E2019 Reviewer CONSTITUIONAL LAW 2 Prof.

De Vera

E2019 Reviewer Team

Mark Xavier C. Libardo
Reviewer Head
Freedom of Religion

Dino Roel J. de Guzman

Florenz Gabriel S. Mamauag
Due Process and Equal Protection

Ma. Liana R. Oliveros

Searches and Seizures

Lcid Crescent D. Fernandez

Right to Privacy

Raphael Anton F. Mendoza

Rights of the Accused

Gia A. Cabangon
Writ of Habeas Corpus

Maria Louise R. Querido

Liberty of Abode
Cruel and Degrading Punishment

Thea Kharina I. Mostrales

Freedom of Expression

Alyssa D.F. Mateo

Access to Information

Sofronio C. Dulay II
Ex Post Facto Law
Non Imprisonment for Debt
Free Access to Courts

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E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

TABLE OF CONTENTS
I. DUE PROCESS ............................................................................................... 4
A. HIERARCHY OF RIGHTS ........................................................................................................................................................ 4
B. SUBSTANTIVE DUE PROCESS ................................................................................................................................................ 5
C. PROCEDURAL DUE PROCESS ................................................................................................................................................ 6
D. EMINENT DOMAIN .............................................................................................................................................................. 8
E. NON-IMPAIRMENT OF CONTRACT CLAUSE .......................................................................................................................... 9
II. EQUAL PROTECTION ................................................................................. 12
A. EQUAL PROTECTION DEFINED ........................................................................................................................................... 12
III. SEARCHES AND SEIZURES ...................................................................... 14
A. PROPER PARTIES ................................................................................................................................................................ 14
B. SEARCH WARRANTS........................................................................................................................................................... 14
C. ARREST WARRANTS ........................................................................................................................................................... 16
IV. RIGHT TO PRIVACY ................................................................................... 18
A. CONCEPT OF THE RIGHT TO PRIVACY................................................................................................................................. 18
B. VALID AND INVALID ENCROACHMENTS ON RIGHT TO PRIVACY ........................................................................................ 18
C. EFFECTS OF INVALID INTRUSIONS ...................................................................................................................................... 19
D. WRIT OF HABEAS DATA ..................................................................................................................................................... 19
V. RIGHTS OF THE ACCUSED ........................................................................ 20
A. RIGHT AGAINST SELF-INCRIMINATION .............................................................................................................................. 20
B. CUSTODIAL INVESTIGATION .............................................................................................................................................. 20
C. RIGHT TO COUNSEL............................................................................................................................................................ 22
D. RIGHT TO BAIL ................................................................................................................................................................... 23
E. RIGHTS DURING TRIAL ....................................................................................................................................................... 25
F. THE RIGHT OF CONFRONTATION ....................................................................................................................................... 27
G. DOUBLE JEOPARDY ............................................................................................................................................................ 28
VI. WRIT OF HABEAS CORPUS...................................................................... 31
A. WRIT OF HABEAS CORPUS ................................................................................................................................................. 31
B. WRIT OF AMPARO.............................................................................................................................................................. 33
VII. LIBERTY OF ABODE AND TRAVEL ......................................................... 36
A. LIBERTY OF ABODE............................................................................................................................................................. 36
B. RIGHT TO TRAVEL............................................................................................................................................................... 36
VIII. CRUEL, DEGRADING OR INHUMAN PUNISHMENT .............................. 39
A. CRUEL PUNISHMENT ......................................................................................................................................................... 39
B. EXCESSIVE FINES ................................................................................................................................................................ 40
IX. FREEDOM OF EXPRESSION ..................................................................... 41
A. FREEDOM OF EXPRESSION................................................................................................................................................. 41
B. UNPROTECTED SPEECH...................................................................................................................................................... 42
C. FREEDOM OF THE PRESS .................................................................................................................................................... 43
D. FREEDOM OF ASSEMBLY ................................................................................................................................................... 45
X. ACCESS TO INFORMATION ....................................................................... 46
A. SELF-EXECUTING PROVISIONS ........................................................................................................................................... 46

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E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

B. RIGHT TO ACCESS TO INFORMATION VS DUTY TO DISCLOSE ............................................................................................. 46

C. SCOPE ................................................................................................................................................................................ 46
D. REMEDY FOR VIOLATION ................................................................................................................................................... 47
E. LIMITATIONS ...................................................................................................................................................................... 47
XI. FREEDOM OF RELIGION ........................................................................... 51
A. FREE EXERCISE CLAUSE ...................................................................................................................................................... 51
B. NON-ESTABLISHMENT CLAUSE .......................................................................................................................................... 51
C. STRICT NEUTRALITY VS. BENEVOLENT NEUTRALITY .......................................................................................................... 51
D. CASE STUDY: ESTRADA VS. ESCRITOR ................................................................................................................................ 52
XII. EX POST FACTO LAW AND BILL OF ATTAINDER ................................. 54
A. EX POST FACTO LAWS (EPF) ............................................................................................................................................... 54
B. BILL OF ATTAINDER ........................................................................................................................................................... 54
XIII. NON IMPRISONMENT FOR DEBT AND INVOLUNTARY SERVITUDE ... 55
A. NON IMPRISONMENT FOR DEBT ....................................................................................................................................... 55
B. INVOLUNTARY SERVITUDE................................................................................................................................................. 55
XIV. FREE ACCESS TO COURTS AND QUASI-JUDICIAL BODIES .............. 56
GENERAL RULE ....................................................................................................................................................................... 56

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E2019 Reviewer CONSTITUIONAL LAW 2
I. DUE PROCESS
Art. III Sec. 1:
“No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be
denied equal protection of the laws.”
A. HIERARCHY OF RIGHTS
Life > Liberty > Property
Rights of property has a wider permissible scope of
regulation [Ermita-Malate Hotel and Hotel Operators v
City of Manila]
Human Rights > Property Rights
Property rights can be lost through prescription. Mere
reasonable or rational relations [Rational Basis Test] on
means employed and purpose not arbitrary or oppressive
may regulate property rights [PBMEO v Phil Blooming
Mills]. While Human Rights: only when there is the
existence of grave and immediate danger of a substantive
evil which the state have a right to prevent may it be
infringed by the state [Bernas p. 111].
Doctrine of Preferred Freedom
Freedom of expression, assembly and right to petition
are preferred over Property Rights [Salonga v Pan –
Beda reviewer];
Free religious profession/belief is preferred over
Contract rights.
Religious freedom is a fundamental personal right and
liberty thus occupies a preferred position in the
hierarchy of values [Victoriano v Elizalde Rope
Worker’s Union – Beda reviewer]
Right to Life
Understood to include ―quality of life‖ – which is
entitlement to a life lived with assurance that government
he established and consented to will protect the security of
person means [1] freedom from fear; [2] guarantee of
bodily and psychological integrity, and [3] guarantee of
protection of one‘s rights by the government [Secretary
of National Defense v Manalo].
This is supported by Bernas [p. 110] wherein he cited that
the right to a good life is emphasized in Article XIII (Social
Justice), Art. II, Sec 12 (Life of unborn); Art. II Sec. 8
(Freedom from Nukes), and Art. III Sec 19(1) (Death
Penalty).
Right to Liberty
J.Malcolm in Rubi v Provincial Board of Mindoro
defined it as the freedom enjoyed in a civilized community
where there is a right to exist and to be free from arbitrary
personal restraint and servitude. Under such freedom are
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Prof. De Vera
the following: right to contract; right to choose
employment; right to labor; right to locomotion; and
freedom to do right and never wrong [Mabini].
CJ Puno in establishing the Writ of Amparo emphasized
the need for a remedy for the protection of the right to life,
liberty, and security.
Q: Is right to liberty ABSOLUTE?
A: No. ―Implied in the term is restraint by law for the good
of the individual and for the greater good of the individual
and for the greater good of the peace and order of society
and the general well-being. No man can do exactly as he
pleases. Every man must renounce unbridled license. The
right of the individual is necessarily subject to reasonable
restraint by general law for the common good.‖ [Rubi v
Provincial Board of Mindoro]
Right to Property
Includes all property found in the civil code not limited to
physical property but also on right to work, earn a living,
vested rights like perfected mining claim, homestead, or
final judgment [Bernas]. Public office is not considered as
a property right but tenure is analogous to a property right
[Bernas].
Q: What is the difference between property rights and
privileges?
A: It is a privilege if public interest required withdrawal
(However a privilege may evolve to property rights if
enjoyed for so long and with substantial investment).
[Bernas]
Q: What test is used to infringe property rights?
A: Rational basis test unless said property right has
intimate relations with either life or liberty; in which case
the burden shifts to government requiring the need to be
exceptionally convincing and irrefutable [Blo Umpar
Adiong v Comelec – Beda; Bernas]
Q. What must not be present when the state infringes
property rights?
A. The US SC overturned the decision in Yu Cong Eng v
Trinidad [case on constitutionality of a statute requiring
books of account be written in either Spanish, English or a
local dialect] because the prohibition is oppressive and
arbitrary as it prevents them from keeping advised of the
status of their business and directing its conduct.
E2019 Reviewer CONSTITUIONAL LAW 2
B. SUBSTANTIVE DUE PROCESS
First infused in the due process clause in Yick Wo v
Hopkins – this aspect apply to the legislature as a bar
against statutes that could deprive the life, liberty, or
property arbitrarily [Agabin, Mestizo].
It is a restriction of the Government‘s law and rule-making
power. It requires the intrinsic validity of the law in
interfering with life, liberty, and property and a guarantee
against exercise of arbitrary power [Bernas; Beda
reviewer].
Put simply, substantive due process requires the
government to provide a sufficient justification before
depriving a person of life, liberty, or property.
Requisites of SDP from Rubi v Provincial Board of
Mindoro:
o There must be a Law prescribed in harmony with
the general powers of the legislature
o The law must be Reasonable in its operation
o It must be enforced according to the regular
Methods of procedure prescribed
o It must be Applicable alike to all the citizens of
the state or to all of a class.
Expanded test of SDP in Ichong v Hernandez:
o Is there public interest, public purpose, public
welfare involved?
o Is the act reasonably necessary for
accomplishment of legislature‘s purpose, is it not
unreasonable, arbitrary, or oppresve?
o Is there sufficient foundation or reason in
connection with the manner involved; or has
there been capricious use of legislative power?
o Can the aims conceived be achieved by the
means used, or is it not merely and unjustified
interference?
Tests for Judicial Review
1. Rational Basis
Covers:
Property or economic rights
Standard:
Is there valid government purpose?
Is there reasonable connection between the
legislation and the legislative purpose?
Burden:
The party challenging the act
2. Intermediate Scrutiny
Covers:
Classifications based on gender
ILLEGITIMACY [quasi-suspect]
Standard:
Does the act serve an important state interest
Prof. De Vera
Is the act at least substantially related to serving
that interest?
Burden:
The State
3. Strict Scrutiny
Covers:
Suspect classifications [Ma‘am Gwen accepted
my answer in the quiz that suspect classification
is met when the classification fails the Test of
Valid Classification – citing Serrano v Gallant],
and intrusions into fundamental rights
Standard:
Is there a compelling state interest that justifies
the limitation on constitutional rights?
Is the means employed least restrictive to protect
such interest?
Burden:
The state
Q: What constitutes compelling state interest?
A: What constitutes it is measured by the scale of rights
and powers arrayed in the constitution and calibrated by
history. It is akin to the paramount interest of the state
for which some individual liberties must give way, such as
the public interest in safeguarding health or maintaining
medical standards, or in maintaining access to information
on matters of public concern. [Serrano v Gallant].
Q: How does SDP apply to the state’s powers?
A: The police power of the state (inherent and plenary
power to prohibit all that is hurtful to comfort safety and
welfare according to Ermita-Manila case) is limited by the
guaranty of due process of law and equal protection of
laws [Ichong v Hernandez]. In order for it to be valid, it
must comply with standards of SDP.
One of the cases discussed Yap v Thenamaris, wherein
a ship‘s management was about the provision of Overseas
Migrant Worker‘s Act [RA 8042], which placed a 3-month
cap on claims of migrant workers with an unexpired
portion of contract beyond one year. The provision was
struck down for creating a suspect classification which
violates equal protection and also depriving the petitioner
Yap of substantive due process.
Publication of laws is considered to be part of
Substantive Due Process [Tanada v Tuvera]
In Ichong v Hernandez – it was held that
and REASONABILITY is the test of limitation of police power,
and thus the test of reasonableness of a law is applied. A
law is not necessarily unreasonable when it affects private
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E2019 Reviewer CONSTITUIONAL LAW 2
rights and privileges.
Q: Differentiate the case of Ermita-Malate Hotel and
Motel Operators v City of Manila and White Light v
City of Manila
A: These cases deal with two different city ordinances
which regulated the business of motels in Manila.
Ermita-Malate Manila case assaulted an ordinance which
increased license fees and imposed a regulation on use of
motels. SC upheld the ordinance on the ground that it is a
valid exercise of police power for the purpose of curbing
morality. And in that case, the rational basis test was
applied because the law itself merely infringes on the
petitioner‘s right to property and freedom to contract and
that the law impinges the property holders. The burden to
prove that the law has no valid government purpose
and that the law is unreasonable in its operation is with
the ones assailing the law.
White Light on the other hand was invalidated because
the ordinance [which regulates the use of motels which in
this case curtails all possible uses of motel rooms
including those which are legitimate] infringes upon the
property rights and the fundamental right of liberty to
engage in legitimate sexual activities. In this case, the
strict scrutiny test was applied thus the burden is with
the state to prove that there is substantial state interest
and that it is the least restrictive means to achieve the
objective. The court found that no such interest was found
and that the objective may simply be achieved by applying
the present laws and other government programs.
Procedural Due Process
It is restriction against any judicial or quasi-judicial powers
wherein regular methods must be observed before life,
liberty or property can be taken [Bernas]. And in this case,
such must be fair [Bernas; Beda – Suarez]. Procedural
due process relies on the correlatives of NOTICE and the
OPPORTUNITY TO BE HEARD [ma’am Gwen –
Villanueva notes].
In Santos-Concio v DOJ (the ULTRA stampede case) it
was held that speed in the conduct of proceedings by
judicial or quasi-juidicial officer cannot per se be attributed
to an injudicious performance of functions unless there is
contrary evidence to overturn the presumption of
regularity. In the same case, institutional bias theory
cannot stand as well since it would logically mean that if it
were to extend to the pronouncement of the president, the
entire executive branch cannot credibly conduct criminal
and preliminary investigations.
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Prof. De Vera
C. PROCEDURAL DUE PROCESS
Procedural Due Process (PDP) is those modes of
procedures which government must follow before it
deprives a person of life, liberty, or property.
Judicial Proceedings
There are four requisites of due process in civil
proceedings [IJOH] [Banco Espanol Filipino v Palanca]
1. There must be an Impartial court or tribunal
clothed with judicial power to hear and determine
the matters before it
2. Jurisdiction is properly acquired over the person
of the defendant and over the property which is
the subject matter of the proceeding
3. Defendant must have been given an Opportunity
to be heard
4. Judgment rendered must be upon lawful Hearing
and based on evidence adduced
Administrative Proceedings
The case of Ang Tibay v CIR laid down the seven
Cardinal Requirements of procedural due process in
Administrative Proceedings [RIPE DeDe Know]:
1. Right to hearing
2. Tribunal or body or any of its judges must act on
its own Independent consideration of the law and
the facts of the controversy
3. The tribunal must consider the evidence
Presented
4. Evidence presented must be substantial
[reasonable mind might accept as adequate
to support a conclusion]
5. Decision must have something to support itself
6. Decision must be based on evidence presented
during hearing or on record and disclosed by
parties
7. Decision must be rendered in a manner that the
parties can Know the various issues involved
and reason for the decision rendered
In AZ Arnaiz Realty v Office of the President – the
essence of opportunity to be heard in administrative
proceedings is [1] opportunity to explain one‘s side or [2]
opportunity to seek for a reconsideration of the
action/ruling complained of.
Q: What is the meaning of “hearing” in the
administrative proceedings?
A: Only opportunity to be heard is needed, meaning that
formal hearing is not always necessary, as opposed to the
judicial setting. The only requirement is NOTICE and
OPPORTUNITY TO BE HEARD [Velez v De Vera]
E2019 Reviewer CONSTITUIONAL LAW 2
Q: When is hearing necessary?
A: Only when the administrative agency engages in
quasi-judicial proceedings would a hearing be
necessary. In the case of PHILCOMSAT v Alcuaz, the
court ruled that the government agency was engaged in
quasi-judicial adjudication when it ordered the petitioners
to reduce rates by 15% because such only applies in
particular to PHILCOMSAT. Lack of hearing voided the
rate reduction.
However cases heard before the Ombudsman may be
submitted for resolutions based only on affidavits and
pleadings. It is not required or legally objectionable to
resolve a case based solely on position papers, affidavits
or documentary evidences submitted by parties because
affidavits of witnesses may take place of their direct
testimonies [Marcelo v Bungubung].
Note: Publication is a requirement in administrative due
process as what was held in Tanada v Tuvera.
Administrative Issuances which implement or enforce
existing laws in pursuant to a valid delegation of legislative
power must be published to be effective. This is a strict
requirement since the court held that even if Pilipinas Shell
knew of the existence is of no moment with regard to their
effectivity. [Republic v Pilipinas Shell].
Academic Disciplinary Proceedings
It has been ruled by the Court that the student does not
shed his Constitutionally protected rights at the
schoolgate. The contract between the school and the
student is not an ordinary contract but one that is imbued
with public interest, considering the high priority given by
the Constitution to education and the grant to the State of
supervisory and regulatory powers over all educational
institutions. Thus, procedural due process still applies
even in academic disciplinary proceedings [Non v
Damas].
Requirements of PDP in academic disciplinary
proceedings [Guzman v NU]
1. Informed in writing of the nature and cause of
accusation
2. Right to answer charges with assistance of
counsel if desired
3. Informed of evidence against them
4. Right to adduce evidence on their behalf
5. Evidence submitted must be duly considered
Here, there is a balancing of conflicts between the right of
the students to education and the right of the schools to
academic freedom. When a student fails due to
disciplinary actions or requirements, there is a
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Prof. De Vera
forfeiture of their rights. In this case the courts are not at
liberty to reverse the discretion of university authorities.
Summary proceeding may be done and cross examination
is not required [Bernas p 117].
Q: Does a school enroll a student on a contractual
basis per semester?
A: No. The nature of a contract between school and
student is not on a per semester basis [overturning the
ruling in Alcuaz v PSBA]. In Alcuaz the manual cited
cannot be interpreted to mean re-enrolment after a
semester is dependent only on the discretion of the
school, on the contrary the same manual recognizes the
right of the student to be enrolled for the entire period he is
expected to complete it. This in turn is made statutory in
the Education Act of 1982. [Non v Dames]
Labor Proceedings
Requirements of PDP in Labor Matters: 2 notice
requirement [Perez v Philippine Telegraph and
Telephone Company]
1. Written notice specifying ground for termination
2. Giving the employee reasonable opportunity to
explain
3. Another written notice indicating that upon the
consideration of all circumstances, ground has
been established to justify the employer‘s
decision.
Q: Is hearing necessary?
A: No. What is required in the labor code is ample
opportunity to be heard and defend himself. The IRR of
which requires hearing and conference created a conflict
which was resolved in the Perez case where in two
conflicting provisions, the law prevails over the
administrative regulation. Ample opportunity to be heard –
covers actual hearing or conference, but is not a condition
sine qua non for compliance with DP requirements. When
an employee in his written explanation asks for a hearing,
such hearing becomes mandatory. [Perez v Phil
Telegraph and Telephone Company]
Right to counsel is not indispensable unless required by
the constitution or law. [Lumiqued v Exevea]
Statutory v Constitutional Due Process
Lack or deficiency in statutory procedural due process
does not void the decision of the corporation or company,
if the dismissal is found to have been made with just
cause. It would only give rise to claims for nominal
damages. Lack or deficiency in constitutional procedural
due process on the other hand voids the decision made by
E2019 Reviewer CONSTITUIONAL LAW 2
the state. [Ma’am Gwen]
Statutory procedural due process is provided by the
labor code where only ample opportunity to be heard and
defend himself is required. [Perez supra]
D. EMINENT DOMAIN
Art. III, Sec. 9:
“Private property shall not be taken for public use without
just compensation.”
Eminent domain is the inherent and indispensible power
of the State to forcibly acquire private property intended
for public use or purpose upon payment of just
compensation to the owner and to others who claim
interests therein. It is the right to take or reassert dominion
over property within the State for public use or to meet a
public exigency. It is a fundamental state power that is
inseparable from sovereignty. [Agpalo Commentary].
Who can exercise the power of Eminent domain?
The legislature exercises this power. The power may also
be delegated to local government [Forform, supra]. But the
right to expropriate is traditionally lodged with the
executive department, without need of statute authorizing
it [Agpalo Commentary].
Requisites of Eminent Domain [Manapat v CA]
[1] The property taken must be private property; 
 Eminent Domain
[2] There must be genuine necessity to take the 
private
property; 
 Source
[3] The taking must be for public use; 
 Constitution.
[4] There must be payment of just compensation; 
 Must be paid
[5] The taking must comply with due process of law 
 Compensation
Private Property
The usual property, which is expropriated in eminent
domain proceedings, is real property. However,
according to the case of ABSCBN v. PMMSI, airwaves
are also included. Note: Ma‘am Gwen said that airwaves
might be the subject of eminent domain. But it must be
taken into account that airwaves are already property of
the State based on the regalian doctrine [Tamase Notes].
Taking of Private Property:
The case of Forform, supra, provides circumstances,
which need to be present for there to be a valid taking in
an eminent domain proceeding:
[1] The expropriator must enter a private property 

[2] The entrance into private property must be for 
more
than a momentary period; 
 public. It is measured in terms of right of the public to use
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Prof. De Vera
[3] The entry into the property should be under 
warrant or
color of legal authority; 

[4] The property must be devoted to a public purpose 
or
otherwise informally, appropriately or 
injuriously affected;
[5] The utilization of the property for public use must 
be in
such a way as to oust the owner and deprive him of all
beneficial enjoyment of the property. 

Eminent Domain v. Regulatory Taking
Regulatory taking is taking in exercise of the State‘s
police power. In addition to this, just compensation need
not be paid in order for the taking to be valid.
Eminent Domain taking requires that the property taken be
for public use and that just compensation is paid as part of
due process.
―According to noted constitutionalist, Fr. Joaquin Bernas,
SJ, in the exercise of its police power regulation, the state
restricts the use of private property, but none of the
property interests in the bundle of rights which constitute
ownership is appropriated for use by or for the benefit of
the public. Use of the property by the owner was limited,
but no aspect of the property is used by or for the public.
The deprivation of use can in fact be total and it will not
constitute compensable taking if nobody else acquires use
of the property or any interest therein‖ [Didipio v Gozun]
In sum:
Regulatory
Taking
Inherent power of Police powers of
the State from the the State.
Need not be paid.
Just
Public Use
The public use requirement for a valid exercise of eminent
domain power is a flexible and evolving concept. At
present whatever may be beneficially employed for the
general welfare satisfies the requirement.
2 approaches may be used. The first is public employment
or actual use by the public. The second, is public
advantage or benefit, which is subject to constant growth,
for as society advances, its demands upoin the individual
so increases, and each demand is a new use to which the
resources of the individual may be devoted [Agpalo
Commentary].
However, the term is not confined to actual use by the
E2019 Reviewer CONSTITUIONAL LAW 2
proposed facilities for which confirmation is sought.
Whatever is beneficially employed for the community
is a public use.
Q: May the government choose any private property it
likes?
A: No. In the case of De Knecht v. Bautista, the SC
tackled a case wherein the gov‘t had to choose, which
route a road extension would take. The SC eventually
ruled that the government may not arbitrarily choose what
private property should be taken.
Q: If the land expropriated no longer serves a public
use, may the previous owner recover or repurchase?
A.: Yes. In the case of Heirs of Manalo v Mactan-Cebu,
the SC ruled that since the subject property no longer
served a public function, the petitioners had the right to
repurchase.
Just Compensation
Just compensation is defined as the full and fair
equivalent of the property taken from its owner by the
expropriator [Agpalo Commentary].
The measure of just compensation is not just the taker‘s
gain but the owner‘s loss. The compensation to be just
must be fair, not only to the owner but also to the taker.
Thus, without just compensation, expropriation is not
consummated.
Guiding factors in determination of just compensation
[Agpalo Commentary]:
(1) The reasonable market value of a property, which
is what it should bring when offered for sale by
one who desires but is not obliged to sell
(2) The value of the property sought to be
expropriated.
Q: When is the value of just compensation
determined?
A: The general rule is that the value of just compensation
is determined at the time of the filing of the complaint for
expropriation [Sec 4, Rule 64, ROC]. It is also important to
note that inflation will not be considered in determining
what the value is [Nepomuceno v CA].
Where actual taking was made, without the benefit of
expropriation proceedings however, and the owner
sought recovery of the possession of the property prior to
the filing of expropriation proceedings, the Court has
invariably ruled that it is the value of the property at the
time of taking that is controlling for purposes of
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Prof. De Vera
compensation. [Forform, supra]
Q: Who has the authority to determine just
compensation?
A: The Court, the determination of just compensation is a
judicial function [EPZA v Dulay].
The market value of the stated by the city assessor alone
cannot substitute for the court‘s judgment in expropriation
proceedings. It is violative of the due process and the
eminent domain provisions of the Constitution to deny to a
property owner the opportunity to prove that the valuation
made by the local assessor is wrong or prejudiced
[Manotok v. NHA, lifted from Harry Roque reviewer].
In EPZA, the SC invalidated several PD‘s that prescribed
the amount to be compensated in expropriation
proceedings. Laws may be passed to be a guide for
determining just compensation; however laws may not be
passed in outright determining it as it infringes the right of
the Courts to determine just compensation.
Delegation to Local Government:
Sec. 19 of the Local Gov’t Code of 1991 authorizes local
gov‘t units to exercise the right of eminent domain
provided that the following requisites are complied with
[Agpalo Commentary]:
(1) An ordinance is enacted by the local gov‘t
legislative body authorizing the chief executive,
on behalf of the local gov‘t unit, to exercise the
power of eminent domain;
(2) The power is exercised for public purpose or
welfare or for the benefit of the poor and
landless;
(3) There is payment of just compensation; and
(4) A valid and definite offer has been previously
made to the owner of the property sought to be
expropriate and the offer was not accepted.
E. NON-IMPAIRMENT OF CONTRACT CLAUSE
Art. III, Sec. 10:
“No law impairing the obligation of contracts shall be
passed.”
Concept
This provision prohibits the passing of a law that changes
the terms of an already existing contract, by:
Changing the time or mode of performance
Imposing new conditions
Dispensing with those expressed in the contract
Authorizing something different from terms
provided
E2019 Reviewer CONSTITUIONAL LAW 2
Withdraws remedies for the enforcement of the
rights of the parties. [BANAT v. COMELEC, GR
No. 177508]
The change must be substantial [refer to above what is
considered as substantial]. Thus, a change in procedural
remedies which doesn‘t diminsh substantive rights or
increase substantive obligations doesn‘t violate the
guarantee [Bernas Commentary].
The law must effect a change on the rights of the parties
to the contracts, and not to non-parties [Bernas
Commentary].
The ―law‖ referred to must be enactmens passed by a
governmental law-making body [Bernas’ Commentary]. It
serves a limit only on the exercise legislative‘s power, and
not judicial or quasi-judicial power [Bernas Commentary].
The prohibition is based on the principle that laws newly
enacted have only a prospective operation and cannot
affect acts or contracts already perfected; however, as to
laws already in existence, their provisions are read into
contracts and deemed a part thereof [Serrano v Gallant].
Scope of Constitutional Provision
Q: Are timber license agreements such as those
granted by DENR considered contracts?
A: No! A license agreement is defined as a privilege
granted by the State to a person to develop, protect, and
rehabilitate the forest resources within any forest land
according to the terms and conditions set in the
agreement. It is settled in jurisprudence that license
agreements aren‘t the contracts contemplated and
protected by due process and non-impairment of contracts
clauses. Given that timber licenses are mere priviliges, the
State may validly revoke such license if the terms and
conditions were violated [Republic of the Philippines v.
Pagadian City Timber Co., Inc., GR No. 159308].
Q: When PAGCOR, a franchise, was created, it was
granted a tax exemption. A subsequent law was
passed revoking such exemption. PAGCOR is now
claiming that the subsequent law violated the non-
impairment clause.
Are franchise contracts fall within the purview of the
non-impairment clause?
A: No! Franchise ―contracts‖, even if referred as
―contracts‖, is merely a privilege granted by the State. As
provided in Art. 12, Sec. 11 of the 1987 Constitution, no
franchise for the operation of a public utility shall be
10
Prof. De Vera
granted except under the condition that such privilege
shall be subject to amendment, alteration or repeal by
Congress as and when the common good so requires.
Since PAGCOR is a franchise, the privilige granted to it
can be validly repealed by the Congress [PAGCOR v.
BIR, GR No. 172087].
Q: What is NOT included in the scope of the Non-
Impairment clause?
A: Exercise of Quasi-Judicial powers of a department,
even if affirmed by the President. In the case of Hacienda
Luisita v PARC, the Supreme Court held that the
administrative process in such a case partakes more of an
adjudicatory character and lacking legislative significance.
The SC held that the recall of the SDOA is necessarily an
exercise of Quasi-Judicial Power of PARC. The
questioned PARC decision was not a legislative act or
administrative order that prescribed regulations. Rather, it
was a decision on the competing allegations on the non-
performance of the SDOA.
VALID Impairment of Contracts
Q: WON the Court can invalidate contracts concerning
forest lands?
A: Yes, it is a valid exercise of police power because the
State has an interest in preserving forest lands.
Furthermore, neither property rights nor contract rights are
absolute, for government cannot exist if citizen may at will
use property for fellow citizen‘s detriment, or exercise
freedom of contract to harm them. Preservation of forest
lands could entail intrusion upon contractual rights if it is
for the benefit of the many [Land Bank of the Philippines
v. Republic of the Philippines, GR No. 150824].
Q: SURNECO, an electric cooperative, was authorized
by National Electrification Administration [NEA] to
impose certain rates. Subsequently, RA 9136 [Electric
Power Industry Reforms Act of 2001 aka EPIRA] was
passed, where it placed caps on the rates that
cooperatives could charge.
Can SURNECO claim that EPIRA impair a contract?
A: No! It was a valid exercise of police power. When
private property is used for a public purpose and is imbued
with public interest, it becomes subject to regulation in
order to promote the common good [SURNECO v. ERC,
GR No. 183626].
Q: A homeowners’ association tries to stop a school
from operating beyond what is allowed in the Deed of
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

Restrictions annotated on its land title. The school

justifies itself by saying that a municipal ordinance
has been passed in the name of police power that has
the effect of nullifying such restriction.

Does the municipal ordinance nullify the obligations

incurred in the Deed of Restrictions?

A: No! The Court recognizes that the passing of the

municipal ordinance, invalidating restrictions set by private
developers regarding the use of land, was a valid exercise
of police power, but it did not intend to impair all previous
legal obligations. Conflicting rights [including rights arising
from contracts which are protected under the non-
impairment clause of the Constitution] should be
reconciled, instead of being nullified against each other.
What the Court did was to harmonize the municipal
ordinance with the Deed of Restrictions by ruling that the
latter still applies since the rezoned area didn‘t undergo
radical changes that was seen in several jurisprudence,
which necessitated the rezoning and mooted the deeds of
restrictions in those cases [The Learning Child v. Ayala
Alabang Village Association, GR No. 134269].

- End of Chapter I -

Notes:

11
E2019 Reviewer CONSTITUIONAL LAW 2
II. EQUAL PROTECTION
Art. III Sec. 1:
“No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be
denied equal protection of the laws.”
A. EQUAL PROTECTION DEFINED
Equal protection simply means that all persons or things
similarly situated must be treated alike both as to the
rights conferred and the liabilities imposed. [Soriano v.
Laguardia, 2009].
Q: Does this mean that the equal protection clause is
absolute?
A: No. According Phil. Judges Association v Prado, the
Supreme Court ruled that the equal protection clause does
not prevent the Legislature from establishing classes of
individuals or objects upon, which different rules shall
operate so long as the classification is not unreasonable.
Classification
A classification has been defined as the grouping of
persons or things similar to each other in certain
particulars and different from each in these particulars
[Agpalo Constitution Commentary].
Q: Is drawing a classification prohibited by this
provision?
A: Drawing a classification between people is not
unconstitutional per se. It is the arbitrary and
unreasonable classification that is prohibited by this
provision. Thus, if the classification is based on
reasonable and real differentiations, one class can be
treated differently from another class. [Dumlao v
COMELEC, 1980].
Valid Classification
Reasonableness is the standard to determine a valid
classification. In Ichong v Hernandez, Ichong along w/
other aliens and alien corporations assailed the
constitutionality of RA 1180 (An Act to Regulate the Retail
Business), which prohibited foreign participation in retail
business. The Supreme Court subsequently upheld the
constitutionality of the RA. They ruled that Filipinos who
owe allegiance to the country should first and foremost be
in control of the economy. Further, the court ruled that
sympathy for his fellow Filipino would lead to less
exploitation.
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Prof. De Vera
Requisites for a Reasonable Classification: People v.
Cayat
[1] The classification must rest on substantial distinctions
which make real differences
[2] It must be germane to the purposes of law
[3] It must apply equally to all members of the class; and
[4] It must not be limited to existing conditions only.
“Not limited to existing conditions”
As illustrated in the case of Ormoc Sugar Central v
Ormoc City, a tax was imposed on Ormoc Sugar
Company only as it was the only sugar company in the
area. However, the Supreme Court subsequently struck
the ordinance down for being violative of the equal
protection clause. The court ruled that the ordinance was
th
limited to the present conditions, which violated the 4
requisite of reasonableness because it did not take into
account the possible creation of other sugar companies in
Ormoc in the future.
Q: What is the extent of the Equal Protection clause?
A: It is aimed at ALL State actions and not just legislature.
In the case of Biraogo v. Phil. Truth Commission, the
Supreme Court ruled that the order of President Noynoy
Aquino in investigating only the Arroyo administration was
in violation of the equal protection clause. The court ruled
that the Arroyo administration was part of a class, and not
a class of its own.
Q: What other tests can be used in the area of Equal
Protection?
A: In the case of Serrano v Gallant Maritime Services,
Sec 10 par 5 of RA 8042 [Migrant Workers and Overseas
Filipinos Act] was challenged for being unconstitutional as
it violated the equal protection clause – the provision
differentiated employees w/ contracts longer than 1 year
and those who have fixed terms. Here, the Supreme Court
used the Strict Scrutiny test, which was used in the case
of US vs Carolene Products.
The Strict Scrutiny test is to be used when there is an
intrusion upon a fundamental right or a suspect
classification is created – classification w/out basis.
The Supreme Court held that in using the Strict Scrutiny
test the government must prove a compelling state interest
is present and that there is absence of less restrictive
means to achieve such interest.
This case also provided for other tests that may be used in
the area of Equal Protection:
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

Rational Intermediate Strict

Classificatio Gender, Suspect
ns in Illegitimacy classificatio
Concern: General ns &
Fundament
al Rights
Substantial Substantial Compelling
Distinction, Gov‘t Interest state
Germane to and interest &
the purpose Availability of Absence of
of Law, Not restrictive less
Requisite:
limited to means restrictive
existing means
conditions,A
pplies to all
in a class
People v Michael v Serrano v
Case
Cayat Superior Gallant
Example:
Court

Intermediate Scrutiny Case example: Michael v

Superior Court [lifted from Harry Roque Reviewer C2017]

Several statutes were assailed because they contained

gender-based classification realistically reflect the fact that
sexes are not similarly situated in certain circumstances.

The state interest promoted here was to avoid teenage

pregnancies. Thus men under 18 were punished if they
committed sexual activity w/ a woman not his wife.
Subsequently, the Court held that that the Equal
Protection clause does not demand that a statute
necessarily apply equally to all persons or require ‗things
which are different in fact . . . to be treated in law as
though they were the same,‘ this Court has consistently
upheld statutes where the gender classification is not
invidious, but rather realistically reflects the fact that the
sexes are not similarly situated in certain circumstances.

- End of Chapter II -

Notes:

13
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

the offense are in the place sought to be searched.

III. SEARCHES AND SEIZURES
[Nala v. Barroso Jr.]

Art. III, Sec. 2:
―The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for the
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.”
A. PROPER PARTIES
This provision cannot be invoked against acts committed
by private individuals. This is a restraint directly only
against the government and its agencies under law
enforcement. [People v. Marti]
The legality of a seizure may only be contested by the
party whose rights have been impaired thereby. [Stonehill
v. Diokno]
B. SEARCH WARRANTS
A search warrant is an order in writing, issued by a
justice or other magistrate, in the name of the state,
directed to a sheriff, constable, or other officer,
commanding him to search a specified house, shop, or
other premises, for personal property alleged to have been
stolen, or for unlawful goods, and to bring the same, when
found, before the magistrate, and usually also the body of
the person occupying the premises, to be dealt with
according to law. [Black’s Law Dictionary]
Requisites for a valid search warrant [Nala v. Barroso
Jr.]
1. Existence of probable cause;
2. Personal determination of probable cause by a
judge;
3. Personal determination after examination under oath
or affirmation of the complainant and the witnesses he
may produce;
4. Complainant and witnesses testify on facts
personally known to them; and
5. Particular description of the place to be searched
and the persons or things to be seized.
Mere conclusions of law do not justify probable cause. A
statement in the application for a warrant saying that the
items to be seized were continuously being used as a
means of committing an offense is a conclusion of law,
and does not justify the existence of probable cause
which has to be supported by particular facts. [Burgos
Sr. v. Chief of Staff]
Personal Determination by a Judge
―The judge must not simply rehash the contents of the
affidavits but must make his own extensive inquiry on
the existence of such license, as well as on whether the
applicant and the witnesses have personal knowledge
thereof.‖ [Nala v. Barroso Jr.]
―The examining magistrate must not simply rehash the
contents of the affidavit but must make his own inquiry
on the intent and justification of the application.‖ [Roan
v. Gonzales]
Personal Examination of Complainant and
Witnesses by a Judge
Personal examination of complainant and witnesses
must be in the form of searching questions and
answers, in writing and under oath. [Sec. 6, Rule 126,
ROC]
Mere affidavits are not sufficient. The judge himself
must ask searching questions while examining the
complainant and witnesses. The examination must be
probing and exhaustive. [Roan v. Gonzales]
―In determining the existence of probable, the examining
magistrate must make a probing and exhaustive, not
merely routine or pro forma examination of the
applicant and the witnesses.‖ [Nala v. Barroso Jr.]
Testimony Based on Personal Knowledge
Personal knowledge is not the same as personal belief.
[Nala v. Barroso Jr.]
The testimony must be based on the own personal
knowledge of the complainant and of the witnesses, not
mere hearsay or information from a ―reliable source‖.
[Alvarez v. CFI]

Particularity of Description
Probable Cause
The items to be seized must be so particular as to [1]
Probable cause is defined as such facts and
provide definite guidelines; and [2] not allow discretion
circumstances which would lead a reasonably discreet
on the part of the searching officers. [Nolasco v. Pano]
and prudent man to believe than an offense has been
committed, and that objects sought in connection with

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E2019 Reviewer CONSTITUIONAL LAW 2
A general warrant is one that does not describe with
particularity the things that are the subject of the search
and seizure; and where probable cause has not been
properly established. It is a void warrant. [Nolasco v.
Pano]
Particularity is required so that there would be no
issuance of general warrants, which are those that are
not particular as to the person to be arrested or the
property to be seized. It allows the seizure of one thing
under a warrant describing another and gives the officer
executing the warrant the discretion over which items to
take. Allowing officers to do so would create
arbitrariness. [World Wide Web Corporation v.
People]
In Nala v. Barroso Jr., it was held that an error in the
name of the person in the search warrant does not
invalidate the warrant, as long as it contains a
description personae [including additional
descriptions] that will enable will enable the officer to
identify the accused without difficulty.
Effect of a VOID Search Warrant
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 unconstitutionality of the search and the seizure, or
the use of a void search warrant, renders the items seized
inadmissible in evidence. Exclusion is the only practical
way of enforcing the constitutional privilege. [Stonehill v.
Diokno]
Valid warrantless searches [People v. Aruta]
1. Search incidental to lawful arrest;
2. Seizure of evidence in plainview;
3. Search of a moving vehicle;
4. Consented search;
5. Customs search;
6. Stop-and-frisk; and
7. Exigent and emergency circumstances
In the circumstances mentioned above, probable cause
must still be present.
Incidental to Lawful Arrest
A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as
proof of the commission of an offense, without a
search warrant. [Sec. 6, Rule 126, Rules of Court]
15
Prof. De Vera
As an incident of an arrest, the premises where the
arrest was made can also be searched without a
search warrant. [Nolasco v. Pano]
An ―arrest being incipiently illegal, it logically follows
that the subsequent search was similarly illegal.‖
[People v. Aruta]
Plainview Doctrine
Requisites [People v. Aruta]
1. Prior valid intrusion based on the valid warrantless
arrest, in which the police are legally present in the
pursuit of their official duties;
2. Evidence was inadvertently discovered by the
police who had a right to be where they were;
3. Evidence must be immediately apparent; and
4. Evidence was seized without further search.
Search of a Moving Vehicle
A search of a moving vehicle does not require a search
warrant because of the presence of the distinct
character of mobility. Securing a search warrant is not
practicable since the vehicle can quickly be moved out
of the jurisdiction where the warrant must be sought.
[Papa v. Mago]
The mobility of a vehicle reduces the expectation of
privacy especially in circumstances where its transit
furnishes a reasonable suspicion amounting to probable
cause of the commission of an offense. [People v.
Aruta]
In a case where the accused had already alighted the
moving vehicle when searched, the search was held as
invalid since she had no chance of using the mobility of
the vehicle to escape authorities. [People v. Aruta]
Consented Search
Requisites for a valid waiver of the constitutional right
[Manalili v. CA]
1. Right to be waived exists;
2. Person waiving it has actual knowledge of said
right; and
3. Person has an actual intention to waive said right.
Mere passive conformity is not consent or a valid waiver
under the constitutional guaranty. [Anaig v. COMELEC]
Stop-And-Frisk
―Where a police officer observes unusual conduct which
leads him reasonably to conclude in the light of his
experience that criminal activity may be afoot and that
the person with whom he is dealing may be armed and
presently dangerous, where in the course of
E2019 Reviewer CONSTITUIONAL LAW 2
investigation of this behavior he identifies himself as a
policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others' safety,
he is entitled for the protection of himself and others in
the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover
weapons which might be used to assault him.‖ [Terry v.
Ohio]
Test for validity of a stop-and-frisk search:
1. There must be specific and articulable facts which,
taken together with rational inferences, reasonably
warrant the intrusion.
2. The officer must identify himself and make
reasonable inquiries
3. The ―frisk‖ is permitted to search for weapons for
the protection of the police officer, where he has
reason to believe that he is dealing with an armed
and dangerous individual, regardless of probable
cause for a crime.
4. The scope of the search is limited to the outer
surface of the subject‘s clothing.
The standards set in Terry v. Ohio (above) were
applied in the case of Malacat v. CA. The behavior of
Malacat, who was merely standing in Plaza Miranda
when he was apprehended and searched by a police
officer, could not have led the officer to believe that
there was a reason to make the search. A grenade was
found tucked in front of Malacat‘s waistline, an area
beyond the scope permitted in searches under stop-
and-frisk.
Exigent and Emergency Circumstances
In People v. Grecia, as cited in People v. Aruta,
existing circumstances show that a crime was already
being committed. The raid and seizure of firearms and
ammunition during a coup d‘etat was held valid,
considering the exigent and emergency situation. The
military operatives had no opportunity to apply for a
warrant since the courts were closed; but under such
urgency, the requirement of a search warrant is not
necessary.
Not among those enumerated in People v. Aruta, but also
recognized as an exception to the requirement of a search
warrant are visual searches at checkpoints, as the
establishment of such is a valid exercise of police power to
ensure security and safety.
According to Valmonte v. De Villa, routine checkpoints
are valid if:
16
Prof. De Vera
1. Vehicle is neither searched, nor its occupants
subjected to a body search; and
2. Inspection is merely limited to a visual search of the
vehicle.
C. ARREST WARRANTS
An arrest warrant is a written order, issued and signed by
a magistrate, directed to a peace officer or some other
person specially named, and commanding him to arrest
the body of the person named in it, who is accused of an
offense. [Black’s Law Dictionary]
Requisites for a Valid Arrest Warrant
1. Existence of probable cause;
2. Personal determination of probable cause by a judge;
3. Complainant and witnesses testify on facts personally
known to them; and
4. Particular description of the person/s to be arrested
and of the crime/s
Personal Determination by a Judge:
Search Warrant vs. Arrest Warrant
The judge need not personally examine the
complainant and the witnesses in an arrest warrant.
The Prosecutor can perform the same functions as the
commissioner for the taking of the evidence; and the
documents supporting the Fiscal‘s bare certification
must be presented to the judge. The requirement is
satisfied if the judge personally goes over the
records and determines probable cause. [Lim v.
Felix]
Effect of a VOID Arrest Warrant
A void arrest warrant would render the arrest invalid and
illegal.
The illegality of an arrest does not bar the state from the
prosecution of the accused. Despite illegality of both
search and arrest thus inadmissibility of evidence
acquired, guilt may still be established through eyewitness
testimony. [People v. Manlulu]
Valid Warrantless Arrests by a Private Person or a
Police Officer [Sec. 5, Rule 113, ROC]
1. When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense, [or in flagrante delicto arrest];
Arrests made in People v. Malmsted and People v.
Aminnudin were justified as arrests made in
flagrante delicto; however, only the arrest in Malmsted
was held valid by the Court because the accused was
actually committing the offense of possession of
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

illegal drugs when searched, and later on arrested. In

Aminnudin, the person was not committing a crime
when arrested, but merely walking down a ship. The
basis of the arrest was a previous intelligence report;
and the Court ruled that the arresting officers could
have obtained a warrant prior to the arrest.

The search and seizure, or arrest based on the

charges of rebellion does not require a warrant
because of the nature of the charges as a continuing
offense; hence, the accused is always assumed to be
committing the crime. The arrest would fall under in
flagrante delicto. [Umil v. Ramos]

Arrests made due to entrapment operations are

considered valid warrantless arrests under in
flagrante delicto. [Gwen De Vera]

2. When an offense has in fact just been committed, and

he has personal knowledge of facts indicating that the
person to be arrested has committed it, [or hot
pursuit arrest]; and

Requisites [People v. Mengote]

a) Offense has just been committed; and
b) Arresting officer had probable cause to believe
the accused committed the offense based on
personal knowledge.

In warrantless arrests, it is not sufficient that there be

reasonable ground to believe that a person committed
a crime. The arresting officer must have personal
knowledge that a crime has already been committed.
It is not enough when the information was merely
furnished by an informant. [People v. Burgos]

3. 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, (or
arrest of escaped prisoners).

- End of Chapter III -

Notes:

17
E2019 Reviewer CONSTITUIONAL LAW 2
IV. RIGHT TO PRIVACY
Art. III. Sec 3:
“(1) the privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation of this inadmissible
for any purpose in any proceeding.”
A. CONCEPT OF THE RIGHT TO PRIVACY
“The right to be let alone”
The Constitution does not have a specific provision
protecting the right to privacy. It is a penumbral right
formed from the shadows created by several constitutional
provisions. That is to say, the right to privacy is located
within zones created by various provisions of the
Constitution and various statutes which protect aspects of
privacy [Ople v. Torres].
Griswold v Connecticut
Specific guarantees in the Bill of Rights have penumbras
formed by emanations from these guarantees that help
give them life and substance . . . various guarantees
create zones of privacy.
The right of association contained in the penumbra of the
First Amendment is one, as we have seen. The Third
Amendment in its prohibition against the quartering of
soldiers "in any house" in time of peace without the
consent of the owner is another facet of that privacy. The
Fourth Amendment explicitly affirms the ''right of the
people to be secure in their persons, houses and effects,
against unreasonable searches and seizures." The Fifth
Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government may
not force him to surrender to his detriment. The Ninth
Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people."
Morfe v Mutuc: First Recognition of the Right
The right to privacy as such is accorded recognition
independently of its identification with liberty; in itself,
it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the
idea that governmental powers stop short of certain
intrusions into the personal life of the citizen. This is
indeed one of the basic distinctions between absolute and
limited government. Ultimate and pervasive control of the
18
Prof. De Vera
individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited government
safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private
sector — protection, in other words, of the dignity and
integrity of the individual — has become increasingly
important as modern society has developed. All the forces
of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy
and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life
marks the difference between a democratic and a
totalitarian society."
Ople v Torres enumerates the penumbras in the
Philippine Constitution which forms the constitutional right
to privacy:
Sec.1: Life, liberty and property
Sec 2: Unreasonable search and seizure
Sec 6: Liberty of abode
Sec 8: Right to form associations
Sec 17: Right against self-incrimination
B. VALID AND INVALID ENCROACHMENTS ON
RIGHT TO PRIVACY
The general rule is that an encroachment on the
right to privacy is invalid when:
(1) There is a reasonable expectation of privacy,
(2) If there is no compelling state interest.
Reasonable Expectation of Privacy
The reasonableness of a person‘s expectation of privacy
depends on a two-part test [Ople v Torres]:
a) Whether by his conduct, the citizen has displayed
an expectation of privacy (Subjective Expectation)
b) Whether this expectation of privacy is deemed
reasonable by society (Objective Expectatoin)
Note: The factual circumstances of the case determine
the reasonableness of the expectation. However, other
factors, such as customs, physical surroundings and
practices of a particular activity, may serve to create or
diminish this expectation. [Ople v Torres]
VALID INTRUSIONS
Valid Intrusions by Virtue of Art. III, Sec. 3:
Lawful order of the court
When public safety or order requires otherwise
prescribed as law
E2019 Reviewer CONSTITUIONAL LAW 2
Valid Intrusions in Jurisprudence
Public Figures
The right to be let alone is not an absolute right. A
limited intrusion into a person‗s privacy has long been
regarded as permissible where that person is a public
figure and the information sought to be elicited from him
or to be published about him constitute matters of a public
character. The interest sought to be protected by the right
of privacy is the right to be free from unwarranted
publicity, from the wrongful publicizing of the private
affairs and activities of an individual which are outside the
realm of legitimate public concern.
C. EFFECTS OF INVALID INTRUSIONS
Section 3 (2) Article III aka the Exclusionary rule
Generally applicable against government intrusions
Zulueta v CA (jurisprudence that applied the
Exclusionary rule against private citizens)
The Exclusionary Rule
Any violation of this provision renders the evidence
obtained inadmissible for any purpose in any
proceeding.
Q: Can the exclusionary rule be applied as against
private individuals who violate the right to privacy?
A: Yes. Although generally, the Bill of Rights can only be
invoked against violations of the government, the Court
has recognized an instance where it may also be applied
as against a private individual.
Thus, in a legal separation case [Zulueta v CA] where the
wife took her husband‘s private documents and papers to
be used as evidence in the case, without his knowledge
and consent, the Court held that the intimacies between
husband and wife do not justify any one of them in
breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital
infidelity. A person, by contracting marriage, does not
shed his/her integrity or his right to privacy as an
individual and the constitutional protection is ever
available to him or to her.
The law insures absolute freedom of communication
between the spouses by making it privileged. Neither
husband nor wife may testify for or against the other
without the consent of the affected spouse while the
marriage subsists. Neither may be examined without the
consent of the other as to any communication received in
confidence by one from the other during the marriage,
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Prof. De Vera
save for specified exceptions. But one thing is freedom of
communication; quite another is a compulsion for each
one to share what one knows with the other. And this has
nothing to do with the duty of fidelity that each owes to the
other.
D. WRIT OF HABEAS DATA
Section 1 of the Rule on the Writ of Habeas Data:
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 information regarding the
person, family, home and correspondence of the
aggrieved party.
The writ of habeas data is an independent and summary
remedy designed to protect the image, privacy, honor,
information, and freedom of information of an
individual, and to provide a forum to enforce one’s
right to the truth and to informational privacy.
It seeks to protect a person‘s right to control information
regarding oneself, particularly in instances in which such
information is being collected through unlawful means in
order to achieve unlawful ends.50 It must be emphasized
that in order for the privilege of the writ to be granted,
there must exist a nexus between the right to privacy on
the one hand, and the right to life, liberty or security on the
other
The determination of whether the privilege of the writ of
habeas data, being an extraordinary remedy, may be
granted in this case entails a delicate balancing of the
alleged intrusion upon the private life of Gamboa and
the relevant state interest involved. [Gamboa v Chan].
- End of Chapter IV -
Notes:
E2019 Reviewer CONSTITUIONAL LAW 2
V. RIGHTS OF THE ACCUSED
Art. III, Section 17:
“No person shall be compelled to be a witness against
himself.”
A. RIGHT AGAINST SELF-INCRIMINATION
The right against self-incrimination secures to a witness,
whether he is a party or not, the right to refuse to answer
any particular incriminating question [i.e. the answer to
which might incriminate him for a crime].
It is accorded to every person who gives evidence,
whether voluntarily or under compulsion of a subpoena.
This does not, however, include corporations.
Reasoning behind this right:
[1] It would place the witness against the strongest
temptation to commit perjury; and
[2] The law abhors the extortion of a confession by force
When Can This Right Be Invoked?
• This right may only be invoked for that specific
incriminating question, however, and cannot be claimed
for any other time. [Sabio vs. Gordon, G.R. No.
174340]
• It does not give a witness the right to disregard a
subpoena and decline to testify altogether. The
witness must still take the stand, be sworn, and answer
questions. It is the duty of his counsel to advise him of
his right against self-incrimination.
• All proceedings sanctioned by law (even outside the
court) and cases in which punishment/criminal
prosecution is sought for.
• This applies to administrative investigations with a penal
aspect, being analogous to criminal proceedings, and a
fact-finding investigation by an ad-hoc committee.
The Accused vis-à-vis an Ordinary Witness:
• Note that an accused occupies a different tier of
protection from an ordinary witness.
• The defendant in a criminal case cannot be compelled
by subpoena or any other process or order of the
court to testify or produce evidence in the criminal
case in which he is the accused or one of the
accused. In other words, he can refuse to testify
altogether.
• An ordinary witness may be compelled to testify
and invoke the right only against each question
requiring an incriminating answer. [People vs.
Ayson, G.R. No. 85215]
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Prof. De Vera
With Regards to Drug Testing of Persons Charged
With A Crime:
• Mandatory drug testing must be ―suspicionless‖ and
random.
• In the case of a person charged with a crime before
the prosecutor‘s office, a mandatory drug testing can
never be random or suspicionless because by virtue
of their being charged with a crime, they are
deliberately singled out. To impose mandatory drug
testing on the accused is a blatant attempt to harness
a medical test as a tool for criminal prosecution [SJS
vs Dangerous Drugs Board, G.R. No. 157870]
A violation of this right and the accused‘s right to remain
silent renders the judgment of conviction against him
invalid.
The right does not extend to the exclusion of his body as
evidence when it may be material [for example: when he is
required to take part in a police line-up]. It also does not
apply to photographing, fingerprinting, and paraffin-testing.
• In other words, it applies to compulsory testimony and
not to physical or mechanical acts that the accused
can be compelled to perform.
B. CUSTODIAL INVESTIGATION
Art. III, Sec. 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 violate the free will shall be used
against him. Secret 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 the
rehabilitation of victims of torture or similar practices, and
their families.”
Custodial Investigation: any questioning initiated by law
enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in
any significant way, held suspect for the commission of a
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

crime. It occurs after investigation ceases to be a general 3. who shall at all times be allowed to confer
inquiry into an unsolved crime and begins to focus on a privately with the person arrested, detained, or
particular suspect who is taken into custody and subjected under custodial investigation
to interrogations. [People vs. Morial, G.R. No. 129295]. 4. the right to be provided with a competent and
independent counsel by the investigating officer if
Not part of the custodial investigation: the person cannot afford the services of his own
• A police line-up. [People vs. Lara, G.R. No. counsel
199877].
Any waiver of these rights must be:
• A preliminary investigation by a prosecutor or trial in
1. Made in writing
court because the custodial investigation terminated
2. Signed by the person in the presence of his counsel.
at the time of the filing of the complaint with the
prosecutor‘s office or with the court.
Otherwise the waiver is null and void and of no effect. The
burden is on the prosecution to prove with clear and
An individual brought to the police station as the suspect
convincing evidence that the accused was accorded these
of a crime is already under custodial investigation. In
rights before he extra-judicially admitted his guilt.
People vs. Guillen, it was wrong for the trial court to state
that the appellant‘s silence should be deemed as implied
RA 7438, Section 2. Rights of Persons Arrested,
admission of guilt considering the fact that his right to be
Detained or Under Custodial Investigation; Duties of
silent cannot be waived except in writing and in the
Public Officers. –
presence of counsel.
[a] Any person arrested detained or under custodial
On the other hand, RA 7438 extended the rights under
investigation shall at all times be assisted by counsel.
custodial investigation to an individual who has merely
been ―invited‖ for questioning.
[b] Any public officer or employee, or anyone acting
under his order or his place, who arrests, detains or
Miranda Rights
investigates any person for the commission of an offense
shall inform the latter, in a language known to and
Prior to any questioning, the person must be informed of
understood by him, of his rights to remain silent and to
his Miranda Rights:
have competent and independent counsel, preferably of
1. He has the right to remain silent
his own choice, who shall at all times be allowed to confer
2. That any statement he makes may be used as
privately with the person arrested, detained or under
evidence against him
custodial investigation. If such person cannot afford the
3. That he has the right to the presence of counsel,
services of his own counsel, he must be provided with a
either retained or appointed.
competent and independent counsel by the investigating
officer.
These rights may be waived provided the following
conditions are met:
[c] The custodial investigation report shall be
1. The waiver was made in writing voluntarily,
reduced to writing by the investigating officer, provided
knowingly, and intelligently
that before such report is signed, or thumbmarked if the
2. The waiver is made with the assistance of his
person arrested or detained does not know how to read
counsel.
and write, it shall be read and adequately explained to him
by his counsel or by the assisting counsel provided by the
There can be no presumption that the accused was
investigating officer in the language or dialect known to
informed of his rights or that he waived them.
such arrested or detained person, otherwise, such
investigation report shall be null and void and of no effect
RA 7438 [section 2 attached below] also provides for
whatsoever.
the right to be informed in a language known and
understood by the accused [by public officer,
[d] Any extrajudicial confession made by a person
employee, or person authorized] of his:
arrested, detained or under custodial investigation shall be
1. right to remain silent;
in writing and signed by such person in the presence of his
2. right to have competent and independent
counsel or in the latter's absence, upon a valid waiver, and
counsel, preferably of his own choice
in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal

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E2019 Reviewer CONSTITUIONAL LAW 2
judge, district school supervisor, or priest or minister of the
gospel as chosen by him; otherwise, such extrajudicial
confession shall be inadmissible as evidence in any
proceeding.
[e] Any waiver by a person arrested or detained
under the provisions of Article 125 of the Revised Penal
Code, or under custodial investigation, shall be in writing
and signed by such person in the presence of his counsel;
otherwise the waiver shall be null and void and of no
effect.
[f] Any person arrested or detained or under
custodial investigation shall be allowed visits by or
conferences with any member of his immediate family, or
any medical doctor or priest or religious minister chosen
by him or by any member of his immediate family or by his
counsel, or by any national non-governmental organization
duly accredited by the Commission on Human Rights of by
any international non-governmental organization duly
accredited by the Office of the President. The person's
"immediate family" shall include his or her spouse, fiancé
or fiancée, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and guardian
or ward.
C. RIGHT TO COUNSEL
The accused‘s right to counsel attaches from the start of
an investigation when the investigating officer starts to ask
questions.
Cases where this right is violated:
• Thus if the counsel arrives after the questioning has
been conducted, the right is violated.
• If the counsel‘s role is reduced to signing and being a
mere witness of a pre-arranged document, the
constitutional standard is also not met.
• The right is NOT provided for by the mere presence of a
lawyer in the courtroom or the mere propounding of
standard questions and objections—it means an
efficient and decisive legal assistance and not simple
perfunctory representation. [People vs. Sunga]
The violation of this right renders any information acquired
inadmissible. To reiterate, it was stressed in People vs.
Morial that an accused under custodial investigation must
continuously have a counsel assisting him in every phase
of the investigation from the very start up to its termination.
Right to Competent and Independent Counsel of His
Choice:
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Prof. De Vera
• The counsel must be ―competent and independent‖
and one preferably chosen by him with one assigned
to him if he cannot afford his own.
• When one is assigned to him, his failure to object to
such counsel is a waiver of his right.
• Competent counsel means one willing to fully
safeguard the constitutional rights of the accused as
opposed to one who would merely be giving routine,
peremptory and meaningless recital of his rights.
• Independent counsel is NOT:
1. A special counsel, public or private
prosecutor, counsel of the police, or a
municipal attorney whose interest is
admittedly adverse to the accused. [People
vs. Sunga]
2. A lawyer who is part of the police force
cannot be expected to effectively and
scrupulously assist a suspect [People vs.
Obrero]
• The purpose of this right is to make sure that the
accused can make an informed judgment on the
options that he is faced with as explained by a lawyer.
The lawyer must therefore remain diligent all
throughout the investigation.
Where there is only a perfunctory reading of the Miranda
rights to accused without any effort to find out from him
whether he wanted to have counsel and if so, whether he
had his own counsel or he wanted the police to appoint
one for him, it is merely ceremonial and inadequate.
[People vs. Obrero]
Statements Not Covered By Custodial Investigation:
• An accused‘s confession to a person who is not an
investigating officer/police officer is admissible
such as when one talks to another person in a
private meeting, spontaneously, fully and voluntarily
confessing to his commission of a crime
• The confession of an accused to the commission of
a crime when he has not been in custody (for
example, before the police are even aware of the
crime) is admissible even when he has not been
informed of his Miranda warnings
• In other words, the constitutional guarantees do not
apply to spontaneous statements not elicited
through questioning by the authorities and given
during an ordinary conversation or during media
interviews (except where the media acted under
the direction or control of the police)
E2019 Reviewer CONSTITUIONAL LAW 2
An admission or confession made by a suspect under
custodial investigation is admissible if it complies
with the following requirements:
1. It must be made voluntarily. That is, freely,
without coercion, intimidation, inducement, or
false promises. It must also be credible [in other
words, consistent with the normal experiences of
mankind] and intelligently [accused realises the
legal significance of his act]
2. It must be made with the assistance of competent
and independent counsel
3. It must be express and categorical
4. It must be in writing and in the language known
and understood by the confessant
5. It must be signed or thumbmarked by him [if he
doesn‘t know how to read and write]
Extrajudicial confessions are presumed voluntary and, in
the absence of conclusive evidence showing the
declarant‘s consent in executing the same has been
vitiated, such confession will be sustained.
D. RIGHT TO BAIL
Art. III, Sec. 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.”
Bail: the security given for the release of a person in
custody of the law, to guarantee his appearance before
any court as required under the conditions specified in the
bail bond. It may be given by a person charged in court or
in custody of the law who is not yet charged. It springs
from the presumption of innocence accorded every
accused.
Purpose of bail: to ensure that the accused will be
present during his trial and avoid his flight.
BAIL: RIGHT VS DISCRETIONARY
When bail is a matter of RIGHT for persons in
custody:
1. before or after conviction by the metropolitan trial
court, municipal trial court, and municipal circuit
court, of an offense in which the penalty does not
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Prof. De Vera
exceed 6 years [these courts have no jurisdiction
to try capital offenses]
2. before conviction by the regional trial court of an
offense not punishable by death, reclusion
perpetua, or life imprisonment
When bail is a matter of DISCRETION:
1. before conviction by the trial court of a capital
offense, when the evidence of guilt is not strong
2. after conviction of an offense not punishable by
death, reclusion perpetua, or life imprisonment
3. If the RTC has imposed a penalty of
imprisonment exceeding six years, provided none
of the circumstances enumerated under
paragraph 3 of Section 5, Rule 114 is present, as
follows:
(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.
The prosecution may present evidence for the denial of
bail only when it is a matter of discretion before conviction
in offenses punishable by death, reclusion perpetua, or
life imprisonment.
The right to bail may be waived where the offense charged
is punishable by any penalty lower than reclusion
perpetua.
A person may seek provisional release without waiting for
a formal complaint or information to be filed against him
because it is available to ―all persons‖ where the offense is
bailable, as long as the applicant is in the custody of the
law.
Exception to the Right to Bail:
• Accused military personnel triable by courts-martial
for violating the Articles of War is not entitled to the
right to bail because of the unique structure of the
military.
E2019 Reviewer CONSTITUIONAL LAW 2
It is also not a matter of right to those charged with
offenses punishable by reclusion perpetua when the
evidence of guilt is strong. The grant or denial of bail in
capital offenses hinges on the strength of the evidence
against the accused and it is the prosecution who must
bear the burden of proving this.
Thus, a court order granting or refusing bail must contain a
summary of the evidence for the prosecution followed by
its conclusion concerning the evidence. This is an aspect
of due process for both parties and a summary of
evidence found to be flawed will be remanded to the trial
court.
Summary Proceedings
The hearing for bail in capital offenses is summary:
• Again, the burden of proof in bail application lies in
the prosecution who must show that the evidence of
guilt is strong.
• Proceedings to determine this must be brief and
speedy methods of receiving and considering the
evidence of guilt and must be limited to the
determination of the bailability of the accused.
• Thus, the court must avoid excessive thoroughness in
the examination and cross-examination of witnesses
and confine itself only to what is essential to such a
determination.
• Remember that it is not trying the case on the merit,
but a hearing is required nonetheless to avoid
arbitrariness.
• The hearing for the application for bail must be
conducted even if the prosecution agrees to grant
bail. Regardless of whether or not the prosecution is
able to submit evidence, it is mandatory for the judge
to conduct a hearing and ask searching and
classificatory questions for the purpose of determining
the existence of strong evidence against the accused.
Duties of the trial court in a petition for bail in capital
offense:
1. notify the prosecutor of the hearing for the
application for bail or require him to submit his
recommendation
2. conduct a hearing of the application for bail
regardless of whether or not the prosecution
refuses to present evidence to show that the guilt
of the accused is strong for the purpose of
enabling the court to exercise its sounds
discretion
3. decide whether the evidence of guilt of the
accused is strong based on the summary of
evidence of the prosecution
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Prof. De Vera
4. if the guilt of the accused is not strong, discharge
the accused on the approval of the bailbond
A capital offense is not bailable as a rule because one
who faces a probably death sentence has a particularly
strong temptation to flee.
Factors to consider in fixing the amount of bail [Enrile
v Sandiganbayan]:
1. financial ability of the accused
2. nature and circumstances of the offense
3. penalty for the offense charged
4. character and reputation of the accused
5. age and health of the accused
6. weight of the evidence against the accused
7. probability of the accused appearing at the trial
8. forfeiture of other bail
9. the fact that the accused was a fugitive from
justice when arrested
10. pendency of other cases where the accused is on
bail
The amount of bail should be ―reasonable at all times‖
Enrile vs. Sandiganbayan
The court was guided by the purpose of this right which is
to guarantee the appearance of the accused at the trial or
whenever so required by the court and in consideration of
humanitarian reasons
They primarily considered the Philippines‘ national
commitment to the Universal Declaration of Human Rights
— uphold the fundamental human rights as well as value
the worth and dignity of every person. This authorized the
grant of bail not only to those charged in criminal
proceedings but also to extraditees upon a clear and
convincing showing:
1. That the detainee will not be a flight risk or a danger
to the community; and
• His social and political standing and his having
immediately surrendered to the authorities upon his
being charged in court indicate that the risk of his
flight or escape from this jurisdiction is highly unlikely.
His personal disposition from the onset of his
indictment for plunder, formal or otherwise, has
demonstrated his utter respect for the legal processes
of this country.
• his solid reputation in both his public and his private
lives, his long years of public service, and history‘s
judgment of him being at stake, he should be granted
bail.
E2019 Reviewer CONSTITUIONAL LAW 2
2. That there exist special, humanitarian and
compelling circumstances
• The currently fragile state of Enrile‘s health presents
another compelling justification for his admission to
bail
• Enrile‘s advanced age and ill health required special
medical attention
• Bail for the provisional liberty of the accused,
regardless of the crime charged, should be allowed
independently of the merits of the charge, provided
his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed,
denying him bail despite imperiling his health and life
would not serve the true objective of preventive
incarceration during the trial.
E. RIGHTS DURING TRIAL
Art. III, Sec 14:
[1] No person shall be held to answer for a criminal
offense without due process of law.
[2] In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. However,
after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable.
Section 1, Rule 115 of the revised Rules of
Criminal Procedure.
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
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Prof. De Vera
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 cannot 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.
Right to Due Process
Art. III, Sec. 14[1] refers to procedural due process which
refers to a law which hears before it condemns—
proceeds upon inquiry, and renders judgment only after
trial.
In a criminal prosecution, due process is satisfied if the
following conditions are present:
1. a court or tribunal clothed with judicial power to
hear and determine the matter before it
2. jurisdiction must be lawfully acquired by it over
the person of the defendant and over the offense,
which is the subject of the proceeding
3. the defendant must be given an opportunity to be
heard
4. judgment must be rendered by a tribunal
presided by an impartial and unbiased judge
E2019 Reviewer CONSTITUIONAL LAW 2
upon lawful hearing and due observance of the
rights of the accused
In Galman vs. Sandiganbayan, the President issued an
amendatory decree which made it possible to refer cases
to the Sandiganbayan.
• No court whose Presiding Justice received ―orders or
suggestions‖ from a President whose decree made it
possible to refer a case to his court can be on
impartial court which is the essence of due process.
• Jurisdiction over cases should be determined by law
and not by preselection of the Executive, which could
be much too easily transformed into a means of
predetermining the outcome of individual cases.
• This criminal collusion as to the handling and
treatment of the cases by public respondents at the
secret Malacañang conference completely
disqualified respondent Sandiganbayan and voided
ab initio its verdict.
Right to Be Presumed Innocent
An accused is presumed innocent until the contrary is
proved beyond reasonable doubt. This presumption
prevails unless overturned by competent and credible
proof that shows all the essential elements of the crime
which the defendant is charged with. In the absence of
such proof, he is entitled to an acquittal regardless of
whether his moral character is good or bad.
Reasonable doubt should necessarily pertain to the facts
constitutive of the crime charged and discrepancies that
touch on significant factors which are crucial to the guilt or
innocence of an accused. On the other hand,
inconsistencies in details which are irrelevant to the
elements of the crime are not grounds for acquittal. The
reasonable doubt must arise from the evidence adduced
or lack of evidence. In order to convict an accused, the
circumstances of the case must exclude all and each and
every hypothesis inconsistent with his innocence.
Absolute certainty is not demanded by the law, all that is
required is moral certainty.
The presumption of innocence is not violated by the
presumption of guilt arising from certain facts proved and
by shifting to the accused the burden of proof to show his
innocence.
Equipoise Rule: if the inculpatory facts and
circumstances are capable of two or more explanations
[one being consistent with the innocence of the accused
26
Prof. De Vera
and the other with his guilt] then the evidence does not
fulfill the test of moral certainty and is not sufficient to
support a conviction of the accused.
Right to Be Informed
An accused is entitled to be informed of the nature and
cause of the accusation against him. The right to be
informed requires that the complaint or information be so
written as to allege the facts constituting the offense
charged and all its elements.
Objects of written accusations: [Lacson vs. Executive
Secretary]
1. furnish the accused with a description of the
charge against him that will enable him to make
his defense
2. avail himself of his conviction or acquittal for
protection against a further prosecution for the
same cause
3. to inform the court of the facts alleged so that it
may decide whether they are sufficient in law to
support a conviction
Facts must be stated, not conclusions of law. Such facts
must be reasonably particular with regards to time, place,
names, and circumstances. An indictment must fully state
the elements of the specific offense alleged to have been
committed — an accused cannot be convicted even if duly
proven unless this is complied with. [People vs. Flores]
Right to Counsel In Criminal Prosecution
The accused has the following rights:
1. right to counsel (generally not waivable)
2. right to be present at every stage of the criminal
proceedings (may be waived by being
represented by counsel, except in arraignment
and when his identification as an accused is
required by the prosecution)
3. right to defend himself in person
This right simply means that the accused is accorded legal
assistance extended by a counsel who commits himself to
the cause of the defense and acts accordingly.
This recognizes the fact that the litigant may be ignorant of
the substantive and procedural laws which are applied to
resolve disputes.
The presence and participation of counsel in criminal
proceedings is a part of due process which cannot be
taken lightly. Violations of this right may nullify or reverse
judgments rendered with regards to the accused.
E2019 Reviewer CONSTITUIONAL LAW 2
Waiver of right to counsel
The right to counsel of an accused is absolute or
immutable. However, his option to secure the services of
counsel de parte is not. If the accused insists on an
attorney he cannot afford, or if the chosen counsel is not a
lawyer, or the attorney declines to represent the accused
for a valid reason, then the court should appoint a counsel
de office to represent him.
Section 1[c] of Rule 115 of the Rules of Court enables an
accused to defend himself if it appears to the court that he
can properly defend his rights without the assistance of
counsel. However if it does not seem like he can do so,
the court should advise him to secure a counsel de parte
or appoint a counsel de oficio for him.
Right to Remain Silent
An accused may choose not to talk at all during custodial
investigation or refuse to take the witness stand during the
trial of his case. This right is impregnable from the moment
he is investigated in connection with the crime he is
suspected to have committed.
Unless this right is waived, any admission of participation
in a crime in violation of this constitutional right renders the
admission inadmissible in evidence even if it is true and
regardless of the absence of coercion or the fact that he
gave it voluntarily.
When an accused is silent when he should speak in
circumstances where an innocent person similarly situated
would have spoken, his silence and omission are
admissible in evidence against him.
F. THE RIGHT OF CONFRONTATION
The accused has the right to confront and cross-examine
the witnesses against him at the trial. In the spirit of
fairness, the accused should know his accusers and
should be given a chance to cross-examine them on their
charges. Accusations cannot be permitted to be made
against his back or in his absence.
Cross-examinations of witnesses are necessary to test his
or her credibility, expose falsehoods or half-truths, and
demonstrate inconsistencies in substantial matters which
create reasonable doubt of the accused.
The right of a party to confront and cross-examine
opposing witnesses in a judicial litigation, be it criminal or
civil in nature, or in proceedings before administrative
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Prof. De Vera
tribunals with quasi-judicial powers, is a fundamental right
which is part of due process; This right, however, has
always been understood as requiring not necessarily an
actual cross-examination but merely an opportunity to
exercise the right to cross-examine if desired. [Bangayan
vs RCBC, G.R. No. 149193]
When does the right apply?
• it is limited to proceedings before the trial court,
during the trial
• it does not apply during custodial or preliminary
investigation
Purpose:
1. secure the opportunity of cross-examination to
test the witness‘ testimony
2. allow the judge to observe the appearance and
demeanour of the witness while testifying
The examination of witnesses must be done orally
before a judge in open court.
• This is true especially in criminal cases where the
Constitution secures to the accused his right to a
public trial and to meet the witnesses against him face
to face.
• The requirement is the ―safest and most satisfactory
method of investigating facts‖ as it enables the judge
to test the witness‘ credibility through his manner and
deportment while testifying.
• It is not without exceptions, however, as the Rules of
Court recognizes the conditional examination of
witnesses and the use of their depositions as
testimonial evidence in lieu of direct court testimony.
[Go vs. People, G.R. No. 185527]
The denial of the right to cross-examine the witness
renders the incomplete testimony inadmissible in the case.
Inadmissibility for Lack of Right to Confrontation:
1. Testimony of a witness who has not submitted
himself to cross-examination
2. Affidavits of witnesses who are not presented
during the trial, hence not subjected to cross
examination — hearsay
Rule on Examination of a Child Witness: The judge
may exclude any person, including the accused, whose
presence or conduct causes fear to the child. [AM No.
004-07-SC]
E2019 Reviewer CONSTITUIONAL LAW 2
Waiver of Right to Cross-Examine
The right to cross-examine witnesses is part of due
process. However, it can be waived. If the party has been
given the opportunity to cross-examine but did not avail of
it, the testimony of a witness who could not be cross-
examined because of death or who could not be found
cannot be stricken off the record.
On the other hand, where there is no such opportunity for
cross-examination because of reasons attributable to the
party offering the testimony, it should be stricken out.
[Fulgado vs. CA]
Where an accused asked for deferment of the cross-
examination of the prosecution witness, who subsequently
died, precluding cross-examination, his direct testimony
will be allowed to remain in the record and the accused is
deemed to have impliedly waived his right to cross-
examine. The right to cross-examine is a personal one
which may be waived expressly or impliedly by conduct
amounting to its renunciation. Thus, when a party had an
opportunity to cross-examine a witness but wailed to do
so, he forfeits the right and the testimony given will remain
in the record. [People vs. Narca]
Parties may utilise testimonies of witnesses who had the
opportunity to be cross-examined that were given in
another proceeding involving the same parties and subject
matter of a witness who is deceased, out of or cannot with
due diligence be found in the Philippines, or unavailable or
otherwise unable to testify. The right to confrontation is not
absolute because it is impossible to recall or produce a
witness who has already testified in a previous proceeding
who falls under the circumstances mentioned above.
[People vs. Ortiz-Miyake]
G. DOUBLE JEOPARDY
Art. III, Sec 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.”
Double jeopardy provides 3 related protections:
1. against a second prosecution for the same
offense after acquittal
2. against a second prosecution for the same
offense after conviction
3. against multiple punishments for the same
offense
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Prof. De Vera
Two Categories
1. Regarding the same offense: where the offenses
charged are penalized either by different sections of
the same statute or by different statutes
This depends on whether the elements of one offense are
the same as those of the other or whether each provision
requires proof of an additional fact which the other does
not. If an additional fact is required in one and not with the
other, there is no double jeopardy. [People vs. Quijada]
The constitutional protection against double jeopardy is
available only where an identity is shown to exist between
the earlier and the subsequent offenses charged. To
determine this, the essential elements must be examined.
The identity of the offenses does not need to be absolutely
identical — the first and second offenses may be regarded
as the same offense where the second offense
necessarily includes or is included in the first one.
2. Regarding the same act
The second sentence of Art. III, Sec. 21 provides that the
constitutional protection against double jeopardy is
available even if the prior offense charged under an
ordinance is different from the offense charged
subsequently under a national statute [such as the RPC]
provided that both offenses spring from the same act or
set of acts.
The identity of the acts is determined by examining
location of the acts in time and space. If the acts of the
accused in both informations are so related to each other
and found to have taken place on the same occasion and
if it is found to be the same, or a continuing, intent or
voluntary design or negligence, the acts may be
characterized as integral.
Elements of Double Jeopardy
1. a first jeopardy has attached prior to the second
2. the first jeopardy has been validly terminated
3. a second jeopardy is for the same offense as that
in the first
The First Jeopardy Attaches:
1. after a valid indictment
2. before a competent court
3. after arraignment
4. when a valid plea has been entered
5. when the accused was acquitted or convicted, or
the case was dismissed or otherwise terminated
without his express consent
E2019 Reviewer CONSTITUIONAL LAW 2
Termination of Jeopardy:
1. by acquittal
2. by final conviction
3. by dismissal without express consent of the
accused
4. by dismissal on the merits
Requisites
1. Court of competent jurisdiction
2. A complaint/information sufficient in form and
substance to sustain a conviction
3. Arraignment and plea by the accused
4. Conviction, acquittal, or dismissal of the case
without the express consent of the accused
When subsequent prosecution is barred:
1. same offense
2. attempt of the same offense
3. frustration of the same offense
4. offense necessarily included in the 1st offense
[all the elements of the 2nd constitute some of
the elements of the 1st offense]
5. Offense that necessarily includes the 1st offense
[all the element of the 1st constitute some of the
elements of the 2nd offense]
Exceptions
1. The graver offense developed due to
"supervening facts" arising from the same act or
omission constituting the former charged.
2. The facts constituting the graver charge became
known or were discovered only after the filing of
the former complaint or information.
3. The plea of guilty to the lesser offense was made
without the consent of the fiscal and the offended
party.
When the defense of double jeopardy is available:
1. dismissal based on insufficiency of evidence
2. Dismissal because of denial of right to speedy
trial;
Accused is discharged to be a state witness.
- taken from the Up Political Law Reviewer
Examples:
• Where the case was dismissed upon motion of the
accused on the ground that the information charged
more than one offense, or that the facts alleged did
not constitute an offense or that the trial court did not
have jurisdiction, the first jeopardy had not attached
and prosecuting him again for the same offense does
NOT constitute double jeopardy.
• The dismissal of a complaint or information by a court
of competent jurisdiction after the prosecution has
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Prof. De Vera
presented its evidence is a bar to a second
prosecution of the same offense even if the dismissal
is in the mistaken ground of lack of jurisdiction.
• The dismissal of the first case was null and void
because the trial court lost its jurisdiction to issue the
order of dismissal and it violated the right of the
prosecution to due process. A subsequent
prosecution of the same offense is not barred in this
case.
When there is NO double jeopardy:
• Conviction of a crime under a special law, which also
constitutes an offense under the RPC, may not be a
bar to the prosecution under the RPC because the
former is malum prohibitum while the other is malum
in se.
• There is no double jeopardy where two informations
are filed charging the same accused with two different
offenses arising from the act, where the two offenses
have different elements. [Example: BP22 and the
issuance of bouncing check for estafa]
Where new facts supervened that change the character of
the offense and that, together with the facts existing at the
time, constitute a new and distinct offense, the filing of
another information charging said new offense will not
place the accused in jeopardy for the same offense.
• for example: accused was charged with serious
physical injuries but after his conviction, the victim
died from his injuries. the charge for homicide against
the same accused does not constitute double
jeopardy.
Same act resulting in multiple offenses punished by
different laws
• If the same act violates two or more entirely distinct
and unrelated laws with each requiring proof or an
additional fact or element that the other does not, an
acquittal or conviction or dismissal of the information
under one does not bar the prosecution under the
other.
Double Jeopardy even if accused consented to
dismissal of the case:
• Two occasions when double jeopardy will attach even
if the motion to dismiss the case is made by the
accused himself:
1. when the ground is insufficiency of evidence
of the prosecution
2. when the proceedings have been
unreasonably prolonged in violation of the
right to a speedy trial
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

• The grant of a demurrer amounts to an acquittal. any
further prosecution of the accused would violate the
constitutional proscription on double jeopardy.
[People vs Sandiganbayan]
On the finality of an acquittal: the State with all its
resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment,
expense and ordeal compelling him to live in a continuing
state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent, he may be found
guilty.
Double jeopardy in continued or continuous crimes
• A continuous crime is a single crime consisting of a
series of acts arising from a single criminal resolution
or intent not susceptible of division. Basically, it is a
single crime consisting of a series of acts but all
arising from one criminal resolution.
• For a continuous crime, a second information cannot
prosper because this would be tantamount to double
jeopardy.
• the only way to nullify an acquittal or increase the
penalty is through a proper petition for certiorari to
show grave abuse of discretion
When double jeopardy does not apply:
1. when the offended party appeals the civil aspect
of the offense
2. When the prosecution appeals the judgment of
acquittal or refiles the case on the ground that the
judgment of acquittal is null and void [for
instance, when the prosecution is denied due
process or the court gravely abused its
discretion]
3. when the accused himself appeals the judgment
of conviction
- End of Chapter V –
Notes:

When two informations charging the same offense are

filed:
• the filing of 2 informations charging the same offense
is not an appropriate basis for the invocation of
double jeopardy since the first jeopardy has not set in
by the previous conviction, acquittal, or termination of
the case without the consent of the accused.
• there is no double jeopardy where two informations
charge an accused with distinct and different offenses
• double jeopardy does not apply where one case is
administrative in nature and the other is criminal
• double jeopardy does not apply in preliminary
investigations

Prosecution cannot appeal from judgment

• The state cannot appeal from a judgment of
conviction for the purpose of increasing the penalty
imposed by the trial court as it would place the
accused in double jeopardy.
• It may file an appeal if the purpose is to decrease the
penalty wrongfully imposed by the trial court as this is
beneficial to the accused.
• Double jeopardy cannot be invoked against the
Court‘s setting aside of the trial court‘s judgment of
dismissal or acquittal where the prosecution is denied
due process. This happens when the prosecution is
denied a fair opportunity to prosecute and prove its
case.

30
E2019 Reviewer CONSTITUIONAL LAW 2
VI. WRIT OF HABEAS CORPUS
Art. III, Sec. 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.”
Art. VII, Sec. 28:
“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.
XXX XXX 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.
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."
A. WRIT OF HABEAS CORPUS
The writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relieve persons from
unlawful restraint and as the best and only sufficient
defense of personal freedom. [Sombong v CA, 252
SCRA 663]
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Prof. De Vera
For a more complete understanding of the writ, see Rule
102, Rules of Court.
Definition
―A writ issued by a court directed to a person detaining
another, commanding him to produce the body of the
prisoner at a designated time and place, with the day and
cause of his caption and detention, to do, to submit to, and
to receive whatever the court or judge awarding the writ
shall consider in his behalf.‖ [Sombong v CA, 252 SCRA
663]
Writ of habeas corpus is an order from the court
commanding a detaining officer to inform the court:
[1] if he has the person in custody; and
[2] his basis in detaining that person.
Purpose
Restores the liberty of an individual subjected to
physical restraint.
Secures to the prisoner the right to have the cause of
his detention examined and determined by a court of
justice, and to have the issue ascertained as to whether
he is held under lawful authority.
Gives immediate relief from illegal confinement, to
liberate those who may be imprisoned without sufficient
cause, and to deliver them from unlawful custody. It is
essentially a writ of inquiry and is granted to test the
right under which a person is detained.
- [Velasco v. CA, 246 SCRA 677]
Circumstances for Issuance
1. Involuntary restraint of liberty: illegal and involuntary
deprivation of freedom of action.
There must be an actual and effective, and not
merely nominal or moral, illegal restraint of liberty.
[Manalo v Calderon, G.R. No 178920, 15 Oct 2007]
It must be shown that petitioner is being detained
or restrained of his liberty unlawfully.
Restrictive custody is not a sufficient restraint on
the liberty of the policemen. Their movements were
merely monitored and not curtailed, and under the
DILG Act, the PNP chief had authority to put
policemen with pending grave cases under such
restrictive custody. [Manalo v Calderon, supra]
Physical compulsion may be absent since freedom
may be lost:
o due to external moral compulsion
o to founded or groundless fear
o to erroneous belief in the existence of an
imaginary power of an impostor to cause harm if
not blindly obeyed
E2019 Reviewer CONSTITUIONAL LAW 2
o to any other psychological element that may
curtail the mental faculty of choice or the
unhampered exercise of the will. [Caunca v.
Salazar]
2. Withholding of lawful CUSTODY of any person from
someone entitled to such custody.
Habeas Corpus may be resorted to in cases where
―the rightful custody of any person is withheld from
the person entitled thereto.‖ The writ is the proper
legal remedy to enable parents to regain the custody
of minor children even if the latter be in the custody
of a third person of her own free will. [Sombong vs
CA, supra]
In seeking the grant of the privilege of the writ of
habeas corpus, Veluz argues that Rodrigues was
being restrained illegally. The court held that the writ
of habeas corpus is a high prerogative writ and not a
writ of right when used in matters pertaining to
custody. And in the case of minors, the question is
not whether there‘s illegal restraint but whether
there‘s rightful custody. [In Re Rodriguez, G.R.
169482, 29 Jan 2008]
3. Illegal Arrest
With supervening event when restraint of liberty is
already by virtue of the complaint or information
[Velasco v. CA, 246 SCRA 677]
a) The issuance of a judicial process preventing the
discharge of the detained person.
b) Another is the filing of a complaint or information
for the offense for which the accused is detained.
[Section 4 of Rule 102]
4. Excessive Penalty
Sentence which imposes punishment in excess of
the power of the court to impose.
the only ground for granting the writ to a convicted
prisoner is want of jurisdiction or some other
matter rendering its proceedings void.
Thus, when a lower court gave an excessive penalty
to an accused, more than what the code prescribes
for the crime he has committed, and was convicted
of, the trial court was held to have been divested of
jurisdiction with respect to the penalty exceeding
that which is appropriate. The accused, having
already served his lawful sentence, was granted the
writ of Habeas Corpus. [Gumabon vs Director of
Prisons]
Who May File the Petition:
[1] the party for whose relief it is intended
[2] some person on his behalf
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Prof. De Vera
[3] any person with a legally justified interest in the
freedom of the restrained person or who shows some
authorization to make the application. [Velasco v. CA]
Suspension of the Writ
It is not the writ itself but only its privilege that may be
suspended [I. Cruz]
Requisites of Suspension
Under the Constitution, the writ may only be suspended
when there is:
[1] Invasion
[2] Rebellion;
when public safety requires the suspension
*Suspension must not exceed 60 days unless extended by
Congress.
Effects of Suspension of the Privilege
[1] Suspension applies only to persons "judicially
charged" for rebellion or offenses inherent in or
directly connected with invasion [Art. VII, Sec. 18(5)].
o Such persons suspected of the above crimes can
be arrested and detained without a warrant of
arrest.
o It does not make the arrest without warrant legal
but the military is effectively enabled to make the
arrest anyway since there is no remedy
available against such unlawful arrest
[arbitrary detention]. The arrest without
warrant is justified by the emergency
situation.
o The suspension applies only to those who would
be arrested due to a crime that is related to
rebellion or invasion.
[2] During the suspension, any person thus arrested or
detained shall be judicially charged within 3 days, or
otherwise he shall be released. [Art. VII, Sec. 18(6)]
o It must be shown that the person in custody is
being held for a crime covered by the
proclamation suspending the privilege of the writ
and in a place where it is effective.
Validity and Review of the Suspension
SC 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.
The authority to decide whether the exigency has arisen
belongs exclusively to the President and his decision is
E2019 Reviewer CONSTITUIONAL LAW 2
conclusive upon all other persons. [Barcelon v. Baker, 5
Phil. 87]
Q: Is the declaration of suspension a Political
Question?
A: The suspension is a political question since the
determination of the circumstances and its exigency lies
with the executive and not the judiciary. But what the
judiciary can answer is whether the executive acted
arbitrarily.
The president acted arbitrarily if there is no factual basis
supporting a finding that there was an invasion, rebellion,
insurrection or that public safety requires it.
The Court cannot intervene upon the President‘s finding
whether it was only proper to call out the armed forces or
to suspend the writ of habeas corpus since that is a
question of wisdom and the courts cannot intrude on the
executive. [Lansang vs Garcia, 42 SCRA 448]
Q: How can the court determine whether it is a legal or
political question?
A legal question arises if the court has a constitutional or
statutory standard to answer the question and appreciate
the factual basis.
Since power to suspend the privilege was surrounded by
constitutional limitations ―like limitations and restrictions
imposed by the Constitution upon legislative department,
adherence thereto and compliance therewith may, within
proper bounds, be inquired in to by courts of justice.‖
[Lansang]
Subsequent Legality of Detainment
Even if the arrest of a person is illegal, supervening events
may bar his release or discharge from custody. Among
such supervening events is the issuance of a judicial
process preventing the discharge of the detained person.
Another is the filing of a complaint or information for the
offense for which the accused is detained. By then, the
restraint of liberty is already by virtue of the complaint or
information and, therefore, the writ of habeas corpus is no
longer available.
If a person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court or
judge, and that the court or judge had jurisdiction to issue
the process or make the order, or if such person is
charged before any court, the writ of habeas corpus will
not be allowed. [Velasco v. CA, supra]
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Prof. De Vera
B. WRIT OF AMPARO
A.M. No. 07-9-12-SC, 25 September 2007
Concept
The Writ of Amparo serves both preventive and curative
roles in addressing the problem of extralegal killings and
enforced disappearances. It is preventive in that it breaks
the expectation of impunity in the commission of these
offenses; it is curative in that it facilitates the subsequent
punishment of perpetrators as it will inevitably yield leads
to subsequent investigation and action. [Sec of Natl
Defense v Manalo, G.R. 180906, 7 Oct 2008]
Definition
The petition for a writ of amparo is a protective 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. [Manalo]
The act or omission or the threatened act or omission
complained of - confinement and custody for habeas
corpus and violations of, or threat to violate, a person‘s
life, liberty, and security for amparo cases – should be
illegal or unlawful. [So v. Tacla, G.R. 190108, 19 Oct
2010]
Objective
It provides rapid judicial relief; partakes of a summary
proceeding that requires only substantial evidence to
make reliefs available. [Manalo]
Original purpose and Origin
The writ was conceived to provide expeditious and
effective procedural relief against violations or threats of
violation of the basic rights to life, liberty, and security of
persons.
It was intended to address the intractable problem of
―extralegal killings‖ and ―enforced disappearances,‖ its
coverage, in its present form, is confined to these two
instances. It‘s of Latin American origin and directed to
public officials. [Salcedo v Bollozos, A.M. RTJ-10-2236,
5 July 2010]
What are “Extralegal killings”?
These are ―killings committed without due process of law,
i.e., without legal safeguards or judicial proceedings.‖
What are “Enforced disappearances”?
These are ―attended by the following characteristics: an
arrest, detention or abduction of a person by a
E2019 Reviewer CONSTITUIONAL LAW 2
government official or organized groups or private
individuals acting with the direct or indirect acquiescence
of the government; the refusal of the State to disclose the
fate or whereabouts of the person concerned or a refusal
to acknowledge the deprivation of liberty which places
such persons outside the protection of law.‖ [Manalo]
Limitations
It is an immediate and not a final remedy. Looks into
whether there‘s an enforced disappearance or killing. But
it‘s not a writ to impute liability.
It does not give back personal property because that
would be tantamount to finding liability.
It does not fix criminal, civil, or admin liability. It is not
an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will
require full and exhaustive proceedings. [Manalo]
While the principal objective of its proceedings is the initial
determination of whether an enforced disappearance,
extralegal killing or threats thereof had transpired—the writ
does not, by so doing, fix liability for such disappearance,
killing or threats, whether that may be criminal, civil or
administrative under the applicable substantive law.
[Roxas v. Macapagal-Arroyo, G.R. 189155, 7 Sept 2010]
It is also not a writ to protect concerns that are purely
property or commercial. [Tapuz v Del Rosario, 2008]
Command Responsibility
Command responsibility is a way of impleading a party-
respondent whereby the superior is made responsible for
the crimes committed by his subordinates for failing to
prevent, or punish the perpetrator [Roxas v Macapagal-
Arroyo, supra].
The president is usually part of the pool of people
impleaded but it does not mean that they are liable. The
common basis for impleading the president is the
command responsibility doctrine. This doctrine is not
applicable in writ of amparo because:
an amparo proceeding is not to impute liability;
it only determines who may be validly impleaded
The court has no definite stance on the command
responsibility. Its purpose is to implead and not for
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Prof. De Vera
liability. It‘s not a writ to determine liability or the penalty
to be imposed on someone. And it’s difficult to apply in
relation to the president because he/she enjoys
immunity of suit [Salcedo v Bollozos].
Q. If a president’s term ends, may he be liable on the
basis of the doctrine of command responsibility?
A: NO. The fact that his immunity from suit has lapsed
does not mean that he is liable. It has to be proved that a
former president did indeed have responsibility.
The difficulty in writ of amparo is the assumption that the
president has accountability based on the fact that he is
also the Commander in Chief of the Armed Forces.
Responsibility cannot be assumed. It has to be proved.
The inapplicability of the doctrine of command
responsibility in an amparo proceeding does not, by any
measure, preclude impleading military or police
commanders on the ground that the complained acts in
the petition were committed with their direct or indirect
acquiescence. Commanders may therefore be
impleaded—not on the basis of command responsibility—
but on the ground of their responsibility, or at least
accountability. [Balao v. Macapagal-Arroyo, GR186050,
13 Dec 2011]
Command responsibility is properly a form of criminal
complicity, and thus a substantive rule that points to
criminal or administrative liability. An amparo proceeding
is not criminal in nature nor does it ascertain the criminal
liability of individuals or entities involved. Neither does it
partake of a civil or administrative suit. [Boac v Cadapan,
GR 184461, 31 May 2011]
Responsibility vs Accountability
Accountability denotes that there is some relation to an
alleged event that does not rise to responsibility
(because one is not an actor) but a person does have:
o authority over the actors
o position to have knowledge about the event
Responsibility requires that one is an actor in the
event.
Responsibility refers to the extent the actors have been
established by substantial evidence to have evidence to
have participated in whatever way, by action or omission,
in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive
to file the appropriate criminal and civil cases against the
responsible parties in the proper courts. [Balao]
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

Accountability - Issuance of a Temporary Protection Order, Sec.

Measure of remedies that should be addressed to those 14
who exhibited involvement in the enforced disappearance
without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and
who carry the burden of disclosure; or those who carry,
- End of Chapter VI –
but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced
disappearance. [Balao] Notes:

Standard of Diligence Required

(1) ―Private individual or entity must prove that
ordinary diligence as required by applicable laws,
rules and regulations was observed in the
performance of duty.
(2) 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. 17. Burden of Proof and Standard of Diligence
Required, Rule on the Writ of Amparo]

Immediately Executory
―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.‖ [Sec. 6. of the Rule on the Writ of Amparo]

A decision granting the petition for the writ of amparo is

immediately executory and requires no motion for
execution.

Since the right to life, liberty and security of a person is at

stake, the proceedings should not be delayed and
execution must be expedited as any form of delay, even
for a day, ma jeopardize the very rights that this writ seeks
to immediately protect. [Boac v Cadapan, 2011]

* Refer to The Rule on the Writ of Amparo [A.M. No. 07-

9-12-SC] for the following topics:

- Contents of Petition, Sec. 5

- Degree of Proof Required for Issuance:
Substantial Evidence, Secs. 17 and 18
- Who May File the Petition, Sec. 2
- Investigation, Sec. 5[d]

35
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

protected by the constitutional guaranties, which includes

VII. LIBERTY OF ABODE AND
their right to liberty to choose their own abode
TRAVEL [Villavicencio v. Lukban, supra].

Art. III, Sec. 6: Q: Is the right of liberty to abode of a leper being

“The liberty of abode and of changing the same within the infringed because he was confined in the San Lazaro
limits prescribed by law shall not be impaired except upon Hospital?
lawful order of the court. Neither shall the right to travel be
impaired except in the interest of national security, public A: No! The liberty of abode can be restricted when there is
safety, or public health, as may be provided by law.” a law that provides for its limitations. In this case, Section
1058 of Article XV of Chapter 37 of the Administrative
A. LIBERTY OF ABODE Code, which authorized the Director of Health and his
agents to detain lepers, is a valid exercise of police power
in order to preserve the public health. The methods
Liberty
provided for the control of leprosy constitute due process.
"Liberty" as understood in democracies, is not license; it is
Even if leprosy isn‘t contagious, the Legislature made a
"Liberty regulated by law." Implied in the term is restraint
judgment call that a law was necessary in order to protect
by law for the good of the individual and for the greater
society from leprosy, especially given that there is a
good of the peace and order of society and the general
common belief that it is contagious [Lorenzo v. Dir. of
well-being. No man can do exactly as he pleases. Every
Health, GR No. L-27484].
man must renounce unbridled license. The right of the
individual is necessarily subject to reasonable restraint by
Q: LGUs of San Juan, Navotas and QC sent notices of
general law for the common good [Rubi v. Provincial
evictions and demolitions to several squatters
Board of Mindoro, 38 Phil. 60].
because the LGUs are planning to construct several
infrastructure projects on the lots they are occupying.
Liberty of Abode
The petitioners protested because of the lack of court
The freedom to choose one‘s residence without any
orders of their evictions.
external forces and to choose when to leave such
residence and change it for another.
Does Sec. 28 [a] and [b] of RA 7279 [aka Urban
It is deemed to be important in several countries such
Development Housing Act], wherein it authorized
as Spain and Japan and is considered as ―elementary in
evictions and demolitions without any court orders
nature‖ by US jurisprudence that it doesn‘t need a
under certain circumstances such as when “persons
constitutional sanction [Villavicencio v. Lukban, GR L-
or entities occupy areas where government
No. 14639].
infrastructure projects with available funding are
about to be implemented” violate right to liberty of
Limitation
abode?
May only be limited by ―lawful court order + limits
prescribed by law
A: No! Article 13, Section 10, paragraph 1 of 1987
It may only be impaired by a lawful court order, which
Constitution provides ―Urban or rural dwellers shall not be
is promulgated by a court who is guided by the limits
evicted nor their dwelling demolished, except in
prescribed by law.
accordance with law and in a just and humane manner.‖
Section 28 [b] or RA 7279 actually provides for procedure
Q: Was the act of the Mayor of Manila compelling 170
in executing eviction and/or demolition orders to ensure
prostitutes to move to Davao to “exterminate the vice
that it is done with due process and in a just and humane
in his city” valid?
manner [Kalipunan g Damayang Mahihirap, Inc. v.
Robredo, GR No. 200903].
A: No! This case was decided under the 1935
Constitution, which allowed the right to liberty of abode to
B. RIGHT TO TRAVEL
be impaired through a law. The Court recognized that
Concept
several statutes granted public officials the power to evict
It involves one‘s right to be able to travel from the
prostitutes or restrict one‘s confinement to a House of
Philippines to other countries or around the Philippines
Refuge. However, in this case, there was no law at all that
itself [Marcos v. Manglapus, GR No. 88211].
allowed the Mayor of Manila to transfer the prostitutes to
It must be subject to judicial review even if the
Davao. Even if they were ―lepers of society‖, they are still
President has invoked any of his/her emergency

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E2019 Reviewer CONSTITUIONAL LAW 2
powers under the Constitution. In Salonga v.
Hermoso [GR No. L-53622], Salonga applied for a
certificate of eligibility to travel abroad, but when the
scheduled date of release had elapsed, he filed for a
petition for mandamus.
o It was deemed moot and academic, because
while his petition with the SC, his certificate was
granted.
o However, the Court noted that ―the Travel
Processing Center should exercise the utmost
care to avoud the impression that certain citizens
desirous of exercising their constitutional right to
travel could be subjected to inconvenience or
annoyance.‖
Limitation
National security/public safety/public health + limits
provided by law
It may be impaired even without court order, but the
appropriate executive officer is not armed with arbitrary
discretion to impose limitations [Bernas
Commentary].
It may be impaired in the interest of national security,
public safety, or public health, as may be provided by
law.
The Court has also mentioned inherent limitations on the
right to travel such as:
a) The power of trial courts to prohibit persons charged
with a crime to leave the country (i.e. bail) [Manotoc
Jr, v CA]
b) The power of the legislative to issue a subpoena and
a subpoena duces tecum in the exercise of their
inherent power to conduct an inquiry in aid of
legislation
c) The Supreme Court’s administrative supervision
over all courts and personnel, which stems from the
Constitution [Leave Division, OCA v Heusdens,
2011]
Q: Ricardo Manotoc, Jr. had pending estafa charges
against him. After he was granted bail, he filed a
motion for permission to leave the country because
he had business transactions to attend to in the US.
CFI denied his motion, which was affirmed by CA.
Does an accused of criminal charges who was
released on bail have an unrestricted right to travel?
A: No! The court has the inherent power prohibit a person
admitted to bail in order to prevent the possibility of losing
jurisdiction if accused travels abroad. Based on the
definition of bail under Rule 114, Section 1 of Rules of
Court, it is the security required and given for the
conditional release of the accused in exchange for the
37
Prof. De Vera
assurance that said accused will appear before any court
that requires his presence. Therefore, the grant of bail is
considered a valid restriction on his right to travel. In
jurisprudence, the Court has allowed those granted with
bail to travel abroad, provided that they show an urgent
reason for their travel, the duration, and secured the
consent of the surety to the proposed travel. In this case,
petitioner failed to prove all [Manotoc v. CA, GR No. L-
62100].
Q: Wilma Heusdens, a Staff Clerk of a MTC, filed for a
leave application 2 months before her scheduled trip.
However, Office of the Court Administrator [OCA] did
not wait for the result and just left because she
secured her superior’s approval. When an
administrative complaint was filed against her, it was
found that she violated an OCA Circular, which
required judicial employees, if travelling abroad, to
secure permission from the SC and a travel authority
from OCA. No travel authority was issued because
she did not clear all of her accountabilities. In this
case, did the OCA Circular violate right to travel?
A: No! The right to travel or the freedom to move from one
place to another is not absolute. When one becomes a
public servant, one necessarily gives up some rights such
as the absolute right to travel. The Court cited several
statutory and inherent limitations on the right to travel:
Statutory limitations regulating the right to travel:
a) Human Security Act of 2010 or RA 9327 – right
to travel of a person charged with terrorism is
restricted;
b) Philippine Passport Act of 1996 or RA 8239 –
Secretary of Foreign Affairs or authorized
consular officers may refuse the issuance of,
restrict the use of, or withdraw, a passport of a
Filipino citizen;
c) Anti-Trafficking in Persons Act of 2003 or RA
9208 – Bureau of Immigration can allow their
Travel Control and Enforcement Unit to offload
passengers with fraudulent travel documents,
doubtful purpose of travel, including possible
victims of human trafficking;
d) Migrant Workers and Overseas Filipinos Act of
1995 or RA 8042 – POEA may refuse to issue
deployment permit to a country;
e) Act on VAWC or RA 9262 – movement of an
individual whom a protection order is intended is
restricted;
f) Inter-Country Adoption Act or RA 8043 –
adoptee‘s right to travel can be restricted.
Inherent limitations on the right to travel: (see above)
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

Q: Does the Right to Travel include the right to return

to one’s country?

A: No. In the pro hac vice case of Marcos v Manglapus,

The Marcos family wanted to go back to the Philippines,
but the President denied it in order to preserve the stability
of the country. She cited several reasons for barring their
return such as the failed coup attempt in support of
Marcos loyalists, the communist insurgency and
secessionist movement in Mindanao, and the slow
progress of the economy due to the accumulated foreign
debt and plunder.

The Court held that the right involved in this case is not
right to travel, but right to return to one‘s country. The
Court based it on the fact that the Universal Declaration of
Human Rights [UDHR] and International Covenant on Civil
and Political Rights [ICCPR] made a distinction in their
respective provisions between the 2 rights. Given that the
right involved is not right to travel, the constitutional
limitations provided under Article III, Section 6 do not
apply in this case. The only limitation to right to return to
one‘s country is that it is not arbitrarily deprived. In this
case, the Court ruled that the President has the residual
power to impair the right to return to one‘s country if it
poses a threat to the government. However, the Court also
mentioned that this case is sui generis because it involved
an exiled dictator.

- End of Chapter VII -

Notes:

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E2019 Reviewer CONSTITUIONAL LAW 2
VIII. CRUEL, DEGRADING OR
INHUMAN PUNISHMENT
Article III, Section 19:
“(1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall
death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides
for it. Any death penalty already imposed shall be reduced
to reclusion perpetua.
(2) The employment of physical, psychological, or
degrading punishment against any prisoner or detainee or
the use of substandard or inadequate penal facilities under
subhuman conditions shall be dealt with by law.”
A. CRUEL PUNISHMENT
A punishment is cruel when it involves (but is not limited
to):
1) Torture or lingering death [Legarda v. Valdez, GR
No. 513 as cited in Bernas‟ Commentary]
2) Inhuman and barbarous, more than the mere
extinguishment of life [People v. Mercado, GR No.
116239 as cited in Bernas‟ Commentary]
3) Not only severe, harsh, or excessive but also
flagrantly and plainly oppressive [UP Law BOC
Constitutional Law 2 Reviewer]
4) Wholly disproportionate to the nature of the offense
as to shock the moral sense of community [People
v. Estoista, GR No. L-5793 as cited in UP Law BOC
Constitutional Law 2 Reviewer].
Death Penalty
Death penalty not considered a cruel punishment per se
under the Constitution. 1986 Constitutional Commission
abolished the death penalty, but decided to let Congress
decide whether to revive it or not. The only limitation is
that the purpose of reinstatement is ―for compelling
reasons involving heinous crimes‖ [Bernas’
Commentary].
Q: Leo Echegaray was convicted for raping his 10-
year old daughter, so he was sentenced with the death
penalty. At the time of his conviction, RA 7659, [Death
Penalty Law], which reimposed the death penalty after
the 1987 Constitution was ratified, was in effect. He
raised the defense that the said reimposition was
unconstitutional.
Is the re-imposition of the death penalty is
unconstitutional?
39
Prof. De Vera
A: No! The 1987 Constitution did not absolutely abolish
the death penalty because it vested the power to reimpose
in Congress ―for compelling reasons involving heinous
crimes‖. The SC provided the requirements for the
restoration:
1. that Congress define or describe what is meant
by heinous crimes;
2. that Congress specify and penalize by death,
only crimes that qualify as heinous in
accordance with the definition or description set
in the death penalty bill and/or designate crimes
punishable by reclusion perpetua to death in
which latter case, death can only be imposed
upon the attendance of circumstances duly
proven in court that characterize the crime to be
heinous in accordance with the definition or
description set in the death penalty bill; and
3. That Congress, in enacting this death penalty bill
is singularly motivated by "compelling reasons
involving heinous crimes."
For the Court, RA 7569 was able to meet all the
requirements:
1. RA 7659‘s preamble defined heinous crimes as
―grievous, odious and hateful offenses and which,
by reason of their inherent or manifest
wickedness, viciousness, atrocity and perversity
are repugnant and outrageous to the common
standards and norms of decency and morality in
a just, civilized and ordered society.‖
2. Rape is the ultimate violation of self. It is violent
crime because it normally involves force, or the
threat of force and intimidation to overcome the
will or capacity to resist. Rape inflicts mental and
psychological damage, it undermines the
community‘s sense of security, so there is public
injury as well.
3. The compelling reason: Death penalty is imposed
because the heinous crimes have so deeply
dehumanized a person or the criminal acts have
severely destructive effects on the national efforts
to lift the abject masses from poverty [public
interest]. Their acts have caused irreparable
injury to both the victim and society, and
repetition of the acts would pose an actual threat
to the individual and the government, so they
must permanently be prevented from doing so
[People v. Echegaray, GR No. 117472, 1997].
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

Q: [Continuation of case above] Is RA 8177 (which

changed the method for the death penalty from
electrocution to lethal injection) unconstitutional for
being cruel, degrading, or inhuman punishment?

A: No! Death penalty per se is not a cruel, degrading or

inhuman punishment. Punishments are cruel when they
involve torture or a lingering death; but the punishment of
death is not cruel. The lack of particularity of the details in
execution does not render it cruel, degrading, or inhuman.
The IRR will provide such, including the date of the
execution [i.e. Section 15 of IRR of RA 8177: ―not earlier
than 1 year nor later than 18 months after the judgment
has become final and executory‖]. The SC also found the
arguments of the petitioner that there will be an infliction of
pain if there are complications and that the Director of the
Bureau of Prisons to be untenable. He did not present any
evidence to prove such allegations and the IRR specified
that all personnel involved in the execution proceedings to
be trained [Echegaray v. SOJ, GR No. 132601, 1998].

B. EXCESSIVE FINES

Q: Is it appropriate for the court to impose penalties

on crimes against property based on values from 1930
when the RPC was enacted, even when the case was
tried in 1991?

A: Yes! It is their duty to apply the law. The remedy would

be Article 5 of the Revised Penal Code, which is to
recommend to the President to commutate the penalty of
the convicted. The SC cannot simply change the penalties
provided for crimes against property based on the current
inflation because it would result to more uncertainties and
the economy fluctuates, which would be contrary to the
stability/predictability the penalties provide [Corpuz v.
People, GR No. 180016].

- End of Chapter VIII -

Notes:

40
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

IX. FREEDOM OF EXPRESSION

2 General Forms of Restraint on Freedom Of
Expression
Art. III, Sec. 4:
“No law shall be passed abridging the freedom of speech,
1. Prior Restraint
of expression, or of the press, or the right of the people
Prior restraint refers to official governmental
peaceably to assemble and petition the government for
restrictions on the press or other forms of
redress of grievances.”
expression in advance of actual publication or
dissemination. Freedom from prior restraint is
largely freedom from government censorship of
A. FREEDOM OF EXPRESSION
publications, whatever the form of censorship, and
Freedom of expression has gained recognition as a
regardless of whether it is wielded by the
fundamental principle of every democratic government,
executive, legislative or judicial branch of the
and given a preferred right that stands on a higher level government [Chavez vs Gonzales, 2008].
than substantive economic freedom or other liberties. Examples: Censorship, Permits, Business
Closure
In the Philippines, the primacy and high esteem accorded
freedom of expression is a fundamental postulate of our 2. Subsequent Punishment
constitutional system. This right was elevated to
Governmental laws that impose liability upon a
constitutional status in the 1935, the 1973 and the 1987
conduct
Constitutions, reflecting our own lesson of history, both
Examples: Libel, Prosecution for sedition,
political and legal, that freedom of speech is an
Contempt Proceedings
indispensable condition for nearly every other form of
freedom [Chavez vs Gonzales, G.R. 168338, 15
Not all prior restraints are invalid. But all prior
February 2008].
restraints are presumed invalid.

J. Holmes: It is freedom for the thought that we hate, no

It would appear that the right to free speech and a free
less than for the thought that agrees with us.
press is not susceptible of any limitation. But the realities
of life in a complex society preclude a literal interpretation
of the provision prohibiting the passage of a law that would
Nature of the Right
abridge such freedom. For freedom of expression is not an
At the very least, free speech and free press may be
absolute, nor is it an unbridled license that gives immunity
identified with the liberty to discuss publicly and truthfully
for every possible use of language and prevents the
any matter of public interest without censorship and
punishment of those who abuse this freedom.
punishment. There is to be no previous restraint on the
communication of views or subsequent liability whether in
libel suits, prosecution for sedition, or action for damages,
Two Basic Frameworks in Analyzing the Validity of a
or contempt proceedings unless there be a clear and
Prior Restraint:
present danger of substantive evil that Congress has a
right to prevent [Gonzales vs Comelec, 1969].
1. Content-Neutral
These are restrictions which are merely concerned with
the incidents of speech, or one that merely controls the
Scope of the Right
time, place, and manner, under well-defined standards.
Speech, expression, and press include every form of
expression, whether oral, written, tape or disc recorded. It
Test to be applied: The Intermediate Approach as set
also includes movies as well as what is referred to as
out in US vs O’Brien [391 U.S. 367, 27 May 1968].
symbolic speech such as the wearing of an armband as a
symbol of protest.
Under this test, government regulation is sufficiently
justified if:
But the right is not absolute and may include certain
1] It is within the constitutional power of the government
exceptions such as pornography, false or misleading
to enact,
advertisement, advocacy of imminent lawless action and
2] It furthers an important or substantial government
danger to national security
interest,

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E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

3] The interest is unrelated to the suppression of

speech
4] It prohibits speech no more than is essential to further
that interest.
2. Contest-Based
These are governmental action that restricts freedom of
speech or of the press based on the subject matter of
the utterance or speech. This kind of restriction is given
the strictest scrutiny in light of its inherent and
invasive impact.
Test to be applied: The Clear and Present Danger
Test.
A: No. The legislature, in the exercise of police power, can
make the determination that an utterance can bring about
a substantive evil that the state has a right to prevent.
Such utterances present sufficient danger to the security
of the State to bring their punishment within legislative
discretion, even if the effect of an utterance cannot be
reasonably foreseen.
If the statute already made a prohibition as to a certain
conduct, and the statue remains unchallenged, the
question is not whether the act is protected by freedom of
expression. But whether or not a person has committed
the act or not [Gitlow vs NY, 268 U.S. 652, 8 June 1925]

Under the Clear and Present Danger Test, the

question in every case is whether the words are used in Advocacy of Abstract
Advocacy of Action
such circumstances and are of such a nature as to Doctrine
[Brandenburg vs Ohio]
create a clear and present danger that they will bring [Gitlow vs NY]
about the substantive evils that Congress has a right Protected Not protected
to prevent. It is a question of proximity and degree
[Schecnk vs US, 249 U.S. 47, 3 March 1919]. It is a
showing of a substantive and imminent evil, and not The statute does not The rights to ―free
hypothetical fears. penalize the utterance speech…do not permit a
or publication of state to forbid or proscribe
Only when the challenged act has overcome the clear abstract "doctrine" or advocacy of the use of force
and present danger rule will it pass constitutional academic discussion or of law violation except
muster, with the government having the burden of having no quality of where such advocacy is
overcoming the presumed unconstitutionality incitement to any directed to inciting or
[Chavez vs Gonzales, 2008]. concrete action. producing imminent lawless
action and is likely to incite
NOTE: Sometimes, the courts use the dangerous or produce such action.‖
tendency test. Under this test, the question is whether
the words will create a dangerous tendency that the
state has a right to prevent. It looks at the probability
B. UNPROTECTED SPEECH
that a substantive evil will result, and it is not necessary
that some definite or immediate acts of force, violence,
Obscenity
or unlawfulness be advocated. [Cabansag vs
Obscenity is a class of speech that is not under the
Fernandez, G.R. No. 8974, 18 October 1957]
protection of the freedom of expression. It is of slight
social value as a step to truth that any benefit that may be
Grave but Improbable Danger Test
derived from them is clearly outweighed by the social
The Grave but Improbable Danger Test was meant to
interest in order and morality [Chaplinsky v. New
supplant the clear and present danger test and determines
Hampshire, 315 U.S. 568, 1942].
whether the gravity of the evil, less its improbability to
happen, can justify the suppression of the right in order to
Tests to Determine Obscenity:
avoid the danger [Dennis v US, 341 US 494]. It has not
seen much application in Philippine jurisprudence and the Memoirs of a
Clear and Present Danger remains to be the dominant test Woman of
in abridging the Freedom of Expression. Roth vs US Pleasure vs Miller vs California
Atty. Gen. of
Q: A person was convicted for printing materials that Massachusetts
advocated the doctrine that organized gov’t should be The question A work is obscene A work is obscene if:
overthrown by unlawful means. Is it against the is, whether to if: 1. Whether the average
freedom of expression? the average 1. The dominant person, applying

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E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

person, theme of the contemporary com present judgment, they do not forfeit that protection [just]
applying material taken munity standards, because they were published in the form of a paid
contemporar as a whole would find that the advertisement [New York vs Sullivan, 376 U.S. 254, 9
y community appeals to work, taken as a March 1964].
standard, the prurient whole, appeals to
dominant interest in sex; the prurient interest; Print vs Broadcast Media
theme of the 2. Material is 2. Whether the work
work taken as patently depicts or describes,
a whole offensive in an offensive way,
While all forms of communication are entitled to the broad
appeals to because it sexual conduct or protection of freedom of expression clause, the freedom
PRURIENT affronts excretory functions, of film, television and radio broadcasting is somewhat
INTRESTS. contemporary specifically defined lesser in scope than the freedom accorded to
community by applicable state newspapers and other print media [Chavez vs
standards law; and Gonzales, 2008].
relating to the 3. Whether the work,
description or taken as a whole,
Radio and TV enjoy a narrower scope of protection
representation lacks serious
of sexual literary, artistic,
because of the ff reasons:
matters; political, or a) the scarcity of the frequencies by which the medium
3. Material is scientific value operates [i.e., airwaves are physically limited while
utterly without print medium may be limitless];
redeeming b) its pervasiveness as a medium; and
social value c) its unique accessibility to children.
[Federal Communications Commission v. Pacifica
Note: The Memoirs test was abandoned because it was Foundation, 438 U.S. 726 [1978]]
nearly impossible to prove that a work was utterly without
redeeming social value [Miller v. California]. But all forms of media, whether print or broadcast, are
entitled to the broad protection of the freedom of speech
Libelous Speech and expression clause. The test for limitations on freedom
*See The Press and the Public Officer below. of expression continues to be the clear and present
danger rule [Eastern Broadcasting Corp vs Dans, G.R.
C. FREEDOM OF THE PRESS No. 59329, 19 July 1985].

J. Malcolm: The interest of society and the maintenance
of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile
and unjust accusation; the wound can be assuaged with
the balm of clear conscience [US vs Bustos, 37 Phil. 731,
1918].
The Four Aspects of Freedom of the Press [Chavez v.
Gonzales, 2008]
1. freedom from prior restraint;
2. freedom from punishment subsequent to publication;
3. freedom of access to information; and
4. Freedom of circulation.
Q: Are paid advertisements exempt from
protection of Section 4?
A: Not necessarily. If the allegedly libelous statements
would otherwise be constitutionally protected from the
Thus, when this Court declared in Dans that the freedom
given to broadcast media was somewhat lesser in scope
than the freedom accorded to newspaper and print media,
it was not as to what test should be applied, but the
context by which requirements of licensing, allocation of
airwaves, and application of norms to unprotected speech.
The Press and the Public Officer
"In such a case the occasion gives rise to a privilege,
qualified to this extent: any one claiming to be defamed by
the communication must show actual malice or go
remediless. This privilege extends to a great variety of
subjects, and includes matters of public concern, public
men, and candidates for office."
This is in relation to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and
the that it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public
officials.

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E2019 Reviewer CONSTITUIONAL LAW 2
Erroneous statement is inevitable in free debate, and that
it must be protected if the freedoms of expression are to
have the "breathing space" that they "need . . . to survive
[NY vs Sullivan, 1964]
NOTE: The alleged article to be privileged must be written:
[1] in relation to an official act
[2] performed by an elective official/public officer
[Newsweek vs IAC, G.R. No. 63559, 30 May 1986]
Q: Are libelous statements outside the ambit of
Section 4’s protection?
A: Libel can claim no talismanic immunity from
constitutional limitations. It must be measured by
standards that satisfy the First Amendment. The Court
"retains and exercises authority to nullify action which
encroaches on freedom of utterance under the guise of
punishing libel" [NY vs Sullivan, 1964].
Q: Are factual errors a basis for a prosecution for
libel?
A: Not always. ―To persuade others to his own point of
view, the pleader, as we know, at times resorts to
exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement.
But the people of this nation have ordained, in the light of
history that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential to
enlightened opinion and right conduct on the part of the
citizens of a democracy."
Actual Malice Rule
False reports about a public official or other person are not
shielded by the cardinal right to free speech enshrined in
the Constitution. Making knowingly false statements
made with reckless disregard of the truth does not
enjoy constitutional protection. The guaranty of free
speech cannot be considered as according protection to
the disclosure of lies, gossip or rumor [In Re Jurado, A.M.
No. 93-2-037-SC, 6 April 1995].
Therefore, an injured must prove that the alleged
statements are either:
[1] Knowingly false
[2] Made with reckless disregard of the truth/ based on
suppositions
Group Libel
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Prof. De Vera
Where the defamation is alleged to have been directed at
a group or class, it is essential that the statement must be
so sweeping or all-embracing as to apply to every
individual in that group or class, or sufficiently specific so
that each individual in the class or group can prove that
the defamatory statement specifically pointed to him, so
that he can bring the action separately, if need be
[Newsweek vs IAC, 1986].
The Press and The Judiciary
The administration of justice and the freedom of the press,
though separate and distinct, are equally sacred, and
neither should be violated by the other. The press and the
courts have correlative rights and duties and should
cooperate to uphold the principles of the Constitution and
laws, from which the former receives its prerogative and
the latter its jurisdiction [In Re Macasaet, A.M. No. 07-09-
13-SC, 8 August 2008].
And the Court in People vs Godoy [312 Phil. 977, 1995]
has also said that obstructing, by means of the spoken or
written word, the administration of justice by the courts has
been described as an abuse of the liberty of the speech or
the press such as will subject the abuser to punishment for
contempt of court.
Q: What criticisms are allowed by the court?
A: Criticisms made in good faith. Courts and judges are
not sacrosanct. They should and expect critical evaluation
of their performance. For like the executive and the
legislative branches, the judiciary is rooted in the soil of
democratic society, nourished by the periodic appraisal of
the citizen whom it is expected to serve.
But it is the cardinal condition of all such criticism that it
shall be bona fide, and shall not spill over the walls of
decency and propriety. A wide chasm exists between fair
criticism, on the one hand, and abuse and slander of
courts and the judges thereof, on the other [In Re
Almacen, G.R. No. 27654, 18 February 1970].
BONUS: What is chilling effect? [Hindi toh na discuss ni
ma‟am, pero I think it‟s an important concept under freedom of the
press]
In a legal context, a chilling effect is the inhibition or
discouragement of the legitimate exercise of natural and legal
rights by the threat of legal sanction.
Illustration: In Journalism literature, there has been a long
standing movement to decriminalize libel because the excessive
fines imposed by the courts constitutes a chilling effect. Instead of
faithfully pursuing a story for the greater good, journalists will be
constrained to think twice about putting out a story in fear of a
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

prosecution for libel. [Sa Philippines, fines can go as high as P1M

and kawawa ang journalist na overwork at underpaid].

Example Case: NY vs Sullivan [Discussion near the end]

D. FREEDOM OF ASSEMBLY

The right to peaceably assemble and petition for redress

of grievances is, together with freedom of speech, of
expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection. For these rights
constitute the very basis of a functional democratic polity,
without which all the other rights would be meaningless
and unprotected [Bayan vs Ermita, G.R. Nos. 158786,
etc.,19 October 2007].

Q: Are permits contrary to the right to peaceably

assemble?

A: Not necessarily. The right to freedom of speech, and

to peacefully assemble and petition the government for
redress of grievances, are fundamental personal rights of
the people recognized and guaranteed by the constitutions
of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies
that the exercise of those rights is not absolute for it may
be so regulated that it shall not be injurious to the equal
enjoyment of others having equal rights, nor injurious to
the rights of the community or society.

NOTE: The permit rule in rallying is the perfect example of

a content-neutral regulation. BP 880, a law which requires
a permit before people may publicly exercise this right,
does not violate freedom of assembly precisely because
the law provides that the government can only deny such
a permit upon a showing of a clear and present danger
that such an assembly may bring about. It basically
codifies the standard from our jurisprudence on when prior
restraint may be allowed. [Bayan v. Ermita, 2006].

- End of Chapter IX -

Notes:

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E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

X. ACCESS TO INFORMATION Access to Information Full Public Disclosure

[Art. III, Sec. 7] [Art. II, Sec. 28]
Requires a demand or a Mandatory; does not
Art. II, Sec. 28: request for one to gain require a request or a
“Subject to reasonable conditions prescribed by law, the access. demand.
State adopts and implements a policy of full public Has a broader scope;
disclosure of all its transactions involving public interest.” embracing not only
transactions, but any
Art. III, Sec. 7: matter contained in official Covers only transactions
“The right of the people to information on matters of communication and involving public interest.
public concern shall be recognized. Access to official public documents of the
records, and to documents and papers pertaining to government agency, of
official acts, transactions, or decisions, as well as to public concern.
government research data used as basis for policy
development, shall be afforded the citizen, subject to such Both rights accorded by these provisions are considered
limitations as may be provided by law.” public rights.

Q: What is a public right? How is the right to

A. SELF-EXECUTING PROVISIONS
It is important to remember that Sec. 28 Art. II is self-
executing. [Gonzales v. Narvasa]
B. RIGHT TO ACCESS TO INFORMATION VS
DUTY TO DISCLOSE
Art. II, Sec. 28 [full public disclosure] covers all
transactions of public interest. This includes any
information in official communications and public
documents of the government. The government has the
duty to disclose the information regardless of whether or
not there is a demand for it.
The right to access under Art III, Sec. 7[access to
information] covers matters of public concern. There
must first be a request in order to gain access to the
information.
The phrase ―subject to reasonable conditions prescribed
by law‖ in Sec. 28, Art. II means that legislation is required
to regulate and control disclosure. This is to qualify what
constitutes sufficient disclosure of information. If there is
an obligation to disclose, even if the information is not
sought, the obligation to make such information public still
exists. If such information is not covered by Sec. 28 Art. II;
then the broad language of Sec. 7 Art III still affords
citizens access to information not otherwise disclosed.
information a public right?
A: It is an individual right, but one that belongs to the
public, such that any member of the public would have
standing to litigate on its basis.
When there is an assertion of a public right, the
requirement of personal interest is satisfied by the mere
fact that the petitioner is a citizen, and is, therefore, part of
the general public which possesses the right [Legaspi v
CSC].
Rationale
Generally, writings coming into the hands of public officers
in connection with their official functions must be
accessible to the public, consistent with the policy of
transparency of governmental affairs. This principle is
aimed at affording the people an opportunity to determine
whether those to whom they have entrusted the affairs of
the government are honestly, faithfully and competently
performing their functions as public servants. Undeniably,
the essence of democracy lies in the free flow of thought
but thoughts and ideas must be well-informed so that the
public would gain a better perspective of vital issues
confronting them and, thus, be able to criticize as well as
participate in the affairs of the government in a
responsible, reasonable and effective manner [Chavez v
PCGG].

See table below for a comparison of the two provisions

C. SCOPE
[from IDEALS Inc v. PSALM].
The scope of the provisions includes matters of public
interest [Sec. 28 Art. II] and of public concern [Sec. 7
Art. III]. Access to such information may be subject to
reasonable conditions prescribed by law [Baldoza v
Dimaano].

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E2019 Reviewer CONSTITUIONAL LAW 2
Public Interest
What constitutes as a matter of public interest has a broad
scope. It refers to any matter contained in official
communications and public documents of a government
agency. Information that is of public interest has to be
disclosed or made available to the public even without
demand for it.
Example in jurisprudence
In Chavez v PCGG, the petitioner was demanding the
disclosure of the terms of negotiations regarding the
settlement agreement between the government and the
Marcos heirs regarding former president Marcos‘ ill-gotten
wealth. This was prior to the consummation of such
negotiations. The Court ruled that such information is of
public interest, and must therefore be disclosed subject to
the same restrictions on disclosure of information in
general [such as matters involving national security,
diplomatic or foreign relations, etc].
Public Concern
Matters of public concern are subjects which the public
may want to know either because these directly affect their
lives, or because they naturally arouse the interest of an
ordinary citizen [Legaspi v CSC]. This includes:
1) Official records
2) Documents and papers pertaining to official acts,
transactions, or decisions
3) Government research data
A Filipino citizen may request access to such information.
Ultimately, the courts determine what constitutes matters
of public interest on a case to case basis [Chavez v
PCGG].
Examples in Jurisprudence
In Gonzales v. Narvasa, the petitioner assailed the
constitutionality of the creation of the Preparatory
Commission on Constitutional Reform, and likewise
requested a list of the names of executive officials holding
multiple positions in government, copies of their
appointments, and a list of the recipients of luxury vehicles
seized by the Bureau of Customs and turned over to
Malacañang. The Court ruled that the information sought
for are matters of public concern; thus, respondent
Executive Secretary Zamora is obliged to answer the
petitioners and to allow the inspection and copying of the
requested documents subject to reasonable limitations.
In Baldoza v. Dimaano, the petitioner, the Municipal
Secretary of Taal, Batangas, charged the Municipal Judge
Dimaano with abuse of authority for refusing to allow
employees of the Municipal Mayor to examine the criminal
docket records of the Municipal Court to secure data for
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Prof. De Vera
their report on the peace and order conditions of the
municipality. The Court ruled that petitioners had a right to
access the information, but that the respondent did not act
arbitrarily as it allowed the complainant to open and view
the docket books, but under certain conditions and under
his control and supervision.
In Legaspi v Civil Service Commission, the petitioner
Legaspi sought a writ of mandamus to compel the Civil
Service Commission to disclose information on the civil
service eligibilities of certain persons employed as
sanitarians. The Court ruled that eligibility of persons for
public positions is a public concern, and it is thus the duty
of the respondent to confirm or deny the civil service
eligibility of any person occupying a public position.
Q: Does the right to information include access to on-
going negotiations or proposals prior to final
agreement?
A: Yes. Based on the intent of the constitutional
commission, it can be said that ―transactions‖ under Sec. 7
Art. III covers different things such as contracts,
agreements, or treaties, and refers to both steps leading to
a contract, and an already consummated contract. As
such, the Government has a duty to disclose such
information even if negotiations are still on-going
[Chavez v PCGG].
D. REMEDY FOR VIOLATION
As the duty to disclose cannot be discretionary on the
part of the agency being asked of such information, an
action for mandamus is available to those denied of such
access. [Legaspi v Civil Service Commission].
E. LIMITATIONS
There are no specific laws prescribing the limitations
within which the right to information may be exercised;
however, the following are recognized restrictions
[Chavez v PCGG]:
1) National Security Matters - state secrets
regarding military, diplomatic, and other national
security concerns; inter-government exchanges
prior to the conclusion of treaties and executive
agreements
2) Trade Secrets and Banking Transactions –
intelligence information, trade or industrial secrets,
banking transactions
3) Criminal Matters – relating to apprehension,
prosecution, detention of criminals, prior to arrest,
detention, and prosecution
E2019 Reviewer CONSTITUIONAL LAW 2
4) Other Confidential Information – any confidential
or classified information officially known by a public
officer by reason of their office and not made
available to the public
Executive Privilege
Neither the right to information nor the policy of full public
disclosure is absolute, there being matters which, albeit of
public concern or public interest, are recognized as
privileged in nature [Akbayan v Aquino]. There are two
kinds of executive privilege—presidential communications
privilege, and deliberative process privilege.
Scope and Limitations
US v Nixon held that a claim of executive privilege is
subject to balancing against other interests. In other
words, confidentiality in executive privilege is not
absolutely protected by the Constitution [Neri v Senate].
Such privilege is only presumptive. As held in Senate v.
Ermita, recognizing a type of information as privileged
does not mean that it will be considered privileged in all
instances. Only after a consideration of the context in
which the claim is made may it be determined if there is a
public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally
privileged status [Akbayan v Aquino].
1. Presidential Communications Privilege
This privilege pertains to communications, documents
or other materials that reflect presidential decision-
making and deliberations and that the President
believes should remain confidential. It applies to the
decision-making of the president and is rooted in the
constitutional principle of separation of powers. It also
applies to documents in their entirety, and covers final
and prost-decisional materials as well as pre-
deliberative ones. As such, negation of the
presidential communications privilege is always
subject to greater scrutiny than denial of the
deliberative process privilege [Neri v Senate].
In Re: Sealed Case confines the privilege only to
White House Staff that has operational proximity to
direct presidential decision-making. Thus, the
privilege is meant to encompass only those functions
that form the core of presidential authority, involving
what the court characterized as quintessential and
non-delegable Presidential power, such as
commander-in-chief power, appointment and removal
power, the power to grant pardons and reprieves, the
sole-authority to receive ambassadors and other
public officers, the power to negotiate treaties, etc.
[Neri v Senate].
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Prof. De Vera
Elements
As stated in Neri v Senate, citing Judicial Watch,
Inc. v. Department of Justice, In Re: Sealed Case,
and US v. Nixon:
1) The protected communication must relate to a
quintessential and non-delegable presidential
power.
2) The communication must be anchored or
solicited and received by a close advisor of the
President or the President himself. The judicial
test is that an advisor must be in operational
proximity with the President.
3) The presidential communications privilege
remains a qualified privilege that may be
overcome by a showing of adequate need, such
that the information sought likely contains
important evidence and by the unavailability of
the information elsewhere by an appropriate
investigating authority.
Presumption
Presidential communications are presumptively
privileged. The presumption can be overcome only by
mere showing of public need by the branch seeking
access to conversations. The courts are enjoined to
resolve the competing interests of the political
branches of the government in the manner that
preserves the essential functions of each branch [Neri
v Senate].
Proper Invocation
Based on Neri v Senate, the following are necessary
for a formal and proper claim of executive privilege:
1) There must be a formal claim of privilege lodged
by the head of the department which has control
over the matter.
2) There must be precise and certain reasons for
preserving confidentiality.
Test
The claim of executive privilege must then be
balanced with the specific need for disclosure of the
communications on the part of the other branch of
government through the Function Impairment Test.
The Court weighs how the disclosure of the withheld
information would impair the President‘s ability to
perform his constitutional duties more than
nondisclosure would impair the other branch‘s ability
to perform its constitutional functions [Neri v Senate,
Puno‘s dissent].
Function Impairment Test:
E2019 Reviewer CONSTITUIONAL LAW 2
1) The function impairment test begins with a
recognition that Presidential communications are
presumptively privileged.
2) The Court should proceed to determine the
strength of the presumption as it varies in light of
various factors. The stronger the presumption, the
greater the demonstrable need required to
overcome the presumption, and vice-versa.
Primary consideration: where the Constitution
textually committed the power in question [the
more concentrated power is in the President, the
greater the need for confidentiality and the
stronger the presumption]; other considerations:
time of disclosure, level of detail, audience,
certainty, frequency, form.
3) It should be determined whether the State has
sufficiently demonstrated its specific need for the
information withheld to overcome the presumption
in favor of Presidential communications. There
must be a showing that ―evidence is not available
with due diligence elsewhere‖ or that the evidence
is particularly and apparently useful.
4) Balance must be struck between conflicting
constitutional functions. It should be determined
whether disclosure of the disputed information
impairs the President‘s ability to perform his/her
constitutional duties more than disclosure would
impair Congress‘ ability to perform its
constitutional function to delegate.
Rationale of Presidential Communications
Privilege
The privilege is said to be necessary to guarantee the
candor of presidential advisors and to provide the
President and those who assist him with freedom to
explore alternatives in the process of shaping policies
and making decisions and to do so in a way many
would be unwilling to express except privately [Neri v
Senate].
Jurisprudence
In Neri v Senate, the petitioner Neri appeared before
the senate committees and testified on matters
concerning the NBN Project. However, when asked
certain questions regarding the involvement of then
President Arroyo, he refused to answer and invoked
executive privilege. Petitioner was cited in contempt.
The Court previously granted petitioner‘s petition for
certiorari, and in this case denied the senate‘s MR,
holding that the information being sought from Neri is
covered by the Presidential Communications
Privilege.
2. Deliberative Process Privilege
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Prof. De Vera
Deliberative Process Privilege covers documents
reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.
Notably, the privileged status of such documents
rests, not on the need to protect national security but,
on the obvious realization that officials will not
communicate candidly among themselves if each
remark is a potential item of discovery and front page
news, the objective of the privilege being to enhance
the quality of agency decisions [Akbayan v Aquino].
It finds its basis on common law privilege [Neri v
Senate].
Test
The deliberative process privilege is a qualified
privilege and can be overcome by a sufficient showing
of need. This need determination is to be made
flexibly on a case-by-case, ad hoc basis. "[E]ach time
[the deliberative process privilege] is asserted the
district court must undertake a fresh balancing of the
competing interests," taking into account factors such
as "the relevance of the evidence," "the availability of
other evidence," "the seriousness of the litigation,"
"the role of the government," and the "possibility of
future timidity by government employees‖ [Akbayan v
Aquino].
Rationale of Deliberative Process Privilege
A ruling that Philippine offers in treaty negotiations
should now be open to public scrutiny would
discourage future Philippine representatives from
frankly expressing their views during negotiations.
While, on first impression, it appears wise to deter
Philippine representatives from entering into
compromises, it bears noting that treaty negotiations,
or any negotiation for that matter, normally involve a
process of quid pro quo, and oftentimes negotiators
have to be willing to grant concessions in an area of
lesser importance in order to obtain more favorable
terms in an area of greater national interest [Akbayan
v Aquino]
Jurisprudence
In Akbayan v Aquino, petitioners sought to obtain
the full text of the JPEPA as well as the offers
submitted by each country in the negotiations. The
first prayer became moot because a copy has been
subsequently made public. Regarding the second
prayer, the Court ruled that diplomatic negotiations
enjoy presumptive privilege against disclosure, and
that the petitioners had failed to present sufficient
showing of need.
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

Q: Is the privilege for diplomatic negotiations

invoked only against citizens asserting their right
to information?

A: No, it may also be invoked in the context of

legislative investigations, because it is the President
alone who negotiates treaties, and not even the
Senate or House of Representatives, unless asked,
may intrude upon that process [Akbayan v Aquino].

Q: Does the Deliberative Process Privilege [for

diplomatic negotiations particularly] apply in all
stages of the negotiation process?
A: Yes, the constitutional right to information includes
official information on on-going negotiations before a
final contract. The information, however, must
constitute definite propositions by the government and
should not cover recognized exceptions like privileged
information, military and diplomatic secrets and
similar matters affecting national security and public
order.

- End of Chapter X -

Notes:

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E2019 Reviewer CONSTITUIONAL LAW 2
XI. FREEDOM OF RELIGION
Art. III, Sec. 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.”
A. FREE EXERCISE CLAUSE
The free exercise clause guarantees the liberty of the
religious conscience.
It prohibits any degree of compulsion or burden
whether direct, or indirect, in the practice of one‘s
religion.
It protects both the freedom to believe, which is
absolute, and the freedom to act, which may be subject
to regulation.
Tests Used in Jurisprudence:
1. Belief-Action Test
Under this test, regulation of religion in terms of
conduct is acceptable, as long as the
government is not regulating belief.
This test is no longer used as it has been
overturned by the deliberate-inadvertent
distinction.
Used in: Reynolds v. United States 98 U.S.
145 [1878]
2. Deliberate-Inadvertent Distinction
In this test, deliberate State interference or
religious exercise for religious reasons is
unconstitutional
Inadvertent interference with religion in
pursuing some secular objective however is
allowed.
This test is also no longer used as it has been
superseded by the Two-Part Balancing Test.
Used in: Minersville School District v. Gobitis
310 U.S. 586 [1940]
3. Two-Part Balancing Test
Step 1: The regulation places a real burden on
the plaintiff‘s religious exercise
Step 2: The burden may be upheld upon
showing that the State has an overriding
secular goal
Step 3: The means to achieve the goal imposed
the least burden on religious practices.
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Prof. De Vera
This test has also been superseded by the
Compelling State Interest Test.
Used in: Braunfeld v. Brown 366 US 599
[1961]
4. Compelling State-Interest Test
Step 1: Same as Two-Part Balancing Test
Step 2: The State interest must be paramount
and compelling to override the free expression
claim
Step 3: same as Two-Part Balancing Test
This test the one currently used in Philippine
Jurisprudence
Used in: Sherbert v. Verner 374 U.S. 398
[1963]
B. NON-ESTABLISHMENT CLAUSE
Calls for government neutrality in religious matters,
to uphold voluntarism and avoid breeding inter-faith
dissension
The State can‘t pass laws which aid one religion, all
religions, or prefer one religion over another.
The Lemon Test from Lemon v. Kurtzman 403 U.S.
602 has been used in determining the validity of
statutes assailed on the grounds of violation of this
clause:
1. The Statute must have a secular purpose
2. Its primary or principal effect must be one that
neither advances nor inhibits religion.
3. The Statute must not foster an excessive
entanglement with religion.
C. STRICT NEUTRALITY VS. BENEVOLENT
NEUTRALITY
There are two basic approaches that US and
Philippine Jurisprudence has used in deciding on
government regulation and interaction with religion.
These are the Strict Neutrality approach also known
as separation; and the Benevolent Neutrality
approach, also known as accommodation.
Strict Neutrality [separation]
This approach protects the principle of church-
state separation with a rigid reading of the
principle. It allows no interaction between the
church and the state.
Under this approach, religion may not be used as
a basis for classification of government action.
E2019 Reviewer CONSTITUIONAL LAW 2
Benevolent Neutrality
This approach recognizes that absolute
separation is not realistic and practicable in our
society.
Instead, this approach allows for an interaction
between religion and the state, and an
accommodation of religion in law making as
called for by necessity or practicality.
In the Philippines, our previous and present
Constitutions provide many provisions why this
approach is applicable in our jurisdiction:
o The tax exemption extended to religious
groups
o Optional religious instruction
o The Preamble‘s mention of Almighty God
These provisions manifest the Filipinos‘
adherence to the benevolent neutrality
approach.
Accommodation Theory
Under the benevolent neutrality approach,
accommodations of religion is allowed under
certain circumstances
Accommodations are government policies that
take religion specifically into account not to
promote the government‘s favoured form of
religion, but to allow individuals and groups to
exercise their religious freedom without
hindrance.
What is sought under the accommodation
theory is not a declaration of unconstitutionality
of a facially neutral law, but an EXEMPTION
from its application or its “burdensome
effect,” even in criminal statutes.
There are 3 types of accommodation:
1. Mandatory Accommodation
results when the Court finds that
accommodation is required by the Free
Exercise Clause
When the Court itself carves out an
exemption.
Occurs when the Compelling State
Interest Test is met, i.e. the State has
failed to demonstrate a compelling
interest in presenting an exemption.
2. Permissive Accommodation
This is synonymous to legislative
accommodation, and results when the
legislature provides for an exception.
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Prof. De Vera
Example: Exemption granted to
Muslims with regard to the crime of
Bigamy in the Sharia Law.
3. Prohibited Accommodation
This results when the Court finds that
there is no basis for a mandatory
accommodation, or it determines that
the legislative accommodation runs
afoul of the Establishment or Free
Exercise clauses.
Establishment clause prevails over
potential accommodation interests.
Q: Does the benevolent neutrality approach allow
exemptions upon invoking the right of freedom of
religion even on CRIMINAL statutes?
A: Mr. Justice Puno seems to think so. The ponencia in
the case of Estrada vs. Escritor allows even mandatory
accommodation to be applied to criminal statutes. He
mentions that the benevolent neutrality approach allows
for both mandatory and permissive accommodations, and
this approach was unequivocally adopted by our framers
in the Philippine Constitution, our legislature, and our
jurisprudence.
Q: Does the invocation of the Free Exercise clause
give an ABSOLUTE defense on criminal statutes?
A: No. The benevolent neutrality doctrine does not mean
that the Court ought to grant exemptions every time a free
exercise claim comes before it. The purpose of the test is
to draw the line between mandatory, permissible and
forbidden religious exercise. It only means that, under
the framework, the Court cannot simply dismiss a
claim under the Free Exercise Clause because the
conduct in question offends a law.
D. CASE STUDY: ESTRADA VS. ESCRITOR
In the administrative case of Estrada v. Escritor, a court
interpreter, was accused of cohabiting with a man who
was not her husband and was facing a possible dismissal
from service from the judiciary, on the grounds of immoral
acts. She argues that in her religion [Jehovah‘s Witness],
this is a perfectly acceptable practice and is not immoral
[subject to certain conditions, which she has met].
Dismissing her from service would constitute a violation on
her constitutionally protected right to freely exercise her
religion, and asks that she be able to keep her job. May
she be granted an exemption?
E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

The Court ruled that the test to be used was the

Compelling State Interest Test. It was proven that:
a) There was in fact a burden on the exercise of her
religion.
b) Her adherence to her religion was authentic and
sincere.
c) The government failed to show a compelling
state interest
d) The government failed to show that this was the
least burdensome means to achieve their
interest.

Thus, the Court ruled that she should be given an

exemption from the otherwise generally applicable rule
that such an act is immoral and would be a ground for
dismissal from the judiciary. She got to keep her job and
the case was dismissed.

- End of Chapter XI -
Notes:

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Criminal Procedure laws become EPF if it alters legal

rules of evidence or mode of trial, UNLESS the changes
XII. EX POST FACTO LAW AND operate in a limited and unsubstantial manner to the
disadvantage of the accused. [Pascual vs Board of
BILL OF ATTAINDER Medical Examiners].
TEST: Whether the new law takes away rights VITAL
Art. III Sec. 22: FOR THE PROTECTION OF LIFE AND LIBERTY.
“No ex post facto law or Bill of attainder shall be enacted”

A. EX POST FACTO LAWS (EPF)
Definition [*Mekin v Wolfe 2 Phil 74; **In Re Kay
Villegas Kami 25 SCRA 429]
1. *That which makes an action done before the
passing of the law and which was innocent when
done criminal, and punishes such action or;
2. *Which aggravates a crime or makes it greater than
when it was committed or;
3. *Which changes the punishment and inflicts a
greater punishment than the law annexed to the
crime when it was committed or;
4. *Which alters the legal rules of evidence and
receives less or different testimony than the law
required at the time of the commission of the offense
in order to convict the defendant or;
5. **Assumes to regulate civil rights and remedies only
but in effect imposes a penalty or deprivation of a
right which when done was lawful
6. **Deprives a person accused of a crime of some
lawful protection to which he has become entitled,
such as the protection of a former conviction or
acquittal, or a proclamation of amnesty
B. BILL OF ATTAINDER
Definition
It is a legislative act which inflicts punishment without
judicial trial.
Essential Elements:
1. There must be a law
2. The law imposes a penal burden on a named
individual or easily ascertainable members of a
group
3. Such burden is imposed directly by law without
trial.
Example:
A law that requires every lawyer who wishes to continue to
practice law to take the oath that he or she has not
committed any act of disloyalty to the country. (kung
traydor ka pero gusto mo magpractice pa rin, tapos di ka
makapag oath, parang punishment na rin yung incapacity
mo magtuloy ng practice. Tapos yung incapacity na yun,
nakuha mo without trial)

Note: Laws shortening the prescriptive period for a crime

and an official interpretation of a penal law by the DOJ that
subsequently prejudices one who has relied on the earlier - End of Chapter XII -
interpretation are ex post facto laws.
Court decisions retroact to the time the law took effect Notes:
[Castro v Deloria]

General Rule
Generally, the prohibition on ex post facto laws (EPF for
brevity) only applies to PENAL LAWS. The case of
Lacson v Executive Secretary implies that only natural
rights are included in the mantle of protection against
EPF, statutory ones aren‘t.
o Penal Law: It is penal if it prescribes a criminal
penalty or a burden equivalent to such (e.g.
disqualification from a profession) imposable in a
criminal trial for the former and administrative
proceeding for the latter
Substantive penal laws become EPF (see 1, 2, 3).

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whole, not just the parties involved and as such, the law
was deemed to be a valid exercise of police power to
protect such public interest.
XIII. NON IMPRISONMENT FOR Note: in US v Cara – the Court held that subsidiary
DEBT AND INVOLUNTARY imprisonment as provided for by the RPC is not
imprisonment for debt hence not covered by the
SERVITUDE prohibition because monetary payment is part of the
punishment for conviction. The sentence and each part
of it (including money payment or subsidiary imprisonment
Art. III, Sec. 20:
in case of failure to pay) is by reason of conviction of a
―No person shall be imprisoned for debt or non-payment of
criminal offense, not by virtue of non-payment of debt.
a poll tax.”
(Dulay‘s note: basically, di ka makukulong dahil di ka
nagbayad, makukulong ka kasi may nilabag kang batas)

Art. III, Sec 18:

“(1) No person shall be detained solely by reason of his
B. INVOLUNTARY SERVITUDE
political beliefs and aspirations
General Rule
(2) No involuntary servitude in any form shall exist except
No involuntary servitude is allowed (absolute in the
as a punishment for a crime whereof the party shall have
constitution; only constitutional exceptions are
been duly convicted”
allowed)

Exceptions
A. NON IMPRISONMENT FOR DEBT
1.) As punishment for a crime after conviction [Art. III,
Freeman vs United States Interpretation: Laws which
Sec. 18]
prohibit imprisonment for debt relate to the imprisonment
2.) In interest of national defense, all citizens may be
of debtors for liability incurred in fulfilment of contracts but
COMPELLED by law to render personal, military, or civil
not to cases seeking the enforcement of penal statues that
service [Art. II, Sec. 4]
provide for the payment of money as penalty for
commission of a crime.
Note: An order to return to work is ―not violative of [the]
right under Sec 18 Art III since the worker can give up his
General Rule
work if he doesn‘t want to obey the order‖ [Case nuance,
No one shall be imprisoned for non-payment of debt.
Kaisahan ng mga Manggagawa vs GOTAMCO].
The debt contemplated in this provision are those
arising from contractual obligations. [Ajeno v
Inserto].
Debt arising from crime (ex delictu) is not covered by
the protection.
Debts arising ex contractu or from contracts are the
only ones covered [Gunaway vs Guillen]
- End of Chapter XIII -

Exceptions Notes:
Laws in Valid Exercise of Police Power
In the case of People vs. Vera Reyes, the Court upheld a
statute passed by congress penalizing by imprisonment
non-payment of salaries by employers to employees.

In Lozano v Martinez, BP 22 or the Bouncing Checks

Law was challenged to be unconstitutional for imposing a
penalty of imprisonment for issuing worthless checks. The
Court upheld the validity of the statute, holding checks are
not mere contracts but is actually an essential tool used in
commerce imbued with such confidence. Issuing bad
checks had an adverse effect on the community as a

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XIV. FREE ACCESS TO COURTS

AND QUASI-JUDICIAL BODIES

Art. III, Sec. 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.”

GENERAL RULE
This provision is absolute and has no exceptions.
This is basically a provision that secures the right of
the poor to access to courts (Sofronio “Esdee” Dulay
II, 2016)
The Free access part of the 1973 Constitution
embodies this principle: Free access to the courts shall
not be denied to any person by reason of poverty.

People in Poverty
―Those protected include low paid employees, domestic
servants, and laborers [Cabangis v Lopez]. These people
need not be poor, mere indigence would suffice [Acar v
Rosal].

Indigence
Having no property or sources of income sufficient for
their support aside from their own labor, though self-
supporting when able to work and in employment.
(Basically, di kailangan pulubi. Kahit okay yung health mo
tapos may bahay ka, tho presumably barung barong yon,
pasok ka pa rin kung waley ka work)

Note: Quasi-judicial proceedings are included so this right

is invoke-able in quasi-judicial proceedings of admin
agencies or legislative bodies.

Adequate Legal Assistance for Indigents

Basically the reason why there is PAO.

- End of Chapter XIV -

Notes:

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E2019 Reviewer CONSTITUIONAL LAW 2 Prof. De Vera

“Worse, when the Constitution is invoked to justify outrages against freedom, truth and
justice, when democracy is destroyed under the pretext of saving it, law is not only denied–it
is perverted.

And what need do our people have for men and women who would practice perversion?

Yet the truth remains true that never have our people had greater need than today for great
lawyers, and for young men and women determined to be great lawyers.

Great lawyers–not brilliant lawyers. A scoundrel may be, and often is, brilliant; and the greater
the scoundrel, the more brilliant the lawyer. But only a good man can become a great
lawyer: for only a man who understands the weaknesses of men because he has conquered
them in himself; who has the courage to pursue his ideals though he knows them to be
unattainable; who tempers his conviction with respect for those of others because he realizes
he may be mistaken; who deals honorably and fairly with all, because to do otherwise would
diminish him as well as them–only such a man would so command respect that he could
persuade and need never resort to force. Only such a man could become a great lawyer.
Otherwise, „what you are speaks so loudly, cannot hear what you say.‟

For men and women of this kind, our country will always have need–and now more than ever.”

- Ka Pepe, Jose W. Diokno

- END OF REVIEWER –

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