CONSTITUTIONAL LAW II

FUNDAMENTAL POWERS OF THE STATE

1. Police power;
2. Eminent domain; and
3. Taxation.

They are considered inherent because they belong to the very essence of government and
without them no government can exist. A constitution does not grant these powers (Bernas,
1987 Philippine Constitution: A Comprehensive Reviewer (2011), p. 23 [hereinafter BERNAS
Reviewer])

Limitations of the Inherent Powers of the State

The exercise of these fundamental powers is subject at all times to the limitations and
requirements of the Constitution and may, in proper cases, be annulled by the courts of justice
(CRUZ and CRUZ, Constitutional Law (2015), p. 84 [hereinafter CRUZ])

Similarities among the Fundamental Powers

1. They are inherent in the State and may be exercised by it without need of express
constitutional grant;
2. They are methods by which the State interferes with private rights;
3. They are necessary and indispensable in governance;
4. They are enduring and indestructible as the State itself;
5. They presuppose equivalent compensation; and
6. They are exercised primarily by the legislature (CRUZ, p. 80-81)

THE FUNDAMENTAL POWERS, DISTINGUISHED

Police Power Eminent Domain Power of Taxation
As to exercising authority
Exercised only by the It may be exercised by public Exercised only by the
government and private entities government
As to delegability
Upon valid delegation, it may Upon valid delegation, it may Upon valid delegation, it may
also be exercised by: also be exercised by: also be exercised by:
1. President; 1. President 1. President; and
2. Administrative bodies; 2. Law-making bodies of 2. Law-making bodies of
and LGUS; LGUS (CRUZ, p.184-
3. Law-making bodies of 3. Public corporations; 185)
LGUS (CRUZ, p.100) 4. Quasi-public
corporations; and
5. Administrative bodies
(CRUZ, p.130-131)
 As to purpose for the exercise of the power
Public necessity and the right Necessity of the public for the Public necessity; life-blood
of the State and of the public use of private property theory
to self-preservation and self-
protection
As to the nature of the property involved when taken
Property is noxious or Property is wholesome and is devoted to public use or purpose
intended for a noxious
purpose and as such taken
and destroyed
As to compensation
Compensation is the tangible, Compensation is the full and Compensation is the
altruistic feeling that the fair equivalent of the property protection and public
individual has contributed to taken improvements instituted by
the public good the government for the taxes
paid
As to the scope
Regulates both liberty and Affect only property rights
property

A. POLICE POWER
It is the state authority to enact legislation that may interfere with personal liberty or property
in order to promote general welfare (Philippine Association of Service Exporters, Inc. v. Drilon,
et. al., G.R. No. 81958, June 30, 1988)

Basis in Fundamental Legal Principles:

1. The law of overruling necessity – the State has the power to restrain and regulate the
use of liberty and property for the promotion of public welfare (SUAREZ, Political Law
Reviewer (2015), p. 36 [hereinafter SUAREZ Reviewer])
2. Salus populi est suprema lex – the will of the people is the supreme law
3. Sic utere tuo ut alienum non laedas – use your property so as not to injure the property
rights of others (Gerochi v. DOE, G.R. No. 159796, July 17, 2007)

Characteristics: It is the most pervasive, the least limitable and the most demanding of the
three powers. It is the most essential, insistent, and the least limitable power, extending as it
does “to all the great public needs.” It may be exercised as long as the activity or the property
sought to be regulated has some relevance to the public welfare (CRUZ, p. 85-86)

Basic Limitations on the Exercise of Police Power:

1. Due process clause – no person shall be deprived of life, liberty, or property without
due process of law; and
2. Equal protection clause – no person shall be denied the equal protection of laws
(CONST, Art. III, Sec. 1)
Requisites for a Valid Exercise of Police Power:
1. Lawful subject – the subject of the measure is within the scope of the police power, ie.,
that the activity or property sought to be regulated affects the public welfare. The
interest of the public, generally, as compared to a particular class requires interference
by the State; and
2. Lawful means – the means employed are reasonably necessary for the accomplishment
of the purpose, and not unduly oppressive upon individuals. Both the end the means
must be legitimate (DECS v. San Diego, G.R. No. 89572, Dec. 1, 1989)

Exercise of Police Power, in General

Dynamic, not static, and must move with the moving society it is supposed to regulate. Once
exercised, it is not deemed exhausted and may be exercised again and again, as often as it is
necessary for the protection or the promotion of the public welfare (CRUZ, p. 90)

Exercise Must Not Be Arbitrary

The government may enact legislation that may interfere with personal liberty, property, lawful
businesses, and occupations to promote the general welfare. However, the interference must
be reasonable and not arbitrary. To forestall arbitrariness, the means used must have a
reasonable relation to the end in view (Gancayco v. City Government of Quezon City, G.R. No.
177807, Oct. 11, 2011)

Exercise of Police Power Essentially Legislative

Police power is lodged primarily in the National Legislature.

The National Legislature, however, may delegate this power to the President and administrative
boards as well as the lawmaking bodies of municipal corporations or local government units.
Once delegated, the agents can exercise only such powers as are conferred on them by the
national lawmaking body (MMDA v. Bel-Air Village Association, G.R. No. 135962, March 27,
2000)

The MMDA’s powers were limited to the formulation, coordination, regulation,

implementation, preparation, management, monitoring, setting of policies, installing a system,
and administration. Nothing in Republic Act 7924 granted MMDA police power, let alone
legislative power. Therefore, MMDA cannot, on its own, dismantle, remove, or destroy the
billboards, signages, and other advertising media installed on the MRT3 structure by
Trackworks (MMDA v. Trackworks, G.R. No. 179554, Dec. 16, 2009)

Powers of Eminent Domain and Taxation as Implements of Police Power

Recent trends, however, would indicate not a polarization but a merging of the police power
and the power of eminent domain, with the latter being used an implement of the former like
the power of taxation (Association of Small Landowners in the Philippines v. Secretary of
Agrarian Reform, G.R. No. 78742, July 14, 1989)
The mandated confiscation of all covered lands held beyond private retention limits is
compensable as it partakes the nature of expropriation. And yet, this kind of expropriation is
intended for the benefit not only of a particular community or of a small segment of the
population but of the entire Filipino nation, from all levels of our society, from the
impoverished famer to the land-glutted owner. Its purpose does not cover only the whole
territory of this country but goes beyond in time to the foreseeable future, which it hopes to
secure and edify with the vision and the sacrifice of the present generation of Filipinos. It is for
this reason that the exercise of eminent domain becomes an implement of police power (Id.)

The Power of Taxation may be used as an implement of Police Power when the tax is levied for
a regulatory purpose, to provide means for the rehabilitation and stabilization of a threatened
sugar industry. Sugar production is one of the greatest industries of our nation. Its promotion,
protection and advancement, therefore redounds greatly to the general welfare. Hence it was
competent for the legislature to find that the general welfare demanded that the sugar industry
should be stabilized in turn; and in the wide field of its police power, the lawmaking body could
provide that the distribution of benefits therefrom be readjusted among its components to
enable it to resist the added strain of the increase in taxes that it had to sustain ( Lutz v.
Araneta, G.R. No. L-7859, Dec. 22, 1955)

Zoning Ordinance as Valid Exercise of Police Power

The power to establish zones for industrial, commercial, and residential uses is derived from the
police power itself and is exercised for the protection and benefit of the residents of a locality.
The continued operation of the businesses of the oil companies in their present location will no
longer be permitted, as a result of zoning (Gancayco v. City Government of Quezon City and
MMDA, G.R. No. 177807, Oct. 11, 2011)

The main purpose of zoning is the protection of public safety, health, convenience, and welfare
(Knights of Rizal v. DMCI Homes, Inc., et. al., G.R. No. 213948, April 25, 2017)

Superiority of Police Power

Police power cannot be barred by the invocation of contract, treaty or property rights.
1. Contractual rights – the impairment clause must yield to the police power whenever
the contract deals with a subject affecting public welfare (Stone v. Mississippi, 101 U.S.
814)
2. Treaty rights – A treaty is always subject to qualification or amendment by a
subsequent law; it can never curtail or restrict the scope of police power (Ichong v.
Hernandez, G.R. No. L-7995, May 31, 1957)
3. Property rights – Property rights must bow down to the primacy of the police power
because property rights, though sheltered by due process, must yield to general
welfare (Carlos SuperDrug Corp. v. DSWD, G.R. No. 166494, June 29, 2007)
B. POWER OF EMINENT DOMAIN

The power to forcibly take private property for public use upon payment of just compensation
(SUAREZ Reviewer, p. 125). It is also known as the Power of Expropriation.

Basis: Necessity of the property for public use (American Print Works v. Lawrence, 23 N.J.L. 590)

Two Stages of Eminent Domain Cases:

1. The determination of the authority of the expropriator to exercise the power of eminent
domain and the propriety of its exercise in the context of the facts involved in the suit;
and
2. The determination by the court of “the just compensation for the property sought to be
taken” (Republic v. Lim, G.R. No. 161656, June 29, 2005)

Requisites of the Exercise of Eminent Domain:

1. Necessity – There must be a necessity which must be of public character (City of Manila
v. The Arellano Law Colleges, Inc., G.R. No. L-2929, Feb. 28, 1950)

When exercised by:

a. Congress - The question of genuine necessity is a political question which the
courts cannot inquire into.
b. Delegate – it may be a:
i. Grant of special authority for special purpose, in which case the question
of genuine necessity is still a political question; or
ii. Grant of general authority, in which case it is a justiciable question that
can be resolved by the courts (City of Manila v. Chinese Community of
Manila, G.R. No. L-14355, Oct. 31, 1919)

Effect of Loss of Public Necessity

If the genuine public necessity disappears, then there is no more cogent point for the
government’s retention of the expropriated land (Vda. De Ouano v. Republic, G.R. No.
168770, Feb. 9, 2011)

2. Private Property – Generally, all private property capable of ownership may be

expropriated; it may include public utility (Republic v. PLDT, G.R. No. L-18841, Jan. 27,
1969)
Exceptions:
a. Money
Expropriation of money would be a futile act because of the requirement for the
payment of just compensation, usually also made in money (CRUZ, p. 136-137)
b. Choses in action
A chose in action is a proprietary right in personam, such as debts owned by
another person, a share in a joint-stock company, or a claim for damages in tort;
 it is the right to bring an action to recover a debt, money, or thing (Black’s Law
Dictionary, 8th ed., p. 258)

Note: Private property devoted for public use, e.g., cemetery, is also a proper subject
of expropriation (City of Manila v. Chinese Community of Manila, supra)

3. Public Use

Traditional Concept
It refers to any use directly available to the general public as a matter of right and not
merely of forbearance or accommodation (CRUZ, p. 149), e.g., construction of roads,
bridges, ports, waterworks, schools, electric and telecommunication systems,
hydroelectric power plants, markets and slaughterhouses, parks, hospitals, government
office buildings, and irrigation systems (Heirs of Juancho Ardona v. Reyes, G.R. Nos. L-
60549, 60553-60555, Oct. 26, 1983)

Expanded Concept
Public use has now acquired an expansive meaning to include any use that is of
“usefulness, utility, or advantage or what is productive of general benefit of the public”
(Vda. de Ouano v. Republic, supraI). Whatever may be beneficially employed for the
general welfare satisfies the requirement of public use (Reyes, et. al v. National Housing
Authority, G.R. No. 147511, Jan. 20, 2003)

The idea that “public use” is strictly limited to clear cases of “use by the public” has
been discarded. As long as the public has the right of use, whether exercised by one or
many members of public, a ‘public advantage’ or ‘public benefit’ accrues sufficient to
constitute a public use (Manosca v. CA, G.R. No. 106440, Jan. 29, 1996)

Effect of Abandonment of Intended Use and Right to Repurchase

In case of abandonment of intended use, the expropriator should file another petition
for the new purpose. If not, it is then incumbent upon the expropriator to return the
said property to its private owner, if the latter desires to reacquire the same. Otherwise,
the judgment of expropriation suffers an intrinsic flaw for lack of public purpose (MCIAA
v. Lozada, Sr., G.R. No. 176625, Feb. 25, 2010)

A condemnor should commit to use the property pursuant to the purpose stated in the
petition for expropriation, failing which it should file another petition for the new
purpose. If not, then it behoves the condemnor to return the said property to its private
owner, if the latter so desires (Vda. De Ouano v. Republic, supra)

4. Taking – it is the appropriation of title to and possession of the expropriated property;

but may be availed of to impose only a burden upon the owner of condemned property,
without loss of title and possession (Republic v. PLDT, supra)
 Instances of ‘Taking’:
a. The owner is actually deprived or dispossessed of his property (CRUZ, p. 139);
b. The owner is deprived of the ordinary use of his property (Republic v. Sarabia,
G.R. No. 157847, Aug. 25, 2005); or
c. The owner is deprived of jurisdiction, supervision, and control of his property
(Municipality of La Carlota v. NAWASA, G.R. No. L-20232, Sept. 30, 1964I)

Instances of Constructive Taking Subject to Compensation

There is destruction, restriction, diminution, or interruption of the rights of ownership
or of the common and necessary use and enjoyment of the property in a lawful manner,
lessening or destroying its value. It is neither necessary that the owner be wholly
deprived of the use of his property, nor material whether the property is removed from
the possession of the owner, or in any respect changes hands (National Power
Corporation v. Heirs of Macabangkit Sangkay, G.R. No. 165828, Aug. 24, 2011)

Requisites of Actual Taking:

a. Expropriator must enter the property;
b. Entry must not be for a momentary period only;
c. Entry must be under warrant or color of authority;
d. Property must be devoted to public use or otherwise informally appropriated or
injuriously affected; and
e. Utilization of the property must be in such a way as to oust the owner and
deprive him of beneficial enjoyment of the property (Republic v. vda. De
Castellvi, G.R. No. L-20620, Aug. 15, 1974)

Note: Imposition of restrictions on the use of property to protect the public health,
safety, or morals from dangers is not a taking as there is no dedication to public use
(Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,
supra)

Inverse Condemnation
It is an action commenced by the property owner to recover the value of the property
taken in fact by the government defendant, even though no formal exercise of the
power of eminent domain has been attempted by the taking agency (National Power
Corporation v. Heirs of Macabangkit Sangkay, supra)

Effect of taking without going through the legal process

The aggrieved party may properly maintain suit against the government without
violating the doctrine of governmental immunity from suit without its consent
(Amigable v. Cuenca, G.R. No. L-26400, Feb. 1972)

5. Just Compensation – it is the full and fair equivalent of the property taken; the fair
market value of the property (NPC v. Chiong, G.R. No. 152436, June 20, 2003). The
measure is not the taker’s gain, but the owner’s loss (Republic v. Asia Pacific Integrated
Steel Corporation, G.R. No. 192100, March 12, 2014)

It embraces not only the correct determination of the amount to be paid to the owners
of the land but also the payment for the land within a reasonable time from its taking
(Republic v. Lim, G.R. No. 161656, June 29, 2005)

The compensation price shall be the sum of the current market value of the land, the
replacement cost of structures and improvements therein, and the current market value
of crops and trees therein (R.A. No. 10752, otherwise known as The Right-of-Way Act,
Sec. 5)

Fair Market Value

The price that may be agreed upon by parties who are willing but are not compelled to
enter into a contract of sale (National Power Corporation v. Dela Cruz, G.R. No. 156093,
Feb. 2, 2007)

When Just Compensation Determined

The payment of just compensation is to be determined, as of the date of the taking of
the property or the filing of the complaint, whichever came first (Rules of Court, Rule
67, Sec. 4)

In cases where a property is not wholly expropriated, the consequential damages to the
remaining property shall be added to the fair market value, minus the consequential
benefits, but in no case will the consequential benefits exceed the consequential
damages (Rules of Court, Rule 67, Sec. 6)

Consequential Damages
It consists of injuries directly caused on the residue of the private property taken by
reason of expropriation (CRUZ, p. 155)

Effect of Delay in Payment

In cases where there is no prompt payment by the government, the latter is expected to
immediately pay as directed. Should any further delay be encountered, the trial court is
directed to seize any patrimonial property or cash savings of the province in the amount
necessary to implement the decision (Provincial Government of Sorsogon v. Villaroya,
G.R. No. L-64037, Aug. 27, 1987)

Entitlement to Interest in case of Delay

When there is delay in the payment of just compensation, the owner is entitled to
payment of interest, if claimed; otherwise, interest is deemed waived (Urtula v.
Republic, G.R. No. L-22061, Jan. 31, 1968)
 Non-Payment of Just Compensation as Grounds to Recover Property
General Rule: Non-payment of just compensation in an expropriation proceeding does
not immediately entitle the private landowners to recover possession of the
expropriated lots (Republic v. Lim, supra)

Exception: Recovery of possession may be had when property has been wrongfully
taken or is wrongfully retained by one claiming to act under the power of eminent
domain or where a rightful entry is made and the party condemning refuses to pay the
compensation which has been assessed or agreed upon; or fails or refuses to have the
compensation assessed and paid (Reyes v. National Housing Authority, supra)

Current Rule: Where the government fails to pay just compensation five (5) years from
finality of the judgment in the expropriation proceedings, the owners concerned shall
have the right to recover possession of their property as a matter of justice and fair play
pursuant to Section 6, Rule 39 of the Rules of Court (Republic v. Lim, supra)

6. Due process of law – it requires that the property owner must be given an opportunity
to be heard in the determination of the fair market value of the property (Rules of
Court, Rule 67, Sec. 3, par. 3)

Expropriation as exercised by LGUS through a Valid Delegation

Expropriation as exercised by LGUS is not, strictly speaking, a power of eminent domain
but merely a power of inferior domain which means that local government units can
only exercise such power which is delegated to it (SUAREZ, p. 124)

Requisites of the Exercise of Inferior Domain by LGUS:

a. Ordinance by the local legislative council authorizing the local chief executive to
exercise the power of eminent domain;
b. For public use, purpose or welfare or for the benefit of the poor and of the
landless;
c. Payment of just compensation; and
d. Valid and definite offer has been previously made to the owner of the property
sought to be expropriated but such offer was refused (Municipality of Paranaque
v. VM Realty Corp., G.R. No. 127820, July 20, 1998)

Note: Expropriation of privately-owned lands exercised by LGUS for urban land reform
purposes must be resorted to only after all other lands have been exhausted (R.A. 7279,
Sec. 10)

C. POWER OF TAXATION

The power by which the sovereign, through its lawmaking body, raises revenue to defray the
necessary expenses of government. It is a way of apportioning the costs of government among
those who in some measure are privileged to enjoy its benefits and must bear its burdens (51
Am Jur. 34)

A principal attribute of sovereignty, the exercise of taxing power derives its source from the
very existence of the state whose social contract with its citizens obliges it to promote public
interest and common good. The theory behind the exercise of the power to tax emanates from
necessity; without taxes, government cannot fulfil its mandate of promoting general welfare
and well-being of the people (National Power Corporation v. City of Cabanatuan, G.R. No.
149110, April 9, 2003)

The power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its
very nature no limits, so that security against its abuse is to be found only in the responsibility
of the legislature which imposes tax on the constituency who are to pay it (Mactan Cebu
International Airport Authority v. Marcos, G.R. No. 120082, Sept. 11, 1996)

Taxes
These are enforced proportional contributions from persons and property, levied by the State
by virtue of its sovereignty, for the support of government and for all public needs (COOLEY,
Taxation, 4th ed., Sec. 1)

Lifeblood Doctrine
Taxes are the lifeblood of the government and their prompt and certain availability is an
imperious need (CIR v. Pineda, G.R. No. L-22734, Sept. 15, 1967)

Taxes are what we pay for civilized society. Without it, the government would be paralyzed for
lack of the motive power to activate and operate it. Hence, despite the natural reluctance to
surrender part of one’s hard-earned income, every person who is able must contribute his
share in the running of the government. In return, the government is expected to respond in
the form of tangible and intangible benefits intended to improve the lives of people and
enhance their moral and material values (CIR v. Algue, Inc., G.R. No. L-28896, Feb. 117, 1988)

Scope of Taxation
It covers persons, property, or occupation to be taxed within the taxing jurisdiction. It is
inherent in the power to tax that a State be free to select the subjects of taxation ( Lutz v.
Araneta, supra)

Who May Exercise:

Generally, the legislature, but also, upon valid delegation:
1. Lawmaking bodies of LGUs (CONST., Art. X, Sec. 5); and
2. The President (CONST., Art. VI, Sec. 28, par. 2) or as an incident of emergency powers
that Congress may grant to him (CONST., Art. VI, Sec. 23, par. 2)

Limitations on the Power of Taxation:

1. Inherent limitations:
 a. Territoriality or situs of taxation;
b. Public purpose;
c. International comity;
d. Non-delegability of power; and
e. Exemption of government from taxation (ABAN, Law of Basic Taxation in the
Philippines (2001), p. 53)

2. Constitutional limitations
a. Due process of law;
b. Equal protection of law
Note: Taxpayers may be classified into different categories. It is enough that the
classification must rest upon substantial distinctions that make real differences.
Thus, there is no violation of the equal protection clause in imposing a higher
rate of tax upon income arising from the exercise of a profession vis-à-vis those
which are imposed upon fixed income or salaried individual taxpayers (Sison v.
Ancheta, G.R. No. L-59431, July 25, 1984)

c. Uniformity, equitability, and progressivity of taxation;

d. Non-impairment of contracts;
e. Non-imprisonment for non-payment of poll tax;
f. Revenue and tariff bills must originate in the House of Representatives;
g. Non-infringement of religious freedom;
h. Tax exemption of properties actually, directly and exclusively used for religious,
charitable and educational purposes;
i. Majority vote of all the members of Congress required in case of legislative grant
of tax exemptions;
j. Non-impairment of Supreme Court’s jurisdiction in tax cases; and
k. Tax exemption of revenues and assets of, including grants, endowments,
donations, or contributions to, educational institutions.

Double Taxation
It is defined as taxing the same person twice by the same jurisdiction over the same thing
(Victorias Milling Co. v. Municipality of Victorias, Negros Occidental, G.R. No. L-21183, Sept. 27,
1968)

There is no double taxation where one tax is imposed by the State and the other, by the City
(Punsalan v. Municipal Board of Manila, G.R. No. L-4817, May 26, 1954)

Note: There is no constitutional prohibition against double taxation in the Philippines. It is

something not favoured but is nevertheless permissible (Villanueva v. City of Iloilo, G.R. No. L-
26521, Dec. 28, 1968)
Despite the lack of specific constitutional prohibition, double taxation will not be allowed if the
same will result in a violation of the equal protection clause (NACHURA, Reviewer in Political
Law (2009), p. 70, hereinafter NACHURA, Reviewer)

Tax Exemptions
No law granting any tax exemption shall be passed without the concurrence of a majority of all
the Members of Congress (CONST., Art. VI, Sec. 28, par. [4])

An example of a law that grants tax exemption is R.A. No. 9504 which exempts minimum wage
earners from paying income tax, increases tax exemption for all earners and allows additional
exemptions for individuals with dependents/children.

Note: As distinguished from ordinary legislation, tax measures require the absolute majority of
the entire composition of both Houses of Congress, voting separately. Ordinary law requires
only the majority of the members present as long as quorum exists (Id.)

Entities and Matters Exempt from Some Kinds of Taxes by the Constitution:
1. Charitable institutions, churches, and parsonages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all lands, buildings, and improvements actually,
directly and exclusively used for religious, charitable or educational purposes (CONST.,
Art. VI, Sec. 28, par. [3])
Note: The exemption is only from the payment of taxes assessed as property taxes, as
distinguished from excise taxes. A gift tax is not a property tax, but an excise tax
imposed on the transfer of property by way of gift inter vivos, the imposition of which
on property used exclusively for religious purposes, does not constitute an impairment
of the Constitution (Lladoc v. Commissioner of Internal Revenue, G.R. No. L-19201, June
16, 1965)

2. All revenues and assets of non-stock, non-profit educational institutions used actually,
directly and exclusively for educational purposes shall be exempt from taxes and duties
(CONST., Art. XIV, Sec. 4(3), par. [1])
Note: The exemption extends to facilities which are incidental to and reasonably
necessary for the accomplishment of the main purposes. Otherwise stated, the use of
the school building or lot for commercial purposes is neither contemplated by law, nor
by jurisprudence, to be covered by the tax exemptions granted (Abra Valley College v.
Aquino, G.R. No. L-39086, June 15, 1988)

3. Proprietary educational institutions, including those cooperatively owned, may likewise

be entitled to such exemption subject the limitations provided by law (Art XIV, Sec. 4(3),
par. [2]); and

4. All grants, endowments, donations or contributions used actually, directly, and

exclusively for educational purposes shall be exempt from tax, subject to conditions
prescribed by law (Art. XIV, Sec. 4[4]).
ARTICLE III: BILL OF RIGHTS

The Bill of Rights is the sanctuary of protection for all persons, citizens or non-citizens, against
any and all kinds of abuses of power and authority by the government, or any of its officials and
employees, or even against any unwarranted violation of such rights by any other person. It
serves not only as a limitation but also a deterrent to further violations of fundamental
liberties. It is the essence of constitutional democracy (SUAREZ, p. 152)

The Bill of Rights guarantees that there are certain areas of a person’s life, liberty, and property
which governmental power may not touch (BERNAS Reviewer, p. 23).

The Bill of Rights governs the relationship between the individual and the State. Its concern is
not the relation between individuals or between the private individual and other individuals.
What the Bill of Rights does is to declare some forbidden zones in the private sphere
inaccessible to any power holder (Sponsorship Speech of Commissioner Bernas; Record of the
Constitutional Commission, Vol. 1, p. 674; July 17, 1986)

The Bill of Rights affords protection against possible State oppression against its citizens, but
not against an unjust or repressive conduct by a private party towards another (Separate
Opinion of Justice Tinga, Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004)

Private Acts and the Bill of Rights

The principle that the Bill of Rights applies only to actions taken by state officials does not
necessarily mean that a private individual cannot violate the liberty of another. Violation of the
Bill of Rights precisely as a constitutional guarantee can be done only by public officials. But
almost all these cases liberties are also guaranteed by Article 32 of the Civil Code thus making
private violations actionable even if the violation does not have a constitutional consequence
(BERNAS, The 1987 Constitution of the Republic of the Philippines, A Commentary (2009), p.
222, hereinafter BERNAS Commentary)

Additionally, the constitutional injunction declaring “the privacy of communication and

correspondence [to be] inviolable” is no less applicable simply because it is a [private person]
who is the party against whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a “lawful order [from a] court or
when public safety or order requires otherwise, as prescribed by law.” Any violation of this
provision renders the evidence obtained inadmissible “for any purpose in any proceeding”
(Zulueta v. Court of Appeals, G.R. No. 107383, Feb. 20, 1996)

Primacy of Human Rights

The primacy of human rights over property rights is recognized. Because these freedoms are
delicate and vulnerable, as well as supremely precious in our society and the threat of sanctions
may deter their exercise almost as potently as the actual application of sanctions, they need
breathing space to survive, permitting government regulation only with narrow specificity.
Human rights are imprescriptible (Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co. Inc., G.R. No. L-31195, June 5, 1973)

Hierarchy of Rights
Freedom of expression ranks higher in the hierarchy of constitutional rights than property rights
(Salonga v. Paño, G.R. No. L-59524, Feb. 18, 1985)

The free exercise of religious profession or belief is superior to contract rights. Religious
freedom, although no unlimited, is a fundamental personal right and liberty, and has a
preferred position in the hierarchy of values (Victoriano v. Elizalde Rope Workers’ Union, G.R.
No. L-2524, Sept. 12, 1974)

Even as the right to property may be subject to greater degree of regulation, when this right is
joined by a “liberty” interest, the burden of justification on the part of the government must be
exceptionally convincing and irrefutable (Blo Umpar Adiong v. COMELEC, G.R. No. 103956,
March 31, 1992)

SECTION 1: DUE PROCESS AND EQUAL PROTECTION

DUE PROCESS OF LAW

Due process is a guaranty against any arbitrariness on the part of the government, whether
committed by the legislative, executive or judiciary (CRUZ, p. 205)

A law which hears before it condemns, which proceeds upon inquiry and renders judgment only
after that (Dartmouth College v. Woodward, 4 Wheaton 518)

The embodiment of the sporting idea of fair play (Frankfurter, Mr. Justice Holmes and the
Supreme Court, pp. 32-33)

Rights Protected by the Due Process Clause:

1. Right to Life – The Right to Life is not merely a right to the preservation of life but also
the security of the limbs and organs of the human body against any unlawful harm
(SUAREZ, pp. 183-184)
2. Right to Liberty – Liberty refers to something which is more than mere freedom from
physical restraint or the bounds of a prison. It means freedom to go where one may
choose, and to act in such a manner, not inconsistent with the equal right of others, as
his judgment may dictate for the promotion of his happiness; to pursue such callings
and advocacies as may be most suitable to develop his capacities, and give to them their
highest enjoyment, within the bounds of law (Munn v. Illinios, 94 U.S. 143)
3. Right to Property – Property refers to things which are susceptible of appropriation and
which are already possessed and found in possession of man (SUAREZ, Constitutional
Law Reviewer, 2008, citing Castan, 8th ed., Part II, pp. 367-369)
Essence of Due Process
It is the opportunity to be heard or an opportunity to explain one’s side or an opportunity to
seek reconsideration of the action or ruling complained of (Philippine Phosphate Fertilizer Corp.
v. Torres, G.R. No. L-98050, March 17, 1994)

Relativity of Due Process

Once it is determined that due process applies, the question remains what process is due. It has
been so often held by this Court and others that due process is flexible and calls for such
procedural protections as the particular situation demands (Cafeteria and Restaurant Workers’
Union v. McElroy, 367 U.S. 886, 895, 1961). A precise definition of due process might prove
constricting and prevent the judiciary from adjusting it to the circumstances of particular cases
and to the ever-changing conditions of society (CRUZ, p. 205).

To say that the concept of due process is flexible does not mean that judges are at large to
apply it to any and all relationships. Its flexibility is in its cope once it has been determined that
some process is due. It is a recognition that not all situations calling for procedural safeguards
call for the same kind of procedure (Morrissey v. Brewer, 408 U.S. 471, 1972)

Scope of Due Process Clause

Due process clause protects all persons, natural as well as artificial. The shelter of protection
under process and equal protection clause is given to all persons, both aliens and citizens
(Villegas v. Chong, G.R. No. L-29646, Nov. 10, 1978)

Aspect of Due Process:

1. Substantive Due Process
This serves as a restriction on the government’s law and rule-making powers. It requires
the intrinsic validity of the law in interfering with the rights of the person to his life,
liberty, or property (CRUZ, p. 213)

It must be a guarantee against the exercise of arbitrary power even when the power is
exercised according to proper forms and procedure (BERNAS Commentary, p. 118)

Requisites of Substantive Due Process:

a. There must be a valid law upon which it is based;
b. The law must have been passed or approved to accomplish a valid government
objective;
c. The objective must be pursued in a lawful manner; and
d. The law as well as the means to accomplish the objective must be valid and not
oppressive (CRUZ, pp. 213-214)

Note: Publication of laws is part of substantive due process (Tañada v. Tuvera, G.R. No.
L-53915, Dec. 29, 1986)
2. Procedural Due Process
It serves as a restriction on actions of judicial and quasi-judicial agencies of the
government (BERNAS Commentary, p. 115); a guaranty of procedural fairness (Id., at
113). It also refers to the regular methods of procedure to be observed before one’s life,
liberty, or property can be taken away from him. Simply stated, it means the procedure
to be observed must be fair (SUAREZ, p. 192).

General Rule: The twin requirements of notice and hearing constitute the essential
elements of procedural due process and neither of these elements can be eliminated
without running afoul of the constitutional guaranty (Vinta Maritime Co. Inc., et. al. v.
NLRC, G.R. No. 113011, Jan. 23, 1998)

Exceptions:
a. Cancellation of passport of a person sought for the commission of a crime;
b. The preventive suspension of a civil servant facing administrative charges;
c. The distraint of properties for tax delinquency;
d. The padlocking of restaurant found to be unsanitary or theatres showing
obscene movies;
e. The issuance of temporary protection orders, writs of preliminary attachment or
of possession; and
f. The abatement of nuisance per se (CRUZ, p. 238).

Two Areas of Application of Procedural Due Process:

a. Procedural due process in judicial proceedings; and
b. Procedural due process in administrative proceedings.

Requisites of Procedural Due Process in Judicial Proceedings:

a. The Court or Tribunal trying the case is properly clothed with judicial power to
hear and determine the matter before it;
b. Jurisdiction is lawfully acquired by it over the person of the accused;
c. The accused is given opportunity to be heard; and
d. Judgment is rendered only upon lawful hearing (Marquez v. Sandiganbayan, G.R.
No. 187921-14, Jan. 31, 2011)

ADMINISTRATIVE DUE PROCESS

Requisites:
a. Right to hearing – it includes right to present one’s case and submit evidence to
support thereof;
b. The tribunal must consider the evidence presented;
c. Evidence presented must be substantial, which means relevant evidence as a
reasonable mind might accept as adequate to support a conclusion;
d. The decision must have something to support itself;
e. The decision must be based on evidence presented during hearing or at least
contained in the record and disclosed by the parties;
 f. The tribunal or body or any of its judges must act on its own independent
consideration of the law and facts of the controversy; and
g. The decision must be rendered in a manner that the parties can know the
various issues involved and the reason for the decision rendered (Ang Tibay v.
CIR, G.R. No. L-46496, Feb. 27, 1940)

Administrative Due Process Only Applicable in Exercise of Quasi-Judicial Powers

It may be stated as a general rule that notice and hearing are not essential to the
validity of administrative action where the administrative body acts in the exercise of
executive, administrative or legislative functions; but where a public administrative body
acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather
than general and prospective, the person whose rights or property may be affected by
the action is entitled to notice and hearing (Philippine Communications Satellite
Corporation v. Alcuaz, citing The Central Bank of the Philippines v. Cloribel, et. al, G.R.
No. 84818, Dec. 18, 1989)

The regulatory powers of an agency is covered under its quasi-judicial powers, thence,
notice and hearing is essential (Alliance for the Family Foundation v. Garin, G.R. No.
217872, April 26, 2017)

Minimum Standards in the Imposition of Disciplinary Sanctions in Academic

Institutions:
a. The students must be informed in writing of the nature and cause of any
accusation against them;
b. They shall have the right to answer the charges against them with the assistance
of counsel, if desired;
c. They shall have the right to adduce evidence in their own behalf;
d. They shall be informed of the evidence against them; and
e. The evidence must be duly considered by the investigating committee or official
designated by the school authorities to hear and decide the case (Ateneo de
Manila v. Capulong, G.R. No. 99327, May 27, 1993; Cudia v. The Superintendent
of the Philippine Military Academy, G.R. No. 211362, Feb. 24, 2015)

Appeal and Due Process

Right to appeal is not a natural right or part of due process. It is merely a statutory right, but
once given, denial constitutes violation of due process. (NACHURA, p. 134)

Availability of Due Process in Extradition Proceedings

Neither the treaty nor the extradition law precludes these rights from a prospective extraditee.
An application of the basic twin due process rights of notice and hearing will not go against the
treaty or implementing law (Sec. of Justice v. Lantion, G.R. No. 199465, Jan. 18, 2000)

Availability of Due Process in Deportation Proceedings

Although a deportation proceeding does not partake of the nature of a criminal action,
considering that it is a harsh and extraordinary administrative proceeding affecting freedom
and liberty of a person, the constitutional right of such person to due process should not be
denied. Thus, the provisions of the Rules of Court of the Philippines, particularly on criminal
procedure, are applicable to deportation proceedings (Lao Gi “Chia”, Sr. v. CA, G.R. No. 61798,
Dec. 29, 1989)

SUBSTANTIVE AND PROCEDURAL PROCESS, DISTINGUISHED

SUBSTANTIVE PROCEDURAL
As to the nature
It requires that the law itself, not merely the It constitutes the method or manner by which
procedure by which the law would be the law is enforced
enforced, is fair, reasonable and just
As to who must comply with the requirement
It is directed to the lawmakers It is addressed to those who adjudicate
As to the requirement to be complied with
It implies fundamental notions of fairness and It is the right to be notified and heard
justice

Constitutional and Statutory Due Process

Constitutional due process protects the individual from the government and assures him of his
rights in criminal, civil, or administrative proceedings; while statutory due process refers to the
guarantee found in statutes enacted by the Congress, like the one found in the Labor Code and
Implementing Rules protecting employees from being unjustly terminated without just case
after notice and hearing (Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004)

Void-for-Vagueness Rule
When a statute forbids or requires the doing of an act in terms so vague that man of common
intelligence must necessarily guess as to its meaning and differ to its application, that law is
deemed void. Such kind of statute violates the first essential requisite of due process of law
because it denies the accused the right to be informed of the charge against him (Estrada v.
Sandiganbayan, G.R. No. 148560, Nov. 19, 2001)

Due Process as Limitation of Police Power

To satisfy the due process requirement, an official action must not outrun the bounds of reason
and result in sheer oppression. Due process is thus hostile to any official action marred by lack
of reasonableness. Questions of due process are not to be treated narrowly or pedantically in
slavery to form or phrases (Erminta-Malate Hotel and Motel Operators v. City of Manila, G.R.
No. L-24693, July 31, 1967)

A law is not necessarily unreasonable because it affects private rights and privileges. The test of
reasonableness of a law is the appropriateness or adequacy under all circumstances of the
means adopted to carry out is purpose into effect (Ichong v. Hernandez, supra)
EQUAL PROTECTION OF LAW
All persons or things similarly situated must be similarly treated both as to rights conferred and
responsibilities imposed. It does not demand absolute equality (Ichong v. Hernandez, supra).

There is no difference between a law which actually denies equal protection of the law and a
law which permits of such denial. A law may appear to be fair on its face and impartial in
appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional
prohibitions (People v. Vera, G.R. No. L-45685, Nov. 16, 1937)

The clause also commands the State to pass laws which positively promote equality or reduce
existing inequalities (BERNAS Reviewer, p. 39)

Classification
It means the grouping of persons or things similar to each other in certain particulars and
different from all others in these same particulars (International Harvester Co. v. Missouri, 234
U.S. 199)

Requisites of Valid Classification

1. Such classification rests upon substantial distinctions;
2. It applies equally to all members of the same class;
3. It is germane to the purposes of the law; and
4. It is not confined to existing conditions only (Biraogo v. Philippine Truth Commission,
G.R. No. 192935, Dec. 7, 2010)

Three Tests in Determining Compliance with the Equal Protection Clause

1. Rational Basis Test – The guaranty of the equal protection of the laws is not violated by
legislation based on reasonable classification (British American Tobacco v. Camacho,
G.R. No. 163583, April 15, 2009)

This standard of review is typically quite deferential; legislative classifications are

“presumed to be valid” largely for the reason that “the drawing of lines that create
distinctions is peculiarly a legislative task and unavoidable one” (British American
Tobacco v. Camacho, G.R. No. 163583, August 20, 2008)

2. Intermediate Scrutiny Test – It is used as a test for evaluating classifications based on

gender and legitimacy (White Light Corporation v. City of Manila, G.R. No. 122846, Jan.
20, 2009)

The government must show that the challenged classification serves an important state
interest and that the classification is at least substantially related to serving that interest
(Biraogo v. Philippine Truth Commission, G.R. No. 192935, Dec. 7, 2010)

3. Strict Scrutiny Test – It is applied when the challenged statute either:

 a. Classifies on the basis of an inherently suspect characteristic; or
b. Infringes fundamental constitutional rights.

Under the strict scrutiny test, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for
achieving that interest, and the burden befalls upon the State to prove the same
(Kabataan Party-list v. COMELEC, G.R. No. 221318, Dec. 16, 2015)

Rational Basis Intermediate Scrutiny Strict Scrutiny

As to Applicability
Legislative classifications in Legislative classifications Legislative classifications
general, such as those based on gender or affecting fundamental rights
pertaining to economic or illegitimacy or suspect classes
social legislation, which do
not affect fundamental rights
or suspect classes; or is not
based on gender or
illegitimacy
As to Legislative Purpose
Must be legitimate Must be important Must be compelling
As to Relationship of Classification to the Purpose
Classification must be Classification must be Classification must be
rationally related to the substantially related to the necessary and narrowly
legislative purpose legislative purpose tailored to achieve the
legislative purpose
(Cited in Central Bank Employees Association v. BSP, G.R. No. 148208, Dec. 15, 2004)

Determination of the Test to be Applied

The choice of appropriate test for evaluating a legislative classification is dependent on the
nature of the rights affected, i.e., whether “fundamental” or not, and the character of the
persons allegedly discriminated against, i.e., whether belonging to a “suspect class” or not
(Dissenting Opinion of Justice Carpio-Morales, Central Bank Employees Association v. BSP,
supra)

Doctrine of Relative Constitutionality of Principle of Altered Circumstance

It refers to the principle that a statute may be constitutionally valid as applied to one set of
facts and invalid in its application to another set of facts. Thus, a statute valid at one time may
become void at another time because of altered circumstance (Central Bank Employees
Association v. BSP, supra)

It merely acknowledges that the factual circumstances which form the bases for the substantial
and real distinctions between two classes that a legislative classification held to be valid at one
time upon a particular state of facts may be subsequently invalidated if the factual basis for the
substantial distinctions that existed between the two classes has ceased to exist. (Id.)

SECTION 2: SEARCHES AND SEIZURES

The origin and history of the right clearly show that it was intended as a restraint upon the
activities of sovereign authority and was not intended to be a limitation upon other than
governmental agencies (People v. Marti, G.R. No. 81561, Jan. 18, 1991)

The fourth amendment and the case law applying it do not require exclusion of evidence
obtained through a search by a private citizen. Rather, the amendment only proscribes
governmental action. In other words, the right is a restraint upon the government, and thus,
cannot be invoked to require exclusion of evidence which came into possession of the
Government through a search made by a private citizen (Id.)

It includes protection of:

1. The sanctity and privacy of a person himself; and
2. The inviolability of a person’s home and his possessions (BERNAS Reviewer, p. 39)

Scope of Protection
A popular right, hence, protections all persons, including aliens (Qua Chee Gan v. Deportation
Board, G.R. No. L-10280, Sept. 30, 1963) and, to a limited extent, even artificial persons (Bache
& Co., Inc. v. Ruiz, G.R. No. L-32409, Feb. 27, 1971)

Nature: The right is personal; it may be invoked only by the person whose right was violated
(Stonehill v. Diokno v. G.R. No. L-19550, June 19, 1967)

This right may be waived either expressly or impliedly (People v. Malasugui, G.R. No. L-44335,
July 30, 1936). Waiver must be made by the person whose right is invaded, not by one who is
not duly authorized to effect such waiver (People v. Damaso, G.R. No. 93516, August 12, 1992).

Availability of the Right

Once the right to privacy is established, the next inquiry is whether the search alleged to have
violated such right was reasonable. This proceeds from the principle that the constitutional
guarantee under Section 2, Article III, is not a prohibition of all searches and seizures but only of
unreasonable searches and seizures (Pollo v. Constantino-David, G.R. No. 181881, October 18,
2011).

Searches and Seizures, When Unreasonable

Searches and seizures are unreasonable if there is no valid search warrant or warrant of arrest
authorizing it. Thus, the fundamental protection given by the search and seizure clause is that
between person and police must stand the protective authority of a magistrate clothed with
power to issue or refuse to issue search warrants or warrants of arrest (BERNAS Reviewer, p.
40)

The term “unreasonable search and seizure” is not defined in the Constitution or in General
Order No. 58, and it is said to have no fixed, absolute, or unchangeable meaning, although the
term has been defined in general language. All illegal searches and seizures are unreasonable
while lawful ones are reasonable (Alvarez v. CFI, G.R. No. 45358, Jan. 29, 1937)

Reasonableness is a Judicial Question

What constitutes a reasonable or unreasonable search or seizure in any particular case is purely
a judicial question, determinable from a consideration of the circumstances involved, including
the purpose of the search, the presence or absence of probable cause, the manner in which the
search and seizure was made, the place or thing searched, and the character of the articles
procured (Id.)

Requisites of a Valid Warrant (CONST., Art. III, Sec. 2):

1. Existence of Probable Cause – Such reasons, supported by facts and circumstances, as
will warranted a cautious man in the belief that his actions, and the means taken in
prosecuting it, are legally just and proper (Corro v. Lising, G.R. No. 69899, July 15, 1985)

Specific Kinds of Probable Cause:

a. Probable cause for the issuance of a search warrant:
Such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place sought to be searched
(Burgos v. Chief of Staff, G.R. No. L-64261, Dec. 26, 1984)

b. Probable cause for the issuance of a warrant of arrest:

Reasonable ground of suspicion or belief that a crime has been committed or is
about to be committed (People v. SPO3 Sangki Ara, et. al., G.R. No. 185011, Dec.
23, 2009). Such belief must be based on personal knowledge of facts and
circumstances (Rules of Court, Rule 113, Sec. 5)

Probable cause is concerned with probability, not absolute or even moral certainty
(Microsoft Corporation v. Maxicorp, G.R. No. 140946, Sept. 13, 2004).

A finding of probable cause does not ensure a conviction or a conclusive finding beyond
reasonable doubt since the accused has yet to present evidence to prove his innocence
and to rebut the finding of the probable cause (SUAREZ, supra)

2. Determination of Probable Cause was Done Personally by the Judge – The judge must,
before issuing the warrant, personally examine the complainant and the witnesses.
In issuing a valid warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall:
(1) personally evaluate the report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis thereof, issue a warrant of
arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the
fiscal’s report and require the submission of supporting affidavits of witnesses to aid him
in arriving at a conclusion as to the existence of probable cause. What the Constitution
underscores is the exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause (Soliven v. Makasiar, G.R. No. 82585, Nov. 14,
1988)

The judge has the legal duty of first satisfying himself that there is probable cause
independently of and notwithstanding the preliminary investigation made by a
provincial fiscal (Amargas v. Abbas, G.R. No. L-8666, March 28, 1956).

Note: In a warrant of arrest, it is neither mandatory nor indispensable that the judge
personally examines the complainant and the witnesses. However, in issuing a search
warrant it is required that the judge personally examines the complainant and
witnesses.

Reason: In search warrant, there is no previous preliminary investigation conducted by

the prosecutor in order to assist him in determining the existence of probable cause.

Requisites for a Valid Judicial Determination:

a. The examination was in the form of searching questions and answers;

The judge must strictly comply with the constitutional and statutory requirement
that he must determine the existence of probable cause by personally examining
the applicant and his witnesses in the form of searching questions and answers.
His failure to comply with this requirement constitutes grave abuse of discretion
(Silva v. Presiding Judge RTC Negros Occidental, G.R. No. 81756, October 21,
1991)

b. The examination must be under oath;

c. The examination must be in writing;
d. The complainant and the witnesses must be examined on facts personally known
to them; and
e. The judge must attach to the record the sworn statements of the complainant
and the witnesses together with any affidavit submitted (Rules of Court, Rule
126, Sec. 5)

Determination of Probable Cause is not Required in Deportation Proceedings

Requirement of probable cause determined by a judge does not extend to deportation
proceedings. What is essential is that there should be a specific charge against the alien
 intended to be arrested and deported, that a fair hearing be conducted with the
assistance of counsel, if desired, and that the charge be substantiated by competent
evidence (Harvey v. Santiago, G.R. No. 82544, June 28, 1988)

DETERMINATION OF PROBABLE CAUSE

Executive Determination Judicial Determination
Rationale
To hold a person for trial For the issuance of warrant of arrest/
search warrant
Who Determines
Prosecutor Judge
Purpose
Whether or not there is reasonable ground Whether or not a warrant of arrest should
to believe that the accused is guilty of the be issued against the accused
offense charged and should be held for
trial

3. Personal Examination under Oath or Affirmation of the Complainant and the

Witnesses he may produce

The personal examination must not be merely routinary or pro forma but must be
probing and exhaustive. The purpose of this rule is to satisfy the examining judge as to
the existence of probable cause. (Roan v. Gonzales, G.R. No. 71410, Nov. 25, 1986)

Witnesses are not necessary when the affidavit of the applicant or complainant contains
sufficient facts within his personal and direct knowledge. It is sufficient that the judge is
satisfied that there exists probable cause; but when the applicant’s knowledge of the
facts is merely hearsay, the affidavit of one or more having witnesses having personal
knowledge of the facts is necessary (Alvarez v. CFI, G.R. No. L-45358, Jan. 29, 1937)

Oath
It is any form of attestation by which a party signifies that he is bound in conscience to
perform an act faithfully and truthfully and is sometimes defined as an outward pledge
given by the person taking it that his attestation or promise is made under an immediate
sense of his responsibility to God (Id.)

Test of Sufficiency of Oath: Whether it had been drawn in such a manner that perjury
could be charged thereon and affiant can be held liable for damages caused (Id.)

Affirmation
A substitute for an oath and is a solemn and a formal declaration that the witnesses will
tell the truth (Black’s Law Dictionary)
 4. Personal Knowledge of the Complainant or his Witnesses of the Facts; and
Hearsay is not allowed. It must not be based on mere information or belief. Hearsay
consists of those facts which a person derives not from his own perception but from the
perception of others (Rules of Court, Rule 130, Sec. 36)

Inasmuch as the affidavit of the agent in this case was insufficient because his
knowledge of the facts was not personally but merely hearsay, it is the duty of the judge
to require the affidavit of one or more witnesses for the purpose of determining the
existence of probable cause to warrant the issuance of the search warrant (Alvarez v.
CFI, supra)

5. Particular Description of the Place to be Searched and the Persons or Things to be

Seized
A description of the place to be searched is sufficient if the officer with the warrant can,
with reasonable effort, ascertain and identify the correct place to be searched (Steele v.
U.S. 267 U.S. 498)

Sufficiency of the description of the object is closely related with the sufficient
particularity of the averments of the offense (BERNAS Commentary, p. 183)

John Doe Warrants

A warrant for the apprehension of a person whose true name is unknown, by the name of
“John Doe” or “Richard Doe”, “whose other or true name is unknown,” is generally void.
However, if there are other and further descriptions of the person to be apprehended, it may
be valid.

Such warrant must contain the best description personae possible to be obtained of the person
or persons to be apprehended, and this description must be sufficient to indicate clearly the
proper person or peorsons upon whom the warrant is to be served; and should state his
personal appearance and peculiarities, give his occupation and place of residence, and any
other circumstances by means of which he can be identified (People v. Veloso, G.R. No. L-
23051, October 20, 1925)

Scatter-shot Warrants
Those warrants which are issued for more than one specific offense (Laud v. People, G.R. No.
199032, November 19, 2014). However, it is settled that a search warrant that covers several
counts of a certain specific offense does not violate the one-specific-offense rule (Id.)

It is not required that a technical description be given (People v. Rubio, G.R. No. 118315, June
20, 1996).

General Warrant
It is one that 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 (Vallejo v. CA, G.R. No.
146413, April 14, 2004). It is proscribed by both jurisprudence and the Constitution (Uy Kheytin
v. Villareal, G.R. No. 16009, September 21, 1920).

Searches for Fishing Expedition Prohibited

A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime
(People v. Nunez, G.R. No. 109633, July 20, 1994)

The following personal properties are subject to search and seizure:

1. Subject of the offense;
2. Stolen or embezzled and other proceeds or fruits of the offense; or
3. Used or intended to be used as a means of committing an offense (Rules of Court, Rule
126, Sec. 3)

Exclusionary Rule (Fruit of the Poisonous Tree)

All evidence obtained in violation of Sec. 2, Art. III, shall be inadmissible for any purpose in any
proceeding (Stonehill v. Diokno, G.R. No. L-19550, June 19, 1967)

Seizure is limited to those items particularly described in a valid search warrant. Searching
officers are without discretion regarding what articles they shall seize. Evidence seized on the
occasion of such an unreasonable search and seizure is tainted and excluded for being the
proverbial “fruit of the poisonous tree.” In the language of the fundamental law, it shall be
inadmissible in evidence for any purpose in any proceeding (Del Rosario v. People, G.R. No.
142294, May 31, 2001)

Recovery of Seized Articles

Should there be no ensuing criminal prosecution in which the personal property seized is used
as evidence, its return to the person from whom it was taken, or to the person who is entitled
to its possession is but a matter of course, except if it is contraband or illegal per se. A proper
court may order the return of the property held solely as evidence should the Government be
unreasonably delayed in bringing a criminal prosecution. The order for the disposition of such
property can be made only when the case is finally terminated (PDEA v. Brodett and Joseph,
G.R. No. 196390, September 28, 2011)

Note: If the illegally seized object is subject of litigation, it will remain in custodia legis until the
case is terminated (Roan v. Gonzales, G.R. No. 71410, November 25, 1986).

SEARCH WARRANT AND WARRANT OF ARREST, DISTINGUISHED

SEARCH WARRANT WARRANT OF ARREST
Probable Cause
It means such facts and circumstances which It means such facts and circumstances which
would lead a reasonably discreet and prudent would lead a reasonably discreet and prudent
man to believe that an offense has been man to believe that an offense has been
committed and that the objects sought in committed by the person sought to be
connection with the offense are in the place arrested (Webb v. De Leon, G.R. No. 121234,
sought to be searched (Burgos v. Chief of August 23, 1995)
Staff, G.R. No. L-64261, December 26, 1984)
Determination of Probable Cause Personally by the Judge
The existence of probable cause depends to a The judge is not required to personally
large extent upon the finding/opinion of the examine the complainant and his witnesses.
judge who conducted the required Following established doctrine and procedure,
examination of the applicant and the he shall:
witnesses (Kho v. Judge Makalintal, G.R. No. 1. Personally evaluate the report and the
94902-06, April 21, 1999) supporting documents submitted by
the fiscal regarding the existence of
probable cause and, on the basis
thereof, issue a warrant of arrest; or
2. If on the basis thereof he finds no
probable cause, he may disregard the
fiscal’s report and require the
submission of supporting affidavits of
witnesses to aid him in arriving at a
conclusion as to the existence of
probable cause (Soliven v. Makasiar,
G.R. No. 82585, Nov. 14, 1988)
Validity
10 days from its date (Rules of Court, Rule Until the arrest is effected or the warrant
126, Sec. 10) lifted
Time of Making Search
Must be served in the day time, unless the Any day at any time of the day or night (Rules
affidavit asserts that the property is on the of Court, Rule 113, Sec. 6)
person or in the placed ordered to be
searched (Rules of Court, Rule 126, Sec. 9)
Description of Subject of Warrant
The description of the property to be seized General warrants are proscribed and
need not be technically accurate nor unconstitutional (Nolasco v. Puno, G.R. No. L-
necessarily precise, and its nature will 69803, October 8, 1985); but a John Doe
necessarily vary according to whether the Warrant (where true name of the person to be
identity of the property or its character is a arrested is unknown) satisfies the
matter of concern; it is required to be specific constitutional requirement if there is some
only in so far as the circumstances will allow description personae which will enable the
(Id.) officer to identify the accused (Pangadaman
v. Casar, G.R. No. L-71782, April 14, 1988)

Warrantless Arrests, When Valid:

1. When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense;
 Note: A person may be validly arrested without warrant when he is found to be
committing a continuing offense, which is a crime anchored on an ideological base
which compels the repetition of the same acts of lawlessness and violence until the
overriding objective of overthrowing organized government is attained, e.g., rebellion,
subversion. He is, in a sense, arrested when he is actually committing the offense (Umil
v. Ramos, G.R. No. 81567, October 3, 1991)
2. When an offense has just been committed and the person making the arrest has
probable cause to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it;
3. When a person to be arrested has escaped from prison or detention (Rules of Court,
Rule 113, Sec. 5);
4. If a person lawfully arrested escapes or is rescued, any person may immediately pursue
or retake him without a warrant at any time and in any place within the Philippines
(Rules of Court, Rule 113, Sec. 13);
5. The bondsmen may arrest the accused, or upon written authority endorsed on a
certified copy of the undertaking, cause him to be arrested by a police officer or any
other person of suitable age and discretion (Rules of Court, Rule 114, Sec. 23, par. [1]);
and
6. If the accused released on bail attempts to depart from the Philippines without
permission of the court where the case is pending (Rules of Court, Rule 114, Sec. 23, par.
[2]).

Reliable Information does not Satisfy “Personal Knowledge” Requirement

The long-standing rule in this jurisdiction, applied with a great degree of consistency, is that
“reliable information” (from an informant) alone is not sufficient to justify a warrantless arrest
under Section 5 (a), Rule 113 of the Rules of Court. The rule requires, in addition, that the
accused perform some overt act that would indicate that he “has committed, is actually
committing, or is attempting to commit an offense.” The officer arresting a person who has just
committed or committing, or is about to commit an offense must have personal knowledge of
that fact. The offense must also be committed in his presence or within his view ( Peole v.
Tudtud, G.R. No. 144837, September 26, 2003)

Application for Bail Not a Bar to Question Validity of Arrest

An application for or admission to bail shall not bar the accused from challenging the validity of
his arrest, provided that he raises them before entering his plea (Rules of Court, Rule 114, Sec.
26).

Administrative Arrests
Warrant of arrest may be issued by administrative authorities only for the purpose of carrying
out a final finding of a violation of law and not for the sole purpose of investigation or
prosecution. It may be issued only after the proceeding has taken place as when there is
already a final decision of the administrative authorities (Vivo v. Montesa, G.R. No. L-24576,
July 29, 1968).
The Commissioner of Immigration and Deportation may issue warrants to carry out a final
finding of a violation, either by an executive or legislative officer or agency duly authorized for
the purpose (CID v. Judge De la Rosa, G.R. No. 95122-23, May 31, 1991 and Qua Chee Gan v.
Deportation Board, G.R. No. L-10280, September 30, 1963). In such case, determination of
probable cause as understood under Section 1(3), Article 2 of the 1987 Constitution is not
necessary (Morano v. Vivo, G.R. No. L-22196, June 30, 1967)

Warrantless Searches, When Valid:

1. Consented warrantless search – When right has been voluntarily and intelligently
waived (People v. Malasugui, G.R. No. 44335, July 30, 1936; People v. Omaweng, G.R.
No. 99050, September 2, 1992);

2. Search incident to a lawful arrest, provided search is contemporaneous to arrest and

within permissible area of search (Rules of Court, Rule 126, Sec. 13);

Note: A valid arrest must precede the search; the process cannot be reversed (People v.
Chua Ho San, G.R. No. 128222, June 17, 1999). It may be made only within the
permissible area of search, or the place within the immediate control of the person
being arrested (Espano v. Court of Appeals, G.R. No. 120431, April 1, 1998);

3. Searches of moving vehicles – Searches of vessel and aircraft for violation of fishery,
immigration and custom laws (Roldan v. Arca, G.R. No. L-25434, July 25, 1975);

Searches and seizures without search warrant of vessels and aircraft for violations of
customs laws have been the traditional exception to the constitutional requirement
because the vessel can be quickly moved out of the locality or jurisdiction in which the
search must be sought before the warrant could be secured (Hizon v. Court of Appeals,
G.R. No. 119619, December 13, 1996);

4. Customs searches – searches made at borders or constructive borders for violation of

immigration and smuggling laws. Customs searches however are not available in
dwelling places (Papa v. Mago, G.R. No. L-27360, February 28, 1968);

5. Body checks in Airports – Holders and his hand-carried luggage(s) are subject to search
for, and seizure of, prohibited materials or substance. Holders refusing to be searched
shall not be allowed to board the aircraft which shall constitute a part of the contract
between the passenger and the air carrier (RA No. 6235, Sec. 9);

6. Inspection of buildings and other premises for the enforcement of fire, sanitary and
building regulations (Valeroso v. Court of Appeals, G.R. No. 164815, September 3, 2009);

7. When there is a genuine reason to “stop-and-frisk,” in light of the police officer’s

experience and surrounding conditions, to warrant a belief that the person detained has
weapons concealed (Malacat v. Court of Appeals, G.R. No. 123595, December 1, 1997).
 Note: It is also called a “Terry Search” as the rule is based on the precedent set by the
US case of Terry v. Ohio.

8. Visual search at checkpoints (Valmonte v. de Villa, G.R. No. 83988, September 29, 1989);

Requisites of a Valid Checkpoint

a. It must be warranted by the exigencies of public order;
b. It must be conducted in a way least inclusive to motorists; and
c. The inspection of the vehicle is limited to a visual search (Abenes v. CA, G.R. No.
156320, February 14, 2007).

9. Where prohibited articles are in plain view (Chia v. Acting Collector of Customs, G.R. No.
L-43810, September 26, 1989);

Plain View Doctrine

It states that the objects within the sight of the officer who has a right to be in a position
to have that view are subject to seizure and may be presented as evidence (open to the
eye and hand)(Harris v. U.S. 390 U.S. 234, 236, March 5, 1968).

The plain view doctrine is usually applied where the police officer is not searching for
evidence against the accused but nonetheless inadvertently comes upon an
incriminating object (People v. Musa, G.R. No. 96177, January 27, 1993).

Elements of Plain View Doctrine:

a. The executing law enforcement officer has a prior justification for an initial
intrusion or otherwise properly in a position from which he can view a particular
order;
b. The officer must discover incriminating evidence inadvertently; and
c. It must be immediately apparent to the police that the items they observe may
be evidence of a crime, contraband, or otherwise subject to seizure (United
Laboratories, Inc. v. Isip, G.R. No. 163858, June 28, 2005)

10. Conduct of “aerial target zoning” and “saturation drive” in the exercise of military
powers of the President (Guazon v. de Villa, G.R. No. 80508, January 30, 1990);

11. Doctrine of Exigent Circumstances – enunciates the rule that under such urgency and
exigency of the moment, search warrant should be lawfully dispensed with (People v.
De Gracia, G.R. Nos. 102009-10, July 6, 1994).

Drug, Alcohol and Blood Tests under R.A. 9165

Random drug tests are valid for the following reasons:
1. Schools and their administrators stand in loco parentis with respect to their students;
2. Minor students have contextually fewer rights than an adult, and are subject to the
custody and supervision of their parents, guardians, and schools;
 3. Schools, acting in loco parentis, have a duty to safeguard the health and well-being of
their students and may adopt such measures as may reasonably be necessary to
discharge such duty; and
4. Schools have the right to impose conditions on applicants for admission that are fair,
just, and non-discriminatory (Social Justice Society v. Dangerous Drugs Board, G.R. Nos.
157870, 158633 & 161658, November 3, 2008).

Requisites for Validity of Drug/ Alcohol/ Blood Tests under RA 9165:

1. It must be random; and
2. It must be suspicionless (Laserna v. DDB, G.R. No. 158633, November 3, 2008).

The constitutional viability of the mandatory, random, and suspicionless drug testing for
students emanates primarily form their waiver of their right to privacy when they seek entry to
the school, and form their voluntary submitting their persons to the parental authority of
school authorities (Id.).

In case of private and public employees, the constitutional soundness of the mandatory,
random and suspicionless drug testing proceeds from the reasonableness of the drug test policy
and requirement (Id.).

However, there is no valid justification for mandatory drug testing for persons accused of
crimes punishable with at least six years and one day imprisonment as they are singled out and
impleaded against their will. The operative concepts in the mandatory drug testing are
“randomness” and “suspicionless.” In their case, a mandatory drug testing can never be
random or suspicionless. The ideas of randomness and being suspicionless are antithetical to
their being made defendants in a criminal complaint. They are not randomly picked; neither are
they beyond suspicion. When persons suspected of committing a crime are charged, they are
singled out and are impleaded against their will. The persons thus charged, by the bare fact of
being hailed before the prosecutor’s office and peaceably submitting themselves to drug
testing, if that be the case, do not necessarily consent to the procedure, let alone waive their
right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution, contrary to the stated objective of RA
9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec.
2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate
themselves (Id.).

Knock-and-Announce Principle
It states that police officers are obliged to give notice, show their authority, and demand that
they be allowed entry. They may only break open any outer or inner door or window of a
house, or any part of the house or anything therein, to execute the search warrant if, after such
notice and demand, such officers are refused entry to the place of directed search (Rules of
Court, Rule 126, Sec. 7).
Exceptions:
Intrusion into the premises without permission from the owner or occupant (unannounced
intrusion) is permissible when:
1. A party whose premises or is entitled to the possession thereof refuses, upon demand,
to open it;
2. The person in the premises already knew of the identity of the officers and of their
authority and persons;
3. The officers are justified in the honest belief that there is an imminent peril to life or
limb; and
4. Those in the premises, aware of the presence of someone outside (because , for
example, there has been a knock at the door), are then engaged in activity which
justifies the officers to believe that an escape or the destruction of evidence is being
attempted (People v. Huang Zhen Hua and Jogy Lee, G.R. No. 139301, Sept. 29, 2004).

SECTION 3: PRIVACY OF COMMUNICATION AND CORRESPONDENCE

The Right to Privacy has been concisely defined as the right to be left alone. It has also been
defined as the right of a person to be free from unwarranted publicity and the right to live
without interference by the public in matters with which the public is not necessarily concerned
(1 DE LEON, Philippine Constitutional Law, p. 433)

Requisites of Existence of Right to Privacy

1. A person has exhibited an actual expectation of privacy (subjective); and
2. The expectation is one that society is prepared to recognize as reasonable (objective)
(Pollo v. Constantino-David, et. al., G.R. No. 181881, October 18, 2011).

Reasonable Expectation of Privacy

In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of privacy
and, if so, whether the expectation has been violated by unreasonable government intrusion
(Disini v. Sec. of Justice, Id.)

Three Strands of the Right to Privacy

1. Locational or situational – refers to the privacy that is felt in physical space, such as that
which may be violated by trespass and unwarranted search and seizure (Vivares v. St.
Theresa’s College, G.R. No. 202666, Sept. 29 2014).

2. Informational – right of individuals to control information about themselves (Id.); and

Two Aspects of Informational Privacy:

a. The right not to have private information disclosed which refers to the interest in
avoiding disclosure of personal matters; and
b. The right to live freely without surveillance and intrusion (Id.).
 3. Decisional – usually defined as the right of individuals to make certain kinds of
fundamental choices with respect to their personal and reproductive autonomy (Id.) It is
the right to independence in making certain important decisions (Disini v. Sec. of Justice,
citing Whalen v. Roe, G.R. No. 203335, February 11, 2014).

Forms of Correspondence and Communication Covered:

1. Letters;
2. Messages;
3. Telephone calls;
4. Telegrams; and
5. Others analogous to the foregoing (BERNAS Reviewer, p. 59).

Examination of Letters and Sealed Packages

Letters and sealed packages in the mails may be examined only as to their external appearance
and weight and may not be opened except in accordance with the constitutional requirements
of search and seizure (Ex Parte Jackson, 96 U.S. 727, 1878).

Marriage does not Diminish Right to Privacy of Communication

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 her. The law only insures
absolute freedom of communication between the spouses by making it privileged (Zulueta v.
CA, G.R. No. 107383, February 20, 1996).

Intrusion, When Allowed

1. By lawful order of the court; or
2. When public safety or public order requires otherwise, as may be provided by law
(CONST., Art. III, Sec. 3).

Anti-Wire Tapping Act (R.A. No. 4200)

It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept or record the same, or to communicate the
content thereof to any other person (R.A. No. 4200, Sec. 1).

It is illegal for any person, not authorized by all parties to any private communication, to
secretly record such communication by means of tape recorder. The law does not make any
distinction, and as such, R.A. 4200 may be violated even by a party to the communication
(Ramirez v. Court of Appeals, G.R. No. 93833, September 28, 1995).

A telephone extension line is not among the devices covered by R.A. 4200 (Gaanan v.
Intermediate Appellate Court, G.R. No. L-69809, October 16, 1986).
The law prohibits the overheating, intercepting, or recording of private communications but not
those which are public in character (Navarro v. Court of Appeals, G.R. No. 121087, August 26,
1999).

Effect of violation: The communication shall not be admissible in evidence in any judicial,
quasi-judicial, legislative or administrative hearing or investigation (RA 4200, Sec. 4).

Right to Privacy of Detainees

The Right to Privacy of those detained is subject to Sec. 4 of RA 7438 or the Rights of Persons
Arrested, Detained or Under Custodial Investigation, stating in part that any security officer with
custodial responsibility over a detainee may undertake such reasonable measures to secure his
safety and prevent his escape. By the very fact of their detention, pre-trial detainees and
convicted prisoners have diminished expectation of privacy rights (Alejano, et. al. v. Cabuay,
G.R. No. 160792, August 25, 2005).

Limitation under the Human Security Act (R.A. 9372)

Authorities may, upon written order of the Court of Appeals, listen to, and record, with the use
of any mode, form, kind or type of electronic or other surveillance equipment or intercepting
and tracking devices, or with the use of any other suitable ways and means for that purpose,
any communication, message, conversation, discussion, or spoken or written words between
members of terrorist group as defined in the Human Security Act of 2007. Provided, that
surveillance, interception and recording of communications between lawyers and clients,
doctors and patients, journalists and their sources and confidential business correspondence
shall not be authorized (R.A. No. 9372, Sec. 7).

Right to Privacy in Online Social Networking

A person who places a photograph on the internet precisely intents to forsake and renounce all
privacy rights to such imagery, particularly under circumstances where the said person did not
employ protective measures or devices that would have controlled access to the web page or
the photograph itself. Without proof that they placed the photographs subject of the case
within the ambit of their protected zone of privacy, they cannot now insist that they have an
expectation of privacy with respect to the photographs in question (Vivares v. St. Theresa’s
College, G.R. No. 202666, 29, 2014).

Meaning of “Entity Engaged in the Gathering of Data” under Rule of Habeas Data
Such individual or entity need not be in the business of collecting or storing data. To “engage”
in something is different from undertaking a business endeavour. To “engage” means “to do or
take part in something.” It does not necessarily mean that the activity must be done in pursuit
of a business. Otherwise, it would mean unduly limiting the reach of the writ to a very small
group, i.e., private persons and entities whose business is data gathering and storage, and in
the process decreasing the effectiveness of the writ as an instrument designed to protect a
right which is easily violated in view of rapid advancements in the information and
communications technology – a right which a great majority of the users of technology
themselves are not capable of protecting (Id.).
SECTION 4: FREEDOM OF EXPRESSION

SCOPE
All forms of communication are entitled to the broad protection of the freedom of expression
clause (Eastern Broadcasting Corp. v. Dans, Jr., G.R. No. L-59329, July 19, 1985).

The scope of freedom of expression is so broad that it extends protection to nearly all forms of
communication. It protects speech, print, and assembly regarding secular was well as political
causes, and is not confined to any particular field of human interest. The protection covers
myriad matters of public interest or concern embracing all issues, about which information is
needed or appropriate (Chavez v. Gonzales, G.R. No. 168338, February 15, 2008).

Freedom of expression includes:

1. Free speech and free press;
2. Freedom of assembly;
3. Freedom of petition;
4. Freedom to profess and practice religion;
5. Right of association or the right to form associations (Abrams v. U.S. 250 U.S. 616,
November 10, 1919).

Speech, expression, and press include every form of expression, whether oral, written, tape or
disc recorded. It also includes movies as well as symbolic speech such as the wearing of an arm
band as a symbol of protest, as well as peaceful picketing (BERNAS Reviewer, pp. 62-63).

The Constitution guarantees the liberty to utter what is in his mind and also guarantees him the
liberty not to utter what is not in his mind (CRUZ, p. 475).

The freedom also includes the right to an audience, in the sense that the state cannot prohibit
the people from hearing what a person has to say, whatever may be the quality of his thoughts
(CRUZ, p. 475).

Freedom of speech includes the freedom not to speak and remain silent (Wooley v. Maynard,
430 U.S. 105 [1977]).

Availability
The Constitutional right guaranteeing the freedom of express is available only against
government intrusion. This is apparent in the provision since it says “no law” shall be passed
abridging the freedom.

However, an action for damages pursuant to Article 32 of the Civil Code can be raised by an
aggrieved party against another private individual. A violation of the Bill of Rights precisely as a
constitutional guarantee can be done only by public officials. But almost all liberties are also
guaranteed by Article 32 of the Civil Code thus making private violations actionable even if the
violation does not have a constitutional consequence (Silahis International Hotel v. Soluta, G.R.
No. 163087, February 20, 2006).

Dual Aspects of Freedom of Expression:

1. Freedom from Censorship or Prior Restraint
Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior
restraint is largely freedom from government censorship of publications, whatever the
form of censorship, and regardless of whether it is wielded by the executive, legislative
or judicial branch of the government (Chavez v. Gonzales, G.R. No. 168338, February 15,
2008).

Examples of prior restraint:

a. System of licensing administered by an executive officer (Primicias v. Fuguso,
G.R. No. L-1800, January 27, 1948);
b. Judicial prior restraint – injunction against publication (Near v. Minnesota, 283
U.S. 697); and
c. Imposition of taxes and/or license fees to the sale of bibles intended primarily
for the dissemination of religious information (American Bible Society v. City of
Manila, G.R. No. L-9637, April 30, 1957).

Limitations on the Prohibition of Prior Restraint

Freedom of expression is not absolute since it is always subject to the police power of
the State. This is premised on the need to protect society from the injurious exercise of
said freedom and the need to promote or protect public welfare, public safety, public
morals, and national security (SUAREZ, p. 236).

Where prior restraint is permitted

a. Pornography;
b. False or misleading commercial statement;
c. Advocacy of imminent lawless action;
d. Danger to national security (Chavez v. Gonzales, supra);
e. Press statements made by persons, for and on behalf of the government, uttered
while in the exercise of their official functions;
f. Movies, television, and radio broadcast censorship in view of its access to
numerous people, including the youth who must be insulated from the
prejudicial effects of unprotected speech (Soriano v. Laguardia, G.R. No. 164785,
April 29, 2009);
g. Sub Judice Rule.

Test of Permissible Prior Restraint

Although prior restraints on speech are generally invalid, there are those which may be
permitted under the Constitution if the restraint to be imposed meets the burden of
proof necessary to uphold its validity. This burden of proof depends on whether the
restraint is in the form of content-based regulations or content-neutral regulations
(Chavez v. Gonzales, G.R. No. 168338, February 15, 2008).

Content-based restraint or censorship refers to restrictions “based on the subject

matter of the utterance or speech.” In contrast, content-neutral regulation includes
controls merely on the incidents of the speech such as time, place, or manner of the
speech (Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015).

Live TV coverage may be prohibited since the right of the accused must prevail over the
right of the public to information and freedom of the press (In re: Request for Radio-TV
Coverage of the Trial in the Sandiganbayan of the Plunder Cases against the Former
President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001).

The regulation of the tarpaulin size is a content-based regulation. The tarpaulin content
is not easily divorced from the size of its medium. Limiting the maximum size of the
tarpaulin would render ineffective petitioners’ message and violate their right to
exercise freedom of expression (Diocese of Bacolod v. COMELEC, Id.).

CONTENT-BASED REGULATION V. CONTENT NEUTRAL-REGULATION

CONTENT-BASED REGULATIONS CONTENT-NEUTRAL REGULATIONS
Object of Restraint
Restraint is aimed at the message or idea Restraint aims to regulate the time, place
of the expression, distort public debate, or manner of the expression in public
have improper motivation, and are usually places without any restraint on the
imposed because of fear of how people content of the expression.
will react to a particular speech.
Test for Validity
Strict scrutiny: Speech content may be Intermediate approach or the O-Brien
regulated only to further a compelling Test: A government regulation is justified
public interest in a way that does not if:
impair speech more than is absolutely a. It is within the constitutional power
necessary to further that interest of the government;
(Primicias v. Fugoso, G.R. No. L-1800, Jan. b. It furthers an important or
27, 1948) substantial government interest;
c. The government interest is
Or unrelated to the suppression of
free expression;
Clear and present danger test: Congress d. The incident restriction on alleged
may prevent speech only when the words freedom of speech and expression
used are used in such circumstances and is no greater than is essential to the
are of such a nature to create a clear and furtherance of that interest (Social
present danger that they will bring about Weather Stations, Inc. v. COMELEC,
substantive evils (Roque, Jr. v. AFP Chief of G.R. No. 147571, May 5, 2001).
Staff, G.R. No. 214986, February 15, 2017)
 Application
A rule such as that involved in Sanidad v. Regulations of time, place and manner of
COMELEC prohibiting columnists, holding public assemblies under B.P. Blg.
commentators, and announcers from 800, the Public Assembly Act of 1985
campaigning either for or against an issue (Osmeña v. COMELEC, G.R. NO. 132231,
in plebiscite must have a compelling March 31, 1998)
reason to support it, or it will not pass
muster under strict scrutiny (Osmeña v.
COMELEC, G.R. NO. 132231, March 31,
1998).

2. Freedom from Subsequent Punishment

This is a limitation on the power of the State to impose a punishment after publication
or dissemination (BERNAS Commentary, p. 248).

Criticism on the government, no matter how severe is within the range of liberty of
speech, unless the intention and effect be seditious (People v. Perez, G.R. No. L-21049,
December 22, 1923).

Doctrines Applied to Free-Speech Cases

1. Facial Challenge

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible “chilling effect” upon protected speech. The theory is
that “[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not regulated by a statute
drawn with narrow specificity” (Concurring Opinion of Justice Mendoza in Estrada v.
Sandiganbayan, 2001, cited in Southern Hemisphere Engagement Network, Inc. v. Anti-
Terrorism Council, G.R. No. 178552, October 5, 2010).

The facial challenge principle is a challenge against the constitutionality of a statute that
can be filed even where the petitioner claims no actual violation of his own rights under
the assailed statute but relies instead on the potential violation of his or other persons’
rights (Spouses Romualdez v. Commission on Elections, G.R. No. 167011, April 30, 2008).

The established rule is that a party can question the validity of a statute only if, as
applied to him, it is unconstitutional. The exception is the so-called “facial challenge.”
But the only time a facial challenge is allowed is when it operates in the area of freedom
of expression (NACHURA, p. 27).
 2. Overbreadth Doctrine

The overbreadth doctrine is a ground to declare a statute void when “it offends the
constitutional principle that a government purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms” (Estrada v.
Sandiganbayan, G.R. No. 148560, November 19, 2001).

Tests for Valid Government Interference to Freedom of Expression:

1. Clear and Present Danger Rule – inquiries on whether words are used in such
circumstance and of such nature as to create a clear and present danger that will bring
about the substantive evil that the State has a right to prevent (Schenck v. U.S. No. 437,
438, March 3, 1919).

a. Clear – casual connection with the danger of the substantive evil arising from the
utterance questioned; and
b. Present – involves time element, identified with imminent and immediate
danger; the danger must not only be probable, but very likely inevitable
(Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969).

On the basis of numerous pronouncements by the Supreme Court, it seems that

there is more than an inclination to apply the clear and present danger rule
(Marcos v. Manglapus, G.R. No. 88211, October 27, 1989).

2. Dangerous Tendency Rule – it states that a person could be punished for words uttered
or for ideas expressed which create a dangerous tendency, or which will cause or bring
about a substantive evil which the State has a right to prevent (SUAREZ, p. 249).

If the words uttered create a dangerous tendency which the State has a right to prevent,
then such words are punishable. It is not necessary that some definite or immediate acts
of force, violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence or unlawfulness (Cabansag v.
Fernandez, G.R. No. L-8974, October 18, 1857).

It is sufficient if the natural tendency and probable effect of the utterance be to bring
about the substantive evil which the legislative body seeks to prevent (CRUZ, p. 521)

Heckler’s Veto
It involves situations in which the government attempts to ban protected speech
because it might provoke a violent response. In such situations, the mere possibility of a
violent reaction to protected speech is simply not a constitutional basis on which to
restrict the right to speak (Roe v. Crawford, 514 F.3d 789, January 22, 2008).
 The government cannot grant power to a private actor, the heckler, to unilaterally
silence a speaker because of a concern for the violent reaction by the heckler ( Hill v.
Colorado, 530 U.S. 703, 735).

This may be in the guise of a permit requirement in the holding of rallies, parades or
demonstrations conditioned on the payment of a fee computed on the basis of the cost
needed to keep order in view of the expected opposition by persons holding contrary
vies (GOROSPE, Constitutional Law, Vol. 1 [2006], p. 863, hereinafter GOROSPE).

3. Balance of Interests Rule – a principle which requires a Court to consider the

circumstances in each particular case, and thereafter, it shall settle the issue of which
right demands greater protection (CRUZ, p. 522).

It is used a standard when courts need to balance conflicting social values and individual
interests and requires a conscious and detailed consideration of the interplay of
interests observable in a given situation (Chavez v. Gonzales, G.R. No. 168338, February
15, 2008).

When a particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, and partial abridgment of speech, the duty of the
court is to determine which of the two conflicting interests demands the greater
protection under the particular circumstances presented (American Communications
Association v. Douds, No. 10, 339 U.S. 382, May 8, 1950).

State Regulation of Different Types of Media

All forms of communication are entitled to the broad protection of the freedom of expression
clause. The test for limitations on freedom of expression continues to be the clear and present
danger rule (Eastern Broadcasting Corp. v. Dans, Jr., G.R. No. L-59329, July 19, 1985).
Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in
scope than the freedom accorded to newspaper and print media because of the physical
limitations (in radio waves) of the broadcast spectrum, the government must, of necessity,
allocate broadcast frequencies to those wishing to use them. There is no similar justification for
government allocation and regulation of the print media (Divinagracia v. Consolidated
Broadcasting System. G.R. No. 162272, April 7, 2009).

The clear and present danger rule applies to ALL media, including broadcast, but only when the
challenged act is a content-based regulation (Chavez v. Gonzales, supra).

Commercial Speech
It means communication whose sole purpose is to propose a commercial transaction. It has not,
however, been accorded the same level of protection as that given to what is called a “core”
speech such as a political speech (BERNAS Commentary, p. 281-283).
For commercial speech to enjoy protection, it must not be false or misleading and should not
propose an illegal transaction (Friedman v. Rogers, G.R. No. 77-1163, February 21, 1979;
Pittsburgh Press Co. v. Human Relations Commission, G.R. No. 72-419, June 21, 1973).

However, even truthful and lawful commercial speech may be regulated if:
1. The government has substantial interest to protect;
2. The regulation directly advances that interest;
3. It is not more extensive than is necessary to protect that interest; and
4. It must not be overbroad (Central Hudson Gas and Electric Corp. v. Public Service
Commission of NY, G.R. No. 79565, June 20, 1980).

Privileged Communication
Communication made in good faith on any subject matter in which the communicator has an
interest, or concerning which he has a duty, is privileged if made to a person having a
corresponding interest, although it contains incriminatory matter which without the privilege,
would be libellous and actionable (Ledesma v. CA, G.R. No. 113216, September 5, 1997).

Kinds of Privileged Communication

1. Absolutely privileged communication (CONST., Art. VI, Sec. 11, sentence 2); and
2. Qualified privileged communication
a. A private communication made by any person to another in the performance of
any legal, moral, or social duty (RPC, Art. 354);
b. A fair and true report, made in good faith, without any comments or remarks, of
any judicial or other official proceedings which are not of confidential nature, or
of any statement, report or speech delivered in said proceedings, or of any other
act performed by public officers in the exercise of their functions (RPC, Art. 354);
and
c. Fair commentaries on matters of public interest (Borjal v. CA, G.R. No. 126466,
January 14, 1999).

Requisites to Invoke Qualified Privileged Communication:

1. Person who made the communication had a legal, moral, or social duty to make the
communication, or at least had an interest to protect, which may either be his own or of
the one to whom it is made;
2. Communication is addressed to an officer or a board, or superior having some interest
or duty in the matter, and who has the power to furnish the protection sought; and
3. Statements in the communication are made in good faith and without malice (U.S. v.
Bustos, G.R. No. L-12592, March 8, 1918).

Public Interest
Newspapers may publish news items relative in judicial, legislative, or other official
proceedings, which are not of confidential nature, because the public is entitled to know the
truth with respect to such proceedings, which, being official, and non-confidential, are open to
public consumption. But, to enjoy immunity, a publication containing derogatory information
must be not only true but also fair and it must be made in good faith and without any
comments or remarks (Policarpio v. Manila Times, G.R. No. L-16027, May 30, 1962)

Criticism of an Official Conduct

The people have a right to scrutinize and comment or condemn the conduct of their chosen
representatives in the government. As long as their comments are made in good faith and with
justifiable ends, they are insulated from prosecution or damage suits for defamation even if
such views are found to be inaccurate or erroneous. A public officer must not be too thin-
skineed with reference to comment upon his official acts (U.S. v. Bustos, supra)

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 an unjust accusation; the wound can be assuaged with the balm
of a clear conscience. A public officer must not be too thin-skinned with reference to comment
upon his official acts (Id.)

Public Figures
A person who, by his accomplishments, fame, mode of living, or by adopting a profession or
calling which gives the public a legitimate interest in his doings, his affairs and his character, has
become a public personage. He is, in other words, a celebrity.

Juan Ponce Enrile is a “public figure” precisely because, inter alia, of his participation as a
principal actor in the culminating events of the change of government in February 1986.
Because his participation therein was major in character, a film re-enactment of the peaceful
revolution that fails to make reference to the role played by private respondent would be
grossly unhistorical. The right of privacy of a “public figure” is necessarily narrower than that of
an ordinary citizen. Private respondent has not retired into the seclusion of simple private
citizenship. He continues to be a “public figure.” After a successful political campaign during
which his participation in the EDSA Revolution was directly or indirectly referred to in the press,
radio and television, he sits in a very public place, the Senate of the Philippines (Ayer
Production Pty. Ltd. V. Capulong, G.R. Nos. 82380, 82398, April 29, 1988).

Libel against Public Officials and Public Figures

A public official is prohibited from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with actual malice (New York
Times Co. v. Sullivan, 376 U.S. 254, March 9, 1964).

Fair commentaries on matters of public interest are privileged and constitute a valid defense in
an action for libel or slander. In order that such discreditable imputation to a public official may
be actionable, it must either be a false allegation of fact or a comment based on a false
opposition. If the comment is an expression of opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred
from the facts (Borjal v. CA, G.R. No. 126466, January 14, 1999).
Regulation of Speech during Elections
Regulation of speech in the context of electoral campaigns made by persons who are not
candidates or who do not speak as members of a political party which are, taken as a whole,
principally advocates of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate including those that can catalyse candid,
uninhibited, and robust debate in the criteria for the choice of a candidate (Diocese of Bacolod
v. COMELEC, G.R. No. 205728, January 21, 2015).

As to Pending Litigation
Under the Sub Judice Rule, the Philippines proscribes public comment on pending litigation, on
the ground that it would interfere with the administration of justice. Publication tending to
impede, obstruct, embarrass, or interfere with the courts in administering justice in a pending
suit or proceeding constitutes criminal contempt which is punishable by the courts (Romero II v.
Estrada, G.R. No. 174105, April 2, 2009).

As to Art and Obscenity

It was observed that movies, compared to other media of expression, have greater capacity for
evil and are consequently subject to more regulation. The burden of proving the film is
unprotected expression must rest on the censor (Freedom v. Maryland, 380 U.S. 51, March 1,
1965).

Test of Obscenity:
1. Appeal to prurient interest
Whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeal to prurient interest (Gonzales
v. Kalaw-Katigbak, G.R. No. L-69500, July 22, 1985).

2. Miller Test
a. Whether the average person applying contemporary community standards,
would find that the work, taken as a whole, appeals to the prurient interest;
b. Whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable law; and
c. Whether the work, taken as a whole lacks serious literary, artistic, political or
scientific values (Miller v. California, No 70-73, June 21, 1973).

3. Corrupting Tendency Test

Obscenity is that which shocks the ordinary and common sense of men as an indecency.

Whether the tendency of the matter charged as obscene, is to deprave or corrupt those
whose minds are open to such immoral influences and into whose hands a publication
or other article charged as being obscene may fall (Pita v. CA, citing People v. Kottinger,
G.R. No. 80806, October 5, 1989).
 The Courts should apply the standard of the community in which the material is being
tested (CRUZ, p. 531).

Government Speech Doctrine

Pursuant to this doctrine, the government is free to take on an ideological viewpoint provided it
does not concomitantly impinge on private free speech (Rust v. Sullivan, 500 U.S. 173 [1991]).

The doctrine is supported by the principle that individual taxpayers do not have a veto over the
use of their tax dollars, and that the government does not create a public forum simply by
virtue of its speaking (Johanns v. Livestock Marketing Ass’n, v. Perry Local Educators Ass’n, 460
U.S. 37 [1983]).

Assembly and Petition

The right to assemble is not subject to prior restraint and may not be conditioned upon the
prior issuance of a permit or authorization from the government authorities. However, the right
must be exercised in such a way that it will not prejudice the public welfare. When such rights
were exercised on regular school days instead of during the free time of the teachers, the
teachers committed acts prejudicial to the best interests of the service (De la Cruz v. Court of
Appeals, G.R. Nos. 126183 & 129221, March 25, 1999).

Hierarchy of Rights
Primacy of human rights (freedom of expression, of peaceful assembly and of petition for
redress of grievances) over property rights has been sustained. Thus, business owners may not
invoke their property rights to curtail their worker’s right to assemble (Phil. Blooming Mills
Employees Organization v. Phil. Blooming Mills Co. Inc., G.R. No. L-31195, June 5, 1973).

Scope of State Regulation of the Right to Assembly

1. To justify limitations on freedom of assembly, there must be proof of sufficient weight
to satisfy the clear and present danger test (Reyes v. Bagatsing, G.R. No. L-65366,
November 9, 1983).
2. The Philippine obligation under the Vienna Convention to protect the premises of
embassies is not incompatible with the guarantee and does not preclude the application
of the clear and present danger rule (BERNAS Commentary, p. 320).
3. If assembly is to be held at a public place, permit for the use of such place, and not for
the assembly itself, may be validly required. The power of local officials is merely for
regulation and not for prohibition (Primicias v. Fugoso, G.R. No. L-1800, Jan. 27, 1948).

Tests of a Lawful Assembly

1. Purpose for which it is held regardless of the auspices under which it is organized ( De
Jonge v. Oregon, 229 U.S. 353, Jan. 4, 1937); and
2. Auspices Test – inquires into the nature of the people composing the assembly
(Evangelista v. Earnshaw, G.R. No. 36453, September 28, 1932).
The provisions of B.P. 880 are not an absolute ban of public assemblies but a restriction that
simply regulates the time, place, and manner of the assemblies. The Court referred to it as a
“content-neutral” regulation (Bayan, et. al. v. Ermita, G.R. No. 169838, April 25, 2006).

Applying for a Permit to Assemble and Petition:

1. The applicant for a permit to hold an assembly should inform the licensing authority of
the public place where it is to take place and the date and the time when it will take
place. If it is a private place, only the consent of the owner or of the one entitled to its
legal possession is required;
2. The application should be filed ahead of time to enable the public official concerned to
appraise whether there may be valid objections to the grant of the permit or ot its grant
but to another public place; and

Note: It is an indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached.

3. The decision of the public authority, favourable or adverse, must be transmitted to the
applicant at the earliest possible opportunity so they can have recourse to the proper
judicial authority (Reyes v. Bagatsing, G.R. No. L-65366, November 9, 1983).

Permit for Public Assembly is not Necessary if Meeting is to be held in:

1. Private place;
2. The campus of a government-owned or operated educational institution; and
3. Freedom park (B.P. 880: The Public Assembly Act of 1985).

In view of the maximum tolerance mandated by B.P. 880, Calibrated Pre-Emptive Response
serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it
means something else. Accordingly, what is to be followed is and should be that mandated by
the law itself, namely, maximum tolerance, which specifically means “the highest degree of
restraint that the military, police, and other peace keeping authorities shall observe during a
public assembly or in the dispersal of the same” (Id.).

Procedure under B.P. 880:

1. An application for the permit to assemble shall be filed before the Office of the Mayor
within 5 working days before the scheduled public assembly;
2. Upon receipt, the same shall immediately be posted at a conspicuous place in the city or
municipal building; and
3. The mayor shall act on the application within two (2) working days from the date the
application was filed, failing which, the permit shall be deemed granted.
a. If granted: the permit shall be issued; or
b. If denied/modified: the applicant may contest the decision in an appropriate
court of law.
 Note: Should for any reason the mayor or any official acting in his behalf refuse to
accept the application for a permit, said application shall be posted by the applicant on
the premises of the mayor and shall be deemed to have been filed (B.P. 880, Secs. 5 & 6)

While prudence requires that there be a realistic appraisal of what may possibly occur but of
what may probably occur, given all the relevant circumstances, still the assumption – especially
so where the assembly is scheduled for a specific public place – is that the permit must be for
the assembly being held there. The exercise of such a right, in the language of Justice Roberts,
speaking for the American Supreme Court, is not to be “abridged on the plea that it may be
exercised in some other place” (IBP v. Atienza, G.R. No. 175241, February 24, 2010).

It is an indispensable condition to such refusal or modification that the clear and present
danger test be the standard for the decision reached. If he is of the view that there is such an
imminent and grave danger of a substantive evil, the applicants must be heard on the matter
(Id.).

Demonstrations within the Vicinity of Courts

Demonstrators, picketers, rallyists and all other similar persons are enjoined from holding any
activity on the sidewalks and streets adjacent to, in front of, or within a radius of 200 meters
from, the outer boundary of the Supreme Court Building, any Hall of Justice, and any other
building that houses at least one (1) court sala (In re Petition to Annul, En Banc Res. AM 98-7-
02-SC, September 29, 1998).

Demonstrations in School Premises

The rights to peaceable assembly and free speech are guaranteed to students of educational
institutions. If the assembly is to be held in school premises, permit must be sought from its
school authorities, who are devoid of the power to deny such request arbitrarily or
unreasonably (Malabanan v. Ramento, G.R. No. L-622270, May 21, 1984).

Academic freedom enjoyed by institutions of higher learning includes the right to set academic
standards to determine under what circumstances failing grades suffice for the expulsion of
students. It cannot be utilized to discriminate against those students who exercise their
constitutional right to peaceable assembly and free speech (Villar v. Technological Institute of
the Philippines, G.R. No. L-69198, April 17, 1985).

Right of Association
It is embraced in the freedom of expression because it can be used as vehicle for expression of
views that has a bearing on the public welfare (CRUZ, p. 548).

The right to join associations also includes the right not to join any organization (Victoriano v.
Elizalde Rope Workers’ Union, G.R. No. L-25246, September 12, 1974). The constitutional right
to association does not preclude the imposition of relevant qualifications for membership in
any organization. As such, any person who does not meet the qualifications of a particular
organization cannot invoke his right to association if membership is denied (Id.).
SECTION 5: FREEDOM OF RELIGION

Religion
It is any specific system of belief, worship, conduct, etc. often involving a code of ethics and
philosophy; profession of faith to an active power that binds and elevates man to his Creator
(CRUZ, p. 129, citing Webster’s New World Dictionary, p. 1228).

The separation of church and state delineate the boundaries between two institutions to avoid
encroachment by one against the other (Id.).

The principle of separation of Church and State is based on mutual respect. The State cannot
meddle in the internal affairs of the Church, must less question its faith and dogmas or dictate
upon it. On the other hand, the Church cannot impose its beliefs and convictions on the state
and the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country (Imbong v. Ochoa, G.R. No. 204819, April
8, 2014).

Approaches of Courts to the Freedom of Religion

1. Strict Separationist – This approach erects an absolute barrier to formal
interdependence of religion and state. Religious institutions could not receive aid,
whether direct or indirect, from the state. Nor could the state adjust its secular
programs to alleviate burdens the programs places on believers (Estrada v. Escritor,
A.M. No. P-02-1651, August 4, 2003).
2. Strict Neutrality/ Separation – It examines only whether government action is for a
secular purpose and does not consider inadvertent burden on religious exercise; a rigid
reading of the principle of separation between Church and State (Id.).
3. Benevolent Neutrality/ Accommodation – an approach that looks further than the
secular purposes of government action and examines the effect of these actions on
religious exercise; the Court will strive to accommodate religious beliefs and practices
when it can within flexible constitutional limits. The Philippines adheres to this (Id.).

Three Kinds of Accommodation:

a. Mandatory Accommodation – accommodation is required to preserve free
exercise protections and not unconstitutionally infringe on religious liberty or
create penalties for religious freedom;
b. Permissive Accommodation – the State may, but is not required to
accommodate religious interest; and
c. Prohibited Accommodation – when establishment concerns prevail over
potential accommodation interests. It is also when the Court finds no basis for a
mandatory accommodation nor it determines that the legislative
accommodation runs afoul of the establishment/ free exercise clause (Id.).

Three (3) Principal Parts of Section 5:

1. Non-establishment clause (First sentence);
2. Free exercise clause (Second sentence); and
3. No religious test clause (Third sentence).

1. Non-establishment Clause
The State cannot set up church, nor pass laws which aid one religion, aid all religions,
prefer one religion over another, nor force nor influence a person to go to or remain
away from church against his will, or force him to profess a belief or disbelief in any
religion (Everson v. Board of Education, 330 U.S.1, February 10, 1947).

Tests to Determine when there is No Violation of Establishment Clause:

a. The statute has a secular legislative purpose;
b. Its principal or primary effect is one that neither advances nor inhibits religion;
and
c. It does not foster an excessive government entanglement with religion (Estrada
v. Escritor, supra).

Manifestations of the Non-Establishment Clause under the Constitution:

a. Art. VI, Sec 28, par. (3): exemption from taxation of properties actually, directly,
and exclusively used for religious purposes;
b. Art. XIV, Sec. 3, par. (3): optional religious instruction in public elementary and
high schools;
c. Art. XIV, Sec. 4, par. (2): citizenship requirement of ownership of educational
institutions, except those established by religious groups and mission boards;
and
d. Art. VI, Sec. 29, par. (2): appropriation allowed where ecclesiastic is employed in
armed forces, in a penal institution, or in a government-owned orphanage or
leprosarium.

Instances of Non-Violation of the Non-Establishment Clause:

a. Postage stamps depicting Philippines as the site of a significant religious event
(Aglipay v Ruiz, G.R. No. L-45459, March 13, 1937);
b. Government sponsorship of town fiestas (Garces v. Estenzo, G.R. No. L-53487,
May 25, 1981);
c. Book lending program for students in parochial schools (Board of Education v.
Allen, 392 U.S. 236);
d. Display of crèche in a secular setting (Lynch v. Donnelly, 465 U.S. 668);
e. Financial support for secular academic facilities (Tilton v. Richardson, 403 U.S.
672);
f. Exemption from zoning requirements to accommodate unique architectural
features of religious buildings (Martin v. Corporation of the Presiding Bishop, 434
Mass. 141); and
g. Celebration of religious holidays (Garces v. Estenzo, G.R. No. L-53487, May 25,
1981, Re: Letter of Tony Q. Valenciano, A.M. No. 10-4-19-SC, March 7, 2017).
2. Freedom of Religious Belief and Worship/ Free Exercise Clause
Dual aspect:
a. Freedom to believe – it is absolute as long as it is confined in the realm of
thought; and
b. Freedom to act on one’s belief – it is subject to regulation where the belief is
translated into external acts that affect the public welfare (Iglesia ni Cristo v. CA,
G.R. No. 119673, July 26, 1996).

Freedom to Believe not Subject to Regulation

The freedom to believe carries with it the corollary expectation that the
government, while it may look into the good faith of a person, cannot inquire into a
person’s religious pretensions. However, the moment belief flows into action, it
becomes subject to government regulation (Id.).

Compelling students to salute flag during flag ceremony violates religious freedom
To compel students to take part in a flag ceremony when it is against their religious
beliefs will violate their religious freedom (Ebralinag v. The Division Superintendent
of Schools of Cebu, G.R. No. 95770, March 1, 1993).

Courts have no control on discipline of religious members

The expulsion or excommunication of members of a religious institution or
organization is matter best left to the discretion of the officials, and the laws and
cannons, of said institution or organization. It is not for the courts to exercise control
over church authorities in the performance of their discretionary and official
functions. Rather, it is for the members of religious institutions/ organizations to
conform to just church regulations (Taruc, et. al v. Dela Cruz, G.R. No. 144801,
March 10, 2005).

Tests in Determining Free Exercise Clause Violations

a. Clear and Present Danger Test
When words are used in such circumstance and of such nature as to create a
clear and present danger that will bring about the substantive evil that the
State has a right to prevent (Schenck v. U.S., No. 437, 438, March 3, 1919);

b. Conscientious Objector Test

Will the regulation force a legitimate conscientious objector to perform an
act against his will and conscience?

This test is usually applied in the US to avail of an exemption from military

service pursuant to Section 6(j) of the Universal Military Training and Services
Act which substantially provides that persons who are conscientiously
opposed to participation in war in any form by reason of religious training
and belief may be exempted from combatant training and service in the
armed forces (Welsh v. United States 398 U.S. 333, June 15, 1970).
 Requisites:
i. There must be belief in God or some parallel belief that occupies a
central place in the believer’s life;
ii. The religion must involve a moral code transcending individual belief,
i.e., it cannot be purely subjective;
iii. A demonstrable sincerity in belief is necessary, but the court must not
inquire into the truth or reasonableness of the belief; and
iv. There must be some associational ties although there is also a view
that religious beliefs held by a single person rather than being part of
the teachings of any kind of group or sect are entitled to the
protection of the Free Exercise Clause (Estrada v. Escritor, supra).

Once the medical practitioner, against his will, refers a patient seeking
information or reproductive health products, services, procedures and
methods, his conscience is immediately burdened as he has been compelled
to perform an act against his beliefs (Spouses Imbong v. Ochoa, Jr., G.R. Nos.
204819, 204934, 204957, 204988, 205003, 205043, 205138, 205478,
205491, 205720, 206355, 207111, 207172 & 207563, April 8, 2014).

c. Compelling State Interest Test

The test determines whether respondent’s right to religious freedom has
been burdened and ascertains respondent’s sincerity in his religious belief
(Estrada v. Escritor, supra).

Three Prongs of the Compelling State Interest Test

i. “Has the statute or government action created a burden on the free
exercise of religion?” – The courts often look in to the sincerity of the
religious belief, but without inquiring into the truth of the belief
because the Free Exercise Clause prohibits inquiring about its truth;
ii. “Is there a sufficiently compelling state interest to justify this
infringement of religious liberty?” – In this step, the government has
to establish that its purposes are legitimate for the state and that
they are compelling. It must precisely show how and to what extent
those objectives will be undermined if exemptions are granted; and
iii. “Has the state in achieving its legitimate purposes, used the least
intrusive means possible so that the free exercise is not infringed
any more than necessary to achieve the legitimate goal of the
state?” – The analysis requires the state to show that the means in
which it is achieving its legitimate state objective is the least intrusive
means, i.e., it has chosen a way to achieve its legitimate state end
that imposes as little as possible on religious liberties (Estrada v.
Escritor, supra).
SECTION 6: LIBERTY OF ABODE AND RIGHT TO TRAVEL

Liberty of Abode
It includes the right to choose one’s residence, to leave whenever he wills (CRUZ, pp. 414-415).

Right to Travel
It refers to the right to move from one place to another (Reyes v. Razon, G.R. No. 182161,
December 3, 2009).

Scope
The right to return to one’s country is not included in the right to travel. The right to travel only
includes:
1. The right to travel from the Philippines to another country; and
2. The right to travel within the Philippines (Marcos v. Manglapus, G.R. No. 88211, October
27, 1989).

Sovereign Right to Regulate Travel of Non-Citizens

While the right to travel of citizens covers both exit from and entry into the country, aliens
cannot claim the same right. Every sovereign nation has the power to forbid the entrance of
foreigners within its dominions, or to admit them only in such cases and upon such conditions
as it may see fit to prescribe (Nishimura Ekiu v. US, 142 U.S. 651, January 18, 1892).

Limitations on the Liberty of Abode and Right to Travel

The liberty of abode may be impaired only upon lawful order of the court and within the limits
prescribed by law. Right to travel may be curtailed even by administrative authorities, in the
interest of national security, public safety or public health as may be provided by law (BERNAS
Reviewer, p. 93).

A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is
a necessary consequence of the nature and function of a bail bond (Manotoc v. Court of
Appeals, G.R. No. L-62100, May 30, 1986).

Under the Human Security Act, cases where evidence of guild is not strong, and the person
charged with the crime of terrorism as therein defined is entitled to bail and is granted the
same, the court, upon application by the prosecutor, shall limit the right of travel of the
accused within the municipality or city where he resides or where the case is pending, in the
interest of national security and public safety (R.A. 9372, Sec.26).

Hold Departure Orders

A Hold Departure Order is defined as an order issued by the President, Secretary of Justice, or
the proper Regional Trial Court commanding the Bureau of Immigration to prevent the
departure for abroad of Filipinos and/or aliens named therein by including them in the Bureau’s
Hold Departure List (DOJ Department Circular No. 17, s. 1998).
On April 17, 2018, however, the Supreme Court has ruled that there is no law authorizing the
Justice Secretary to issue Hold Departure Orders, Watch-List Orders, or Allow Departure Orders.
As a consequence, all issuances released pursuant to DOJ Department Circular No. 41, s. 2010
are null and void.

Note: As such, the power to curtail or impair a person’s right to travel is still exclusively vested
upon:

1. The Courts, with respect to any person admitted to bail;

2. The President, with respect to aliens entering or sojourning in the Philippines, as
exercised through the Bureau of Immigration;
3. Administrative authorities expressly authorized by law in the interest of national
security, public safety or public health.

SECTION 7: RIGHT TO INFORMATION

Scope:

1. The right to information on matters of public concern, as well as to government

research data used as basis for policy development (CONST., Art. III, Sec. 7); and
2. Corollary right of access to official records and documents (Secretary of Justice v.
Lantion, G.R. No. 139465, January 18, 2000).

This right, as a general rule, includes negotiations leading to the consummation of a public
transaction. Otherwise, the people can never exercise the right if no contract is consummated,
or if one is consummated, it may be too late for the public to expose its defects (Chavez v. PEA
and Amari, G.R. No. 133250, July 9, 2002).

Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or communications during the
state when common assertions are still in the process of being formulated or are in the
“exploratory” stage. There is a need of course, to observe the same restrictions on disclosure of
information in general – such as on matters involving national security, diplomatic or foreign
relations, intelligence and other classified information (Chavez v. PCGG, G.R. No. 130716,
December 9, 1998).

Availability
These are political rights that are available to citizens only (BERNAS Commentary, p. 380).
However, this is without prejudice to the right of aliens to have access to records of cases
where they are involved. In any case, said right is “subject to such limitations as may be
provided by law” (SUAREZ, pp. 325-326). Mandamus is the remedy in case of denial (Legaspi v.
Civil Service Commission, G.R. No. L-72119, May 29, 1987).
Test to Determine When the Right is Inviolable
The test is an inquiry on whether the information sought is of public interest (Legazpi v. CSC,
G.R. No. L-72119, May 29, 1987). If it is, then such information may be disclosed under the
public’s right to information.

Public Interest
Those which the public may want to know, either because these directly affect their lives, or
simply because such matters naturally arouse the interest of an ordinary citizen (Echegaray v.
Secretary of Justice, G.R. No. 132601, October 12, 1998).

Limitations on the Right to Information:

The law may exempt certain types of information from public scrutiny, such as those affecting
national security. Availability of access to a particular public record must be circumscribed by
the nature of the information sought, i.e., (a) being of public concern or one that involves public
interest, and, (b) not being exempted by law from the operation of the constitutional guarantee.
The threshold question is, therefore, whether or not the information sought is of public interest
or public concern (Legaspi v. CSC, G.R. No. L-72119, May 29, 1987).

Right to Information is limited to Disclosure and Access

Although citizens are afforded the right to information and, pursuant thereto, are entitled to
“access to official records,” the Constitution does not accord them the right to compel
custodians of official records to prepare lists, abstracts, summaries, and the like in their desire
to acquire information on matters of public concern (Valmonte v. Belmonte, G.R. No. 74930,
February 13, 1989).

Authority of Administrative Agency to Regulate Access

1. Its authority to regulate access is to be exercised solely to the end that damage to, or
loss of, public records may be avoided;
2. That undue interference with the duties of said agencies may be prevented; and
3. That the exercise of the same constitutional right by other persons shall be assured (Id.).

Restrictions on the Access of Information:

1. Criminal matters or classified law enforcement matters, such as those relating to the
apprehension, prosecution and detention of criminals, which courts may not inquire
into prior such arrest, detention and prosecution;
2. Other confidential matters;
3. The exercise is subject to reasonable regulations to protect the integrity of public
records and to minimize disruption of government operations;
4. National security matters. These include state secrets regarding military, diplomatic and
other national security, and information on inter government exchanges prior to the
conclusion of treaties and executive agreements; and
5. Trade secrets and banking transactions, pursuant to the Intellectual Property Law, and
other related laws, and the Secrecy of Bank Deposits Act (Chavez v. PCGG, G.R. No.
130716, December 9, 1998).
Concepts relating to the Right to Information:
1. As to public documents: The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law (CONST., Art. III, Sec. 7).

Except perhaps when it is clear that the purpose of the examination is unlawful or sheer
idle curiosity, we do not believe it is the duty under the law of registration officers
concern themselves with the motives, reasons, and objects of the persons seeking
access to the records. The authority to regulate the manner of examining public records
does not carry with it the power to prohibit (Subido v. Ozaeta, G.R. No. L-1631, February
27, 1948).

2. Access to court records: Court orders and decisions, pleadings and other documents
filed by parties to a case need not be matters of public concern or interest, and that
access to public records may be restricted on showing of good cause (Hilado v. Reyes,
G.R. No. 163155, July 21, 2006). Judicial Privilege, or the right of the Judiciary to
confidentiality of certain information is implied from Judicial Power (IN RE: Production
of Court Records and Documents and the Attendance of Court Officials and Employees as
Witnesses under the Subpoenas of February 10, 2012 and the Various Letters of the
Impeachment Prosecution Panel dated January 19 and 25, 2012).

However, if the information arose not from the performance of official adjudicatory
functions of Members of the Judiciary, judicial privilege is not invocable and the right
may be under the scope of the right to information. Thus, information relating to the
commission of crimes or misconduct, or violations of the Code of Judicial Conduct, or
any violation of a law or regulation for that matter, is not confidential because the
commission of crimes or misconduct is not part of the official functions or duties of
Justices. Judicial Privilege refers only to matters that are part of the internal
deliberations and actions of the Court in the exercise of their adjudicatory functions and
duties as Justices. The Resolution further states that the matter must refer to the
performance of their official functions of adjudication of Justices (IN RE: Production of
Court Production of Court Records and Documents and the Attendance of Court Officials
and Employees as Witnesses under the Subpoenas of February 10, 2012 and the Various
Letters of the Impeachment Prosecution Panel dated January 19 and 25, 2012)

3. Right to Information relative to Government Contract Negotiations: Parties to

government contract cannot stipulate that the terms thereof should be considered
confidential and should be open for examination by the public (AKBAYAN v. Aquino, G.R.
No. 170516, July 16, 2008).

The right to information does not extend to matters recognized as “privileged

information” under the separation of powers, by which the Court meant Presidential
 conversations, correspondences, and discussions in closed-door Cabinet meetings (Neri
v. Senate, G.R. No. 180643, September 4, 2008).

4. Right to Information relative to Diplomatic Negotiations: The privileged character of

diplomatic negotiations has been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v. PCGG held that
“information on inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the sake of national
interest. The nature of the diplomacy requires centralization of authority and expedition
of decision which are inherent in executive action. Another essential characteristic of
diplomacy is its confidential nature (AKBAYAN v. Aquino, supra).

5. Right to Information relative to Party-List Election: The Court cannot leave to the party
the discretion to determine the number of nominees it would submit. The publication of
the list of at least five (5) nominees does not only serve as the reckoning period of
certain remedies and procedures; most importantly, the required publication satisfies
the people’s constitutional right to information on matters of public concern (COCOFED
v. COMELEC, G.R. No. 207026, August 6, 2013).

6. As to Publication of Laws: A legislative rule is in the nature of subordinate legislation,

designed to implement a primary legislation by providing the details thereof. Such rule
must be published to give the general public adequate notice of the various laws which
are to regulate their actions and conduct as citizens. It would be the height of injustice
to punish a citizen for the transgression of a law which he had no notice whatsoever,
not even a constructive one. On the other hand, interpretative rules are designed to
provide guidelines to the law which the administrative agency is in charge of enforcing.
They need not be published (Commissioner of Customs v. Hypermix Feeds Corp., G.R.
179579, February 1, 2012).

Remedy in Case of Denial of Right

To safeguard the constitutional right, every denial of access by the government agency
concerned is subject to review by the courts, and in the proper case, access may be compelled
by a writ of Mandamus (Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987).

EXECUTIVE ORDER No. 2, s. 2016

E.O. No. 2 was enacted pursuant to Section 7, Article III of the 1987 Constitution which
guarantees the right of people to information on matters of public concern in relation to Sect.
28, Art. II thereof as regards the State policy of full public disclosure of the government’s
transactions involving public interest, subject to reasonable conditions prescribed by law.

It provides that, as a general rule, every Filipino shall have access to information, official
records, public records, and to documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development (E.O.
No. 2, s. 2016, Sec. 3).
Coverage
All government offices under the Executive Branch, including but not limited to the national
government and all its offices, departments, bureaus, offices, and instrumentalities, including
government-owned or controlled corporations, and state universities and colleges (E.O. No. 2,
s. 2016, Sec. 2).

Local government units (LGUS) are encouraged to observe and be guided by this Order (Id.)

Lead Agency
The Presidential Communications Operations Office (PCOO) is designated as the lead agency in
the implementation of E.O. No. 2 and all other FOI programs and initiatives, including electronic
freedom of information (e-FOI) in the Executive branch (Memorandum Order No. 10, December
29, 2016).

Information
These include any records, any documents, papers, reports, letters, contracts, minutes and
transcripts of official meetings, maps, books, photographs, data, research materials, films,
sound and video recording, magnetic or other tapes, electronic data, computer stored data, any
other like or similar data or materials which are:
1. recorded;
2. stored; or
3. archived in whatever format, whether offline or online, which are made, received, or
kept in or under the control and custody of any government office pursuant to law,
executive order, and rules and regulations or in connection with the performance or
transaction of official business by any government office.

Official Record
Information produced or received by a public officer or employee, or by a government office in
an official capacity or pursuant to a public function or duty.

Public Record
Information required by laws, executive orders, rules, or regulations to be entered, kept and
made publicly available by a government office (E.O. No. 2, s. 2016, Sec. 1).

When Access to Information Limited:

1. Information covered by executive privilege;
2. Privileged information relating to national security, defense or international relations;
3. Information concerning law enforcement and protection of public and personal safety;
4. Information deemed confidential for the protection of the privacy of persons and
certain individuals such as minors, victims of crimes, or the accused;
5. Information, documents or records known by reason of official capacity and are deemed
as confidential, including those submitted or disclosed by entities to government
agencies, tribunals, board or officers;
 6. Prejudicial premature disclosure;
7. Records of proceedings or information from proceedings which, pursuant to law or
relevant rules and regulations, are treated as confidential or privileged; and
8. Other exceptions to the right to information under laws, jurisprudence, rules and
regulations (Inventory of Exceptions to Executive Order No. 2, s. 2016, Memorandum
from the Executive Secretary, November 24, 2016).

Procedure
The following procedure shall govern the filing and processing of request for access to
information:

1. Any person who requests access to information shall submit a written request to the
government office concerned. The request shall state the following:
a. Name of requesting party;
b. Contact information of the requesting party;
c. Valid proof of his identification or authorization; and
d. Reasonable description of the information requested, and the reason for, or
purpose of, the request for information: Provided, that no request shall be
denied or refused acceptance unless the reason for the request is contrary to
law, existing rules and regulations or it is one of the exceptions contained in the
inventory or updated inventory of exceptions as hereinabove provided.

2. The public official receiving the request shall provide reasonable assistance, free of
charge, to enable all requesting parties and particularly those with special needs, to
comply with the request requirements under this Section.

3. The request shall be stamped by the government office, indicating the date and time of
receipt and the name, rank, title and position of the receiving public officer or employee
with the corresponding signature, and a copy thereof furnished to the requesting party.
Each government office shall establish a system to trace the status of all requests for
information received by it.

4. The government office shall respond to a request fully compliant with the requirements
of sub-section (a) hereof as soon as practicable but not exceeding fifteen (15) working
days from the receipt thereof.

The response mentioned above refers to the decision of the agency or office concerned
to grant or deny access to the information requested.

5. The period to respond may be extended wherever the information requested required
extensive search of the government office’s records facilities, examination of
voluminous records, the occurrence of fortuitous cases or other analogous cases.
 The government office shall notify the person making the request of the extension,
setting forth the reasons for such extension. In no case shall the extension go beyond
twenty (20) working days unless exceptional circumstances warrant a longer period.

6. Once a decision is made to grant the request, the person making the request shall be
notified of such decision and directed to pay any applicable fees (E.O. No. 2, s. 2016,
Sec. 9)

Fees
Government offices shall not charge any fee for accepting requests for access to information.

They may, however, charge a reasonable fee to reimburse necessary costs, including actual
costs of reproduction and copying of information required, subject to existing rules and
regulations. In no case shall the applicable fees be so onerous as to defeat the purpose of this
Order (E.O. No. 2, s. 2016, Sec. 10).

Effect of Identical or Substantially Similar Requests

The government office shall not be required to act upon an unreasonable, subsequent,
identical, or substantially similar request from the same requesting party whose request has
already been previously granted or denied by the same government office (E.O. 2, s. 2016, Sec.
11)

Denial of Request
If the government office decides to deny the request in whole or in part, it shall as soon as
practicable, in any case within fifteen (15) working days from the receipt of the request, notify
the requesting party the denial in writing. It shall clearly set forth:
1. The ground or grounds for denial;
2. Circumstances on which the denial is based.

Note: Failure to notify the requesting party of the action taken on the request within the period
herein stipulated shall be deemed a denial of the request for access to information (E.O. No. 2,
s. 2016, Sec. 12).

Remedies in Cases of Denial of Request:

1. It may be appealed to the person or office next higher in authority, following the
procedure mentioned in Section 7(f) of the Order: Provided, that the written appeal
must be filed by the same person making the request within fifteen (15) working days
from the notice of denial or from the lapse of the relevant period to respond to the
request.
2. The appeal shall be decided by the person or office next higher in authority within thirty
(30) working days from the filing of said written appeal. Failure of such person or office
to decide within the afore-stated period shall be deemed a denial of the appeal.
 3. Upon exhaustion of administrative appeal remedies, the requesting party may file the
appropriate case in the proper courts in accordance with the Rules of Court (E.O. No. 2,
s. 2016, Sec. 13).

Effect of Non-Compliance
Failure to comply with the provisions of this Order may be a ground for administrative and
disciplinary sanctions against any erring public officer or employee as provided under existing
laws or regulations (E.O. No. 2, s. 2016, Sec. 15).

SECTION 8: RIGHT TO FORM ASSOCIATIONS

The right to form associations cannot be impaired without due process of law (CRUZ, p. 548).

Right to form associations shall not be impaired except through a valid exercise of police power
(BERNAS Reviewer, p. 95).

It is deemed embraced in freedom of expression because the organization can be used as a

vehicle for the expression of views that have a bearing on the public welfare (CRUZ, p. 548).

This general provision is fortified by Art. IX-B, Sec. 2(5) which affirms that “the right to self-
organization shall not be denied to government employees” (Id., p. 549).

Bar integration does not compel the lawyer to associate with anyone. The only compulsion to
which he is subjected is the payment of annual dues (In re Edilion, A.M. No. 1928, Aug. 3, 1978).

Freedom Not to Associate

The constitutionally guaranteed freedom of association includes the freedom not to associate.
The right to choose whom one will associate oneself is the very foundation and essence of that
partnership. It should be noted that the provision guarantees the right to form an association. It
does not include the right to compel others to form or join one (Sta. Clara Homeowners
Association v. Gaston, G.R. No. 141961, January 23, 2002).

Under the Torrens system of registration, claims and liens of whatever character, except those
mentioned by law, existing against the land binds the holder of the title and the whole world.
The automatic membership clause is not a violation of petitioner’s freedom of association.
PADCOM was never forced to join the association. It could have avoided such membership by
not buying the land. Nobody forced it to buy the land when it bought the building with the
annotation of the condition or lien on the Certificate of Title thereof (Padcom Condominium
Corporation v. Ortigas Center Association, Inc., G.R. No. 146807, May 9, 2002).

Right to Assembly does not include the Right to Strike

A reading of the proceedings of the Constitutional Commission shows that in recognizing the
right of the government employees to organize, the commissioners intended to limit the right
to information of unions or association only, without including the right to strike (SSS
Employees Association v. Court of Appeals, G.R. No. 85279, July 28, 1989).

Note: The right to strike is a separate civil right granted to workers of private employers under
the Labor Code.

SECTION 9: EMINENT DOMAIN

(See previous discussion under the Fundamental Powers of the State: Power of Eminent Domain)

SECTION 10: NON-IMPAIRMENT OF CONTRACTS

Contract
It is any lawful agreement on the property or property rights, whether real or personal, tangible
or intangible (CRUZ, p. 574).

The non-impairment clause also protects public contracts including onerous franchises and
privileges granted by the State. The charter itself constitutes a contract with the State (Fletcher
v. Peck, 10 U.S. [6 Cranch] 87).

Exclusions:
1. Licenses (Pedro v. Provincial Board of Rizal, 53 Phil. 123) and Franchises (PAGCOR v. BIR,
G.R. No. 172087, March 15, 2011);
2. Marriage contract (Maryland v. Hill, 125 U.S. 129); and
3. Public office (Mississippi v. Miller, 276 U.S. 174).

It is well understood that the contract clause does not limit the power of the State
during the terms of its officers to pass and give effect to laws prescribing for the future
the duties to be performed by, or the salaries or other compensation to be paid to,
them (Mississippi v. Miller, supra).

Impairment
It is anything that diminishes the efficacy of a contract (Clemons v. Nolting, G.R. No. L-17959,
January 24, 1922). The change must not only impair the obligation of the existing contract, but
the impairment must be substantial. To constitute substantial impairment, the law must effect
a change in the rights of the parties with reference to each other and not with respect to non-
parties (Philippine Rural Electric Cooperatives Association v. DILG Secretary, G.R. No. 143076,
June 10, 2003).

When there is Impairment

There is impairment when there is a change in the terms of a legal contract between the
parties, either in the time or mode of performance, or imposes new conditions, or dispenses
with those expressed, or authorizes for its satisfaction something different from that provided
in its terms (Clemons v. Nolting, supra).
A law impairs a contract when it enlarges, abridges, or in any manner change the intentions of
the parties (U.S. v. Diaz Conde, G.R. No. L-18208, February 14, 1922), and this is true if the
change is done indirectly (BPI v. Frank, G.R. No. L-2935, March 23, 1909).

The degree of diminution is immaterial. As long as the original rights of either party are
changed to their prejudice, there is already impairment of the obligation of contract (CRUZ, p.
578).

A trial court may not order the cancellation of a mortgage lien annotated in a Torrens
Certificate of Title to secure the payment of a promissory note and substitute such lien with a
surety bond approved by the same court to secure the payment of the promissory note. The
substitution of a mortgage with a surety bond to secure the payment of the note would in
effect change the terms and conditions of the mortgage contract (Ganzon v. Inserto, G.R. No. L-
56450, July 25, 1983).

When There is No Impairment

There is no impairment as long as a substantial and efficacious remedy remains even if it is the
most difficult to employ (Manila Trading Co. v. Reyes, G.R. No. 170132, December 6, 2006).

Limitations on the Non-Impairment of Contracts

The legislature cannot bargain away the police power through the medium of a contract.
Neither may private parties fetter the legislative authority by contracting on matters that are
essentially within the power of the lawmaking body (CRUZ, p. 574).

Like police power, the other inherent powers may validly limit the impairment clause (City of
San Pablo v. Judge Reyes and Meralco, G.R. No. 127708, March 25, 1999).

In every contract, there is an implied reservation that it is subject to the police power of the
State (Ortigas & Co. v. Feati Bank and Trust Co., G.R. No. L-24670, December 14, 1979).

The non-impairment clause is a limit on the exercise of legislative power and not of judicial or
quasi-judicial power (China Banking Corp. v. ASB Holdings, G.R. No. 172192, Dec. 23, 2008).

Contemporary Application of the Non-Impairment Clause

Employment Contracts
To come under the constitutional prohibition, the law must effect change in the rights of the
parties with reference to each other and not with reference to non-parties. The contract in this
case cannot have the effect of annulling subsequent legislation for the protection of the
workers (Abella v. National Labor Relations Commission, G.R. No. L-71813, July 20, 1987).

Tax Exemptions
There is no vested right in tax exemption, more so when the latest expression of legislative
intent renders its continuance doubtful; Congress in the legitimate exercise of its lawmaking
powers, can enact a law withdrawing a tax exemption just as efficaciously as it may grant the
same (Republic v. Caguioa, G.R. No. 168584, October 15, 2007).

Franchises
A franchise partakes of the nature of a grant which is beyond the purview of the non-
impairment clause of the Constitution. Hence, the provision in Section 1 of R.A. No. 9337,
amending Section 27 (c) of R.A. No. 8424 by withdrawing the exemption of PAGCOR from
corporate income tax, which may affect any benefits to PAGCOR’s transactions with private
parties, is not violative of the non-impairment clause of the Constitution (PAGCOR v. BIR, G.R.
No. 172087, March 15, 2011).

SECTION 11: FREE ACCESS TO COURTS

The implementation of the letter and spirit of Section 11 is a collective primary responsibility of
all lawyers, judges, prosecutors, legislators, and executives in the government including all its
employees.

The IBP provides deserving indigents with free legal aid, including representation in court, and
similar services are available from the Department of Justice to litigants who cannot afford
retained counsel There are also private legal assistance organizations functioning for the
benefit of penurious clients who otherwise might be unable to resort to the courts of justice
because only of their misfortune of being poor (CRUZ, p. 791).

Free access to the court does not mean that the courts cannot impose filing fees ( U.S. v. Kras,
409 U.S. 434, January 10, 1973).

Extended to Natural Persons Only

The Constitution has explicitly premised the free exercise clause on a person’s poverty, a
condition that only a natural person can suffer. Extending the exemption to a juridical person
on the ground that it works for indigent and underprivileged people may be prone to abuse,
particularly corporations and entities bent on circumventing the rule on payment of the fees.
Also, the scrutiny of compliance with the documentation requirements may prove too time
consuming and wasteful for the courts (In Re: Query of Mr. Roger Prioreschi, AM NO. 09-6-9-SC,
August 19, 2009).

Free Legal Assistance Act of 2010 (R.A. No. 9999)

Legal Services
It is any activity which requires the application of law, legal procedure, knowledge, training and
experiences which shall include, among others, legal advice and counsel, and the preparation of
instruments and contracts, including appearance before the administrative and quasi-judicial
offices, bodies and tribunals handling cases in court, and other similar services as may be
defined by the Supreme Court (RA 9999, Sec. 3).
Requirements for Availment of Free Legal Services
For purposes of availing of the benefits and services as envisioned in this Act, a lawyer or
professional partnership shall secure a certification from the Public Attorney’s Office (PAO), the
Department of Justice (DOJ) or accredited association of the Supreme Court, indicating that the
said legal services to be provided are within the services defined by the Supreme Court, and
that the agencies cannot provide the legal services to be provided by the private counsel (RA
9999, Sec. 4).

For the purpose of determining the number of hours actually provided by the lawyer and/or
professional firm in the provision of legal services, the association and/or organization duly
accredited by the Supreme Court shall issue the necessary certification that said legal services
were actually undertaken (RA 9999, Sec. 4).

Incentives to Lawyers
For purposes of this Act, a lawyer or professional partnerships rendering actual free legal
services, as defined by the Supreme Court, shall be entitled to an allowable deduction from the
gross income, the amount that could have been collected for the actual free legal services
rendered or up to ten percent (10%) of the gross income derived from the actual performance
of the legal profession, whichever is lower: Provided, that the actual free legal services herein
contemplated shall be exclusive of the minimum sixty (60) – hour mandatory legal aid services
rendered to indigent litigants as required under the Rule on Mandatory Legal Aid Services for
Practicing Laywers, under Bar Matter No. 2012 issued by the Supreme Court (RA 9999, Sec. 5).

Rule on Mandatory Legal Aid (Bar Matter No. 2012)

Practicing Lawyers
They are the members of the Philippine Bar who appear for and in behalf of parties in courts of
law and quasi-judicial agencies (Bar Matter No. 2012, Sec. 4, par. [a]).

Persons Exempted from Compliance with the Mandatory Legal Aid Rule:
1. Government employees and incumbent elective officials not allowed to practice law;
2. Lawyers who by law are not allowed to appear in court;
3. Supervising lawyers of students enrolled in law student practice in duly accredited legal
clinics in law schools and lawyers of NGOs and People’s Organizations who by nature of
their work already render free legal aid to indigent and pauper litigants; and
4. Those who do not appear for and in behalf of parties in courts and quasi-judicial bodies
(Id.).

Salient Provisions of Bar Matter 2012:

1. Covers criminal, civil and administrative cases involving indigent and pauper litigants
(Sec. 3);
2. Minimum of sixty (60) hours of free legal aid services to indigent litigants in a year,
spread over twelve (12) months with a minimum of five (5) hours every month (Sec. 5);
 3. A practicing lawyer must secure from the Clerk of Court a certificate attesting to the
hours spent (Sec. 5, par. b);
4. Practicing lawyers are required to indicate in all pleadings filed before the courts or
quasi-judicial bodies the number and date of issue of their certificate of compliance for
the immediately preceding compliance period; otherwise it may be a ground for the
dismissal of the case and the expunction of the pleadings from the records (Sec. 5, par.
e);
5. If no explanation is given by the practicing lawyer for the failure to render the
prescribed number of hours or if the National Committee on Legal Aid (NCLA) finds the
explanation unsatisfactory, upon report and recommendation to the IBP Board of
Governors, the erring lawyer shall be declared as a member not in good standing (Sec.
7, par. a);
6. Any lawyer who fails to comply with his duties under the Rule for at least three (3)
consecutive years shall be the subject of disciplinary proceedings to be instituted motu
proprio by the Committee on Bar Discipline (Sec. 7, par. c).

SECTION 12: RIGHT OF SUSPECTS UNDER CUSTODIAL INVESTIGATION

Custodial Investigation
It is 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 (Miranda v.
Arizona, 384 U.S. 436 [1996])

It shall include the practice of issuing an “invitation” to a person who is investigated in

connection with an offense he is suspected to have committed, without prejudice to the liability
of the inviting officer for any violation of law (R.A. 7438, Sec. 2).

When Available
The rights under Sec. 12, Art. III are available when the investigation is no longer a general
inquiry unto an unsolved crime but has begun to focus on a particular suspect, as when the
suspect has been taken into police custody and the police carry out a process of interrogation
that lends itself to eliciting incriminating statements (People v. Marra, G.R> No. 108494,
September 20, 1994).

The exercise of the rights to remain silent and to counsel and to be informed thereof under
Section 12(1), Article III of the Constitution is not confined to that period prior to the filing of a
criminal complaint or information but is available at that stage when a person is “under
investigation for the commission of an offense” (People v. Maqueda, G.R. No. 112983, March
22, 1995).

The rights under custodial investigation are not available in administrative proceedings (People
v. Ayson, G.R. No. 85215, July 7, 1989).
The Rights of Suspects under Custodial Investigation or the “Miranda Rights”:
1. Right to be informed of his rights to remain silent and to counsel;

This carries the correlative obligation on the part of the investigator to explain the
rights. It contemplates effective communication which results in the subject
understanding what is conveyed (People v. Agustin, G.R. No. 110290, January 25, 1995).

As a rule, therefore, it would not be sufficient for a policeman just to repeat to the
person under investigation the provisions of the Constitution. He is not only duty bound
to tell the person the rights which the latter is entitled, he must also explain their effects
in practical terms (People v. Rojas, G.R. No. L-16960-62, January 8, 1987);

2. Right to be reminded that if waives his right to remain silent, anything he says can and
will be used against him (CONST., Art. III, Sec. 12);
3. Right to remain silent (Id.);
4. Right to have competent and independent counsel preferably of his own choice (Id.).

Even if he consents to answer questions without the assistance of counsel, the moment
he asks for a lawyer at any point in the investigation, the interrogation must cease until
an attorney is present (Miranda v. Arizona, 384 U.S. 436 June 13, 1966).

“Preferably of his own choice”

This does not mean that the choice of a lawyer is exclusive as to preclude other equally
competent and independent attorneys from handling the defense (People v. Barasina,
G.R. No. 109993, January 21, 1994).

Independent Counsel
A counsel whose interest is not adverse to that of the accused and one who is not a
counsel of the police or municipal attorney (People v. Fabro, G.R. No. 95089, August 11,
1997).

While the accused’s right to be represented by counsel is immutable, his option to

secure the services of counsel de parte, however, is not absolute. Thus, the court may
restrict the accused’s option to retain a counsel de parte if the accused insists on an
attorney he cannot afford, or the chosen counsel is not a member of the bar, or the
attorney declines to represent the accused for a valid reason, e.g., conflict of interest
and the like (People v. Sarzo, Jr., G.R. No. 118435, June 20, 1997).

A PAO lawyer is considered independent counsel within the contemplation of the

Constitution (Estrada v. Badoy, A.M. No. 01-12-01-SC, January 16, 2003).

5. Right to be provided with counsel, if the person cannot afford the services of one
(CONST., Art. III, Sec. 12, par. 1);
 Note: While the choice of the lawyer is naturally lodged in the police investigators, the
suspect has the final choice as he may reject the counsel chosen for him and ask for
another one (People v. Jerez, G.R. No. 114385, January 19, 1998).

6. No torture, force, violence, threat, intimidation or any other means which vitiate the
free will shall be used against him (CONST., Art. III, Sec. 12, par. 2);
7. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited (Id.); and
8. Confessions or admissions obtained in violation of these rights are inadmissible in
evidence (CONST., Art. III, Sec. 12, par. 3).

Two Kinds of Involuntary or Coerced Confessions subject to the Exclusionary Rule:

a. Coerced confession, the product of third-degree methods, such as force,
violence, threat and intimidation, which are dealt with in par. 2; and
b. Uncounselled statements given without the benefit of the Miranda warning,
which are subject of par. 1 (People v. Vallejo, G.R. No. 144656, May 9, 2002).

The Warnings Used by the Philippine National Police to Comply with Section 12
1. Miranda Warning
“Ikaw ay inaaresto sa salang _______________(o sa pamamagitan ng kautusan ng pag-
aresto). Ikaw ay may karapatang manahimik o magsawalang kibo. Anuman ang iyong
sabihin ay maaring gamitin pabor o laban sa iyo as anumang hukuman. Ikaw ay maroon
ding karapatang kumaha ng tagapagtanggol na iyong pinili at kung wala kang
kakayahan, ito ay ipagkakaloob sa iyo ng pamahalaan. Nauunawaan mo ba ito?”

2. Anti-Torture Warning
“Ikaw ay may karapatang magpatingin sa isang mapagkakatiwalaang doctor na srili
mong pinili. Kung wala kang kakayahang kumuha ng iyong doctor, ikaw ay
pagkakalooban ng libre ng estado o pamahalaan.”

Note: Translations of the above in other major languages spoken in the country are used
depending on the jurisdiction.

Waiver of Rights under Custodial Investigation

Waiver must be in writing and in the presence of counsel (R.A. 7438, Sec. 2, par. [2], CONST.,
Art. III, Sec. 12, par. 1).

Rights which cannot be Waived:

1. The right to be informed of his right to remain silent and to counsel; and
2. The right to counsel when making the waiver of the right to remain silent or to counsel
(SUAREZ, p. 295).

Requisites of Admissible Extrajudicial Confession:

 1. Made by the person arrested, detained, or under custodial investigation with the
assistance and in the presence of his counsel or in the latter’s absence, upon a valid
waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse,
the municipal mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall
be inadmissible as evidence in any proceeding;
2. In writing;
3. Voluntary;
4. Express; and
5. Signed (R.A. No. 7438, Sec. 2, par. [d]).

What is sought to be avoided by the rule is the evil of extorting from the very mouth of the
person undergoing interrogation for the commission of an offense the very evidence with which
to prosecute and thereafter to convict him (People v. Bonola, G.R. No. 116394, June 19, 1997).

The constitutional safeguards on custodial investigation do not apply to spontaneous

statements, or those not elicited through questioning by law enforcement authorities but given
in an ordinary manner whereby the appellant verbally admits to having committed the offense
(People v. Guillermo, G.R. No. 147786, January 20, 2004).

When the appellant talked with the mayor as confidant and not as a law enforcement officer,
his uncounselled confession to him did not violate his constitutional rights (People v. Andan,
G.R. No. 116437, March 3, 1997).

Note: An extrajudicial confession made by an accused shall not be a sufficient ground for
conviction, unless corroborated by evidence of corpus delicti (Rules of Court, Rule 133, Sec. 3).

Rights of a Person Suspected and Subsequently Charged:

1. Before a case if filed for preliminary investigation but after being put into custody or
otherwise deprived of liberty, and on being interrogated by police.
a. The continuing right to remain silent and counsel;
b. To be informed thereof;
c. Not to be subjected to force, violence, threat or intimidation which vitiates free
will; and
d. To have evidence obtained in violation of these rights inadmissible as evidence
(CONST., Art. III, Sec. 12).
2. After the case is filed in court:
a. To refuse to be witness against himself;
b. Not to have prejudice imputed on him as a result of such refusal;
c. To testify on his behalf; and
d. To cross-examination; while testifying, to refuse questions which tend to
incriminate him for some crime other than the present charge (People v. Ayson,
G.R. No. 85215, July 7, 1989, see also People v. Maqueda, G.R. No. 112983,
March 22, 1995).
Police Line-Up
General Rule: A police line-up is not considered part of any custodial inquest because the
process has not yet shifted from investigatory to accusatory stage and it is usually the witness
or complainant who is interrogated and who gives statement in the course of the line-up
(People v. Amestuzo, G.R. No. 104383, July 12, 2001).

Exception: After the start of the custodial investigation, any identification of an uncounselled
accused made in a police line-up is inadmissible, e.g., where the police officers first talked to the
victims before the confrontation was held as to impart improper suggestions on the minds of
the victims that may lead to a mistaken identification (People v. Macam, G.R. Nos. 91011-12,
November 24, 1994.

SECTION 13: RIGHT TO BAIL

Bail
The security given for the release of a person in custody of law, furnished by him or a
bondsman, to guarantee his appearance before any court as required under conditions
specified under the Rules of Court (Rules of Court, Rule 114, Sec. 1).

Ratio: Presumption of innocence (CONST., Art. III, Sec. 14 [1]).

When Right Available:

1. Since bail is constitutionally available to all persons, it must be available to one who is
detained even before formal charges is filed (Teehankee v. Rovira, supra).

It is sufficient that the person claiming the right must be under the custody of the law
either when he has been arrested or has surrendered himself to the jurisdiction of the
court (CRUZ, p. 690).

Any person in custody who is not yet charged in court may apply for bail with any court
in the province, city, or municipality where he is held (Rules of Court, Rule 114, Sec. 17
[c]).

2. Suspension of the privilege of the writ of habeas corpus does not suspend the right to
bail (CONST., Art. III, Sec. 13).
3. A witness may post bail when so required by the court to secure his appearance in court
(Rules of Court, Rule 110, Sec. 14).
4. Even when the accused has previously jumped bail, still he cannot be denied bail before
conviction if it is a matter of right. The remedy is to increase the amount of bail (Sy
Guan v. Amparo, G.R. No. L-1771, December 4, 1947).

5. An extradite also has the right to apply for bail (Government of Hongkong v. Hon. Olalia,
Jr., G.R. No. 153675, April 19, 2007).
 The national commitment to uphold the fundamental human rights as well as value the
worth and dignity of every person has authorized the grant of bail not only to those
charged in criminal proceedings but also to extradites upon a clear and convincing
showing: (1) that the detainee will not be a flight risk or a danger to the community; and
(2) that there exist special, humanitarian and compelling circumstances (Id.).

When Right Not Available:

1. As a general rule, the constitutional right to bail is available only in criminal proceedings.
Thus, it has been repeatedly held that respondents in deportation proceedings, which
are administrative in nature, do not enjoy the right (Harvey v. Defensor-Santiago, G.R.
No. 82544, June 28, 1988).

When an alien is detained by the Bureau of Immigration for deportation pursuant to an

order of deportation by the Deportation Board, the Regional Trial Courts have no power
to release such alien on bail even in habeas corpus proceedings because there is no law
authorizing it (Go v. Ramos, G.R. No. 167569, September 4, 2009).

2. Traditionally, the right to bail has not been recognized and is not available to the
military, as an exception to the Bill of Rights (Comendador v. de Villa, G.R. No. 93177,
August 2, 1991).

Forms of Bail:
1. Corporate Surety;
2. Property Bond;
3. Cash Deposit; and
4. Recognizance (Rules of Court, Rule 114, Sec. 1).

Bail Bond Recognizance

It is an obligation under seal given by the It is a mode of securing the release of any
accused with one or more sureties and made person in custody or detention for the
payable to the proper officer with the commission of an offense who is unable to
condition to be void upon performance by the post bail due to abject poverty. The court
accused of such acts as he may legally be where the case of such person has been filed
required to perform (People v. Abner, G.R. No. shall allow the release of the accused on
L-2508, October 27, 1950) recognizance as provided herein, to the
custody of a qualified member of the
barangay, city or municipality where the
accused resides (R.A. 10389, otherwise known
as “The Recognizance Act of 2012,” Sec. 3)

When Bail is a Matter of Right

Bail is a matter of right except where a person is charged with an offense punishable by
reclusion perpetua, life imprisonment, or death and where evidence of guilt is strong (CONST.,
Art. III, Sec. 13).

All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or
be released on recognizance as prescribed by law or this rule:
1. Before or after conviction by the MTC; and
2. Before conviction by the RTC for an offense not punishable by death, reclusion perpetua
or life imprisonment (Rules of Court, Rule 114, Sec. 4).

When Bail is a Matter of Discretion

Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life
imprisonment, the court, on application, may admit the accused to bail. The court, in its
discretion, may allow the accused to continue provisional liberty after the same bail bond
during the period to appeal subject to the consent of the bondsman (Rules of Court, Rule 114,
Sec. 5)

The mere probability of escape does not warrant denial of the right to bail; the remedy is to
increase the bail provided it is not excessive. But after conviction in the regional trial court, the
accused may be denied bail if there is risk of his absconding (Zafra v. City Warden, G.R. No. L-
49602 &L-49938, May 17, 1980).

When Bail is Denied

1. No person, regardless of the stage of the criminal prosecution, shall be admitted to bail
if charged with a capital offense, or an offense punishable by reclusion perpetua or life
imprisonment or death; AND evidence of guilt is strong (Rules of Court, Rule 114, Sec. 7).

2. If the court imposed a penalty of imprisonment exceeding six (6) years but not more
than twenty (20) years, the accused shall be denied bail, or his bail previously granted
shall be cancelled, upon showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:
a. That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteracion;
b. That the accused is found to have previously escaped from legal confinement,
evaded sentence, or has violated the conditions of his bail without valid
justification;
c. That the accused committed the offense while on probation, parole, or under
conditional pardon;
d. That the circumstances of the accused or his case indicate the probability of
flight if released on bail; or
e. That there is undue risk that during the pendency of the appeal, the accused
may commit another crime (Rules of Court, Rule 114, Sec. 5).

Bail Hearing
Whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be
given the prosecutor, or at least he must be asked for his recommendation, because in fixing
the amount of bail, the judge is required to take into account a number of factors (Cortes v.
Judge Catral, A.M. No. RTJ-97-1387, September 10, 1997).

When the accused is charged with an offense punishable by reclusion perpetua or higher, a
hearing on the motion for bail must be conducted by the judge to determine whether or not
the evidence of guild is strong (Baylon v. Judge Sison, A.M. No. 92-7-360-0, April 6, 1995).

The prosecution has the burden of showing that the evidence of guilt against the accused is
strong (Basco v. Rapatalo, A.M. No. RTJ-96-1335, March 5, 1997).

Before conviction, the exercise of discretion of the court is only limited in the determination of
the gravity of guild of the accused. If after summary hearing, it is determined that the evidence
of guilt of the accused is strong, the court has no choice but to deny the application for bail.
Inversely, if the court finds that the evidence of guilt of the accused is weak, the court has no
discretion but to grant bail as a matter of right. (Id.).

Exceptions to the No-Bail Rule

Bail may be applied for and granted as an exception, only upon a clear and convincing showing:
1. That, once granted bail, the applicant will not be a flight risk or a danger to the
community; and
2. That there exist special, humanitarian and compelling circumstances including, as a
matter of reciprocity, those cited by the highest court in the requesting state when it
grants provisional liberty in extradition cases therein (Government of USA v. Judge
Purganan, G.R. No. 148571, September 24, 2002).

Juan Ponce Enrile’s 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. We also do not ignore that at an earlier time many years ago when he had been
charged with rebellion with murder and multiple frustrated murder, he already evinced a
similar personal disposition of respect for the legal processes and was granted bail during the
pendency of his trial because he was not seen as a flight risk. With 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. The current fragile state of Enrile’s health presents
another compelling justification for his admission to bail” (Enrile v. Sandiganbayan, G.R. No.
213847, August 18, 2015).

Standards for Fixing Amount of Bail:

1. Financial ability of the accused;
2. Nature and circumstances of offense;
3. Penalty for offense;
 4. Character and reputation of accused;
5. Probability of his appearance at trial;
6. Age and health of accused;
7. Weight of evidence against him;
8. Forfeiture of other bail;
9. Whether he was a fugitive from justice when arrested; and
10. Pendency of other cases where is on bail (Rules of Court, Rule 114, Sec. 9).

Cancellation of Bail
Bail is deemed automatically cancelled upon:
1. Acquittal of the accused;
2. Dismissal of the case; or
3. Execution of the judgment of conviction (Rules of Court, Rule 114, Sec. 22).

Summary of Bail as a Matter of Right, When Discretionary, and When Denied

1. When a Matter of Right:
a. Before or after conviction by the MTC;
b. Before conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment; and
c. Before conviction by the RTC of an offense punishable by death, reclusion
perpetua or life imprisonment but the evidence of guilt is not strong.
2. When Discretionary:
a. After conviction by the RTC of an offense NOT punishable by death, reclusion
perpetua, or life imprisonment.
3. When Shall be Denied:
a. Before conviction by the RTC of an offense punishable by death, reclusion
perpetua, or life imprisonment and the evidence of guilt is strong;
b. After conviction by the RTC of an offense punishable by death, reclusion
perpetua, or life imprisonment;
c. After conviction by the RTC of an offense NOT punishable by death, reclusion
perpetua, or life imprisonment and the presence of bail denying circumstances
under Rule 114, Section 5 of the Rules of Court

SECTION 14: RIGHTS OF THE ACCUSED

1. Criminal Due Process

Requisites of Criminal Due Process:

a. Accused is heard by a court of competent jurisdiction;
b. Accused is proceeded against under the orderly processes of law;
c. Accused is given notice and opportunity to be heard; and
d. Judgement rendered was within the authority of a constitutional law (Mejia v.
Pamaran, G.R. No. L-56741-42, April 15, 1988).
 Criminal Due Process and Publicity
To warrant a finding of prejudicial publicity, there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the barrage of
publicity (Martelino v. Alejnador, G.R. No. L-30894, March 25, 1970).

2. Presumption of Innocence
a. Every circumstance favouring the innocence of the accused must be taken into
account;
b. The proof against him must survive the test of reason, the strongest suspicion
must not be permitted to sway judgment (People v. Austria, G.R. No. 55109,
April 8, 1991.

Note: Accusation is not synonymous with (People v. Dramayo, G.R. No. L-21325,
October 29, 1971)

A corporate entity, has no personality to invoke the right to be presumed innocent

which right is available only to an individual who is an accused in a criminal case (Feeder
International Line v. CA, G.R. No. 94262, May 31, 1991).

Reasonable Doubt
It is doubt engendered by an investigation of the whole proof and an inability, after such
investigation, to let the mind rest easy upon the certainty of guild (People v. Dramayo,
supra).

Proof Beyond Reasonable Doubt

Proof beyond reasonable doubt does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Only moral certainty is required, or that
degree of proof which produces conviction in an unprejudiced mind (Rules of Court,
Rule 133, Sec. 2).

Equipose Rule
It states that when [pieces of] evidence of both sides are equally balanced, the
constitutional presumption of innocence should tilt the scales in favour of the accused
(Corpus v. People, G.R. no. 74259, February 14, 1991).

3. Right to be Heard by Himself and Counsel

The right to be heard can be understood to mean the totality of the rights embodied in
an adequate criminal procedural system, which can be viewed as expressing both the
qualities of the hearer and the manner of hearing.
 If the opts to be silent where he has a right to speak, he cannot later be heard to
complain that he was unduly silenced (Stronghold Ins. Co. v. Court of Appeals, G.R. No.
89020, May 5, 1992).

Qualities of the Hearer

The qualities demanded of the hearer are fairness and impartiality. It is demanded that
the judge may not play the double role of prosecutor and judge in one and the same
case. He must maintain an attitude of neutrality in regard to the prosecution and the
accused. Influence on the judge, even if unconscious, which prevents a calm and careful
review of the evidence can nullify his decision (Mateo, Jr. v. Villaluz, G.R. Nos. L-34756-
59, March 31, 1973).

Rights to Counsel Before Arraignment

When a defendant appears without attorney, the court must:
a. Inform the defendant that it is his right to have an attorney;
b. Ask him if he desires the aid of an attorney;
c. Assign an attorney de oficio, if he desires and is unable to employ attorney; and
d. Grant him a reasonable time, if he desires to procure an attorney of his own
(People v. Holgado, G.R. No. L-2809, March 22, 1950).

Rights to Counsel During Trial

As a general rule, the right to counsel during the trial is not subject to waiver ( Flores v.
Ruiz, G.R. No. L-35707, May 31, 1979) except if the accused is allowed by the court to
defend himself (Rules of Court, Rule 116, Sec. 6), subject to Section 34 of Rule 138 of the
Rules of Court.

4. Right to be Informed of the Nature and Cause of the Accusation against Him

It is the description, not the designation of the offense, that is controlling (People v.
Cosare, G.R. No. L-6544, August 25, 1954).

Purposes:
a. To furnish the accused with such a description of the charge against him as will
enable him to make his defense;
b. To avail himself of his conviction or acquittal for protection against a further
prosecution for the same cause; and
c. To inform the court of the facts alleged, so that it may decide whether they are
sufficient in law to support a conviction, if one should be had (U.S. v. Karelsen,
G.R. No. 1376, January 21, 1904).

Conspiracy must be alleged, not just inferred, in the information on which basis an
accused can aptly enter his plea, a matter that is not to be confused with or likened to
the adequacy of evidence that may be required to prove it. Evidence of conspiracy is not
enough for an accused to bear and to respond to all its grave legal consequences; it is
 equally essential that such accused has been apprised when the charge is made
conformably with prevailing substantive and procedural requirements (People v.
Quitlong, G.R. No. 121562, July 10, 1998).

Procedural due process requires that the accused be arraigned so that he may be
informed as to why he was indicted and what penal offense he has to face, to be
convicted only on a showing that his guild is shown beyond reasonable doubt with full
opportunity to disprove the evidence against him (Borja v. Mendoza, G.R. No. L-45667,
June 20, 1977).

5. Right to Speedy, Impartial and Public Trial

Purpose
To serve as safeguard against attempt to employ our courts as instruments of
persecution. The knowledge that every criminal trial is subject to contemporaneous
review in the forum of public opinion is an effective restraint on possible abuse of
judicial power (BERNAS Commentary, p. 530).

Speedy
It means free from vexatious, capricious and oppressive delays (Flores v. People, G.R.
No. L-25769, December 10, 1974).

The right to speedy trial is violated only:

a. When the proceedings are attended by vexatious, capricious, and oppressive
delays; or
b. When unjustified postponements are asked for and secured; or
c. When without cause or justifiable motive a long period of time is allowed to
elapse without the party having his case tried (People v. Tee, G.R. Nos. 140546-
47, January 20, 2003).

Factors to Consider Whether Right to Speedy Trial is Violated

The concept of speedy trial is necessarily relative. A determination as to whether the
right has been violated involves the weighing of several factors:
a. Conduct of prosecution and accused;
b. Length of delay;
c. Efforts exerted by the defendant to assert his right;
d. Reason of delay; and
e. Prejudice and damage caused to the accused (People v. Tee, G.R. Nos. 140546-
47, January 20, 2003).

Waiver of Speedy Trial

The right to a speedy trial may be waived. But waiver is not to be inferred from mere
failure of the accused to urge the trial of the case. Such waiver or abandonment may be
presumed only when the postponement of the trial has been sought and obtained by
the accused himself or by his attorney. The presumption is always against the waiver of
constitutionally protected rights (Id.).

Impartial
The accused is entitled to the cold neutrality of an impartial judge (Rules of Court, Rule
137).

The right of an accused to a fair trial is not incompatible to a free press, that pervasive
publicity is not per se prejudicial to the right of an accused to a fair trial, and that there
must be allegation and proof of the impaired capacity of the judge to render a bias-free
decision. Mere fear of possible undue influence is not tantamount to actual prejudice
resulting in the deprivation of the right to a fair trial (Re: Petition for radio and television
coverage of the multiple murder cases against Maguindanao Governor Zaldy Ampatuan,
et. al., A.M. No. 10-11-5-SC, June 14, 2011).

Public
The purpose of a public trial is to prevent possible abuses which may be committed
against the accused (CRUZ, p. 734).

General Rule: Anyone interested in observing the manner a judge conducts the
proceedings in his courtroom may do so. There is to be no ban on such attendance
(Garcia v. Domingo, G.R. No. L-30104, July 25, 19730.

A public trial is not synonymous with a publicized trial; it only implies that the court
doors must be open to those who wish to come, sit in available seats, and conduct
themselves with decorum and observe the trial process (Re: Request for Radio-TV
Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former
President Estrada, A.M. No. 01-4-03-SC, June 29, 2001).

Purpose: The reason for this safeguard is the belief that the accused is afforded further
protection that his trial is likely to be conducted with regularity and not tainted with any
impropriety (Id.).

Exceptions:
a. General public may be excluded when the evidence to presented in the
proceeding may be characterized as offensive to decency or public morals (Id.);
b. When a child testifies, the court may order the exclusion from the courtroom of
all persons, including members of the press, who do not have a direct interest in
the case (Rule on Examination of a Child Witness, Sec. 23); and
c. All JDR conferences shall be conducted in private (A.M. No. 11-1-6-SC-PHILJA,
January 11, 2011).
6. Right to be Present and the Right to Meet Witnesses Face to Face (Right of
Confrontation)

The right to confrontation includes to be present at the trial, the right to present
evidence, to testy in one’s own favour, and the right to be given time to call witnesses.

If accused of two offenses, he is entitled to a trial of each case, and it is error for the
court to consider in one case the evidenced adduced against him in another.

Two-Fold Purpose:
a. To afford the accused an opportunity to test the testimony of the witnesses by
cross-examination; and
b. To allow the judge to observe the deportation of the witness (U.S. v. Javier, G.R.
No. 12990, January 21, 1918).

Right as a rule not available outside trial

An accused is not entitled, as a matter of right, to be present during the preliminary
examination nor to cross-examine the witnesses presented against him before his
arrest, the purpose of said examination being merely to determine whether or not there
is sufficient reason to issue a warrant of arrest. A preliminary examination is generally a
proceeding ex parte in which the person charged has no right to participate or to be
present (Marinas v. Siochi, G.R. No. L-25707, May 14, 1951).

Waiver of Right to Cross-Examination

Right to cross-examination may be waived expressly or impliedly. Thus, where a party
has had the opportunity to cross-examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on direct
examination of the witness will be received or allowed to remain in the record ( De la
Paz v. Intermediate Appellate Court, G.R. No. 71537, September 17, 1987).

Testimony of witness who was not cross-examined is not admissible as evidence for
being hearsay (U.S. v. Javier, G.R. No. L-8781, March 30, 1914).

If cross-examination actually commenced, but, for lack of material time, was not
completed, and the witness in the meantime died before cross-examination could be
resumed, so much of the testimony as had already been covered by cross-examination
is admissible (People v. Seneris, G.R. No. L-48883, August 6, 1980).

Trial in absentia
Trial in absentia is mandatory upon the court whenever the accused has been arraigned,
notified of date/s of hearing, and his absence is unjustified (People v. Judge Salas, G.R.
No. L-66469, July 29, 1986).
 The right to be present during the trial may be waived provided that after arraignment
he may be compelled to appear for the purpose of identification by the witnesses of the
prosecution, unless he unqualifiedly admits in open court after his arraignment that he
is the person named as the defendant in the case on trial (Rules of Court, Rule 115, Sec.
1).

Purpose: To speed up the disposition of criminal cases, trial of which could in the past
be indefinitely and many times completely abandoned because of the defendant’s
escape (Republic v. Agbulos, G.R. No. 73875, May 18, 1993).

Requisites for Trial in absentia:

a. The accused has already been arraigned;
b. He has been duly notified of the trial; and
c. His failure to appear is unjustified (Borja v. Mendoza, G.R. No. L-45667, June 20,
1977).

Presence of Accused, When Mandatory:

a. During arraignment and plea (Rules of Court, Rule 116, Sec. 1);
b. During trial, for identification (Republic v. Agbulos, G.R. No. 73875, May 18,
1993), unless the accused has already stipulated on his identity during the pre-
trial and that he is the one who will be identified by the witnesses as the accused
in the criminal case (People v. Presiding Judge, G.R. No. L-64731, October 26,
1983); or
c. During promulgation of sentence, unless for a light offense (Rules of Court, Rule
120, Sec. 6).

Upon the termination of a trial in absentia, the court has the duty to rule upon the
evidence presented in court. The court need not wait for the time until the accused who
escaped from custody finally decides to appear in court to present his evidence and
cross-examine the witnesses against him. To allow the delay of proceedings for this
purpose is to render ineffective the constitutional provision on trial in absentia (People
v. Mapalao, G.R. No. 92415, May 14, 1991).

7. Right to Compulsory Process to Secure Attendance of Witnesses and Production of

Evidence

Subpoena ad testificandum
It is a process directed to a person requiring him to attend and to testify at the hearing
or the trial of an action, or at any investigation conducted by competent authority, or
for the taking of his deposition (Rules of Court, Rule 21, Sec. 1).

Subpoena duces tecum

It is a process directed to a person requiring him to bring with him any books,
documents, or other things under his control (Id.).
 The accused is entitled to the issuance of subpoena ad testificandum and subpoena
duces tecum for the purpose of compelling the attendance of the witnesses and the
production of evidence that he may need for his defense (CRUZ, p. 758).

Failure to obey the process is punishable as contempt of court; if necessary, the witness
may even be arrested so he can give the needed evidence (Id.).

Tests of Propriety for the Issuance of Subpoena Duces Tecum

a. Test of Relevancy – the books, documents, or other things requested must
appear prima facie relevant to the issue subject of the controversy; and
b. Test of Definiteness – such books must be reasonably described by the parties to
be readily identified (Roco v. Contreras, G.R. No. 158275, June 28, 2005).

Requisites of Right of Compulsory Process

a. That the evidence is really material;
b. That the accused is guilty of no neglect in previously obtaining attendance of said
witness;
c. That the evidence will be available at the time desired; and
d. That no similar evidence could be obtained (People v. Chua, G.R. No. 128280,
April 4, 2001).

SECTION 15: WRIT OF HABEAS CORPUS

It is a writ issued by the court directed to a person detaining another, commanding him to
produce the body of the prisoner at a designated time and place, with the day and the cause of
his capture and detention, to do, to submit to, and to receive whatever the court or judge
awarding the writ shall consider in his behalf (Bouvier’s Law Dictionary).

Habeas corpus – it literally means “have the body.”

Scope
The writ of habeas corpus shall extend to the following cases:
1. Illegal confinement or detention by which any person is deprived of his liberty; or
2. When rightful custody of any person is withheld from the person entitled thereto (Rules
of Court, Rule 102, Sec. 1).

Grounds for Issuance of Writ:

1. Deprivation of a constitutional right resulting in a restraint of a person;
2. Court has no jurisdiction to impose the sentence; or
3. An excessive penalty has been imposed, in which case the sentence is void as to such
excess (Harden v. Director of Prisons, G.R. No. L-2349, October 22, 1948).
Note: The writ may be allowed as a post-conviction remedy when the proceedings leading to
the conviction were attended by any of the abovementioned exceptional circumstances (In Re:
The Writ of Habeas Corpus for Reynaldo de Villa v. Director, New Bilibid Prisons, G.R. No.
158802, November 17, 2004).

Availability
Habeas corpus lies only where the restraint of a person’s liberty has been judicially adjudged to
be illegal or unlawful (In Re: Petition for Habeas Corpus of Wilfredo S. Sumulong-Torres, G.R.
No. 122338, December 29, 1995).

The petition for habeas corpus may be availed of when a prisoner is detained more than the
number of years that he should serve in prison, such as when by virtue of a subsequently
enacted law the penalty for the same offense he had committed and convicted with is lowered
(Angeles v. Director of New Bilibid Prison, G.R. No. 117568, January 4, 1995).

Once a person detained is duly charged in court, he may no longer question his detention
through a petition for issuance of a writ of habeas corpus. His remedy would be to quash the
information and/or the warrant of arrest duly issued. The writ of habeas corpus should not be
allowed after the party sought to be released had been charged before any court. The term
“court” in this context includes quasi-judicial bodies of government agencies authorized to
order the person’s confinement, like the Deportation Board of the Bureau of Immigration (Go v.
Ramos, G.R. No. 167569, September 4, 2009).

The function of the special proceeding of habeas corpus is to inquire into the legality of one’s
detention. Now that the detained attorney’s incarceration is by virtue of a judicial order in
relation to criminal cases subsequently filed against them before the Regional Trial Court of
Davao City, the remedy of habeas corpus no longer lies. The Writ has served its purpose.
Habeas corpus would not lie after the Warrant of commitment was issued by the Court on the
basis of the Information filed against the accused (Ilagan v. Enrile, G.R. No. 70748, October 21,
1985).

Effect of Absence of Preliminary Investigation

The absence of a preliminary investigation does not affect the court’s jurisdiction over a habeas
corpus case nor impair the validity of the information or otherwise render it defective. The
remedy of the accused in such a case is to call the attention of the court to the lack of
preliminary investigation and demand, as a matter of right, that one be conducted (Paredes v.
Sandiganbayan, G.R. No. 89989, January 28, 1991).

Effect of Release of Detained Persons

General Rule: The release of a detained person renders the petition for the writ of habeas
corpus moot and academic.

Exception: Where there are grounds for grave doubts about the alleged release, and the
standard and prescribed procedure in effecting the release has not been followed, the burden
of proving by clear and convincing evidence the alleged release is shifted to the respondents
(Dizon v. Eduardo, G.R. No. L-59118, March 3, 1988).

A release that renders a petition for a writ of habeas corpus moot and academic must be one
which is free from involuntary restraints. Where a person continues to be unlawfully denied
one or more of his constitutional freedoms, where there is present a denial of due process,
where the restraints are not merely involuntary but appear to be unnecessary, and where a
deprivation of freedom originally valid has, in the light of subsequent developments, become
arbitrary, the person concerned or those applying in his behalf may still avail themselves of the
privilege of the writ (Moncupa v. Enrile, G.R. No. L-63345, January 30, 1986).

Privilege of the Writ of Habeas Corpus

It is the right to have an immediate determination of the legality of the deprivation of physical
liberty (BERNAS, p. 146).

Purpose of the Suspension of the Privilege of the Writ of Habeas Corpus

To enable the government to deal with the situation of an invasion or rebellion. The
government must charge judicially those who are involved in the rebellion or invasion within
three days, otherwise the person shall be released (CONST., Art. VII, Sec. 18, par. [5]).

The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with the invasion (CONST., Art. VII, Sec.
18, par. [7]).

Note: The suspension of the privilege of the writ of habeas corpus does not suspend or impair
the right to bail (CONST., Art. III, Sec. 13).

The Supreme Court has the power not just to determine executive arbitrariness in the manner
of arriving at the suspension but also the power to determine the sufficiency of the factual basis
of the suspension (Lansang v. Garcia, G.R. No. L-33964, December 11, 1971).

Since the Court will have to rely on the fact-finding capabilities of the executive department,
the executive department will have to open whatever findings it might have to the scrutiny of
the Supreme Court if the President wants his suspension sustained (IBP v. Zamora, G.R. No.
141284, August 15, 2000).

(For further discussion regarding the grounds for the suspension of the privilege of the writ and
the person who may suspend the privilege, see Article VII: Executive Department)

Effect of the Suspension of the Privilege of the Writ of Habeas Corpus to the Application of
Article 125 of the RPC
During the suspension of the privilege, a public officer or employee who shall detain any person
for rebellion, or offenses inherent in or directly connected with invasion, and shall fail to deliver
such person to the proper judicial authorities within the periods prescribed, shall not be liable
for the penalties provided in Article 125 of the Revised Penal Code (Nava v. Gatmaitan, G.R. No.
L-4855, October 11, 1951).

Writ of Amparo
It is a remedy available to any person whose right to life, liberty, and security is violated or
threatened with a violation with an unlawful act or omission of a public official or employee, or
of a private individual or entity. It shall include enforced disappearances and extrajudicial
killings (Rule on the Writ of Amparo, A.M. No. 07-0-12-SC, Sec. 1).

Basis
The adoption of such a remedy in the Philippines is based on Article VIII, Section 5 (5) of the
Constitution, which empowers the Supreme Court to promulgate rules concerning the
protection and enforcement of constitutional rights.

Scope
In its present form, the writ of amparo is confined only to cases of extrajudicial killings and
enforced disappearances, or to threats thereof (Mison v. Gallegos, G.R. No. 210759, June 23,
2015).

The writ of amparo is not intended to protect concerns that are purely property or commercial.
Neither is it a writ that shall issue on amorphous and uncertain grounds (Masangkay-Tapus v.
Del Rosario, G.R. No. 182484, June 17, 2008).

Availability
When a criminal action has been commenced, no separate petition for the writ shall be filed.
The reliefs under the writ shall be available by motion in the criminal case ( Rule on the Writ of
Amparo, A.M. 07-9-12-SC, Sec. 22).

Nature and Purpose

The remedy of the writ of amparo provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate reliefs available to
the petitioner. It is not an action to determine administrative responsibility requiring
substantial evidence that will require full and exhaustive proceedings (Razon, Jr. v. Tagitis, G.R.
No. 182498, December 3, 2009).

Since there is no determination of administrative, civil or criminal liability in amparo and

habeas data proceedings, courts can only go so far as ascertain responsibility or accountability
for the enforced disappearance or extrajudicial killing. Such determination is for the purpose of
imposing appropriate remedies to address the disappearance (In the Matter of the Petition for
the Writ of Amparo and Habeas Data in favour of Noriel H. Rodriguez; Noriel H. Rodriguez v.
Gloria Macapagal-Arroyo, et. al., G.R. No. 191805 & G.R. No. 193160, November 15, 2011).
Enforced Disappearances and Extrajudicial Killings
Although the writ specifically covers “enforced disappearances,” this concept is neither defined
nor penalized in this jurisdiction. As the law now stands, extrajudicial killings and enforced
disappearances in this jurisdiction are not crimes penalized separately from the component
criminal acts undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws (Razon, Jr. v. Tagitis, G.R. No. 182498,
December 3, 2009).

Quantum of Evidence Required

The parties shall establish their claims by substantial evidence (Rule on the Writ of Amparo,
A.M. No. 07-9-12-SC, Sec. 17).

If the respondent is a private individual: He must prove that ordinary diligence as required by
applicable laws, rules, and regulations was observed in the performance of duty (Rule on the
Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 17).

If the respondent is a public official or employee: He must prove that extraordinary diligence
as required by applicable laws, rules, regulations was observed in the performance of duty
(Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 18).

If the allegations in the petition are proven by substantial evidence, the court shall grant the
privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied (Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, Sec. 18).

Indispensability of Government Participation

For the protective writ of amparo to issue, allegation and proof that the persons subject thereof
are missing are not enough. It must also be shown and proved by substantial evidence that the
disappearance was carried out by, or with the authorization, support or acquiescence of, the
State or a political organization, followed by a refusal to acknowledge the same or given
information on the fate or whereabouts of said missing persons, with the intention of removing
them from the protection of the law for a prolonged period of time. Simply put, the petitioner
in an amparo case has the burden of proving by substantial evidence the indispensable element
of government participation (Navia v. Pardico, G.R. No. 184467, June 19, 2012).

Admissibility of Hearsay Evidence

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their
totality, and to consider any evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence adduced. In other words, we reduce
our rules to the most basic test of reason - i.e., to the relevance of the evidence to the issue at
hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence
can be admitted if it satisfies this basic minimum test (Razon, Jr. v. Tagitis, supra).
No Presumption of Regularity of Performance of Official Function
The respondent public official or employee cannot invoke the presumption that official duty has
been regularly performed or evade responsibility or liability (Rule on the Writ of Amparo, A.M.
No. 07-9-12-SC, Sec. 17).

Command Responsibility in Amparo Proceedings

The President may be held responsible or accountable for extrajudicial killings and enforced
disappearances. The President, being the commander-in-chief of all armed forces, necessarily
possesses control over the military that qualifies him as a superior within the purview of the
command responsibility doctrine (In the Matter of the Petition for the Writ of Amparo and
Habeas Data in favour of Noriel H. Rodriguez; Noriel H. Rodriguez v. Gloria Macapagal-Arroyo,
et. al., G.R. No. 191805 & G.R. No. 193160, November 15, 2011).

Requisites for Determination of Liability under the Doctrine of Command Responsibility:

1. Existence of superior-subordinate relationship between the accused as superior and the
perpetrator of the crime as his subordinate;
2. Superior knew or had reason to know that the crime was about to be or had been
committed; and
3. Superior failed to take the necessary and reasonable measures to prevent criminal acts
or punish the perpetrators thereof (E.O. No. 226 [1995], Sec. 1).

Writ of Habeas Data

It is a remedy available to any person whose right to privacy in life, liberty, or security is
violated or threatened by an unlawful act or omission of a public official or employee, or of a
private individual or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party (Rule on the
Writ of Habeas Data, A.M. 08-1-16-SC, Sec. 1).

It is intended to insure the human right to privacy by requiring the respondent to produce the
necessary information to locate the missing person or such data about him that have been
gathered in secret to support the suspicion that he has been taken into custody in violation of
his constitutional rights or, worse, has been salvaged without benefit of lawful trial. The writ
may also be sought to secure destruction of such secret information gathered in violation of the
person’s right to privacy to justify summary action against him by the government or any
private entity (CRUZ, p. 639).

The writ, however, will not issue on the basis merely of an alleged unauthorized access to
information about a person. Availment of the writ requires the existence of a nexus between
the right to privacy on the one hand, and the right to life, liberty or security on the other. Thus,
the existence of a person’s right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of
the victim are indispensable before the privilege of the writ may be extended (Vivares v. St.
Theresa’s College, G.R. No. 202066, September 29, 2014).
Writ of Kalikasan
It is available to a natural or juridical person, entity authorized by law, people’s organization,
non-governmental organization, or any public interest group accredited by or registered with
any government agency, on behalf of persons whose constitutional right to a balanced and
healthful ecology is violated, or threatened with violation by an unlawful act or omission of a
public official or employee, or private individual or entity, involving environmental damage of
such magnitude as to prejudice the life, health or property of inhabitants in two or more cities
or provinces (Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, Rule 7, Secs. 3-4).

The petition for the issuance of a writ of kalikasan can be filed with the Supreme Court or with
any of the stations of the Court of Appeals. The petitioner shall be exempt from payment of
docket fees (Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, Rule 7).

SECTION 16: RIGHT TO SPEEDY DETERMINATION OF CASES

The constitutional right to a speedy disposition of cases is not limited to the accused in criminal
proceedings but extends to all parties in all cases, including civil and administrative cases, and
in all proceedings, including judicial and quasi-judicial hearings (Lopez, Jr. v. Ombudsman, G.R.
No. 140529, September 6, 2001).

Factors to Consider Whether Right to Speedy Trial is Violated

This concept of speedy trial is necessarily relative. A determination as to whether the right has
been violated involves the weighing of several factors:
1. Conduct of prosecution and accused;
2. Length of delay;
3. Efforts exerted by the defendant to assert his right;
4. Reason of delay; and
5. Prejudice an damage caused to the accused (People v. Tee, G.R. Nos. 140546-47,
January 20, 2003).

The Constitution does not say that the right to a speedy trial may be availed of only where the
prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals. Where once a person is prosecuted
criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the
manner in which it is authorized to be commenced (Flores v. People, G.R. No. L-25769,
December 10, 1974).

SECTION 17: SELF-INCRIMINATION

Incriminating Question
A question would have a tendency to incriminate if it tends to elicit, even just one, of the
elements of a criminal act (BERNAS Commentary, p. 148).
Scope
The right against self-incrimination applies only to testimonial compulsion and production of
documents, papers, and chattels in court except when books of account are to be examined in
the exercise of police power and the power of taxation. An accused may be compelled to be
photographed or measured, his garments removed, and his body may be examined (CRUZ, pp.
664-665).

Only natural persons are protected by the self-incrimination clause. It has no application to
judicial persons (BASECO v. PCGG, G.R. No. 75885, May 27, 1987).

Availability
1. Criminal proceedings;
2. All governmental proceedings;
3. Civil actions;
4. Administrative, if because of the nature of the penalty that may be imposed, the hearing
partakes of a criminal proceeding; and
5. Legislative investigations (CRUZ, p. 664).

While the matter referred to an administrative charge of unexplained wealth, with the Anti-
Graft Act authorizing the forfeiture of whatever property a public officer or employee may
acquire, manifestly out proportion to his salary and his other lawful income, there is clearly the
imposition of a penalty. The proceeding for forfeiture while administrative in character thus
possesses a criminal or penal aspect. Hence, the right against self-incrimination may be availed
of by the accused (Pascual v. Board of Medical Examiners, G.R. No. L-25018, May 26, 1969).

Who may Invoke the Right Against Self-Incrimination

1. The accused in a criminal case. He may refuse to take the witness stand altogether
(Chavez v. CA, G.R. No. L-29169, August 19, 1968); and
2. A witness in any suit, but only relating to particular questions asked of him in the
witness stand. The questions he can refuse to answer are those which tend to establish
his participation or guilt in a criminal act that has not yet been judicially proven (Rules of
Court, Rule 132, Sec. 3, par. [4]).

Right against Self-Incrimination of the Accused as Distinguished from an Ordinary Witness

Accused Ordinary Witness
He cannot be compelled to testify or produce He may be compelled to testify by subpoena,
evidence in the criminal case in which he is the having only the right to refuse to answer a
accused or one of the accused. He cannot be particular incriminating question at the the
compelled to do so even by subpoena or other time it is put to him.
process or order of the court. He cannot be
required for the prosecution, for co-accused
or even for himself.
If the witness is accused, he may totally refuse A witness who has been summoned to testify
to take the stand cannot decline to appear, nor can he decline
to be sworn as a witness, until a question
calling for an incriminating answer is asked. At
that time only can the claim of privilege may
be interposed.

Application
An order requiring the accused to write so that his handwriting may be validated with the
documentary evidence is covered by the constitutional proscription against self-incrimination
(Beltran v. Samson, GR. No. 32025, September 23, 1929).

Writing is something more than moving the body, or the hand, or the fingers; writing is not
purely a mechanical act, because it requires intelligence and attention (Id.).

Acts not Covered by the Prohibition against Self-Incrimination:

1. Morphine forced out of the mouth of the accused was received in evidence (US v. Ong
Siu Hong, G.R. No. L-12778, August 3, 1917);
2. An order by the judge for the witness to put on a pair of pants for size was allowed
(People v. Otadara, G.R. No. L-2154, April 26, 1950);
3. A woman accused of adultery may be compelled to be tested for pregnancy (Villaflor v.
Summers, G.R. No. 16444, September 8, 1920);
4. Taking of pictures of an accused even without the assistance of counsel, being a purely
mechanical act, is not a violation of his constitutional right against self-incrimination
(People v. Gallarde, G.R. No. 133025, February 17, 2000);
5. Replacement or removal of a party’s garments or shoes (People v. Otadara, supra);
6. Where the question asked relates to past criminality for which the witness can no longer
be prosecuted, as where the crime has already prescribed, or he has already been
acquitted or convicted (CRUZ, p. 665);
7. Where the accused has been previously granted immunity under a validly enacted
statute (Id.);
8. Where a person accused of acts of lasciviousness against a girl, who was consequently
infected with gonorrhoea, was stripped of his clothing and from his body was taken a
portion of a substance which revealed that he was suffering from gonorrhoea (U.S. v.
Tan Teng, G.R. No. 7018, September 7, 1912).

The prohibition contained in Section 5 of the Philippine Bill that a person shall not be
compelled to be a witness against himself, is simply a prohibition against legal process
to extract from the defendant’s own lips, against his will, an admission of guilt. Thus,
substance taken from the body without objection of the accused is not a testimony
against himself (Id.).
Derivative Evidence Rule
Once the primary source is shown to have been unlawfully obtained, any secondary or derivate
evidence derived from it is inadmissible (People v. Alicando, G.R. No. 117487, December 2,
1995).

Waiver of the Right against Self-Incrimination

The right can be waived either directly or by failure to invoke it, provided the waiver is certain
and unequivocal and intelligently, understandingly and willingly made (CRUZ, p. 669).

The witness may be cross-examined and asked incriminating questions on any matter he
testified on direct examination (Rules of Court, Rule 132, Sec. 3). Thus, it is his or her right not to
give an answer which will tend to subject him to a penalty for an offense, unless otherwise
provided by law.

Immunity Statutes:
1. Transactional Immunity Statute
The testimony of any person or whose possession of documents or other evidence
necessary or convenient to determine the truth in any investigation conducted is
immune from criminal prosecution for an offense to which such compelled testimony
relates (Galman v. Pamaran, G.R. No. L-71208-09, August 30, 1985).
2. Use-and-Derivate-Use Immunity Statute
This statute prohibits the use of the witness’ compelled testimony and its fruits in any
manner in connection with the criminal prosecution of the witness (Id.).

Purpose of Immunity Statutes

Immunity statutes seek a rational accommodation between the imperatives of an individual’s
constitutional right against self-incrimination and the legitimate governmental interest in
securing testimony (Kastigar v. US, 406 US 441 [1972]). To secure the person’s testimony
without exposing him to the risk of prosecution, the law recognizes that the witness can be
given immunity from prosecution (Quarto v. Ombudsman, G.R. No. 169042, October 5, 2011).

SECTION 18: NON-DETENTION BY REASON OF POLITICAL BELIEFS OR ASPIRATION

No man is to be interfered with because of his opinions, provided his avowal of them does not
disturb public order or established law (BERNAS Commentary, p. 565).

Involuntary Servitude
It is the condition where one is compelled by force, coercion, or imprisonment, and against his
will, to labor for another, whether he is paid or not (State v. West, 42 Minn. 147). It is
prohibited.

Exceptions to the Prohibition:

 1. As punishment for a crime whereof one has been duly convicted (CONST., Art. III, Sec.
18, par. [2]);
2. Service in defense of the State (CONST., Art. II, Sec. 4);
3. Naval enlistment (Robertson v. Baldwin, No. 334, January 25, 1897);
4. Posse comitatus – obligation of the individual to assist in the protection of the peace
and good order of his community (U.S. v. Pompeya, G.R. No. 10255, Aug. 6, 1915); and
5. Return to work order in industries affected with public interest (Kaisahan ng
Mangagawa sa Kahoy v. Gotamco Sawmills, G.R. No. L-1573, March 29, 1948).

Slavery
The civil relation in which one man has absolute power over the life, fortune, and liberty of
another (Black’s Law Dictionary, p. 1559).

Under the Revised Penal Code, the penalty of prision mayor and a fine not exceeding 10,000
pesos shall be imposed upon anyone who shall purchase, sell, kidnap, or detain a human being
for the purpose of enslaving him (Revised Penal Code, Art. 272).

Peonage
It is a condition of enforced servitude by which the servitor is restrained of his liberty and
compelled to labor in liquidation of some debt or obligation real or pretended, against his will
(Peonage Case, D.C. Ala. 123 F.671).

It is the restraint of the individual so he can be compelled to work for another, be it the
government or a private party, violates the constitutional guaranty, subject to certain
exceptions (CRUZ, p. 612).

SECTION 19: EXCESSIVE FINES AND CRUEL AND INHUMAN PUNISHMENTS

Fine, When Excessive

A fine is considered excessive when it is clearly shown that the nature of the violation
compared with the fine is disproportionate, or if it exceeds the utmost limit of the punishment
which the vindication of the law demands (U.S. v. Valera, G.R. No. L-8956, Feb. 4, 1914).

To violate constitutional guarantee, penalty must be flagrant and plainly oppressive,

disproportionate to the nature of the offense as to shock the senses of the community (People
v. Estoista, G.R. No. L-5793, August 27, 1953).

Where an unforeseeable accident adds to the suffering of the convict, a penalty otherwise valid
does not become cruel or unusual (Louisana v. Resweber, 329 U.S. 459).

The cruelty against which the Constitution protects a convicted man is cruelty inherent in the
method of punishment not the necessary suffering involved in any method employed to
extinguish life humanely (Echegaray v. Secretary of Justice, G.R. No. 132601, Jan. 19, 1999).
Prohibition of the Death Penalty and the use of Torture
R.A. No. 9346 prohibits the imposition of death penalty while R.A. 9745 prohibits the use of
torture as punishment to ensure that the human rights of all persons are respected at all times.

The Commission of Human Rights is especially entrusted with the enforcement of the
prohibition in Subsection 2, which to be really effective, must be provided with “teeth” through
the enactment of a law imposing the necessary sanctions upon those violating the rule ( CRUZ,
p. 765).

SECTION 20: NON-IMPRISONMENT FOR DEBT

No person shall be imprisoned for debt or non-payment of poll tax.

Coverage:
1. Debt – it is any civil obligation arising from a contract. It includes even debts obtained
through fraud since no distinction is made in the Constitution (Ganaway v. Quillen, G.R.
No. L-18619, February 20, 1922).

As long as the obligation to pay arises ex contractu, it is considered a private matter

between the creditor and the debtor and the punitive arm of the State cannot be
employed in a criminal action to enforce the former’s right (Id.).

While debtor cannot be imprisoned for failure to pay his debt, he can be validly
punished in a criminal action if he contracted his debt through fraud (Lozano v.
Martinez, G.R. No. L-63419, December 18, 1986).

2. Poll Tax – it is the specific sum levied upon any person belonging to a certain class
without regard to property or occupation (CRUZ, p. 610).

Tax is not a debt to the State but an obligation that arises from law. Failure to pay the
same can be validly punished with imprisonment. The only exception is the payment of
a poll tax (CRUZ, p. 610)

B.P. Blg. 22 (Bouncing Checks Law)

The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a
worthless check or a check that is dishonoured upon its presentation for payment. It is not the
non-payment of an obligation which the law punishes. The law is not intended or designed to
coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal
sanctions, the making of worthless checks and putting them into circulation. Because of its
deleterious effects on the public interest, the practice is proscribed by the law. The law
punishes the act not as an offense against property, but an offense against public order (Lozano
v. Martinez, G.R. No. L-63419, L-66839-42, 71654, 74524-25, 75122-49, 75812-13, 725765-67,
75789, December 18, 1986).
SECTION 21: DOUBLE JEOPARDY

When an accused has been acquitted, or convicted, or the case against him is dismissed or
otherwise terminated without his express consent, by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for
the offense charged, or for any attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in the offense charged in the
former complaint or information (Rules of Court, Rule 117, Sec. 7).

Ratio
In criminal cases, the full power of the State is ranged against the accused; If there is no limit to
attempts to prosecute the accused for the same offense after he has been acquitted, the
infinite power and capacity of the State for a sustained and repeated litigation would eventually
overwhelm the accused in terms of resources, stamina, and the will to fight (Lejano v. People,
G.R. No. 176389, January 18, 2011).

Requisites for Double Jeopardy to Apply

A previous case must be filed and must contain the following:
1. A valid complaint or information;
2. Filed before a competent court;
3. To which defendant has pleaded; and
4. Defendant was previously acquitted or convicted or the case dismissed or otherwise
terminated without his express consent (People v. Ylagan, G.R. No. 38443, November
25, 1933).

Then, a subsequent complaint or information was filed containing a crime that is:
1. The same offense;
2. An attempt to commit the same offense;
3. A frustration of the said offense;
4. Any offense which necessarily includes the first offense charged; and
5. Any offense which is necessarily included in the first offense charged.

Hence, the filing of the subsequent information shall now constitute double jeopardy against
the accused.

Double Jeopardy vs. Legal Jeopardy

A legal jeopardy exists when a person is placed at a real risk of conviction and deprivation of
life, liberty for some act or offense.

Thus, there is double jeopardy when the same person is exposed to a second legal jeopardy on
top of the first legal jeopardy for the same act or offense.
That is, the following requisites concur:
1. A first jeopardy must have attached prior to the second;
2. The first jeopardy must have been validly terminated; and
3. A second jeopardy must be for the same offense as that in the first ( People v. Tampal,
G.R. No. 102485, May 22, 1995).

The mere filing of two informations charging the same offense is not an appropriate basis for
the invocation of double jeopardy when the first jeopardy has not yet set in (or attached) by a
previous conviction, acquittal, or termination of the case without the express consent of the
accused (People v. Pineda, G.R. No. L-44205, February 16, 1993).

There having been no standing plea at the time the court a quo rendered its judgment of
acquittal, there can be no double jeopardy with respect to the appeal (People v. Balisacan, G.R.
No. L-26376, August 31, 1966).

Dismissing a criminal case upon motion of the accused after the presentation of evidence by
the prosecution, such appeal, if allowed, would place the accused in double jeopardy (People v.
City Court of Silay, G.R. No. L-43790, December 9, 1976).

Two Types of Double Jeopardy:

1. Double jeopardy of punishment for the same offense; and
2. Double jeopardy of punishment for the same act (People v. Relova, G.R. No. L-45129,
March 6, 1987).

Crimes Covered:
1. Same offense or attempt to commit or frustration thereof or for any offense which
necessarily includes or is necessarily included in the offense charge in the original
complaint or information; and
2. When an act is punished by law and an ordinance, conviction or acquittal under either
shall bar another prosecution for the same act.

Where the offenses charged are penalized either by different sections of the same statute or by
different statutes, the important inquiry relates to the IDENTITY OF OFFENSES CHARGED, the
constitutional protection against double jeopardy is available only where an identity is shown to
exist between the earlier and the subsequent offenses charged (Id.).

Where one is punished by law and an ordinance, the inquiry is on the identity of the acts (Id.).

Double Jeopardy in Prosecution under Article 365 of the Revised Penal Code
Grave and less grave felonies are not “complexed” under Article 365 within the meaning of
Article 48. These acts are merely those which results from the criminal imprudence or
negligence with the law seeks to punish.
For example, in the prosecution of reckless imprudence resulting to double homicide, the “two
homicides” are not the acts being punished. Thus, in the proper application of Article 365, there
can be no issue of double jeopardy.

In the case of Ivler v. San Pedro however, the prosecution erred when it sought to prosecute
the accused under 2 separate informations, erroneously applying Article 48 and separating the
“grave and less grave” resulting offense from the “light” resulting offense. Ultimately however,
the People was prosecuting the accused for the same criminal imprudence. Hence, the second
information was barred by double jeopardy once the accused pled guilty to the first information
(Ivler v. San Pedro, G.R. No. 172716, November 17, 2010)

Procedural Concepts and their Effect on the Rule of Double Jeopardy:

1. Dismissal of Criminal Case and Double Jeopardy
General Rule: Dismissal with the express consent or upon motion of the accused does
not result in double jeopardy. This is because such consent is considered as a valid
waiver of his right against double jeopardy.
Exceptions:
a. Dismissal based on insufficiency of evidence (demurrer to evidence); or
b. Denial of the right to speedy trial (Philippine Savings Bank v. Bermoy, G.R. No.
151912, September 26, 2005).

2. Motion for Reconsideration and Double Jeopardy

General Rule: To reconsider a judgment of acquittal places the accused twice in
jeopardy of being punished for the crime of which he has already been absolved (Lejano
v. People, G.R. No. 176389, January 18, 2011).
Exceptions:
a. When the court that absolved the accused gravely abused its discretion,
resulting in loss of jurisdiction; or
b. When a mistrial has occurred. In any of such cases, the State may assail the
decision by special civil action of certiorari under Rule 65 (Id.).

3. Appeal and Double Jeopardy

General Rule: An acquittal is final and unappealable on the ground of double jeopardy,
whether it happens in the trial court level or before the Court of Appeals. Only when
there is a finding of a sham trial that the doctrine of double jeopardy is inapplicable
because people, as represented by the prosecution, were denied due process (People v.
Tria-Tirona, G.R. No. 130106, July 15, 2006).

A judgment of acquittal becomes final immediately after promulgation and cannot be

recalled for correction or amendment because of the doctrine that nobody may be put
twice in jeopardy for the same offense (Kepner v. U.S., 195 U.S. 100).
 The rule prohibiting appeal in judgments of acquittal in criminal cases should not be
circumvented in the guise of a petition for certiorari (People v. Asis, G.R. No. 173089,
August 25, 2010).

Exceptions: An appeal from order of dismissal shall not constitute double jeopardy if:
a. Dismissal is made upon motion, or with the express consent, of the defendant;
b. Dismissal is not an acquittal or based upon consideration of the evidence or on
the merits of the case; or
c. The question to be passed upon by the appellate court is purely legal so that
should the dismissal be found incorrect, the case would have to be remanded to
the court of origin for further proceedings, to determine the guilt or innocence
of the defendant (People v. City of Manila, G.R. No. L-36528, September 24,
1987).

4. Doctrine of Supervening Event

It allows the prosecution for another offense if subsequent development changes the
character of the first indictment under which he may have already been charged or
convicted (People v. Villarama, G.R. No. 99287, June 23, 1992).

Conviction of accused shall not bar another prosecution for an offense which
necessarily includes the offense originally charged when:
a. Graver offense developed due to supervening facts arising from the same act or
omission;
b. Facts constituting the graver offense arose or discovered only after the filing of
the former complaint or information; and
c. Plea of guilty to a lesser offense was made without the consent of prosecutor or
offended party (Rules of Court, Rule 117, Sec. 7).

An offense may be said to necessarily include or to be necessarily included in another

offense, for the purpose of determining the existence of double jeopardy, when both
offenses were in existence during the pendency of the first prosecution, for otherwise, if
the second offense was then inexistent, no jeopardy could attach therefor during the
first prosecution, and consequently a subsequent charge for the same cannot constitute
second jeopardy. By the very nature of things there can be no double jeopardy under
such circumstance, and our Rules of Court cannot be construed to recognize the
existence of a condition where such condition in reality does not exist (Melo v. People,
G.R. No. L-3580, March 22, 1950).

5. Inseparable Offense
Where one offense is inseparable from another and proceeds from the same act, they
cannot be the subject of separate prosecutions (CRUZ, p. 784).
 However, it is possible for one act to give rise to several crimes: separate prosecutions
for each crime may be filed provided the elements of the several crimes are not
identical (Id.).

Reopening of the Kuratong Baleleng Cases

The new rule (Sec. 8, Rule 117) has fixed a time-bar of 1 year to 2 years for the revival of
criminal cases provisionally dismissed with the express consent of the accused and with a prior
notice to the offended party.

The time-bar cannot be applied retroactively in 1999 when the cases were dismissed for to do
so, the State shall effectively have less than two years to reopen the case because the rule only
took effect in December 2000. This would prevent absurd results and injustice to the State
(People, et.al. v. Panfilo Lacson, G.R. No. 149453, April 1, 2003).

SECTION 22: EX POST FACTO LAW AND BILL OF ATTAINDER

Ex Post Facto Law

One that would make a previous act criminal although it was not so at the time it was
committed (CRUZ, p. 266).

A law can never be considered ex post facto as long as it operates prospectively since its
strictures would cover only offenses committed after and not before its enactment (Id., p. 269).

Kinds of Ex Post Facto Laws:

1. Law making an act criminal which was not so before its passage;
2. Law aggravating the penalty for a crime committed before its passage;
3. Law inflicting a greater or more severe penalty;
4. Law altering the legal rules of evidence and allowing the receipt of less or different
testimony than what the law required at the time of commission, in order to convict
accused;
5. Law assuming to regulate civil rights and remedies only, in effect imposes a penalty of
deprivation of right for something which when done was lawful; and
6. Law depriving accused of some lawful protection to which he had been entitled, such as
protection of a former conviction or acquittal, or a proclamation of amnesty (Salvador v.
Mapa, Jr., G.R. No. 135080, March 6, 1987).

Characteristics:
1. It refers to criminal matters (Republic v. Fernandez, G.R. No. 9141, September 25, 1956);
2. Retroactive (Bayot v. Sandiganbayan, G.R. No. L-54645-76, December 18, 1986); and
3. Prejudicial to the accused (Rodriguez v. Sandiganbayan, G.R. No. 141710, March 3,
2004).

Application
Prohibition applies only to criminal legislation which affects the substantial rights of the
accused (U.S. v. Jueves, G.R. No. L-6992, August 30, 1912). It also applies to criminal procedural
law prejudicial to the accused (U.S. v. Gomez, G.R. No. L-4630, December 19, 1908). It is
improper to apply the prohibition to an executive proclamation suspending the privilege of the
writ of habeas corpus (Montenegro v. Castaneda, G.R. No. L-4221, August 30, 1952).

Even if the law be penal and retroactive, it will still not be ex post facto if it does not operate to
the disadvantage of the accused (CRUZ, p. 595).

Bill of Attainder
It is a legislative act that inflicts punishment without trial (Cummings v. Missouri, 4 Wall 277).

It substitutes legislative fiat for a judicial determination of guild. Thus, it is only when a statute
applies either to named individuals or to easily ascertainable members of a group in such a way
as to inflict punishment on them without judicial trial that it becomes a bill of attainder (CRUZ,
p. 598).

ARTICLE IV: CITIZENSHIP

Citizenship
It is the membership in a political community which is personal and more or less permanent in
character. It denotes possession within that particular political community of full civil and
political rights subject to special disqualifications such as minority. Reciprocally, it imposes the
duty of allegiance to the political community (BERNAS Commentary, p. 629).

The core of citizenship is the capacity to enjoy political rights such as, the right to participate in
the government principally through the right to vote, the right to hold public office, and the
right to petition the government for redress of grievances (CRUZ, p. 796).

Modes of Acquiring Citizenship:

1. By Birth
a. Jus sanguinis – the acquisition of citizenship on the basis of blood relationship
b. Jus soli – the acquisition of citizenship on the basis of place of birth
2. By Naturalization – it is a legal act of adopting an alien and clothing him with the
privilege of a native-born citizen (BERNAS Commentary, p. 629)
3. By Marriage of a woman to a foreigner whose laws automatically make the wife a citizen
of his country (C.A. 63, Sec. 1, par. [7]).

Note: The principle of jus sanguinis is applied in the 1987 Constitution under Art. IV, Sec. 2, par.
1, which declares as Filipino citizens “Those whose fathers or mothers are citizens of the
Philippines” (BERNAS Reviewer, p. 183).
SECTION 1: CITIZENS OF THE PHILIPPINES

1. Those who are citizens of the Philippines at time of the adoption of this Constitution;
a. Those who are citizens under the Treaty of Paris;
b. Those declared as Filipino citizens by judicial pronouncement before the
overruling of Roa doctrine or the application of jus soli principle (Tio Tiam v.
Republic, G.R. No. 9602, April 25, 1957);

Note: The decision in Tio Tiam case, which reiterates the abandonment of the
Roa Doctrine or jus soli principle by the Court in Tan Chong v. Secretary of Labor,
G.R. Nos. 47616 and 47623, September 16, 1847, provides that the decision in
the latter case is “not intended or designed to deprive, as it cannot divest, of
their Filipino citizenship, those who had been declared to be Filipino citizens, or
upon whom such citizenship had been conferred, by the courts because of the
doctrine of res judicata.”

c. Those who are naturalized in accordance with law (Act No. 2827).

Note: Act No. 2827 as amended by Act No. 3448 was repealed by CA no. 473 or
the Revised Naturalization Law.

d. Those who are citizens under the 1935 Constitution;

Note: The 1935 Constitution, during which regime FPJ had seen first light,
confers citizenship to all persons whose fathers are Filipino citizens regardless of
whether such children are legitimate or illegitimate (Tecson v. COMELEC, G.R.
No. 161434, March 3, 2004).

e. Those who are citizens under the 1973 Constitution.

2. Those whose fathers or mothers are citizens of the Philippines;

3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship
upon attaining the age of majority;

Time to elect: within three (3) years after age of majority.

Applicable not only to those who elect Philippine citizenship after February 2, 1987 but
also to those who, having been born of Filipino mother, elected citizenship before that
date (Co v. House of Representatives, G.R. Nos. 92191-92, July 30, 1991).

4. Those naturalized in accordance with law (CONST., Art. IV, Sec. 1).
Caram Rule
Under the 1935 Constitution, those born in the Philippines of foreign parent, who before the
adoption of the Constitution had been elected to public office in the Philippines, are considered
Filipino citizens (Chiongbian v. de Leon, G.R. No. L-2007, January 31, 1949).

SECTION 2: NATURAL BORN-CITIZENS

1. Citizens of the Philippines from birth without having to perform any act to acquire or
perfect their Philippine citizenship; or
2. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship
upon reaching the age of majority (CONST., Art. IV, Sec. 2).

Election of Philippine Citizenship of Those Born with Filipino Mothers

Under Commonwealth Act No. 625, the following are the requisites for a valid election of
Philippine Citizenship:
1. A statement of election under oath;
2. An oath of allegiance to the Constitution and Government of the Philippines; and
3. Registration of the statement of election and of the oath with the nearest civil registry
(Cabiling Ma v. Fernandez, G.R. No. 183133, July 26, 2010).

However, as to the third requirement, it is not the registration of the act of election, although a
valid requirement under Commonwealth Act No. 625, that will confer Philippine citizenship on
the petitioners. It is only a means of confirming the fact that citizenship has been claimed.
Hence, the failure to register the election in the civil registry should not defeat the election and
resultingly negate the permanent fact that they have a Filipino mother and avoid altogether the
election. The lacking requirements may still be complied with subject to the imposition of
appropriate administrative penalties, if any (Cabiling Ma v. Fernandez, id.).

Foundlings as Natural-Born Citizens

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935
Constitution’s enumeration is silent as to foundlings, there is no restrictive language which
would definitely exclude foundlings either. The deliberations of the 1934 Constitutional
Convention show that the framers intended foundlings to be covered by the enumeration.
Moreover, treaties and international law conventions, which are generally accepted principles
of international law, support the presumption of natural-born citizenship of foundlings (Poe-
Llamanzares v. COMELEC, G.R. Nos. 221697, 221698-700, March 8, 2016).

Natural-Born Citizens and Public Office

Only natural-born citizens may occupy the following offices:
1. Elective Office:
a. President (CONST., Art. VII, Sec. 2);
b. Vice-President (CONST., Art. VII, Sec. 3);
c. Senators (CONST., Art. VI, Sec. 3); and
d. Members of the House of Representatives (CONST., Art. VI, Sec. 6).
 2. Appointive Office:
a. Members of the Supreme Court or any lower collegiate court (CONST., Art. VIII,
Sec. 7);
b. Chairman and Commissioners of the Constitutional Commissions (CONST., Art.
IX-B, Sec. 1, par. [1], Art. IX-C, Sec. 1, par. [1], Art. IX-D, Sec. 1, par. [1]);
c. Ombudsman and Deputy Ombudsman (CONST., Art. XI, Sec. 8);
d. Members of the governing board of the Monetary Board (CONST., Art. XII, Sec.
20); and
e. Chairman and Members of the Commission on Human Rights (CONST., Art. XIII,
Sec. 17, par. [2]).

Naturalization
It is the process by which a foreigner acquires, voluntarily or by operation of law, the citizenship
of another State (CRUZ, p. 8020.

It is the legal act of adopting an alien and clothing him with the rights that belong to a natural
born citizen (BERNAS Commentary, p. 636).

Modes of Naturalization:
1. Direct naturalization effected by:
a. Individual proceedings, usually judicial, under general naturalization laws;
b. Special act of the legislature, often in favour of distinguished foreigners who
have rendered some notable service to the local state;
c. Collective change of nationality as a result of cession or subjugation;
d. Adoption of orphan minors as nationals of the State where they are born (CRUZ,
p. 802); and
e. Administrative proceedings (RA 9139).

2. Derivative naturalization conferred on:

a. Wife of the naturalized husband;
b. Minor children of a naturalized parent; and
c. Alien woman upon marriage to a national (CRUZ, International Law (2003), p.
183, hereinafter CRUZ IntLaw).

Doctrine of Indelible Allegiance

An individual may be compelled by municipal law to retain his original nationality even if he has
already renounced or forfeited it under the laws of the second state whose nationality he has
acquired (NACHURA Reviewer, p. 288).

Example: C.A. No. 63 which provides that one of the modes of losing Philippine citizenship is by
subscribing to an oath of allegiance to support the Constitution of the laws of a foreign country,
but under the same law, a Filipino may not divest himself of Philippine citizenship in this
manner when the Philippines is at war with any country (Id.).
Qualifications for Naturalization (C.A. 473, Revised Naturalization Law, Secs. 2 and 3):
1. Not less than eighteen (18) years of age on the date of hearing of petition (as amended
by RA 6809);
2. Resided in the Philippines for not less than ten (10) years; may be reduced to five (5)
years if:
a. Honorably held office in the Philippines;
b. Established new industry or introduced a useful invention;
c. Married to a Filipino woman;
d. Engaged as teacher in Philippine public or private school not established for
exclusive instruction to a particular nationality or race, or in any branches of
education or industry for a period of not less than two (2) years; and
e. Born in the Philippines.
3. Character:
a. Good moral character;
b. Believes in the Constitution; and
c. Conducted himself in an irreproachable conduct during his stay in the
Philippines.
4. Owns real estate in the Philippines not less than P5,000 in value; or has some lucrative
trade, profession, or lawful occupation that can support himself and his family;

Note: While to be a “student” is a “lawful occupation,” it is not a “lucrative” one and

therefore comes short of the legal requirement (Lim v. Republic, G.R. No. L-3920,
November 20, 1951).

5. Speaks and writes Filipino or English and any principal Philippine dialect (as amended by
Sec. 6, Art. XIV);
6. Has enrolled minor children in any public or private school recognized by the
government where Philippine history, government, and civics are taught as part of the
curriculum, during the entire period of residence prior to hearing of petition.

All children should have been enrolled; failure to enrol even one of them will result in a
denial of the petition (Tan Hi v. Republic, G.R. No. L-3354, January 25, 1951).

Note: Enrolment is sufficient; completion of primary and secondary education is not

demanded (Tan v. Republic, G.R. No. L-1551, October 31, 1949).

Disqualifications for Naturalization:

1. Opposed to organized government or affiliated with any association or group of persons
which uphold and teach doctrines opposing all organized governments;
2. Defending or teaching necessity or propriety of violence, personal assault or
assassination for the success or predominance of their ideas;
3. Polygamists or believers in polygamy;
4. Suffering from mental alienation or incurable contagious disease;
5. Convicted of crime involving moral turpitude;
 6. Who during residence in the Philippines have not mingled socially with Filipinos, or not
evinced sincere desire to learn and embrace customs, traditions and ideals of Filipinos;
7. Citizens or subjects of nations with whom the Philippines is at war during the period of
such war; or
8. Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to
become naturalized citizens or subjects thereof (no reciprocity) (C.A. 473, Sec. 4).

Procedure for Naturalization:

1. Declaration of Intention – this must be filed with the Office of the Solicitor General one
(1) year before filing the application for naturalization. Such declaration shall set forth
the applicant’s:
a. Name;
b. Age;
c. Occupation;
d. Personal description;
e. Place of birth;
f. Last foreign residence and allegiance;
g. Date of arrival;
h. Name of aircraft or vessel, if any; and
i. Place of residence in the Philippines at the time of making the declaration (C.A.
No. 473, Sec. 5).

Purpose: To enable the government to make initial investigations into his circumstances
to determine his fitness for citizenship, and to test his sincerity (CRUZ, p. 803).

Exceptions:
a. Those born in the Philippines and received primary and secondary education in a
Philippine school;
b. Those who have resided in the Philippines for thirty years; or
c. The widow or children of the applicant who died before his application was
granted (C.A. 473, Sec. 6).

2. Filing of the Petition for Naturalization with the Court

3. Publication of the Application – Upon the receipt of the petition, the clerk of court has
the duty of publishing it in the Official Gazette and in one (1) newspaper of general
circulation in the province or city once a week for three (3) consecutive weeks and to
post notices thereof and of the hearing.

Note: Non-observance of the publication requirement is a jurisdictional defect which

will make any proceedings thereafter null and void.

4. Hearing – At least six (6) months after the last publication, but in no case within thirty
(30) days before any election, the hearing shall begin, at which the petitioner shall
 establish all the allegations of his petition, to be corroborated by at least two (2)
credible witnesses.
5. Grant or Denial of Petition – If the petitioner is able to prove that he has all the
qualifications and none of the disqualifications, the petition shall be granted and it will
become final after thirty (30) days from notice. But the order shall only become
executor after the period of two (2) years during which the petitioner shall be under
probation;
6. Application to take his Oath of Allegiance – After probation, applicant may apply for
administration of oath of citizenship in accordance with the decision rendered. His
motion shall be granted provided:
a. Petitioner has not left the country;
b. Devoted himself to a lawful calling;
c. Has not convicted of any violation of law; and
d. Has not committed any act in contravention of any government announced
policies.

7. Administration of oath of citizenship, by virtue of which the petitioner shall embrace

Philippine citizenship and renounce allegiance to any foreign State.

Effects of Naturalization:
1. On the wife – it vests citizenship on the wife who might herself be lawfully naturalized;
she need not prove her qualifications but only that she is not disqualified (Moy Ya Lim
Yao v. Comm. Of Immigration, G.R. No. L-21289, October 4, 1971).
2. On the minor children
a. If born in the Philippines – automatically becomes a citizen;
b. If born abroad before the naturalization of the father –
i. Residing in RP at the time of naturalization – automatically becomes a
citizen;
ii. If not residing in RP at the time of naturalization – considered citizen only
during minority, unless begins to reside permanently in the Philippines;
c. If born outside the Philippines – after parents’ naturalization, considered
Filipino, provided registered as such before any Philippine consulate within 1
year after attaining majority age and takes oath of allegiance (SUAREZ, p. 363).

Grounds for Denaturalization:

1. Naturalization certificate was obtained fraudulently or illegally;
2. If, within five (5) years, he returns to his native country or travels to some foreign
country AND establishes residence therein;

The 1-year stay in native country or 2-yar stay in a foreign country shall be prima facie
evidence of intent to take up residence in the said country.

3. Naturalization obtained through invalid declaration of intention;

 4. Minor children failed to graduate through the fault of the parents either by neglecting
support or by transferring them to another school; and
5. Allowing himself to be used as a dummy (Id., 363-364).

Effects of Denaturalization on the wife and children:

1. If ground affects intrinsic validity of proceedings, denaturalization shall divest wife and
children of their derivative naturalization; and
2. If the ground is personal, the wife and children shall retain citizenship.

Administrative Naturalization
R.A. No. 9139 otherwise known as the Administrative Naturalization Law of 2000 governs the
acquisition of Philippine citizenship for certain aliens by administrative naturalization. Any
person desiring to acquire Philippine citizenship under this Act shall file an application with the
Special Committee on Naturalization.

Qualifications for administrative naturalization under RA 9139:

Any person desiring to avail of the benefits of RA 9139 must meet the following qualifications:
1. The applicant must be born in the Philippines and residing therein since birth;
2. The applicant must not be less than eighteen (18) years of age, at the time of filing of
his/her petition;
3. The applicant must be of good moral character and believes in the underlying principles
of the Constitution, and must have conducted himself/herself in a proper and
irreproachable manner during his/her entire period of residence in the Philippines in his
relation with the duly constituted government as well as with the community in which
he/she is living;
4. The applicant must have received his/her primary and secondary education in any public
or private educational institution duly recognized by the Department of Education
where Philippine history, government and civics are taught and prescribed as part of the
school curriculum and where enrolment is not limited to any race or nationality:
Provided, that should he/she have minor children of school age, he/she must have
enrolled them in similar schools;
5. The applicant must have a known trade, business, profession, or lawful occupation, from
which he/she derives income sufficient for his/her support and if he/she is married
and/or has dependents, also that of his/her family: Provided, however, that this shall
not apply to applicants who are college degree holders but are unable to practice their
profession because they are disqualified to do so by reason of their citizenship;
6. The applicant must be able to read, write, and speak Filipino or any of the dialects of the
Philippines; and
7. The applicant must have mingled with the Filipinos and evinced the desire to learn and
embrace the customs, traditions, and ideals of the Filipino people (RA No. 9139, Sec. 3).

Disqualifications under Administrative Naturalization Law

The following are not qualified to be naturalized as Filipino citizens under this Act:
 1. Those opposed to organized government or affiliated with any association or group of
persons which uphold and teach doctrines opposing all organized governments;
2. Those defending or teaching necessity or propriety of violence, personal assault or
assassination for the success or predominance of their ideas;
3. Polygamists or believers in the practice of polygamy;
4. Those convicted of crime involving moral turpitude;
5. Those suffering from mental alienation or incurable contagious diseases;
6. Those who, during the period of their residence in the Philippines, have not mingled
socially with Filipinos, or who have not evinced a sincere desire to learn and embrace
customs, traditions and ideals of Filipinos; and
7. Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be
naturalized citizens or subjects thereof (RA 9139, Sec. 4)

Application of CA 473 and RA 9139

The qualifications and disqualifications of an application for naturalization by judicial act are set
forth in CA No. 473. On the other hand, RA No. 9139 provides for the qualifications and
disqualifications of an applicant for naturalization by administrative act (Edison So v. Republic,
G.R. No. 170603, January 29, 2007).

SECTIONS 3 AND 4: LOSS AND ACQUISITION OF CITIZENSHIP

Philippine citizenship may be lost or reacquired in the manner provided by law (CONST., Art. IV,
Sec. 3).

Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or
omission they are deemed, under the law to have renounced it (CONST., Art. IV, Sec. 4).

Loss of Philippine Citizenship:

1. By naturalization in foreign countries;
2. By express renunciation of citizenship (expatriation);

Note: The mere application or possession of an alien certificate of registration does not
amount to renunciation (Mercado v. Manzano, G.R. No. 135083, May 26, 1999).

Express renunciation was held to mean a renunciation that is made known distinctly and
explicitly and not left to interference or implication (Yu v. Defensor-Santiago, G.R. No.
83882, January 24, 1989).

3. By subscribing to an oath of allegiance to support the Constitution or laws of a foreign

country upon attaining twenty-one years of age or more;

Note: A Filipino citizen may not divest himself of Philippine citizenship while the
Philippines is at war with any country.
 4. By rendering service to, or accepting commission in the armed forces of a foreign
country;

Exception: When rendering service is done with the consent of the Republic of the
Philippines, if either of the following circumstances is present:
a. The Philippines has a defensive and/or offensive pact of alliance with the said
foreign country; or
b. The said foreign country maintains armed forces on Philippine territory with the
consent of the Philippines.

5. By cancellation of the certificate of naturalization;

6. By having been declared by competent authority a deserter of the Philippine armed
forces in time of war, unless subsequently, a plenary pardon or amnesty has been
granted; or
7. In case of a woman, upon her marriage to a foreigner, if by virtue of the laws in force of
her husband’s country, she acquires his nationality (C.A. 63, Sec. 1).

Note: Philippine citizenship is not a cheap commodity that can be easily recovered after
its renunciation. It may be restored only after the returning renegade makes a formal
act of re-dedication to the country he has abjured and he solemnly affirms once again
his total and exclusive loyalty to the Republic of the Philippines. This may not be
accomplished by mere election to public office (Labo, Jr. v. COMELEC, G.R. No. 86564,
August 1, 1989).

Collateral Attack on Citizenship is Prohibited

Under Philippine law, an attack on a person’s citizenship may only be done through a direct
action for its nullity (Vilando v. HRET, et.al., G.R. Nos. 192147 & 192149, August 23, 2011).

The Supreme Court has constantly ruled that an attack on a person’s citizenship may only be
done through a direct action for its nullity. A disbarment case is definitely not the proper venue
to attack someone’s citizenship (Vasquez v. Atty. Kho, A.C. 9492, July 11, 2016).

Effect of an Application for Alien Certificate of Registration

An application for, and the holding of, an alien certificate of registration is not an act
constituting renunciation of Philippine citizenship. For renunciation to effectively result in loss
of citizenship, the same must be express (Id.).

Res Judicata in Citizenship Cases

General Rule: Res judicata does not set in citizenship cases (Valles v. COMELEC, G.R. No.
137000, August 9, 2000).

Exceptions:
1. A person’s citizenship is raised as a material issue in the controversy where he is a party;
 2. The Solicitor General or his authorized representative took active part in the resolution
of the issue of citizenship; and
3. Finding of his citizenship is affirmed by the Supreme Court (Fortuno v. COMELEC, G.R.
No. 159493, January 18, 2005).

Reacquisition of Citizenship:
1. By naturalization;
2. By repatriation; or

R.A. No. 8171 is an act providing for the repatriation of:

a. Filipino women who have lost their Philippine citizenship by marriage to aliens;
and
b. Natural-born Filipinos who have lost their Philippine citizenship on account of
political or economic necessity (Sec. 1).

R.A. No. 9225 also known as the “Citizenship Retention and Re-Acquisition Act of 2003,”
approved on August 29, 2003, provides that, upon taking the oath of allegiance to the
Republic:
a. Natural-born citizens of the Philippines who have lost their Philippine citizenship
by reason of their naturalization as citizens of a foreign country are deemed to
have re-acquired Philippine citizenship; and
b. Natural-born citizens of the Philippines who, after the effectivity of the said R.A.,
become citizens of a foreign country shall retain their Philippine citizenship (Sec.
3).

Repatriation shall be effected by taking the necessary oath of allegiance to the Republic
of the Philippines and registration in the proper civil registry and in the Bureau of
Immigration. The Bureau of Immigration shall thereupon cancel the pertinent certificate
of registration and issue the certificate of identification as Filipino citizen to the
repatriated citizen (Sec. 2).

Repatriation results in the recovery of the original nationality. This means that a
naturalized Filipino who lost his citizenship will be restored to his prior status as a
naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen
before he lost his Philippine citizenship, he will be restored to his former status as a
natural-born Filipino (Bengzon v. HRET and Cruz, G.R. No. 142840, May 7, 2001).

It is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the
repatriation granted under said law is to be deemed to have retroacted to the date of
his application therefor (Frivaldo v. COMELEC, G.R. No. 120295, June 28, 1996).

3. By direct act of Congress (C.A. 63, Sec. 2).

Derivative Citizenship
The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of
age, of those who re-acquire Philippine citizenship upon effectivity of R.A. No. 9225 shall be
deemed citizens of the Philippines (Id., Sec. 4).

Effect of Use of Foreign Passport after Renunciation of Foreign Citizenship under R.A. 9225
The use of foreign passport after renouncing one’s foreign citizenship is a positive and voluntary
act of representation as to one’s nationality and citizenship; it does not divest Filipino
citizenship regained by repatriation but recants the Oath of Renunciation required to qualify
one to run for an elective position (Maquiling v. COMELEC, G.R. No. 195649, April 16, 2013.

SECTION 5: DUAL ALLEGIANCE

Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law
(CONST., Art. IV, Sec. 5).

Dual Citizenship
Allows natural-born Filipinos to enjoy the rights they used to enjoy before they acquired a new
citizenship abroad; also available to natural-born Filipinos who are naturalized after the
effectivity of the law in 2003 and are allowed to retain their Filipino citizenship (CRUZ, p. 826).

Enjoyment of the status of a dual citizen will depend on the willingness of the foreign country
to share the allegiance of the naturalized Filipino with the Philippines. If the adopted country
demands total allegiance, then the latter must make a critical choice between the country he
has deserted and the greener pastures of his adopted land (Id.).

Dual Citizenship and Public Office

If a dual citizen intends to run for public office or accept an appointive public office, he shall
cease to be a dual citizen (R.A. No. 9225, Sec. 5).

Only those who are exclusively Filipinos are qualified to run for public office. If we allow dual
citizens who wish to run for public office to renounce their foreign citizenship and afterwards
continue using their foreign passports, we are creating a special privilege for these dual citizens,
thereby effectively junking the prohibition in Section 40(d) of the Local Government Code
(Maquiling v. COMELEC, G.R. No. 195649, July 2, 2013).

The Supreme Court stressed that the constitutional policy is not against dual citizenship but
dual loyalty, such as that often manifested by naturalized Filipinos who, while professing their
allegiance to their adoptive land, retain their allegiance to their native land and even involve
themselves in its political affairs (Mercado v. Manzano, G.R. No. 135083, May 26, 1999).

R.A. No. 9225 (Citizenship Retention and Re-Acquisition Act of 2003) does not require that
“duals” actually establish residence and physically stay in the Philippines first before they can
exercise the right to vote.
DUAL CITIZENSHIP AND DUAL ALLEGIANCE DISTINGUISHED
Dual Citizenship Dual Allegiance
Definition
Arises when, as a result of concurrent Refers to a situation where a person
application of the different laws of two or simultaneously owes, by some positive act,
more states, a person is simultaneously a loyalty to two or more states.
citizen of said states.
How Acquired
Involuntarily Result of an individual’s volition and is
prohibited by the Constitution
(Mercado v. Manzano, id.)

Requirements for Eligibility of Dual Citizens from Birth who Desire to Run for Public Office

It should suffice if, upon filing of their certificates of candidacy, they elect Philippine citizenship
to terminate their status as persons with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states. Thus, like any other natural-
born Filipino, it is enough for a person with dual citizenship who seeks public office to file his
certificate of candidacy and swear to the oath of allegiance contained therein (Cordora v.
COMELEC, G.R. No. 176947, February 19, 2009).

The twin requirements of swearing to an Oath of Allegiance and executing a Renunciation of

Foreign Citizenship does not apply to dual citizens from birth (Cordora v. COMELEC, id.), but
only to those who are dual citizens from application to another citizenship.