviction or acquittal; double
jeopardy. — When an accused has been convicted or acquitted,
or the case against him dismissed or otherwise terminated
without his express consent by a court of competent jurisdiction,
upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after
the accused had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall be a bar
to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in
the offense charged in the former complaint or information.
However, the conviction of the accused shall not be a bar to
another prosecution for an offense which necessarily includes the
offense charged in the former complaint or information under
any of the following instances:
(a) the graver offense developed due to supervening facts arising
from the same act or omission constituting the former charge;
(b) the facts constituting the graver charge became known or
were discovered only after a plea was entered in the former
complaint or information; or
(c) the plea of guilty to the lesser offense was made without the
consent of the prosecutor and of the offended party except as
provided in section 1 (f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or
serves in whole or in part the judgment, he shall be credited with
the same in the event of conviction for the graver offense. (7a)
The further discussion would be when is the first jeopardy has
attached? That is where the most of the conditions are invariably
cited.
a) There must be an information sufficient in form and
substance to allow a conviction.
b) It must be have to be filed with a court of competent
jurisdiction.
c) The accused must have been validly arraigned and therefore
must have entered his plea validly.
d) Lastly, the accused must have been convicted or acquitted
or the case against him was dismissed without his express
consent.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
So, the first jeopardy is considered attached.
Now, if another case is filed for that the same offense, meaning a
second case is filed as that of the first, then double jeopardy can
be made. As we have said before, there is no equivalent ground
to dismiss or quash an information in criminal cases as that of the
civil cases on litis pendentia. When there is another pending
criminal case in another court where the first jeopardy has not
yet attached, the accused cannot claim protection against double
jeopardy. There may have been cases that the court has
reconstrained to dismiss a second case filed because of the
pendency of the first; but again, to be safe about it for so long as
the first jeopardy had not attached, the claim or the protection of
double jeopardy in another case could not properly be made.
The same offense test follows:
1) literally, the second case is the same as that of the first. or
2) The second case is an attempt of the first. or
3) The second case is a frustration of the first. or
4) The second case necessarily includes the first, meaning some
of the elements in the second charge constitute the
elements in the first charge. or
5) The reverse of that, the second is necessarily included in the
first case, meaning some of the elements of the first case as
charged constitute the elements of the second case as
charged.
6) Last, which is by rule, when there is a proper and valid enter
of plea of guilt to a lesser offense. That last instance would
require in the present rules that the prosecution both the
public and private, unless - must have consented.
One of the questions normally asked during pre trial in
criminal cases, what is the effect if the private complainant
does not appear? Would the case be dismissed because the
rule in civil cases is that when the plaintiff does not appear
in pre trial for any justifiable reason, the defendant can
cause the dismissal of the civil complaint by declaring the
plaintiff to be declared as..what? Can the civil case be
dismissed if the plaintiff does not appear during the pre trial
of a civil case? Now in criminal cases, the only effect is that
if there is a plea bargaining, the consent of the private
offended party need not be secured, it would only be the
consent of the public prosecutor. So, if the public prosecutor
agrees to the plea bargaining then it will be valid provided
the second condition is also satisfied, that the lesser offense
is necessarily included in the offense charged. Prior to the
amendment of the present rules, plea of guilt to a lesser
offense does not require that the lesser offense is
necessarily included in the offense charged. You are charged
for homicide you can plea guilty to other deceits, that is
possible before. Now, the lesser offense need to be
necessarily included in the offense charged. If you are
charged with murder, can you plead guilty to physical
injuries? Is physical injuries necessarily included in the crime
of murder? Yes, they are of the same species. But you
cannot plead guilty to theft. Robbery, can you plead guilty to
a lesser offense of theft? Value of goods is 100 na lang?
Same species. If these two conditions are met, then the plea
of guilt to a lesser offense is supposed to be valid and the
accused cannot be charged again or in the second case for
the original charge filed by the prosecution.
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The exceptions are:
1) When there is supervening event. The graver offense has
developed due to a supervening fact. The supervening fact is one
which has developed after the first jeopardy has attached.
If the accused has been charged earlier for attempted
homicide, and he pleaded guilty, and sentenced accordingly
but by reason of the same injuries the victim eventually
died. Can he be convicted of consummated homicide this
time because there is supervening fact which is the
occurrence of death.
However, a situation in one case where the SC did not
appreciate the supervening fact exception was that the
victim was mauled by the accused and the victim underwent
medical examination and was in fact hospitalized. The initial
finding of the medical doctor was that recovery will be not
more than ten days. So the accused was charged with slight
physical injuries. The accused pleaded guilty and sentenced
accordingly. The victim, however, was not able to recover
even after the lapse of ten days and so a more thorough
medical examination was conducted and it was found out
that the victim suffered concussion in the brain which if there
was no timely medical intervention could have resulted to his
death. So, the accused was charged again for the same
incident of mauling this time for frustrated homicide. Can he
be charged with violating the protection against double
jeopardy? The SC said no because it will violate his protection
because the graver offense was not a supervening fact. The
graver offense was already there though not discovered. So,
which gave way now to the second exception wherein the
rules now provide:
2) The facts which constitute the graver offense became known
or discovered only after the filing of the previous case. So even if
it was not a supervening fact but it was only discovered after the
first jeopardy attached, the accused could be charged for the
graver offense.
3) The third exception is that when there was invalid plea of guilt
to a lesser offense. So the accused can be charged with the
original charge even if there was a plea of guilt to lesser offense
because that plea of guilt to a lesser offense was not valid.
Motions for reconsiderations or appeals
There is a 2012 case that case of Ysidoro vs Leonardo-de
Castro. This was a Justice Brion decision. Ysidoro was
charged in SB for violation of RA 3019, Anti-graft and corrupt
practices act. SB acquitted him for failure of the prosecution
to __ (25:25) one element of the crime. The private offended
party filed a petition for certiorari under Rule 65 questioning
the acquittal by the SB. SC had the occasion to discuss the
options in criminal case that would be taken if there is
decision by the trial court and the court mentioned of three
options:
1) Ordinary appeal – normally involves factual and legal
issues. The issue is on the propriety of the decision
although the decision is considered intrinsically valid
although there is an error in judgment.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
2) Petition for review under rule 45 – normally involves
questions which are legal in character; correct
application or interpretation of a law based on an
admitted or an uncontested set of facts.
3) Petition for certiorari under rule 65 – question on
jurisdiction. The issue is always about jurisdiction
regardless of validity of the decision. It is not a question
on appreciation of evidence. It is not a question of
application or interpretation of the law. Rather, it is a
question whether or not the court has authority to
decide a case at the onset.
When the judgment in a criminal case is one of acquittal,
ordinary appeal and rule 45 are not available because it will
violate the double jeopardy protection. What is available on
the part of the private offended party or the prosecution is
rule 65, question of jurisdiction, but only when (1) one,
there is grave abuse of discretion because the court has no
jurisdiction or (2) the prosecution is denied of due process.
Absent any showing, even if there is error in judgment, it
does not allow the court to reverse the ruling based on rule
65 petition. So, SC here said that the petitioner here could
not seek a reversal of decision of acquittal based on rule 65
because there is no grave abuse of discretion.
Dismissal with consent of the accused, There are two situations
contemplated:
1) When the accused invokes his right to speedy trial. Of
course, the dismissal is with his consent because he was the
one who moved to dismiss the criminal case on account of
the violation of his right to speedy trial. If the court grants
his motion to dismiss based on such violation, it is considered
an acquittal. There can be no review of that unless it is under
rule 65 otherwise it will violate double jeopardy protection.
2) When the court grants the accused of demurrer to evidence.
Under your rules of criminal procedure, within 5 days from
the time the prosecution rests the defense can ask for leave
or move for leave to allow him to file demurrer to evidence.
Literally it means to take exception from the prosecution’s
evidence arguing that even with the amount of evidence the
prosecution has presented the prosecution has failed to
prove his guilt by proof beyond reasonable doubt. Under
your rules, within ten days from the grant of the leave, the
accused may file his demurrer. So it is suggested in the rules
that once you file your motion for leave you attach your
demurrer already so the court will have opportunity to
examine your arguments in your demurrer whether or not to
grant the leave. If the court grants it, it is considered
adjudication on the merits, it is an acquittal. There can be no
reconsideration sought unless again it is based on
jurisdictional error. It was without jurisdiction, the court
which has granted demurrer to.
In those two occasions, the fact that the court dismissed the case
with consent of the accused would still mean the first jeopardy
had attached in those cases.
Time Bar Rule
What is the effect of the Time Bar Rule with respect to our
protection against double jeopardy? In our rules now, we
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follow the time bar rule when a criminal complaint is
provisionally dismissed. When the penalty is 6 years or a
fine, it shall be one year; if 6 years and one day or more, it
shall be two years. Meaning, if the case is provisionally
dismissed depending on one or two years, the question is
can the prosecution revive or refile the case? In criminal
procedure, there can be provisional dismissals. If the
criminal complaint is provisionally dismissed depending on
the penalty, the penalty is not more than 6 years or only a
fine, within the 1 year period you can ask for revival of the
criminal case. If the penalty is 6 years or more, within the 2
year period you can ask for revival of the case because it has
been provisionally dismissed. Question, if the one or two
year period, as the case may be, has already lapsed, does it
mean that the case has already been dismissed and that you
can no longer file the case? Invariably, there may have been
discussion on the effect that, the time bear rule simply
prohibits the revival of the case outside the one or two year
periods. But on the question that can the prosecution refile
the case, should the prosecution should be allowed to refile
the case? Because the prescription of offenses in the RPC
and other special laws, some are longer than one or two
years. Let us go back to your rules on the prescription of
offenses. In the Revised Penal Code, if the penalty is arresto
mayor, what is the prescriptive period? Those prescriptive
periods are substantive law. The time bar rule is only
provided in the rules of court. We know that rules provided
in rules of court cannot alter, modify or change substantive
laws. So if the penalty is 10 years, one or two years in time
bar rule should not affect the prescriptive period. When the
crime is committed, when does the prescriptive period
began to run? From the time the offense is committed. If
you do not file it the prescriptive period will not stop to run.
But once you file it, it stops to run. Will it run again? What
the time bar rule simply provides is that the prosecution can
ask for the revival of the case in one or two year periods
depending on the penalty. If there is no revival within the 1
or 2 year periods, there is a disputable presumption that the
prosecution or the state is no longer willing prosecute it
further. It’s a disputable presumption. It is not that the case
is totally barred because there is no revival of the case. If the
information filed against the accused is sufficient in form
and substance, the accused arraigned in the court with
competent jurisdiction and the case is provisionally
dismissed and the case is not revived within the one or two
year periods, can the case be refiled later without violating
the right of the accused against double jeopardy? That is
the question. Remember, that when the case is provisionally
dismissed the plea is normally withdrawn. It is as if there is
no valid arraignment. Again it is different case if the plea is
not withdrawn, because when that case is provisionally
dismissed much more without the consent or acquiescence
of the accused first jeopardy may attach. But if you take the
plea back or the accused agrees to provisional dismissal the
case can be refiled outside the one or two year periods
provided it is within the prescriptive period within which to
file the criminal complaint because the first jeopardy had
not yet attached.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
Section 15. The privilege of the writ of habeas corpus shall not be
suspended except in cases of invasion or rebellion when the
public safety requires it.
We all know that writ of Habeas corpus as provided for in the
constitution is a remedy available to look into any and all forms of
involuntary restraint; it will inherently include also involuntary
servitude. If there is no legal justification for detaining a person, it
may not literally be detaining him by placing him in a detention
facility, for so long as there is substantial defect on his freedom of
mobility by __ imposed even if not actual incarceration it can be a
proper subject of petition for writ of habeas corpus.
FUNCTIONS OF THE WRIT
The case of Villa Vicencio vs Lucban, the precursor of all
these. They were not actually incarcerated; they were forced
to be brought from Manila to Davao City. They were not
even prevented from leaving Dvao City. They were just
brought here. They were rounded in Metro Manila, loaded
in a steamship and brought to Davao. When they arrived
here, they were not prevented from going back to Manila or
marrying the local inhabitants here. Still, the SC, there could
be proper issuance of writ of habeas corpus because their
freedom to move around was substantially curtailed.
That was also the ruling in the case of Mongcopa vs Enrile.
Mongcopa was released after incarceration during martial
law but there were conditions set. If Mongcopa leaves
Manila, he must get permission from military. If he would be
going out of the country, he would be required to render
report so that his whereabouts can be known to the military
authorities. SC said there is substantial defect in his freedom
of mobility or liberty wherein a petition for writ of habeas
corpus is proper.
SUSPENSION OF THE PRIVILEGE
Art VII Section 18. The President shall be the Commander-in-
Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days,
suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus,
the President shall submit a report in person or in writing to
the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.
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The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ of habeas corpus.
The suspension of the privilege of the writ of habeas corpus
shall apply only to persons judicially charged for rebellion or
offenses inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas
corpus, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be
released.
We also know that what is suspended when the president
exercises one of his commander in chief powers is the
privilege and not the writ itself. Meaning, a person may not
be released within the periods provided under Art 125 of the
revised penal code because when the privilege is suspended
under art VII sec 18 the period is extended to 72 hours.
The writ would still be issued if the petition filed is sufficient
in form and substance, but the period of detention without
charge is extended from 12, 18, 36 hours to 72 hours. The
same constitutional provision still requires that those
persons arrested and detained without charge must have to
be charged within 72 hours otherwise they shall be released.
So, it does not justify the arrest and detention. It simply
allows the state to have more time to make a case against
that person arrested and detained and eventually charge in
court. Because if the three day period has lapsed without
any of these charges filed, the state is mandated to release
these persons.
THE WRIT OF HABEAS CORPUS AS A POST CONVICTION REMEDY
The writ of Habeas corpus has also been used as a post
conviction remedy because either of these two
circumstances occurred:
1) There has been full service; there must be full service of
imprisonment so there is no more justification in
detaining him any longer. This should not include the
service of sentence under the indeterminate sentence
law. In indeterminate sentence law, there is minimum
penalty and a maximum penalty. When the person has
served the minimum penalty, he may be released for
good behavior. That is not a matter of right but a
matter of discretion. But if there is full service already,
there is no more legal justification for continued
detention. If the warden does not release him, a petition
for writ of habeas corpus can be filed.
Question, why should you file a petition when there
was a court that has rendered the judgment of
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
conviction? The court which rendered the judgment of
conviction no longer has jurisdiction over the case.
Once the service is commenced, the court loses
jurisdiction, meaning the convicting court. so you have
to file a petition for a writ of habeas corpus.
2) Or by reason of the judicial declaration or by a
subsequent legislation, the penalty imposed before is
no longer valid under that new judicial decree or by
that congressional issuance. Meaning, there is a new
law which is beneficial to the accused and we all know
this should be applied retroactively. So as to remainder
of the penalty, because of the new decision or the new
law, there is no more legal justification, the accused can
seek release by filing a petition of writ of habeas corpus.
Affirmative rights
1) Free Access to the courts
Section 11. Free access to the courts and quasi-judicial
bodies and adequate legal assistance shall not be denied to
any person by reason of poverty.
2) Protection and enforcement of constitutional rights
Art III Sec 12 (4) The law shall provide for penal and civil sanctions
for violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and their
families.
Art VIII Section 5. The Supreme Court shall have the following
powers: (5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the underprivileged. Such
rules shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of the
same grade, and shall not diminish, increase, or modify
substantive rights. Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless disapproved by the
Supreme Court.
Art XIII Section 18. The Commission on Human Rights shall have
the following powers and functions: (3) Provide appropriate legal
measures for the protection of human rights of all persons within
the Philippines, as well as Filipinos residing abroad, and provide
for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
protection;
WRIT OF AMPARO
A.M. No. 07-9-12-SC (25 September 2007) THE RULE ON THE
WRIT OF AMPARO
SECTION 1. Petition. – The petition for a writ of amparo is a
remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful
act or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
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SEC. 2. Who May File. – The petition may be filed by the
aggrieved party or by any qualified person or entity in the
following order:
a. Any member of the immediate family, namely: the spouse,
children and parents of the aggrieved party;
b. Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in
the preceding paragraph; or
c. Any concerned citizen, organization, association or
institution, if there is no known member of the immediate
family or relative of the aggrieved party.
The filing of a petition by the aggrieved party suspends the right
of all other authorized parties to file similar petitions. Likewise,
the filing of the petition by an authorized party on behalf of the
aggrieved party suspends the right of all others, observing the
order established herein.
SEC. 3. Where to File. – The petition may be filed on any day and
at any time with the Regional Trial Court of the place where the
threat, act or omission was committed or any of its elements
occurred, or with the Sandiganbayan, the Court of Appeals, the
Supreme Court, or any justice of such courts. The writ shall be
enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge thereof, the
writ shall be returnable before such court or judge.
When issued by the Sandiganbayan or the Court of Appeals or
any of their justices, it may be returnable before such court or
any justice thereof, or to any Regional Trial Court of the place
where the threat, act or omission was committed or any of its
elements occurred.
When issued by the Supreme Court or any of its justices, it may
be returnable before such Court or any justice thereof, or before
the Sandiganbayan or the Court of Appeals or any of their
justices, or to any Regional Trial Court of the place where the
threat, act or omission was committed or any of its elements
occurred.
SEC. 4. No Docket Fees. – The petitioner shall be exempted from
the payment of the docket and other lawful fees when filing the
petition. The court, justice or judge shall docket the petition and
act upon it immediately.
SEC. 5. Contents of Petition. – The petition shall be signed and
verified and shall allege the following:
a. The personal circumstances of the petitioner;
b. The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by
an assumed appellation;
c. The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or
violation is committed with the attendant circumstances
detailed in supporting affidavits;
d. The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct
of the investigation, together with any report;
TRANSCRIBED BY 4-MANRESA BATCH 2013
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CONSTITUTIONAL LAW 2 REVIEW
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e. The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the aggrieved party
and the identity of the person responsible for the threat, act
or omission; and
f. The relief prayed for.
The petition may include a general prayer for other just and
equitable reliefs.
SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the
court, justice or judge shall immediately order the issuance of the
writ if on its face it ought to issue. The clerk of court shall issue
the writ under the seal of the court; or in case of urgent
necessity, the justice or the judge may issue the writ under his or
her own hand, and may deputize any officer or person to serve it.
The writ shall also set the date and time for summary hearing of
the petition which shall not be later than seven (7) days from the
date of its issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of
court who refuses to issue the writ after its allowance, or a
deputized person who refuses to serve the same, shall be
punished by the court, justice or judge for contempt without
prejudice to other disciplinary actions.
SEC. 8. How the Writ is Served. – The writ shall be served upon
the respondent by a judicial officer or by a person deputized by
the court, justice or judge who shall retain a copy on which to
make a return of service. In case the writ cannot be served
personally on the respondent, the rules on substituted service
shall apply.
SEC. 9. Return; Contents. – Within seventy-two (72) hours after
service of the writ, the respondent shall file a verified written
return together with supporting affidavits which shall, among
other things, contain the following:
a. The lawful defenses to show that the respondent did not
violate or threaten with violation the right to life, liberty and
security of the aggrieved party, through any act or omission;
b. The steps or actions taken by the respondent to determine
the fate or whereabouts of the aggrieved party and the
person or persons responsible for the threat, act or
omission;
c. All relevant information in the possession of the respondent
pertaining to the threat, act or omission against the
aggrieved party; and
d. If the respondent is a public official or employee, the return
shall further state the actions that have been or will still be
taken:
i. to verify the identity of the aggrieved party;
ii. to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which
may aid in the prosecution of the person or persons
responsible;
iii. to identify witnesses and obtain statements from them
concerning the death or disappearance;
iv. to determine the cause, manner, location and time of death
or disappearance as well as any pattern or practice that may
have brought about the death or disappearance;
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v. to identify and apprehend the person or persons involved in
the death or disappearance; and
vi. to bring the suspected offenders before a competent court.
The return shall also state other matters relevant to the
investigation, its resolution and the prosecution of the case.
A general denial of the allegations in the petition shall not be
allowed.
SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses
shall be raised in the return, otherwise, they shall be deemed
waived.
SEC. 11. Prohibited Pleadings and Motions. – The following
pleadings and motions are prohibited:
a. Motion to dismiss;
b. Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
c. Dilatory motion for postponement;
d. Motion for a bill of particulars;
e. Counterclaim or cross-claim;
f. Third-party complaint;
g. Reply;
h. Motion to declare respondent in default;
i. Intervention;
j. Memorandum;
k. Motion for reconsideration of interlocutory orders or interim
relief orders; and
l. Petition for certiorari, mandamus or prohibition against any
interlocutory order.
SEC. 12. Effect of Failure to File Return. — In case the respondent
fails to file a return, the court, justice or judge shall proceed to
hear the petition ex parte.
SEC. 13. Summary Hearing. — The hearing on the petition shall be
summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admissions from the
parties.
The hearing shall be from day to day until completed and given
the same priority as petitions for habeas corpus.
SEC. 14. Interim Reliefs. — Upon filing of the petition or at
anytime before final judgment, the court, justice or judge may
grant any of the following reliefs:
(a) Temporary Protection Order. – The court, justice or judge,
upon motion or motu proprio, may order that the petitioner or
the aggrieved party and any member of the immediate family be
protected in a government agency or by an accredited person or
private institution capable of keeping and securing their safety. If
the petitioner is an organization, association or institution
referred to in Section 3(c) of this Rule, the protection may be
extended to the officers involved.
The Supreme Court shall accredit the persons and private
institutions that shall extend temporary protection to the
petitioner or the aggrieved party and any member of the
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
immediate family, in accordance with guidelines which it shall
issue.
The accredited persons and private institutions shall comply with
the rules and conditions that may be imposed by the court,
justice or judge.
(b) Inspection Order. — The court, justice or judge, upon verified
motion and after due hearing, may order any person in
possession or control of a designated land or other property, to
permit entry for the purpose of inspecting, measuring, surveying,
or photographing the property or any relevant object or
operation thereon.
The motion shall state in detail the place or places to be
inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.
If the motion is opposed on the ground of national security or of
the privileged nature of the information, the court, justice or
judge may conduct a hearing in chambers to determine the merit
of the opposition.
The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be
threatened or violated.
The inspection order shall specify the person or persons
authorized to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its issuance,
unless extended for justifiable reasons.
(c) Production Order. – The court, justice or judge, upon verified
motion and after due hearing, may order any person in
possession, custody or control of any designated documents,
papers, books, accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the return, to
produce and permit their inspection, copying or photographing
by or on behalf of the movant.
The motion may be opposed on the ground of national security or
of the privileged nature of the information, in which case the
court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.
(d) Witness Protection Order. – The court, justice or judge, upon
motion or motu proprio, may refer the witnesses to the
Department of Justice for admission to the Witness Protection,
Security and Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other
government agencies, or to accredited persons or private
institutions capable of keeping and securing their safety.
SEC. 15. Availability of Interim Reliefs to Respondent. – Upon
verified motion of the respondent and after due hearing, the
court, justice or judge may issue an inspection order or
production order under paragraphs (b) and (c) of the preceding
section.
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A motion for inspection order under this section shall be
supported by affidavits or testimonies of witnesses having
personal knowledge of the defenses of the respondent.
SEC. 16. Contempt. – The court, justice or judge may order the
respondent who refuses to make a return, or who makes a false
return, or any person who otherwise disobeys or resists a lawful
process or order of the court to be punished for contempt. The
contemnor may be imprisoned or imposed a fine.
SEC. 17. Burden of Proof and Standard of Diligence Required. –
The parties shall establish their claims by substantial evidence.
The respondent who is a private individual or entity must prove
that ordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove
that extraordinary diligence as required by applicable laws, rules
and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the
presumption that official duty has been regularly performed to
evade responsibility or liability.
SEC. 18. Judgment. — The court shall render judgment within ten
(10) days from the time the petition is submitted for decision. If
the allegations in the petition are proven by substantial evidence,
the court shall grant the privilege of the writ and such reliefs as
may be proper and appropriate; otherwise, the privilege shall be
denied.
SEC. 19. Appeal. – Any party may appeal from the final judgment
or order to the Supreme Court under Rule 45. The appeal may
raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the date
of notice of the adverse judgment.
The appeal shall be given the same priority as in habeas corpus
cases.
SEC. 20. Archiving and Revival of Cases. – The court shall not
dismiss the petition, but shall archive it, if upon its determination
it cannot proceed for a valid cause such as the failure of
petitioner or witnesses to appear due to threats on their lives.
A periodic review of the archived cases shall be made by the
amparo court that shall, motu proprio or upon motion by any
party, order their revival when ready for further proceedings. The
petition shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of two (2) years from notice to
the petitioner of the order archiving the case.
The clerks of court shall submit to the Office of the Court
Administrator a consolidated list of archived cases under this Rule
not later than the first week of January of every year.
SEC. 21. Institution of Separate Actions. — This Rule shall not
preclude the filing of separate criminal, civil or administrative
actions.
SEC. 22. Effect of Filing of a Criminal Action. – When a criminal
action has been commenced, no separate petition for the writ
shall be filed. The reliefs under the writ shall be available by
motion in the criminal case.
The procedure under this Rule shall govern the disposition of the
reliefs available under the writ of amparo.
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
SEC. 23. Consolidation. – When a criminal action is filed
subsequent to the filing of a petition for the writ, the latter shall
be consolidated with the criminal action.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of amparo, the latter shall be
consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue
to apply to the disposition of the reliefs in the petition.
SEC. 24. Substantive Rights. — This Rule shall not diminish,
increase or modify substantive rights recognized and protected
by the Constitution.
SEC. 25. Suppletory Application of the Rules of Court. – The Rules
of Court shall apply suppletorily insofar as it is not inconsistent
with this Rule.
SEC. 26. Applicability to Pending Cases. – This Rule shall govern
cases involving extralegal killings and enforced disappearances or
threats thereof pending in the trial and appellate courts.
SEC. 27. Effectivity. – This Rule shall take effect on October 24,
2007, following its publication in three (3) newspapers of general
circulation.
There are only a few cases that discuss this. The case that
discussed this the most perhaps, not only the technical discussion
of it but proprietary of it is the case of Sec of Defense vs Manalo.
The SC upheld the petition and explained it. This is a new writ not
by the constitution but by the rules of court based on the issuance
of the SC to address the situations which would not have been
addressed by the current rules. Specifically, this has something to
do with the extralegal killings and forced disappearances.
Writ of habeas Corpus normally ends when the respondent
explains to the court that the person subject of the writ is not in
my custody. It usually ends there because the court cannot
inquire further. If the respondent came to the court under oath,
makes a return and explains in the court that he is not under my
custody, the court cannot do anything but dismiss the petition
against the respondent. In order to compel respondents in a writ
of Habeas Corpus to do further or more than that, then the Writ
Of Amparo was promulgated to address the situation not covered
by writ of habeas corpus. Because in the Writ Of Amparo, the
respondents are required to make a return and explain to the
court even if the person is not in their custody, what actions have
they taken to ascertain the whereabouts of the person subject of
the petition for Writ Of Amparo. So if there is violation of privacy,
liberty or security of persons then that can be a proper subject of
Writ Of Amparo.
There are some cases in Writ Of Amparo which concerns property
rights. There was one case which involves writ of demolition
issued by the court by reason of a unlawful detainer case. Writ of
execution and demolition has long been final and is about to be
executed, they filed Writ Of Amparo seeking protection. SC said
that Writ Of Amparo, what it is not is to protect a property right.
so there is life, liberty, security. Life, there is nothing much to
discuss there because if you are dead then all your rights can no
longer be claimable. Liberty, your freedom to move, freedom to
choose, freedom to whatever without fear of __. Security largely
is encapsulated in the phrase to be freed from any fear for any
violation to your right to life and or your right to liberty.These are
in theory and are theoretical rights as to whether they can be
claimed eventually.
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There are a lot of cases where the SC said that Writ Of Amparo is
not applicable, but as to when it is applicable that Manalo ruling
was the only one that it was. In that case of Fr. Reyes, the running
priest, upon the request of DOJ, a hold departure order was
issued. He filed a petition for Writ Of Amparo that an HDO is a
violation to his right of liberty. SC said it is not a violation simply
because it has nothing to do with the state-imposed sanction not
imposed by the court. Meaning, if the violation perceived to your
right to life, liberty or security is court sanctioned there is no such
violation. It is again a limitation on the non judicial branches of
government, specially the executive. It is not to state that there is
state sanctioned activity by law enforcement agents on enforced
disappearances or extralegal killings but it is somewhat anything
of this which are court sanctioned are not proper to be subject for
petition of Writ Of Amparo. But those which are not court
sanctioned they can be proper for petition for Writ Of Amparo.
WRIT OF HABEAS DATA
A. M. No. 08-1-16-SC January 22, 2008 THE RULE ON THE WRIT
OF HABEAS DATA
SECTION 1. Habeas Data. - The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission
of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and
correspondence of the aggrieved party.
SEC. 2. Who May File. - Any aggrieved party may file a petition
for the writ of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition may be filed
by:
(a) Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity or
affinity, in default of those mentioned in the preceding
paragraph; or
SEC. 3. Where to File. - The petition may be filed with the
Regional Trial Court where the petitioner or respondent resides,
or that which has jurisdiction over the place where the data or
information is gathered, collected or stored, at the option of the
petitioner.
The petition may also be filed with the Supreme Court or the
Court of Appeals or the Sandiganbayan when the action concerns
public data files of government offices.
SEC. 4. Where Returnable; Enforceable. - When the writ is issued
by a Regional Trial Court or any judge thereof, it shall be
returnable before such court or judge.
When issued by the Court of Appeals or the Sandiganbayan or
any of its justices, it may be returnable before such court or any
justice thereof, or to any Regional Trial Court of the place where
the petitioner or respondent resides, or that which has
jurisdiction over the place where the data or information is
gathered, collected or stored.
When issued by the Supreme Court or any of its justices, it may
be returnable before such Court or any justice thereof, or before
the Court of Appeals or the Sandiganbayan or any of its justices,
or to any Regional Trial Court of the place where the petitioner or
TRANSCRIBED BY 4-MANRESA BATCH 2013
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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
respondent resides, or that which has jurisdiction over the place
where the data or information is gathered, collected or stored.
The writ of habeas data shall be enforceable anywhere in the
Philippines.
Sec. 5. Docket Fees. - No docket and other lawful fees shall be
required from an indigent petitioner. The petition of the indigent
shall be docked and acted upon immediately, without prejudice
to subsequent submission of proof of indigency not later than
fifteen (15) days from the filing of the petition.
SEC. 6. Petition. - A verified written petition for a writ of habeas
data should contain:
(a) The personal circumstances of the petitioner and the
respondent;
(b) The manner the right to privacy is violated or threatened and
how it affects the right to life, liberty or security of the aggrieved
party;
(c) The actions and recourses taken by the petitioner to secure
the data or information;
(d) The location of the files, registers or databases, the
government office, and the person in charge, in possession or in
control of the data or information, if known;
(e) The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database or
information or files kept by the respondent.
In case of threats, the relief may include a prayer for an order
enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable.
SEC. 7. Issuance of the Writ. - Upon the filing of the petition, the
court, justice or judge shall immediately order the issuance of the
writ if on its face it ought to issue. The clerk of court shall issue
the writ under the seal of the court and cause it to be served
within three (3) days from the issuance; or, in case of urgent
necessity, the justice or judge may issue the writ under his or her
own hand, and may deputize any officer or person serve it.
The writ shall also set the date and time for summary hearing of
the petition which shall not be later than ten (10) work days from
the date of its issuance.
SEC. 8. Penalty for Refusing to Issue or Serve the Writ. - A clerk
of court who refuses to issue the writ after its allowance, or a
deputized person who refuses to serve the same, shall be
punished by the court, justice or judge for contempt without
prejudice to other disciplinary actions.
SEC. 9. How the Writ is Served. - The writ shall be served upon
the respondent by a judicial officer or by a person deputized by
the court, justice or judge who shall retain a copy on which to
make a return of service. In case the writ cannot be served
personally on the respondent, the rules on substituted service
shall apply.
SEC. 10. Return; Contents. - The respondent shall file a verified
written return together with supporting affidavits within five (5)
working days from service of the writ, which period may be
reasonably extended by the Court for justifiable reasons. The
return shall, among other things, contain the following:
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(a) The lawful defenses such as national security, state secrets,
privileged communications, confidentiality of the source of
information of media and others;
(b) In case of respondent in charge, in possession or in control of
the data or information subject of the petition;
(i) a disclosure of the data or information about the petitioner,
the nature of such data or information, and the purpose for its
collection;
(ii) the steps or actions taken by the respondent to ensure the
security and confidentiality of the data or information; and,
(iii) the currency and accuracy of the data or information held;
and,
(c) Other allegations relevant to the resolution of the proceeding.
A general denial of the allegations in the petition shall not be
allowed.
SEC. 11. Contempt. - The court, justice or judge may punish with
imprisonment or fine a respondent who commits contempt by
making a false return, or refusing to make a return; or any person
who otherwise disobeys or resist a lawful process or order of the
court.
SEC. 12. When Defenses May be Heard in Chambers. - A hearing
in chambers may be conducted where the respondent invokes
the defense that the release of the data or information in
question shall compromise national security or state secrets, or
when the data or information cannot be divulged to the public
due to its nature or privileged character.
Sec. 13. Prohibited Pleadings and Motions. - The following
pleadings and motions are prohibited:
(a) Motion to dismiss;
(b) Motion for extension of time to file return, opposition,
affidavit, position paper and other pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory orders or interim
relief orders; and
(l) Petition for certiorari, mandamus or prohibition against any
interlocutory order.
SEC. 14. Return; Filing. - In case the respondent fails to file a
return, the court, justice or judge shall proceed to hear the
petition ex parte, granting the petitioner such relief as the
petition may warrant unless the court in its discretion requires
the petitioner to submit evidence.
SEC. 15. Summary Hearing. - The hearing on the petition shall be
summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the
TRANSCRIBED BY 4-MANRESA BATCH 2013
Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
possibility of obtaining stipulations and admissions from the
parties.
SEC. 16. Judgment. - The court shall render judgment within ten
(10) days from the time the petition is submitted for decision. If
the allegations in the petition are proven by substantial evidence,
the court shall enjoin the act complained of, or order the
deletion, destruction, or rectification of the erroneous data or
information and grant other relevant reliefs as may be just and
equitable; otherwise, the privilege of the writ shall be denied.
Upon its finality, the judgment shall be enforced by the sheriff or
any lawful officers as may be designated by the court, justice or
judge within five (5) working days.
SEC. 17. Return of Service. - The officer who executed the final
judgment shall, within three (3) days from its enforcement, make
a verified return to the court. The return shall contain a full
statement of the proceedings under the writ and a complete
inventory of the database or information, or documents and
articles inspected, updated, rectified, or deleted, with copies
served on the petitioner and the respondent.
The officer shall state in the return how the judgment was
enforced and complied with by the respondent, as well as all
objections of the parties regarding the manner and regularity of
the service of the writ.
SEC. 18. Hearing on Officer’s Return. - The court shall set the
return for hearing with due notice to the parties and act
accordingly.
SEC. 19. Appeal. - Any party may appeal from the final judgment
or order to the Supreme Court under Rule 45. The appeal may
raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the date
of notice of the judgment or final order.
The appeal shall be given the same priority as in habeas corpus
and amparo cases.
SEC. 20. Institution of Separate Actions. - The filing of a petition
for the writ of habeas data shall not preclude the filing of
separate criminal, civil or administrative actions.
SEC. 21. Consolidation. - When a criminal action is filed
subsequent to the filing of a petition for the writ, the latter shall
be consolidated with the criminal action.
When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of habeas data, the petition
shall be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall continue
to govern the disposition of the reliefs in the petition.
SEC. 22. Effect of Filing of a Criminal Action. - When a criminal
action has been commenced, no separate petition for the writ
shall be filed. The relief under the writ shall be available to an
aggrieved party by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the
reliefs available under the writ of habeas data.
SEC. 23. Substantive Rights. - This Rule shall not diminish,
increase or modify substantive rights.
SEC. 24. Suppletory Application of the Rules of Court. - The Rules
of Court shall apply suppletorily insofar as it is not inconsistent
with this Rule.
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 CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

SEC. 25. Effectivity. - This Rule shall take effect on February 2,

2008, following its publication in three (3) newspapers of general
circulation.

It is a petition not primarily with respect to one’s right to privacy

to life, liberty or security but rather on right to privacy of life,
liberty and security.

This has something to do with data that is gathered, recorded

and kept whether by private or public persons or personnel. Writ
of habeas data does not only seek to protect the privacy of
persons whose data or information are gathered, recorded or
kept but also to cause the correction of any false statement or
information in these data gathered, recorded and kept. You can
cause the correction of any information kept.

Again, this is to protect your privacy over these so that your right
to privacy over your life, liberty can be protected. Similarly, these
persons must inform the court what actions they have taken and
what action they intend to take with respect to these information
gathered, recorded and kept.

3) Compensation to, and rehabilitation of victims of tortures

Art III Sec 12 (4) The law shall provide for penal and civil sanctions
for violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and their
families.

- END -

TRANSCRIBED BY 4-MANRESA BATCH 2013

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Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista 4 Manresa Batch 2013-2014 | Page 58