NOTES TO CONSTITUTION 2

BILL OF RIGHTS

A. Government Power vs. Individual Freedom

1. Among the changes brought about by the Period of Enlightenment was the shift of power from the
crown to the individual. The long reign of monarchs came to an end, and the rule of the people became
the standard. The government, while still the repository of power, was limited to its role as the protector of
the people and the guardian of rights. Liberalism, which took its cue from individualism, advocated the
PRINCIPLE OF EGALITARIANISM , in which men, regardless of their status in life, are regarded as equals in
terms of rights before the law. Modern democracies are founded on these liberal ideals, in that the heart
of democratic objectives is the protection of human dignity and respect for human rights.

2. Nonetheless, the government remains to be a powerful institution, capable of summoning the

military, evoking its past image as the uncontestable holder of sovereignty. In fact, republicanism
essentially requires delegation of powers to the government; that although the people remain to be the
sovereign, actual exercise of it is given to the government. Protection and service of the people is the
primal duty of the government, but be that as it may, the government is still the single biggest institution
that exercises sovereign powers.

3. More so, it possesses the “inherent powers” which the Constitution itself does not confer. Every
government for it to exist exercises “police power,” “power of eminent domain,” and “power of taxation.” A
constitution does not grant such powers to the government; a constitution can only define and delimit them
and allocate their exercise among various government agencies.[1] These are awesome powers, which,
if left uncheck, may seriously restrict and jeopardize the freedom of individuals. Thus, it is inbuilt in every
democratic constitution to meticulously include provisions guaranteeing the rights of the individuals and
those restricting the powers of the government. This is to prevent the tragedy that the government created
by the people will in turn be the instrument to enslave and abuse them.

4. The Bill of Rights (Article III) is an indispensable part of the Constitution. In fact, it is one of the
most important parts of the fundamental law since it aims at balancing the power of the government
and the various freedoms of the individual. As will be seen below, the Bill of Rights provide for two
things: first, restrictions directed against the state, and, second, explicit identification and limitation of rights
of the individuals. On the one hand, the government exercises its tremendous powers, but its powers are
limited by the Constitution. On the other hand, the individuals are guaranteed of their rights, but subject
also to limitations in recognition of the powers of the government. What balances the two (power and
freedom) are the limitations provided by the Constitution, which limitations are by nature compromises or
solutions to situations resulting from the overlapping or conflict of the two realms. For example, while the
government has the inherent authority to take and convert a property for public use, and the people on
the other have the right to hold their private property, the Constitution, contemplating a case of overlap or
conflict between the two, compromises both by prescribing that the government gives just compensation
to the private owner who in turn must surrender his property.

a Balance of power and freedom

Freedom Constitutional Guarantees & Power

Protection
1) Life; 1) Due process (Sec. 1, Art III); 1) Police Power;
2) Liberty; 2) Equal protection (Sec.1, Art 2) Power of Eminent Domain;
3) Property; III); 3) Power of Taxation
3) Just compensation (Sec.9, Art
III)

B. Meaning of the Bill of Rights

1. From the foregoing, it is not difficult to understand that the Bill of Rights refers to the declaration and
enumeration of the fundamental civil and political rights of a person with the primary purpose of
safeguarding the person from violations by the government, as well as by individuals and group of
individuals. It includes the protection of the following rights:

a. CIVIL RIGHTS or those rights belonging to individuals by virtue of their citizenship, such as freedom
to contract, right to property, and marriage among others;

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
b. POLITICAL RIGHTS which are rights pertaining to the citizenship of the individual vis-à-vis the
administration of the government, such as right of suffrage right to hold office, and right to petition
for redress of wrong
c. SOCIO-ECONOMIC RIGHTS or those which ensure the well-being and economic security of an
individual; and
d. RIGHTS OF THE ACCUSED which refer to protections given to the person of an accused in any
criminal case.

Citizen Alien
Civil Rights Yes Yes
Political Rights Yes No
Socio-economic Rights Yes limited
Rights of the Accused Yes Yes

2. It must be noted that the restriction provided in the Bill of Rights is directed against the
government, so that it does not govern private relations. As far as the Constitution is concerned,
Article III can be invoked only against the government. Nonetheless, with the inclusion of almost all the
constitutional rights in Article 32 of the Civil Code, the same may now be invoked in civil cases involving
relations between private persons. Thus, the definition above indicates that the bill of rights is a
safeguard not just against the abuses of the government but also of individuals or group of
individuals.
C. DOCTRINE OF HIERARCHY OF RIGHTS
o RIGHT TO LIFE
1. Based on the hierarchy of constitutionally protected rights, the right to life enjoys precedence over the
right to property. When the state or LGU's exercise of police power clashes with a few individuals' right to
property, the former should prevail. (Social Justice Society, et al v. Atienza, Jr. G.R. No. 156052, 13th
February 2008)
o PROPERTY RIGHTS
2. Rights of property, like all other social and conventional rights, are subject to reasonable limitations in their
enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations
established by law as the legislature, under the governing and controlling power vested in them by the
constitution, may think necessary and expedient. (Social Justice Society, et al v. Atienza, Jr. G.R. No.
156052, 13th February 2008)
3. Property rights must bow to the primacy of police power because property rights, though sheltered by due
process, must yield to general welfare. While the Constitution protects property rights, State, in the exercise
of police power, can intervene in the operations of a business which may result in an impairment of property
rights in the process. The right to property can be relinquished upon the command of the State for the
promotion of public good. (Carlos Superdrug Corp v. DSWD, et al, G.R. No. 166494, 29th June 2007)
o CIVIL LIBERTIES
4. While the Bill of Rights also protects property rights, the primacy of human rights over property rights is
recognized. The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against
the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and
the scorn and derision of those who have no patience with general principles." (PBM Employees Org v.
PBM Co. Inc, G.R. No. L-31195, 51 SCRA 189, 5th June 1973)
5. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly,
and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."
Laski proclaimed that "the happiness of the individual, not the well-being of the State, was the criterion by
which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was
entitled to exercise." (PBM Employees Org v. PBM Co. Inc, G.R. No. L-31195, 51 SCRA 189, 5th June
1973)
 In a democracy, the preservation and enhancement of the dignity and worth of the human
personality is the central core as well as the cardinal article of faith of our civilization. The inviolable
character of man as an individual must be "protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person."
 In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts.
 Property and property rights can be lost thru prescription; but human rights are imprescriptible.
 In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions;
and such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."
 A constitutional or valid infringement of human rights requires a more stringent criterion, namely
existence of a grave and immediate danger of a substantive evil which the State has the right to
prevent.
 The freedoms of speech and of the press as well as of peaceful assembly and of petition for redress
of grievances are absolute when directed against public officials or "when exercised in relation to
our right to choose the men and women by whom we shall be governed,"
 The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as
in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal
to the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.
 The freedoms of expression and of assembly as well as the right to petition are included among
the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to
protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated,
not only to protect the minority who want to talk, but also to benefit the majority who refuse to listen.
And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the
liberties of one are not safe unless the liberties of all are protected.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2

FUNDAMENTAL POWERS OF THE STATE

o Table of applicable laws

POLICE POWER POWER OF EMINENT DOMAIN POWER OF TAXATION

 Art. VI, Sec. 23 (2)  Art. III, Sec. 9  Art VI, Sec. 28
 Art.VI, Sec. 32  Art. XII, Sec. 17  Art VI, Sec. 29
 Art. XII, Sec. 17  Art. XII, Sec. 18  Art. X, Sec. 5
 Art. XVII, Sec. 2  Art XIII, Sec. 4  Art. X, Sec. 6
 Art XIII, Sec. 9  Art. XIV, Sec. 4(2)
 Art. XIV, Sec. 4 (3)
 RA 7160, Sec. 16 (LGC)  RA 7160, Sec.19 (LGC)
 RA 6735 Initiative & Referendum  RA 8974 (National Infra)
 RA 6657, Sec.17 & 58 (CARP Law)
 RA 7279 (Urban Land Reform &
Housing)
 RA 6395 (Napocor)
 Rule 67 (Expropriation)

o Similarities
1. INHERENT in the State, exercised even without the need of express constitutional grant;
2. NECESSARY AND INDISPENSABLE ; State cannot be effective without them;
3. Methods by which State INTERFERES WITH PRIVATE PROPERTY;
4. Presuppose equivalent COMPENSATION;
5. Exercised primarily by the LEGISLATURE (Nachura, Outline Reviewer in Political Law).
o Differences

POLICE POWER EMINENT DOMAIN TAXATION

Rights regulated o Both LIBERTY and o PROPERTY o PROPERTY

PROPERTY

ONLY by the 1. GOVERNMENT ;

Who exercises the o ONLY by the
GOVERNMENT 2. PRIVATE ENTITIES
power? GOVERNMENT
undertaking public
functions/ services
Nature of property o Property taken is o Property is o Property is
usually NOXIOUS WHOLESOME and WHOLESOME and
or intended for a devoted to PUBLIC devoted to PUBLIC
noxious purpose USE or purpose; USE or purpose;
and MAY THUS BE
DESTROYED;

Compensation o Compensation in o It is the FULL AND o It is the

police power is the FAIR EQUIVALENT PROTECTION
INTANGIBLE , of the property GIVEN and/or
ALTRUISTIC taken. PUBLIC
FEELING that the IMPROVEMENT
individual has instituted by
contributed to the government for
public good. the taxes paid

Delegation The National Legislature Congress may delegate Congress may delegate
may delegate this power this power to: this power to:
to: 1. The P RESIDENT of the
1. The P RESIDENT of the Philippines; 1. LOCAL LEGISLATIVE
Philippines (Sec 23, 2. ADMINISTRATIVE BODIES (Sec. 5, Art.
Art VI, Emergency BODIES; and X);
Power); 3. LOCAL GOVERNMENT 2. The PRESIDENT when
2. ADMINISTRATIVE UNITS ; granted delegated
BOARDS ; and 4. PRIVATE ENTERPRISES tariff power
3. LAWMAKING BODIES performing public (Sec.28[2], Art. VI).
OF MUNICIPAL C ORP ; services.
4. PEOPLE thru initiative
and referendum ( RA
6735)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
NOTE: Once delegated,
the agents can exercise
only such power as
conferred on them by the
national lawmaking body
(MMDA vs. BelAir Village
Association, Inc.
328 SCRA 836).

IRR must have the

imprimature of the
administrative heads.
o Requisites for valid exercise

POLICE POWER POWER OF EMINENT DOMAIN POWER OF TAXATION

1. LAWFUL SUBJECT 1. NECESSITY 1. PUBLIC PURPOSE;
2. LAWFUL MEANS 2. PRIVATE PROPERTY 2. EQUAL PROTECTION (Uniformity
3. Delegated authority (if 3. TAKING in the constitutional of taxation is observed);
delegated) sense 3. Either the person or property
4. PUBLIC USE taxed is WITHIN THE
5. JUST COMPENSATION JURISDICTION of the
government levying the tax;
4. DUE PROCESS (notice and
opportunity for hearing are
provided)

II. POLICE POWER

o Concept and Application
1. The power of promoting the public welfare by restraining and regulating the use of liberty and property (Ericta vs.
City Government of Quezon City, 122 SCRA 759).
2. It has been said that the police power is the most essential of government powers, at times the most insistent,
and always one of the least limitable of the powers of government. (Ruby vs. Provincial Board, 39 Phil. 660;
Ichong v. Hernandez, L-7995, May 31, 1957).
3. Cannot be bargained away through the medium of a treaty or a contract (Ichong v. Hernandez, supra.).
4. Police power is the plenary power vested in the legislature to make statutes and ordinances to promote the
health, morals, peace, education, good order or safety and general welfare of the people. (Social Justice Society,
et al v. Atienza, Jr. G.R. No. 156052, 13th February 2008)
5. Police power flows from the recognition that salus populi est suprema lex (the welfare of the people is the
supreme law). While police power rests primarily with the national legislature, such power may be delegated.
Section 16 of the LGC, known as the general welfare clause, encapsulates the delegated police power to local
governments. (Social Justice Society, et al v. Atienza, Jr. G.R. No. 156052, 13th February 2008)
o Basic purposes of police power:

1. To serve the GENERAL WELFARE , COMFORT , and CONVENIENCE of the people;

2. To promote and preserve PUBLIC HEALTH;

3. To promote and protect PUBLIC SAFETY;
4. To maintain and safeguard PUBLIC ORDER;
5. To protect PUBLIC MORALS; and,
6. To promote the ECONOMIC SECURITY of the people.
o Limitations
Generally, the BILL OF RIGHTS, although in some cases the exercise of police power prevails over specific
constitutional guarantees (Phil. Press Institute vs. COMELEC, 244 SCRA 272)
o Requisites for valid exercise

1. Lawful Subject

o The interest of the PUBLIC GENERALLY , as distinguished from those of a particular class, require the exercise of
the police power (Taxicab Operators v. Board of Transportation, 119 SCRA 597);

2. Lawful Means

o The means employed are REASONABLY NECESSARY for the accomplishment of the purpose and not unduly
oppressive upon individuals (Ynot v. Intermediate Appellate Court, 148 SCRA 659); and

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
3. Delegated Authority (if delegated)

1. EXPRESS GRANT BY LAW (Sec. 16, 391, 447, 458, 468, LGC);
o “LGC, Section 16. General Welfare. — Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare. Within their respective
territorial jurisdictions, local government units shall ensure and support, among other
things, the preservation and enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public morals,
enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their
inhabitants.”
o SECTION 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a state
of war.
i. (2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper
to carry out a declared national policy. Unless sooner withdrawn by
resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
2. WITHIN TERRITORIAL LIMITS – for local government units except to protect water supply (Nachura,
Outline Reviewer in Political Law,); and
3. MUST NOT BE CONTRARY TO LAW - for municipal ordinances to be valid (Nachura, Outline Reviewer in
Political Law):
i. must not contravene the C ONSTITUTION or any STATUTE;
ii. must not be UNFAIR or OPPRESSIVE;
iii. must not be PARTIAL or DISCRIMINATORY ;
iv. must not PROHIBIT , but may REGULATE trade.
v. must not be UNREASONABLE ; and,
vi. must be GENERAL in application and consistent with public policy (Magtajas v. Pryce
Properties, G.R. 111097, July 20, 1994).
o Decided cases
1. Social Justice Society, et al v. Atienza, Jr. G.R. No. 156052, 13th February 2008
1. Is an ordinance requiring oil companies to cease and desist operation in Pandacan Terminal to
prevent for possible terrorist attack unconstitutional?
2. No. It is valid exercise of police power. Ordinance No. 8027 was enacted "for the purpose of promoting
sound urban planning, ensuring health, public safety and general welfare" of the residents of Manila. The
Sanggunian was impelled to take measures to protect the residents of Manila from catastrophic devastation in
case of a terrorist attack on the Pandacan Terminals. Towards this objective, the Sanggunian reclassified the
area defined in the ordinance from industrial to commercial. The ordinance was intended to safeguard the
rights to life, security and safety of all the inhabitants of Manila and not just of a particular class. The
depot is perceived, rightly or wrongly, as a representation of western interests which means that it is
a terrorist target.
3. Police power involves no compensable taking. In the exercise of police power, there is a limitation on or
restriction of property interests to promote public welfare which involves no compensable taking.
Compensation is necessary only when the state's power of eminent domain is exercised. In eminent domain,
property is appropriated and applied to some public purpose. Property condemned under the exercise of
police power, on the other hand, is noxious or intended for a noxious or forbidden purpose and, consequently,
is not compensable. The restriction imposed to protect lives, public health and safety from danger is not a
taking. It is merely the prohibition or abatement of a noxious use which interferes with paramount rights of the
public.
4. The power of municipal corporations to divide their territory into industrial, commercial and
residential zones is recognized in almost all jurisdictions inasmuch as it is derived from the police
power itself and is exercised for the protection and benefit of their inhabitants.
5. In the exercise of police power, property rights of individuals may be subjected to restraints and burdens in
order to fulfill the objectives of the government. Otherwise stated, 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. And to forestall arbitrariness, the
methods or means used to protect public health, morals, safety or welfare must have a reasonable relation to
the end in view.
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
2. Carlos Superdrug Corporation v. DSWD, et al, G.R. No. 166494, 29th June 2007
1. Expanded Senior Citizen Act that grants 20% discount to senior citizens for medical and dental services,
and diagnostic and laboratory fees; leisure and amusement; fares; utilization of services in hotels, restaurants
and recreation centers; and purchases of medicines for the exclusive use or enjoyment of senior citizens. As
a form of reimbursement, the law provides that business establishments extending the 20% discount to senior
citizens may claim the discount as a tax deduction. Is the Senior Citizen Act unconstitutional as it
amounts to taking of property without just compensation?
2. No. It is constitutional and valid. The law is a legitimate exercise of police power which, similar to the
power of eminent domain, has general welfare for its object. Police power is not capable of an exact
definition, but has been purposely veiled in general terms to underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient and flexible response to conditions and circumstances,
thus assuring the greatest benefits. Accordingly, it has been described as "the most essential, insistent and
the least limitable of powers, extending as it does to all the great public needs." It is "[t]he power vested in the
legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws,
statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge
to be for the good and welfare of the commonwealth, and of the subjects of the same." For this reason, when
the conditions so demand as determined by the legislature, property rights must bow to the primacy of police
power because property rights, though sheltered by due process, must yield to general welfare.
3. PBM Employees Org v. PBM Co., Inc. G.R. No. L-31195, 51 SCRA 189 (1973), 5th June 1973
1. Can an employer prevent its employee to participate in mass demonstration or rally to protest the
government against alleged abuse because it would suffer business loss due to work stoppage?
2. No. While the Bill of Rights also protects property rights, the primacy of human rights over property
rights is recognized. Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless
attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of
officials, of majorities, of the influential and powerful, and of oligarchs - political, economic or otherwise.
The pretension of their employer that it would suffer loss or damage by reason of the absence of its
employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of
their property rights. Such apprehended loss or damage would not spell the difference between the life and
death of the firm or its owners or its management.
3. In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not permitting dubious intrusions."
4. The freedoms of speech and of the press as well as of peaceful assembly and of petition for redress
of grievances are absolute when directed against public officials or "when exercised in relation to our
right to choose the men and women by whom we shall be governed,"
4. MMDA v. GARIN, G.R. No. 130239, 15th April 2005
1. Can MMDA confiscate license to operate motor vehicles in the exercise of police power?
2. No. MMDA is not vested with police power. There is no syllable in R. A. No. 7924 that grants the MMDA
police power, let alone legislative power. Even the Metro Manila Council has not been delegated any
legislative power.
The MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro
Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA's
functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the
inhabitants of the metropolis.
3. However, a license to operate a motor vehicle is a privilege that the state may withhold in the exercise
of its police power. A license to operate a motor vehicle is not a property right, but a privilege granted by
the state, which may be suspended or revoked by the state in the exercise of its police power, in the interest
of the public safety and welfare, subject to the procedural due process requirements.
5. Balacuit v. CFI, G.R. No. L-38429, June 30, 1988
1. An ordinance was passed to require children between seven (7) and twelve (12) years of age to pay
full payment for admission tickets intended for adults but should charge only one-half of the value of
the said tickets.
2. It is not a valid exercise of police power. While it is true that a business may be regulated, it is equally true
that such regulation must be within the bounds of reason, that is, the regulatory ordinance must be
reasonable, and its provisions cannot be oppressive amounting to an arbitrary interference with the business
or calling subject of regulation. A lawful business or calling may not, under the guise of regulation, be
unreasonably interfered with even by the exercise of police power. A police measure for the regulation of
the conduct, control and operation of a business should not encroach upon the legitimate and lawful exercise
by the citizens of their property rights. The right of the owner to fix a price at which his property shall be sold
or used is an inherent attribute of the property itself and, as such, within the protection of the due process
clause.
6. Lozano vs. Matinez, 146 SCRA 323 (1986)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
1. Is BP 22 (Bouncing Check law) unconstitutional as it penalize a person for non-payment of a debt?
2. No. BP 22 is a valid exercise of the police power and is not repugnant to the constitutional inhibition
against imprisonment for debt. The enactment of BP 22 is a declaration by the legislature that, as a matter
of public policy, the making and issuance of a worthless check is deemed a public nuisance to be abated by
the imposition of penal sanctions.
It may be constitutionally impermissible for the legislature to penalize a person for non-payment of a debt ex
contractu. But certainly it is within the prerogative of the lawmaking body to proscribe certain acts deemed
pernicious and inimical to public welfare. Acts mala in se are not the only acts which the law can punish. An
act may not be considered by society as inherently wrong, hence, not malum in se, but because of the harm
that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. The state
can do this in the exercise of its police power.
7. Del Rosario vs. Bengzon, 180 SCRA 521 (1989)
1. The Generics Act of 1988 (Rep. Act No. 6675) mandated all government and private physician to
generic terminology or generic names in all transactions related to purchasing, prescribing,
dispensing and administering of drugs and medicines. Private practitioners are allowed to include the
brand name together with generic name. In additional to the law, the IRR of DOH prohibits additional
instruction of “no substitution” in the prescription which tend to obstruct or prevent generic dispensing.
2. The law is a valid police power measure. No private contract between doctor and patient may be
allowed to override the power of the State to enact laws that are reasonably necessary to secure the
health, safety, good order, comfort, or general welfare of the community. This power can neither be
abdicated nor bargained away. All contractual and property rights are held subject to its fair exercise.
The prohibition against the use by doctors of "no substitution" and/or words of similar import in their
prescription, is a valid regulation to prevent the circumvention of the law. It secures to the patient the right to
choose between the brand name and its generic equivalent since his doctor is allowed to write both the
generic and the brand name in his prescription form. If a doctor is allowed to prescribe a brand-name drug
with "no substitution," the patient's option to buy a lower-priced, but equally effective, generic equivalent
would thereby be curtailed. The law aims to benefit the impoverished (and often sickly) majority of the
population in a still developing country like ours, not the affluent and generally healthy minority.

8. Tablarin vs. Judge Gutierrez, 152 SCRA 730 (1987)

1. Board of Medical Education and the Center for Educational Measurement was enforcing Section 5 (a) and (f)
of Republic Act No. 2382 from requiring the taking and passing of the NMAT as a condition for securing
certificates of eligibility for admission in medical school.
2. NMAT is a valid exercise of police power of the state. The regulation of the practice of medicine in all
its branches has long been recognized as a reasonable method of protecting the health and safety of
the public. That the power to regulate and control the practice of medicine includes the power to regulate
admission to the ranks of those authorized to practice medicine, is also well recognized. Thus, legislation
and administrative regulations requiring those who wish to practice medicine first to take and pass
medical board examinations have long ago been recognized as valid exercises of governmental
power.
There is another reason why the petitioners' arguments must fail: the legislative and administrative provisions
impugned by them constitute, to the mind of the Court, a valid exercise of the police power of the state. The
police power, it is commonplace learning, is the pervasive and non-waivable power and authority of the
sovereign to secure and promote all the important interests and needs — in a word, the public order — of the
general community. An important component of that public order is the health and physical safety and
well being of the population, the securing of which no one can deny is a legitimate objective of
governmental effort and regulation.
9. Ermita-Malate Hotel & Motel Operators v. City Mayor, 20 SCRA 849 (1967)
1. An Ordinance is imposing license fees to motels and requiring hotel guests to fill up the prescribed
form in a lobby open to public view at all times and in his presence and mandating hotel, motel, or lodging
house to refrain from entertaining or accepting any guest or customer or letting any room or other quarter to
any person or persons refusing to fill up the form; opening the premises and facilities for inspection either
by the City Mayor, or the Chief of Police, or their duly authorized representatives; and prohibiting to lease or
rent any room more than twice every 24 hours, with a proviso that in all cases full payment shall be
charged.
2. Ordinance No. 4760 is constitutional and a valid exercise of a police power measure specifically
aimed to safeguard public morals. The provision in Ordinance No. 4760 of the City of Manila making it
unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel, lodging house,
tavern, common inn or the like, to lease or rent any room or portion thereof more than twice every 24 hours,
with a proviso that in all cases full payment shall be charged, cannot be viewed as transgression against the
command of due process. The prohibition is neither unreasonable nor arbitrary, because there appears a
correspondence between the undeniable existence of an undesirable situation and the legislative attempt at
correction. Moreover, every regulation of conduct amounts to curtailment of liberty, which cannot be absolute.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
The explanatory note of the then Councilor Herminio Astorga included as annex to the stipulation of facts
speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great
part to the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and
exit" and thus become the "ideal haven for prostitutes and thrill seekers."
3. License fee is a police power measure. Licenses for non-useful occupations are incidental to the police
power, and the right to exact a fee may be implied from the power to license and regulate, but in taking the
amount of license fees the municipal corporations are allowed a wide discretion in this class of cases.
10. Cruz vs. Paras, 123 SCRA 569 (1983)
1. Municipality of Bocaue, Bulacan passed an Ordinance prohibiting the operation of night clubs, cabarets
and dance halls within the jurisdiction of municipality being the principal cause in the decadence of morality
and because of their other adverse effects on this community.
2. The Ordinance of prohibiting the operation of night clubs is overbreadth and unconstitutional as there
is clear invasion of personal and property rights. It is clear that municipal corporations cannot prohibit the
operation of night clubs. They may be regulated, but not prevented from carrying on their business.
If night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would pass the
test of validity.
The objective of fostering public morals, a worthy and desirable end can be attained by a measure that does
not encompass too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The
purpose sought to be achieved could have been attained by reasonable restrictions rather than by an
absolute prohibition.
It is clear that in the guise of a police regulation, there was in this instance a clear invasion of
personal or property rights, personal in the case of those individuals desirous of patronizing those
night clubs and property in terms of the investments made and salaries to be earned by those therein
employed.
11. Velasco vs. Villegas, 120 SCRA 568 (1983)
1. The ordinance prohibits for any operator of any barbershop to conduct the business of massaging
customers or other persons in any adjacent room or rooms of said barbershop.
2. Ordinance is a police power measure. The objective behind its measure is to impose payment of license fee
and to forestall possible immorality. This Court has been most liberal in sustaining ordinances based on the
general welfare clause.
12. Magtajas vs. Pryce Properties, 234 SCRA 255 (1994)
1. The Sangguniang Panlungsod of Cagayan de Oro City enacted Ordinance No. 3353 for banning the
operation of casino within its jurisdiction and prohibiting the issuance of business permit and cancelling
existing business permit to any establishment for the using and allowing to be used its premises for the
operation of casino; and providing stiffer penalties for violation.
2. The Ordinance is not valid as it contravenes with the law (P.D 1869) which has the character and force of
a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance
despite the prohibition of gambling in general.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended
or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan
de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these
ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra
vires and void.
13. Tano v. Socrates, G.R. 110249, August 27, 1997
1. The Sangguniang Panlungsod of Puerto Princesa City enacted Ordinance No. 15-92 banning the shipment
of all live fish and lobster outside Puerto Princesa City effective for five years.
2. Under the general welfare clause of the LGC, local government units have the power, inter alia, to enact
ordinances to enhance the right of the people to a balanced ecology. It vests municipalities with the power
to grant fishery privileges in municipal waters and impose rentals, fees or charges therefor.
14. Anglo-Fil Trading v. Lazaro
1. W/N contractual clause can override the police power ?
2. No. The petitioners are on extremely shaky grounds when they invoke the non-impairment clause to sustain
their charge of invalidity. According to the petitioners, contracts entered into with local and foreign clients or
customers would be impaired.
3. Neither the contract clause nor the due process clause has the effect of overriding the power of the State to
establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or
general welfare of the community; that this power can neither be abdicated nor bargained away, and is
inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise.
4. In the Philippines, the subservience of the contract clause to the police power enacting public regulations
intended for the general welfare of the community is even more clearcut.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
15. City of Manila v. Judge Laguio, G.R. No. 118127, April 12, 2005
1. The City of Manila passed an Ordinance which disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns in the Ermita-Malate area.
2. The Ordinance invades fundamental personal and property rights and impairs personal privileges. It is
constitutionally infirm. The Ordinance contravenes statutes; it is discriminatory and unreasonable in its
operation; it is not sufficiently detailed and explicit that abuses may attend the enforcement of its sanctions.
And not to be forgotten, the City Council under the Code had no power to enact the Ordinance and is
therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares the concern of the
public for the cleansing of the Ermita-Malate area of its social sins. Police power legislation of such character
deserves the full endorsement of the judiciary — we reiterate our support for it. But inspite of its virtuous aims,
the enactment of the Ordinance has no statutory or constitutional authority to stand on. Local legislative
bodies, in this case, the City Council, cannot prohibit the operation of the enumerated establishments under
Section 1 thereof or order their transfer or conversion without infringing the constitutional guarantees of due
process and equal protection of laws — not even under the guise of police power.
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property
and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot,
even under the guise of exercising police power, be upheld as valid.
16. Ortigas vs. Feati Bank, 94 SCRA 719
1. There was an agreement that the land shall be used exclusively for residential purposes consistent with the
subdivision plan but the Municipal Council of Mandaluyong declared as an industrial and commercial zone,
the western part of Highway 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the
Pasig Rive. The owner constructed the property based on new ordinance in contravention of the agreement.
Has the ordinance impaired the contract?
2. No, the resolution is a valid exercise of police power. EDSA, a main traffic artery which runs through
several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the
resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in
its route.
It should be stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is
not absolute, since it has to be reconciled with the legitimate exercise of police power i.e., "the power
to prescribe regulations to promote the health, morals, peace, education, good order or safety and general
welfare of the people. Invariably described as "the most essential, insistent, and illimitable of powers" and "in
a sense, the greatest and most powerful attribute of government.
17. Presley vs. Bel-Air Village Association, 201SCRA 13
1. Bel-Air Village Association, Inc. (BAVA, for short) filed a case against Enedina Presley for violation of the
Deed of Restrictions of Bel-Air Subdivision that the subject house and lot shall be used only for residential
and not for commercial purposes. 'Hot Pan de Sal Store' was constructed in the area in compliance with
zoning ordinance.
2. Deed of Restrictions, like all contracts, subject to the overriding demands, needs, and interests of the
greater number as the State may determine in the legitimate exercise of police power.
It held that the provisions of the Deed of Restrictions are in the nature of contractual obligations freely entered
into by the parties. Undoubtedly, they are valid and can be enforced against the petitioner. However, these
contractual stipulations on the use of the land even if said conditions are annotated on the torrens
title can be impaired if necessary to reconcile with the legitimate exercise of police power.
18. Pasong Baybas Farmers Ass. Vs CA, GR Nos. 142359 and 142980< May 25, 2004
1. PBFAI-KASAMA, representing the farmers-tenants, filed complaint against illegal bulldozing activities that
convert the land from agricultural to residential subdivision, thereby depriving the members of the PBFAI of
their tenancy rights over the property. Municipal Council of Carmona passed a ordinance approving the
zoning and the subdivision of the property.
2. The zoning ordinance is an exercise of its police power. The authority of the municipality of Cabuyao,
Laguna to issue zoning classification is an exercise of its police power, not the power of eminent
domain.
Section 3 of Rep. Act No. 2264, amending the Local Government Code, specifically empowers
municipal and/or city councils to adopt zoning and subdivision ordinances or regulations in
consultation with the National Planning Commission. A zoning ordinance prescribes, defines, and
apportions a given political subdivision into specific land uses as present and future projection of needs. The
power of the local government to convert or reclassify lands to residential lands to non-agricultural lands
reclassified is not subject to the approval of the Department of Agrarian Reform.
19. Bautista vs. Junio, 127 SCRA 329 (1984)
1. The Letter of Instruction No. 869 was issued for purpose of energy conservation in response to the
protracted oil crisis that dates back to 1974. It prohibits the use of private motor vehicles with H

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
(Heavy Vehicles) and EH (Extra Heavy Vehicles) on weekends and holidays from 12:00 a.m. Saturday
morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday.
2. The disputed regulatory measure is an appropriate response to a problem that presses urgently for
solution, wherein its reasonableness is immediately apparent. Thus, due process is not ignored, much
less infringed. The exercise of police power may cut into the rights to liberty and property for the promotion of
the general welfare. Those adversely affected may invoke the equal protection clause only if they can show a
factual foundation for its invalidity.
Moreover, since Letter of Instruction No. 869 and Memorandum Circular No. 39 were adopted pursuant to the
Land Transportation and Traffic Code, which contains a specific provision as to penalties, the imposition of a
fine or the suspension of registration under the conditions therein set forth is valid with the exception of the
impounding of a vehicle.
20. Taxicab Operators of Metro Manila vs. BOT, 119 SCRA 597 (1982)
1. The Board of Transportation (BOT) issued a memorandum circular providing for the phasing out and
replacement of old and dilapidated taxicabs.
2. The overriding consideration is the safety and comfort of the riding public from the dangers posed by
old and dilapidated taxis. The State, in the exercise of its police power, can prescribe regulations to
promote the health, morals, peace, good order, safety and general welfare of the people. It can prohibit
all things hurtful to comfort, safety and welfare of society. It may also regulate property rights. In the language
of Chief Justice Enrique M. Fernando "the necessities imposed by public welfare may justify the exercise of
governmental authority to regulate even if thereby certain groups may plausibly assert that their interests are
disregarded".
21. Mirasol v. DPWH, G.R. No. 158793, June 8, 2006
1. The Secretary of the DPWH issued Administrative Order 1 which ban the driving of non-motorized
vehicles (bicycle, tricycle, pedicab, motorcycle or etc) on limited access highways such as tollways.
2. The use of public highways by motor vehicles is subject to regulation as an exercise of the police
power of the state. The police power is far-reaching in scope and is the "most essential, insistent and
illimitable" of all government powers. The tendency is to extend rather than to restrict the use of police power.
The sole standard in measuring its exercise is reasonableness. What is "reasonable" is not subject to exact
definition or scientific formulation. No all-embracing test of reasonableness exists, for its determination rests
upon human judgment applied to the facts and circumstances of each particular case.
A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain destinations,
its use, operation, and maintenance require close regulation. Public interest and safety require the imposition
of certain restrictions on toll ways that do not apply to ordinary roads. As a special kind of road, it is but
reasonable that not all forms of transport could use it.
22. Anglo-Fil Trading vs. Lazaro, 124 SCRA 494 (1983)
1. Philippine Port Authority has integrated the stevedoring service in the ports to remedy the problems of multi-
operators’ system in the ports. It terminated existing stevedoring contracts and awarded the exclusive
contract for stevedoring services in the South Harbor to a new contractor after finding it the best
qualified among the existing contractors.
2. It is settled that neither the contract clause nor the due process clause has the effect of overriding the
power of the State to establish all regulations that are reasonably necessary to secure the health,
safety, good order, comfort, or general welfare of the community; that this power can neither be
abdicated nor bargained away, and is inalienable even by express grant; and that all contract and
property rights are held subject to its fair exercise.
In the Philippines, the subservience of the contract clause to the police power enacting public regulations
intended for the general welfare of the community is even more clearcut.
Parties by entering into contracts may not estop the legislature from enacting laws intended for the public
good.
The Manila South Harbor is public property owned by the State. The operations of this premiere port of the
country, including stevedoring work, are affected with public interest. Stevedoring services are subject to
regulation and control for the public good and in the interest of general welfare.
23. PPA v. Cipres Stevedoring, G.R. No. 145742, July 14, 2005
1. Philippine Ports Authority of Dumaguete City provides that all contract for cargo handling services of
more than three (3) years shall be awarded through public bidding. With respect to cargo handling
permits for a period of three (3) years and less in ports where the average yearly cargo throughout for the last
five (5) years did not surpass 30,000 metric tons and where the operations are mainly manual, the same shall
be awarded through comparative evaluation. Operators protested as it constitute a derogation of its
vested right over the operation of cargo handling enterprise.
2. There is no arbitrariness nor irregularity on the part of petitioner as far as PPA AO No. 03-2000 is concerned.
The operations of this premiere port of the country, including stevedoring work, are affected with
public interest. Stevedoring services are subject to regulation and control for the public good and in
the interest of general welfare.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
It is worthwhile to remind respondent that petitioner was created for the purpose of, among other things,
promoting the growth of regional port bodies. In furtherance of this objective, petitioner is empowered, after
consultation with relevant government agencies, to make port regulations particularly to make rules or
regulations for the planning, development, construction, maintenance, control, supervision and management
of any port or port district in the country. With this mandate, the decision to bid out the cargo holding services
in the ports around the country is properly within the province and discretion of petitioner which we cannot
simply set aside absent grave abuse of discretion on its part. The discretion to carry out this policy necessarily
required prior study and evaluation and this task is best left to the judgment of petitioner. While there have
been occasions when we have brushed aside actions on the part of administrative agencies for being beyond
the scope of their authority, the situation at the case at bar does not fall within this exception.
24. Chavez v. Romulo, G.R. No. 157036. June 9, 2004
1. Is citizens' right to bear arms a constitutional right?
2. No. The right to bear arms is not a constitutional right, but a statutory creation. Evidently, possession
of firearms by the citizens in the Philippines is the exception, not the rule. Being a mere statutory
creation, the right to bear arms cannot be considered an inalienable or absolute right.
With more reason, the right to bear arms cannot be classified as fundamental under the 1987 Philippine
Constitution. Our Constitution contains no provision similar to the Second Amendment (US), as we aptly
observed in the early case of United States vs. Villareal: “it may be well, in passing, to point out that in no
event could this constitutional guaranty have any bearing on the case at bar, not only because it has not been
expressly extended to the Philippine Islands, but also because it has been uniformly held that both this and
similar provisions in State constitutions apply only to arms used in civilized warfare”.
3. A PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It does not
confer an absolute right, but only a personal privilege to be exercised under existing restrictions, and
such as may thereafter be reasonably imposed.
4. Guidelines constitutes a reasonable exercise of police power for the promotion of public peace as its objective
and the revocation of all PTCFOR as the means. Xxx At any rate, assuming that petitioner's PTCFOR
constitutes a property right protected by the Constitution, the same cannot be considered as absolute as to be
placed beyond the reach of the State's police power. All property in the state is held subject to its general
regulations, necessary to the common good and general welfare.

III. EMINENT DOMAIN

o Concept and Application
1. The right of the state to acquire private property for public use upon payment of just compensation (Metropolitan
Cebu Water District v. King and Sons Company, G.R. No. 175983, April 16, 2009; Sec. 9, Art. III).
2. The inherent power of the State to condemn private property to public use upon payment of just compensation
(Didipio Earth - Savers Multipurpose Association v. Gozun, G.R. No. 157882, March 30, 2006).
3. Eminent domain may be used as an implement to attain police objective (Association of Small Landowners v.
Secretary of Agrarian Reform, 175 SCRA 343).
o Who can exercise the power of eminent domain:

1. The NATIONAL GOVERNMENT

a) Congress
b) Executive, pursuant to legislation enacted by Congress

2. LOCAL GOVERNMENT UNITS, pursuant to an ordinance enacted by their respective legislative bodies (under
LGC)
3. PUBLIC UTILITIES, as may be delegated by law.

o When is the exercise of the power of eminent domain necessary?

It is only necessary when the owner does not want or opposes the sale of his property. Thus, if a valid contract exists
between the government and the owner, the government cannot exercise the power of eminent domain as a
substitute to the enforcement of the contract.
o Constitutional Limitations
1. Generally, the BILL OF RIGHTS, although in some cases the exercise of police power prevails over specific
constitutional guarantees (Phil. Press Institute vs. COMELEC, 244 SCRA 272)
1. DUE PROCESS CLAUSE

 Sec 1, Art III – No person shall be deprived of life, liberty, or property without due process of law.

2. EQUAL PROTECTION CLAUSE

 Sec 1, Art III – Nor shall any person be denied the equal protection of the laws.
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
2. Section 9, Art III, Constitution. Private property shall not be taken for public use without just compensation.
o Sources
1. Constitution
1. Art. XII, Sec. 17 – Take over privately-owned public utilities

 In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, TEMPORARILY TAKE OVER or DIRECT THE
OPERATION of any privately-owned public utility or business affected with public interest.

2. Art. XII, Sec. 18 – Public Utilities

 The State may, in the interest of national welfare or defense, establish and operate vital industries
and, UPON PAYMENT OF JUST COMPENSATION, transfer to public ownership utilities and private
enterprises to be operated by the Government.
 RA 8974 – Acquisition for National Infrastructure Projects
o requires that the Government MAKE A DIRECT PAYMENT TO THE PROPERTY OWNER before the
writ may issue. Moreover, such payment is based on the zonal valuation of the BIR in the
case of land, the value of the improvements or structures under the replacement cost
method, or if no such valuation is available and in cases of utmost urgency, the proffered
value of the property to be seized.| (Republic v. Gingoyon, G.R. No. 166429, [December 19,
2005], 514 PHIL 657-782)

3. Art. XIII, Sec. 4 – Agrarian

 The State shall, by law, undertake an AGRARIAN REFORM PROGRAM founded on the right of the
farmers and regular farmworkers who are landless, to own directly or collectively the lands they till, or
in the case of other farmworkers, to receive a just share of the fruits thereof. To this end, the State
shall encourage and undertake a just distribution of all agricultural lands, subject to
o such priorities and reasonable RETENTION LIMITS as the Congress may provide,
o taking into consideration the ecological, developmental, or EQUITY CONSIDERATION, and
o subject to payment of JUST COMPENSATION.
 In determining retention limits, the State shall respect the RIGHTS OF SMALL LANDOWNERS.
 The State shall provide for incentive for the voluntary land-sharing.
 RA 6657 – Comprehensive Agrarian Reform Law
o SECTION 17. Determination of Just Compensation.—In determining just compensation, the
cost of acquisition of the land, the current value of like properties, its nature, actual use and
income, the sworn valuation by the owner, tax declarations, and the assessment made by
government assessors shall be considered. The social and economic benefits contributed by
the farmers and the farmworkers and by the Government to the property as well as the non-
payment of taxes or loans secured from any government financing institutions on the said
land shall be considered as additional factors to determine its valuation.
o Sec. 58. Appointment of Commissioners. — The Special Agrarian Courts, upon their own
initiative or at the instance of any of the parties, may appoint one or more commissioners to
examine, investigate and ascertain facts relevant to the dispute, including the valuation of
properties, and to file a written report thereof with the court.
o The Court of Appeals seems to imply that the appointment of commissioners is mandatory in
agrarian reform cases. We do not agree. While the Rules of Court provisions apply to
proceedings in special agrarian courts, it is clear that unlike in expropriation proceedings
under the Rules of Court the appointment of a commissioner or commissioners is
discretionary on the part of the court or upon the instance of one of the parties. And when the
court does resort to the commissioners-type of appraisal, it is not circumscribed to appoint
three commissioners, unlike the modality under Rule 67. ||| (Spouses Lee v. Land Bank of the
Phils., G.R. No. 170422, [March 7, 2008], 571 PHIL 482-494)

4. Art. XIII, Sec. 9 – Urban Land Reform

 The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a
continuing program of URBAN LAND REFORM AND HOUSING which will make available at affordable
cost decent housing and basic services to underprivileged and homeless citizens in urban centers
and resettlement areas. It shall promote adequate employment opportunities to such citizens. In the
implementation opportunities to such citizens.
 In the implementation of such program, the State shall respect the RIGHTS OF SMALL PROPERTY
OWNERS .
 RA 7279 – Urban Development and Housing Act of 1992
o Under RA 7279, parcels of land owned by small-property owners are exempted from
expropriation.
o "Small property owners" refers to those whose only real property consists of residential lands
not exceeding three hundred square meters (300 sq.m.) in highly urbanized cities and eight
hundred square meters (800 sq.m.) in other urban areas."

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o Acquisition of the lands for urban land reform must follow the priority list and expropriation
shall be resorted to when other modes of acquisition have been exhausted.
o PRIORITIES IN THE ACQUISITION OF LAND FOR SOCIALIZED HOUSING. — Lands for
socialized housing are to be acquired in the following order: (1) government lands; (2)
alienable lands of public domain; (3) unregistered or abandoned or idle lands within the
declared Areas for Priority Development (APD), Zonal Improvement Program (ZIP) sites,
Slum Improvement and Resettlement (SIR) sites which have not yet been acquired; (5)
BLISS sites which have not yet been acquired; and (6) PRIVATELY-OWNED LANDS .
o MODES OF LAND ACQUISITION. — Lands for socialized housing under R.A. 7279 are to be
acquired in several modes. Among these modes are the following: (1) community mortgage;
(2) land swapping, (3) land assembly or consolidation; (4) land banking; (5) donation to the
government; (6) joint venture agreement; (7) negotiated purchase; and (8) EXPROPRIATION.

2. Local Government
1. RA 7160 (Local Government Code): Section 19. Eminent Domain. — A local government unit may exercise
the power of eminent domain,
o through its chief executive and ACTING PURSUANT TO AN ORDINANCE ,
i. for PUBLIC USE , OR PURPOSE OR WELFARE for the benefit of the poor and
the landless,
ii. upon PAYMENT OF JUST COMPENSATION,
iii. pursuant to the PROVISIONS OF THE CONSTITUTION and PERTINENT LAWS:
o Provided, however,
i. That the power of eminent domain may not be exercised unless a VALID
AND DEFINITE OFFER has been previously made to the owner, and

ii. SUCH OFFER WAS NOT ACCEPTED:

o Provided, further,
i. That the local government unit may immediately take possession of the
property
 upon the FILING OF THE EXPROPRIATION PROCEEDINGS and
 upon MAKING A DEPOSIT WITH THE PROPER COURT
 of at least fifteen percent (15%) OF THE FAIR MARKET VALUE OF
THE PROPERTY based on the current tax declaration of the
property to be expropriated:
o Provided finally, That,
i. the AMOUNT TO BE PAID FOR THE EXPROPRIATED PROPERTY SHALL BE
DETERMINED BY THE PROPER COURT ,

 based on the fair market value AT THE TIME OF THE TAKING OF

THE PROPERTY .

3. Rules of Court
1. Rule 67 – Expropriation Proceedings

Section 2. ENTRY of plaintiff upon depositing value with authorized government depositary. — Upon the
filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have
the right to take or enter upon the POSSESSION of the real property involved
 if he DEPOSITS with the authorized government depositary an amount equivalent to the
ASSESSED VALUE OF THE PROPERTY for purposes of taxation to be held by such bank
subject to the orders of the court.
 Such deposit shall be in MONEY , unless in lieu thereof the court authorizes the deposit of a
CERTIFICATE OF DEPOSIT of a government bank of the Republic of the Philippines payable
on demand to the authorized government depositary.

If PERSONAL PROPERTY is involved, its value shall be provisionally ascertained and the amount to be
deposited shall be promptly fixed by the court.

Section 4. ORDER OF EXPROPRIATION. — If the objections to and the defenses against the right of the
plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this
Rule, the court may issue an ORDER OF EXPROPRIATION declaring that the plaintiff has a lawful right to take
the property sought to be expropriated, for the public use or purpose described in the complaint, upon the
payment of JUST COMPENSATION to be determined as of the date of the taking of the property or the filing
of the complaint, whichever came first.

A final order sustaining the right to expropriate the property may be appealed by any party aggrieved
thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be
paid.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2

AFTER THE RENDITION of such an order, the plaintiff shall not be permitted to dismiss or discontinue the
proceeding except on such terms as the court deems just and equitable.

Section 5. Ascertainment of compensation. — Upon the rendition of the order of expropriation, the court
shall appoint not more than three (3) competent and disinterested persons as COMMISSIONERS to ascertain
and report to the court the just compensation for the property sought to be taken.

Section 6. Proceedings by commissioners. —

1. accept evidence introduced by either party before the commissioners
2. view and examine the property sought to be expropriated and its surroundings
3. assess the consequential damages to the PROPERTY NOT TAKEN and deduct from such
consequential damages the consequential benefits to be derived by the owner from the public use
or purpose of the property taken
a. But in no case shall the consequential benefits assessed exceed the consequential
damages assessed, or the owner be deprived of the actual value of his property so taken.

Section 8. Action upon commissioners' report. — xxx it may accept the report in part and reject it in part
and it may make such order or render such judgment as shall secure to the plaintiff the property essential
to the exercise of his right of expropriation, and to the defendant just compensation for the property so
taken.

Section 9. UNCERTAIN OWNERSHIP; conflicting claims. — If the ownership of the property taken is uncertain,
or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as
compensation for the property TO BE PAID TO THE COURT for the benefit of the person adjudged in the same
proceeding to be entitled thereto.

Section 10. Rights of plaintiff after judgment and payment. — Upon PAYMENT by the plaintiff to the
defendant of the compensation fixed by the judgment, with LEGAL INTEREST thereon from the taking of the
possession of the property, or after tender to him of the amount so fixed and payment of the costs, the
plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use
or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under
the provisions of section 2 hereof.

If the defendant and his counsel absent themselves from the court, or DECLINE TO RECEIVE THE AMOUNT
TENDERED, the same shall be ordered to be deposited in court and such deposit shall have the same
effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto.

Section 12. Costs, by whom paid. — The fees of the commissioners shall be taxed as a part of the costs of
the proceedings. ALL COSTS , except those of rival claimants litigating their claims, shall be paid by the
plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event
the costs of the appeal shall be paid by the owner.

Section 13. Recording judgment, and its effect. — xx When real estate is expropriated, a certified copy of
such JUDGMENT shall be recorded in the registry of deeds of the place in which the property is situated, and
its effect shall be to vest in the plaintiff the TITLE to the real estate so described for such public use or
purpose.

o Elements of the power of eminent domain

i. There is a TAKING of private property
ii. Taking is for PUBLIC USE
iii. Payment of JUST COMPENSATION

o REQUISITES OF VALID EXERCISE

1. Necessity
a) When exercised by the Legislature, the question of necessity is generally a political question
(Municipality of Meycauayan, Bulacan v. Intermediate Appellate Court, 157 SCRA 640); (City of Manila v.
Chinese Community, 40 Phil. 349);
b) When exercised by a delegate, the determination of whether there is genuine necessity for the exercise
is a justiciable question (Republic v. La Order de Po. Benedictinos, 1 SCRA 649); (City of Manila v.
Chinese Community, 40 Phil. 349);
2. Private property
a) Private property already devoted to public use cannot be expropriated by a delegate of legislature acting
under a general grant of authority (City of Manila v. Chinese Community, 40 Phil. 349);
b) All private property capable of ownership may be expropriated except money and choses in action. Even
services may be subject to eminent domain (Republic v. PLDT, 26 SCRA 620);

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
c) If the property is owned by the municipal corporation or municipality in its public and governmental
capacity, the property is public and Congress has absolute control over it; if the property is owned in its
private or proprietary capacity, then it is patrimonial and Congress has no absolute control, in
which case, the municipality cannot be deprived of it without due process and payment of just
compensation.||| (Province of Zamboanga del Norte v. City of Zamboanga, G.R. No. L-24440, [March
28, 1968], 131 PHIL 446-461)
3. Taking in the constitutional sense
a) The expropriator must ENTER a private property;
b) Entry must be for MORE THAN A MOMENTARY PERIOD;
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;
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. Castelvi, 58 SCRA 336).

i. Exercise of the power of eminent domain does not always result in the taking or
appropriation of title to the expropriated property; it may only result in the imposition of
a burden upon the owner of the condemned property, without loss of title or possession
(National Power Corporation v. Gutierrez, 193 SCRA 1).
ii. However, if the easement is intended to perpetually or indefinitely deprive the owner of
his proprietary rights through the imposition of conditions that affect the ordinary use,
free enjoyment and disposal of the property or through restrictions and limitations that
are inconsistent with the exercise of the attributes of ownership, or when the
introduction of structures or objects which, by their nature, create or increase the
probability of injury, death upon or destruction of life and property found on the land is
necessary, then the owner should be compensated for the monetary equivalent of the
land||| (National Power Corporation v. Tiangco, G.R. No. 170846, [February 6, 2007],
543 PHIL 637-651)
iii. The flight of airplanes, which skim the surface but do not touch it, is as much an
appropriation of the use of the land as a more conventional entry upon it. The super
adjacent airspace at this low altitude is so close to the land that continuous invasions of
it affect the use of the surface of the land itself (U.S. v. Causby, 328 U.S. 256).
iv. Compensable taking does not need to involve all the property interests which form part
of the right of ownership. When one or more of the property rights are appropriated
and applied to a public purpose, there is already a compensable taking, even if bare
title still remains with the owner.
v. To compel print media companies to donate "Comelec space" amounts to "taking" of
private personal property for public use or purposes. (PPI v. Comelec, 244 SCRA 272
(1995)
vi. Tthe State may not, under the guise of police power, permanently divest owners of the
beneficial use of their property and practically confiscate them solely to preserve or
assure the aesthetic appearance of the community. (Republic vs. Fajardo , 104
Phil.443 (1958)

4. Public use
a) Public use, for purposes of expropriation, is synonymous with public welfare as the latter term is used in
the concept of police power. Examples of public use include land reform and socialized housing.
b) The idea that "public use" is strictly limited to clear cases of "use by the public" has been abandoned. The
term "public use" has now been held to be synonymous with "public interest," "public benefit," "public
welfare," and "public convenience." (Reyes vs. NHA, GR No. 147511, January 20, 2003)
c) Water supply is for public use covered by RA 8974. (MCWD v. J. King and Sons Co., Inc. 175983)
d) Land expropriated for “tourism” is included in the term “public use”. (Heirs of Juancho Ardona vs. Reyes,
125 SCRA 220 (1983))
e) “Socialized housing” fans within the confines of “public use. (Sumulong vs. Guerrero, 154 SCRA 461
(1987)
f) The expropriation of the property for establishment of pilot development center is for a public purpose
(Province of Camarines Sur vs. CA, 222 SCRA 170 (1993))
g) The expropriation of land for the establishment of national historical landmark for INC leader Felix Manalo
is for public use. (Manosca v. Court of Appeals, 252 SCRA 412 (1996)
h) The expropriation of land by PEZA for leased to banks and for the construction of a terminal is for public
use. (Estate of Jimenez v. PEZA, G.R. No. 137285, January 16, 2001)
i) Taking of property for socialized housing is for public use. (Reyes vs. NHA, GR No. 147511, January 20,
2003)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
j) Expropriation for farmers center and other government sports facilities is for public purpose. (Moday vs.
CA, 268 SCRA 568)
k) The Government seeks to expropriate a building complex constructed on land which the State already
owns. (Asia’s Emerging Dragon Corp. v. DOTC, 552 SCRA 59)

5. Just Compensation
a) Valuation – The full and fair equivalent of the property taken; it is the fair market value of the property. It is
settled that the market value of the property is “that sum of money which a person, desirous but not
compelled to buy, and an owner, willing but not compelled to sell, would agree on as a price to be given
and received therefor (National Power Corporation v. Spouses Chiong, G.R. 152436, June 20, 2003). If
only a part of a certain property is expropriated, the owner is not restricted to payment of the market value
of the portion actually taken, in addition, he is also entitled to payment of consequential damages, if any, to
the remaining part of the property. At the same time, from the total compensation must be deducted the
value of consequential benefits, if any, provided consequential benefits shall not exceed consequential
damages.
b) Zonal valuation is simply one of the indices of the fair market value of real estate. By itself, however, this
index cannot be the sole basis of "just compensation" in expropriation cases. The standard is not the taker's
gain, but the owner's loss.||| (Leca Realty Corp. v. Republic, G.R. Nos. 155605 & 160179, [September 27,
2006], 534 PHIL 693-711)
c) Just compensation means not only the correct amount to be paid to the owner of the land but also
within a reasonable time from its taking (Eslaban v. De Onorio, G.R. 146062, June 28, 2001).
d) Compensation is just if the owner receives a sum equivalent to the market value of his property. Market
value is generally defined as the fair value of the property as between one who desires to purchase and
one who desires to sell.
e) The point of reference use in determining fair value is the value at the time the property was taken.
Thus, future potential use of the land is not considered in computing just compensation.
f) Judicial review of the exercise of the power of eminent domain
1) To determine the ADEQUACY OF THE COMPENSATION
2) To determine the NECESSITY OF THE TAKING
3) To determine the “PUBLIC USE ” CHARACTER OF THE TAKING. However, if the expropriation is
pursuant to a specific law passed by Congress, the courts cannot question the public use
character of the taking.
g) When municipal property is taken by the State:

i. Compensation is required if the property is a patrimonial property, that is, property acquired by the
municipality with its private funds in its corporate or private capacity. However, if it is any other
property such a public buildings or legua comunal held by the municipality for the State in trust for the
inhabitants, the State is free to dispose of it at will.

h) Point of reference for valuating a piece of property:

i. General rule: The value must be that as of the time of the filing of the complaint for expropriation.
(National Power Corporation v. Tiangco, G.R. No. 170846, [February 6, 2007], 543 PHIL 637-651)
ii. Exception: When the filing of the case comes later than the time of taking and meanwhile the value
of the property has increased because of the use to which the expropriator has put it, the value is that
of the time of the earlier taking. BUT if the value increased independently of what the expropriator
did, then the value is that of the latter filing of the case.
iii. The value of a property must be determined either as of the date of the taking of the property or the
filing of the complaint, whichever comes first.||| (Leca Realty Corp. v. Republic, G.R. Nos. 155605 &
160179, [September 27, 2006], 534 PHIL 693-711)
iv. Normally, of course, where the institution of an expropriation action precedes the taking of the
property subject thereof, the just compensation is fixed as of the time of the filing of the complaint.
This is so provided by the Rules of Court, the assumption of possession by the expropriator ordinarily
being conditioned on its deposits with the National or Provincial Treasurer of the value of the property
as provisionally ascertained by the court having jurisdiction of the proceedings. There are instances,
however, where the expropriating agency takes over the property prior to the expropriation suit, as in
this case - although, to repeat, the case at bar is quite extraordinary in that possession was taken by
the expropriator more than 40 years prior to suit. In these instances, this Court has ruled that the just
compensation shall be determined as of the time of taking, not as of the time of filing of the action of
eminent domain.||| (Ansaldo v. Tantuico, Jr., G.R. No. 50147, [August 3, 1990], 266 PHIL 319-325)

i) Mode of Payment: (SEC. 18. RA 6657 CARP LAW) (Association of Small Landowners in the Philippines,
Inc. v. DAR)
1. Cash payment
2. Shares of stock
3. Tax credits
4. LBP bonds

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
j) Deposit for RA 6657 CARP LAW - It is very explicit therefrom that the deposit must be made only in
"cash" or in "LBP bonds." Nowhere does it appear nor can it be inferred that the deposit can be made in
any other form. If it were the intention to include a "trust account" among the valid modes of deposit, that
should have been made express, or at least, qualifying words ought to have appeared from which it can
be fairly deduced that a "trust account" is allowed. In sum, there is no ambiguity in Section 16(e) of RA
6657 to warrant an expanded construction of the term "deposit."
k) Trial with commissioners - The appointment of commissioners to ascertain just compensation for the
property sought to be taken is a mandatory requirement in expropriation cases. In the instant expropriation
case, where the principal issue is the determination of just compensation, a hearing before the
commissioners is indispensable to allow the parties to present evidence on the issue of just compensation.
While it is true that the findings of commissioners may be disregarded and the trial court may substitute its
own estimate of the value, the latter may only do so for valid reasons, that is, where the commissioners
have applied illegal principles to the evidence submitted to them, where they have disregarded a clear
preponderance of evidence, or where the amount allowed is either grossly inadequate or excessive. Thus,
"trial with the aid of the commissioners is a substantial right that may not be done away with capriciously or
for no reason at all." (National Power Corp. v. Spouses dela Cruz, G.R. No. 156093, [February 2, 2007],
543 PHIL 53-72)
l) Jurisdiction –
i. General Rule: The expropriation proceedings are within the jurisdiction of regional trial
courts which has jurisdiction over all civil actions which are incapable of pecuniary
estimation. (Brgy San Roque v. Heirs of Pastor)
ii. Special Jurisdiction. - The Special Agrarian Court shall have original and exclusive
jurisdiction over all petitions for the determination of just compensation to landowners,
and the prosecution of all criminal offenses under this Act.||| (Land Bank of the Phils. v.
Wycoco, G.R. Nos. 140160 & 146733, [January 13, 2004], 464 PHIL 83-101)
iii. The DAR, as an administrative agency, cannot be granted jurisdiction over cases of
eminent domain and over criminal cases. The valuation of property in eminent domain is
essentially a judicial function which is vested with the Special Agrarian Courts and cannot
be lodged with administrative agencies.||| (Land Bank of the Phils. v. Wycoco, G.R. Nos.
140160 & 146733, [January 13, 2004], 464 PHIL 83-101)
m) Interest
i. In some expropriation cases, the Court imposed an interest of 12% per annum on the
just compensation due the landowner.
ii. It must be stressed, however, that in these cases, the imposition of interest was in the
nature of damages for delay in payment which in effect makes the obligation on the part
of the government one of forbearance. It follows that the interest in the form of damages
cannot be applied where there was prompt and valid payment of just compensation.
Conversely, where there was delay in tendering a valid payment of just compensation,
imposition of interest is in order. This is because the replacement of the trust account
with cash or LBP bonds did not ipso facto cure the lack of compensation; for essentially,
the determination of this compensation was marred by lack of due process.
iii. Accordingly, the just compensation due Wycoco should bear 12% interest per annum
from the time LBP opened a trust account in his name up to the time said account was
actually converted into cash and LBP bonds deposit accounts.
n) Unrealized profits
(1) The award of actual damages for unrealized profits should be deleted. The amount of loss must
not only be capable of proof, but must be proven with a reasonable degree of certainty. The
claim must be premised upon competent proof or upon the best evidence obtainable, such as
receipts or other documentary proof. None having been presented in the instant case, the claim
for unrealized profits cannot be granted.||| (Land Bank of the Phils. v. Wycoco, G.R. Nos.
140160 & 146733, [January 13, 2004], 464 PHIL 83-101)

o WRIT OF POSSESSION
1. A writ of execution may be issued by a court upon the filing by the government of a complaint for expropriation
sufficient in form and substance and upon deposit made by the government of the amount equivalent to the
assessed value of the property subject to expropriation. Upon compliance with these requirements, the issuance
of the writ of possession becomes ministerial.||| (City of Manila v. Serrano, G.R. No. 142304, [June 20, 2001], 411
PHIL 754-765)
2. Distinction of RA 8974 and Rule 67
1. RA No 8974 is intended to cover expropriation proceedings intended for national government
infrastructure projects (such real property constituting land, buildings, roads and constructions of all
kinds adhered to the soil). (Republic v. Gingoyon, G.R. No. 166429, [December 19, 2005], 514 PHIL 657-
782)
2. It is to be distinguished that RA 8974 and Rule 67 of the Rules of Court speak of different procedures, with
the former specifically governing expropriation proceedings for national government infrastructure projects.
Thus, if expropriation is engaged in by the national government for purposes other than national infrastructure
projects, the assessed value standard and the deposit mode prescribed in Rule 67 continues to apply.
(Republic v. Holy Trinity Realty Development Corp., GR 172410 [April 14, 2008])
3. It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule 67 with the scheme
of "immediate payment" in cases involving national government infrastructure projects. (Republic v. Holy
Trinity Realty Development Corp., GR 172410 [April 14, 2008])

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
4. Under Section 4 of Republic Act No. 8974, the implementing agency of the government pays just
compensation twice:
o INITIAL PAYMENT - immediately upon the filing of the complaint, where the amount to be paid is
100% of the value of the property based on the current relevant zonal valuation of the BIR; and
o FINAL PAYMENT - when the decision of the court in the determination of just compensation
becomes final and executory, where the implementing agency shall pay the owner the difference
between the amount already paid and the just compensation as determined by the court. (Republic v.
Holy Trinity Realty Development Corp., GR 172410 [April 14, 2008])
o CASES

1. Who exercises the power?

1. City of Manila vs. Chinese Cemetery of Manila, 40 Phil 349 (1919)
o Local government units possessed the delegated power of eminent domain, subject to judicial review.
o The exercise of eminent domain by the municipal corporation is justiciable. A municipal corporation in this
jurisdiction cannot expropriate public property. The land to be expropriated must be private, and the purpose
of the expropriation must be public. If the court upon trial, finds that neither of said condition exists, or that
either one of them fails, the right to expropriate does not exist. If the property is taken in the ostensible
behalf of a public improvement which it can never by any possibility serve, it is being taken for a use not
public, and the owner's constitutional rights call for protection by the courts.
o The right of expropriation is not inherent power in a municipal corporation and before it can exercise the
right some law must exist conferring the power upon it.
o The exercise of eminent domain by the Legislature is a political question - Upon the other hand, the
Legislature may directly determine the necessity for appropriating private property for a particular
improvement for public use, and it may select the exact location of the improvement. In such a case, it is
well settled that the utility of the proposed improvement, the existence of the public necessity for its
construction, the expediency of constructing it, the suitableness of the location selected, and the
consequent necessity of taking the lands selected, are all questions exclusively for the legislature to
determine, and the courts have no power to interfere or to substitute their own views for those of the
representatives of the people.
o But when the law does not designate the property to be taken, nor how much may be taken, then the
necessity of taking private property is a question for the courts.
2. Moday v. Court of Appeals, 268 SCRA 368 (1997)
o Municipal corporation has the power to exercise the right of eminent domain and its Sangguniang Bayan
has the capacity to promulgate resolution for such exercise.
o The Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 43-89 for
the Municipality of Bunawan clearly has the power to exercise the right of eminent domain and its
Sangguniang Bayan the capacity to promulgate said resolution.
3. Masikip vs. City of Pasig, GR No. 136349, Jan. 23, 2006
o Eminent domain is the power of the State or its instrumentalities to take private property for public use and
is inseparable from sovereignty and inherent in government.
o The power of eminent domain is lodged in the legislative branch of the government.
o It delegates the exercise thereof to local government units, other public entities and public utility
corporations, subject only to Constitutional limitations.
o Local governments have no inherent power of eminent domain and may exercise it only when expressly
authorized by statute. Section 19 of the Local Government Code of 1991 (Republic Act No. 7160) prescribes
the delegation by Congress of the power of eminent domain to local government units and lays down the
parameters for its exercise.
o Judicial review of the exercise of eminent domain is limited to the following areas of concern:
i. the adequacy of the compensation,
ii. the necessity of the taking, and
iii. the public use character of the purpose of the taking.
4. Lagcao vs. Judge Labra, GR No. 155746, October 3, 2004
o Local government units have no inherent power of eminent domain and can exercise it only when expressly
authorized by the legislature. By virtue of RA 7160, Congress conferred upon local government units the
power to expropriate. Ordinance No. 1843 was enacted pursuant to Section 19 of RA 7160:
o SEC. 19. Eminent Domain . — A local government unit may, through its chief executive and acting pursuant
to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit
of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the
Constitution and pertinent laws . . ..
o There are two legal provisions which limit the exercise of this power:
i. DUE PROCESS: no person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws; and
ii. JUST COMPENSATION: private property shall not be taken for public use without just compensation.
o Thus, the exercise by local government units of the power of eminent domain is not absolute. In fact, Section
19 of RA 7160 itself explicitly states that such exercise must comply with the provisions of the Constitution
and pertinent laws.
o REQUISITE OF VALID ORDINANCE: (1) must not contravene the Constitution or any statute (2) must not
be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade
(5) must be general and consistent with public policy, and (6) must not be unreasonable.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
5. Jesus is Lord Christian Foundation vs. Mun. of Pasig, GR No. 155230 August 9, 2005
o REQUISITES FOR VALID EXERCISE OF EMINENT DOMAIN BY THE LGU — The grant of the power of
eminent domain to local government units is grounded on Section 19 of R.A. No. 7160. The Court declared
that the following requisites for the valid exercise of the power of eminent domain by a local government
unit must be complied with:
i. ORDINANCE - An ordinance is enacted by the local legislative council authorizing the local chief
executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue
expropriation proceedings over a particular private property.
ii. PUBLIC USE - The power of eminent domain is exercised for public use, purpose or welfare, or for the
benefit of the poor and the landless.
iii. JUST COMPENSATION - There is payment of just compensation, as required under Section 9, Article
III of the Constitution, and other pertinent laws.
iv. OFFER - A valid and definite offer has been previously made to the owner of the property sought to be
expropriated, but said offer was not accepted.
o VALID AND DEFINITE OFFER – Article 35 of the Rules and Regulations Implementing the Local
Government Code provides: The offer to buy private property for public use or purpose shall be in writing.
It shall specify the property sought to be acquired, the reasons for its acquisition, and the price offer.
6. San Roque vs Republic, GR No. 163130, Sept. 7, 2007
o Without full payment of just compensation, there can be no transfer of title from the landowner to the
expropriator.
o In Republic v. Lim, we emphasized that no piece of land can be finally and irrevocably taken from an
unwilling owner until compensation is paid. Without full payment of just compensation, there can be no
transfer of title from the landowner to the expropriator. Thus, we ruled that the Republic's failure to pay just
compensation precluded the perfection of its title over Lot No. 932. In fact, we went even further and
recognized the right of the unpaid owner to recover the property if within five years from the decision of the
expropriation court the expropriator fails to effect payment of just compensation.
7. NAPOCOR vs. SOCORRO T. POSADA, G.R. No. 191945 March 11, 2015, by Justice Leonen
o What are the requirements of the delegation of eminent domain to an agent of the State?
o A. When the power of eminent domain is exercised by an agent of the State and by means of expropriation
of real property, farther limitations are imposed by law, [Republic Act No. 8974] the rules of court [Rule 67]
and jurisprudence. In essence, these requirements are:
1. A valid delegation to a public utility to exercise the power of eminent domain or pursue expropriation
proceedings over a particular private property;
2. An identified public use, purpose or welfare for which eminent domain or expropriation is exercised;
3. Previous tender of a valid and definite offer to the owner of the property sought to be expropriated, but
which offer is not accepted; and
4. Payment of just compensation.
o xxx That the government let the franchise lapse without initiating expropriation directly or through an agent
does not mean that it is no longer able to do so. There is no shelf-life to the power to expropriate. There is
no prohibition against the government initiating expropriation of the distribution system for as long as all the
requirements of a valid expropriation are met.
o xxx the current state of that jurisprudence is that taking for the same public purpose, but in favor of a local
government or for a similar, but not identical public purpose is valid.

2. Objects of Expropriation
1. RP. v. PLDT, 26 SCRA 620 (1969)
o While the Republic may not compel the PLDT to celebrate a contract with it, the Republic may, in the
exercise of the sovereign power of eminent domain, require the telephone company to permit
interconnection of the government telephone system and that of the PLDT, as the needs of the government
service may require, subject to the payment of just compensation to be determined by the court.
o The Republic may require the telephone company to enter into contract as the needs of government service
may require, subject to the payment of just compensation.
o Normally, of course, the power of eminent domain results in the taking or appropriation of title to, and
possession of, the expropriated property; but no cogent reason appears why the said power may not be
availed of to impose only a burden upon the owner of condemned property, without loss of title and
possession. It is unquestionable that real property may, through expropriation, be subjected to an easement
of right of way.
2. City of Manila vs. Chinese Community, 40 Phil 349
o Where a cemetery is open to the public, it is a public use and no part of the ground can be taken for other
public uses under a general authority.
o Land already devoted to a public use cannot be taken by the public for another use which is inconsistent
with the first without special authority from the Legislature or authority granted by necessary and reasonable
implication.
o But the Legislature has the power to authorize the taking of land already applied to one public use and
devote it to another.
o When the power to take land already applied to one public use and devote it to another is granted to
municipal or private corporations in express words, no question can arise.
3. Where Expropriation Suit is Filed
1. Barangay San Roque v. Heirs of Pastor, GR 138896 June 20, 2000
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
o The expropriation proceedings are within the jurisdiction of regional trial courts which has jurisdiction
over all civil actions which are incapable of pecuniary estimation.

o DAR v. CA, 263 SCRA 758 / G.R. No. 122256. October 30, 1996
o Special Agrarian Courts, which are Regional Trial Courts, are given original and exclusive jurisdiction over
two categories of cases, to wit: (1) "all petitions for the determination of just compensation to landowners"
and (2) "the prosecution of all criminal offenses under [R.A. No. 6657]."
o The DAR is an administrative agency which cannot be granted jurisdiction over cases of eminent domain
(for such are takings under R.A. No. 6657) and over criminal cases.

4. Taking:
5. Requisites of Taking
1. Republic vs. Castelvi, 58 SCRA 336 (1974)
o TAKING - under the power of eminent domain may be defined generally as entering upon private
property for more than a momentary period, and, under the warrant or color of legal authority, devoting it
to a public use, or otherwise informally appropriating or injuriously affecting it in such a way as
substantially to oust the owner and deprive him of all beneficial enjoyment thereof.
o REQUISITES OF TAKING
1. The expropriator must enter a private property.
2. The entrance into private property must be for more than a momentary period.
3. The entry into the property should be under warrant or color of legal authority
4. The property must be devoted to a public use or otherwise informally appropriated or injuriously
affected.
5. The utilization of the property for public use must be in such a way as to oust the owner and deprive
him of all beneficial enjoyment of the property.
o RECKONING - Under Section 4 of Rule 67 of the Rules of Court, the "just compensation" is to be
determined as of the date of the filing of the complaint. This Court has ruled that when the taking of the
property sought to be expropriated coincides with the commencement of the expropriation proceedings,
or takes place subsequent to the filing of the complaint for eminent domain, the just compensation should
be determined as of the date of the filing of the complaint. (Republic vs. Philippine National Bank, L-
14158, April 12, 1961, 1 SCRA 957, 961-962).

2. City Govt. of Quezon City vs. Ericta, 122 SCRA 759 (1983)
o There is no reasonable relation between the setting aside of at least six (6) percent of the total area of all
private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals.
good order, safety, or the general welfare of the people. The ordinance is actually a taking without
compensation of a certain area from a private cemetery to benefit paupers who are charges of the
municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city
passes the burden to private cemeteries.

3. Secretary of DPWH vs. Heracleo, GR 179334 Apr 21 2015

o The government's failure to initiate the necessary expropriation proceedings prior to actual taking cannot
simply invalidate the State's exercise of its eminent domain power, given that the property subject of
expropriation is indubitably devoted for public use, and public policy imposes upon the public utility the
obligation to continue its services to the public. To hastily nullify said expropriation in the guise of lack of
due process would certainly diminish or weaken one of the State's inherent powers, the ultimate objective
of which is to serve the greater good. Thus, the non-filing of the case for expropriation will not
necessarily lead to the return of the property to the landowner. What is left to the landowner is the
right of compensation.

6. Deprivation of Use
1. Republic vs. Fajardo , 104 Phil.443 (1958)
o While property may be regulated in the interest of the general welfare, and in its pursuit, the State may
prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may not,
under the guise of police power, permanently divest owners of the beneficial use of their property
and practically confiscate them solely to preserve or assure the aesthetic appearance of the
community. As the case now stands, every structure that may be erected on appellants' land, regardless
of its own beauty, stands condemned under the ordinance in question, because it would interfere with the
view of the public plaza from the highway. The appellants would, in effect, be constrained to let their land
remain idle and unused for the obvious purpose for which it is best suited, being urban in character. To
legally achieve that result, the municipality must give appellants just compensation and an opportunity to
be heard.

2. Napocor vs. Gutierrez, 193 SCRA 1 (1991)

o While it is true that plaintiff are only after a right-of-way easement, it nevertheless perpetually deprives
defendants of their proprietary rights as manifested by the imposition by the plaintiff upon
defendants that below said transmission lines no plant higher than three (3) meters is allowed.

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NOTES TO CONSTITUTION 2
The foregoing facts considered; the acquisition of the right-of-way easement falls within the purview of the
power of eminent domain.
o Just compensation has always been understood to be the just and complete equivalent of the loss which
the owner of the thing expropriated has to suffer by reason of the expropriation.
o The price or value of the land and its character at the time it was taken by the Government are the criteria
for determining just compensation. The above price refers to the market value of the land which may be
the full market value thereof.
o The power of eminent domain may be exercised although title was not transferred to the expropriator.

3. Napocor v. San Pedro, G.R. 170945, September 26, 2006

o Expropriation is not limited to the acquisition of real property with a corresponding transfer of title or
possession. The right-of-way easement resulting in a restriction or limitation on property rights over the
land traversed by transmission lines, as in the present case, also falls within the ambit of the term
"expropriation.”

4. U.S. v. Causby, 328 U.S. 256 (1946)

o Deprivation of chicken farm beside the airport was considered taking. Without defining a specific limit, the
Court stated that flights over the land could be considered a violation of the Takings Clause if they led to
"a direct and immediate interference with the enjoyment and use of the land."

5. PPI v. Comelec, 244 SCRA 272 (1995)

o To compel print media companies to donate "Comelec space" amounts to "taking" of private personal
property for public use or purposes.
o The taking of private property for public use is, of course, authorized by the Constitution, but not without
payment of "just compensation" (Article III, Section 9). And apparently the necessity of paying
compensation for "Comelec space" is precisely what is sought to be avoided by respondent Commission.

6. City of Mandaluyong v. Francisco, G.R. No. 137152, January 29, 2001

o URBAN DEVELOPMENT HOUSING ACT OF 1992 - Acquisition of the lands for urban land reform must
follow the priority list and expropriation shall be resorted to when other modes of acquisition have been
exhausted.
o PRIORITIES IN THE ACQUISITION OF LAND FOR SOCIALIZED HOUSING. — Lands for socialized
housing are to be acquired in the following order: (1) government lands; (2) alienable lands of public domain;
(3) unregistered or abandoned or idle lands within the declared Areas for Priority Development (APD), Zonal
Improvement Program (ZIP) sites, Slum Improvement and Resettlement (SIR) sites which have not yet
been acquired; (5) BLISS sites which have not yet been acquired; and (6) privately-owned lands.
o MODES OF LAND ACQUISITION. — Lands for socialized housing under R.A. 7279 are to be acquired in
several modes. Among these modes are the following: (1) community mortgage; (2) land swapping, (3)
land assembly or consolidation; (4) land banking; (5) donation to the government; (6) joint venture
agreement; (7) negotiated purchase; and (8) expropriation. The mode or expropriation is subject to two
conditions: (a) it shall be resorted to only when the other modes of acquisition have been exhausted; and
(b) parcels of land owned by small property owners are exempt from such acquisition.
o Under RA 7279, parcels of land owned by small-property owners are exempted from expropriation.
o "Small property owners" refers to those whose only real property consists of residential lands not
exceeding three hundred square meters (300 sq.m.) in highly urbanized cities and eight hundred square
meters (800 sq.m.) in other urban areas."

7. Lagcao v. Judge Labra, G.R. No. 155746, October 13, 2004

o Section 9 and 10 of RA 7279 are strict limitations on the exercise of the power of eminent domain by local
government units, especially with respect to (1) the order of priority in acquiring land for socialized
housing and (2) the resort to expropriation proceedings as a means to acquiring it. Private lands
rank last in the order of priority for purposes of socialized housing. In the same vein,
expropriation proceedings may be resorted to only after the other modes of acquisition are
exhausted. Compliance with these conditions is mandatory because these are the only safeguards of
oftentimes helpless owners of private property against what may be a tyrannical violation of due process
when their property is forcibly taken from them allegedly for public use.

8. JIL v. Mun. of Pasig, G.R. 152230, August 9, 2005

o The subject property is expropriated for the purpose of constructing a road. The respondent is not
mandated to comply with the essential requisites for an easement of right-of-way under the New Civil
Code. Case law has it that in the absence of legislative restriction, the grantee of the power of eminent
domain may determine the location and route of the land to be taken unless such determination is
capricious and wantonly injurious. Expropriation is justified so long as it is for the public good and
there is genuine necessity of public character. Government may not capriciously choose what
private property should be taken.
o The respondent has demonstrated the necessity for constructing a road from E. R. Santos Street to Sto.
Tomas Bukid. The witnesses, who were residents of Sto. Tomas Bukid, testified that although there were

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
other ways through which one can enter the vicinity, no vehicle, however, especially fire trucks, could
enter the area except through the newly constructed Damayan Street. This is more than sufficient to
establish that there is a genuine necessity for the construction of a road in the area. After all, absolute
necessity is not required, only reasonable and practical necessity will suffice.

9. Vda de Ouano vs. Republic, 168770, February 9, 2011

o In MCIAA v. Lozada, with respect to the element of public use, the expropriator should commit to use the
property pursuant to the purpose stated in the petition for expropriation filed, failing which, it should file
another petition for the 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.
o the government merely held the properties condemned in trust until the proposed public use or purpose
for which the lots were condemned was actually consummated by the government.
o Public use, as an eminent domain concept, has now acquired an expansive meaning to include any use
that is of "usefulness, utility, or advantage, or what is productive of general benefit [of the public]."
o If the genuine public necessity — the very reason or condition as it were — allowing, at the first instance,
the expropriation of a private land ceases or disappears, then there is no more cogent point for the
government's retention of the expropriated land. The same legal situation should hold if the government
devotes the property to another public use very much different from the original or deviates from the
declared purpose to benefit another private person. It has been said that the direct use by the state of its
power to oblige landowners to renounce their productive possession to another citizen, who will use it
predominantly for that citizen's own private gain, is offensive to our laws.

7. Priority in Expropriation
1. Filstream International v. CA, 284 SCRA 716 (1998)
o Private lands rank last in the order of priority for purposes of socialized housing. In the same vein,
expropriation proceedings are to be resorted to only when the other modes of acquisition have been
exhausted. Compliance with these conditions must be deemed mandatory because these are the only
safeguards in securing the right of owners of private property to due process when their property is
expropriated for public use.

8. Public use
1. Heirs of Juancho Ardona vs. Reyes, 125 SCRA 220 (1983)
o Land expropriated for “tourism” is included in the term “public use”.
o Whatever may be beneficially employed for the general welfare satisfies the requirement of public use.
o The petitioners' contention that the promotion of tourism is not "public use" because private
concessioners would be allowed to maintain various facilities such as restaurants, hotels, stores, etc.
inside the tourist complex is impressed with even less merit. Private bus firms, taxicab fleets, roadside
restaurants, and other private businesses using public streets and highways do not diminish in the least
bit the public character of expropriations for roads and streets. The lease of store spaces in underpasses
of streets built on expropriated land does not make the taking for a private purpose. Airports and piers
catering exclusively to private airlines and shipping companies are still for public use.

2. Sumulong vs. Guerrero, 154 SCRA 461 (1987)

o “socialized housing” fans within the confines of “public use.
o the "public use" requirement for exercise of the power of eminent domain is a flexible and evolving
concept influenced by changing conditions. There was a time when it was felt that a literal meaning
should be attached to such a requirement. Whatever project is undertaken must be for the public to enjoy,
as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not anymore. As long as
the purpose of the taking is public, then the power of eminent domain comes into play. As just noted, the
constitution in at least two cases, to remove any doubt, determines what is public use. One is the
expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is in the
transfer, through the exercise of this power, of utilities and other private enterprise to the government. It is
accurate to state then that at present whatever may be beneficially employed for the general welfare
satisfies the requirement of public use.

3. Province of Camarines Sur vs. CA, 222 SCRA 170 (1993)

o The expropriation of the property for establishment of pilot development center is for a public
purpose because it would inure to the direct benefit and advantage of the people of the Province of
Camarines Sur.
o Modernly, there has been a shift from the literal to a broader interpretation of "public purpose" or "public
use" for which the power of eminent domain may be exercised. The old concept was that the condemned
property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the
taking thereof could satisfy the constitutional requirement of "public use". Under the new concept,
"public use" means public advantage, convenience or benefit, which tends to contribute to the
general welfare and the prosperity of the whole community, like a resort complex for tourists or
housing project.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
4. Manosca v. Court of Appeals, 252 SCRA 412 (1996)
o The expropriation of land for the establishment of national historical landmark for INC leader Felix
Manalo is for public use.
o The purpose in setting up the marker is essentially to recognize the distinctive contribution of the
late Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and
leadership of the Iglesia ni Cristo. The practical reality that greater benefit may be derived by members of
the Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to
be merely incidental and secondary in nature. Indeed, that only a few would actually benefit from the
expropriation of property does not necessarily diminish the essence and character of public use.

5. Estate of Jimenez v. PEZA, G.R. No. 137285, January 16, 2001

o The expropriation of land by PEZA for leased to banks and for the construction of a terminal is for
public use. It is for the purpose of making banking and transportation facilities easily accessible to the
persons working at the industries located in PEZA. The expropriation of adjacent areas therefore comes
as a matter of necessity to bring life to the purpose of the law. In such a manner, PEZA's goal of being a
major force in the economic development of the country would be realized.

6. Reyes vs. NHA, GR No. 147511, January 20, 2003

o Taking of property for socialized housing is for public use.
o Lands for socialized housing are to be acquired n the following order: 1) government lands; 2) alienable
lands of the public domain; 3) unregistered or abandoned or idle lands; 4) lands within the declared areas
for priority development, zonal improvement program sites, slum improvement and resettlement sites
which have not yet been acquired; 5) BLISS sites which have not yet been acquired; and 6) privately-
owned lands (City of Mandaluyong vs. Aguilar, 350SCRA 487 2001).
o The idea that "public use" is strictly limited to clear cases of "use by the public" has been abandoned. The
term "public use" has now been held to be synonymous with "public interest," "public benefit," "public
welfare," and "public convenience."
o Public purpose was not abandoned by failure to relocate the squatters to the expropriated lands. The low-
cost housing project of the NHA on the subject lots to be sold to qualified low income beneficiaries is not
a deviation from public purpose; it is in furtherance of social justice.

7. Moday vs. CA, 268 SCRA 568

o Expropriation for farmers center and other government sports facilities is for public purpose.

8. Asia’s Emerging Dragon Corp. v. DOTC, 552 SCRA 59

o The Government seeks to expropriate a building complex constructed on land which the State already
owns.
o The right of eminent domain extends to personal and real property, and the NAIA 3 structures, adhered
as they are to the soil, are considered as real property. The public purpose for the expropriation is also
beyond dispute. It should also be noted that Section 1 of Rule 67 (on Expropriation) recognizes the
possibility that the property sought to be expropriated may be titled in the name of the Republic of the
Philippines, although occupied by private individuals.
o However, the reason for the resort by the Government to expropriation proceedings is understandable in
this case. The 2004 Resolution, in requiring the payment of just compensation prior to the takeover by the
Government of NAIA 3, effectively precluded it from acquiring possession or ownership of the NAIA 3
through the unilateral exercise of its rights as the owner of the ground on which the facilities stood. Thus,
as things stood after the 2004 Resolution, the right of the Government to take over the NAIA 3 terminal
was preconditioned by lawful order on the payment of just compensation to PIATCO as builder of the
structures.
o The State, through expropriation proceedings may take private property even if, admittedly, it will transfer
this property again to another private party as long as there is public purpose to the taking.

9. MCWD v. J. King and Sons Co., Inc. 175983, April 16, 2009
o Water supply is for public use covered by RA 8974.
o MCWD is one of the numerous government offices so empowered. Under its charter, P.D. No. 198, as
amended, petitioner is explicitly granted the power of eminent domain.
o R.A. No. 894 includes projects undertaken by government owned and controlled corporations, such as
petitioner. Moreover, the Implementing Rules and Regulations of R.A. No. 8974 explicitly includes water
supply, sewerage, and waste management facilities among the national government projects covered by
the law. It is beyond question, therefore, that R.A. No. 8974 applies to the expropriation subject of this
case.
o For MCWD to exercise its power of eminent domain, two requirements should be met, namely: first, its
board of directors passed a resolution authorizing the expropriation, and second, the exercise of the
power of eminent domain was subjected to review by the LWUA.

9. Government Withdrawal
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
1. NHA v. Heirs of Isidro Guivelondo, G.R. No. 154411. June 19, 2003
o After finding that the just compensation set by the court for the land sought to be expropriated was too
high for the implementation of a socialized housing project, the petitioner filed with the trial court a motion
to dismiss the expropriation case. The State cannot withdraw the Order because it already became final
and executory.
o Rules on withdrawal or dismissal of expropriation proceedings
1. During the trial - If, for example, during the trial in the lower court, it should be made to appear to the
satisfaction of the court that the expropriation is not for some public use, it would be the duty and the
obligation of the trial court to dismiss the action.
2. During appeal - and even during the pendency of the appeal, if it should be made to appear to the
satisfaction of the appellate court that the expropriation is not for public use, then it would become the
duty and the obligation of the appellate court to dismiss it.
3. After became final and executory – expropriator cannot be permitted to abandon or withdraw it later
when it finds the amount of just compensation unacceptable and when the landowner has already been
prejudiced.
2. NPC & Pobre v. CA, G.R. No. 106804. August 12, 2004
o Ordinarily, the dismissal of the expropriation case restores possession of the expropriated land to the
landowner. However, when possession of the land cannot be turned over to the landowner because it is
neither convenient nor feasible anymore to do so, the only remedy available to the aggrieved landowner
is to demand payment of just compensation.
3. NAPOCOR v. POSADA, G.R. No. 191945 , [March 11, 2015], 755 PHIL 613-646
o When the taking of private property is no longer for a public purpose, the expropriation complaint should
be dismissed by the trial court. The case will proceed only if the trial court's order of expropriation became
final and executory and the expropriation causes prejudice to the property owner.
o The expropriation case is not automatically dismissed when the property ceases to be for public use. The
state must first file the appropriate Motion to Withdraw before the trial court having jurisdiction over the
proceedings. The grant or denial of any Motion to Withdraw in an expropriation proceeding is always
subject to judicial discretion.
o The rule, therefore, is that expropriation proceedings must be dismissed when it is determined that it is
not for a public purpose, except when:

i. First, the trial court's order already became final and executory;
ii. Second, the government already took possession of the property; and
iii. Lastly, the expropriation case already caused prejudice to the landowner.

10. Recovery of Expropriated Land

1. ATO v. GOPUCO G.R. No. 158563, June, 30 2005
o ATO expropriated the property of GOPUCO for fee simple without condition of repurchase in event that
the public purpose or plan is abandoned. When private land so expropriated for a particular public use is
abandoned, does its former owner acquire a cause of action for recovery of the property?
o No, land has been acquired for public use in FEE SIMPLE, UNCONDITIONALLY, either by the exercise
of eminent domain or by purchase, the former owner retains no rights in the land, and the public use may
be abandoned or the land may be devoted to a different use, without any impairment of the estate or title
acquired, or any reversion to the former owner
o Rule of Recovery of Expropriated Land
However, the answer to the issue depends upon the character of the title acquired by the expropriator,
whether it be the State, a province, a municipality, or a corporation which has the right to acquire property
under the power of eminent domain.
1. CONDITIONAL - If land is expropriated for a particular purpose, with the condition that when that
purpose is ended or abandoned the property shall return to its former owner, then, of course, when the
purpose is terminated or abandoned the former owner reacquires the property so expropriated.
2. FEE SIMPLE - If upon the contrary, however, the decree of expropriation gives to the entity a fee simple
title, then of course, the land becomes the absolute property of the expropriator, whether it be the State,
a province, or municipality, and in that case the non-user does not have the effect of defeating the title
acquired by the expropriation proceedings.
2. Vda de Ouano v. Republic, G.R. Nos. 168770 & 168812, [February 9, 2011], 657 PHIL
391-422
o NAC (MCIAA) expropriated the property of Ouano for expansion plan of old Lahug Airport with a
promise that incase the airport plan will not pursue, the owners would be allowed to repurchase
the lot. If there is abandonment of the public use for which the subject properties were expropriated,
could the property owner reacquire them?

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o Yes. Once the purpose is terminated or peremptorily abandoned, then the former owner, if he so desires,
may seek its reversion, subject of course to the return, at the very least, of the just compensation
received.
o If the genuine public necessity — the very reason or condition as it were — allowing, at the first instance,
the expropriation of a private land ceases or disappears, then there is no more cogent point for the
government's retention of the expropriated land. The same legal situation should hold if the government
devotes the property to another public use very much different from the original or deviates from the
declared purpose to benefit another private person. It has been said that the direct use by the state of its
power to oblige landowners to renounce their productive possession to another citizen, who will use it
predominantly for that citizen's own private gain, is offensive to our laws.
o The government merely held the properties condemned in trust until the proposed public use or purpose
for which the lots were condemned was actually consummated by the government.
o The twin elements of just compensation and public purpose are, by themselves, direct limitations to the
exercise of eminent domain, arguing, in a way, against the notion of fee simple title. The simple fee does
not vest until payment of just compensation. In esse, expropriation is forced private property taking, the
landowner being really without a ghost of a chance to defeat the case of the expropriating agency. In
other words, in expropriation, the private owner is deprived of property against his will. Withal, the
mandatory requirement of due process ought to be strictly followed, such that the state must show, at the
minimum, a genuine need, an exacting public purpose to take private property, the purpose to be
specifically alleged or least reasonably deducible from the complaint. Public use, as an eminent domain
concept, has now acquired an expansive meaning to include any use that is of usefulness, utility, or
advantage, or what is productive of general benefit [of the public]. If the genuine public necessity the very
reason or condition as it were allowing, at the first instance, the expropriation of a private land ceases or
disappears, then there is no more cogent point for the governments retention of the expropriated land.
The same legal situation should hold if the government devotes the property to another public use very
much different from the original or deviates from the declared purpose to benefit another private person. It
has been said that the direct use by the state of its power to oblige landowners to renounce their
productive possession to another citizen, who will use it predominantly for that citizens own private gain,
is offensive to our laws. A condemnor should commit to use the property pursuant to the purpose stated
in the petition for expropriation, failing which it should file another petition for the new purpose. If not, then
it behooves the condemnor to return the said property to its private owner, if the latter so desires. The
government cannot plausibly keep the property it expropriated in any manner it pleases and, in the
process, dishonor the judgment of expropriation. This is not in keeping with the idea of fair play

3. Republic v. Lim G.R. 161656, June 29, 2005

o Whether the owner of the expropriated land is entitled for the repossession of his property when
party condemning refuses to pay the compensation which has been assessed or agreed upon?
o FIVE-YEAR PERIOD LIMITATION - while the prevailing doctrine is that “the non-payment of just
compensation does not entitle the private landowner to recover possession of the expropriated lots,
however, in cases where the government failed to pay just compensation within five (5) years from
the finality of the judgment in the expropriation proceedings, the owners concerned shall have the
right to recover possession of their property.
o Without prompt payment, compensation cannot be considered “just.”

4. ATO vs. Tongoy, 551 SCRA 320

o the right of the previous owners who were able to prove the commitment of the government to allow them
to repurchase their land.

11. Genuine Necessity

1. Mun. of Meycayauan vs. IAC, 157 SCRA 640 (1988)
o The Municipality of Meycayauan sought to expropriate a lot used by a pipe company for storing their
heavy equipment and various finished products such as large diameter steel pipes, pontoon pipes for
ports, wharves, and harbors, bridge components, pre-stressed girders and piles, large diameter concrete
pipes, and parts for low cost housing. The purpose was to build connecting links of road but there were
already 4 connecting roads in the area and there were other lots offered for sale.
o There is no genuine necessity. There is absolutely no showing in the petition why the more appropriate lot
for the proposed road which was offered for sale has not been the subject of the petitioner's attempt to
expropriate assuming there is a real need for another connecting road.
o As early as City of Manila v. Chinese Community of Manila (40 Phil. 349) this Court held that the
foundation of the right to exercise the power of eminent domain is genuine necessity and that necessity
must be of a public character. Condemnation of private property is justified only if it is for the public good
and there is a genuine necessity of a public character. Consequently, the courts have the power to
require into the legality of the exercise of the right of eminent domain and to determine whether there is a
genuine necessity therefor (Republic v. La Orden de PP. Benedictos de Filipinas, 1 SCRA 646)

2. De Knecht vs. Bautista, 100 SCRA 660 (1980)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o The Republic thru the DPWH prepared a plan extension of EDSA to Roxas Boulevard. The original plan
of EDSA extension was to pass through Cuneta avenue upto Roxas Boulevard. Later, DPWH has
decided to change the proposed extension go through Fernando Rein and Del Pan Streets which are
lined with old substantial houses, including the petitioner. Whether the government can choose any
property it wants to expropriate?
o No. The government may not capriciously or arbitrarily choose what private property should be taken.
o There is no question as to the right of the Republic of the Philippines to take private property for public
use upon the payment of just compensation. Section 2, Article IV of the Constitution of the Philippines
provides: 'Private property shall not be taken for public use without just compensation."
o With due recognition then of the power of Congress to designate the particular property to be taken and
how much thereof may be condemned in the exercise of the power of expropriation, it is still a judicial
question whether in the exercise of such competence the party adversely affected is the victim of partiality
and prejudice. That the equal protection clause will not allow.

3. Republic vs. De Knecht, G.R. 87335, February 12, 1990

o Whether an expropriation proceeding that was determined by a final judgment of this Court may be the
subject of a subsequent legislation for expropriation?
o Yes. Subsequent legislation for expropriation may supersede final and executory decision of the Court if
the legislative fiat is based on new supervening event that justify expropriation.
o Supervening events have changed the factual basis of that decision to justify the subsequent enactment
of the statute. If we are sustaining that legislation, it is not because we concede that the lawmakers can
nullify the findings of the Court in the exercise of its discretion.
o Expropriation proceedings may be undertaken by the petitioner not only by voluntary negotiation with the
land owners but also by taking appropriate court action or by legislation.
o Anterior decision of the Court must yield to subsequent legislative fiat based on supervening event that
justify expropriation.

4. De la Paz Masikip v. Judge Legaspi, G.R. No. 136349, January 23, 2006
o The City of Pasig sought to expropriate a land for sports development and recreational activity center
intended for a subdivision association who are desirous of having their own private playground and
recreation facility.
o The purpose is not clearly and categorically public. The right to take private property for public purposes
necessarily originates from "the necessity" and the taking must be limited to such necessity.
o In City of Manila v. Arellano Law College, we ruled that "necessity within the rule that the particular
property to be expropriated must be necessary, does not mean an absolute but only a reasonable or
practical necessity, such as would combine the greatest benefit to the public with the least inconvenience
and expense to the condemning party and the property owner consistent with such benefit."

12. Just Compensation:

13. Defined
1. Eslaban v. De Onorio, G.R. No. 146062, June 28, 2001
o Fair market value - “that sum of money which a person, desirous but not compelled to buy, and an owner,
willing but not compelled to sell, would agree on as a price to be given and received therefor."
o It is determined either as of the date of the taking of the property or the filing of the complaint, "whichever
came first”
o Just compensation means not only the correct amount to be paid to the owner of the land but also the
payment of the land within a reasonable time from its taking. Without prompt payment, compensation
cannot be considered "just" for then the property owner is made to suffer the consequence of being
immediately deprived of his land while being made to wait for a decade or more before actually receiving
the amount necessary to cope with his loss.

2. RP vs. IAC, et al., G.R. No. 71176, May 21, 1990

o The just compensation prescribed herein is based on the commissioners' recommendation which in turn
is founded on the "audited" statements of Amerex that the property.
o The court rejected the report of the commissioner.
o The determination of just compensation for a condemned property is basically a judicial function.
As the court is not bound by the commissioners' report, it may make such order or render such judgment
as shall secure to the plaintiff the property essential to the exercise of its right of condemnation, and to
the defendant just compensation for the property expropriated. For that matter, this Court may even
substitute its own estimate of the value as gathered from the record. Hence, although the determination of
just compensation appears to be a factual matter which is ordinarily outside the ambit of its jurisdiction,
this Court may disturb the lower court's factual finding on appeal when there is clear error or grave abuse
of discretion.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
3. RP vs. Gingoyon, December 19, 2005
o The just compensation for the valuation of the improvements/structures are to be based using “the
replacement cost method” or incase there is no existing valuation of the area concerned, that which is
the “proferred value”.

4. Cmsr. of Internal Revenue vs. Central Luzon Drug Corporation, GR No. 148512, June
26, 2006; Cmsr. of Internal Revenue vs. Bicolandia Drug Corp., GR No. 148083, July
21, 2006
o The tax credit that is contemplated under the Act is a form of just compensation, not a remedy for
taxes that were erroneously or illegally assessed and collected.
o The tax credit given to commercial establishments for the discount enjoyed by senior citizens pursuant to
RA 7432 is a form of just compensation for private property taken by the State for public use, since the
privilege enjoyed by senior citizens does not come directly from the State, but from private establishments
concerned.
o Public use does not mean use by the public. As long as the purpose of the taking is public, then power of
eminent domain comes into play. It is inconsequential that private entities may benefit as long as in the
end, public interest is served (Ardona vs. Reyes).

5. Office of the SolGen v. Ayala Land Inc., GR No. 177056, September 18, 2009
o The total prohibition against the collection by respondents of parking fees from persons who use the mall
parking facilities has no basis in the National Building Code or its IRR. The State also cannot impose the
same prohibition by generally invoking police power, since said prohibition amounts to a taking of
respondents' property without payment of just compensation.

6. Rep. v. Lim, June 29, 2005

o Section 9, Article III of the Constitution is not a grant but a limitation of power. This limiting function is in
keeping with the philosophy of the Bill of Rights against the arbitrary exercise of governmental powers to
the detriment of the individual’s rights. Given this function, the provision should therefore be strictly
interpreted against the expropriator, the government, and liberally in favor of the property owner.
o While the prevailing doctrine is that “the non-payment of just compensation does not entitle the private
landowner to recover possession of the expropriated lots, however, in cases where the government failed
to pay just compensation within five (5) years from the finality of the judgment in the expropriation
proceedings, the owners concerned shall have the right to recover possession of their property. This is in
consonance with the principle that “the government cannot keep the property and dishonor the judgment.”
To be sure, the five-year period limitation will encourage the government to pay just compensation
punctually. This is in keeping with justice and equity. After all, it is the duty of the government, whenever
it takes property from private persons against their will, to facilitate the payment of just compensation.

7. Rep. v. Gingoyon, December 19, 2005

o There are at least two crucial differences between the respective procedures under Rep. Act No. 8974
and Rule 67. Under the statute, the Government is required to make immediate payment to the property
owner upon the filing of the complaint to be entitled to a writ of possession, whereas in Rule 67, the
Government is required only to make an initial deposit with an authorized government depositary.
Moreover, Rule 67 prescribes that the initial deposit be equivalent to the assessed value of the property
for purposes of taxation, unlike Rep. Act No. 8974 which provides, as the relevant standard for initial
compensation, the market value of the property as stated in the tax declaration or the current relevant
zonal valuation of the Bureau of Internal Revenue (BIR), whichever is higher, and the value of the
improvements and/or structures using the replacement cost method.

8. RA 8974
o See above
9. Rule 67 of the Rules of Court
o See above
10. LBP v. Honeycomb Farms Corp., GR No. 169903, February 29, 2012
o When the State exercises the power of eminent domain in the implementation of its agrarian program, the
constitutional provision which governs is Section 4 Article XIII of the constitution which provides that the
State shall, by law, undertake an agrarian reform program founded on the right of the farmers and regular
farm workers who are landless, to own directly or collectively the lands they till or, in the case of other
farm workers, to receive a just share of the fruits thereof.
o Notably, the provision also imposes upon the State the obligation of paying landowner compensation for
the land taken, even if it is for the government’s agrarian reform purposes.
o It pertains to the fair and full price if the taken property.
11. Tiongson vs. NHA, 558 SCRA 56

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o Where the initial taking of a property subject to expropriation was by virtue of a law which was
subsequently declared unconstitutional, just compensation is to be determined as of the date of the filing
of the complaint, and not the earlier taking.

12. Vda de Ouano vs. Republic, 168770, February 9, 2011

o The twin elements of just compensation and public purpose are, by themselves, direct limitations to the
exercise of eminent domain, arguing, in a way, against the notion of fee simple title.
o The simple fee does not vest until payment of just compensation.

13. Secretary of DPWH vs. Heracleo, GR 179334 Apr 21 2015

o The government’s failure to initiate the necessary expropriation proceedings prior to actual taking cannot
simply invalidate the State’s exercise of its eminent domain power, given that the property subject of
expropriation is indubitably devoted for public use, and public policy imposes upon the public utility the
obligation to continue its services to the public. To hastily nullify said expropriation in the guise of lack of
due process would certainly diminish or weaken one of the State’s inherent powers, the ultimate objective
of which is to serve the greater good. Thus, the non-filing of the case for expropriation will not necessarily
lead to the return of the property to the landowner. What is left to the landowner is the right of
compensation.
o While it may appear inequitable to the private owners to receive an outdated valuation, the long-
established rule is that the fair equivalent of a property should be computed not at the time of payment,
but at the time of taking. This is because the purpose of ‘just compensation’ is not to reward the owner for
the property taken but to compensate him for the loss thereof. The owner should be compensated only for
what he actually loses, and what he loses is the actual value of the property at the time it is taken.
o The Court must adhere to the doctrine that its first and fundamental duty is the application of the law
according to its express terms, interpretation being called for only when such literal application is
impossible. To entertain other formula for computing just compensation, contrary to those established by
law and jurisprudence, would open varying interpretation of economic policies – a matter which this Court
has no competence to take cognizance of. Equity and equitable principles only come into full play when a
gap exists in the law and jurisprudence.
o For purposes of “just” compensation, the value of the land should be determined from the time the
property owners filed the initiatory complaint, earning interest therefrom. To hold otherwise would validate
the State’s act as one of expropriation in spite of procedural infirmities which, in turn, would amount to
unjust enrichment on its part. To continue condoning such acts would be licensing the government to
continue dispensing with constitutional requirements in taking private property.
o Discretionary execution of judgments pending appeal under Sec. 2(a) of Rule 39 simply does not apply to
eminent domain proceedings. Since PPAs monies, facilities and assets are government properties, they
are exempt from execution whether by virtue of a final judgment or pending appeal.
o It is a universal rule that where the State gives its consent to be sued by private parties either by general
or special law, it may limit the claimant’s action only up to the completion of proceedings anterior to the
stage of execution and that the power of the Courts ends when the judgment is rendered, since
government funds and properties may not be seized under writs of execution or garnishment to satisfy
such judgments. This is based on obvious considerations of public policy. Disbursements of public funds
must be covered by the corresponding appropriation as required by law. The functions and public
services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects, as appropriated by law. (Commissioner of Public
Highways vs San Diego, 1970).
o The appropriate standard of just compensation inclusive of the manner of payment thereof and the initial
compensation to the lot owners is a substantive, not merely a procedural, matter. This is because the
right of the owner to receive just compensation prior to acquisition of possession by the State of the
property is a proprietary right. RA 8974, which specifically prescribes the new standards in determining
the amount of just compensation in expropriation cases relating to national government infrastructure
projects, as well as the payment of the provisional value as a prerequisite to the issuance of a writ of
possession, is a substantive law. Further, there is nothing in RA No. 8974 which expressly provides that it
should have retroactive effect. Neither is retroactivity necessarily implied from RA No. 8974 or in any of its
provisions. Hence, it cannot be applied retroactively in relation to this case.
o RA 8974 amended Rule 67 effective November 26, 2000, but only with regard to the expropriation of
right-of-way sites and locations for national government infrastructure projects. On the other hand, in all
other expropriation cases outside of right-of-way sites or locations for national government infrastructure
projects, the provisions of Rule 67 of the Rules of Court shall still govern.

14. DPWH vs. Ng, November 9, 2017

o Just compensation: involves the implementation of a national infrastructure project. Thus, for purposes of
determining the just compensation, RA 8974 and its implementing rules and regulations (IRR), which
were effective at the time of the filing of the complaint, shall govern.
o Cite a method in the determination of just compensation by the court?

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o The replacement cost method is premised on the principle of substitution, which means that "all things
being equal, a rational, informed purchaser would pay no more for a property than the cost of building an
acceptable substitute with like utility."
o Accordingly, the Implementing Agency should consider: (a) construction costs or the current market price
of materials, equipment, labor, as well as the contractor's profit and overhead; and (b) attendant costs or
the cost associated with the acquisition and installation of an acceptable substitute in place of the affected
improvements/structures. In addition, the case of Republic v. Mupas instructs that in using the
replacement cost method to ascertain the value of improvements, the courts may also consider the
relevant standards provided under Section 5 of RA 8974, as well as equity consistent with the principle
that eminent domain is a concept of equity and fairness that attempts to make the landowner whole.
Thus, it is not the amount of the owner's investment, but the "value of the interest" in land taken by
eminent domain, that is guaranteed to the owner.
o While there are various methods of appraising a property using the cost approach, among them, the
reproduction cost, the replacement cost new, and the depreciated replacement cost, Mupas declared that
the use of the depreciated replacement cost method is consistent with the principle that the property
owner shall be compensated for his actual loss, bearing in mind that the concept of just compensation
does not imply fairness to the property owner alone, but must likewise be just to the public which
ultimately bears the cost of expropriation. The property owner is entitled to compensation only for what he
actually loses, and what he loses is only the actual value of the property at the time of the taking. Hence,
even as undervaluation would deprive the owner of his property without due process, so too would its
overvaluation unduly favor him to the prejudice of the public.

15. NAPOCOR v. POSADA, G.R. No. 191945 , [March 11, 2015], 755 PHIL 613-646
o The payment of a provisional value may also serve as indemnity for damages in the event that the
expropriation does not succeed.

16. RP v. Macabagdal January 10, 2018 Interest payment:

o Just compensation: involves the implementation of a national infrastructure project. Thus, for purposes of
determining the just compensation, RA 8974 and its implementing rules and regulations (IRR), which
were effective at the time of the filing of the complaint, shall govern.

14. Determination of Just Compensation

1. EPZA vs. Dulay, 149 SCRA 305 (1987)
o The determination of "just compensation" in eminent domain cases is a judicial function.
o The executive department or the legislature may make the initial determinations but when a party claims
a violation of the guarantee in the Bill of Rights that private property may not be taken for public use
without just compensation, no statute, decree, or executive order can mandate that its own determination
shall prevail over the court's findings. Much less can the courts be precluded from looking into the "just-
ness" of the decreed compensation.
o Various factors can come into play in the valuation of specific properties singled out for expropriation. The
values given by provincial assessors are usually uniform for very wide areas covering several barrios or
even an entire town with the exception of the poblacion. Individual differences are never taken into
account. The value of land is based on such generalities as its possible cultivation for rice, corn, coconuts
or other crops. Very often land described as ‘cogonal’ has been cultivated for generations. Buildings are
described in terms of only two or three classes of building materials and estimates of areas are more
often inaccurate than correct. Tax values can serve as guides but cannot be absolute substitutes for just
compensation.

2. Panes vs. Visayas State College of Agriculture, 263 SCRA 708

o Because the executive determination of just compensation in eminent domain proceedings renders the
courts inutile in a matter which under the Constitution is reserved to them for final determination, we
declared P.D. No. 1533 to be unconstitutional and void in the case of Export Processing Zone Authority v.
Dulay.

3. Belen vs. CA, 195 SCRA 59

o PD 1670 divested the owner their property without appropriate action of eminent domain.
o Presidential Decree No. 1670 which attempted to expropriate by similar legislative fiat another property
was struck down by this Court is unconstitutional and therefore, null and void. The Court found that both
the decrees, being "violative of the petitioners' (owners') right to due process of law," failed "the test of
constitutionality," and that, additionally, they were tainted by another infirmity as regards "the
determination of just compensation.

4. Republic vs. CA, 227 SCRA 401

o This declaration of unconstitutionality may be given retroactive effect.

5. Manila Electric Co. vs. Pineda, 206 SCRA 196

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o All premises considered, this Court is convinced that the respondent judge's act of determining and
ordering the payment of just compensation without the assistance of a Board of Commissioners is a
flagrant violation of petitioner's constitutional right to due process and is a gross violation of the mandated
rule established by the Revised Rules of Court.
o Prior to the determination of just compensation, the property owners may rightfully demand to withdraw
from the deposit made by the condemnor in eminent domain proceedings. Upon an award of a smaller
amount by the court, the property owners are subject to a judgment for the excess or upon the award of a
larger sum, they are entitled to a judgment for the amount awarded by the court. Thus, when the
respondent court granted in the Orders dated December 4, 1981 and December 21, 1981 the motions of
private respondents for withdrawal of certain sums from the deposit of petitioner, without prejudice to the
just compensation that may be proved in the final adjudication of the case, it committed no error.

6. DAR vs. CA, 263 SCRA 758

o Special Agrarian Courts, which are Regional Trial Courts, are given original and exclusive jurisdiction over
two categories of cases, to wit: (1) "all petitions for the determination of just compensation to landowners"
and (2) "the prosecution of all criminal offenses under [R.A. No. 6657]."
o The DAR is an administrative agency which cannot be granted jurisdiction over cases of eminent domain
(for such are takings under R.A. No. 6657) and over criminal cases
o Thus in EPZA v. Dulay and Sumulong v. Guerrero we held that the valuation of property in eminent
domain is essentially a judicial function which cannot be vested in administrative agencies.

7. Republic vs. Santos, 141 SCRA 30

o According to section 8 of Rule 67, the court is not bound by the commissioners' report. It may make such
order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his
right of condemnation, and to the defendant just compensation for the property expropriated. This Court
may substitute its own estimate of the value as gathered from the record.

8. Sps. Lee vs. LBP, GR No. 170422, March 7, 2008

o Comprehensive Agrarian Reform Law (R.A. No. 6657) governs the determination of just compensation for
land expropriated under agrarian reform.
o The Court of Appeals seems to imply that the appointment of commissioners is mandatory in agrarian
reform cases. We do not agree. While the Rules of Court provisions apply to proceedings in special
agrarian courts, it is clear that unlike in expropriation proceedings under the Rules of Court the
appointment of a commissioner or commissioners is discretionary on the part of the court or upon the
instance of one of the parties. And when the court does resort to the commissioners-type of appraisal, it is
not circumscribed to appoint three commissioners, unlike the modality under Rule 67.

9. National Power Corporation v. Manubay Agro-Industrial

o [Market value] is not limited to the assessed value of the property or to the schedule of market values
determined by the provincial or city appraisal committee. However, these values may serve as factors to
be considered in the judicial valuation of the property.
o The recommended price of the city assessor was rejected by this Court. The opinions of the banks and
the realtors as reflected in the computation of the market value of the property and in the Commissioners’
Report, were not substantiated by any documentary evidence.

10. National Power Corporation v. Diato-Bernal

o this Court rejected the valuation recommended by court-appointed commissioners whose conclusions
were devoid of any actual and reliable basis. The market values of the subject property’s neighboring lots
were found to be mere estimates and unsupported by any corroborative documents, such as sworn
declarations of realtors in the area concerned, tax declarations or zonal valuation from the BIR for the
contiguous residential dwellings and commercial establishments. Thus, we ruled that a commissioners’
report of land prices which is not based on any documentary evidence is manifestly hearsay and should
be disregarded by the court.

11. Republic v. Asia Pacific Integrated Steel Corporation

o What is the proper basis for determining the amount of just compensation in expropriation cases pursuant
to RA 8974 (AN ACT TO FACILITATE THE ACQUISITION OF RIGHT-OF-WAY, SITE OR LOCATION
FOR NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS AND FOR OTHER PURPOSES)?
o Section 5 of R.A. 8974 enumerates the standards for assessing the value of expropriated land taken for
national government infrastructure projects. In order to facilitate the determination of just compensation,
the court may consider, among other well-established factors, the following relevant standards:

1. The classification and use for which the property is suited;

2. The developmental costs for improving the land;
3. The value declared by the owners;
4. The current selling price of similar lands in the vicinity;
5. The reasonable disturbance compensation for the removal and/or demolition of certain improvements
on the land and for the value of the improvements thereon;
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
6. The size, shape or location, tax declaration and zonal valuation of the land;
7. The price of the land as manifested in the ocular findings, oral as well as documentary evidence
presented; and
8. Such facts and events as to enable the affected property owners to have sufficient funds to acquire
similarly-situated lands of approximate areas as those required from them by the government, and
thereby rehabilitate themselves as early as possible.

15. When Determined

1. Ansaldo vs. Tantuico, G.R. 50147 August 3, 1990
o Where the expropriating agency takes over the property prior to the expropriation suit, as in this case —
although, to repeat, the case at bar is quite extraordinary in that possession was taken by the
expropriator more than 40 years prior to suit.
o In these instances, this Court has ruled that the just compensation shall be determined as of the
time of taking, not as of the time of filing of the action of eminent domain.
o Owner was granted with 6% interest per annum from the time of taking upto until full payment.
o As stated in Republic v. Philippine National Bank, ". . . (W)hen plaintiff takes possession before the
institution of the condemnation proceedings, the value should be fixed as of the time of the taking of said
possession, not of filing of the complaint and the latter should be the basis for the determination of the
value, when the taking of the property involved coincides with or is subsequent to, the commencement of
the proceedings. Indeed, otherwise, the provision of Rule 69, Section 3, directing that compensation 'be
determined as of the date of the filing of the complaint' would never be operative. As intimated in Republic
v. Lara (supra), said provision contemplates 'normal circumstances,' under which 'the complaint coincides
or even precedes the taking of the property by the plaintiff.'"
o The owner of private property should be compensated only for what he actually loses; it is not intended
that his compensation shall extend beyond his loss or injury. And what he loses is only the actual value of
his property at the time it is taken. This is the only way that compensation to be paid can be truly just; i.e.,
'just not only to the individual whose property is taken,' 'but to the public, which is to pay for it.'"

2. NAPOCOR v. Tiangco, G.R. No. 170846, February 6, 2007

o In eminent domain cases, the time of taking is the filing of the complaint which is deemed to be the time
of taking the property, if there was no actual taking prior thereto.

3. City of Cebu v. Spouses Dedamo, G.R. No. 142 971, May 07, 2002
o For expropriation by local government unit, the applicable law as to the point of reckoning for the
determination of just compensation is Section 19 of R.A. No. 7160, which expressly provides that just
compensation shall be determined as of the time of actual taking.
o While Section 4, Rule 67 of the Rules of Court provides that just compensation shall be determined at the
time of the filing of the complaint for expropriation, such law cannot prevail over R.A. 7160, which is a
substantive law.

16. Manner of Payment

1. Assoc.of Small Landowners v. DAR, 175 SCRA 343 (1989)
o The compensation shall be paid in one of the following modes, at the option of the landowner: (SEC. 18.
RA 6657 CARP LAW)
1. Cash payment
2. Shares of stock
3. Tax credits
4. LBP bonds
2. DAR v. CA, 249 SCRA 149 (1995)
o It is very explicit therefrom that the deposit must be made only in "cash" or in "LBP bonds." Nowhere does
it appear nor can it be inferred that the deposit can be made in any other form. If it were the intention to
include a "trust account" among the valid modes of deposit, that should have been made express, or at
least, qualifying words ought to have appeared from which it can be fairly deduced that a "trust account"
is allowed. In sum, there is no ambiguity in Section 16(e) of RA 6657 to warrant an expanded construction
of the term "deposit."
o Section 16(e) of RA 6657 provides as follows:

"SECTION 16. Procedure for Acquisition of Private Lands. — . . .

(e) Upon receipt by the landowner of the corresponding payment or, in case of rejection or no response
from the landowner, upon the deposit with an accessible bank designated by the DAR of the
compensation in cash or in LBP bonds in accordance with this Act, the DAR shall take immediate
possession of the land and shall request the proper Register of Deeds to issue a Transfer Certificate of
Title (TCT) in the name of the Republic of the Philippines. . . ." (Emphasis supplied.)

3. LBP vs. Eusebio, July 2, 2014

OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
o LBP, in this case, opened a trust account to provisionally pay Eusebio for the property taken. In Land
Bank of the Philippines v. Honeycomb Farms Corporation, we struck down as void the DAR
administrative circular that provided for the opening of the trust accounts in lieu of the deposit in cash or
in bonds contemplated in Section 16(e) of R.A. No. 6657. We pointedly declared that the explicit words of
Section 16(e) did not include "trust accounts," but only cash or bonds, as valid modes of satisfying the
government’s payment of just compensation.

17. Trial with Commissioners

1. Meralco v. Pineda, 206 SCRA 196 (1992)
o In an expropriation case where the principal issue is the determination of just compensation, a trial before
the Commissioners is indispensable to allow the parties to present evidence on the issue of just
compensation.
o Under the Revised Rules of Court, the determination by the Court of "the just compensation for the
property sought to be taken" is done by the Court with the assistance of not more than three (3)
commissioners. The Court emphasized in the case of Municipality of Binan vs. Hon. Jose Mar Garcia that
there are two (2) stages in every action of expropriation. The first is concerned with the determination of
the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in
the context of the facts involved in the suit. The second phase of the eminent domain action is concerned
with the determination by the Court of "the just compensation for the property sought to be taken." This is
done by the Court with the assistance of not more than three (3) commissioners.
o However, it is true that the findings of commissioners may be disregarded and the court may substitute its
own estimate of the value, the latter may only do so for valid reasons, i.e., where the Commissioners
have applied illegal principles to the evidence submitted to them or where they have disregarded a clear
preponderance of evidence, or where the amount allowed is either grossly inadequate or excessive.

2. NPC v. Henson, G.R. No. 129998, December 29, 1998

o The court emphasized that it is a must to conduct a hearing on the commissioners’ report in order to
give the parties the chance to contest the findings, and/or adduce evidence.

3. Napocor v. Sps. De la Cruz, G.R. No. 156093, February 2, 2007

o The appointment of commissioners to ascertain just compensation for the property sought to be taken is a
mandatory requirement in expropriation cases.

4. Leca Realty v. Republic, G.R. No. 155605, September 27, 2006

o Zonal valuation is simply one of the indices of the fair market value of real estate. By itself, however, this
index cannot be the sole basis of "just compensation" in expropriation cases. The standard is not the
taker's gain, but the owner's loss.
o No other evidence was presented to support the values determined as just compensation for Leca's
property. The only items submitted to the trial court were the Commissioner's Report and a location map,
which were evidently insufficient.

18. Legal Interest for Expropriation Cases

1. NPC v. Angas, 208 SCRA 542 (1992)
o The legal rate applicable is 6%. Since the kind of interest involved in the joint judgment of the lower court
sought to be enforced in this case is interest by way of damages, and not by way of earnings from loans,
etc. Art. 2209 of the Civil Code shall apply.

2. Wycoco v. Judge Caspillo, G.R. No. 146733, January 13, 2004

o The amount of loss must not only be capable of proof, but must be proven with a reasonable degree of
certainty. The claim must be premised upon competent proof or upon the best evidence obtainable, such
as receipts or other documentary proof. None having been presented in the instant case, the claim for
unrealized profits cannot be granted.
o It must be stressed, however, that in these cases, the imposition of interest was in the nature of damages
for delay in payment which in effect makes the obligation on the part of the government one of
forbearance. It follows that the interest in the form of damages cannot be applied where there was prompt
and valid payment of just compensation. Conversely, where there was delay in tendering a valid payment
of just compensation, imposition of interest is in order. This is because the replacement of the trust
account with cash or LBP bonds did not ipso facto cure the lack of compensation; for essentially, the
determination of this compensation was marred by lack of due process.
o Accordingly, the just compensation due Wycoco should bear 12% interest per annum from the time LBP
opened a trust account in his name up to the time said account was actually converted into cash and LBP
bonds deposit accounts. The basis of the 12% interest would be the just compensation that would be
determined by the Special Agrarian Court upon remand of the instant case. In the same vein, the amount
determined by the Special Agrarian Court would also be the basis of the interest income on the cash and
bond deposits due Wycoco from the time of the taking of the property up to the time of actual payment of
just compensation.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o Apo Fruits Corp vs. LBP, October 12, 2010
o In the process, the Court determined that the legal interest should be 12% after recognizing that the just
compensation due was effectively a forbearance on the part of the government. Had the finality of the
judgment been the critical factor, then the 12% interest should have been imposed from the time the RTC
decision fixing just compensation became final. Instead, the 12% interest was imposed from the time that
the Republic commenced condemnation proceedings and took the property.

o LBP vs. Heirs of Alsua, GR No. 211351, February 4, 2015

o the Court has allowed the grant of legal interest in expropriation cases where there is delay in the
payment since the just compensation due to the landowners was deemed to be an effective forbearance
on the part of the State. Legal interest shall be pegged at the rate of 12% interest p.a. from the time of
taking until June 30, 2013 only. Thereafter, or beginning July 1, 2013 until fully paid, interest shall be at
6% p.a..

o Republic vs. Soriano, GR No. 211666, February 25, 2015

o As often ruled by this Court, the award of interest is imposed in the nature of damages for delay in
payment which, in effect, makes the obligation on the part of the government one of forbearance to
ensure prompt payment of the value of the land and limit the opportunity loss of the owner. However,
when there is no delay in the payment of just compensation, the Supreme Court has not hesitated in
deleting the imposition of interest thereon for the same is justified only in cases where delay has been
sufficiently established.

o RP v. Macabagdal January 10, 2018

o The purpose of just compensation is not to reward the owner for the property taken, but to compensate
him for the loss thereof. As such, the true measure of the property, as upheld in a plethora of cases, is the
market value at the time of the taking, when the loss resulted. Indeed, the State is not obliged to pay
premium to the property owner for appropriating the latter's property; it is only bound to make good the
loss sustained by the landowner, with due consideration to the circumstances availing at the time the
property was taken.
o In addition, the Court also recognizes that the owner's loss is not only his property, but also its income-
generating potential. Thus, when property is taken, full compensation of its value must be immediately
paid to achieve a fair exchange for the property and the potential income lost. The value of the
landholdings should be equivalent to the principal sum of the just compensation due, and interest is due
and should be paid to compensate for the unpaid balance of this principal sum after taking has been
completed. This shall comprise the real, substantial, full, and ample value of the expropriated property,
and constitutes due compliance with the constitutional mandate of just compensation in eminent domain.
o Thus, this left an unpaid balance of the "principal sum of the just compensation," warranting the
imposition of interest. It is settled that the delay in the payment of just compensation amounts to an
effective forbearance of money, entitling the landowner to interest on the difference in the amount
between the final amount as adjudged by the court and the initial payment made by the government.
o However, as aptly pointed out by petitioner, the twelve percent (12%) p.a. rate of legal interest is only
applicable until June 30, 2013. Thereafter, legal interest shall be at six percent (6%) p.a. in line with BSP-
MB Circular No. 799, Series of 2013. Prevailing jurisprudence has upheld the applicability of BSP-MB
Circular No. 799, Series of 2013 to forbearances of money in expropriation cases, contrary to
respondent's contention. The cases of Sy v. Local Government of Quezon nd Land Bank of the
Philippines v. Wycoco, cited by respondent are both inapplicable because they were all decided prior to
the effectivity of BSP-MB Circular No. 799, Series of 2013 on July 1, 2013.
o Nonetheless, it bears to clarify that legal interest shall run not from the date of the filing of the
complaint but from the date of the issuance of the Writ of Possession on May 5, 2008, since it is
from this date that the fact of the deprivation of property can be established. As such, it is only
proper that accrual of legal interest should begin from this date. Accordingly, the Court deems it
proper to correct the award of legal interest to be imposed on the unpaid balance of the just
compensation for the subject lot, which shall be computed at the rate of twelve percent (12%) p.a.
from the date of the taking on May 5, 2008 until June 30, 2013. Thereafter, or beginning July 1,
2013, until fully paid, the just compensation due respondent shall earn legal interest at the rate of
six percent (6%) p.a.

2. Writ of Possession
1. City of Manila v. Oscar Serrano, G.R. No. 142304, June 20, 2001
o A writ of execution may be issued by a court upon the filing by the government of a complaint for
expropriation sufficient in form and substance and upon deposit made by the government of the amount
equivalent to the assessed value of the property subject to expropriation. Upon compliance with these
requirements, the issuance of the writ of possession becomes ministerial. In this case, these
requirements were satisfied and, therefore, it became the ministerial duty of the trial court to issue the writ
of possession.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
2. Republic v. Gingoyon, G.R. No. 166429, December 19, 2005
o Rule 67 outlines the procedure under which eminent domain may be exercised by the Government. Yet
by no means does it serve at present as the solitary guideline through which the State may expropriate
private property. For example, Section 19 of the Local Government Code governs as to the exercise by
local government units of the power of eminent domain through an enabling ordinance. And then there is
Rep. Act No. 8974, which covers expropriation proceedings intended for national government
infrastructure projects.
o Rep. Act No. 8974, which provides for a procedure eminently more favorable to the property owner than
Rule 67, inescapably applies in instances when the national government expropriates property “for
national government infrastructure projects”.

3. Rep. v. Holy Trinity Realty Dev. Corp., 551 SCRA 303

o There are at least two crucial differences between the respective procedure under RA No. 8974 and Rule
67. Under the statute, the government is required to make immediate payment to the property owner
upon the filing of the complaint to be entitled to a writ of possession, whereas Rule 67, the government is
required only to make an initial deposit with an authorized government depositary, and Rule 67 prescribes
that the initial deposit be equivalent to the assessed value of the property for purpose of taxation, unlike
RA 8974 which provides, as the relevant standard for initial compensation, the market value of the
property as stated in the tax declaration or the current relevant zonal value of the BIR, whichever is
higher, and the value of the improvements and/or structures using the replacement cost method.

3. Expropriation of Utilities, Landed Estates and

1. City of Baguio vs. Nawasa, 106 Phil. 114 (1959)
o Any property owned by a municipal corporation in its private capacity (patrimonial), in any expropriation
proceeding, must be paid just compensation. If the property owned is public or otherwise held in trust
then no compensation need be paid.
o A waterworks system is patrimonial property of the city that has established it. (Mendoza vs. De Leon, 33
Phil. 509). And being owned by a municipal corporation in a proprietary character, waterworks
cannot be taken away without observing the safeguards set by our Constitution for the protection
of private property.
o The Baguio Waterworks System is not like any public road, park, street or other public property held in
trust by a municipal corporation for the benefit of the public but it is a property owned by the city in its
proprietary character. Being patrimonial property of a municipal corporation, waterworks cannot be taken
away except for public use and upon payment of just compensation.

2. Zamboanga del Norte vs. City of Zamboanga, 22 SCRA 1334 (1968)

o Under Art 423 of Civil Code, The property of provinces, cities and municipalities, is divided into property
for public use and patrimonial properly."
o Under Art 424 of Civil Code, Property for public use, in the provinces, cities, and municipalities, consists
of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades,
and public works for public service paid for by said provinces, cities, or municipalities. All other
property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice
to the provisions of special laws."
o The principle itself is simple: If the property is owned by the municipality (meaning municipal corporation)
in its public and governmental capacity, the property is public and Congress has absolute control over it.
But if the property is owned in its private or proprietary capacity, then it is patrimonial and
Congress has no absolute control. The municipality cannot be deprived of it without due process
and payment of just compensation.

4. Other cases
1. MORE ELECTRIC AND POWER CORPORATION VS. PANAY ELECTRIC COMPANY, INC., G.R. No.
248061, September 15, 2020
o Ruling in MR, March 09, 2021
o The power of eminent domain is exercised by the Legislature. However, it may be delegated by Congress
to the President, administrative bodies, local government units, and even to private enterprises
performing public services.
o The exercise of the right to expropriate given to MORE under its franchise is a delegated authority
granted by Congress. The restrictive view that expropriation may be exercised by the State alone, without
any consideration for the State's authority to delegate its powers, cannot be upheld. Being a private
enterprise allowed by the Congress to operate a public utility for public interest, the delegation by
Congress of the power to expropriate PECO's distribution system is valid.
o It is settled that a property already devoted to public use can still be subject to expropriation, provided this
is done directly by the national legislature or under a specific grant of authority to a delegate.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o xxx incidental private benefit MORE enjoys does not override the paramount public interest on which the
right of eminent domain is hinged. It would be unfair for the public to be deprived of access to
uninterrupted supply of electricity, an important tool to economic growth, simply because of some
incidental benefit MORE may gain from its legislative franchise.
2. FELISA AGRICULTURAL CORPORATION VS. NATIONAL TRANSMISSION CORPORATION (HAVING
BEEN SUBSTITUTED IN LIEU OF THE NATIONAL POWER CORPORATION), G.R. Nos. 231655 and
231670, July 02, 2018.
Just Compensation
o Q. How is just compensation determined by the court?
o A. The general rule is that upon the filing of the expropriation complaint, the plaintiff has the right to take
or enter into possession of the real property involved if he deposits with the authorized government
depositary an amount equivalent to the assessed value of the property. An exception to this procedure
is provided by RA 8974 with respect to national government projects, which requires the payment of
100% of the zonal value of the property to be expropriated as the provisional value.] It must be
emphasized, however, that whether a deposit is made under Rule 67 of the Rules of Court or the
provisional value of the property is paid pursuant to RA 8974, the said amount serves the double-purpose
of: (a) pre-payment if the property is fully expropriated, and (b) indemnity for damages if the proceedings
are dismissed.
o Section 2, Rule 67 of the Rules of Court requires the expropriator to deposit the amount equivalent to the
assessed value of the property to be expropriated prior to entry. The assessed value of a real property
constitutes a mere percentage of its fair market value based on the assessment levels fixed under the
pertinent ordinance passed by the local government where the property is located. In contrast, RA 8974
requires the payment of the amount equivalent to 100% of the current zonal value of the property, which
is usually a higher amount.
o In Republic of the Philippines v. Judge Gingoyon, the Court recognized that while expropriation
proceedings have always demanded just compensation in exchange for private property, the deposit
requirement under Rule 67 of the Rules of Court "impeded immediate compensation to the private owner,
especially in cases wherein the determination of the final amount of compensation would prove highly
disputed." Thus, it categorically declared that "[i]t is the plain intent of [RA] 8974 to supersede the system
of deposit under Rule 67 with the scheme of 'immediate payment' in cases involving national government
infrastructure projects." The same case further ruled:
o It likewise bears noting that the appropriate standard of just compensation is a substantive matter. It is
well within the province of the legislature to fix the standard, which it did through the enactment of [RA]
8974. Specifically, this prescribes the new standard in determining the amount of just compensation in
expropriation cases relating to national government infrastructure projects, as well as the payment of the
provisional value as a prerequisite to the issuance of a writ of possession. Of course, rules of procedure,
as distinguished from substantive matters, remain the exclusive preserve of the Supreme Court by virtue
of Section 5(5), Article VIII of the Constitution. Indeed, Section 14 of the Implementing Rules recognizes
the continued applicability of Rule 67 on procedural aspects when it provides "all matters regarding
defenses and objections to the complaint, issues on uncertain ownership and conflicting claims, effects of
appeal on the rights of the parties, and such other incidents affecting the complaint shall be resolved
under the provisions on expropriation of Rule 67 of the Rules of Court."

o Indubitably, a matter is substantive when it involves the creation of rights to be enjoyed by the owner of
the property to be expropriated. The right of the owner to receive just compensation prior to acquisition of
possession by the State of the property is a proprietary right, appropriately classified as a substantive
matter and, thus, within the sole province of the legislature to legislate on.
o Statutes are generally applied prospectively unless they expressly allow a retroactive application.
It is well known that the principle that a new law shall not have retroactive effect only governs rights
arising from acts done under the rule of the former law. However, if a right be declared for the first time by
a subsequent law, it shall take effect from that time even though it has arisen from acts subject to the
former laws, provided that it does not prejudice another acquired right of the same origin.
o xxx It must be emphasized that RA 8974 does not take away from the courts the power to judicially
determine the amount of just compensation. It merely provides relevant standards in order to facilitate the
determination of just compensation, and sets the minimum price of the property as the provisional value
to immediately recompense the landowner with the same degree of speed as the taking of the property,
which reconciles the inherent unease attending expropriation proceedings with a position of fundamental
equity.
o Nonetheless, it is settled that where actual taking was made without the benefit of expropriation
proceedings, and the owner sought recovery of the possession of the property prior to the filing of
expropriation proceedings, the Court has invariably ruled that it is the value of the property at the
time of taking that is controlling for purposes of compensation.Any other interpretation would be
repugnant to the Constitution which commands the exproriator to pay the property owner no less than the
full and fair equivalent of the property from the date of taking.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o xxx However, it must be emphasized that in determining just compensation, the courts must consider and
apply the parameters set by the law and its implementing rules and regulations in order to ensure that
they do not arbitrarily fix an amount as just compensation that is contradictory to the objectives of the law.
Be that as it may, when acting within such parameters, courts are not strictly bound to apply the same to
its minutest detail, particularly when faced with situations that do not warrant its strict application. Thus,
the courts may, in the exercise of their discretion, relax the application of the guidelines subject to the
jurisprudential limitation that the factual situation calls for it and the courts clearly explain the reason for
such deviation.
o xxx Moreover, it must be clarified that the government's initial payment of the land's provisional
value does not excuse it from avoiding payment of interest on any difference between the amount
of final just compensation adjudged and the initial payment (unpaid balance). Legal interest shall be
imposed on the unpaid balance at the rate of twelve percent (12%) per annum from the time of taking,
i.e., from entry in the subject land on September 21, 1989, until June 30, 2013; thereafter, or beginning
July 1, 2013, until fully paid, the just compensation due petitioner shall earn interest at the rate six percent
(6%) per annum.

IV. POWER OF TAXATION

o Concept and Application
1. The power by which the sovereign raises revenue to defray the expenses of government (Paseo Realty and
Development Corporation v. Court of Appeals, G.R. 119286, October 13, 2004).
2. The power of taxation is inherent in the State, being an attribute of sovereignty. As an incident of sovereignty, the
power to tax has been described as unlimited in 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 the tax on the
constituency who are to pay it (Mactan Cebu International Airport Authority v. Marcos, 261 SCRA 667).
3. The taxing power may be used as an implement of police power (Lutz v. Araneta, 98 Phil. 148)
4. The power of taxation is an essential and inherent attribute of sovereignty, belonging as a matter of right to every
independent government, without being expressly conferred by the people. It is a power that is purely legislative
and which the central legislative body cannot delegate either to the executive or judicial department of the
government without infringing upon the theory of separation of powers. The exception, however, lies in the case
of municipal corporations, to which, said theory does not apply. Legislative powers may be delegated to local
governments in respect of matters of local concern. This is sanctioned by immemorial practice. By necessary
implication, the legislative power to create political corporations for purposes of local self-government carries with
it the power to confer on such local governmental agencies the power to tax.
5. Under the Constitution, local governments are granted the autonomous authority to create their own sources of
revenue and to levy taxes. "Each local government unit shall have the power to create its sources of revenue and
to levy taxes, subject to such limitations as may be provided by law." (Pepsi-Cola Bottling Co. of the Philippines,
Inc. v. Municipality of Tanauan, G.R. No. L-31156, [February 27, 1976], 161 PHIL 591-611)
6. The plenary nature of the taxing power thus delegated, contrary to plaintiff-appellant's pretense, would not suffice
to invalidate the said law as confiscatory and oppressive. In delegating the authority, the State is not limited to the
exact measure of that which is exercised by itself. When it is said that the taxing power may be delegated to
municipalities and the like, it is meant that there may be delegated such measure of power to impose and collect
taxes as the legislature may deem expedient. Thus, municipalities may be permitted to tax subjects which for
reasons of public policy the State has not deemed wise to tax for more general purposes.
7. REQUISITES FOR LAWFUL EXERCISE OF TAXING POWER. — Constitutional injunction against deprivation of
property without due process of law may not be passed over under the guise of the taxing power, except when
the taking of the property is in the lawful exercise of the taxing power, as when, (1) the tax is for a public purpose;
(2) the rule on uniformity of taxation observed; (3) either the person or property taxed is within the jurisdiction of
the government levying the tax; and (4) in the assessment and collection of certain kinds of taxes, notice and
opportunity for hearing are provided.||| (Pepsi-Cola Bottling Co. of the Philippines, Inc. v. Municipality of Tanauan,
G.R. No. L-31156, [February 27, 1976], 161 PHIL 591-611)
o Importance of taxation:
1. No constitutional government can exist without it;
2. It is one great power upon which the whole national fabric is based;
3. It is necessary for the existence and prosperity of the nation; and
4. It is the lifeblood of the nation.
o Requisites of valid exercise
1. Public purpose;
o The taxing power must be exercised for public purposes only, money raised by taxation can be expanded
only for public purposes and not for the advantage of private individuals.
o It is a general rule that the legislature is without power to appropriate public revenues for anything but a
public purpose. . . . It is the essential character of the direct object of the expenditure which must
determine its validity as justifying a tax and not the magnitude of the interests to be affected nor the
degree to which the general advantage of the community, and thus the public welfare, may be ultimately

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
benefited by their promotion. Incidental advantage to the public or to the state, which results from the
promotion of private interests, and the prosperity of private enterprises or business, does not justify their
aid by the use of public money." ||| (Pascual v. Secretary of Public Works and Communications, G.R. No.
L-10405, [December 29, 1960], 110 PHIL 331-346)
2. Equal protection;
The rule on uniformity of taxation is observed. Taxes should be uniform and equitable (Sec. 28 [1], Art. VI)
3. Either the person or property taxed is within the jurisdiction of the government levying the tax;
(Pepsi-Cola Bottling Co. v. Municipality of Tanauan, G.R. No. L-31156, February 27, 1976);
4. Due process
o Notice and opportunity for hearing are provided. In the assessment and collection of certain kinds of taxes
notice and opportunity for hearing are provided (Ibid). With the legislature primary lies the discretion to
determine the nature, object, extent, coverage and situs of taxation. But where a tax measure becomes
so unconscionable and unjust as to confiscation of property, courts will not hesitate to strike it down, for
despite all its plenitude, the power to tax cannot override constitutional prescriptions (Tan v. Del Rosario,
237 SCRA 324).
o This is not to say though that the constitutional injunction against deprivation of property without due
process of law may be passed over under the guise of the taxing power, except when the taking of the
property is in the lawful exercise of the taxing power, as when (1) the tax is for a public purpose; (2) the
rule on uniformity of taxation is observed; (3) either the person or property taxed is within the jurisdiction
of the government levying the tax; and (4) in the assessment and collection of certain kinds of taxes
notice and opportunity for hearing are provided. (Pepsi-Cola Bottling Co. of the Philippines, Inc. v.
Municipality of Tanauan, G.R. No. L-31156, [February 27, 1976], 161 PHIL 591-611)
o Due process is usually violated where the tax imposed is for a private as distinguished from a public
purpose; a tax is imposed on property outside the State, i.e., extra-territorial taxation; and arbitrary or
oppressive methods are used in assessing and collecting taxes. But, a tax does not violate the due
process clause, as applied to a particular taxpayer, although the purpose of the tax will result in an injury
rather than a benefit to such taxpayer. Due process does not require that the property subject to the tax
or the amount of tax to be raised should be determined by judicial inquiry, and a notice and hearing as to
the amount of the tax and the manner in which it shall be apportioned are generally not necessary to due
process of law. (Pepsi-Cola Bottling Co. of the Philippines, Inc. v. Municipality of Tanauan, G.R. No. L-
31156, [February 27, 1976], 161 PHIL 591-611)

o TAX EXEMPTION
o Did the 1997 Tax Code qualify the tax exemption constitutionally-granted to non-stock, non-profit
educational institutions? (COMMISSIONER OF INTERNAL REVENUE vs. DE LA SALLE
UNIVERSITY, INC. GR. No. 196596, November 9, 2016)
o No.
o The Constitution holding that the term educational institution, when used in laws granting tax
exemptions, refers to the school system (synonymous with formal education); it includes a college or an
educational establishment; it refers to the hierarchically structured and chronologically graded learnings
organized and provided by the formal school system.
o The Court then significantly laid down the requisites for availing the tax exemption under Article XIV,
Section 4 (3), namely: (1) the taxpayer falls under the classification non-stock, non-profit educational
institution; and (2) the income it seeks to be exempted from taxation is used actually, directly and
exclusively for educational purposes.
o The tax exemption granted by the Constitution to non-stock, non-profit educational institutions is
conditioned only on the actual, direct and exclusive use of their assets, revenues and income for
educational purposes.

o Purpose
1. CIR vs. Algue, Inc., 158 SCRA 9 (1988)
o Taxes are the lifeblood of the government and so should be collected without unnecessary
hindrance. On the other hand, such collection should be made in accordance with law as any
arbitrariness will negate the very reason for government itself. It is therefore necessary to reconcile the
apparently conflicting interests of the authorities and the taxpayers so that the real purpose of taxation,
which is the promotion of the common good, may be achieved.
o Taxpayer has a right to complain and the courts will then come to his succor. For all the awesome power
of the tax collector, he may still be stopped in his tracks if the taxpayer can demonstrate, as it has here,
that the law has not been observed.

2. Commissioner vs. Makasiar, 177 SCRA 27 (1989)

o It is likewise well-settled that the provisions of the Tariff and Customs Code and that of Republic Act No.
1125, as amended *** specify the proper fora for the ventilation of any legal objections or issues raised
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
concerning these proceedings. Actions of the Collector of Customs are appealable to the Commissioner
of Customs, whose decisions, in turn, are subject to the exclusive appellate jurisdiction of the Court of
Tax Appeals. Thereafter, an appeal lies to this Court through the appropriate petition for review by writ of
certiorari. Undeniably, regional trial courts do not share these review powers.
o The above rule is anchored upon the policy of placing no unnecessary hindrance on the government's
drive not only to prevent smuggling and other frauds upon customs, but also, and more importantly, to
render effective and efficient the collection of import and export duties due the state. For tariff and
customs duties are taxes constituting a significant portion of the public revenue which are the lifeblood
that enables the government to carry out functions it has been instituted to perform.

o Who exercises the power?

o Art. VI Sec. 28
(1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of
taxation.
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such
limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework of the national development program of the
Government.
(3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious,
charitable, or educational purposes shall be exempt from taxation.
(4) No law granting any tax exemption shall be passed without the concurrence of a majority of all the
Members of the Congress.

o Art. XIV, Sec. 4 (3)

(3) 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. Upon the dissolution or
cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner
provided by law.
Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such
exemptions subject to the limitations provided by law including restrictions on dividends and provisions for
reinvestment.
(4) Subject to conditions prescribed by law, all grants, endowments, donations, or contributions used
actually, directly, and exclusively for educational purposes shall be exempt from tax.

o Art. X, Sec. 5
Each local government unit shall have the power to create its own sources of revenues and to levy taxes,
fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with
the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.

o CASES

o Tax Exemptions
1. YMCA vs. CIR, 33 Phil. 217 (1916)
o While it may be true that the YMCA keeps a lodging and a boarding house and maintains a restaurant for
its members, still these do not constitute business in the ordinary acceptance of the word, but an
institution used exclusively for religious, charitable and educational purposes, and as such, it is entitled to
be exempted from taxation.
o There is no doubt about the correctness of the contention that an institution must devote itself exclusively
to one or the other of the purposes mentioned in the statute before it can be exempt from taxation; but the
statute does not say that it must be devoted exclusively to any one of the purposes therein mentioned. It
may be a combination of two or three or more of those purposes and still be entitled to exemption. The
Young Men's Christian Association of Manila cannot be said to be an institution used exclusively for
religious purposes, or an institution used exclusively for charitable purposes, or an institution devoted
exclusively to educational purposes; but we believe it can be truthfully said that it is an institution used
exclusively for all three purposes, and that, as such, it is entitled to be exempted from taxation.

2. Bishop of Nueva Segovia vs. Provincial Board, 51 Phil. 352 (1927)

o The exemption from the payment of the land tax in favor of the convent includes not only the land actually
occupied by the building, but also the adjacent ground or vegetable garden destined to the incidental use
of the parish priest in his ordinary life.
o The lot which was formerly a cemetery and which is no longer used as such, but is not used for
commercial purposes, serving solely as a sort of lodging place for those who participate in the religious

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
festivities, is also exempt from the land tax, because this constitutes an incidental use in religious
functions.
o The term "used exclusively" considers incidental use also. Thus, the exemption from payment of land tax
in favor of the convent includes, not only the land actually occupied by the building but also the adjacent
garden devoted to the incidental use of the parish priest. The lot which is not used for commercial
purposes but serves solely as a sort of lodging place, also qualifies for exemption because this
constitutes incidental use in religious functions.

3. Lladoc vs. CIR, 14 SCRA 292 (1965)

o The constitution exempts from taxation cemeteries, churches and personages or convents, appurtenants
thereto, and all lands, buildings, and improvements used exclusively for religious purposes.
o The exemption is only from the payment of taxes assessed on such properties enumerated, as property
taxes, as contra-distinguished from excise taxes.

4. Province of Abra vs. Hernando, 107 SCRA 104 (1981)

o The present Constitution (Article VIII, Section 17, paragraph 3) added "charitable institutions, mosques,
and non-profit cemeteries" and required that for the exemption of "lands, buildings, and improvements,"
they should not only be "exclusively" but also "actually" and "directly" used for religious or charitable
purposes. The Constitution is worded differently. The change should not be ignored. It must be duly taken
into consideration.
o There must be proof of the actual and direct use of the lands, buildings, and improvements for religious or
charitable purposes to be exempt from taxation.

5. Abra Valley College vs. Aquino , 162 SCRA 106 (1988)

o The school buildings were partly used for that the elementary, high school and college students. The
second floor of the other building were used as residence of the school director; while the first floor was
rented to a commercial company.
o The court held that the use of the school building or lot for commercial purposes is neither contemplated
by law, nor by jurisprudence. While the use of the second floor of the main building in the case at bar for
residential purposes of the Director and his family, may find justification under the concept of incidental
use, which is complimentary to the main or primary purpose — educational. The lease of the first floor
thereof to the Northern Marketing Corporation cannot by any stretch of the imagination be considered
incidental to the purpose of education.
o The phrase "exclusively used for educational purposes" has always been made that exemption extends to
facilities which are incidental to and reasonably necessary for the accomplishment of the main purposes.

6. American Bible Society vs. City of Manila, 101 Phil. 386 (1957)
o Plaintiff's Philippine agency has been distributing and selling bibles and/or gospel portions thereof
(except during the Japanese occupation) throughout the Philippines and translating the same into several
Philippine dialects. It put little profit to cover its operating cost.
o It may be true that in the case at bar the price asked for the bibles and other religious pamphlets was in
some instances a little bit higher than the actual cost of the same, but this cannot mean that appellant
was engaged in the business or occupation of selling said "merchandise" for profit.
o For this reason We believe that the provisions of City of Manila Ordinance No. 2529, as amended, cannot
be applied to appellant, for in doing so it would impair its free exercise and enjoyment of its religious
profession and worship as well as its rights of dissemination of religious beliefs.

o Double Taxation
7. Punzalan vs. Municipal Board of Manila, 95 Phil.46 (1954)
o The argument against double taxation may not be invoked where one tax is imposed by the state and the
other is imposed by the city (1 Cooley on Taxation, 4th ed., p. 492), it being widely recognized that there
is nothing inherently obnoxious in the requirement that license fees or taxes be exacted with respect to
the same occupation, calling or activity by both the state and the political subdivisions thereof.

8. Pepsi-Cola v. Municipality of Tanauan, G.R. No. L-31156, 161 PHIL 591-611 (1976)
o There is no validity to the assertion that the delegated authority can be declared unconstitutional on the
theory of double taxation. It must be observed that the delegating authority specifies the limitations and
enumerates the taxes over which local taxation may not be exercised.
o The reason is that the State has exclusively reserved the same for its own prerogative. Moreover, double
taxation, in general, is not forbidden by our fundamental law, since We have not adopted as part thereof
the injunction against double taxation found in the Constitution of the United States and some states of
the Union.
o Double taxation becomes obnoxious only where the taxpayer is taxed twice for the benefit of the same
governmental entity or by the same jurisdiction for the same purpose, but not in a case where one tax is
imposed by the State and the other by the city or municipality.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o License Fees
9. Physical Therapy Org. vs. Municipal Board, G.R. 10448, August 30, 1957
o The amount of the fee or charge is properly considered in determining whether it is a tax or an exercise of
the police power. The amount may be so large as to itself show that the purpose was to raise revenue
and not to regulate, but in regard to this matter there is a marked distinction between license fees
imposed upon useful and beneficial occupations which the sovereign wishes to regulate but not restrict,
and those which are inimical and dangerous to the public, health, morals or safety. In the latter case the
fee maybe very large without necessarily being a tax (Cooley on taxation Vol. IV pp. 3516- 17; italics
supplied.)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2

GUARANTEES AND PROTECTION

DUE PROCESS EQUAL PROTECTION NON-IMPAIRMENT

 Art. III, Sec. 1  Art. III, Sec 1 (Equal protection)  Art. III, Sec. 10
 Art. III, Sec. 14 (1)  Art. XIII, Sec. 1 and 2 (social justice)
 Art. XIII, Sec. 3 (protection to labor)
 Art. XII, Sec. 10 (nationalization of
business)
 Id., Sec. 2, par. 2 (reservation of marine
resources)
 Art. II, Sec. 11 (free access to the courts)
 Art. VIII, Sec. 5(5) (legal aid to poor)
 Art. IX-C, Sec. 10 (protection of
candidates)
 Art. II, Sec. 26 (public service)
 Art. II, Sec. 14 (equality of women and
men)


V. DUE PROCESS
o Art. III, Sec. I
No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.

o Art. III. Sec. 14 (1)

No person shall be held to answer for a criminal offense without due process of law.
o PERSON

 The due process clause protects all persons, natural as well as artificial. Natural person include both
the citizen and the alien. Artificial persons like corporations and partnerships are also covered by the
protection but only insofar as their property is concerned. The reason for the narrower scope is that
thelife and the liberty of the artificial person, as a creature of law, are derived from and therefore subject
to the control of the legislature.

o DEPRIVATION

 To deprive is to take away forcibly, to prevent from possessing, enjoying or using something. As
applied to due process, deprivation connotes denial of the right to life, liberty or property. Deprivation
per se is not necessarily unconstitutional. What is prohibited is deprivation of life, liberty or property
without due process of law. There would be unlawful deprivation if he were sentenced to death for
conviction of a petty offense as the disparity between crime and punishment would make the law
unreasonable.
 There is no unlawful deprivation of liberty where a person afflicted with a disease is confines in a
hospital or quarantines in his own home, or where a criminal is punished with imprisonment.
Conversely, it would be violative of due process if a personi s imprisoned without trial, or is prevented
from criticizing the government in the exercise of his freedom of expression, or is forced to follow a
particular religion. Private property may be validly taken where it is offensive to the public welfare, like
a building on the verge of collapse, which may be demolished under the police power in the interest of
the public safety. It may also be expropriated, after payment of just compensation, so it maybe devoted
to some public use; or it may be distrained andlevied upon in case of tax delinquency of its owner.

o LIFE

 Life as understood in the due process clause connotesin the first place the integrity of the physical
person. The meaning is that it is not permissible for thegovernment to deprive the individual of any part
of his body, and this is true even if it be as punishment for crime. Accordingly, it will be unlawful to
amputate his handsif he is a thief or castrate him if he is a rapist or strikeout his eyes for unjust vexation
or cut off his tongue for objectionable remarks he may have made.
 Any measure that would even only endanger his health or subject him to unnecessary pain or to
unreasonable physical exertion would also be subject to challenge. Thus, in sustaining the law requiring
the sterilization of incurable hereditary imbeciles, the U.S. supreme court observed in Buck v. Bell, that
the operation only involved “a minimum of pain, or none at all,” and did not endanger the imbecile’s life
or health. But according to our Supreme Court, “should not be dwarfed into mere animal existence.” In
fact, the word should embrace the enjoyment by the individual of all the god given faculties that can
make his life worth living.

o LIBERTY

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NOTES TO CONSTITUTION 2
 According to Mabini, “liberty is the freedom to do right and never wrong.” Liberty, as guaranteed under
the due process clause is not unbridled license; it is liberty regulated by law. One’s own liberty must be
enjoyed consistently with the enjoyment of a like liberty by others. In other words, the individual, as a
creature of society, should be prepared to surrender part of his freedom for the benefit of the greater
number in recognition of the time-honored principle of “salus populi est suprema lex.” In order to
illustrate, one’s freedom of expression cannot be used to unfairly destroy another’s reputation, or to
incite rebellion, or to offend public morals; neither may he abuse the sanctity of his home by converting
it into a den of criminality or a hotbed of disease; nor may he insist on selling his goods at blackmarket
prices, if they be prime necessities, to the detriment of the consuming public.

o PROPERTY

 Property is anything that under the right of ownership and be the subject of contract. This will include
all things real, personal, tangible and intangible that are within the commerce of man, like lands,
jewellery, automobiles, buildings, goodwill, inheritance, intellectual creations, future earnings, works of
art, animals, mortgages, insurance proceeds, etc. One cannot have a vested right to a public office, as
this is not regarded as property. If created by statute, it may be abolished by the legislature at any time,
even if the term of the incumbent not yet expired. The only exception is where the salary has already
been earned, in which case it cannot be reduced or withdrawn by a retroactive law as said salary has
already accrued as a property right. It has also been held that mere privileges, such as a license to
operate a cockpit or a liquor store, are not property rights and are therefore revocable at will.

o SUBSTANTIVE DUE PROCESS

 Substantive due process requires the intrinsic validity of the law in interfering with the rights of the
person to his life, liberty and property. The inquiry in this regard is not whether or not the law is being
enforced in accordance with the prescribed manner but whether or not, to begin with, it is a proper
exercise of legislative power. The law must have a valid governmental objective in example the interest
of the public generally as distinguished from those of a particular class require the intervention of the
state.
 Furthermore, this objective must be pursued in a lawful manner, or in other words, the means employed
must be reasonably related to the accomplishment of the purpose and not duly oppressive.
 Justice Labrador declared: “the disputed law is deemed absolutely necessary to bring about the desired
legislative objective- to free the national economy from alien control and dominance. If political
independence is a legitimate aspiration, then economic independence is nonetheless legitimate.
Freedom and liberty are not real and positive if the people are subject to the economic control and
domination of others, especially if not of their own race and country.”
 “The law is reasonable,” he added. “It is made prospective and recognizes the rights and privileges of
those already engaged in the occupation to continue therein during the rest of their lives; and similar
recognition is accorded associations of aliens,” which were allowed a ten year period of grace within
which to wind up their affairs in the retail trade and transfer to other business.

o PROCEDURAL DUE PROCESS

 The essence of procedural due process is expressed in the immortal cry of Themistocles to
Eurybiades: Strike, but hear me first!” In more familiar words, the justice that procedural due process
guarantees, to repeat with Daniel Webster, is the one “which hears before it condemns, which proceeds
upon inquiry and renders judgment only after trial. Our supreme court has held that “the twin
requirements of notice and hearing constitute the essential elements of due process and neither of
these elements can be eliminated without running afoul of the constitutional guaranty.

o I. JUDICIAL DUE PROCESS

1) There must be an impartial court or tribunal clothed with judicial power to hear and determine the matter
before it.
2) Jurisdiction must be lawfully acquired over the person of the defendant and over the property which is the
subject matter of the proceeding.
3) The defendant must be given an opportunity to be heard
4) Judgment must be rendered upon lawful hearing

o IMPARTIAL and COMPETENT COURT

 It is clear that a court affected by bias or prejudice cannot be expected to render a fair and
impartial decision. As our Supreme Court has declared, every litigant is entitled to the cold
neutrality of an impartial judge. By competent court is meant one vested with jurisdiction over
a case as conferred upon it by law. For example, a regional trial court is competent to try a
prosecution for murder but not for violation of a municipal ordinance. Only the Supreme Court
is competent to review a decision onthe Commission on Audit, but jurisdiction over ordinary
appealed cases involving only questions of fact is vested in the court of appeals.

o JURISDICTION

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
 In actions in personam, such as a complaint for recovery of a loan, jurisdiction over the
defendant is acquired by the court by his voluntary appearance or through service of summons
upon him. This may be effected personally, or by substituted service, or, in exceptional cases,
by publication. In actions in rem or quasi in rem such as land registration proceedings or the
foreclosure of a real estate mortgage, the jurisdiction of the court is derived from the power it
may exercise over the property.
 Jurisdiction over the person is not essential, provided the relief granted by the court is limited
to such as canbe enforced against the property itself. Notice by publication is sufficient in these
cases.
 According to Cooley, “if the owners are named in the
 proceedings and personal notice is provided for, it israther from the tenderness to their
interests, and inorder to make sure that the opportunity for a hearingshall not be lost to them,
than from any necessity that the case shall assume that form.”

o HEARING

 Notice to a party is essential to enable it to adduce its own evidence and to meet and refute
the evidence submitted by the other party. Every litigant is entitled to his day in court. He has
a right to be notified of every incident of the proceeding and to be present at every stage thereof
so that he may be heard himself and counsel for the protection of hi interests. As held in David
v. Aquilizan, a decision rendered without a hearing is null and void ab initio and may be attacked
directly o rcollaterally.
 “If it otherwise,” the Supreme Court declared, “then the cardinal requirement that no party
should be made to suffer in person or property without being given a hearing would be brushed
aside. The doctrine consistently adhered to by this court when such a question arises. . . .os
that a denial of due process suffices to cast on the official act taken by whatever branch of the
government the improcess of nullity.”
 Due process is not violated where a person is not heard because he has chosen, for whatever
reason, not to be heard. If he opts to be silent where he has a right to speak, he cannot later
be heard to complain that he was unduly silenced. The Supreme Court has held, however, that:
Due process as a constitutional precept does not, always and in all situations, requires trial-
type proceedings. The essence of due process is to be found in the reasonable opportunity
tobe heard and to submit any evidence one may have in support of one’s defense
 “To be heard” does not only mean verbal arguments in court. One may be heard also through
pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is
accorded, there is no denial of procedural due process.

o APPEAL

 The right to appeal is not essential to the right to a hearing. The legislature itself cannot deprive
him of the right to appeal in those cases coming under the minimum appellate jurisdiction of
the Supreme Court as specified in Article VIII, Section 5 (2), of the Constitution, to wit:1.All
cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation
is inquestion.2.All cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.3.All cases in which the jurisdiction of any lower court is in
issue.4.All criminal cases in which the penalty imposed is reclusion perpetua or higher.5.All
cases in which only an error or question of law is involved.

o EXCEPTIONS

 There are cases in which the essential requisites of notice and hearing may be omitted without
violation of due process. The examples are the following cancellation of the passport of a
person sought for the commission of a crime, the preventive suspension of a civil servant facing
administrative charges, the distraint of p[ropertie4s for tax delinquency, the padlocking of
restaurants foundto be insanitary or of theatres showing obscene movies and the abatement
of nuisances per se.

o NUISANCES

 A nuisance is objectionable under any and all circumstances because it presents an immediate
danger to the welfare of the community. This kind of nuisance may be abated summarily, that
is, without the necessity of judicial authorization. The classic example is that of a mad dog
running loose, which can be killed on sight, regardless of its value, because of the threat it
poses to the safety and lives of the people.
 A nuisance per accidens is objectionable only under some but not all circumstances, there
being situations when it is perfectly legitimate and acceptable. It has been described as “the
right in the wrong place,” like a patis factory in a residential area. The rule is that it may be
abated only upon judicial authorization as itis difficult to ascertain or identify this kind of
nuisance. The exception, as announced in Lawton v. Steele, is where the legislature has
authorized its summary abatement, provided the nuisance per accidens is of trifling value only.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o PRESUMPTIONS

 Would a statutory presumption deny the right to a hearing insofar as the person affected is
precluded from introducing evidence to rebut the presumption? The accepted view is that it
would not, provided there is a rational or natural connection between the fact proved and the
fact ultimately presumed from such fact.
 As long as the presumption is based on human experience, as where a child born within one
hundred eighty days of the marriage is presumed legitimate if the husband, before such
marriage, knew of the pregnancy of the wife, it will be deemed not violative of due process.

o JUDGMENT

 The right to a hearing would be meaningless if in the end the judge could disregard the
evidence adduced by the parties and decide the case on the basis of his own unsupported
conclusions. To insure against such arbitrariness, due process requires that the judgment be
based upon the lawful hearing previously conducted. And to augment this requirement, Article
VIII, Section 14, of the Constitution provides that “no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it is based.”

II. ADMINISTRATIVE DUE PROCESS

o In administrative proceedings, the requisites of procedural due process are the following:1.The right to a
hearing, which includes the right to present one’s case and submit evidence in support thereof.2.The
tribunal must consider the evidence presented.3.The decision must have something to support itself.4.The
evidence must be substantial 5.The decision must be rendered on the evidence presented at the hearing,
or at least contained in the record and disclosed to the parties affected.6.The tribunal or body or any of its
judges must act on its o rhis own independent consideration of the law and facts of the controversy and not
simply accept the views of a subordinate in arriving at a decision.7.The board or body should, in all
controversial questions ,renders its decision in such a manner that the parties to the proceeding can know
the various issues involved, and the reason for the decision rendered
o The Void-for-vagueness Doctrine

 The law should be declared void as it is vague, i.e., it lacks comprehensible standards so that men of
ordinary intelligence will probably have to guess as to its meaning and differ in its application.
 Such vague law is repugnant to the Constitution in two (2) respects: one, it violates due process as it
fails to afford persons fair notice of the conduct to avoid and; second, it gives law enforcers unbridled
discretion in carrying out provisions and, therefore, in effect, it becomes an arbitrary flexing of the
government’s muscle.
 However, for this to be validly invoked, the act or law must be utterly vague on its face that it cannot be
clarified either by a saving clause or by statutory construction.

o INSTANCES WHEN HEARINGS ARE NOT NECESSARY:

1) When administrative agencies are exercising their quasi-legislative functions;
2) Abatement of nuisance per se Art. (704, NCC);
3) Granting by courts of provisional remedies;
4) Preventive suspension; (Co. Vs. Barbers. Sec. 63 of LGC; BP 337);
5) Removal of temporary employees in the government service;
6) Issuance of warrants of distraint and/or levy by the BIR Commissioner;
7) Cancellation of passport of a person charged with a crime;
8) Issuance of sequestration orders;
9) Judicial order which prevents an accused from traveling abroad;
10) Suspension of bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in
such bank.
11) Extradition proceedings ([evaluation stage]- Sec of Justice vs. Lantion; Cuevas vs. Munoz, 2000);
12) Reinvestigation (criminal cases);
13) TPO (Garcia vs. Drilon, June 25, 2013);
14) replacement of temporary appointee
o CASE LAWS

 In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation
and that such deprivation is done without proper observance of due process. When one speaks of due process
of law, however, a distinction must be made between matters of procedure and matters of substance. In
essence, procedural due process “refers to the method or manner by which the law is enforced,” while
substantive due process “requires that the law itself, not merely the procedures by which the law would be
enforced, is fair, reasonable, and just.” (De Leon, Textbook on the Philippine Constitution, 1991, p. 81)
(Corona v. United Harbor Pilots Association of the Phils., 283 SCRA 31, Dec. 12, 1997 [Romero])
 The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical
language and terminology, but more importantly, they are alike in what their respective Supreme Courts have
expounded as the spirit with which the provisions are informed and impressed, the elasticity in their
interpretation, their dynamic and resilient character which make them capable of meeting every modern
problem, and their having been designed from earliest time to the present to meet the exigencies of an
undefined and expanding future. The requirements of due process are interpreted in both, the United States
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect
and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the
due process clause “generally ascertained by the process of inclusion and exclusion in the course of the
decisions of cases as they arise (Twining v. New Jersey, 211 U.S. 78). Capsulized, it refers to “the embodiment
of the sporting idea of fair play” (Ermita-Malate Hotel and Motel Owner’s Association v. City Mayor of Manila,
20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free
government (Holden v. Hardy, 169 U.S. 366).
 Due process is comprised of two components – substantive due process which requires the intrinsic validity
of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process
which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an
impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
 True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in
criminal and civil proceedings, but in administrative proceedings as well. Non-observance of these rights will
invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests,
and upon notice, they may claim the right to appear therein and present their side and to refute the position of
the opposing parties (Cruz, Philippine Administrative Law, 1996 ed., p. 64). (Secretary of Justice v. Lantion,
322 SCRA 160, 186-188, Jan. 18, 2000, En Banc [Melo])
 Social Justice Society, et al. v. Atienza, Jr., GR No. 156052, February 13, 2008- Essentially, the oil
companies are fighting for their right to property. They allege that they stand to lose billions of pesos if forced
[to] relocate. However, based on the hierarchy of constitutionally protected rights, the right to life enjoys
precedence over the right to property. The reason is obvious: life is irreplaceable, property is not. When the
state or [local government unit] LGU’s exercise of police power clashes with a few individuals’ right to property,
the former should prevail,”.
 Procedural Due Process- Banco Español-Filipino vs. Palanca Serano vs NLRC, 323 SCRA 445- Due
process clause of the constitution is a limitation on government powers. It does not apply to the exercise of
private power, such as the termination of employment under the Labor Code.
 Pichay, Jr. vs. Office of the Deputy Executive Secretary for Legal Affairs, et al., GR No. 196425, July 24,
2012- Pichay’s right to due process was not violated when the IAD-ODESLA took cognizance of the
administrative complaint against him. IN administrative proceedings, the filing of the charges and giving
reasonable opportunity for the person so charged to answer the accusations against him constitute the minimum
requirements of due process, which simply means having thte opportunity to explain one’s side.
 Chavez vs. Romulo, 431 SCRA 534- The license to carry firearm is neither a property nor a property right.
Neither does it create a vested right. A permit to carry a firearm outside of one’s residence maybe revoked at
anytime.
 MMDA vs. Garin, GR No. 130230, April 15, 2005- A license to operate a motor vehicle is not a property right,
but a privilege granted by the State, which may be suspended or revoked by the State in the exercise of police
power.
 Macias vs. Macias, September 3, 2003- Denial of due process suffices to cast on the official act taken by
whatever branch of the government the impress of nullity.
 SP of Baguio City vs. Jadewell Parking Systems Corp., April 23, 2014- Prior notice and hearing, as
elements of due pocess of law, are only required in judicial or quasi judicial proceedings, not when the
government agency is engaged in the performance of quasi legislative or administrative functions.
 Shu vs. Dee, April 23, 2014- The respondents cannot claim that they were denied due process during the NBI
Investigation. The functions of the NBI are merely investigatory and informational in nature. The NBI has no
judicial or quasi-judicial power and is incapable of granting any relief to any party, it cannot even determine
probable cause.
 Estrada vs. Office of the Ombudsman, GR No. 212140-41, January 21, 2015- there is no law or rule that
requires the Ombudsman to furnish a respondent with copies of the counter-affidavits of his co-respondents.

o SHORT DIGESTS
1. SPARK vs. QUEZON CITY, G.R. No. 225442, August 8, 2017
a. Q. What is the basis of the unconstitutionality of the law anchored on void for vagueness doctrine?
b. A. The void for vagueness doctrine is premised on due process considerations. In one case, it was
opined that:
T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural due
process uncertainty cases" and "substantive due process uncertainty cases." "Procedural due process
uncertainty" involves cases where the statutory language was so obscure that it failed to give adequate
warning to those subject to its prohibitions as well as to provide proper standards for adjudication. Such a
definition encompasses the vagueness doctrine. This perspective rightly integrates the vagueness
doctrine with the due process clause, a necessary interrelation since there is no constitutional provision
that explicitly bars statutes that are "void-for-vagueness." [Dissenting Opinion of Retired Associate Justice
Dante O. Tinga in Spouses. Romualdez v. COMELEC, 576 Phil. 357, 432 (2008)]
c. Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the
reasonableness of classifications.
i. The STRICT SCRUTINY TEST applies when a classification either (i) interferes with the exercise of
fundamental rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens
suspect classes.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
ii. The INTERMEDIATE SCRUTINY TEST applies when a classification does not involve suspect classes
or fundamental rights, but requires heightened scrutiny, such as in classifications based on
gender and legitimacy.
iii. Lastly, the RATIONAL BASIS TEST applies to all other subjects not covered by the first two tests.
b. STRICT SCRUTINY TEST - The strict scrutiny test as applied to minors entails a consideration of the
peculiar circumstances of minors as enumerated in Bellotti vis-à-vis the State's duty as parens patriae to
protect and preserve their well-being with the compelling State interests justifying the assailed
government act. Under the strict scrutiny test, a legislative classification that interferes with the exercise of
a fundamental right or operates to the disadvantage of a suspect class is presumed unconstitutional.
Thus, the government has the burden of proving that the classification (i) is necessary to achieve a
compelling State interest, and (ii) is the least restrictive means to protect such interest or the means
chosen is narrowly tailored to accomplish the interest.
i. COMPELLING STATE INTEREST - jurisprudence holds that compelling State interests include
constitutionally declared policies (e.g. promoting general welfare for minors)
ii. LEAST RESTRICTIVE MEANS - it stems from the fundamental premise that citizens should not be
hampered from pursuing legitimate activities in the exercise of their constitutional rights. While
rights may be restricted, the restrictions must be minimal or only to the extent necessary to achieve
the purpose or to address the State's compelling interest. When it is possible for governmental
regulations to be more narrowly drawn to avoid conflicts with constitutional rights, then they must
be so narrowly drawn. (e.g. risk of overly restricting the minors' fundamental freedoms of education,
association, religion, etc)

o Procedural Due Process

2. Rodriguez v. NBI and DOJ, G.R. No. 219781, July 28, 2021
Q. Whether petitioner was denied of due process when the NBI and the DOJ conducted an investigation
on his person relative to the PDAF scam without giving him the opportunity to be heard?
A. There was no violation of petitioner’s constitutional rights to due process of law and equal protection of
the laws in the case.
The Court noted that Section 1 of RA 157, or An Act Creating a Bureau of Investigation, Providing Funds
Therefor, and for Other Purposes, shows that the main functions of the NBI are merely investigative and
information in nature. The NBI’s function are not quasi-judicial in nature and do not involve the granting
of relief to any party.
It further noted that subsequent to RA 157, various executive orders and republic acts have been
promulgated concerning the NBI, the latest of which is RA 10867, or the National Bureau of Investigation
Reorganization and Modernization Act in 2016. While RA 10867 expanded the powers and functions of
the NBI, a perusal of the same shows that its functions remained to be merely investigative and
informational.
The Court held that the NBI’s investigation of the Napoles PDAF scam were done in the performance of
the NBI’s functions which are merely investigatory and informational in nature. The NBI did not perform a
judicial or quasi-judicial function when it recommended to the Ombudsman further fact-finding
investigation or the corresponding preliminary investigation for the eventual filing of the appropriate
charges before the Sandiganbayan. Instead, the NBI’s findings were merely recommendatory and still
subject to the Ombudsman’s actions.

o Administrative Due Process

3. CARLOS R. SAUNAR vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, G.R. No. 186502, December
13, 2017
Q. How is due process of law observed in administrative proceedings?
In American jurisprudence, the due process requirement entails the opportunity to be heard at a meaningful
time and in a meaningful manner. Likewise, it was characterized with fluidity in that it negates any concept
of inflexible procedures universally applicable to every imaginable situation.
Xxx In our legal system, xxx, the opportunity for a hearing after the administrative level may not arise as
the reception of evidence or the conduct of hearings are discretionary on the part of the appellate courts.
In our jurisdiction, the constitutional guarantee of due process is also not limited to an exact definition. It is
flexible in that it depends on the circumstances and varies with the subject matter and the necessities of
the situation.
In the landmark case of Ang Tibay, the Court explained that administrative bodies are free from a strict
application of technical rules of procedure and are given sufficient leeway. In the said case, however,
nothing was said that the freedom included the setting aside of a hearing but merely to allow matters which
would ordinarily be incompetent or inadmissible in the usual judicial proceedings.
The Court reminded that administrative bodies have the active duty to use the authorized legal methods
of securing evidence and informing itself of facts material and relevant to the controversy.
The observance of a formal hearing in •administrative tribunal or bodies other than judicial is not novel. In
Perez v. Philippine Telegraph and Telephone Company, the Court opined that in illegal dismissal cases, a
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
formal hearing or conference becomes mandatory when requested by the employee in writing, or
substantial evidentiary disputes exists, or a company rule or practice requires it, or when similar
circumstances justify it.
To reiterate, due process is a malleable concept anchored on fairness and equity. The due process
requirement before administrative bodies are not as strict compared to judicial tribunals in that it suffices
that a party is given a reasonable opportunity to be heard. Nevertheless, such "reasonable opportunity"
should not be confined to the mere submission of position papers and/or affidavits and the parties must be
given the opportunity to examine the witnesses against them. The right to a hearing is a right which may
be invoked by the parties to thresh out substantial factual issues. It becomes even more imperative when
the rules itself of the administrative body provides for one. While the absence of a formal hearing does not
necessarily result in the deprivation of due process, it should be acceptable only when the party does not
invoke the said right or waives the same.

o Purpose of the guaranty

1. Hurtado v. California, 110 U.S. 516 (1884)
a. No man be taken or imprisoned, diseised, outlawed, exiled, or in any sort destroyed unless it be by the
lawful judgment, that is, verdict of his equals (that is, of men of his own condition) or by the law of the land
(per legem terrae) by the due course and process of law."
b. In the language of Mr. Webster, in his familiar definition, "the general law, a law which hears before it
condemns, which proceeds upon inquiry and renders judgment only after trial," so "that every citizen shall
hold his life, liberty, property and immunities under the protection of the general rules which govern society,"
and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of
confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative
judgments and decrees, and other similar special, partial and arbitrary exertions of power under the forms
of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects,
is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the
limitations imposed by our constitutional law upon the action of the governments, both State and national,
are essential to the preservation of public and private rights, notwithstanding the representative character
of our political institutions. The enforcement of these limitations by judicial process is the device of self-
governing communities to protect the rights of individuals and minorities, as well against the power of
numbers as against the violence of public agents transcending the limits of lawful authority, even when
acting in the name and wielding the force of the government.

2. Romualdez v. COMELEC, G.R. No. 167011, [April 30, 2008], 576 PHIL 357-470)
a. Substantive due process guarantees against the arbitrary exercise of state power, while procedural due
process is a guarantee of procedural fairness.
o Meaning of Life, Liberty, and Property
1. Chavez vs. Romulo, 431 SCRA 534
b. In evaluating a due process claim, the first and foremost consideration must be whether life, liberty or
property interest exists. The bulk of jurisprudence is that a license authorizing a person to enjoy a certain
privilege is neither a property nor property right. In Tan vs. The Director of Forestry, 33 we ruled that "a
license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority granting it and the person to whom it is granted; neither is it property or a property
right, nor does it create a vested right."
c. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory creation.
d. Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It
does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions,
and such as may thereafter be reasonably imposed. A licensee takes his license subject to such
conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license is that it
might be revoked by the selectmen at their pleasure. Such a license is not a contract, and a revocation of
it does not deprive the defendant of any property, immunity, or privilege within the meaning of these
words in the Declaration of Rights. The US Supreme Court, in Doyle vs. Continental Ins. Co, held: "The
correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere
license by the State is always revocable."

2. Libanan vs. Sandiganbayan, 233 SCRA 163

a. Obviously, the suspension order cannot amount to a deprivation of property without due process of law.
Public office is "a public agency or trust," and it is not the property envisioned by the Constitutional
provision which petitioner invokes.

o Substantive Due Process

1. Villegas vs. Hiu Chiong Tsai Pao Ho, 86 SCRA 275 (1978)
b. City of Manila passed an ordinance requiring aliens to secure employment permit from the City and to pay
a fee of P50.00 regardless of employment status.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
c. The Court declared the ordinance as void because it does not contain or suggest any standard or criterion
to guide the mayor in the exercise of the power which has been granted to him by the ordinance. Hence, it
is violative of due process and equal process rule of the Constitution.
d. Requiring a person before he can be employed to get a permit from the City Mayor of Manila who may
withhold or refuse it at will is tantamount to denying him the basic right of the people in the Philippines to
engage in a means of livelihood. While it is true that the Philippines as a State is not obliged to admit aliens
within its territory, once an alien is admitted, he cannot be deprived of life without due process of law. This
guarantee includes the means of livelihood. The shelter of protection under the due process and equal
protection clause is given to all persons, both aliens and citizens.

2. Rubi vs. Prov. Board of Mindoro, 39 Phil. 660 (1919)

a. The due process clause are universal in their application, to all persons within the territorial jurisdiction,
without regard to any differences of race, of color, or of nationality.
b. "Liberty consists in the ability to do what one ought to desire and in not being forced to do what one ought
not to desire." (Montesquieu, Spirit of the Laws.)
c. Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable
conscience of the individual." (Apolinario Mabini.)
d. The right to liberty guaranteed by the Constitution includes the right to exist and the right to be free from
arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen but is deemed to embrace the right of man to enjoy the faculties with
which he has been endowed by his Creator, subject only to such restraints as are necessary for the common
welfare.
e. The right of the individual is necessarily subject to reasonable restraint by general law for the common
good. Whenever and wherever the natural rights of citizens would, if exercised without restraint, deprive
other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation
of law. The liberty of the citizen may be restrained in the interest of the public health, or of the public order
and safety, or otherwise within the proper scope of the police power.
f. One cannot hold that the liberty of the citizen is unduly interfered with when the degree of civilization of the
Manguianes is considered. They are restrained for their own good and the general good of the Philippines.
Nor can one say that due process of law has not been followed. To go back to our definition of due process
of law and equal protection of the laws. there exists a law; the law seems to be reasonable; it is enforced
according to the regular methods of procedure prescribed; and it applies alike to all of a class.
o Void for Vagueness/Overbreadth
1. As Applied Challenge
o The "as applied" approach embodies the rule that one can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. The rule prohibits one from challenging the constitutionality of the
statute based solely on the violation of the rights of third persons not before the court. This rule is also
known as the prohibition against third-party standing.
o In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground — whether absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness.
2. Facial Challenge
o A petitioner may mount a "facial" challenge to the constitutionality of a statute even if he claims no violation
of his own rights under the assailed statute. To mount a "facial" challenge, a petitioner has only to show
violation under the assailed statute of the rights of third parties not before the court. This exception allowing
"facial" challenges, however, applies only to statutes involving free speech. The ground allowed for a
"facial" challenge is overbreadth or vagueness of the statute.
o On-its-face invalidation of statutes, described as a "manifestly strong medicine" to be employed "sparingly
and only as a last resort."
o Chilling effect - The rationale for this exception allowing a "facial" challenge is to counter the "chilling
effect" on protected speech that comes from statutes violating free speech. A person who does not know
whether his speech constitutes a crime under an overbroad or vague law may simply refuse to speak to
avoid being charged of a crime. The overbroad or vague law chills him into silence.
o Grounds

1. STRICT CONSTRUCTION - a rule of legal hermeneutics which deals with the parsing of statutes to
determine the intent of the legislature.
2. STRICT SCRUTINY - a standard of judicial review for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental freedoms. It is set opposite such
terms as "deferential review" and "intermediate review."
3. OVERBREADTH DOCTRINE – “a governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.'' (Estrada v. Sandiganbayan)
 And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague
in all its possible applications. (David v. Arroyo)
4. VOID-FOR-VAGUENESS DOCTRINE –
 a law is facially invalid if men of common intelligence must necessarily guess at its meaning and
differ as to its application. (David v. Arroyo)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
 "a statute which either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law." (Estrada v. Sandiganbayan)
 A statute or act may be said to be VAGUE when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2) respects — it violates due process
for failure to accord persons, especially the parties targeted by it, FAIR NOTICE of what conduct to
avoid; and, it leaves law enforcers UNBRIDLED DISCRETION in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle. But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which nonetheless specify a
standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable
to certain types of activities. The first may be "saved" by PROPER CONSTRUCTION, while no
challenge may be mounted as against the second whenever directed against such activities. With
more reason, the doctrine cannot be invoked where the assailed statute is clear and free from
ambiguity, as in this case. (David v. Arroyo)
 The vagueness doctrine is a specie of "unconstitutional uncertainty", which may involve
"PROCEDURAL DUE PROCESS UNCERTAINTY cases" and "SUBSTANTIVE DUE PROCESS UNCERTAINTY
cases." "PROCEDURAL DUE PROCESS UNCERTAINTY" involves cases where the statutory language
was so obscure that it failed to give adequate warning to those subject to its prohibitions as well as
to provide proper standards for adjudication. Such a definition encompasses the vagueness
doctrine. This perspective rightly integrates the vagueness doctrine with the due process clause, a
necessary interrelation since there is no constitutional provision that explicitly bars statutes that are
"void-for-vagueness". [Dissenting Opinion of Retired Associate Justice Dante O. Tinga in Spouses.
Romualdez v. COMELEC, 576 Phil. 357, 432 (2008)]

3. Ople v. Torres, 292 SCRA 141. (1998)

a. FAIR NOTICE - As a rule, a statute or [an] act may be said to be vague when it lacks comprehensible
standards that men 'of common intelligence must necessarily guess at its meaning and differ as to its
application.' It is repugnant to the Constitution in two respects: (1) it violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves
law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.
b. XX

4. Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001

a. The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. Xx In sum, the doctrines of strict scrutiny, overbreadth,
and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or,
as they are called in American law, First Amendment cases. They cannot be made to do service when what
is involved is a criminal statute.
b. Petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been
formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal
offense must define the offense with sufficient definiteness that persons of ordinary intelligence can
understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation
that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by
construction.
c. Justice Mendoza succinctly stated, "As conduct - not speech - is its object, the challenged provision must
be examined only "as applied" to the defendant, herein petitioner, and should not be declared
unconstitutional for overbreadth or vagueness [under a "facial" challenge]."
5. David v. Arroyo, G.R. No. 171390, May 3, 2006
a. Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
b. A facial review of PP 1017, using the overbreadth doctrine, is uncalled for. First and foremost, the
overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free speech
cases, also known under the American Law as First Amendment cases. A plain reading of PP 1017 shows
that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon the AFP
to prevent or suppress all forms of lawless violence.
c. "Void for vagueness doctrine" holds that "a law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application." It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in
free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if
it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common intelligence cannot understand
the meaning and application of PP 1017.
6. Ong v. Sandiganbayan, G.R. No. 126858, September 16, 2005
d. The attacks against the constitutionality of RA 1379 because it is vague, violates the presumption of
innocence and the right against self incrimination, and breaches the authority and prerogative of the
Supreme Court to promulgate rules concerning the protection and enforcement of constitutional rights, are
unmeritorious. The law is not vague as it defines with sufficient particularity unlawfully acquired property of
a public officer or employee as that "which is manifestly out of proportion to his salary as such public officer

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
or employee and to his other lawful income and the income from legitimately acquired property." It also
provides a definition of what is legitimately acquired property. Based on these parameters, the public is
given fair notice of what acts are proscribed. The law, therefore, does not offend the basic concept of
fairness and the due process clause of the Constitution.
o Procedural Due Process
1. Due process is comprised of two components — substantive due process which requires the intrinsic validity of
the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which
consists of the two basic rights of
a. NOTICE AND HEARING
b. IMPARTIAL AND COMPETENT TRIBUNAL.
2. These twin rights may, however, be considered dispensable in certain instances, such as:
a. In proceedings where there is an URGENT NEED FOR IMMEDIATE ACTION,
i. summary abatement of a nuisance per se (Article 704, Civil Code),
ii. the preventive suspension of a public servant facing administrative charges (Section 63, Local
Government Code, B.P. Blg. 337),
iii. the padlocking of filthy restaurants or theaters showing obscene movies or like establishments
which are immediate threats to public health and decency, and
iv. the cancellation of a passport of a person sought for criminal prosecution;
b. Where there is TENTATIVENESS OF ADMINISTRATIVE ACTION, that is, where the respondent is not precluded
from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such
as
i. the summary distraint and levy of the property of a delinquent taxpayer, and
ii. the replacement of a temporary appointee; and
c. 3. Where the twin rights have PREVIOUSLY BEEN OFFERED BUT THE RIGHT TO EXERCISE THEM HAD NOT BEEN
CLAIMED. (Secretary of Justice v. Lantion, G.R. No. 139465, [January 18, 2000], 379 PHIL 165-251)

o Publication Requirement
1. Tanada v. Tuvera, 146 SCRA 446 (1986)
a. It is not correct to say that under the disputed clause publication may be dispensed with altogether. The
reason is that such omission would offend due process insofar as it would deny the public knowledge of
the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall
become effective immediately upon its approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that persons not aware of it would be
prejudiced as a result; and they would be so not because of a failure to comply with it but simply because
they did not know of its existence. Significantly, this is not true only of penal laws as is commonly supposed.
One can think of many non-penal measures, like a law on prescription, which must also be communicated
to the persons they may affect before they can begin to operate.

2. PITC v. Angeles, 263 SCRA 421 (1996)

a. The original Administrative Order issued on August 30, 1989, under which the respondents filed their
applications for importation, was not published in the Official Gazette or in a newspaper of general
circulation. The questioned Administrative Order, legally, until it is published, is invalid within the context of
Article 2 of the Civil Code. The fact that the amendments to Administrative Order No. SOCPEC 89-08-01
were filed with, and published by the UP Law Center in the National Administrative Register, does not cure
the defect related to the effectivity of the Administrative Order. The Administrative Order under
consideration is one of those issuances which should be published for its effectivity, since its purpose is to
enforce and implement an existing law pursuant to a valid delegation, i.e., P.D. 1071, in relation to LOI 444
and EO 133.

3. Republic v. Extelcom, G.R. 147096, January 15, 2002

a. Thus, publication in the Official Gazette or a newspaper of general circulation is a condition sine qua non
before statutes, rules or regulations can take effect. This is explicit from Executive Order No. 200, which
repealed Article 2 of the Civil Code.
b. Hence, the 1993 Revised Rules should be published in the Official Gazette or in a newspaper of general
circulation before it can take effect. Even the 1993 Revised Rules itself mandates that said Rules shall take
effect only after their publication in a newspaper of general circulation. In the absence of such publication,
therefore, it is the 1978 Rules that governs.

o Impartial Court or Tribunal

1. Tanada vs. PAEC, 141 SCRA 307 (1986)
a. Commissioners who were already occupying positions of responsibility of a subject matter in inquiry cannot
sit as a judge to review the same matter as there would be bias and prejudgment.
b. At any rate, even if it be assumed that there are some doubts regarding the conclusion that there has been
a prejudgment of the safety of PNPP-1, the doubts should be resolved in favor of a course of action that
will assure an unquestionably objective inquiry, considering the circumstances thereof and the number of
people vitally interested therein. Having thus prejudged the safety of the PNPP-1, respondent PAEC
Commissioners would be acting with grave abuse of discretion amounting to lack of jurisdiction were they

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
to sit in judgment upon the safety of the plant, absent the requisite objectivity that must characterize such
an important inquiry.The Court therefore Resolved to RESTRAIN respondent PAEC Commissioners from
further acting in PAEC Licensing Proceedings No. 1-77.

2. Anzaldo vs. Clave , 119 SCRA 353 (1982)

a. In this case, the person who acted for the Office of the President is the same person in the Civil Service
Commission, who was consulted by the Office of the President: Jacobo C. Clave. The Civil Service Decree
could not have contemplated that absurd situation for, as held in the Zambales Chromite case, that would
not be fair to the appellant.
b. Common sense and propriety dictate that the commissioner in the Civil Service Commission, who should
be consulted by the Office of the President, should be a person different from the person in the Office of
the President who would decide the appeal of the protestant in a contested appointment.
c. It is evident that Doctor Anzaldo was denied due process of law when Presidential Executive Assistant
Clave concurred with the recommendation of Chairman Clave of the Civil Service Commission. The case
is analogous to Zambales Chromite Mining Co. vs. Court of Appeals, L-49711, November 7, 1979, 94 SCRA
261, where it was held that the decision of Secretary of Agriculture and Natural Resources Benjamin M.
Gozon, affirming his own decision in a mining case as Director of Mines was void because it was rendered
with grave abuse of discretion and was a mockery of administrative justice.

3. Tejano v. Ombudsman, G.R. No. 159190, June 30, 2005

a. Due process dictates that one called upon to resolve a dispute may not review his decision on appeal.
b. Ombudsman Desierto, in this case, committed grave abuse of discretion. Petitioner attributes partiality on
the part of Ombudsman Desierto for having participated in the reinvestigation of the instant case despite
the fact that he earlier participated in the initial preliminary investigation of the same when he was a Special
Prosecutor by concurring in the recommendation for the filing of the information before the Sandiganbayan.
c. We agree with the petitioner. Steadfastly, we have ruled that the officer who reviews a case on appeal
should not be the same person whose decision is under review. In Zambales Chromite Mining Company v.
Court of Appeals, the decision of the Secretary of Agriculture and Natural Resources was set aside by this
Court after it had been established that the case concerned an appeal of the Secretary's own previous
decision, which he handed down while he was yet the incumbent Director of Mines. We have equally
declared void a decision rendered by the Second Division of the National Labor Relations Commission,
because one of its members, Commissioner Raul Aquino, participated in the review of the case which he
had earlier decided on as a former labor arbiter. 19 Likewise, this Court struck down a decision of
Presidential Executive Assistance Jacobo Clave over a resolution of the Civil Service Commission, in which
he, then concurrently its Chairman, had earlier concurred.

4. Tumey vs. Ohio, 273 U.S. 510 (1927)

a. Under statutes of Ohio, offenses against State prohibition, involving a wide range of fines enforceable by
imprisonment, may be tried without a jury, before the mayor of any rural village situate in the county in
which offenses occur; his judgment upon the facts is final and conclusive unless so clearly unsupported as
to indicate mistake, bias, or willful disregard of duty; the fines are divided between the State and village;
the village, by means of the fines collected, hires attorneys and detectives to arrest alleged offenders
anywhere in the county and prosecute them before the mayor; in addition to his salary, the mayor, when
he convicts, but not otherwise, receive his fees and cost amounting to a substantial income;
b. To subject a defendant to trial in a criminal case involving his liberty or property before a judge having a
direct, personal, substantial interest in convicting him is a denial of due process of law.
c. A system by which an inferior judge is paid for his service only when he convicts the defendant has not
become so customary in the common law or in this country that it can be regarded as due process where
the costs usually imposed are not so small as to be within the maxim de minimis non curat lex.

5. People v. Court of Appeals, 262 SCRA 452 (1996)

a. One of the essential requirements of procedural due process in a judicial proceeding is that there must be
an impartial court or tribunal clothed with judicial power to hear and determine the matter before it. Thus,
every litigant, including the State, is entitled to the cold neutrality of an impartial judge.
b. COLD NEUTRALITY OF AN IMPARTIAL JUDGE - the judge must not only be impartial but must also appear to
be impartial as an added assurance to the parties that his decision will be just. The litigants are entitled to
no less than that. They should be sure that when their rights are violated they can go to a judge who shall
give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in
his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be
no point in invoking his action for the justice they expect.
c. Judge Pedro Espina, as correctly pointed out by the Solicitor General, cannot be considered to adequately
possess such cold neutrality of an impartial judge as to fairly assess both the evidence to be adduced by
the prosecution and the defense in view of his previous decision in Special Civil Action No. 92-11-219
wherein he enjoined the preliminary investigation at the Regional State Prosecutor's Office level against
herein respondent Jane Go, the principal accused in the killing of her husband Dominador Go. Judge
Espina's decision in favor of respondent Jane Go serves as sufficient and reasonable basis for the

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
prosecution to seriously doubt his impartiality in handling the criminal cases. Verily, it would have been
more prudent for Judge Espina to have voluntarily inhibited himself from hearing the criminal cases.

6. Tabuena v. Sandiganbayan, 268 SCRA 332 (1997)

a. But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic
constitutional right to due process. "Respect for the Constitution," to borrow once again Mr. Justice Cruz's
words, is more important than securing a conviction based on a violation of the rights of the accused."
b. While going over the records, we were struck by the way the Sandiganbayan actively took part in the
questioning of a defense witness and of the accused themselves. Hardly in fact can one avoid the
impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for
the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the
witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding
the latter's questions in length. The "cold neutrality of an impartial judge" requirement of due process was
certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of
magistrate and advocate.

o Prejudicial Publicity
1. Sheppard v. Maxwell, 384 U.S. 333 (1966)
a. The massive, pervasive, and prejudicial publicity attending petitioner's prosecution prevented him from
receiving a fair trial consistent with the Due Process Clause of the Fourteenth Amendment.
b. Though freedom of discussion should be given the widest range compatible with the fair and orderly
administration of justice, it must not be allowed to divert a trial from its purpose of adjudicating controversies
according to legal procedures based on evidence received only in open court.

2. Webb v. De Leon, 247 SCRA 652 (1995)

c. Petitioners also complain about the denial of their constitutional right to due process and violation of their
right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and
the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation.

3. People v. Sanchez, G.R. No. 121039, October 18, 2001

a. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial
of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality.
b. On this rape case, appellant's claim that the publicity given to this case impaired their right to a fair trial, we
need only to revisit this Court's pronouncements in People v. Teehankee, Jr. (249 SCRA 54), viz: "We
cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It
is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile
and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not
incompatible to a free press. To be sure, responsible reporting enhances an accused's right to a fair trial
for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective
judicial administration, especially in the criminal field . . . . The press does not simply publish information
about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial
process to extensive public scrutiny and criticism. . . . ."

4. Re: Request for Live TV Coverage of the Trial of former President Joseph Estrda, AM
No. 01—30 SC, June 29, 2001; Perez v. Estrada, AM No. 01-4-03 SC Sept. 13, 2001
a. Considering the significance of the trial before the Sandiganbayan of former President Estrada and the
importance of preserving the records thereof, the Court believes that there should be an audio-visual
recording of the proceedings. The recordings will not be for live or real time broadcast but for documentary
purposes. Only later will they be available for public showing, after the Sandiganbayan shall have
promulgated its decision in every case to which the recording pertains. The master film shall be deposited
in the National Museum and the Records Management and Archives Office for historical preservation and
exhibition pursuant to law.
b. On the other hand, by delaying the release of the tapes for broadcast, concerns that those taking part in
the proceedings will be playing to the cameras and will thus be distracted from the proper performance of
their roles — whether as counsel, witnesses, court personnel, or judges — will be allayed. The possibility
that parallel trials before the bar of justice and the bar of public opinion may jeopardize, or even prevent,
the just determination of the cases can be minimized. The possibility that judgment will be rendered by the
popular tribunal before the court of justice can render its own will be avoided.

o Notice and Hearing:

1. Summary Dismissal Board v. Torcita, 330 SCRA 153 (2000)
a. The omission is fatal to the validity of the judgment finding him guilty of the offense for which he was not
notified nor charged. Summary dismissal proceedings are governed by specific requirements of notification
of the charges together with copies of affidavits and other attachments supporting the complaints, and the
filing of an answer, together with supporting documents.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
b. It is true that consistent with its summary nature, the duration of the hearing is limited, and the manner of
conducting the hearing is summary, in that sworn statements may take the place of oral testimonies of
witnesses, cross-examination is confined only to material and relevant matters, and prolonged arguments
and dilatory proceedings shall not be entertained.
c. However, notification of the charges contemplates that respondent be informed of the specific charges
against him.
d. Torcita was entitled to know that he was being charged with being drunk while in the performance of duty,
so that he could traverse the accusation squarely and adduce evidence in his defense. Although he was
given an opportunity to be heard on the multiple and broad charges initially filed against him, the absence
of specification of the offense for which he was eventually found guilty is not a proper observance of due
process. There can be no short-cut to the legal process (Alonte vs. Savellano Jr., 287 SCRA 245).
e. It is a requirement of due process that the parties be informed of how the litigation was decided with an
explanation of the factual and legal reasons that led to the conclusions of the Court.

2. Serano v. NLRC, 323 SCRA 445 G.R. No. 117040, [January 27, 2000], 380 PHIL 416-522
a. Facts: Ruben Serrano, head of the Security Checkers Section of Isetann, was served with a letter informing
him of his termination effective on the same date on the ground of retrenchment to the effect that the
company will phase out its entire security section and engage the services of an independent security
agency. In a complaint for illegal dismissal filed against Isetann by petitioner, the Labor Arbiter found,
among others, that Isetann failed to establish that retrenchment was resorted to in order to prevent or
minimize losses to its business and that it failed to accord petitioner due process for failure to serve prior
notice.
b. The Due Process Clause of the Constitution is a limitation on governmental powers. It does not apply to
the exercise of private power, such as the termination of employment under the Labor Code. This is plain
from the text of Art. III, §1 of the Constitution, viz.: "No person shall be deprived of life, liberty, or property
without due process of law. . . ." The reason is simple: Only the State has authority to take the life, liberty,
or property of the individual. The purpose of the Due Process Clause is to ensure that the exercise of this
power is consistent with what are considered civilized methods.
c. With respect to Art. 283 of the Labor Code, the employer's failure to comply with the notice requirement
does not constitute a denial of due process but a mere failure to observe a procedure for the termination of
employment which makes the termination of employment merely ineffectual.
d. Due process is a requirement for the validity of any governmental action amounting to deprivation
of liberty or property. It is a restraint on state action not only in terms of what it amounts to but how
it is accomplished. Its range thus covers both the ends sought to be achieved by officialdom as
well as the means for their realization.
e. The cardinal primary requirements of due process in administrative proceedings were highlighted in Ang
Tibay v. Court of Industrial Relations: (a) the right to a hearing, which includes the right to present one's
case and submit evidence in support thereof; (b) the tribunal must consider the evidence presented; (c) the
decision must have something to support itself; (d) the evidence must be substantial; (e) the decision must
be based on the evidence presented at the hearing, or at least contained in the record and disclosed to the
parties affected; (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 not simply accept the views of a subordinate; (g) the board or
body should, in all controversial questions, render its decision in such manner that the parties to the
proceeding may know the various issues involved, and the reason for the decision rendered.
f. In administrative proceedings, the essence of due process is simply the opportunity to explain one's side.
One may be heard, not solely by verbal presentation but also, and perhaps even more creditably as it is
more practicable than oral arguments, through pleadings. An actual hearing is not always an indispensable
aspect of due process. As long as a party was given the opportunity to defend his interests in due course,
he cannot be said to have been denied due process of law, for this opportunity to be heard is the very
essence of due process. (Lumiqued v. Exevea, G.R. No. 117665, 18 November 1997, 282 SCRA 146-147)

3. SP of Baguio City vs. Jadewell Parking Systems Corp., April 23, 2014
a. Ciy of Baguio entered into a MOA with Jadewell Parking to management the parking system of the city.
Based from the complaints, the Sanggunian Panglungsod later rescinded the MOA without hearing the side
of Jadewell. In the exercise of this option under Article 1191 Recission, was it necessary for the City of
Baguio to provide Jadewell an opportunity to air its side on the matter before the former implemented the
rescission of the MOA? In the instant case, was Jadewell deprived of procedural due process? We answer
in the negative. We disagree with the rulings of the RTC and the CA that Jadewell was deprived of due
process.
b. In Taxicab Operators of Metro Manila v. The Board of Transportation, we confronted the issue of whether
the petitioners were denied procedural due process when the respondent Board of Transportation issued
a circular ordering the phasing out of old vehicles to be used as taxicabs. In the said case, the phase-out
was embodied in a circular that was promulgated without holding a public hearing or at least requiring those
affected to submit their position papers on the policy to be implemented. We held for the respondent Board,
and ruled in this wise:

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
i. Dispensing with a public hearing prior to the issuance of the Circulars is neither violative of
procedural due process.
ii. As held in Central Bank vs. Hon. Cloribel and Banco Filipino, 44 SCRA 307 (1972): Previous notice
and hearing as elements of due process, are constitutionally required for the protection of life or
vested property rights, as well as of liberty, when its limitation or loss takes place in consequence
of a judicial or quasi-judicial proceeding, generally dependent upon a past act or event which has
to be established or ascertained. It is not essential to the validity of general rules or regulations
promulgated to govern future conduct of a class or persons or enterprises, unless the law provides
otherwise.
c. In the instant case, the assailed act by the Sanggunian Panlungsod in rescinding the MOA — be it first or
second act of rescission — was clearly in the exercise of its legislative or administrative functions and was
not an exercise of a judicial or quasi-judicial function. The Sanggunian Panlungsod does not possess any
judicial or quasi-judicial functions. The preamble of the MOA lends support to this view. Evidently, the
foremost reason why the agreement was entered into by the parties was to provide order, given Baguio
City's parking problems in identified areas, as well as to generate income.

4. Shu vs. Dee, April 23, 2014

a. Whether the respondent was denied due process in the NBI investigation?
b. On the respondents' allegation that they were denied due process during the NBI investigation, we stress
that the functions of this agency are merely investigatory and informational in nature. It has no judicial or
quasi-judicial powers and is incapable of granting any relief to any party. It cannot even determine probable
cause. The NBI is an investigative agency whose findings are merely recommendatory. It undertakes
investigation of crimes upon its own initiative or as public welfare may require in accordance with its
mandate. It also renders assistance when requested in the investigation or detection of crimes in order to
prosecute the persons responsible.
c. Since the NBI's findings were merely recommendatory, we find that no denial of the respondents' due
process right could have taken place; the NBI's findings were still subject to the prosecutor's and the
Secretary of Justice's actions for purposes of finding the existence of probable cause. We find it significant
that the specimen signatures in the possession of Metrobank were submitted by the respondents for the
consideration of the city prosecutor and eventually of the Secretary of Justice during the preliminary
investigation proceedings. Thus, these officers had the opportunity to examine these signatures.

5. Estrada vs. Office of the Ombudsman, GR No. 212140-41, January 21, 2015
a. Whether the denial of Ombudsman to furnish Estrada with all files on the complaint against him denied him
the procedural due process?
b. No. Considering the facts narrated above, the Ombudsman's denial in its 27 March 2014 Order of Sen.
Estrada's Request did not constitute grave abuse of discretion. Indeed, the denial did not violate Sen.
Estrada's constitutional right to due process. There is no law or rule which requires the Ombudsman to
furnish a respondent with copies of the counter-affidavits of his co-respondents.
c. The purpose of the Office of the Ombudsman in conducting a preliminary investigation, after conducting its
own fact-finding investigation, is to determine probable cause for filing an information, and not to make a
final adjudication of the rights and obligations of the parties under the law. Procedural due process does
not apply in preliminary investigation.
d. The rights to due process in administrative cases as prescribed in Ang Tibay, as amplified in GSIS, are
granted by the Constitution; hence, these rights cannot be taken away by mere legislation. On the other
hand, as repeatedly reiterated by this Court, the right to a preliminary investigation is merely a statutory
right, not part of the "fundamental and essential requirements" of due process as prescribed in Ang Tibay
and amplified in GSIS. Thus, a preliminary investigation can be taken away by legislation. The constitutional
right of an accused to confront the witnesses against him does not apply in preliminary investigations; nor
will the absence of a preliminary investigation be an infringement of his right to confront the witnesses
against him. A preliminary investigation may be done away with entirely without infringing the constitutional
right of an accused under the due process clause to a fair trial.

6. Pichay, Jr. v. Office of the Deputy Executive Secretary for Legal Affairs, et al., GR No.
196425, July 24, 2012
a. Prospero Pichay was investigated by ODESLA for grave misconduct for the purchase by the LWUA of
shares of Express Savings Bank. Pichay invoked equal protection and due process clause as according to
him only presidential appointees occupying upper-level positions in the government were investigated.
b. No. EO 13 does not violate the due process clause. Ascontrary to petitioner's assertions, his right to due
process was not violated when the IAD-ODESLA took cognizance of the administrative complaint against
him since he was given sufficient opportunity to oppose the formal complaint filed by Secretary Purisima.
In administrative proceedings, the filing of charges and giving reasonable opportunity for the person so
charged to answer the accusations against him constitute the minimum requirements of due process, which
simply means having the opportunity to explain one's side. Hence, as long as petitioner was given the
opportunity to explain his side and present evidence, the requirements of due process are satisfactorily
complied with because what the law abhors is an absolute lack of opportunity to be heard. The records
show that petitioner was issued an Order requiring him to submit his written explanation under oath with

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
respect to the charge of grave misconduct filed against him. His own failure to submit his explanation
despite notice defeats his subsequent claim of denial of due process.
e. EO 13 does not violate the equal protection clause. There are substantial distinctions that set apart
presidential appointees occupying upper-level positions in government from non-presidential appointees
and those that occupy the lower positions in government. In Salumbides v. Office of the Ombudsman, we
had ruled extensively on the substantial distinctions that exist between elective and appointive public
officials, thus: “Substantial distinctions clearly exist between elective officials and appointive
officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent capacity and are entitled to security of tenure while
others serve at the pleasure of the appointing authority.”

7. Chavez v. Romulo, 431 SCRA 534

a. In evaluating a due process claim, the first and foremost consideration must be whether life, liberty or
property interest exists. The bulk of jurisprudence is that a license authorizing a person to enjoy a certain
privilege is neither a property nor property right. In Tan vs. The Director of Forestry, we ruled that "a
license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between
the authority granting it and the person to whom it is granted; neither is it property or a property right, nor
does it create a vested right."
b. Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It
does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions,
and such as may thereafter be reasonably imposed. A licensee takes his license subject to such conditions
as the Legislature sees fit to impose, and one of the statutory conditions of this license is that it might be
revoked by the selectmen at their pleasure. Such a license is not a contract, and a revocation of it does not
deprive the defendant of any property, immunity, or privilege within the meaning of these words in the
Declaration of Rights. The US Supreme Court, in Doyle vs. Continental Ins. Co, held: "The correlative
power to revoke or recall a permission is a necessary consequence of the main power. A mere license by
the State is always revocable."

8. MMDA v. Garin, GR No. 130230, April 15, 2005

a. A license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its police
power.
b. MMDA correctly points out that a license to operate a motor vehicle is not a property right, but a privilege
granted by the state, which may be suspended or revoked by the state in the exercise of its police power,
in the interest of the public safety and welfare, subject to the procedural due process requirements. This is
consistent with our rulings in Pedro v. Provincial Board of Rizal on the license to operate a cockpit, Tan v.
Director of Forestry and Oposa v. Factoran on timber licensing agreements, and Surigao Electric Co., Inc.
v. Municipality of Surigao on a legislative franchise to operate an electric plant.

9. Secretary of Justice v. Lantion, G.R. No. 139466, October 17, 2000

a. This case involved an extradition request from the US for Mark Jimenez who is facing multiple charges in
the US. The jugular issue is whether or not the private respondent is entitled to the due process right to
notice and hearing during the evaluation stage of the extradition process.
b. The prospective extraditee has no right to notice and hearing during the evaluation stage of the
extradition process. An extradition proceeding is sui generis. It is not a criminal proceeding which will call
into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process
of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or
innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule,
constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be
invoked by an extraditee
c. Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of
the right being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly
suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner
Secretary of Justice.

10. People vs. Estrada G.R. No. 130487 June 19, 2000
a. Whether the trial court has denied the accused a fair trial by rendering despite motion for suspension of
the arraignment because the accused was suffering from mental defect?
b. Yes. The accused was denied due process. To put a legally incompetent person on trial or to convict and
sentence him is a violation of the constitutional rights to a fair trial and due process of law.
c. The arraignment of an accused shall be suspended if at the time thereof he appears to be suffering from
an unsound mental condition of such nature as to render him unable to fully understand the charge against
him and to plead intelligently thereto. Under these circumstances, the court must suspend the proceedings
and order the mental examination of the accused, and if confinement be necessary for examination, order
such confinement and examination. In the case at bar, the fact that accused-appellant was able to answer
the questions asked by the trial court is not conclusive evidence that he was competent enough to stand
trial and assist in his defense. The trial court took it solely upon itself to determine the sanity of accused-
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
appellant. The trial judge is not a psychiatrist or psychologist or some other expert equipped with the
specialized knowledge of determining the state of a person's mental health. To determine the accused-
appellant's competency to stand trial, the court, in the instant case, should have at least ordered the
examination of accused-appellant, especially in the light of the latter's history of mental illness.
d. By depriving appellant of a mental examination, the trial court effectively deprived accused-appellant of a
fair trial. The trial court's negligence was a violation of the basic requirements of due process and for this
reason, the Supreme Court nullified the proceedings in the court a quo and remanded the case for proper
disposition.

11. Lim v. Court of Appeals, G.R. 111397, August 12, 2002

a. Whether the mayor has violated the due process for closing a night club and by refusing to issue licenses
and permits without given notice and opportunity to be heard the reason?
b. The mayor must observe due process in exercising these powers, which means that the mayor must give
the applicant or licensee notice and opportunity to be heard.

c. The power of the mayor to suspend business licenses and work permits is expressly premised on the
violation of the terms and conditions thereof; and the power to inspect and investigate does not include the
power to order a police raid on the establishments. Further, Mayor Lim has no authority to close down a
business establishment without due process of law. The Court noted that Mayor Lim did not charge Bistro
with any specific violation; that he closed down the clubs before expiration of Bistro's business license; and
that he refused to accept the license and work applications of Bistro without examining whether it complies
with the legal prerequisites.

12. Mariveles Shipyard vs. CA, GR No. 119847, October 24, 2003
a. Petitioner was summarily dismissed from the service for having been found guilty of neglect of duty,
inefficiency and incompetence in the performance of his duties due to his laxity and inefficiency as the
police guard on duty, resulting in the escape of the two detains while in his custody. In this petition, petitioner
alleged (1) that the charges against him may not be the proper ground for summary dismissal from the
service, and (2) that he was denied due process.
b. In upholding petitioner's summary dismissal from the service, the Supreme Court ruled that the charges of
neglect of duty, inefficiency and incompetence in the performance of official duties fall within the scope of
conduct unbecoming a police officer which is a ground for summary dismissal from the service. Thus, the
summary dismissal of petitioner from the service was in order.
c. The Court likewise ruled that the claim of petitioner that he was denied due process was baseless.
Investigations were conducted wherein petitioner and other witnesses were heard before petitioner was
dismissed from the service summarily.
d. The essence of due process is simply an opportunity to be heard, or, as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek for a reconsideration of the
action or ruling complained of. Any seeming defect in its observance is cured by the filing of a motion for
reconsideration. A formal or trial-type hearing is not at all times and in all instances essential. The
requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their
side of the controversy at hand. What is frowned upon is the absolute lack of notice and hearing. There is
no denial that the essence of due process was sufficiently complied with in the present case.

13. Secretary of Justice vs. Lantion, GR No. 139465, October 17, 2000
a. The basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in
administrative proceedings as well. Non-observance of these rights will invalidate the proceedings.
Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they
may claim the right to appear therein and present their side and to refute the position of the opposing parties
(Cruz, Phil. Administrative Law, 1996 ed., p, 64). In a preliminary investigation which is an administrative
investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due
process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other
supporting documents, and the right to submit counter-affidavits and other supporting documents within ten
days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence
submitted by the complainant.

14. Roxas vs Vasquez, GR No. 114944, June 21, 2001

a. In an Information for violation of RA No. 3019, filed by the Ombudsman before the Sandiganbayan,
docketed as Crim. Case No. 18956, petitioners were not included among those indicted as the complaints
against them were dismissed. However, upon motion of two accused in said case, a reinvestigation was
conducted, but without notice to or participation of petitioners, they were later impleaded as additional
accused. Petitioners filed a motion for reconsideration, but the same was denied.
b. At any rate, petitioners cannot argue that they have been deprived of due process. The rule is well
established that due process is satisfied when the parties are afforded fair and reasonable opportunity
to explain their side of the controversy or an opportunity to move for a reconsideration of the action or
ruling complained of. In the case at bar, the record clearly shows that petitioners not only filed their
respective Counter-Affidavits during the preliminary investigation, they also filed separate Motions for

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
Reconsideration of the October 19, 1993 Order of the Ombudsman impleading them as accused in Criminal
Case No. 18956.

15. Co vs. Barbers, 290 SCRA 717

a. Whether the preventive suspension is a denial of due process for not afforded the opportunity to be heard?
b. No. Preventive suspension does not deny the due process. A preventive suspension, however, can be
decreed on an official under investigation after charges are brought and even before the charges are heard
since the same is not in the nature of a penalty, but merely a preliminary step in an administrative
investigation.

o Opportunity to be Heard
1. Budiongan v. De la Cruz, G.R. No. 170288, September 22, 2006
a. The right to a preliminary investigation is not a constitutional right, but is merely a right conferred by
statute. The absence of a preliminary investigation does not impair the validity of the Information or
otherwise render the same defective. It does not affect the jurisdiction of the court over the case or constitute
a ground for quashing the Information. If absence of a preliminary investigation does not render the
Information invalid nor affect the jurisdiction of the court over the case, then the denial of a motion for
reinvestigation cannot likewise invalidate the Information or oust the court of its jurisdiction over the case.
b. Petitioners were not deprived of due process because they were afforded the opportunity to refute the
charges by filing their counter-affidavits. The modification of the offense charged did not come as a surprise
to the petitioners because it was based on the same set of facts and the same alleged illegal acts. Moreover,
petitioners failed to aver newly discovered evidence nor impute commission of grave errors or serious
irregularities prejudicial to their interest to warrant a reconsideration or reinvestigation of the case as
required under Section 8, Rule III of the Rules of Procedure of the Office of the Ombudsman. Thus, the
modification of the offense charged, even without affording the petitioners a new preliminary investigation,
did not amount to a violation of their rights.

2. Marohombsar v. Judge Adiong, A.M. RTJ-02-1674, January 22, 2004

a. In applications for preliminary injunction, the dual requirement of prior notice and hearing before
injunction may issue has been relaxed to the point that not all petitions for preliminary injunction need
undergo a trial-type hearing, it being doctrinal that a formal or trial-type hearing is not, at all times and in all
instances, essential to due process. The essence of due process is that a party is afforded a reasonable
opportunity to be heard and to present any evidence he may have in support of his defense. In the present
case, complainant was able to move for a reconsideration of the order in question, hence her right to due
process was not in anyway transgressed. We have ruled that a party cannot claim that he has been denied
due process when he has availed of the opportunity to present his position.

o Exceptions to notice and hearing requirements

1. Philcomsat vs. Alcuaz, 180 SCRA 218 (1989)
a. Is the NTC order of reducing by 15% the Philcomsat rate without notice and hearing is violative of procedural
due process?
b. We hold that the challenged order, particularly on the issue of rates provided therein, being violative of the
due process clause is void and should be nullified. Respondents should now proceed, as they should
heretofore have done, with the hearing and determination of petitioner's pending application for a certificate
of public convenience and necessity and in which proceeding the subject of rates involved in the present
controversy, as well as other matters involved in said application, may be duly adjudicated with reasonable
dispatch and with due observance or our pronouncements herein.
c. Aside from statute, the necessity of notice and hearing in an administrative proceeding depends on the
character of the proceeding and the circumstances involved.
d. 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.

Administrative proceeding Due Process

Executive, administrative, and legislative Notice and hearing is NOT required

functions

Judicial, and quasi-judicial matter Notice and hearing is required.

2. Suntay vs. People, 101 Phil. 833 (1957)

a. Whether the passport of a holder facing criminal charge be cancelled without notice and hearing, without
violating due process of law?

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
b. Yes. Where the holder of a passport is facing a criminal charge in our courts and left the country to evade
criminal prosecution, the Secretary of Foreign Affairs, in the exercise of his discretion to revoke a passport
already issued, cannot be held to have acted whimsically or capriciously in withdrawing and cancelling such
passport. Due process does not necessarily mean or require a hearing. When discretion is exercised by an
officer vested with it upon are undisputed fact, such as the filing of a serious criminal charge against the
passport holder hearing may be dispensed with by such officer as a prerequisite to the cancellation of his
passport; lack of such hearing does not violate the due process law clause of the Constitution; and the
exercise of the discretion vested in him cannot be deemed whimsical and capricious because of the
absence of such hearing.

3. De Bisshop vs. Galang, 8 SCRA 244 (1963)

a. Whether a formal hearing is required for deportation cases?
b. No. A formal hearing for deportation is not required. “While a day in court is a matter of right in judicial
proceedings, in administrative proceedings, it is otherwise since they rest upon different principles . . . in
certain proceedings, therefore, of an administrative character, it may be stated, without fear of contradiction,
that the right to a notice and hearing are not essential to due process of law."
c. The administration of immigration laws is the primary and exclusive responsibility of the Executive branch
of the government. Extension of stay of aliens is purely discretionary on the part of immigration authorities.
d. Act No. 613, otherwise known as the Philippine Immigration Act of 1940, is silent as to the procedure to be
followed in matters of petition for extension of stay of aliens. Hence, the courts have no jurisdiction to review
the purely administrative practice of immigration authorities, for reasons of practicability and expediency, of
not granting formal hearings in such cases. The due process clause would not be violated by the absence
of such hearings because a day in court is not a matter of right in administrative proceedings.

4. Var Orient Shipping Co., Inc. vs. Achacoso, 161 SCRA 232 (1988)
a. The essence of due process is simply an opportunity to be heard (Bermejo vs. Barrios, 31 SCRA 764),
or, as applied to administrative proceedings, an opportunity to explain one's side (Tajonera vs.
Lamaroza, 110 SCRA 438; Gas Corporation of the Phil. vs. Hon. Inciong, 93 SCRA 653; Cebu Institute of
Technology vs. Minister of Labor, 113 SCRA 257), or an opportunity to seek a reconsideration of the
action or ruling complained of (Dormitorio vs. Fernandez, 72 SCRA 388).
b. The fact is that at the hearing of the case on March 4, 1987, it was agreed by the parties that they would
file their respective memoranda and thereafter consider the case submitted for decision (Annex 7 of
Bunyog's Comment). This procedure is authorized by law to expedite the settlement of labor disputes.
However, only the private respondents submitted memoranda. The petitioners did not. On June 10, 1987,
the respondents filed a motion to resolve (Annex 7, Bunyog's Comment). The petitioners' counsel did not
oppose either the "Motion to Resolve" or the respondents' "Motion for Execution of Decision" dated October
19, 1987 (Annex 10), both of which were furnished them through counsel. If it were true, as they now
contend, that they had been denied due process in the form of a formal hearing, they should have opposed
both motions.

o Administrative & Quasi-Judicial Due Process

1. Ang Tibay vs. CIR, 69 Phil. 635 (1940)
a. The Fundamental and Essential Rights of Due Process in Administrative Proceedings:
(1) The right to a hearing which includes the right of the party interested or affected to present his own
case and submit evidence in support thereof.
(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented
(3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity
which cannot be disregarded, namely, that of having something to support its decision. A decision
with absolutely nothing to support it is a nullity, a place when directly attached." (Edwards vs. McCoy,
supra.)
(4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin,
G. R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be
"substantial." (Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U. S.
142, 147, 57 S. Ct. 648, 650, 81 Law ed 965.) Substantial evidence is more than a mere scintilla It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in
the record and disclosed to the parties affected.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the views
of a subordinate in arriving at a decision.
(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the reasons
for the decisions rendered. The performance of this duty is inseparable from the authority conferred
upon it.
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
2. Montemayor vs. Araneta University Foundation, 77 SCRA 321 (1977)
a. University professor was expelled for immoral advances and homosexual favors towards his students and
co-professor. He was dismissed on grounds of immorality.
b. Academic due process referred to it as a system of procedure designed to yield the best possible
judgment when an adverse decision against a professor may be the consequence with stress on the
clear, orderly, and fair way of reaching a conclusion.
c. There must be a hearing before condemnation, with the investigation to proceed in an orderly manner,
and judgment to be rendered only after such inquiry. As far back as 1915, the American Association of
University Professors adopted the principle that "every university or college teacher should be entitled
before dismissal or demotion, to have the charges against him stated in writing, in specific terms and to
have a fair trial on these charges before a special or permanent judicial committee of the faculty or by the
faculty at large. At such trial the teacher accused should have full opportunity to present evidence."

3. Meralco vs. PSC, 11 SCRA 317 (1964)

a. The procedure followed by the Public Service Commission in deciding rate fixing cases of electric power
plants upon the submission of prepared forms issued by the agency or the submission of pleadings, briefs
and memorandums or even by mere inspection, without any hearing, amounts to a denial of the
petitioner's day in court.
b. It is the cardinal right of a party in trials and administrative proceedings to be heard, which includes the
right of the party interested or affected to present his own case and submit evidence in support thereof
and to have such evidence presented considered by the tribunal.
c. Due process of law guarantees notice and opportunities to be heard to persons who would be affected by
the order or act contemplated.

4. Ateneo vs. CA, 145 SCRA 100 (1986)

a. Juan Ramon, a student of Ateneo, slapped a cafeteria waitress of the school. After the university
conducted an investigation of the slapping incident, the student was dismissed from the university for
conduct unbecoming behavior.
b. The university conducted an investigation of the slapping incident. On the basis of the investigation results,
Juan Ramon was dismissed from the university. There was "unbecoming conduct" and pursuant to the
Rules of Discipline and Code of Ethics of the university, specifically under the 1967-1969 Catalog containing
the rules and academic regulations (Exhibit 19), this offense constituted a ground for dismissal from the
college. The action of the petitioner is sanctioned by law. Section 107 of the Manual of Regulations for
Private Schools recognizes violation of disciplinary regulations as valid ground for refusing re-enrollment of
a student (Tangonan v. Paño, 137 SCRA 245).

5. Alcuaz vs. PSBA, 161 SCRA 7 (1988)

a. The right of the school to refuse re-enrollment of students for academic delinquency and violation of
disciplinary regulations has always been recognized by this Court.
b. The minimum standards laid down by the Court to meet the demands of procedural due process are: (1)
the students must be informed in writing of the nature and cause of any accusation against them; (2) they
shall have the right to answer the charges against them, with the assistance of counsel, if desired: (3) they
shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their
own behalf; and (5) the evidence must be duly considered by the investigating committee or official
designated by the school authorities to hear and decide the case (Guzman vs. National University, 142
SCRA 706-707 [1986]).
c. The Supreme Court held that due process in disciplinary cases such as the case at bar does not entail
proceedings and hearings similar to those prescribed for actions and proceedings in the courts of justice.
In the school’s administrative process, both students and professors were given three (3) days from receipt
of letter to explain in writing why the school should not take administrative sanction against them. With
respect to the academic activities of the students and the teaching loads of the teachers, the respondent
school has created new class for the petitioners and the intervening professors during and when the
investigation was going on.

6. Non vs. Hon. Dames, G.R. No. 89317, May 30, 1990
a. The contract between the school and the student is not an ordinary contract. It is imbued with public interest,
considering the high priority given by the Constitution to education and the grant to the State of supervisory
and regulatory powers over all educational institutions. The authority for schools to refuse enrollment to a
student on the ground that his contract, which has a term of one semester, has already expired, cannot be
justified. Still, institutions' discretion on the admission and enrollment of students as a major component of
the academic freedom guaranteed to institutions of higher learning.

7. Office of the Court Administrator v. Pascual, 259 SCRA 604

a. The ground for the removal of a judicial officer should be established beyond reasonable doubt. Such is the
rule where the charges on which the removal is sought is misconduct in office, willful neglect, corruption,
incompetency, etc. The general rules in regard to admissibility of evidence in criminal trials apply."

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
Reasonable doubt is the inability to let the judicial mind rest easy upon the certainty of guilt after a thorough
investigation of the whole evidence.

8. Summary dismissal v. Torcita, 330 SCRA 153

a. It is a requirement of due process that the parties be informed of how the litigation was decided with an
explanation of the factual and legal reasons that led to the conclusions of the Court (ABD Overseas
Manpower Corp. vs. NLRC, 286 SCRA 454). Memorandum Circular No. 92-006 specifically prescribes that
the decision shall contain "a brief statement of the material facts and the findings of the summary dismissal
authority as well as the disposition thereof" (Sec. 6). The cursory conclusion of the Dismissal Board that
Torcita "committed breach of internal discipline by taking drinks while in the performance of same" should
have been substantiated by factual findings referring to this particular offense.

VI. EQUAL PROTECTION

o Political, Economic and Social Equality
1. Art. XIII, Sec. 1 and 2 (social justice)
a. SECTION 1. The Congress shall give highest priority to the enactment of measures that
i. protect and enhance the RIGHT OF ALL THE PEOPLE TO HUMAN DIGNITY,
ii. reduce SOCIAL, ECONOMIC, AND POLITICAL INEQUALITIES , and
iii. remove CULTURAL INEQUITIES by equitably diffusing wealth and political power for the common
good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its
increments.
b. SECTION 2. The promotion of social justice shall include the commitment to create economic opportunities
based on freedom of initiative and self-reliance.

2. Id., Sec. 3 (protection to labor)

a. SECTION 3. The State shall afford FULL PROTECTION TO LABOR, local and overseas, organized and
unorganized, and promote FULL EMPLOYMENT and EQUALITY OF EMPLOYMENT OPPORTUNITIES for all.
It shall guarantee the rights of all workers to
i. SELF-ORGANIZATION,
ii. COLLECTIVE BARGAINING AND NEGOTIATIONS, and
iii. peaceful concerted activities, including the RIGHT TO STRIKE in accordance with law
iv. SECURITY OF TENURe,
v. HUMANE CONDITIONS OF WORk, and a
vi. LIVING WAGE.
They shall also participate in policy and decision-making processes affecting their rights and benefits as
may be provided by law.
The State shall promote the PRINCIPLE OF SHARED RESPONSIBILITY between workers and employers and
the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its
just share in the fruits of production and the right of enterprises to reasonable returns on investments, and
to expansion and growth.

3. Art. XII, Sec. 10 (nationalization of business)

a. SECTION 10. The Congress shall, upon recommendation of the economic and planning agency, when
the national interest dictates, RESERVE to
i. CITIZENS OF THE PHILIPPINES or
ii. corporations or associations at least SIXTY PER CENTUM (60%) of whose capital is owned by such
citizens, or such higher percentage as Congress may prescribe, certain areas of investments.
The Congress shall enact measures that will encourage the formation and operation of enterprises
whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the NATIONAL ECONOMY AND PATRIMONY, the
State shall give preference to qualified Filipinos. [ FIRST FILIPINO POLICY]
The State shall regulate and exercise authority over FOREIGN INVESTMENTS within its national jurisdiction
and in accordance with its national goals and priorities.
b. SECTION 11. No franchise, certificate, or any other form of authorization for the OPERATION OF A PUBLIC
UTILITY shall be granted except to

i. CITIZENS OF THE PHILIPPINES or

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
ii. corporations or associations organized under the laws of the Philippines at least sixty per centum
(60%) of whose capital is owned by such citizens,
iii. nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period
than FIFTY YEARS. Neither shall any such franchise or right be granted except under the condition
that it shall be subject to amendment, alteration, or repeal by the Congress when the common good
so requires. The State shall encourage equity participation in public utilities by the general public.
iv. The PARTICIPATION OF FOREIGN INVESTORS in the governing body of any public utility enterprise
shall be limited to their proportionate share in its capital, and ALL THE EXECUTIVE AND MANAGING
officers of such corporation or association must be citizens of the Philippines.

4. Art. XII, Sec. 2, par. 2 (reservation of marine resources)

a. SECTION 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are OWNED BY THE STATE.
With the exception of agricultural lands, all other natural resources shall not be alienated.
The exploration, development, and utilization of natural resources shall be under the FULL CONTROL AND
SUPERVISION OF THE STATE.

The State may directly undertake such activities, or it may enter into CO-PRODUCTION, JOINT
VENTURE , OR PRODUCTION- SHARING AGREEMENTS WITH FILIPINO CITIZENS , or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such agreements
may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided by law.
In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development
of water power, BENEFICIAL USE may be the measure and limit of the grant.
The State shall protect the NATION’S MARINE WEALTH in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow SMALL-SCALE UTILIZATION OF NATURAL RESOURCES by Filipino citizens,
as well as cooperative fish farming, with priority to SUBSISTENCE FISHERMEN and fishworkers in rivers, lakes,
bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either TECHNICAL OR
FINANCIAL ASSISTANCE for large-scale exploration, development, and utilization of minerals, petroleum, and
other mineral oils according to the general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the country. In such agreements, the State
shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution.

5. Art. III, Sec. 11 (free access to the courts)

SECTION 11. FREE ACCESS TO THE COURTS and quasi-judicial bodies and ADEQUATE LEGAL ASSISTANCE
shall not be denied to any person by reason of poverty.

6. Art. VIII, Sec. 5(5) (legal aid to poor)

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice of law, the Integrated Bar, and LEGAL ASSISTANCE
TO THE UNDERPRIVILEGED. Such rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.

7. Art. IX-C, Sec. 10 (protection of candidates)

SECTION 10. Bona fide candidates for any public office shall be FREE FROM ANY FORM OF HARASSMENT
and discrimination.

8. Art. II, Sec. 26 (public service)

SECTION 26. The State shall guarantee EQUAL ACCESS TO OPPORTUNITIES for public service and prohibit
political dynasties as may be defined by law.

9. Art. II, Sec. 14 (equality of women and men)

o SECTION 14. The State recognizes the role of women in nation-building and shall ensure the fundamental
EQUALITY BEFORE THE LAW OF WOMEN AND MEN.

o Purpose

 The constitutional right to equal protection requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed. It requires public bodies and
institutions to treat similarly situated individuals in a similar manner. The guarantee of equal protection

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
secures every person within the State’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statute or by its improper execution through the State’s
duly constituted authorities. The concept of equal justice under the law demands that the State governs
impartially and not to draw distinctions between individuals solely on differences that are irrelevant to
the legitimate governmental objective.
 Equal protection neither requires universal application of laws to all persons or things without distinction,
nor intends to prohibit legislation by limiting the object to which it is directed or by the territory in which
it is to operate. The guaranty of equal protection envisions equality among equals determined
according to a valid classification. If the groupings are characterized by substantial distinctions that
make real differences, one class may be treated and regulated differently from another. In other
words, a valid classification must be: (1) based on substantial distinctions; (2) germane to the
purposes of the law; (3) not limited to existing conditions only; and (4) equally applicable to all
members of the class. (Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association,
Inc., et al., G.R. No. 189185, August 16, 2016, En Banc [Bersamin])

o The Three (3) Levels of Scrutiny to Determine the Propriety of the Classification under the Equal
Protection Clause

 The reasonability of a distinction and sufficiency of the justification given by the Government for its
conduct is gauged by using the means-end test. This test requires analysis of: (1) the interests of the
public that generally requires its exercise, as distinguished from those of a particular class; and (2) the
means employed that are reasonably necessary for the accomplishment of the purpose and are not
unduly oppressive upon individuals. To determine the propriety of the classification, courts resort
to three levels of scrutiny, viz: the rational scrutiny, intermediate scrutiny and strict scrutiny.
 The rational basis scrutiny (also known as the rational relation test or rational basis test) demands that
the classification reasonably relate to the legislative purpose. The rational basis test often applies in
cases involving economics or social welfare, or to any other case not involving a suspect class.
 When the classification puts a quasi-suspect class at a disadvantage, it will be treated under
intermediate or heightened review. Classifications based on gender or illegitimacy receives
intermediate scrutiny. To survive intermediate scrutiny, the law must not only further an important
governmental interest and be substantially related to that interest, but the justification for the
classification must be genuine and must not depend on broad generalizations.
 The strict scrutiny review applies when a legislative classification impermissibly interferes with the
exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect class. The
Government carries the burden to prove that the classification is necessary to achieve a compelling
state interest, and that it is the least restrictive means to protect such interest. (Mosqueda, et al. v.
Pilipino Banana Growers & Exporters Association, Inc., et al., G.R. No. 189185, August 16, 2016, En
Banc [Bersamin])

o CASELAWS

 In Mosqueda, et al. v. Pilipino Banana Growers & Exporters Association, Inc., et al., (G.R. No.
189185, August 16, 2016, En Banc [Bersamin]), the Court, applying the rational basis test, ruled that
the ordinance of Davao City prohibiting aerial spraying in all agricultural entities therein as the practice
produces pesticide drift causing inconvenience and harm to the residents and degrades the
environment, violates the equal protection clause, hence, should be declared unconstitutional. The
Court Held:
o The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of
any mode of pesticide application. Even manual spraying or truck-mounted boom spraying
produces drift that may bring about the same inconvenience, discomfort and alleged health
risks to the community and to the environment. A ban against aerial spraying does not weed
out the harm that the ordinance seeks to achieve. In the process, the ordinance suffers from
being “underinclusive” because the classification does not include all individuals tainted with
the same mischief that the law seeks to eliminate. A classification that is drastically
underinclusive with respect to the purpose or end appears as an irrational means to the
legislative end because it poorly serves the intended purpose of the law.
o xxx
o Aside from its being underinclusive, the assailed ordinance also tends to be “overinclusive”
because its impending implementation will affect groups that have no relation to the
accomplishment of the legislative purpose. Its implementation will unnecessarily impose a
burden on a wider range of individuals than those included in the intended class based on the
purpose of the law.
o It can be noted that the imposition of the ban is too broad because the ordinance applies
irrespective of the substance to be aerially applied and irrespective of the agricultural activity
to be conducted. The respondents admit that they aerially treat their plantations not only with
pesticides but also vitamins and other substances. The imposition of the ban against aerial
spraying of substances other than fungicides and regardless of the agricultural activity being
performed becomes unreasonable inasmuch as it patently bears no relation to the purported
inconvenience, discomfort, health risk and environmental danger which the ordinance seeks to
address. The burden now will become more onerous to various entities, including the

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
respondents and even others with no connection whatsoever to the intended purpose of the
ordinance.”
o xxx
o The over inclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by virtue
of its requirement for the maintenance of the 30-meter buffer zone. This requirement applies
regardless of the area of the agricultural landholding, geographical location, topography, crops
grown and other distinguishing characteristics that ideally should bear a reasonable relation to
the evil sought to be avoided. As earlier stated, only large banana plantations could rely on
aerial technology because of the financial capital required therefor.
o The establishment and maintenance of the buffer zone will become more burdensome to the
small landholders because: (1) they have to reserve the 30-meter belt surrounding their
property; (2) that will have to be identified through GPS; (3) the metes and bounds of the buffer
zone will have to be plotted in a survey plan for submission to the local government unit; and
(4) will be limited as to the crops that may be cultivated therein based on the mandate that the
zone shall be devoted to “diversified trees” taller than what are being grown therein. The
arbitrariness of Section 6 all the more becomes evident when the land is presently devoted to
the cultivation of root crops and vegetables, and trees or plants slightly taller than the root crops
and vegetables are then to be planted. It is seriously to be doubted whether such circumstance
will prevent the occurrence of the drift to the nearby residential areas.
o Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities
engaging in organic farming, and do not contribute to the occurrence of pesticide drift. The
classification indisputably becomes arbitrary and whimsical.
o A substantially overinclusive or underinclusive classification tends to undercut the
governmental claim that the classification serves legitimate political ends. Where
overinclusiveness is the problem, the vice is that the law has a greater discriminatory or
burdensome effect than necessary. In this light, we strike down Section 5 and Section 6 of
Ordinance 0309-07 for carrying an invidious classification, and for thereby violating the Equal
Protection Clause.
o xxx
o Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues
for the investment of machineries and equipment capable of aerial spraying. It effectively
denies the affected individuals the technology aimed at efficient and cost-effective operations
and cultivation not only of banana but of other crops as well. The prohibition against aerial
spraying will seriously hamper the operations of the banana plantations that depend on aerial
technology to arrest the spread of the Black Sigatoka disease and other menaces that threaten
their production and harvest. X x x the effect of the ban will not be limited to Davao City in view
of the significant contribution of banana export trading to the country’s economy.
o The discriminatory character of the ordinance makes it oppressive and unreasonable in light of
the existence and availability of more permissible and practical alternatives that will not
overburden the respondents and those dependent on their operations as well as those who
stand to be affected by the ordinance. x x x
o - The Supreme Court found the strict scrutiny standard, an American constituted construct,
useful in determining the constitutionality of laws that tend to target a class of things or persons.
According to this standard, a legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class disadvantaged of a suspect
class is presumed unconstitutional. The burden is on the government to prove that the
classification is necessary to achieve a compelling state interest and it is the least restrictive
means to protect such interest. Later, the strict scrutiny standard was used to assess the
validity of laws dealing with the regulation of speech, gender or race as well as other
fundamental rights, as expansion from its earlier application to equal protection. In the cases,
the Supreme Court finds nothing in Section 4(a)(1) that calls for the application of the strict
scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially condemnable act- accessing the computer system of another without right. It is
universally condemned act.
 Biraogo vs the Philippine Truth Commission, G.R. No. 192935, December 7, 2010- the Arroyo
administration is but just a member of a class, that is, a class of past administrations. It is not a class
of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal
protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.
 Trillanes IV vs. Pimentel, GR No. 179817, June 27, 2008 Election to Congress is not a reasonable
classification in criminal law enforcement as the functions and duties of the office are not substantial
distinctions which lift one from the class of prisoners interrupted in their freedom and restricted in liberty
of movement.
 People vs. Jalosjos, 324 SCRA 689, Election to the position of a Congressman is not reasonable
classification in criminal law enforcement. The functions and duties of the office are not substantial
distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty
of movement.
 USA vs. Puruganan, September 3, 2002- The position of Congressman is not a reasonable
classification in criminal law enforcement. The functions and duties of the office are not substantial
distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all
those belonging to the same class.
 Substantive distinctions exist between elective officials and appointive officials. The former occupy their
office by virtue of the mandate of the people while the latter hold their office by virtue of their designation
by an appointing authority.
 - PAGCOR vs. BIR, GR No. 172087, March 15, 2011- PAGCOR cannot find support in the equal
protection clause of the constitution. It was granted a franchise , subject to amendment, alteration or
repeal by Congress.

o Sexual Discrimination
1. Phil. Association of Service Exporters vs. Drilon, 163 SCRA 386 (1988)

a. It is well-settled that "equality before the law" under the Constitution does not import a perfect identity of
rights among all men and women. It admits of classifications, provided that (1) such classifications rest on
substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing
conditions; and (4) they apply equally to all members of the same class. (People v. Cayat)
b. There is likewise no doubt that such a classification is germane to the purpose behind the measure.
Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for Filipino
female overseas workers." This Court has no quarrel that in the midst of the terrible mistreatment Filipina
workers have suffered abroad, a ban on deployment will be for their own good and welfare. The Order does
not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long as those
conditions exist. The Court finds, finally, the impugned guidelines to be applicable to all female domestic
overseas workers. That it does not apply to "all Filipina workers" is not an argument for unconstitutionality.

o Administration of Justice
1. People vs. Hernandez, 99 Phil. 515 (1956)
2. Trillanes IV v. Pimentel, GR No. 179817, June 27, 2008

a. Petitioner's position fails. On the generality and permanence of his requests alone, petitioner's case fails to
compare with the species of allowable leaves. Jaloslos succinctly expounds: “allowing accused-appellant
to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually
make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only
elevates accused-appellant's status to that of a special class, it also would be a mockery of the purposes
of the correction system.”

3. People v. Jalosjos, 324 SCRA 689

a. Election to the position of Congressman is not a reasonable classification in criminal law enforcement. The
functions and duties of the office are not substantial distinctions which lift him from the class of prisoners
interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are
germane to the purposes of the law and apply to all those belonging to the same class.

4. USA v. Puruganan, September 3, 2002

a. While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000
residents.
b. The Constitution guarantees: ‘x x x nor shall any person be denied the equal protection of laws.’ This simply
means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities
imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither
partiality nor prejudice shall be displayed.
c. It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was
already of public knowledge that the United States was requesting his extradition. Hence, his constituents
were or should have been prepared for the consequences of the extradition case against their
representative, including his detention pending the final resolution of the case. Premises considered and in
line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a
compelling reason to grant him bail.

5. Farinas v. Exec. Sec., 417 Scra 503

a. Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy
their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and
may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their
office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their
office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of
the appointing authority.

6. PAGCOR v. BIR, GR No. 172087, March 15, 2011

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
a. PAGCOR cannot find support in the equal protection clause of the Constitution, as the legislative records
of the Bicameral Conference Meeting dated October 27, 1997, of the Committee on Ways and Means,
show that PAGCOR's exemption from payment of corporate income tax, as provided in Section 27 (c) of
R.A. No. 8424, or the National Internal Revenue Code of 1997, was not made pursuant to a valid
classification based on substantial distinctions and the other requirements of a reasonable classification by
legislative bodies, so that the law may operate only on some, and not all, without violating the equal
protection clause. The legislative records show that the basis of the grant of exemption to PAGCOR from
corporate income tax was PAGCOR's own request to be exempted.

7. People vs. Isinain, 85 Phil. 648 (1950)

a. The only question raised with much earnestness by his attorney de officio is that article 310 of the Revised
Penal Code classifying as qualified theft, the stealing of coconuts is unconstitutional, because it punishes
the larceny of such products more heavily than the taking away of similar produce, such as rice and sugar,
and thereby denies him the equal protection of the laws.
b. It is unquestionable that the constitutional guaranty requires the treatment alike, in the same place and
under like circumstances and conditions, of all persons subjected to state legislation. But a state, "as a part
of its police power, may exercise a large measure of discretion, without violating the equal protection
guaranty, in creating and defining criminal offenses, and may make classifications as to persons amenable
to punishment, so long as the classifications are reasonable and the legislation bears equally on all in the
same class, and, where a reasonable classification is made as between persons or corporations, the
persons or corporations in each class may be dealt with in a manner different from that employed with
regard to the persons or corporations in other classes."

8. Chavez v. PCGG, G.R. 130716, December 9, 1998

a. Even granting that Congress enacts a law exempting the Marcoses from paying taxes on their properties,
such law will definitely not pass the test of the equal protection clause under the Bill of Rights. Any special
grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will also violate
the constitutional rule that "taxation shall be uniform and equitable."

9. Nunez vs. Sandiganbayan, 111 SCRA 433 (1982)

a. The equal protection clause has not been violated either despite the limitation in the accused's right to
appeal as the classification satisfies the test of substantial distinctions, germane to the purposes of the law,
the Sandiganbayan having been specially created in response to the problem of dishonesty in the public
service.
b. The challenged decree is likewise not contrary to the ex post facto provision of the Constitution on the
allegation that petitioner's right of appeal is being diluted or eroded efficacy wise as the omission of the
Court of Appeals as an intermediate tribunal does not deprive petitioner of a right vital to the protection of
his liberty. As held in the case of Duncan v. Missouri, 152 US 377 "the prescribing, of different modes of
procedure and the abolition of courts and the creation of new ones, leaving untouched all the substantial
protections with which the existing laws surrounds the person accused of crime, are not considered within
the constitutional inhibition."

10. Gallardo v. People, G.R. 142030, April 21, 2005

o Public Policy
1. Mirasol vs. DPWH, GR No. 158793, June 8, 2006

a. There is substantial distinction between motorcycle and other motor vehicles. Not all motorized vehicles
are created equal – substantial distinction differences exist between motor cycle and other forms of
transport sufficient to justify its classification among those prohibited from plying he toll ways.

2. Int’l School Alliance of Educators vs. Quisumbing, GR No. 128845, June 1, 2000

a. There is no reasonable distinction between the services rendered by “foreign hires” and “local hires” as to
justify the disparity in salaries paid to these teachers.

3. Biraogo vs the Philippine Truth Commission, G.R. No. 192935, December 7, 2010

a. Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate
of the envisioned truth commission is to investigate and find out the truth "concerning the reported cases
of graft and corruption during the previous administration” only. The intent to single out the previous
administration is plain, patent and manifest.
b. In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that
is, a class of past administrations. It is not a class of its own. Not to include past administrations similarly
situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective
retribution.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
4. Ormoc Sugar Co. v. Treasurer of Ormoc City
a. The ordinance was declared invalid because it taxes only centrifugal sugar produced and exported by the
Ormoc Sugar Company, and none tother, such that if a new sugar central is established in Ormoc, it
would not be subject to the ordinance.

5. People v. Cayat
a. The Court upheld the validity of the law prohibiting members of non-christian tribes from drinking foreign
liquor, on the ground that their low degree of culture and unfamiliarity with the drink rendered them more
susceptible to its effects.

VII. THE NON-IMPAIRMENT CLAUSE

o No law impairing the obligation of contracts shall be passed (Sec. 10, Art. III).
o Purpose:
- to safeguard the integrity of valid contractual agreements against unwarranted interference by the State
- Should not be tampered by subsequent laws that will change the intention of the parties or modify their rights and
obligations
- Protection is not absolute because it may be valid at the time of conclusion but may become invalid by virtue of a
subsequent legislation.
o Contract:
- It is a lawful agreement on property or property rights, whether tangible or intangible, personal or real.
- It may be executed or executory.
- Parties maybe private persons only, between natural or artificial or private person and government.
- It includes franchises or charters granted to private persons or entities.
- It does not cover licenses, marriage contracts or public offices.
o Law:
- National laws enacted by Congres
- Executive Orders
- Administrative Regulations
- Municipal Ordinances
- Judicial decisions
o How impaired?
Retroactivity
o Contemporary application of the contract clause

1. The non-impairment clause is contained in Section 10, Article III of the Constitution, which provides that no law
impairing the obligation of contracts shall be passed. The non impairment clause is limited in application to
laws that derogate from prior acts or contracts by enlarging, abridging or in any manner changing the
intention of the parties (BANAT Party-list v. COMELEC, G.R. No. 595 SCRA 477).
2. There is impairment if a subsequent law changes the terms of a contract between dispenses with those
agreed upon or withdraws remedies for the enforcement of the rights of the parties (Clemons v. Nolting, 42
Phil. 702).
3. The freedom to contract is not absolute; all contracts and all rights are subject to
the police power of the State and not only may regulations which affect them be established by the State, but all
such regulations must be subject to change from time to time. The non-impairment clause must yield to the loftier
purposes targeted by the government (Goldenway Merchanidising Corporation vs. Equitable PCI Bank, G.R. No.
19554, March 13, 2013).
o Limitations:

a. Police Power:

i. A franchise partakes the nature of a grant, which is beyond the purview of the non-impairment clause of
the Constitution (PAGCOR v. BIR, GR 172087 March 15, 2011). Franchises, licenses, privileges, etc.,
are not contracts within the purview of the due process clause (Alvarez v. PICOP Resources, GR 162243,
November 29, 2006).

ii. Municipal zoning ordinances is a police power measure and prevails over a restriction contained in the
title of the property (Ortigas v. Feati Bank, 94 SCRA 533).

iii. BP 22 is not violative of the non impairment clause, and even if it were, the law was a police measure
and therefore superior to contracts (Lozano v. Martinez, 146 SCRA 323).

iv. Pre-existing share tenancy can be validly converted into leasehold tenancy contract through valid
exercise of police power (Illusorio v. CAR, 17 SCRA 25).

v. Regulating the rentals of dwelling units (Canleon v. Agus Development Corporation, 207 SCRA 748).

b. Eminent Domain

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NOTES TO CONSTITUTION 2
The objection raised by petitioners that P.D. No. 1808 impairs the obligations of contract is without merit.
The constitutional guaranty of non-impairment of obligations of contract is limited by and subject to the
exercise of the police power of the State in the interest of public health, safety, morals and general welfare.
Nor can petitioners claim that their properties are being expropriated without just compensation, since Sec.
3 of P.D. No. 1808 provides for just compensation to lot owners who have fully paid their obligations to the
City of Manila under their respective contracts before the issuance of the decree (Kabiling v. NHA, 156
SCRA 623).

c. Taxation Power
Since taxation is the rule and exemption therefrom the exception, the exemption may thus be withdrawn
at the pleasure of the taxing authority. The only exception to this rule is where the exemption was granted
to private parties based on material consideration of a mutual nature, which then becomes contractual
and is thus covered by the non-impairment claim of the Constitution (Mactan Cebu International Airport
Authority v. Marcos, 261 SCRA 667).

d. Waiver by the parties

e. Freedom of Religion
There is no impairment in the imposition of the VAT against real estate transactions entered or perfected
even prior to its imposition. The contract clause is not a limitation on the exercise of the State’s power of
taxation save only where a tax exemption has been granted for a valid consideration. (Tolentino vs. Sec.
of Finance)
- The non-impairment clause includes prohibition on judicial acts that impair contract. (Ganzon vs. Inserto,
123 SCRA 135)
- Goldenway Merchandising Corp. vs. Equitable PCI Bank, GR No. 195540, March 13, 2013- Section 47
of RA 8791 did not divest juridical persons of the right to redeem their foreclosed properties but only
modified the time for the exercise of such right by reducing the one-year period originally provided in Act
No. 3135. The new redemption period commences from the date of foreclosure sale, and expires upon
registration of the certificate of sale or three months after foreclosure, whichever is earlier. There is likewise
no retroactive application of the new redemption period because Section 47 exempts from its operation
those properties foreclosed prior to its effectivity and whose owners shall retain their redemption rights
under Act No. 3135.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2

RIGHTS TO LIBERTY AND PRIVACY

VIII. ARRESTS, SEARCHES AND SEIZURES

o Art. III, Sec. 2 and 3
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
Section 3. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

o Notes

- The right to security of a person- (Secretary of National Defense vs. Manalo, GR No. 180908, October
7, 2008)-is a gurarantee of protection of one’s rights by the government. In the context of the writ of
amparo, this right is built into the guarantees of the right to life and liberty under Art. III, Sec. 1 of the
1987 constitution and the right to security of person (as freedom from threat and guarantee of bodily and
psychological integrity) under Art. III, Sec. 2.
- Vivares, et al. vs. STC, G.R. No. 202666, September 29, 2014- the concept of privacy has, through
time, greatly evolved, with technological advancements having an influential part therein. This evolution
was briefly recounted in former Chief Justice Reynato S. Puno’s speech, The Common Right to Privacy,
where he explained the three strands of the right to privacy, viz: (1) locational or situational privacy;
(2) informational privacy; and (3) decisional privacy. Of the three, what is relevant to the case at bar
is the right to informational privacy––usually defined as the right of individuals to control information about
themselves.
- It is through the availability of said privacy tools that many Online Social Network (OSN) users are said
to have a subjective expectation that only those to whom they grant access to their profile will view the
information they post or upload thereto. Utilization of these privacy tools is the manifestation, in cyber
world, of the user’s invocation of his or her right to informational privacy.
- Considering that the default setting for Facebook posts is "Public," it can be surmised that the
photographs in question were viewable to everyone on Facebook, absent any proof that petitioners’
children positively limited the disclosure of the photograph. If such were the case, they cannot invoke the
protection attached to the right to informational privacy. The ensuing pronouncement in US v. Gines-
Perez is most instructive:
- [A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy
rights to such imagery, particularly under circumstances such as here, where the Defendant did not
employ protective measures or devices that would have controlled access to the Web page or the
photograph itself.
- Also, United States v. Maxwell held that "[t]he more open the method of transmission is, the less privacy
one can reasonably expect. Messages sent to the public at large in the chat room or e-mail that is
forwarded from correspondent to correspondent loses any semblance of privacy."
A. Is there a constitutional right to privacy?

- The essence of privacy is the “right to be let alone.” In the 1965 case of Griswold v. Connecticut
(381 U.S. 479, 14 L. ed. 2D 510 [1965]), the United States Supreme Court gave more substance to the
right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of
privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments
x x x. In the 1968 case of Morfe v. Mutuc (22 SCRA 424, 444-445), we adopted the Griswold ruling that
there is a constitutional right to privacy x x x.
- Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in
several provisions of our Constitution. (Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The
Constitutional Foundations of Privacy, p. 18 [1970]). It is expressly recognized in Section 3(1) of the Bill
of Rights x x x. Other facets of the right to privacy are protected in various provisions of the Bill of Rights
(viz: Secs. 1, 2, 6, 8, and 17. (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
B. What are the zones of privacy recognized and protected in our laws?

- The Civil Code provides that “[e]very person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons” and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. It also holds a public officer or employee or any private
individual liable for damages for any violation of the rights and liberties of another person and recognizes
the privacy of letters and other private communications. The Revised Penal Code makes a crime the
violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law (R.A. 4200), the Secrecy
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
of Bank Deposits (R.A. 1405) and the Intellectual Property Code (R.A. 8293). The Rules of Court on
privileged communication likewise recognize the privacy of certain information (Section 24, Rule 130[c],
Revised Rules on Evidence). (Ople v. Torres, G.R. No. 127685, July 23, 1998 [Puno])
- Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, et al., G.R. No,. 203335, Feb. 11, 2014,
En Banc (Abad) The right to privacy, or the right to be let alone, was institutionalized in the 1987
Constitution as a facet of the right protected by the guarantee against unreasonable searches and
seizures. But the Court acknowledged its existence as early as 1968 in Morfe v. Mutuc, it ruled that the
right to privacy exists independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.
- Relevant to any discussion of the right to privacy is the concept known as the “Zones of Privacy.” The
Court explained in “In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator
Gordon” the relevance of these zones to the right to privacy:
o Zones of privacy are recognized and protected in our laws. Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal
process. The meticulous regard we accord to these zones arises not only from our conviction
that the right to privacy is a “constitutional right” and “the right most valued by civilized men,” but
also from our adherence to the Universal Declaration of Human Rights which mandates that, “no
one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to
the protection of the law against such interference or attacks.”
o Two constitutional guarantees create these zones of privacy: (a) the right against
unreasonable searches and seizures, which is the basis of the right to be let alone, and
(b) the right to privacy of communication and correspondence.
- 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
that expectation has been violated by unreasonable government intrusion.
- SJS vs. Dangerous Drugs Board and PDEA, GR No. 157870, November 3, 2008- Supreme Court
declared as unconstitutional the provisions of RA 9165 requiring mandatory drug testing of candidates
for public office and persons accused of crimes. However, the Supreme Court upheld the constitutionality
of the said RA insofar as random drug testing for secondary and tertiary school students, as well as for
officials and employees of public and private offices is concerned. The need for drug testing to at least
minimize illegal drug use is substantial enough to override the individual’s privacy interest under the
premises.
- Ople vs. Torres, G.R. No. 127685 July 23, 1998- The right to privacy is one of the most threatened
rights of man living in a mass society. The threats emanate from various sources — governments,
journalists, employers, social scientists, etc. In the case at bar, the threat comes from the executive
branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by
giving information about themselves on the pretext that it will facilitate delivery of basic services. Given
the record-keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No.
308 gives the government the power to compile a devastating dossier against unsuspecting citizens. It
is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that
everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat
is that because of its record-keeping, the society will have lost its benign capacity to forget." Oblivious
to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a
fundamental right. We close with the statement that the right to privacy was not engraved in our
Constitution for flattery.
- KMU v. NEDA, G.R. No. 167798, April 19, 2006- On its face, EO 420 shows no constitutional infirmity
because it even narrowly limits the data that can be collected, recorded and shown compared to the
existing ID systems of government entities. EO 420 further provides strict safeguards to protect the
confidentiality of the data collected, in contrast to the prior ID systems which are bereft of strict
administrative safeguards. The right to privacy does not bar the adoption of reasonable ID systems by
government entities. With the exception of the 8 specific data shown on the ID card, the personal data
collected and recorded under EO 420 are treated as strictly confidential under Section 6(d) of EO 420.
These data are not only strictly confidential but also personal matters. The disclosure requirements under
EO 420 are far benign and cannot therefore constitute violation of the right to privacy. EO 420 requires
disclosure of 14 personal data that are routine for ID purposes, data that cannot possibly embarrass or
humiliate anyone.
- EO 420 applies only to government entities that already maintain ID systems and issue ID cards pursuant
to their regular functions under existing laws. EO 420 does not grant such government entities any power
that they do not already possess under existing laws. In contrast, the assailed executive issuance in Ople
v. Torres sought to establish a National Computerized Identification Reference System, a national ID
system that did not exist prior to the assailed executive issuance. Obviously, a national ID card system
requires legislation because it creates a new national data collection and card issuance system where
none existed before.
- EO 420 does not establish a national ID system but makes the existing sectoral card systems of
government entities like GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable and user-
friendly to the public. Hence, EO 420 is a proper subject of executive issuance under the Presidents
constitutional power of control over government entities in the Executive department, as well as under
the Presidents constitutional duty to ensure that laws are faithfully executed.

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NOTES TO CONSTITUTION 2
C. Right to privacy of government employees

- Polo vs. Constantino-David, October 8, 2011- The existence of privacy right under prior decisions
involved a two-fold requirement: first, that a person has exhibited an actual (subjective) expectation of
privacy; and second, that the expectation be one that society is prepared to recognize as reasonable
(objective).
- The "[c]onstitutional protection against unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable intrusions in its capacity as employer,"
x x x but some government offices may be so open to fellow employees or the public that no expectation
of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the
question of whether an employee has a reasonable expectation of privacy must be addressed on a case-
by-case basis.
- Del Castillo vs. People, GR No. 185128, January 30, 2012- The confiscated items having been found
in a place other than the one described in the search warrant, can be considered as fruits of an invalid
warrantless search. xxx Evidence obtained due to warrantless search conducted by a barangay tanod is
inadmissible in evidence since a barangay tanod is an agent of a person in authority under the Revised
Penal Code
D. VALID WARRANTLESS SEARCHES & SEIZURES:

1) Search incidental to lawful arrest (PP vs. Tiu Won Chua, 405 SCRA 280; PP vs. Estella, 395 SCRA 553);

2) search of a moving vehicle (PP vs. Tampis, 407 SCRA 582);

3) seizure in plain view (PP vs. Go, 411 SCRA 81, The counterfeit nature of the seals and stamps was not
apparent and established until after they have been turned over to the Chinese embassy and the Bureau
of Immigration for verification. Hence, not considered as evidence in plain view);

4) customs search (Salvador vs. PP, July 15, 2005);

5) waiver by the accused( 1. right to be waived exists; 2. person waiving has knowledge of such right, actually
or constructively; and 3. he/she has actual intention to relinquish the right.) Silahis Int’l Hotel vs. Soluta,
Feb. 20, 2006; Valdez vs. People, 538 SCRA 611)- It is the State which has the burden of proving, by clear
and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given;

6) stop & frisk (limited protective search); Terry Search – (Terry vs, Ohio, 1968; Malacatvs CA, Dec. 1, 1997)
it is a stop of a person by law enforcement officer based upon “reasonable suspicion” that a person may
have been engaged in criminal activity, whereas an arrest requires “probable cause” that a suspect
committed a criminal offense;

7) Armed conflict (war time);

8) Check points (limited to visual search; PP vs. Escaño, GR No. 129756-58, January 28, 2000);

9) Exigent and emergency circumstances (PP vs. De Gracia, 233 SCRA 716), where a warrantless search
was allowed where there was a prevailing general chaos and disorder because of an ongoing coup;

10) Conduct of “Area Target Zone” and “Saturation Drives” in the exercise of military powers of the President
(Guanzon vs. Villa, 181 SCRA 623);

11) Routine Airport Security Procedure (PP vs. Suzuki, October 23, 2003; PP vs. Johnson, GR No. 138881,
December 18, 2000).

E. CHECKPOINTS

 Valmonte v. De Villa: For searches at checkpoints to be valid, the following must be observed:

1) The checkpoint must be pre-announced;

2) It must be stationary; and

3) The search at checkpoint must be limited to visual search only. An intrusive search is not allowed

F. PLAIN VIEW

 People v. Doria; The requisites for the “plain view” doctrine to be validly invoked are:

1) The law enforcement officer must have a valid justification for an intrusion, or is in a position where he can
view a particular area;

2) The discovery of the evidence in plain view must be inadvertent; and

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NOTES TO CONSTITUTION 2
3) It is immediately apparent to him that the thing he sees is object of a crime, contraband, or subject to
seizure.

 It is clear that if the object is inside a closed container, “plain view” may not be invoked. However, even if
it inside a closed container but if due to the configuration of the container, or due to its transparency, it can
still be seen from the outside what is inside, “plain view” may still be invoked.

G. SEIZURE OF EVIDENCE IN PLAIN VIEW

 Del Rosario vs. People, May 31, 2001- Seizure of evidence in plain view is justified only when:

1) there is prior valid intrusion based on a valid warrantless arrest in which the police are legally present in the
pursuit of their official duties;

2) the evidence was inadvertently discovered by the police who had the right to be there where they are;

3) the evidence must be immediately apparent; and

4) plain view justified the seizure without further search conducted- Manalili vs. CA, 280 SCRA 400

H. Right to privacy of government employees

 Polo vs. Constantino-David, October 8, 2011

 The existence of privacy right under prior decisions involved a two-fold requirement: first, that a person
has exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one
that society is prepared to recognize as reasonable (objective).
 The "[c]onstitutional protection against unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable intrusions in its capacity as employer,"
x x x but some government offices may be so open to fellow employees or the public that no expectation
of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question
of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case
basis.
 The CSC in this case had implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office computers, and that the
CSC may monitor the use of the computer resources using both automated or by human means. An Office
Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provided for such. This implied
therefore, that on-the-spot inspections may be done to ensure that the computer resources were used only
for such legitimate business purposes.

 Comerciante vs. People, July 22, 2015

 Police officers must not rely on a single suspicious circumstance. There should be "presence of more than
one seemingly innocent activity, which, taken together, warranted a reasonable inference of criminal
activity." The Constitution prohibits "unreasonable searches and seizures." Certainly, reliance on only one
suspicious circumstance or none at all will not result in a reasonable search. (Emphases and underscoring
supplied) In this case, the Court reiterates that Comerciante' s acts of standing around with a companion
and handing over something to the latter do not constitute criminal acts. These circumstances are not
enough to create a reasonable inference of criminal activity which would constitute a "genuine reason" for
P03 Calag to conduct a "stop and frisk" search on the former. In this light, the "stop and frisk" search made
on Comerciante should be deemed unlawful.

o Dimal, et al. vs. People, April 18, 2018

 For the "plain view doctrine" to apply, it is required that the following requisites are present: (a) the law
enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from
which he can view a particular area; (b) the discovery of evidence in plain view is inadvertent; and (c) it is
immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure

o Carrol Doctrine (Automobile Exception)

 a vehicle could be searched without a search warrant if there was probable cause to believe that evidence
is present in the vehicle, coupled with exigent circumstances to believe that the vehicle could be removed
from the area before a warrant could be obtained.

o Saluday v. People, April 3, 2018

 In the conduct of bus searches, the Supreme Court lays down the following guidelines. Prior to entry,
passengers and their bags and luggages can be subjected to a routine inspection akin to airport and seaport
security protocol. In this regard, metal detectors and x-ray scanning machines can be installed at bus
terminals. Passengers can also be frisked. In lieu of electronic scanners, passengers can be required

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
instead to open their bags and luggages for inspection, which inspection must be made in the passenger's
presence. Should the passenger object, he or she can validly be refused entry into the terminal.
 While in transit, a bus can still be searched by government agents or the security personnel of the bus
owner in the following three instances. First, upon receipt of information that a passenger carries
contraband or illegal articles, the bus where the passenger is aboard can be stopped en route to allow for
an inspection of the person and his or her effects. This is no different from an airplane that is forced to land
upon receipt of information about the contraband or illegal articles carried by a passenger on board.
Second, whenever a bus picks passengers en route, the prospective passenger can be frisked and his or
her bag or luggage be subjected to the same routine inspection by government agents or private security
personnel as though the person boarded the bus at the terminal. This is because unlike an airplane, a bus
is able to stop and pick passengers along the way, making it possible for these passengers to evade the
routine search at the bus terminal. Third, a bus can be flagged down at designated military or police
checkpoints where State agents can board the vehicle for a routine inspection of the passengers and their
bags or luggages.
 In both situations, the inspection of passengers and their effects prior to entry at the bus terminal and the
search of the bus while in transit must also satisfy the following conditions to qualify as a valid reasonable
search. First, as to the manner of the search, it must be the least intrusive and must uphold the dignity of
the person or persons being searched, minimizing, if not altogether eradicating, any cause for public
embarrassment, humiliation or ridicule. Second, neither can the search result from any discriminatory
motive such as insidious profiling, stereotyping and other similar motives. In all instances, the fundamental
rights of vulnerable identities, persons with disabilities, children and other similar groups should be
protected. Third, as to the purpose of the search, it must be continued to ensuring public safety. Fourth, as
to the evidence seized from the reasonable search, courts must be convinced that precautionary measures
were in place to ensure that no evidence was planted against the accused.
 The search of persons in a public place is valid because the safety of others may be put at risk. Given the
present circumstances, the Court takes judicial notice that public transport buses and their terminals, just
like passenger ships and seaports, are in that category.
 Aside from public transport buses, any moving vehicle that similarly accepts passengers at the terminal and
along its route is likewise covered by these guidelines. Hence, whenever compliant with these guidelines,
a routine inspection at the terminal or of the vehicle itself while in transit constitutes a reasonable search.
Otherwise, the intrusion becomes unreasonable, thereby triggering the constitutional guarantee under
Section 2, Article III of the Constitution.
 To emphasize, the guidelines do not apply to privately-owned cars. Neither are they applicable to moving
vehicles dedicated for private or personal use, as in the case of taxis, which are hired by only one or a
group of passengers such that the vehicle can no longer be flagged down by any other person until the
passengers on board alight from the vehicle.

o Miguel vs. People, July 31, 2017

 The acts of the Bantay Bayan - or any barangay-based or other volunteer organizations in the nature of
watch groups - relating to the preservation of peace and order in their respective areas have the color of a
state-related function. As such, they should be deemed as law enforcement authorities for the purpose of
applying the Bill of Rights under Article III of the 1987 Constitution to them.

o PP vs. Manago, August 1, 2016

 In warrantless arrests made pursuant to Section 5 (b), it is essential that the element of personal knowledge
must be coupled with the element of immediacy; otherwise, the arrest may be nullified, and resultantly, the
items yielded through the search incidental thereto will be rendered inadmissible in consonance with the
exclusionary rule of the 1987 Constitution.

o PP vs. JERRY SAPLA, G.R. No. 244045, June 16, 2020

 In order for the search of vehicles in a checkpoint to be non--violative of an individual's right against
unreasonable searches, the search must be limited to the following: (a) where the officer merely draws
aside the curtain of a vacant vehicle which is parked on the public fair grounds; (b) where the officer simply
looks into a vehicle; (c) where the officer flashes a light therein without opening the car's doors; (d) where
the occupants are not subjected to a physical or body search; (e) where the inspection of the vehicles is
limited to a visual search or visual inspection; and (f) where the routine check is conducted in a fixed area.22
 Routine inspections do not give the authorities carte blanche discretion to conduct intrusive
warrantless searches in the absence of probable cause. When a vehicle is stopped and subjected to
an extensive search, as opposed to a mere routine inspection, "such a warrantless search has been held
to be valid only as long as the officers conducting the search have reasonable or probable cause to believe
before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to
be searched."23
 Simply stated, a more extensive and intrusive search that goes beyond a mere visual search of the vehicle
necessitates probable cause on the part of the apprehending officers.

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NOTES TO CONSTITUTION 2
o Government of the USA v. Judge Purganan

 Prior notice or hearing is not required before a judge issues a warrant of arrest of an extraditee once the
petition for extradition is filed in court on two (2) basis, i.e., statutory (Sec. 6, P.D. No. 1069); and
constitutional (Sec. 2, Art. III of the Bill of Rights).

1. On statutory basis
Section 6, P.D. No. 1069 (Extradition Law) provides that the moment the petition for extradition is filed
in the RTC, the judge shall cause the immediate issuance of a warrant of arrest. Hearing entails sending
of notices to opposing parties, and receiving facts and arguments from them. Arrest subsequent to a
hearing can no longer be considered “immediate.” The law could not have intended the use of the word
“immediate” a superfluity.
2. On constitutional basis
Even Section 2, Article III of the Bill of Rights does not require notice or hearing before a judge issues
a warrant of arrest. On the contrary, what the Constitution provides is “after examination under oath or
affirmation of the complainant (not of the accused) and the witnesses he may produce.”
I. SEARCH INCIDENTAL TO A LAWFUL ARREST (Section 13, Rule 126, Rules of Court)

 This is the most common among the instances of valid warrantless searches. The object of this kind of
warrantless search is to obtain object or effect of a crime, like the stolen wallet or the knife used in hold-up.
 The three (3) important features of this kind of warrantless search are:

1. In this kind if warrantless search, the arrest always precedes the search; the process cannot be reversed;
2. The precedent arrest must always be lawful because, if the precedent arrest is unlawful, the subsequent
search, although it may have yielded positive results, may never validate the unlawful arrest that preceded
it; and
3. The search must be limited or confined only to the immediate vicinity of the place of the arrest. It may not
be extended beyond that.

 In the later case of People v. Susan Canton, the SC held that this is now another instance of valid
warrantless search – warrantless searches at airports.

J. STOP & FRISK

o MANIBOG vs. PEOPLE, G.R. No. 211214, March 20, 2019

 To sustain the validity of a stop and frisk search, the arresting officer should have personally observed two
(2) or more suspicious circumstances, the totality of which would then create a reasonable inference of
criminal activity to compel the arresting officer to investigate further.

K. WARRANTLESS ARREST
o Luz vs. People, GR No. 197788, February 29, 2012

 Under the Rules, a warrant of arrest need not be issued if the information or charge was filed for an offense
penalized by a fine only. As a corollary, neither can a warrantless arrest be made for such an offense. xxx
In this case, the officer’s issuance (or intent to issue) a traffic citation ticket negates the possibility of an
arrest for the same violation.

L. HOT PURSUIT

- Requisites:

1) The pursuit of the offender by the arresting officer must be continuous from the time of the commission of
the offense to the time of the arrest.

2) There must be no supervening event which breaks the continuity of the chase.

 Ladlad/Beltran, et al. vs. Gonzales/Velasco, June 1, 2007- Inquest proceedings are proper only when
the accused has been lawfully arrested without warrant.
 PP vs. dela Cruz, 571 SCRA 469- arrest in flagrante delicto to be availed, the following requisites must
concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is
actually committing or is attempting to commit a crime. (2) such commission of a crime must be done in the
presence and within the view of the arresting officer.
 PP vs. Del Rosario, 305 SCRA 740, There must be a large measure of immediacy between the time of
the offense was committed and the time of the warrantless arrest. If there was an appreaciable lapse of
time between the arrest and the commission of the crime, a warrant of arrest must be secured.
 Padilla vs. CA, 269 SCRA 402, When the law speaks of a crime committed in the presence of an arresting
officer, it is not limited to actually seeing the commission of the crime. The requirement of the law is complied

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
where the arresting officer was within an earshot from the scene although he did not personally witness the
commission of the crime.
 PP vs. Martin, 193 SCRA 57, The Bill of Rights is protection against the State. The protection against
unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to
bring it within the ambit of alleged unlawful intrusion by the government. Right applies only against the
government and agencies tasked with the enforcement of the law.
 Only a judge may validly issue a warrant- EXCEPT: By administrative authorities (CID; BOC) only for the
purpose of carrying out a final finding of violation of law.
 Jackson vs. Macalino, November 24, 2003- the Commissioner of the Immigration can issue a warrant of
arrest against a foreigner who has been ordered to be deported.

M. SCATTER SHOT WARRANT

 It is a warrant having been issued to more than one offense.

 PRECISE AND MINUTE DETAIL AS TO THE PLACE TO BE SEARCHED AND THINGS OR PERSONS
TO BE SEIZED NOT REQUIRED- the constitution does not require that the things to be seized must be
described in precise and minute detail as to no room for doubt on the part of the searching authorities;
TECHNICAL DESCRIPTION IS NOT REQUIRED- It is only necessary that there be reasonable certainty
or particularity as to the identity of the property to be searched for and seized so that the warrant shall not
be a mere roving commission. THE TEST as would be as to what is to be taken, nothing is left to the
discretion of the officer executing the warrant. VALLEJO VS. CA, 427 SCRA 658, April 14, 2004.

N. Administrative Warrantless Arrest-Causes:

1) If you breach peace or if you are planning to do so, you can be arrested but only if it is absolutely
necessary to do so. You will be freed as soon as you no longer represent a threat to public security.

2) If you disrupt a court hearing;

3) If you are in a drunken state on the public highway;

4) In case of brawling;

5) If you block traffic without authorization;

6) If you refuse to give your ID documents or if these are questionable;

7) If you are in the country illegally.

O. WARRANTLESS SEARCHES IN MOVING VEHICLES & WARRANTLESS ARREST

 Q. When is a warrantless search and seizure in a moving vehicle considered valid?

 A. A search of a moving vehicle is one (1) of the few permissible exceptions where warrantless searches
can be made.

o People v. Mariacos explains:

 This exception is easy to understand. A search warrant may readily be obtained when the search is made
in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the
search is conducted on a mobile ship, on an aircraft, or in other motor vehicles since they can quickly be
moved out of the locality or jurisdiction where the warrant must be sought.
 However, for a warrantless search of a moving vehicle to be valid, probable cause remains imperative.
Law enforcers do not enjoy unbridled discretion to conduct searches. In Caballes v. Court of Appeals:
 The mere mobility of these vehicles, however, does not give the police officers unlimited discretion to
conduct indiscriminate searches without warrants if made within the interior of the territory and in the
absence of probable cause. Still and all, the important thing is that there was probable cause to conduct
the warrantless search, which must still be present in such a case.
 In determining the existence of probable cause, bare suspicion is never enough. While probable cause
does not demand moral certainty, or evidence sufficient to justify conviction, it requires the existence of "a
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the offense with which he is charged."
 In People v. Cogaed, it was emphasized that in warrantless searches, law enforcers "must not rely on a
single suspicious circumstance." What is required is the "presence of more than one seemingly innocent
activity, which, taken together, warranted a reasonable inference of criminal activity." Indeed, it is unlikely
that a law enforcer's suspicion is reasonably roused at the sight of a single activity, which may very well be
innocent. It is far more likely that there first be several, continuous, peculiar acts of a suspect before any
law enforcer's suspicion is roused. At every peculiar act done, a law enforcer's suspicion is successively
confirmed and strengthened.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o There have been a number of cases where this Court considered warrantless searches made in moving
vehicles to be valid. In these cases, probable cause was founded on more than just a solitary suspicious
circumstance.

 In People v. Malmstedt, Narcotics Command officers set up a temporary checkpoint in response to

"persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited
drugs." These included information that a Caucasian coming from Sagada had prohibited drugs in his
possession. At the checkpoint, the officers intercepted a bus and inspected it, starting from the front, going
towards the rear. The bus turned out to be the vehicle boarded by the accused. Upon reaching the accused,
an officer noticed a bulge on his waist. This prompted the officer to ask for the accused's passport and
identification papers, which the accused failed to provide. The accused was then made to reveal what was
bulging on his waist. It turned out to be hashish, a derivative of marijuana.
 In Malmstedt, this Court ruled that the warrantless search was valid because there was probable cause--
premised on circumstances other than the original tip concerning a Caucasian person for the arresting
officers to search the accused:
 It was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity.
 In People v. Que, police officers went on patrol after receiving information that "a ten-wheeler truck bearing
plate number PAD-548 loaded with illegally cut lumber will pass through Ilocos Norte." When they saw the
truck resembling this description pass by, the officers flagged it down.

o Searches in Buses at the terminal and/or in transit

 In the conduct of bus searches, the Supreme Court lays down the following guidelines. Prior to entry,
passengers and their bags and luggages can be subjected to a routine inspection akin to airport and seaport
security protocol. In this regard, metal detectors and x-ray scanning machines can be installed at bus
terminals. Passengers can also be frisked. In lieu of electronic scanners, passengers can be required
instead to open their bags and luggages for inspection, which inspection must be made in the passenger's
presence. Should the passenger object, he or she can validly be refused entry into the terminal.

 While in transit, a bus can still be searched by government agents or the security personnel of the bus
owner in the following three instances. First, upon receipt of information that a passenger carries
contraband or illegal articles, the bus where the passenger is aboard can be stopped en route to
allow for an inspection of the person and his or her effects. This is no different from an airplane that
is forced to land upon receipt of information about the contraband or illegal articles carried by a
passenger on board. Second, whenever a bus picks passengers en route, the prospective
passenger can be frisked and his or her bag or luggage be subjected to the same routine inspection
by government agents or private security personnel as though the person boarded the bus at the
terminal. This is because unlike an airplane, a bus is able to stop and pick passengers along the
way, making it possible for these passengers to evade the routine search at the bus terminal. Third,
a bus can be flagged down at designated military or police checkpoints where State agents can
board the vehicle for a routine inspection of the passengers and their bags or luggages.
 In both situations, the inspection of passengers and their effects prior to entry at the bus terminal and the
search of the bus while in transit must also satisfy the following conditions to qualify as a valid reasonable
search. First, as to the manner of the search, it must be the least intrusive and must uphold the dignity of
the person or persons being searched, minimizing, if not altogether eradicating, any cause for public
embarrassment, humiliation or ridicule. Second, neither can the search result from any discriminatory
motive such as insidious profiling, stereotyping and other similar motives. In all instances, the fundamental
rights of vulnerable identities, persons with disabilities, children and other similar groups should be
protected. Third, as to the purpose of the search, it must be continued to ensuring public safety. Fourth, as
to the evidence seized from the reasonable search, courts must be convinced that precautionary measures
were in place to ensure that no evidence was planted against the accused.
o The search of persons in a public place is valid because the safety of others may be put at risk. Given the
present circumstances, the Court takes judicial notice that public transport buses and their terminals, just
like passenger ships and seaports, are in that category.
 Aside from public transport buses, any moving vehicle that similarly accepts passengers at the terminal
and along its route is likewise covered by these guidelines. Hence, whenever compliant with these
guidelines, a routine inspection at the terminal or of the vehicle itself while in transit constitutes a reasonable
search. Otherwise, the intrusion becomes unreasonable, thereby triggering the constitutional guarantee
under Section 2, Article III of the Constitution.
 To emphasize, the guidelines do not apply to privately-owned cars. Neither are they applicable to
moving vehicles dedicated for private or personal use, as in the case of taxis, which are hired by
only one or a group of passengers such that the vehicle can no longer be flagged down by any
other person until the passengers on board alight from the vehicle.
o MARCELO G. SALUDAY vs. PEOPLE OF THE PHILIPPINES, G.R. No. 215305, APRIL 3, 2018
o Search in moving vehicles at check point
 In order for the search of vehicles in a checkpoint to be non--violative of an individual's right against
unreasonable searches, the search must be limited to the following: (a) where the officer merely draws
aside the curtain of a vacant vehicle which is parked on the public fair grounds; (b) where the officer
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
simply looks into a vehicle; (c) where the officer flashes a light therein without opening the car's
doors; (d) where the occupants are not subjected to a physical or body search; (e) where the
inspection of the vehicles is limited to a visual search or visual inspection; and (f) where the routine
check is conducted in a fixed area.
 Routine inspections do not give the authorities carte blanche discretion to conduct intrusive warrantless
searches in the absence of probable cause. When a vehicle is stopped and subjected to an extensive
search, as opposed to a mere routine inspection, "such a warrantless search has been held to be valid only
as long as the officers conducting the search have reasonable or probable cause to believe before the
search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched."
 Simply stated, a more extensive and intrusive search that goes beyond a mere visual search of the vehicle
necessitates probable cause on the part of the apprehending officers.
 xxx the police merely adopted the unverified and unsubstantiated suspicion of another person, i.e., the
person who sent the text through the RPSB Hotline. Apart from the information passed on to them, the
police simply had no reason to reasonably believe that the passenger vehicle contained an item, article or
object which by law is subject to seizure and destruction.
 What further militates against the finding that there was sufficient probable cause on the part of the police
to conduct an intrusive search is the fact that the information regarding the description of the person alleged
to be transporting illegal drugs, i.e., wearing a collared white shirt with green stripes, red ball cap, and
carrying a blue sack, was relayed merely through a text message from a completely anonymous person.
The police did not even endeavor to inquire how this stranger gathered the information. The authorities did
not even ascertain in any manner whether the information coming from the complete stranger was credible.
After receiving this anonymous text message, without giving any second thought, the police accepted the
unverified information as gospel truth and immediately proceeded in establishing the checkpoint. To be
sure, information coming from a complete and anonymous stranger, without the police officers
undertaking even a semblance of verification, on their own, cannot reasonably produce probable
cause that warrants the conduct of an intrusive search.
o PP vs. JERRY SAPLA, G.R. No. 244045, June 16, 2020
 Q. When is warrantless arrest valid?
 A. The Rules of Court provides for exceptions where a person may be lawfully arrested, even without any
arrest warrant having been issued:
o RULE 113 Arrest
 Section 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant,
arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
 In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7
of Rule 112.1
 Rule 113, Section 5(a) of the Rules of Court only allows warrantless arrests for crimes in flagrante when
the police officer or private citizen conducting the arrest has, within his or her purview, all the elements of
the offense being committed by the accused. This provision cannot validly be invoked where a police officer
only possesses information that the accused has committed a crime.
 On the other hand, Section 5(b) of the same rule requires that the arresting police officer has perceived,
through his or her own senses, that a crime has just been committed and, in addition to this perception,
also has perceived facts which could reasonably lead to the belief that the person about to be arrested was
the offender. In this case, the police officer did not witness the occurrence of the crime itself but witnessed
some facts that led him to believe that the person about to be arrested committed the offense.
 When explaining why a warrantless search· or seizure was valid, this Court must take great care to specify
how the circumstances allow for a warrantless search or seizure. This Court must be clear on the exceptions
that it is invoking to avoid inadvertent carving out of additional situations where warrantless arrests appear
to be allowable, despite having little to no doctrinal basis.
 In this case, the police officer already had basis to conduct a warrantless search from the time he smelled
the odor of marijuana emanating from the carton and the bag with a Sagada weave. This is similar to the
case of Posadas v. Court of Appeals, wherein the police officer had reason to conduct a warrantless search
in a way akin to a stop and frisk:
 The assailed search and seizure may still be justified as akin to a "stop and frisk" situation whose object is
either to determine the identity of a suspicious individual or to maintain the status quo ,momentarily while
the police officer seeks to obtain more information. This is illustrated in the case of Terry vs. Ohio, 392 U.S.
1 (1968). In this case, two men repeatedly walked past a store window and returned to a spot where they
apparently conferred with a third man. This aroused the suspicion of a police officer. To the experienced
officer, the behavior of the men indicated that they were sizing up the store for an armed robbery. When
the police officer approached the men and asked them for their names, they mumbled a reply. Whereupon,
the officer grabbed one of them, spun him around and frisked him. Finding a concealed weapon in one, he
did the same to the other two and found another weapon. In the prosecution for the offense of carrying a
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
concealed weapon, the defense of illegal search and seizure was put up. The United States Supreme Court
held that "a police officer may in appropriate circumstances and in an appropriate manner approach a
person for the purpose of investigating possible criminal behavior even though there is no probable cause
to make an arrest." In such a situation, it is reasonable for an officer rather than simply to shrug his shoulder
and allow a crime to occur, to stop a suspicious individual briefly in order to determine his identity or maintain
the status quo while obtaining more information ....
 Clearly, the search in the case at bar can be sustained under the exceptions heretofore discussed, and
hence, the constitutional guarantee against unreasonable searches and seizures has not been violated.
 It is not necessary to invoke the presence of the carton and the bag in a moving vehicle to justify their
warrantless search. That an odor of marijuana was emanating from the bag already sufficiently justified its
inspection. Further, it should be noted that if the presence of the bag in a moving vehicle had formed the
basis for the warrantless search, under jurisprudence, the police officer would have been limited to its visual
inspection only.
 The search could have been justified in relation to the consent of the accused. Of course, had this been the
basis for the warrantless search, there would have been a burden to establish that the accused made a
knowing and intelligent waiver in consenting to the search. The mere testimony of the police officer would
have been insufficient for this purpose.
 For a search to be validly made as an incident to a lawful arrest, the lawful arrest should have preceded
the search. In Malacat v. Court of Appeals,4 this Court stressed this rule:
 At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search
incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum
of proof before they may be validly effected and in their allowable scope.
 In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental
search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an
arrest was merely used as a pretext for conducting a search. In this instance, the law requires that
there first be a lawful arrest before a search can be made - the process cannot be reversed. At
bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area
within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property
found which was used in the commission of the crime, or the fruit of the crime, or that which may be used
as evidence, or which might furnish the arrestee with the means of escaping or committing violence.
 Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light
of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the
part of petitioner, indicating that a crime had just been committed, was being committed or was going to be
committed.
 In this case, the warrantless search was attempted before the accused started to flee. Consequently,
the search could not be considered an incident to a lawful arrest.
ROMMEL RAMOS Y LODRONIO v. PEOPLE, G.R. No. 227336, February 26, 2018, Concurring Opinion by J.
Leonen

P. RULES OF COURT
1. Warrant of Arrest (Sec. 6, Rule 112 of the Revised Rules on Criminal Procedure)

(a) BY THE REGIONAL TRIAL COURT - Within 10 days from the filing of the Complaint or Information, the
judge shall PERSONALLY evaluate the resolution of the prosecutor and its supporting evidence. He
may
(i) immediately DISMISS THE CASE if the evidence on record clearly fails to establish probable cause.
(ii) If the finds probable cause, he shall ISSUE
a. WARRANT OF ARREST , or
b. COMMITMENT ORDER if the accused has already been arrested
i. When the complaint or information was filed pursuant to lawful arrest without a
warrant or
ii. Pursuant to a warrant issued by the judge who conducted the preliminary
investigation
i. Sec. 8 (b) – If complaint or information is filed with the MTC, the judge
shall conduct preliminary investigation within 10 days after the filing of
the complaint.
 PERSONALLY EVALUATING the evidence, or
 PERSONALLY EXAMINING in writing and under oath the
complainant and his witnesses in the form of searching
questions and answers
o If judge finds NO PROBABLE CAUSE, dismiss the case
o If judge finds PROBABLE CASE , he shall issue
1. WARRANT OF ARREST
2. COMMITMENT ORDER if the accused had already
been arrested
3. SUMMON instead of warrant of arrest if the judge
is satisfied that there is no necessity for placing
the accused under custody.
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
(b) BY THE MUNICIPAL TRIAL COURT –
(i) When required pursuant to the second paragraph of Section 1 of Rule 112, the preliminary
investigation of cases falling under the original jurisdiction of the MeTC, MTCC, MTC, or MCTC
shall be conducted by the prosecutor.
(ii) The procedure for the issuance of a warrant of arrest by the judge shall be governed by
paragraph (a) of this section.

2. Search & Seizure (Rule 126, Revised Rules of Criminal Procedure)

o SEARCH WARRANT (Sec 1)

 It is an order in writing issued in the name of the People of the Philippines, SIGNED BY A
JUDGE and directed to a peace officer, commanding him to search for personal property
described therein and bring it before the court. (Sec 1)

o COURT WHERE APPLICATION FOR SEARCH WARRANT SHALL BE FILED (Sec 2)

 An application for search warrant shall be filed with the following:

a) Any court within whose territorial jurisdiction a crime was committed.

b) For COMPELLING REASONS stated in the application, any court within the judicial
region where the crime was committed if the place of the commission of the crime
is known, or any court within the judicial region where the warrant shall be
enforced.
However, if the CRIMINAL ACTION HAS ALREADY BEEN FILED, the application shall
only be made in the court where the criminal action is pending. (n)

o PERSONAL PROPERTY TO BE SEIZED (Sec 3). — A search warrant may be issued for the search and
seizure of personal property:

(a) SUBJECT OF THE OFFENSE ;

(b) STOLEN OR EMBEZZLED and other PROCEEDS, or FRUITS OF THE OFFENSE; or
(c) USED or INTENDED TO BE USED as the means of committing an offense. (2a)

o REQUISITES FOR ISSUING SEARCH WARRANT (Sec 4). — A search warrant shall not issue except
 upon PROBABLE CAUSE
 in CONNECTION WITH ONE SPECIFIC OFFENSE
 to be DETERMINED PERSONALLY BY THE JUDGE
 AFTER EXAMINATION under oath or affirmation of the complainant and the witnesses he
may produce
 EXAMINATION OF COMPLAINANT (Sec 5)
o Before issuing the warrant, the JUDGE must PERSONALLY EXAMINE in
the form of SEARCHING QUESTIONS AND ANSWERS, in writing and under
oath, THE COMPLAINANT AND THE WITNESSES he may produce on facts
personally known to them and attach to the record their sworn
statements, together with the affidavits submitted.
 PARTICULARLY DESCRIBING
 the PLACE to be searched and
 the THINGS to be seized which may be anywhere in the Philippines.
o SERVICE OF WARRANT
 RIGHT TO BREAK DOOR OR WINDOW TO EFFECT SEARCH (Sec 7) — The officer, if refused
admittance to the place of directed search after giving notice of his purpose and authority,
may break open any outer or inner door or window of a house or any part of a house or
anything therein to execute the warrant or liberate himself or any person lawfully aiding him
when unlawfully detained therein.
 SEARCH OF HOUSE IN PRESENCE OF TWO WITNESSES (Sec 8). — No search of a house,
room, or any other premise shall be made except in the presence of the lawful occupant
thereof or any member of his family or in the absence of the latter, two witnesses of
sufficient age and discretion residing in the same locality.
 TIME OF MAKING SEARCH (Sec 9). — The warrant must direct that it be served in the day
time, unless the affidavit asserts that the property is on the person or in the place ordered
to be searched, in which case a direction may be inserted that it be served at any time of
the day or night.
 VALIDITY OF SEARCH WARRANT . (Sec 10) — A search warrant shall be valid for ten (10)
days from its date. Thereafter it shall be void.
 RECEIPT FOR THE PROPERTY SEIZED (Sec 11). — The officer seizing property under the
warrant must give a detailed receipt for the same to the lawful occupant of the premises in
whose presence the search and seizure were made, or in the absence of such occupant,
must, in the presence of at least two witnesses of sufficient age and discretion residing in
the same locality, leave a receipt in the place in which he found the seized property.
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
DELIVERY OF PROPERTY AND INVENTORY THEREOF TO COURT (Sec 12). Xxx A violation of
this section shall constitute contempt of court.
o SEARCH INCIDENT TO LAWFUL ARREST (Sec 13).
 A PERSON LAWFULLY ARRESTED may be searched for
 DANGEROUS WEAPONS or
 anything which may have been used or constitute PROOF in the commission of an
offense
 WITHOUT A SEARCH WARRANT .

o Arrest (Rule 113, Revised Rules of Criminal Procedure)

o ARREST (Sec. 1). Arrest is the taking of a person into custody in order that he may be bound to answer
for the commission of an offense.
o WHO ARREST IS MADE (Sec 2). —
 An arrest is made
 by an ACTUAL RESTRAINT of a person to be arrested, or
 by his SUBMISSION to the custody of the person making the arrest.
 PROHIBITION
 No violence or unnecessary force shall be used in making an arrest.
 The person arrested shall not be subject to a greater restraint than is necessary for his
detention.
o EXECUTION OF WARRANT
 DUTY OF HEAD OF THE OFFICE (Sec 4)
 CAUSE THE WARRANT TO BE EXECUTED within ten (10) days from its receipt.
 TO MAKE A REPORT to the judge who issued the warrant within ten (10) days after the
expiration of the period. In case of his failure to execute the warrant, he shall state the
reasons therefor.
 DUTY OF ARRESTING OFFICER (Sec 3). — It shall be the duty of the officer executing the
warrant
 TO ARREST the accused and
 TO DELIVER him to the nearest police station or jail without unnecessary delay.
o LAWFUL ARREST WITHOUT WARRANT (Sec 5)
 Who may arrest?
 A PEACE OFFICER or
 a PRIVATE PERSON
 When may arrest without warrant?

a) IN FLAGRANTE DELICTO - When, in his presence, the person to be arrested

a. has committed,
b. is actually committing, or
c. is attempting to commit an offense;
b) HOT PURSUIT –
a. When an offense has just been committed, and
b. he has probable cause to believe based on personal knowledge of facts or
circumstances
c. that the person to be arrested has committed it; and
c) ARREST OF ESCAPEE - When the person to be arrested is a prisoner who has
escaped
a. FROM A PENAL ESTABLISHMENT or place where he is serving final judgment or
is temporarily confined while his case is pending, or
b. WHILE BEING TRANSFERRED from one confinement to another.

 In cases falling under paragraph (a) and (b) above, the person arrested without a warrant
shall
 BE DELIVERED to the nearest police station or jail and
 BE PROCEEDED against in accordance with section 7 of Rule 112.
o MANNER AND METHOD OF ARREST
 TIME OF MAKING ARREST (Sec 6). — An arrest may be made on any day and at any time
of the day or night.
 METHOD OF ARREST BY OFFICER BY VIRTUE OF WARRANT (Sec 7). — When making an
arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause
of the arrest and of the fact that a warrant has been issued for his arrest, except when he
flees or forcibly resists before the officer has opportunity to so inform him, or when the
giving of such information will imperil the arrest. The officer need not have the warrant in
his possession at the time of the arrest but after the arrest, if the person arrested so
requires, the warrant shall be shown to him as soon as practicable.
 METHOD OF ARREST BY OFFICER WITHOUT WARRANT (Sec 8). — When making an arrest
without a warrant, the officer shall inform the person to be arrested of his authority and the
cause of the arrest, unless the latter is either engaged in the commission of an offense, is
pursued immediately after its commission, has escaped, flees or forcibly resists before the
officer has opportunity so to inform him, or when the giving of such information will imperil
the arrest.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
 METHOD OF ARREST BY PRIVATE PERSON (Sec 9) — When making an arrest, a private
person shall inform the person to be arrested of the intention to arrest him and cause of
the arrest, unless the latter is either engaged in the commission of an offense, is pursued
immediately after its commission, or has escaped, flees, or forcibly resists before the
person making the arrest has opportunity to so inform him, or when the giving of such
information will imperil the arrest.
 OFFICER MAY SUMMON ASSISTANCE (Sec 10). — An officer making a lawful arrest may
orally summon as many persons as he deems necessary to assist him in effecting the
arrest. Every person so summoned by an officer shall assist him in effecting the arrest
when he can render such assistance without detriment to himself.
o RIGHT OF OFFICER TO BREAK
 RIGHT TO BREAK INTO BUILDING OR ENCLOSURE (Sec 11) — An officer, in order to make an
arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break
into any building or enclosure where the person to be arrested is or is reasonably believed
to be, if he is refused admittance thereto, after announcing his authority and purpose.
 RIGHT TO BREAK OUT FROM BUILDING OR ENCLOSURE (Sec 12). — Whenever an officer has
entered the building or enclosure in accordance with the preceding section, he may break
out therefrom when necessary to liberate himself.
o ARREST AFTER ESCAPE OR RESCUE (Sec 13) — 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.
o RIGHT OF ATTORNEY OR RELATIVE TO VISIT PERSON ARRESTED (Sec 14). — Any member of the
Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the
right to visit and confer privately with such person in the jail or any other place of custody at any hour
of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise
the same right.

Q. CASE LAWS
o Purpose and Importance of the guaranty
1. Alvero v. Dizon, 76 Phil 637 (1946)
a. His failure to object at trial for petition for bail, petitioner has impliedly waived the illegality of the search and
seizure of the papers held him estopped.
b. It is true that on December 1, 1945, herein petitioner filed a petition, demanding the return of certain papers
and documents allegedly seized and taken from his house at the time of his arrest; but when he consented
to their presentation, as part of the evidence for the prosecution, at the hearing on his petition for bail and
at the trial of the case on the merits, without having insisted that the question of the alleged illegality of the
search and seizure of said papers and documents should first have been directly litigated and established
by a motion, made before the trial, for their return, he was and should be deemed to have waived his
objection to their admissibility as part of the evidence for the prosecution; since the privilege against
compulsory self-incrimination may be waived.
c. At the hearing on his petition for bail, petitioner himself requested the production of the document marked
Exhibit A, which was a letter sent by him to Dr. Jose P. Laurel; the document marked as Exhibit HH, which
was a memorandum to Col. Suzuki, dated December 30 1944; and the document marked as Exhibit P,
which was a memorandum on Nippongo classes. And he is now, therefore, estopped from questioning their
admission.
d. The purpose of the constitutional provisions against unlawful searches and seizures is to prevent violations
of private security in person and property, and unlawful invasions of the sanctity of the home, by officers of
the law acting under legislative or judicial sanction, and to give remedy against such usurpations when
attempted. (Adams vs. New York, 192 U. S., 585.)
e. When one is legally arrested for an offense, whatever is found in his possession or in his control may be
seized and used in evidence against him; and an officer has the right to make an arrest without a warrant
of a person believed by the officer upon reasonable grounds to have committed a felony. (Carroll vs. United
States, 267 U. S., 132.)

2. Sec. of National Defense v. Manalo, GR No. 180908, October 7, 2008

a. While the right to security of person appears in conjunction with the right to liberty, the right to security of
person can exist independently of the right to liberty.
b. At the core of the guarantee (of right to security) is the immunity of one's person, including the extensions
of his/her person — houses, papers, and effects — against government intrusion. Section 2 not only limits
the state's power over a person's home and possessions, but more importantly, protects the privacy and
sanctity of the person himself. The purpose of the constitutional guarantee against unreasonable searches
and seizures is to prevent violations of private security in person and property and unlawful invasion of the
security of the home by officers of the law acting under legislative or judicial sanction and to give remedy
against such usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637
[1946]). The right to privacy is an essential condition to the dignity and happiness and to the peace and
security of every individual, whether it be of home or of persons and correspondence. (Tañada and Carreon,
Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental
right against unreasonable searches and seizures must be deemed absolute as nothing is closer to a man's
soul than the serenity of his privacy and the assurance of his personal security. Any interference allowable
can only be for the best causes and reasons.
c. First, the right to security of person is "freedom from fear".
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
d. Second, the right to security of person is a guarantee of bodily and psychological integrity or security.
e. Third, the right to security of person is a guarantee of protection of one's rights by the government.
o To Whom Directed
1. People vs. Andre Marti, 193 SCRA 57 (1991)
a. CONTRABAND DISCOVERED BY PRIVATE PERSON IS ADMISSIBLE AS EVIDENCE - The right against
unreasonable search and seizure cannot be invoked against private person who discover the contraband;
the evidence discovered is admissible.
b. In State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain
the owner thereof found marijuana instead, without the knowledge and participation of police authorities,
was declared admissible in prosecution for illegal possession of narcotics.|
c. The contraband in the case at bar having come into possession of the Government without the latter
transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason
why the same should not be admitted against him in the prosecution of the offense charged.
d. The constitutional proscription against unlawful searches and seizures therefore applies as a restraint
directed only against the government and its agencies tasked with the enforcement of the law. Thus, it
could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise
of power is imposed.
e. The mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a
warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is
in plain sight is not a search. Having observed that which is open, where no trespass has been committed
in aid thereof, is not search.
o Who May Invoke the Right?
1. Bache and Co., vs. Ruiz, 37 SCRA 323 (1971)
a. The rights of a corporation against unlawful search and seizure are to be protected even if the same result
might have been achieved in a lawful way.
b. Is the search warrant when issued a judge based from the stenographic notes and depositions made only?
The search warrant was void. Personal examination by the judge of the complainant and his witnesses is
necessary to enable him to determine the existence or non-existence of a probable cause, pursuant to Art.
III, Sec. 1, par. 3, of the Constitution, and Sec. 3, Rule 126 of the Revised Rules of Court, both of which
prohibit the issuance of warrants except "upon probable cause." The determination of whether or not a
probable cause exists calls for the exercise of judgment after a judicial appraisal of facts and should not be
allowed to be delegated in the absence of any rule to the contrary.
c. While the term "all business transactions" does not appear in Search Warrant No. 2-M-70, the said warrant
nevertheless tends to defeat the major objective of the Bill of Rights, i.e., the elimination of general warrants,
for the language used therein is so all-embracing as to include all conceivable records of petitioner
corporation, which, if seized, could possibly render its business inoperative.
d. PARTICULARITY - A search warrant may be said to particularly describe the things to be seized when the
description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio; 57 Phil.
384); or when the description expresses a conclusion of fact — not of law — by which the warrant
officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.,); or when the
things described are limited to those which bear direct relation to the offense for which the warrant
is being issued (Sec. 2, Rule 126, Revised Rules of Court).

2. Stonehill v. Diokno, 20 SCRA 383 (1967)

a. It is well settled that the legality of a seizure can be contested only by the party whose rights have been
impaired thereby and that the objection to an unlawful search and seizure is purely personal and cannot be
availed of by third parties. Thus, the documents, papers, and things seized under the alleged authority of
the warrants in question may be split into (2) major groups, namely: (a) those found and seized in the offices
of the aforementioned corporations and (b) those found seized in the residences of petitioners herein.
Consequently, petitioner in the case at bar may not validly object to the use in evidence against them of the
document, papers, and things seized from the offices and premises of the corporation adverted to, since
the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to
whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against
them in their individual capacity U.S., vs. Gaas, 17 F. 2d. 997; People vs. Rubio, 57 Phil., 384).
b. NO SPECIFIC OFFENSE - Two points must be stressed in connection with this constitutional mandate, namely:
(1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set
forth in said provision; and (2) that the warrant shall particularly describe the things to be seized. None of
these requirements has been complied with in the contested warrants. Indeed, the same were issued upon
applications stating that the natural and juridical persons therein named had committed a "violation of
Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code."
In other words, no specific offense had been alleged in said applications. The averments thereof with
respect to the offense committed were abstract. As a consequence, it was impossible for the judges who
issued the warrants to have found the existence of probable cause, for the same presupposes the
introduction of competent proof that the party against whom it is sought has performed particular acts, or

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the
applications involved in this case do not allege any specific acts performed by herein petitioners.
c. GENERAL WARRANTS - Thus, the warrants authorized the search for and seizure of records pertaining to
“all business transactions” of petitioners herein, regardless of whether the transactions were legal or
illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights —
that the things to be seized be particularly described — as well as tending to defeat its major objective: the
elimination of general warrants. General warrants are outlawed by the Constitution. To uphold the
validity of the warrants in question, would be to wipe out completely one of the most fundamental rights
guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of
communication and correspondence at the mercy of the victims, caprice or passion of peace officers. This
is precisely the evil sought to be remedied by the constitutional provision Sec. 1, par. 3 Art. III, Const.) —
to outlaw the so-called general warrants.

3. Zurcher vs. Stanford Daily, 436 U. S. 547 (1978)

a. Facts: Respondents, a student newspaper that had published articles and photographs of a clash between
demonstrators and police at a hospital, and staff members brought an action against enforcement and
district attorney personnel, claiming that a search pursuant to a warrant issued on a judge's finding of
probable cause that the newspaper (which was not involved in the unlawful acts) possessed
photographs and negatives revealing the identities of demonstrators who had assaulted police officers at
the hospital had deprived respondents of their constitutional rights.
b. SUBPOENA DUCES TECUM of third person not involved in the crime - A State is not prevented by the
Fourth and Fourteenth Amendments from issuing a warrant to search for evidence simply because the
owner or possessor of the place to be searched is not reasonably suspected of criminal involvement. The
critical element in a reasonable search is not that the property owner is suspected of crime, but that there
is reasonable cause to believe that the "things" to be searched for and seized are located on the property
to which entry is sought.

4. Wilson v. Layne, 98-0083, May 24, 1999

c. “RIDE-ALONG” REPORTER - While executing a warrant to arrest petitioners’ son in their home, respondents,
deputy federal marshals and local sheriff’s deputies, invited a newspaper reporter and a photographer to
accompany them. The warrant made no mention of such a media “ride-along.” The officers’ early morning
entry into the home prompted a confrontation with petitioners, and a protective sweep revealed that the son
was not in the house. The reporters observed and photographed the incident but were not involved in the
execution of the warrant. Their newspaper never published the photographs they took of the incident.
d. It violates the Fourth Amendment rights of homeowners for police to bring members of the media or other
third parties into their home during the execution of a warrant when the presence of the third parties in the
home was not in aid of the warrant’s execution.

o Existence of Probable Cause

1. Burgos vs. Chief of Staff, 133 SCRA 800 (1984)
a. Probable cause for a search is defined as 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.
b. MERE CONCLUSION OF LAW - And when the search warrant applied for is directed against a newspaper
publisher or editor in connection with the publication of subversive materials, as in the case at bar, the
application and/or its supporting affidavits must contain a specification, stating with particularity the alleged
subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus,
the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control
printing equipment and other paraphernalia, news publications and other documents which were used and
are all continuously being used as a means of committing the offense of subversion punishable under
Presidential Decree 885, as amended . . . " is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of
probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a
grave error for respondent judge to have done so.

2. Chandler v. Miller, April 15, 1997, D-96-126

a. Facts: A Georgia statute requires candidates for designated state offices to certify that they have taken a
urinalysis drug test within 30 days prior to qualifying for nomination or election and that the test result was
negative.
b. Held: Georgia's requirement that candidates for state office pass a drug test does not fit within the closely
guarded category of constitutionally permissible suspicionless searches. It is uncontested that Georgia's
drug-testing requirement, imposed by law and enforced by state officials, effects a search within the
meaning of the Fourth and Fourteenth Amendments. The pivotal question here is whether the searches are
reasonable. To be reasonable under the Fourth Amendment, a search ordinarily must be based on
individualized suspicion of wrongdoing.

3. People v. Chua Ho San, 308 SCRA 432) (1999)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
a. The Supreme Court held that the search made was not incidental to an arrest. There was no warrant of
arrest and the warrantless arrest did not fall under the exceptions allowed by the Rules of Court. From all
indications, the search was nothing like a fishing expedition. Indeed, the likelihood of Chua having actually
transported the items cannot be quickly dispelled. But the constitutional guarantee against unreasonable
searches and seizures cannot be so carelessly disregarded. The decision of the trial court was reversed
and set aside and the accused-appellant was acquitted of the crime charged.
b. This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless
searches and seizures have long been deemed permissible by jurisprudence in instances of (1) SEARCH
OF MOVING VEHICLES , (2) SEIZURE IN PLAIN VIEW, (3) CUSTOMS SEARCHES , (4) WAIVER OR CONSENT
SEARCHES , (5) STOP AND FRISK SITUATIONS (Terry search), and (6) SEARCH INCIDENTAL TO A LAWFUL
ARREST .

c. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest,
for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of
Court recognize permissible warrantless arrests, to wit: (1) ARRESTS IN FLAGRANTE DELICTO, (2) ARRESTS
EFFECTED IN HOT PURSUIT , and (3) ARRESTS OF ESCAPED PRISONERS .

d. In cases of in flagrante delicto arrests, a peace officer or a private person may without a warrant, arrest a
person, when, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such
fact or as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative
or constitutive of probable cause.
e. The term PROBABLE CAUSE had been understood to mean a REASONABLE GROUND OF SUSPICION supported
by circumstances sufficiently strong in themselves to warrant a cautious man's belief that the person
accused is guilty of the offense with which he is charged. Specifically with respect to arrests, it is such facts
and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has
been committed by the person sought to be arrested.
f. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental
search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this instance, the law requires that there be first
a lawful arrest before a search can be made — the process cannot be reversed.

4. People v. Molina, G.R. No. 133917, February 19, 2001

a. In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In
holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to
commit or have committed a crime. It matters not that accused-appellant Molina responded "Boss, if
possible we will settle this" to the request of SPO1 Pamplona to open the bag. Such response which
allegedly reinforced the "suspicion" of the arresting officers that accused-appellants were committing a
crime, is an equivocal statement which standing alone will not constitute probable cause to effect an in
flagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the
arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not be the
subject of any suspicion, reasonable or otherwise.
b. As discussed in People v. Doria, PROBABLE CAUSE means an actual belief or reasonable grounds of
suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based
on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable
cause of guilt of the person to be arrested. A REASONABLE SUSPICION therefore must be founded on
probable cause, coupled with good faith on the part of the peace officers making the arrest.
c. As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any overt act
indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not
sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v.
Aminnudin, it was held that "the accused-appellant was not, at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or that he had just done so. What he was doing was descending
the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only
when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so
subject to apprehension."

o Partially Valid Warrant

1. People v. Salanguit, G.R. 133254, April 18, 2001
a. Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole.
Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately,
must be condemned merely because the warrant was defective with respect to other articles.
b. The search warrant for “undertime quantity of shabu and drug paraphernalia” was partially declared valid
when only the shabu as probable cause. The search warrant for drug paraphernalia was invalid for lack of
probable cause.
c. Under the "plain view doctrine," unlawful objects within the "plain view" of an officer who has the right to be
in the position to have that view are subject to seizure and may be presented in evidence. For this doctrine

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
to apply, there must be: (a) prior justification; (b) inadvertent discovery of the evidence; and (c) immediate
apparent illegality of the evidence before the police.
d. A search incident to a lawful arrest is limited to the person of the one arrested and the premises
within his immediate control. The rationale for permitting such a search is to prevent the person arrested
from obtaining a weapon to commit violence, or to reach for incriminatory evidence and destroy it.
e. The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their seizure.
The police failed to allege in this case the time when the marijuana was found, i.e., whether prior to, or
contemporaneous with, the shabu subject of the warrant, or whether it was recovered on accused-
appellant's person or in an area within his immediate control. Its recovery, therefore, presumably during the
search conducted after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in
his deposition, was invalid. However, the confiscation of the drug must be upheld.
f. This case is similar to People v. Musa in which we declared inadmissible the marijuana recovered by
NARCOM agents because the said drugs were contained in a plastic bag which gave no indication of its
contents.

2. Microsoft Corp. v. Maxicorp., G.R. 140946, September 13, 2004

a. Probable cause means "such reasons, supported by facts and circumstances as will warrant a cautious
man in the belief that his action and the means taken in prosecuting it are legally just and proper." Thus,
probable cause for a search warrant requires such facts and circumstances that would lead a reasonably
prudent man to believe that an offense has been committed and the objects sought in connection with that
offense are in the place to be searched. The judge determining probable cause must do so only after
personally examining under oath the complainant and his witnesses. The oath required must refer to "the
truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose
thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause." The applicant must have personal knowledge
of the circumstances. "Reliable information" is insufficient. Mere affidavits are not enough, and the judge
must depose in writing the complainant and his witnesses.
b. The Court find paragraph (c) of the search warrants lacking in particularity. Paragraph (c) states: “Sundry
items such as labels, boxes, prints, packages, wrappers, receptacles, advertisements and other
paraphernalia bearing the copyrights and/or trademarks owned by MICROSOFT CORPORATION”. A
partially defective warrant remains valid as to the items specifically described in the warrant. A search
warrant is severable, the items not sufficiently described may be cut off without destroying the whole
warrant. The exclusionary rule found in Section 3(2) of Article III of the Constitution renders inadmissible in
any proceeding all evidence obtained through unreasonable searches and seizure. Thus, all items seized
under paragraph (c) of the search warrants, not falling under paragraphs a, b, d, e or f, should be returned
to Maxicorp.

o Personal determination by judge

o The right against unreasonable searches and seizures is guaranteed under Article III, Section 2, of the
Constitution, thus:
Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
o Search Warrant
o Said Constitutional provision is implemented under Rule 126 of the Rules of Court, thus:
Sec. 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable
cause in connection with one specific offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized which may be anywhere in the Philippines.
Sec. 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath, the complainant and
the witnesses he may produce on facts personally known to them and attach to the record their sworn
statements, together with the affidavits submitted.
o Under the above provisions, the issuance of a search warrant is justified only upon a finding of probable
cause.
o Probable cause for a search has been defined as 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.
o In determining the existence of probable cause, it is required that: (1) the judge must examine the
complainant and his witnesses personally; (2) the examination must be under oath; and (3) the examination
must be reduced in writing in the form of searching questions and answers.
o Warrant of Arrest

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o Probable cause for the issuance of a warrant of arrest means such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has been committed by the
person sought to be arrested.
o A hearing is not necessary therefor.
o At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted
during the preliminary investigation. It is sufficient that he personally evaluates such evidence in
determining probable cause.
o In Webb v. De Leon, we stressed that the judge merely determines the probability, not the certainty, of guilt
of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the
prosecutor's initial determination finding probable cause to see if it is supported by substantial evidence.
o Executive determination of probable cause v. Judicial determination of probable cause. In Inting, the
determination of probable cause by the prosecutor is for a purpose different from that which is to be made
by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged
and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines
whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for
placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should
base their findings on one and the same proceeding or evidence, there should be no confusion as to their
distinct objectives.

1. Sta. Rosa Mining Co., vs. Fiscal Zabala, 153 SCRA 367 (1987)
a. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition
of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the
Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while
the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction
and competence. A motion to dismiss the case filed by the fiscal should he addressed to the Court who has
the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation.

2. Paderanga vs. Drilon, G.R. 96080, April 19, 1991

a. it has been held that "the proper forum before which absence of preliminary investigation should be
ventilated is the Court of First Instance, not this Court. Reason is not wanting for this view. Absence of a
preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the
proceedings. It could even be waived. Indeed, it is frequently waived. These are matters to be inquired into
by the trial court, not an appellate court."

3. Pita vs. CA, 178 SCRA 362 (1987)

 The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity
rap is in order; 2. The authorities must convince the court that the materials sought to be seized are
"obscene", and pose a clear and present danger of an evil substantive enough to warrant State interference
and action; 3. The judge must determine whether or not the same are indeed "obscene:" the question is to
be resolved on a case-to-case basis and on His Honor's sound discretion. 4. If, in the opinion of the court,
probable cause exists, it may issue the search warrant prayed for; 5. The proper suit is then brought in the
court under Article 201 of the Revised Penal Code; 6. Any conviction is subject to appeal. The appellate
court may assess whether or not the properties seized are indeed "obscene". These do not foreclose,
however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power
under the Civil Code or the Revised Penal Code.

4. Abdula v. Guiani. 326 SCRA 1 (2000)

 On this issue, petitioners, citing the case of Allado vs. Diokno argue that the warrant for his arrest should
be recalled considering that the respondent judge "did not personally examine the evidence nor did he call
the complainant and his witnesses in the face of their incredible accounts." As proof, he points to the fact
that the information was filed at around 4:00 p.m. of the January 2, 1995 and the order of arrest was
immediately issued the following day or on January 3, 1995. Moreover, petitioner argues, respondent judge
did not even issue an order stating that there is probable cause for the issuance of the warrant of arrest, a
clear violation of the guidelines set forth in the Allado case.
 What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the
issuance of a 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."
 Clearly, respondent judge, by merely stating that he had no reason to doubt the validity of the certification
made by the investigating prosecutor has abdicated his duty under the Constitution to determine on his own
the issue of probable cause before issuing a warrant of arrest. Consequently, the warrant of arrest should
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
be declared null and void. Although the prosecutor enjoys the legal presumption of regularity in the
performance of his official duties, which in turn gives his report the presumption of accuracy, nothing less
than the fundamental law of the land commands the judge to personally determine probable cause in the
issuance of warrants of arrest. A judge fails in this constitutionally mandated duty if he relies merely on the
certification or report of the investigating officer.

5. People v. Mamaril, G.R. 147607, January 22, 2004

 Search Warrant No. 99-51 was served and yielded several sticks of marijuana. During trial, it was observed
that the search warrant has no attached transcription notes evidencing searching questions and answers
personally performed by the judge. The clerk of court said that they tried their best to locate the subject
transcript, but they could not find it.
 Based on the above testimony and the other evidence on record, the prosecution failed to prove that
Executive Judge Eugenio G. Ramos put into writing his examination of the applicant and his
witnesses in the form of searching questions and answers before issuance of the search warrant.
The records only show the existence of an application for a search warrant and the affidavits of the
complainant's witnesses.
 We, therefore, find that the requirement mandated by the law that the examination of the complainant and
his witnesses must be under oath and reduced to writing in the form of searching questions and answers
was not complied with, rendering the search warrant invalid. Consequently, the evidence seized pursuant
to said illegal search warrant cannot be used in evidence against appellant in accordance with Section 3
(2), Article III of the Constitution.

6. Reyes vs. Montesa, 247 SCRA 85

 This procedure is dictated by sound public policy; otherwise judges would be unduly laden with the
preliminary examination and investigation of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts. At this stage of a criminal proceeding, the judge is not tasked to
review in detail the evidence submitted during the preliminary investigation; it is sufficient that he personally
evaluates the report and supporting documents submitted by the prosecution in determining probable
cause.
 Since the accused unilaterally withdrew their petition for bail, there was then nothing to be heard or acted
upon in respect thereof. Even if they did not withdraw their petition, they have no right to invoke the
processes of the court since they have not been placed in the custody of the law or otherwise deprived of
their liberty by reason or as a consequence of the filing of the information. For the same reason, the court
had no authority to act on the petition.

7. Webb vs. de Leon, 247 SCRA 652

 What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the
issuance of a 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 hereof, 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.

8. PP vs. Cerbo, January 21, 1999

 Jonathan Cerbo was charged in an information for murder in connection with the fatal shooting of Rosalinda
Dy inside the office of his father, Billy Cerbo. The information was amended to include Billy Cerbo as one
of the accused and a warrant for his arrest was correspondingly issued. Respondent judge, in a motion to
quash warrant of arrest, dismissed the case against Billy for insufficiency of evidence, recalled the warrant
issued, and ordered the prosecution to withdraw its amended information and to file a new one charging
Jonathan Cerbo only. The private prosecutor's motion for reconsideration was denied, hence, his resort to
the Court of Appeals. The appellate court, in affirming the trial court held that the trial court RTC has
authority to reverse the prosecutor's finding of probable cause and dismiss the information on the ground
that the evidence presented did not substantiate the charge. Hence, this recourse.
 The determination of probable cause to hold a person for trial is a function that belongs to the public
prosecutor, the correctness of the exercise of which is a matter that the trial court itself does not and may
not be compelled to pass upon. The judge should not override the public prosecutor's determination of
probable cause on the ground that the evidence presented to substantiate the issuance of a warrant of
arrest was insufficient.
 As a general rule, if the information is valid on its face and there is no showing of manifest error, grave
abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for want of
evidence because evidentiary matters should be presented and heard during the trial.

9. Lim vs. Felix, 194 SCRA 292

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NOTES TO CONSTITUTION 2
 If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the
investigation are in Masbate, he or she has not personally determined probable cause. The determination
is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge
commits a grave abuse of discretion.
 The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by
the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against
the petitioners. There was no basis for the respondent Judge to make his own personal determination
regarding the existence of a probable cause for the issuance of a warrant of arrest as mandated by
the Constitution. He could not possibly have known what transpired in Masbate as he had nothing but a
certification. Significantly, the respondent Judge denied the petitioners' motion for the transmittal of the
records on the ground that the mere certification and recommendation of the respondent Fiscal that a
probable cause exists is sufficient for him to issue a warrant of arrest.

o Examination of witnesses
1. Pasion Vda. De Garcia vs. Locsin, 65 Phil 68 (1938)

 In the instant case the existence of probable cause was determined not by the judge himself but by the
applicant. All that the judge did was to accept as true the affidavit made by agent Almeda. He did not decide
for himself. It does not appear that he examined the applicant and his witnesses, if any. Even accepting the
description of the properties to be seized to be sufficient and on the assumption that the receipt issued is
sufficiently detailed within the meaning of the law, the properties seized were not delivered to the court
which issued the warrant, as required by law. (See secs. 95 and 104, G. O. No. 58.) Instead, they were
turned over to the respondent provincial fiscal and used by him in building up cases against the petitioner.
Considering that at the time the warrant was issued there was no case pending against the petitioner, the
averment that the warrant was issued primarily for exploration purposes is not without basis. The lower
court is, therefore, correct in reaching the conclusion that the search warrant (Exhibit B) was illegally issued
by the justice of the peace of Tarlac, Tarlac.

2. Yee Sue Kuy vs. Almeda, 70 Phil. 141, (1940)

 The criticism of the petitioners that the search warrant in question was not issued in accordance with the
formalities prescribed by section 1, paragraph 3, of Article III of the Constitution and of section 97 of General
Orders No. 58, is unfounded. On the contrary, we are satisfied that strict observance of such formalities
was followed. The applicant Mariano G. Almeda, in his application, swore that "he made his own personal
investigation and ascertained that Sam Sing & Co. is lending money without license, charging usurious rate
of interest and is keeping, utilizing and concealing in the store and premises occupied by it situated at
Sagay, Occidental Negros, documents, notebooks, lists, receipts, promissory notes, and book of accounts
and records, all of which are being used by it in connection with its activities of lending money at usurious
rate of interest in violation of the Usury Law." In turn, the witness Jose Estrada, in his testimony before the
justice of the peace of Sagay, swore that he knew that Sam Sing & Co. was lending money without license
and charging usurious rate of interest, because he personally investigated the victims who had secured
loans from said Sam Sing & Co. and were charged usurious rate of interest; that he knew that the said Sam
Sing & Co. was keeping and using books of accounts and records containing its transactions relative its
activities as money lender and the entries of the interest paid by its debtors, because he saw the said Sam
Sing & d make entries and records of their debts and the interest paid thereon.

3. Alvarez vs. CFI, 64 Phil. 33 (1937)

 That the search and seizure made are illegal for the following reasons: (a) Because the warrant was based
solely upon the affidavit of the petitioner who had no personal knowledge of the facts necessary to
determine the existence or non-existence of probable cause, and (b) because the warrant was issued for
the sole purpose of seizing evidence which would later be used in the criminal proceedings that might be
instituted against the petitioner, for violation of the Anti- Usury Law;

4. Mata vs. Bayona , 128 SCRA 388 (1984)

 Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to
take depositions in writing of the complainant and the witnesses he may produce and to attach them to the
record. Such written deposition is necessary in order that the Judge may be able to properly determine the
existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be
found later that his declarations are false.

o Particularity of description
o Objects of Seizure
1. Rule 126, Sec. 3, Rules of Court (ROC)
Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure of
personal property:

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense.

2. Unilab v. Isip, G.R. No. 163858, June 28, 2005

 In this case, Disudrin and/or Inoflox were not listed in the search warrant issued by the court a quo as
among the properties to be seized by the NBI agents. The warrant specifically authorized the officers only
to seize "counterfeit Revicon multivitamins, finished or unfinished, and the documents used in recording,
manufacture and/or importation, distribution and/or sale, or the offering for sale, sale and/or distribution of
the said vitamins." The implementing officers failed to find any counterfeit Revicon multivitamins, and
instead seized sealed boxes which, when opened at the place where they were found, turned out to contain
Inoflox and Disudrin.
 The “plain view” doctrine is not an exception to the warrant. It merely serves to supplement the prior
justification — whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest
or some other legitimate reason for being present, unconnected with a search directed against the accused.
The doctrine may not be used to extend a general exploratory search from one object to another until
something incriminating at last emerges. It is a recognition of the fact that when executing police officers
comes across immediately incriminating evidence not covered by the warrant, they should not be required
to close their eyes to it, regardless of whether it is evidence of the crime they are investigating or evidence
of some other crime. It would be needless to require the police to obtain another warrant. Under the
doctrine, there is no invasion of a legitimate expectation of privacy and there is no search within the meaning
of the Constitution.

o Valid Waiver
1. People vs. Omaweng, 213 SCRA 462 (1992)
 The appellant was flagged down during the checkpoint. The PC constable asked permission to inspect the
vehicle and appellant acceded to the request. When they peered into the rear of the vehicle, they saw a
travelling bag which was partially covered by the rim of a spare tire under the passenger seat on the right
side of the vehicle. The PC asked permission to see the contents of the bag. Appellant consented to the
request but told them that it only contained some clothes. When they opened the bag, he found that it
contained forty-one (41) plastic packets of different sizes containing pulverized substances.
 When one voluntarily submits to a search or consents to have it made of (sic) his person or premises, he
is precluded from later complaining thereof. The right to be secure from unreasonable search may, like
every right, be waived and such waiver may be made either expressly or impliedly.

2. People v. Correa, 285 SCRA 679 (1998)

 The operatives were following the car driver by the accused. Upon reaching the intersection of Bambang
Extension and Jose Abad Santos Avenue, Tondo, Manila, the subject vehicle stopped and parked at a
corner. Thereupon, the operatives also stopped and parked their vehicles around the suspect's vehicle and
accosted the passengers of the owner-type jeepney. Appellant Antonio Correa was at the driver's seat with
appellant Leonardo Dulay sitting beside him in the front seat and appellant Rito Gunida at the back seat.
The team inspected a cylindrical tin can of El Cielo Vegetable Cooking Lard, about two feet high, loaded in
the vehicle of the appellants. The can contained eight bundles of suspected dried marijuana flowering tops
wrapped in pieces of paper and plastic tapes.
 The marijuana is admissible as evidence. The appellants are now precluded from assailing the warrantless
search and seizure when they voluntarily submitted to it as shown by their actuation during the search and
seizure. The appellants never protested when SPO3 Jesus Faller, after identifying himself as a police
officer, opened the tin can loaded in the appellants' vehicle and found eight (8) bundles. The appellants
effectively waived their constitutional right against the search and seizure in question by their voluntary
submission to the jurisdiction of the trial court, when they entered a plea of not guilty upon
arraignment and by participating in the trial.

3. People vs. Ramos, G.R. 85401-02, June 4, 1990

 The team proceeded to the place where appellant was selling cigarettes. After identifying themselves as
NARCOM agents, Capt. Castillo told appellant that she was being placed under arrest for illegal peddling
of marijuana. Appellant was requested to take out the contents of her wallet. The four marked five-peso
bills were found among her possessions and were confiscated after the serial numbers were confirmed by
Captain Castillo from his record. The initial of Sgt. Tahil Ahamad was also found from the confiscated five-
peso bills. Sgt. Ahamad searched the stall of appellant and found twenty (20) sticks of marijuana cigarettes
in a trash can placed under the small table where appellant displayed the wares she was selling.

4. People v. Barros, 231 SCRA 557 (1994)

 In the case at bar, however, we have been unable to find in the record of this case any circumstance which
constituted or could have reasonably constituted probable cause for the peace officers to search the carton
box allegedly owned by appellant Barros. The carrying of such a box by appellant onto a passenger bus
could not, by itself ,have convinced M/Sgt. Francis Yag-as and S/Sgt. James Ayan either that the appellant
was a law violator or the contents of the box were instruments or the subject matter or proceeds of some

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
criminal offense. The carrying of carton boxes is a common practice among our people, especially those
coming from the rural areas since such boxes constitute the most economical kind of luggage possible. The
peace officers here involved had not received any information or "tip-off" from an informer; no such a "tip-
off" was alleged by the police officers before or during the trial. The police officers also did not contend that
they had detected the odor of dried marijuana, or appellant Barros had acted suspiciously in the course of
boarding the bus and taking a seat during the trip to Sabangan, nor in the course of being asked whether
he owned the carton box later ascertained to contain four (4) kilos of marijuana. The testimony of the law
enforcement officers who had apprehended the accused (M/Sgt. Francis Yag-as and S/Sgt. James
Ayan),and who had searched the box in his possession, (C2C Fernando Bongyao),simply did not suggest
or indicate the presence of any such probable cause.

5. Veroy vs. Layague, 210 SCRA 97 (1992)

 Consent given to enter but police searched the room was invalid.
 The owner permitted the police to enter the house and to break open the door of their residence. It was
merely for the purpose of ascertaining thereat the presence of the alleged "rebel" soldiers. The police break
also the room and seized firearms inside. The permission did not include any authority to conduct a room
to room search once inside the house.
 The Constitution guarantees the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures (Article III, Section 2 of the 1987 Constitution).
However, the rule that searches and seizures must be supported by a valid warrant is not an absolute one.
Among the recognized exceptions thereto are: (1) a search incidental to an arrest; (2) a search of a moving
vehicle; and (3) seizure of evidence in plain view. None of these exceptions pertains to the case at bar. The
reason for searching the house of herein petitioner is that it was reportedly being used as a hideout and
recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter
the house because he did not have a search warrant and the owners were not present. This shows that he
himself recognized the need for a search warrant, hence, he did not persist in entering the house but rather
contacted the Veroys to seek permission to enter the same. Permission was indeed granted by Ma. Luisa
Veroy to enter the house but only to ascertain the presence of rebel soldiers. Under the circumstances it is
undeniable that the police officers had ample time to procure a search warrant but did not.

6. People vs. Damaso, 212 SCRA 457 (1992

 Consent given by helper not valid.

 The group of Lt. Quijardo entered the Damaso’s house upon invitation of Luz Tanciangco and
Luzviminda Morados, helper of the appellant; that when Luz Tanciangco opened one of the rooms, they
saw a copier machine, computer, M-14 rifle, bullets and ammunitions, radio set and more subversive
items. Luz Tanciangco allowed them to enter and to look around the appellant's house; and that since
the evidence seized was in plain view of the authorities, the same may be seized without a warrant.
 The constitutional immunity from unreasonable searches and seizures, being a personal one cannot
be waived by anyone except the person whose rights are invaded or one who is expressly authorized
to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689 695). In the case at bar, the records
show that appellant was not in his house at that time Luz Tanciangco and Luz Morados, his alleged
helper, allowed the authorities to enter it.

7. Lopez vs. Comm. Of Customs, 68 SCRA 320 (1975)

 Consent given by wife to enter the hotel room was valid.

 Where, at the time the government agents entered and searched the hotel room then being rented by
petitioner, a woman who appeared to be the wife of petitioner was inside the room, and, upon being
informed of the purpose of the search, invited the officers to enter and search the room and even
voluntarily gave the documents and things requested by the officers, even if the said woman, who could
be aptly described as the wrong person, at the wrong place, at the wrong time, was not the wife of
petitioner, but a mere manicurist by occupation, the officers of the law could not be blamed if they acted
on the appearances. There was a person inside who from all indications was ready to accede to their
request. Even common courtesy alone would have precluded them from inquiring too closely as to why
she was there. Under said circumstances, there was consent sufficient in law to dispense with the need
for a search warrant.

8. Lui vs. Matillano, GR No. 141176, May 27, 2004

 In this case, the petitioners failed to prove, with clear and convincing evidence, that respondent Paulina
Matillano waived her right against unreasonable search and seizure by consenting thereto, either
expressly or impliedly. Admittedly, respondent Paulina Matillano did not object to the opening of her
wooden closet and the taking of their personal properties. However, such failure to object or resist did
not amount to an implied waiver of her right against unreasonable search and seizure. The petitioners
were armed with handguns; petitioner Lui threatened and intimidated her. Respondent Eulogio
Matillano, her husband, was out of the house when the petitioner and his cohorts conducted the search
and seizure. He could, thus, not have waived his constitutional right.

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NOTES TO CONSTITUTION 2
9. Caballes v. Court of Appeals, G.R. No. 136292, January 5, 2002
 "[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and Pat. Alex de Castro, while on a routine
patrol in Barangay Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep unusually covered with
"kakawati" leaves. Suspecting that the jeep was loaded with smuggled goods, the two police officers
flagged down the vehicle. The jeep was driven by appellant. When asked what was loaded on the jeep,
he did not answer; he appeared pale and nervous. With appellant's consent, the police officers
checked the cargo and they discovered bundles of 3.08 mm aluminum/galvanized conductor wires
exclusively owned by National Power Corporation (NPC). The conductor wires weighed 700 kilos and
valued at P55,244.45.
 We hold that the fact that the vehicle looked suspicious simply because it is not common for such to be
covered with kakawati leaves does not constitute "probable cause" as would justify the conduct of a
search without a warrant. In addition, the police authorities do not claim to have received any
confidential report or tipped information that petitioner was carrying stolen cable wires in his vehicle
which could otherwise have sustained their suspicion. Our jurisprudence is replete with cases where
tipped information has become a sufficient probable cause to effect a warrantless search and
seizure. Unfortunately, none exists in this case.
 It is not in plain view. It is clear from the records of this case that the cable wires were not exposed to
sight because they were placed in sacks and covered with leaves. The articles were neither transparent
nor immediately apparent to the police authorities. They had no clue as to what was hidden underneath
the leaves and branches. As a matter of fact, they had to ask petitioner what was loaded in his vehicle.
In such a case, it has been held that the object is not in plain view which could have justified mere
seizure of the articles without further search.
 In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against
unreasonable searches. The manner by which the two police officers allegedly obtained the consent of
petitioner for them to conduct the search leaves much to be desired. When petitioner's vehicle was
flagged down, Sgt. Noceja approached petitioner and "told him I will look at the contents of his vehicle
and he answered in the positive." We are hard put to believe that by uttering those words, the police
officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner.
For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will
search his vehicle.
10. People vs. Asis, et. al., G.R. No. 142531, October 15, 2002

 To constitute a valid waiver, it must be shown that first, the right exists; second, the person involved
had knowledge, actual or constructive, of the existence of such a right; and third, the person had an
actual intention to relinquish the right. How could Appellant Formento have consented to a warrantless
search when, in the first place, he did not understand what was happening at that moment? The
prosecution witnesses themselves testified that there was no interpreter to assist him — a deaf-mute
— during the arrest, search and seizure. Naturally, it would seem that he indeed consented to the
warrantless search, as the prosecution would want this Court to believe.
 All told, the bloodstained pair of shorts was a piece of evidence seized on the occasion of an unlawful
search and seizure. Thus, it is tainted and should thus be 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.

11. People vs. Tudtud, et. al., G.R. No. 144037, September 26, 2003

 Appellants in this case were neither performing any overt act or acting in a suspicious manner that
would hint that a crime has been, was being, or was about to be, committed. If the arresting officers'
testimonies are to be believed, appellants were merely helping each other carry a carton box. Although
appellant Tudtud did appear "afraid and perspiring," "pale" and "trembling," this was only after, not
before, he was asked to open the said box. In no sense can the knowledge of the herein arresting
officers that appellant Tudtud was in possession of marijuana be described as "personal," having
learned the same only from their informant Solier.
 As the search of appellants' box does not come under the recognized exceptions to a valid warrantless
search, the marijuana leaves obtained thereby are inadmissible in evidence. And as there is no
evidence other than the hearsay testimony of the arresting officers and their informant, the conviction
of appellants cannot be sustained.
12. Silahis Int’l. Hotel vs. Soluta, February 20, 2006
 In the morning of January 11, 1988, Panlilio, his personal secretary Andy Dizon, Maniego, Bulletin
reporter Nonoy Rosales, and REPISA security guard Steve Villanueva (Villanueva) entered the union
office located at the hotel basement, with the permission of union officer Henry Babay (Babay) who
was apprised about the suspected illegal activities, and searched the premises in the course of which
Villanueva found a plastic bag under a table. When opened, the plastic bag yielded dry leaves of
marijuana. 3 Panlilio thereupon ordered Maniego to investigate and report the matter to the authorities.
 In the present case, as priorly stated, petitioners had, by their own claim, already received reports in
late 1987 of illegal activities allegedly undertaken in the union office and Maniego conducted
surveillance of the union officers. Yet, in the morning of January 11, 1988, petitioners and their
companions barged into and searched the union office without a search warrant, despite ample time
for them to obtain one, and notwithstanding the objection of Babay.
 The course taken by petitioners and company stinks in illegality, it not falling under any of the
exceptional instances when a warrantless search is allowed by law. Petitioners' violation of individual

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NOTES TO CONSTITUTION 2
respondents' constitutional right against unreasonable search thus furnishes the basis for the award of
damages under Article 32 of the Civil Code.

13. PP vs. Canton, GR No. 148825, December 27, 2002

 SUSAN was at the Ninoy Aquino International Airport (NAIA), being a departing passenger bound for
Saigon, Vietnam. 2 When she passed through the metal detector booth, a beeping sound was emitted.
Consequently, Mylene Cabunoc, a civilian employee of the National Action Committee on Hijacking
and Terrorism (NACHT) and the frisker on duty at that time, called her attention, saying "Excuse me
ma'am, can I search you?" Upon frisking SUSAN, Mylene felt something bulging at her abdominal area.
Mylene inserted her hand under the skirt of SUSAN, pinched the package several times and noticed
that the package contained what felt like rice granules. When Mylene passed her hand, she felt similar
packages in front of SUSAN's genital area and thighs. She asked SUSAN to bring out the packages,
but the latter refused and said: "Money, money only." Mylene forthwith reported the matter to SPO4
Victorio de los Reyes, her supervisor on duty. SPO4 De los Reyes instructed Mylene to call Customs
Examiner Lorna Jalac and bring SUSAN to a comfort room for a thorough physical examination. Upon
further frisking in the ladies' room, Mylene touched something in front of SUSAN's sex organ. She
directed SUSAN to remove her skirt, girdles and panty. SUSAN obliged. Mylene and Lorna discovered
three packages individually wrapped and sealed in gray colored packing tape, which SUSAN voluntarily
handed to them. The first was taken from SUSAN's abdominal area; the second, from in front of her
genital area; and the third, from her right thigh. Mylene turned over the packages to SPO4 De los
Reyes. The latter forthwith informed his superior officer Police Superintendent Daniel Santos about the
incident. Together with SUSAN, they brought the gray plastic packs to the customs examination table,
opened the same and found that they contained white crystalline substances 9 which, when submitted
for laboratory examination, yielded positive results for methamphetamine hydrochloride or shabu, a
regulated drug.
 In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the
discovery of packages on her body. It was too late in the day for her to refuse to be further searched
because the discovery of the packages whose contents felt like rice granules, coupled by her
apprehensiveness and her obviously false statement that the packages contained only money, aroused
the suspicion of the frisker that SUSAN was hiding something illegal. It must be repeated that R.A. No.
6235 authorizes search for prohibited materials or substances. To limit the action of the airport security
personnel to simply refusing her entry into the aircraft and sending her home (as suggested by
appellant), and thereby depriving them of "the ability and facility to act accordingly, including to further
search without warrant, in light of such circumstances, would be to sanction impotence and ineffectivity
in law enforcement, to the detriment of society." Thus, the strip search in the ladies' room was justified
under the circumstances.
 The scope of a search pursuant to airport security procedure is not confined only to search for weapons
under the "Terry search" doctrine.

14. PP vs. Suzuki, GR No. 120670, October 23, 2003

 Appellant was found guilty of illegal possession of marijuana. As established, appellant was at the
Bacolod Airport Terminal carrying a box of piaya which activated the detector machine at the pre
departure area. When inspected, the box revealed 18 small packs of dried marijuana fruiting tops.
 While appellant invoked his constitutional right against unreasonable search and seizure, the Court
ruled that the search conducted by the Police Aviation Security Command (PASCOM) was reasonable.
The authority of PASCOM to open packages was provided under Section 8 of RA No. 6235 and the
search conducted pursuant to routine airport security procedure was held an exception to the
proscription against warrantless searches. The Court noted that appellant voluntarily gave his consent
to the search and thus, when several marijuana fruiting tops were found in the box, appellant was
deemed caught in flagrante delicto, justifying his arrest without a warrant. The packs of marijuana
obtained in the course of such valid search are admissible as evidence against appellant.

o Incident to lawful arrest

1. Rule 126, Section 13, Rules of Court

 Section 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for
dangerous weapons or anything which may have been used or constitute proof in the commission of
an offense without a search warrant.

2. Luz v. People, GR No. 197788, February 29, 2012

 Flagged down for traffic violation => not arrested => suspicion (uneasy) => extensive search => not in plain
view (shabu inside tin can) = invalid search
 A traffic enforcer flagged down the accused driving a motorcycle without a helmet for violating a municipal
ordinance which requires all motorcycle drivers to wear helmet while driving said motor vehicle. He invited
the accused to come inside their sub-station since the place where he flagged down the accused is almost
in front of the said sub-station; that while he and SPO1 Rayford Brillante were issuing a citation ticket for
violation of municipal ordinance, he noticed that the accused was uneasy and kept on getting something

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from his jacket; that he was alerted and so, he told the accused to take out the contents of the pocket of
his jacket as the latter may have a weapon inside it; that the accused obliged and slowly put out the contents
of the pocket of his jacket which was a nickel-like tin or metal container containing to be four (4) plastic
sachets of shabu. Petitioner claims that there was no lawful search and seizure, because there was no
lawful arrest.
 First, there was no valid arrest of petitioner. When he was flagged down for committing a traffic violation,
he was not, ipso facto and solely for this reason, arrested. Secondly, there being no valid arrest, the
warrantless search that resulted from it was likewise illegal. It must be noted that the evidence seized,
although alleged to be inadvertently discovered, was not in "plain view." It was actually concealed inside a
metal container inside petitioner's pocket. Clearly, the evidence was not immediately apparent. Neither was
there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown by clear
and convincing evidence. In fact, the RTC found that petitioner was merely "told" to take out the contents
of his pocket. In this case, all that was alleged was that petitioner was alone at the police station at three in
the morning, accompanied by several police officers. These circumstances weigh heavily against a finding
of valid consent to a warrantless search. Neither does the search qualify under the "stop and frisk" rule.
While the rule normally applies when a police officer observes suspicious or unusual conduct, which may
lead him to believe that a criminal act may be afoot, the stop and frisk is merely a limited protective search
of outer clothing for weapons.
 Relevant to this determination are the following characteristics of the person giving consent and the
environment in which consent is given: (1) the age of the defendant; (2) whether the defendant was in a
public or a secluded location; (3) whether the defendant objected to the search or passively looked on; (4)
the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the
defendant's belief that no incriminating evidence would be found; (7) the nature of the police questioning;
(8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of
the person consenting. It is the State that has the burden of proving, by clear and positive testimony, that
the necessary consent was obtained, and was freely and voluntarily given.

3. Chimel vs. California, 395 U. S. 752 (1964)

 Warrant of arrest => extensive search beyond area of immediate control = invalid search
 Police officers, armed with an arrest warrant but not a search warrant, were admitted to petitioner's home
by his wife, where they awaited petitioner's arrival. When he entered, he was served with the warrant.
Although he denied the officers' request to "look around," they conducted a search of the entire house "on
the basis of the lawful arrest." At petitioner's trial on burglary charges, items taken from his home were
admitted over objection that they had been unconstitutionally seized. His conviction was affirmed by the
California appellate courts, which held, despite their acceptance of petitioner's contention that the arrest
warrant was invalid, that, since the arresting officers had procured the warrant "in good faith," and since, in
any event, they had had sufficient information to constitute probable cause for the arrest, the arrest was
lawful. The courts also held that the search was justified as incident to a valid arrest.
 Held: Assuming the arrest was valid, the warrantless search of petitioner's house cannot be constitutionally
justified as incident to that arrest.
i. An arresting officer may search the arrestee's person to discover and remove weapons and to seize
evidence to prevent its concealment or destruction, and may search the area "within the
immediate control" of the person arrested, meaning the area from which he might gain possession
of a weapon or destructible evidence.
ii. For the routine search of rooms other than that in which an arrest occurs, or for searching desk
drawers or other closed or concealed areas in that room itself, absent well recognized exceptions,
a search warrant is required.
iii. While the reasonableness of a search incident to arrest depends upon "the facts and circumstances
-- the total atmosphere of the case," those facts and circumstances must be viewed in the light of
established Fourth Amendment principles, and the only reasoned distinction is one between (1) a
search of the person arrested and the area within his reach, and (2) more extensive searches.
iv. The scope of the search here was unreasonable under the Fourth and Fourteenth Amendments,
as it went beyond petitioner's person and the area from within which he might have obtained a
weapon or something that could have been used as evidence against him, and there was no
constitutional justification, in the absence of a search warrant, for extending the search beyond that
area.

4. People vs. de la Cruz, G.R. 83988, April 18, 1990

5. People v. Kalubiran, 196 SCRA 645 (1991)
 Caught in buy-bust operation => warrantless arrest => frisking => search = valid
 Nestor Kalubiran was arrested in a "buy-bust" operation in which Pat. Leon Quindo acted as the buyer while
the other team members lay in wait to arrest Kalubiran at the pre-arranged signal. Quindo approached the
accused-appellant, who was with a group of friends in front of the Gamo Memorial Clinic, and asked if he
could "score," the jargon for buying marijuana. Kalubiran immediately produced two sticks of marijuana, for
which Quindo paid him a previously marked P5.00 bill. Quindo then gave the signal and Cpl. Levi Dorado

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NOTES TO CONSTITUTION 2
approached and arrested Kalubiran. Dorado frisked the accused-appellant. He recovered the marked
money and found 17 more sticks of marijuana on Kalubiran's person.
 Kalubiran was arrested in flagrante delicto as a result of the entrapment and so came under Section 5, Rule
113 of the Rules of Court, authorizing a warrantless arrest of any person actually committing a crime. The
search was made as an incident of a lawful arrest and so was also lawful under Section 12 of Rule 116. In
addition to the aforecited Rules, there is abundant jurisprudence justifying warrantless searches and
seizures under the conditions established in this case.

6. People v. Malmstedt, 198 SCRA 401 (1991)

 Routine inspection => probable cause (bulging of waistline) => warrantless arrest => extensive search =
valid search
 NARCOM received information that vehicles coming from Sagada were transporting marijuana and other
prohibited drugs, their Commanding Officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. The bus where Malmstedt was riding
was stopped. The NARCOM officers boarded the bus and announced that they were members of the
NARCOM and that they would conduct an inspection. The two (2) NARCOM officers started their inspection
from the front going towards the rear of the bus. Malmstedt who was the sole foreigner riding the bus was
seated at the rear thereof.
 During the inspection, the officers noticed a bulge on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for accused's passport and other identification papers.
When accused failed to comply, the officer required him to bring out whatever it was that was bulging on
his waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as
ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting
the officer to open one of the wrapped objects. The wrapped objects turned out to contain hashish, a
derivative of marijuana.
 Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each
bag and the officer noticed that there were bulges inside the same which did not feel like foam
stuffing. It was only after the officers had opened the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet
for further investigation. At the investigation room, the officers opened the teddy bears and they were
found to also contain hashish.
 The NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the
passengers therein, and no extensive search was initially made. It was only when one of the officers noticed
a bulge on the waist of accused, during the course of the inspection, that accused was required to present
his passport. The failure of accused to present his identification papers, when ordered to do so, only
managed to arouse the suspicion of the officer that accused was trying to hide his identity.
 Warrantless search of the personal effects of an accused has been declared by this Court as valid, because
of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the
accused, or where the accused was acting suspiciously, 11 and attempted to flee.

7. Espano v. Court of Appeals, 288 SCRA 558 (1998)

 Caught selling marijuana => frisking (yield marijuana) => arrested => extensive search in house (beyond
area of immediate control) = marijuana during frisking is valid; marijuana in the house is NOT valid.
 Narcotics Division went to Zamora and Pandacan Streets, Manila to confirm reports of drug pushing in
the area. They saw petitioner selling "something" to another person. After the alleged buyer left, they
approached petitioner, identified themselves as policemen, and frisked him. The search yielded two plastic
cellophane tea bags of marijuana. When asked if he had more marijuana, he replied that there was more
in his house. The policemen went to his residence where they found ten more cellophane tea bags of
marijuana. Petitioner was brought to the police headquarters where he was charged with possession of
prohibited drugs.
 Petitioner's arrest falls squarely under the aforecited rule. He was caught in flagranti as a result of a buy-
bust operation conducted by police officers on the basis of information received regarding the illegal trade
of drugs within the area of Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing
over something to an alleged buyer. After the buyer left, they searched him and discovered two cellophanes
of marijuana. His arrest was, therefore, lawful and the two cellophane bags of marijuana seized were
admissible in evidence, being the fruits of the crime.
 The articles seized from petitioner during his arrest were valid under the doctrine of search made incidental
to a lawful arrest. The warrantless search made in his house, however, which yielded ten cellophane bags
of marijuana became unlawful since the police officers were not armed with a search warrant at the time.
Moreover, it was beyond the reach and control of petitioner.
 As for the ten cellophane bags of marijuana found at petitioner's residence, however, the same
inadmissible in evidence. An exception to the said rule is a warrantless search incidental to a lawful arrest
for dangerous weapons or anything which may be used as proof of the commission of an offense. It may
extend beyond the person of the one arrested to include the premises or surroundings under his immediate
control. In this case, the ten cellophane bags of marijuana seized at petitioner's house after his arrest at
Pandacan and Zamora Streets do not fall under the said exceptions.
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8. People vs. Tangliben, 184 SCRA 220 (1990)
 Information tip => acting suspiciously (probable cause) => warrantless search => caught carrying in the
luggage with marijuana = valid search
 The patrolmen were conducted surveillance mission which was aimed not only against persons who may
commit misdemeanors at the said place but also on persons who may be engaging in the traffic of
dangerous drugs based on informations supplied by informers. An information was received that Tangliben
was carrying a marijuana. Around 9:30 in the evening that said Patrolmen noticed a person (Tangliben)
carrying a red traveling bag who was acting suspiciously and they confronted him; that the person was
requested by Patrolmen Quevedo and Punzalan to open the red traveling bag but the person refused, only
to accede later on when the patrolmen identified themselves; that found inside the bag were marijuana
leaves wrapped in a plastic wrapper and weighing one kilo, more or less.
 Tangliben was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case
therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest and is
consequently valid.
 In contrast, the case before us presented urgency. Although the trial court's decision did not mention it, the
transcript of stenographic notes reveals that there was an informer who pointed to the accused-appellant
as carrying marijuana. Faced with such on-the-spot information, the police officers had to act quickly. There
was not enough time to secure a search warrant. We cannot therefore apply the ruling in Aminnudin to the
case at bar (which the PC had at least 2 days to secure the search warrant). To require search warrants
during on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors,
smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to contain
the crimes with which these persons are associated.

9. People v. Che Chun Ting, 328 SCRA 592 (2000)

 Buy-bust operation (outside of apartment) => search inside the apartment = invalid search as beyond the
permissible area of control.
 Upon arriving at the Roxas Seafront Garden, Mabel honked twice and went to Unit 122. The two (2)
NARCOM agents, who waited inside the car parked two (2) meters away, saw the door of the unit open as
a man WENT OUT to hand Mabel a transparent plastic bag containing a white crystalline substance.
The NARCOM agents immediately alighted and arrested the surprised man who was positively identified
by Mabel as Che Chun Ting. Then the agents radioed their superiors in the other car and coordinated with
the security guard on duty at the Roxas Seafront Garden to make a search of Unit 122. During the search
SPO3 Campanilla seized a black bag with several plastic bags containing a white crystalline substance in
an open cabinet at the second floor. The bag was examined in the presence of Major Garbo, the accused
himself, and his girlfriend Nimfa Ortiz. The accused together with the evidence was then brought to Camp
Crame where Forensic Chemist P/Sr. Inspector Julita T. de Villa after conducting laboratory tests found the
white crystalline substance to be positive for methylamphetamine hydrochloride or shabu.
 The accused was admittedly outside unit 122 and in the act of delivering to Mabel Cheung Mei Po a bag
of shabu when he was arrested by the NARCOM operatives. Moreover, it is borne by the records that Unit
122 was not even his residence but that of his girlfriend Nimfa Ortiz, and that he was merely a sojourner
therein. Hence, it can hardly be said that the inner portion of the house constituted a permissible area within
his reach or immediate control, to justify a warrantless search therein.
 The lawful arrest being the sole justification for the validity of the warrantless search under the exception,
the same must be limited to and circumscribed by the subject, time and place of the arrest.
 As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and
things that may be seized from him are limited to "dangerous weapons" or "anything which may be
used as proof of the commission of the offense."
 With respect to the time and place of the warrantless search, it must be contemporaneous with the
lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the
arrest or immediately thereafter and only at the place where the suspect was arrested, or the premises or
surroundings under his immediate control.

10. People vs. Estrella, G.R. Nos. 138539-40, January 21, 2003
 Warrant of arrest was served 70 meters away from the house and outside the house => search inside
different house = invalid search (beyond permissible area of control)
 Armed with a search warrant, SPO1 Buloron saw appellant sitting on a rocking chair located in a vacant lot
about 70 meters away from his house. The group introduced themselves as policemen and told them that
they were looking for Antonio Estella because they have a search warrant issued against him. Accused
identified himself to them. They showed appellant the search warrant and explained the contents to him.
SPO1 Buloron asked appellant if indeed he had in his possession prohibited drug and if so, to surrender
the same so he would deserve a lesser penalty. After being served the search warrant, Estrella
remained outside the hut and did nothing. The police officers had gone inside the hut (owned by
his brother Nanding Estrella) to conduct the search, appellant remained seated on a rocking chair
outside. While inside the hut, the police recovered two cans containing dried marijuana fruiting tops. One
can contained twenty (20) bricks of fruiting tops. The team searched the hut in the presence of appellant
and his live-in partner. They found a plastic container under the kitchen table, which contained four
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(4) big bricks of dried marijuana leaves and a .38 caliber revolver with four live ammunitions. The
team seized the prohibited drug, the revolver and ammunitions.
 The police authorities cannot claim that the search was incident to a lawful arrest. Such a search
presupposes a lawful or valid arrest and can only be invoked through Section 5, Rule 113 of the Revised
Rules on Criminal Procedure. Never was it proven that appellant, who was the person to be arrested, was
in possession of the subject prohibited drug during the search. It follows, therefore, that there was no way
of knowing if he had committed or was actually committing an offense in the presence of the arresting
officers. Without that knowledge, there could have been no search incident to a lawful arrest.
 Assuming arguendo that appellant was indeed committing an offense in the presence of the arresting
officers, and that the arrest without a warrant was lawful, it still cannot be said that the search conducted
was within the confines of the law. However, the scope of the search should be limited to the area
within which the person to be arrested can reach for a weapon or for evidence that he or she can
destroy. The prevailing rule is that the arresting officer may take from the arrested individual any money or
property found upon the latter's person — that which was used in the commission of the crime or was the
fruit of the crime, or which may provide the prisoner with the means of committing violence or escaping, or
which may be used in evidence in the trial of the case.
 In the case, searched was the entire hut, which cannot be said to have been within appellant's immediate
control. Thus, the search exceeded the bounds of that which may be considered to be incident to a lawful
arrest.

11. People vs. Libnao, et al., G.R. No. 136860, January 20, 2003
 Informant tip => uneasy behavior => search = valid search
 Based on informant tip, police officers flagged down a passing tricycle. It had two female passengers
seated inside, who were later identified as the appellant Agpanga Libnao and her co-accused Rosita
Nunga. In front of them was a black bag. Suspicious of the black bag and the two's uneasy behavior when
asked about its ownership and content. Found inside it were eight bricks of leaves sealed in plastic bags
and covered with newspaper. The leaves were confirmed to be marijuana.
 The warrantless search in the case at bench is not bereft of a probable cause. The Tarlac Police Intelligence
Division had been conducting surveillance operation for three months in the area. The surveillance yielded
the information that once a month, appellant and her co-accused Rosita Nunga transport drugs in big bulks.
At 10:00 pm of October 19, 1996, the police received a tip that the two will be transporting drugs that night
riding a tricycle. Surely, the two were intercepted three hours later, riding a tricycle and carrying a
suspicious-looking black bag, which possibly contained the drugs in bulk. When they were asked who
owned it and what its content was, both became uneasy. Under these circumstances, the warrantless
search and seizure of appellant's bag was not illegal.
 When a vehicle is stopped and subjected to an extensive search, such would be constitutionally
permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of
circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or
object which by law is subject to seizure and destruction. In earlier decisions, we held that there was
probable cause in the following instances:
i. where the distinctive odor of marijuana emanated from the plastic bag carried by the accused
(People v. Claudio)
ii. where an informer positively identified the accused who was observed to be acting suspiciously
(People v. Tangliben)
iii. where the accused who were riding a jeepney were stopped and searched by policemen who had
earlier received confidential reports that said accused would transport a quantity of marijuana
(People v. Maspil)
iv. where Narcom agents had received information that a Caucasian coming from Sagada, Mountain
Province had in his possession prohibited drugs and when the Narcom agents confronted the
accused Caucasian because of a conspicuous bulge in his waistline, he failed to present his
passport and other identification papers when requested to do so (People v. Malmstedt)
v. where the moving vehicle was stopped and searched on the basis of intelligence information and
clandestine reports by a deep penetration agent or spy — one who participated in the drug
smuggling activities of the syndicate to which the accused belong — that said accused were
bringing prohibited drugs into the country (People v. Lo Ho Wing)
vi. where the arresting officers had received a confidential information that the accused, whose identity
as a drug distributor was established in a previous test-buy operation, would be boarding MV Dona
Virginia and probably carrying shabu with him (People v. Saycon)
vii. where police officers received an information that the accused, who was carrying a suspicious-
looking gray luggage bag, would transport marijuana in a bag to Manila (People v. Balingan)
viii. where the appearance of the accused and the color of the bag he was carrying fitted the description
given by a civilian asset (People v. Valdez)

12. PP vs. Nuevas, GR No. 170233, February 22, 2007

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NOTES TO CONSTITUTION 2
 Informant tip => walking male => search plastic bag => marijuana was wrapped in blue cloth = invalid
search, not inflagrante, not in plain view.
 Police officers had received information that a certain male person, more or less 5'4" in height, 25 to 30
years old, with a tattoo mark on the upper right hand, and usually wearing a sando and maong pants, would
make a delivery of marijuana dried leaves. While stationed thereat, they saw a male person who fit the
description, carrying a plastic bag, later identified as Nuevas, alight from a motor vehicle. They
accosted Nuevas and informed him that they are police officers. Fami asked Nuevas where he was going.
Later on, Nuevas voluntarily pointed to the police officers a plastic bag which, when opened, contained
marijuana dried leaves and bricks wrapped in a blue cloth. Shortly, in his bid to escape charges,
Nuevas disclosed where the two (2) other male persons would make the delivery of marijuana weighing
more or less five (5) kilos.
 First, the Court holds that the searches and seizures conducted do not fall under the first exception,
warrantless searches incidental to lawful arrests. A search incidental to a lawful arrest is sanctioned by
the Rules of Court. Recent jurisprudence holds that the arrest must precede the search; the process cannot
be reversed as in this case where the search preceded the arrest. Nevertheless, a search substantially
contemporaneous with an arrest can precede the arrest if the police have probable cause to make the
arrest at the outset of the search. In this case, Nuevas, Din and Inocencio were not committing a crime in
the presence of the police officers. Moreover, police officers Fami and Cabling did not have personal
knowledge of the facts indicating that the persons to be arrested had committed an offense. The searches
conducted on the plastic bag then cannot be said to be merely incidental to a lawful arrest. Reliable
information alone is not sufficient to justify a warrantless arrest under Section 5 (a),Rule 113. 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."
 Secondly, neither could the searches be justified under the plain view doctrine. An object is in plain
view if it is plainly exposed to sight. Where the object seized was inside a closed package, the object itself
is not in plain view and therefore cannot be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to an
observer, then the contents are in plain view and may be seized. In other words, if the package is such that
an experienced observer could infer from its appearance that it contains the prohibited article, then the
article is deemed in plain view. It must be immediately apparent to the police that the items that they observe
may be evidence of a crime, contraband or otherwise subject to seizure. Records show that the dried
marijuana leaves were inside the plastic bags that Nuevas and Din were carrying and were not readily
apparent or transparent to the police officers. In Nuevas's case, the dried marijuana leaves found inside
the plastic bag were wrapped inside a blue cloth. In Din's case, the marijuana found upon inspection of the
plastic bag was "packed in newspaper and wrapped therein." It cannot be therefore said the items were in
plain view which could have justified mere seizure of the articles without further search.

13. PP vs. Sucro, 195 SCRA 388

 Inflagrante => search = valid seizure
 The fact that Macabante, when intercepted by the police, was caught throwing the marijuana stick and
when confronted, readily admitted that he bought the same from Sucro clearly indicates that Sucro
had just sold the marijuana stick to Macabante, and therefore, had just committed an illegal act of which
the police officers had personal knowledge, being members of the team which monitored Sucro's nefarious
activity. The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that
police officers have personal knowledge of the actual commission of the crime when it had earlier
conducted surveillance activities of the accused.

14. PP vs. Hindoy, May 10, 2002

 Buy-bust operation => search => marijuana in plain view = valid seizure
 In the case at bar, upon consummation of the illicit sale, PO3 Eugenio introduced himself and SPO1 Cariaga
as police officers. ENRIQUE and BELLA were apprised of their constitutional rights. Thereafter, the officers
searched the room where BELLA supposedly got the first block of marijuana. There, they found an abaca
bag under a folding table. Upon inspection, the bag yielded twelve more blocks of compressed marijuana
inside a plastic bag.The trial court, therefore, was correct in admitting all thirteen blocks of marijuana in
evidence.
 Likewise, the trial court did not err when it convicted ENRIQUE and BELLA of illegal possession of
prohibited drugs punishable under Section 8 of R.A. No. 6425, as amended. In People v. Lacerna,
possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in
possession of another quantity of the prohibited drugs not covered by or included in the sale and which are
probably intended for some future dealings or use by the seller.
 The records, indeed, reveal that aside from selling one block of marijuana to the arresting officers, accused-
appellants were also caught in possession of another 12.04 kilograms of marijuana in twelve individually
wrapped blocks, hidden in a bag under a table in their house. Their possession thereof gives rise to a
disputable presumption under Section 3[j], Rule 131 of the Rules of Court, that they were the owners of the
same.

15. PP vs. Tiu Won Chua, 405 SCRA 280

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NOTES TO CONSTITUTION 2
 Search warrant describing apartment => search inside apartment => search vehicle = seizure of item in
vehicle is not valid.
 During the enforcement of the warrant, there were three (3) persons inside the apartment, namely,
appellants Tiu Won and Qui Yaling, and a housemaid. The search was conducted on the sala and in the
three (3) bedrooms of Unit 4-B. On top of a table inside the master's bedroom, one (1) big pack, containing
234.5 grams of shabu, was found inside a black leather man's handbag supposedly owned by Tiu Won,
while sixteen (16) small packs of shabu weighing 20.3673 grams were found inside a lady's handbag
allegedly owned by Qui Yaling. Also contained in the inventory were the following items: an improvised
tooter, a weighing scale, an improvised burner and one rolled tissue paper. The authorities also searched
a Honda Civic car bearing Plate No. WCP 157, parked along Masangkay Street, registered in the name of
the wife of Tiu Won and found four (4) plastic bags containing 6.2243 grams of shabu, which were likewise
confiscated. A gun in the possession of Tiu Won was also seized and made subject of a separate criminal
case.
 As regards the propriety of the search warrant issued in the name of Timothy Tiu, which did not include
appellant Qui Yaling, appellants contend that because of this defect, the search conducted and
consequently, the arrest, are illegal. Being fruits of an illegal search, the evidence presented cannot serve
as basis for their conviction.
 We beg to disagree. There are only four requisites for a valid warrant, i.e,: (1) it must be issued upon
"probable cause"; (2) probable cause must be determined personally by the judge; (3) such judge must
examine under oath or affirmation the complainant and the witnesses he may produce; and (4) the warrant
must particularly describe the place to be searched and the persons or things to be seized. As correctly
argued by the Solicitor General, a mistake in the name of the person to be searched does not invalidate
the warrant, especially since in this case, the authorities had personal knowledge of the drug-related
activities of the accused. In fact, a "John Doe" warrant satisfies the requirements so long as it contains
a descriptio personae such as will enable the officer to identify the accused. We have also held that a
mistake in the identification of the owner of the place does not invalidate the warrant provided the place to
be searched is properly described. Thus, even if the search warrant used by the police authorities did not
contain the correct name of Tiu Won or the name of Qui Yaling, that defect did not invalidate it because the
place to be searched was described properly. Besides, the authorities conducted surveillance and a test-
buy operation before obtaining the search warrant and subsequently implementing it. They can therefore
be presumed to have personal knowledge of the identity of the persons and the place to be searched
although they may not have specifically known the names of the accused. Armed with the warrant, a valid
search of Unit 4-B was conducted.
 We affirm, however, the illegality of the search conducted on the car, on the ground that it was not part of
the description of the place to be searched mentioned in the warrant. It is mandatory that for the search to
be valid, it must be directed at the place particularly described in the warrant. Moreover, the search of the
car was not incidental to a lawful arrest. To be valid, such warrantless search must be limited to that point
within the reach or control of the person arrested, or that which may furnish him with the means of
committing violence or of escaping. In this case, appellants were arrested inside the apartment, whereas
the car was parked a few meters away from the building.

o Plain view doctrine

1. People v. Musa, 217 SCRA 597 (1993)
a. Mari Musa was arrested during the buy-bust operation. Sgt. Belarga frisked Mari Musa but could not find
the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he told the
NARCOM team he has given the money to his wife (who had slipped away). The NARCOM search room
to room to find the wife. Sgt. Belarga also found a plastic bag containing dried marijuana inside it
somewhere in the kitchen. Whether the marijuana inside the plastic bag was in “plain view”?
b. No. The marijuana inside the plastic bag was NOT in “plain view”. The plastic bag was not within their "plain
view" when they arrested the appellant as to justify its seizure. The NARCOM agents had to move from
one portion of the house to another before they sighted the plastic bag. Moreover, when the NARCOM
agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to its contents. They
had to ask the appellant what the bag contained. When the appellant refused to respond, they opened it
and found the marijuana.

2. Manalili v. CA, 280 SCRA 400

a. The policemen observed a man who have reddish eyes and to be walking in a swaying manner. When
this male person tried to avoid the policemen, the latter approached him and introduced themselves as
police officers. The policemen then asked the male person what he was holding in his hands. The male
person tried to resist. Pat. Romeo Espiritu asked the male person if he could see what said male person
had in his hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same.
Pat. Espiritu took the wallet and examined it. He found suspected crushed marijuana residue inside.
Whether the marijuana was validly seized?
b. Yes. The marijuana residue was validly seized under a “stop-and-frisk”. In the case at hand, Patrolman
Espiritu and his companions observed during their surveillance that appellant had red eyes and was
wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a
popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the
Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were "high."

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NOTES TO CONSTITUTION 2
The policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high
on drugs. During such investigation, they found marijuana in petitioner's possession.

3. Padilla v. CA, 269 SCRA 402 (1997)

a. Padilla was apprehended after a hit-and-run incident. He was wearing a short leather jacket so when both
his hands were raised, a gun tucked on the left side of his waist was seen which was opted to be confiscated
by police officer but Padilla alleged that the gun was covered by legal papers. Padilla’s gesture exposed a
long magazine of an armalite rifle tucked in his back right pocket prompting them to check if there may be
rifle inside the vehicle which upon checking a baby armalite rifle lying horizontally at the front by the driver's
seat. Whether the firearms and ammunitions can be validly seized after the hit-and-run incident?
b. Yes. The firearms and ammunitions were products of an active search done by the authorities on the person
and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a
search incidental to a lawful arrest (first instance). The authorities stumbled upon petitioner s firearms
and ammunitions without even undertaking any active search which, as it is commonly understood, is
a prying into hidden places for that which is concealed. The seizure of the Smith & Wesson revolver and
an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently
discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he
raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-
16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the
Pajero and saw said rifle lying horizontally near the driver's seat.

4. People v. Valdez, G.R. No. 129296, September 25, 2000

a. The police team, accompanied by their informer, left for the site where the marijuana plants were allegedly
being grown. They were not able to secure a search warrant. After a three-hour, uphill trek from the nearest
barangay road, the police operatives arrived at the place pinpointed by their informant. The police found
appellant alone in his nipa hut. They, then, proceeded to look around the area where appellant had his
kaingin and saw seven (7) five-foot high, flowering marijuana plants in two rows, approximately 25 meters
from appellant's hut. PO2 Balut asked appellant who owned the prohibited plants and, according to Balut,
the latter admitted that they were his. The police uprooted the seven marijuana plants, which weighed
2.194 kilograms. Whether marijuana plants are in “plain view”?
b. No. The marijuana plants are not in “plain view”. They police had no search warrant and they had to look
around to find the marijuana plant. Certainly, they are not in “plain view”.
c. In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before appellant
was arrested without a warrant. Hence, there was no valid warrantless arrest which preceded the search
of appellant's premises. Note further that the police team was dispatched to appellant's kaingin precisely to
search for and uproot the prohibited flora. The seizure of evidence in "plain view" applies only where the
police officer is not searching for evidence against the accused, but inadvertently comes across an
incriminating object. Clearly, their discovery of the cannabis plants was not inadvertent. We also note the
testimony of SPO2 Tipay that upon arriving at the area, they first had to "look around the area" before they
could spot the illegal plants. Patently, the seized marijuana plants were not "immediately apparent" and a
"further search" was needed. In sum, the marijuana plants in question were not in "plain view" or "open to
eye and hand." The "plain view" doctrine, thus, cannot be made to apply.
d. For the doctrine to apply, the following elements must be present:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in
the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who have the right to be where they are; and
(c) the evidence must be immediately apparent; and
(d) plain view justified mere seizure of evidence without further search.

5. Arizona v. Hicks, 480 U.S. 321 [1987]}

a. A bullet fired through the floor of respondent's apartment injured a man on the floor below. Police entered
the apartment to search for the shooter, for other victims, and for weapons, and there seized three weapons
and discovered a stocking-cap mask. While there, one of the policemen noticed two sets of expensive
stereo components and, suspecting that they were stolen, read and recorded their serial numbers -- moving
some of them, including a turntable, to do so -- and phoned in the numbers to headquarters. Upon learning
that the turntable had been taken in an armed robbery, he seized it immediately.
b. The "plain view" doctrine does not render the search "reasonable" under the Fourth Amendment. The
moving of the equipment was a "search" separate and apart from the search that was the lawful objective
of entering the apartment. The fact that the search uncovered nothing of great personal value to
respondent is irrelevant.

6. People v. Compacion, G.R. No. 124442, July 20, 2001

c. Acting from an informant and based on surveillance conducted, the team applied for a search warrant
were not able to secure one. Nonetheless, the team proceeded to barangay Bagonbon and arrived at the
residence of accused-appellant in the early morning of July 13, 1995. SPO4 Villamor knocked at the gate
and called out for the accused-appellant. The team opened the gate and go inside. The team asked the

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NOTES TO CONSTITUTION 2
accused-appellant about the suspected marijuana plants and he admitted that he planted and cultivated
the same for the use of his wife who was suffering from migraine. The operatives then uprooted the
suspected 2 marijuana plants. NARCOM conducted an initial field test of the plants by using the Narcotics
Drug Identification Kit. The test yielded a positive result. Whether the 2 marijuana plants were in “plain view”
to justify seizure?
d. NO. The marijuana plants were not in “plain view”. As a general rule, objects in the "plain view" of an officer
who has the right to be in the position to have that view are subject to seizure without a warrant. It is usually
applied where a police officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. Thus, the following elements must be present before
the doctrine may be applied: (a) a prior valid intention based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered
by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and
(d) "plain view" justified were seizure of evidence without further search.

7. People v. Huang Zhen Hua, G.R. 139301, September 29, 2004

a. It cannot be denied that the cards, passbook, passport and other documents and papers seen by the
policemen have an intimate nexus with the crime charged or, at the very least, incriminating. The passport
of the appellant would show when and how often she had been in and out of the country. Her credit cards
and bank book would indicate how much money she had amassed while in the country and how she
acquired or earned the same. The pictures and those of the other persons shown therein are relevant to
show her relationship to Lao and Chan.

8. PP vs. Sarap, GR No. 132165, March 26, 2003

a. Guarino saw a woman, who turned out to be accused-appellant Melly Sarap, walking in the alley near the
house. Accused-appellant saw Guarino and Navida in police uniform and immediately threw away her black
canvass bag, which her companion Roger Amar picked up. Guarino blocked Sarap's path and grabbed
from her the green plastic bag she was holding. Upon inspection, the plastic bag was found to contain
two blocks of marijuana fruiting tops.
b. Sarap cannot be said to be committing a crime. Neither was she about to commit one nor had she just
committed a crime. She was merely walking in the alley near the house of Conrado Ricaforte. It was only
when Janet Iguiz led Sarap downstairs and identified her as Melly that she was singled out as the suspect.
Guarino would not have apprehended Sarap were it not for Janet Iguiz's identification. Moreover, the
evidence on record clearly illustrated that it was only after Janet Iguiz pointed to Sarap as Melly that Guarino
suspected that the bag she was holding contained marijuana. The Banga Police could not effect a
warrantless search and seizure since there was no probable cause and Sarap was not lawfully arrested.
The law requires that the search must be incidental to a lawful arrest in order that the search itself may
likewise be considered legal.

9. PP Vs. Salanguit, GR No. 133254-55, April 19, 2001

a. Under the "plain view doctrine," unlawful objects within the "plain view" of an officer who has the right to be
in the position to have that view are subject to seizure and may be presented in evidence. For this doctrine
to apply, there must be: (a) prior justification; (b) inadvertent discovery of the evidence; and (c) immediate
apparent illegality of the evidence before the police.
b. The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their seizure.
The police failed to allege in this case the time when the marijuana was found, i.e., whether prior to, or
contemporaneous with, the shabu subject of the warrant, or whether it was recovered on accused-
appellant's person or in an area within his immediate control. Its recovery, therefore, presumably during the
search conducted after the shabu had been recovered from the cabinet, as attested to by SPO1 Badua in
his deposition, was invalid. However, the confiscation of the drug must be upheld.

10. United Laboratories vs. Isip, GR No. 163858, June 28, 2005
a. It must be stressed that only the NBI agent/agents who enforced the warrant had personal knowledge
whether the sealed boxes and their contents thereof were incriminating and that they were immediately
apparent. There is even no showing that the NBI agents knew the contents of the sealed boxes before they
were opened.

11. PP vs. Go, 411 SCRA 81

a. The illegal character of said dry seals and stamp pads cannot be said to have been immediately apparent.
For SPO1 Fernandez had to first make an impression of the dry seal on paper before he could determine
that it purported to be the seal of the Bureau of Immigration and Deportation. The counterfeit nature of the
seals and stamps was in fact not established until after they had been turned over to the Chinese embassy
and Bureau of Immigration and Deportation for verification. It is, therefore, incredible that SPO1 Fernandez
could make such determination from a "plain view" of the items from his vantage point in the sala.

12. Del Rosario vs. People, May 31, 2002

a. In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a
meticulous search in the kitchen of petitioner's house. This firearm, to emphasize, was not mentioned in
the search warrant. Thus, the seizure is illegal.

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NOTES TO CONSTITUTION 2
o Enforcement of fishing, customs and immigration laws
1. Roldan vs. Area, 65 SCRA 320 (1975)
a. The Court held that while Circulars Nos. 44 and 45 do not expressly so provide, the forfeiture of goods
imported in violation thereof may nevertheless be justified on the basis of Section 1363 (f) of the
Administrative Code (Sec. 2530 [f] of Tariff and Customs Code), which authorizes the forfeiture of "any
merchandise of prohibited importation or exportation, the importation or exportation of which is effected or
attempted "contrary to law."

2. People v. Gatward, 267 SCRA 785 (1997)

a. Whether the luggage subjected to x-ray examination by NAIA custom police that yield heroin are
admissible?
b. Yes. The heroin retrieved from the bag of appellant are admissible in evidence. While no search warrant
had been obtained for that purpose, when appellant checked in his bag as his personal luggage as a
passenger of KLM Flight No. 806 he thereby agreed to the inspection thereof in accordance with customs
rules and regulations, an international practice of strict observance, and waived any objection to a
warrantless search. His subsequent arrest, although likewise without a warrant, was justified since it was
effected upon the discovery and recovery of the heroin in his bag, or in flagrante delicto.

3. People v. Johnson, G.R. No. 138881, December 18, 2000

a. During the frisking at the airport, a hard object was felt in the abdomen of the passenger. Later, it was
discovered to be shabu. Can it be admission as evidence?
b. Yes. The shabu seized from her during the routine frisk at the airport was acquired legitimately pursuant
to airport security procedures. The packs of methamphetamine hydrochloride having thus been obtained
through a valid warrantless search, they are admissible in evidence against the accused-appellant herein.
Corollarily, her subsequent arrest, although likewise without warrant, was justified since it was effected
upon the discovery and recovery of "shabu" in her person in flagrante delicto.

4. People vs. Suzuki, G.R. No. 120670, October 23, 2003

a. Appellant was found guilty of illegal possession of marijuana. As established, appellant was at the Bacolod
Airport Terminal carrying a box which activated the detector machine at the pre departure area. When
inspected, the box revealed 18 small packs of dried marijuana fruiting tops.
b. While appellant invoked his constitutional right against unreasonable search and seizure, the Court ruled
that the search conducted by the Police Aviation Security Command (PASCOM) was reasonable. The
authority of PASCOM to open packages was provided under Section 8 of RA No. 6235 and the search
conducted pursuant to routine airport security procedure was held an exception to the proscription against
warrantless searches. The Court noted that appellant voluntarily gave his consent to the search and thus,
when several marijuana fruiting tops were found in the box, appellant was deemed caught in flagrante
delicto, justifying his arrest without a warrant. The packs of marijuana obtained in the course of such valid
search are admissible as evidence against appellant.

o "Stop and frisk"

1. Terry vs. Ohio, 392 US 1 (1968)
a. Suspecting the two men of "casing a job, a stick-up," the officer followed them and saw them rejoin the third
man a couple of blocks away in front of a store. The officer approached the three, identified himself as a
policeman, and asked their names. The men "mumbled something," whereupon McFadden spun petitioner
around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a
pistol. The officer ordered the three into the store. He removed petitioner's overcoat, took out a revolver,
and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton
and Katz and seized a revolver from Chilton's outside overcoat pocket. He did not put his hands under the
outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or
under petitioner's or Chilton's outer garments until he felt the guns. The three were taken to the police
station. Petitioner and Chilton were charged with carrying concealed weapons. The defense moved to
suppress the weapons.
b. Under the Fourth Amendment of the U.S. Constitution, a police officer may stop a suspect on the street and
frisk him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the
person has committed, is committing, or is about to commit a crime and has a reasonable belief that the
person "may be armed and presently dangerous."
c. The officer's protective seizure of petitioner and his companions and the limited search which he made
were reasonable, both at their inception and as conducted. (a) The actions of petitioner and his companions
were consistent with the officer's hypothesis that they were contemplating a daylight robbery and were
armed. (b) The officer's search was confined to what was minimally necessary to determine whether the
men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others
nearby, was confined to ascertaining the presence of weapons.

2. People v. Solayao, 262 SCRA 255 (1996)

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NOTES TO CONSTITUTION 2
a. The police became suspicious when they observed that the appellant were drunk and was wearing a
camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the government agents,
fled. Police Officer Niño told accused-appellant not to run away and introduced himself as "PC," after which
he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long
homemade firearm locally known as "latong."
b. The case at bar constitutes an instance where a search and seizure may be effected without first making
an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions fled
upon seeing the government agents. Under the circumstances, the government agents could not possibly
have procured a search warrant first.Thus, there was no violation of the constitutional guarantee against
unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted
the homemade firearm as evidence.

3. Manalili v. Court of Appeals, G.R. No. 113447, October 7, 1997

a. The male person was observed to have reddish eyes and to be walking in a swaying manner. When this
male person tried to avoid the policemen, the latter approached him and introduced themselves as police
officers. The policemen then asked the male person what he was holding in his hands. The male person
tried to resist. Pat. Romeo Espiritu asked the male person if he could see what said male person had in his
hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu
took the wallet and examined it. He found suspected crushed marijuana residue inside. He kept the wallet
and its marijuana contents. Whether the marijuana was validly seized?
b. Yes. The marijuana residue was validly seized under a “stop-and-frisk”. In the case at hand, Patrolman
Espiritu and his companions observed during their surveillance that appellant had red eyes and was
wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a
popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the
Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were "high." The
policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs.
During such investigation, they found marijuana in petitioner's possession.

4. Malacat v. Court of Appeals, 283 SCRA 159 (1997)

a. These men were acting suspiciously with "[t]their eyes . . . moving very fast." Petitioner and Casan were
merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. They were not
creating a commotion. Since they were supposedly acting suspiciously, Yu and his companions approached
them, who then fled in different directions. As the policemen gave chase, Yu caught up with and
apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside
petitioner's "front waist line." Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan
from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station
No. 3 where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander.
Whether the fragmentation grenade tucked inside petitioners’ front waist line be validly seized when the
petitioner were merely standing with their eyes moving very fast?
b. No. Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in
light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on
the part of petitioner, indicating that a crime had just been committed, was being committed or was going
to be committed. There was nothing in petitioner's behavior or conduct which could have reasonably elicited
even mere suspicion other than that his eyes were "moving very fast" — an observation which leaves us
incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus
presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating
any commotion or trouble. there was at all no ground, probable or otherwise, to believe that petitioner was
armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was
"discovered" "inside the front waistline" of petitioner, and from all indications as to the distance between Yu
and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have
been visible to Yu.
c. A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as
one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.
d. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of
moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; (5) a search incidental to a
lawful arrest; and (6) a "stop and frisk."
e. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental
search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest
was merely used as a pretext for conducting a search. In this instance, the law requires that there first be
a lawful arrest before a search can be made — the process cannot be reversed. At bottom, assuming a
valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter
may reach for a weapon or for evidence to destroy, and seize any money or property found which was used
in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which
might furnish the arrestee with the means of escaping or committing violence.
f. Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," it
nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason
must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold
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NOTES TO CONSTITUTION 2
interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition
that a police officer may, under appropriate circumstances and in an appropriate manner, approach a
person for purposes of investigating possible criminal behavior even without probable cause; and (2) the
more pressing interest of safety and self-preservation which permit the police officer to take steps to assure
himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly
and fatally be used against the police officer.

5. Florida v. J.L., 98-1993, March 28, 2000

a. After an anonymous caller reported to the Miami-Dade Police that a young black male standing at a
particular bus stop and wearing a plaid shirt was carrying a gun, officers went to the bus stop and saw three
black males, one of whom, respondent J. L., was wearing a plaid shirt. Apart from the tip, the officers had
no reason to suspect any of the three of illegal conduct. The officers did not see a firearm or observe any
unusual movements. One of the officers frisked J. L. and seized a gun from his pocket.
b. Held: An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police
officer's stop and frisk of that person. An officer, for the protection of himself and others, may conduct a
carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct
where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be
afoot and that the persons in question may be armed and presently dangerous. Terry v. Ohio, 392 U. S. 1,
30. Here, the officers' suspicion that J. L. was carrying a weapon arose not from their own observations but
solely from a call made from an unknown location by an unknown caller. The tip lacked sufficient indicia of
reliability to provide reasonable suspicion to make a Terry stop: It provided no predictive information and
therefore left the police without means to test the informant's knowledge or credibility.

o Search of moving vehicles

1. Papa vs. Mago, 22 SCRA 857 (1968)
a. Where from the record, the duties, taxes and other charges on the imported articles have not been paid in
full, such articles are subject to forfeiture under Section 2530 pars. e and m, (1), (4) and (5) of the Tariff
and Customs Code; for well settled is the rule that merchandise imported contrary to law is subject to
forfeiture and goods released contrary to law are likewise subject to seizure and forfeiture.
b. The Tariff and Customs Code does not require a search warrant for purposes of enforcing customs and
tariff laws. Under Sec. 2203 thereof, persons having police authority may enter, pass through or search any
land, enclosure, warehouse, store or building not being a dwelling house and also, to inspect, search and
examine any vehicle or aircraft and any trunk, package, box or envelope or any person on board or stop
and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search
warrant in said cases. Except in the search of a dwelling house, therefore, persons exercising police
authority under the customs law may effect search and seizure without search warrant in the enforcement
of customs laws.

2. People vs. CFI of Rizal, 101 SCRA 86 (1980)

c. Searches and seizures without warrant are valid if made upon probable cause, that is, upon a belief
reasonably arising, out of circumstances known to the seizing officer, that an automobile or other vehicle
contains that which by law is subject to seizure and destruction.

3. Salvador v. People, G.R. No. 146706, July 15, 2005

a. PAF surveillance conducted routine surveillance operation to check on reports of alleged drug trafficking
and smuggling facilitated by certain PAL personnel. PAL personnel were caught disembarking from A300
airplane with their abdominal areas bulging. They then boarded an airplane tow truck with its lights off. The
PAF surveillance team promptly boarded their vehicles and followed the aircraft tow truck. Sgt. Teves
approached Aurelio Mandin. He noticed that Mandin's uniform was partly open, showing a girdle. While
Sgt. Teves was reaching for the girdle, a package wrapped in brown packaging tape fell. The team
searched their bodies and found that the three were wearing girdles beneath their uniforms, all containing
packets wrapped in packaging tape. The packets yielded assorted watches and jewelries. Can the
assorted watches and jewelries be validly seized?
b. Yes. The articles were searched and seized through a valid custom search and search of moving vehicles
based from a reasonable suspicion from prior surveillance. The search made by the PAF team on petitioner
and his co-accused was in the nature of a customs search. As such, the team properly effected the search
and seizure without a search warrant since it exercised police authority under the customs law. Petitioner
and his co-accused were on board a moving PAL aircraft tow truck. As stated earlier, the search of a moving
vehicle is recognized in this jurisdiction as a valid exception to the requirement for a search warrant. Such
exception is easy to understand. A search warrant may readily be obtained when the search is made in a
store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search
is conducted in a mobile ship, aircraft or other motor vehicle since they can quickly be moved out of the
locality or jurisdiction where the warrant must be sought.

4. Whren v. United States, 95-5841, January 10, 1996

a. Plainclothes policemen patrolling a "high drug area" in an unmarked vehicle observed a truck driven by
petitioner Brown waiting at a stop sign at an intersection for an unusually long time; the truck then turned
suddenly, without signaling, and sped off at an "unreasonable" speed. The officers stopped the vehicle,
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NOTES TO CONSTITUTION 2
assertedly to warn the driver about traffic violations, and upon approaching the truck observed plastic bags
of crack cocaine in petitioner Whren's hands. Petitioners were arrested. Prior to trial on federal drug
charges, they moved for suppression of the evidence, arguing that the stop had not been justified by either
a reasonable suspicion or probable cause to believe petitioners were engaged in illegal drug-dealing
activity, and that the officers' traffic-violation ground for approaching the truck was pretextual.
b. The temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws
does not violate the Fourth Amendment's prohibition against unreasonable seizures, even if a reasonable
officer would not have stopped the motorist absent some additional law enforcement objective.

5. Bagalihog vs. Fernandez, 198 SCRA 615

a. On March 17, 1989, Rep. Moises Espinosa was shot to death shortly after disembarking at the Masbate
Airport. Witnesses said one of the gunmen fled on a motorcycle. Two days later, Capt. Julito Roxas and
his men from the Philippine Constabulary seized the petitioner's motorcycle and took it to the PC
headquarters in Masbate. They had no search warrant. The motorcycle was impounded on the suspicion
that it was one of the vehicles used by the killers. Can it be validly seized?
b. No. It is true that property held as evidence in a criminal case cannot be replevied. But the rule applies only
where the property is lawfully held, that is, seized in accordance with the rule against warrantless searches
and seizures or its accepted exceptions. Property subject of litigation is not by that fact alone in custodia
legis. As the Court said in Tamisin v. Odejar, "A thing is in custodia legis when it is shown that it has been
and is subjected to the official custody of a judicial executive officer in pursuance of his execution of a legal
writ." Only when property is lawfully taken by virtue of legal process is it considered in the custody of the
law, and not otherwise. At that, the vehicle in the case at bar is not admissible as an exhibit even if offered
as such because it is "the fruit of the poisonous tree." Under Article III, Sec. 3(2) "any evidence obtained in
violation" of the rule against unreasonable searches and seizure "shall be inadmissible for any purpose in
any proceeding."

o Emergency circumstances
1. People vs. De Gracia 233 SCRA 716 (1994)
a. It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a search
warrant at that time. The raid was actually precipitated by intelligence reports that said office was being
used as headquarters by the RAM. 16 Prior to the raid, there was a surveillance conducted on the premises
wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the
military operatives raided the place, the occupants thereof refused to open the door despite the requests
for them to do so, thereby compelling the former to break into the office. The Eurocar Sales Office is
obviously not a gun store and it is definitely not an armory or arsenal which are the usual depositories for
explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of
an unusual quantity of high-powered firearms and explosives could not be justifiably or even colorably
explained. In addition, there was general chaos and disorder at that time because of simultaneous and
intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by
rebel forces. The courts in the surrounding areas were obviously closed and, for that matter, the building
and houses therein were deserted.
b. Under the foregoing circumstances, it is out considered opinion that the instant case falls under one of the
exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking
into account the facts obtaining in this case, had reasonable ground to believe that a crime was being
committed. There was consequently more than sufficient probable cause to warrant their action.
Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure
a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the
raid was conducted, his court was closed. Under such urgency and exigency of the moment, a search
warrant could lawfully be dispensed with.

o Checkpoints
1. Gen. De Villa vs. Valmonte G.R. No. 83988, May 24, 1990
a. VISUAL SEARCH - Admittedly, the routine checkpoint stop does intrude, to a certain extent, on motorist's
right to "free passage without interruption", but it cannot be denied that, as a rule, it involves only a brief
detention of travellers during which the vehicle's occupants are required to answer a brief question or two.
For as long as the vehicle is neither searched nor its occupants subjected to a body search, and
the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded
as violative of an individual's right against unreasonable search.
b. EXTENSIVE SEARCH - As already stated, vehicles are generally allowed to pass these checkpoints after a
routine inspection and a few questions. If vehicles are stopped and extensively searched, it is because
of some probable cause which justifies a reasonable belief of the men at the checkpoints that either the
motorist is a law-offender or the contents of the vehicle are or have been instruments of some offense.

2. Aniag vs. Comelec, 237 SCRA 424 (1994)

a. Petitioner contends that the guns were not tucked in Arellano's waist nor placed within his reach, and that
they were neatly packed in gun cases and placed inside a bag at the back of the car.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
b. The checkpoint was set up twenty (20) meters from the entrance to the Batasan Complex to enforce
Resolution No. 2327. There was no evidence to show that the policemen were impelled to do so because
of a confidential report leading them to reasonably believe that certain motorists matching the description
furnished by their informant were engaged in gunrunning, transporting firearms or in organizing special
strike forces. Nor, as adverted to earlier, was there any indication from the package or behavior of Arellano
that could have triggered the suspicion of the policemen. Absent such justifying circumstances specifically
pointing to the culpability of petitioner and Arellano, the search could not be valid. The action then of the
policemen unreasonably intruded into petitioner's privacy and the security of his property, in violation of
Sec. 2, Art. III.
c. An extensive search without warrant could only be resorted to if the officers conducting the search had
REASONABLE OR PROBABLE CAUSE to believe before the search that either the motorist was a law offender
or that they would find the instrumentality or evidence pertaining to the commission of a crime in the vehicle
to be searched.

3. People v. Usana, 323 SCRA 754 (2000)

a. The Makati Police were manning a checkpoint for implementation of “Gun ban”. They were checking the
cars going to Pasay City, stopping those they found suspicious, and imposing merely a running stop on the
others. At about past midnight, they stopped a Kia Pride car. PO3 Suba saw a long firearm on the lap
of the person seated at the passenger seat. They asked the driver to open the door. PO3 Suba seized
the long firearm, an M-1 US Carbine. When Escaño, upon order of the police, parked along Sen. Gil Puyat
Ave., the other passengers were searched for more weapons. Their search yielded a .45 caliber firearm
which they seized from Escaño. The three passengers were thereafter brought to the police station Block
5 in the Kia Pride driven by PO3 Nonato. Since SPO4 de los Santos was suspicious of the vehicle, he
requested Escaño to open the trunk. Escaño readily agreed and opened the trunk himself using his key.
They noticed a blue bag inside it, which they asked Escaño to open. The bag contained a parcel
wrapped in tape, which, was found positive for hashish weighing 3.3143 kilograms.
b. The facts adduced do not constitute a ground for a violation of the constitutional rights of the accused
against illegal search and seizure. PO3 Suba admitted that they were merely stopping cars they deemed
suspicious, such as those whose windows are heavily tinted just to see if the passengers thereof were
carrying guns. At best they would merely direct their flashlights inside the cars they would stop, without
opening the car's doors or subjecting its passengers to a body search. There is nothing discriminatory in
this as this is what the situation demands.

4. People v. Vinecario, G.R. No. 141137, January 20, 2004

a. In light then of appellants' speeding away after noticing the checkpoint and even after having been
flagged down by police officers, their suspicious and nervous gestures when interrogated on the
contents of the backpack which they passed to one another, and the reply of Vinecario, when asked
why he and his co-appellants sped away from the checkpoint, that he was a member of the Philippine Army,
apparently in an attempt to dissuade the policemen from proceeding with their inspection, there existed
probable cause to justify a reasonable belief on the part of the law enforcers that appellants were offenders
of the law or that the contents of the backpack were instruments of some offense.
b. “Warrantless search of the personal effects of an accused has been declared by this Court as valid, because
of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the
accused, or where the accused was acting suspiciously, and attempted to flee.”

o Inspection of buildings
1. Camara vs. Municipal Court, 387 U. S. 523 (1967)
a. Appellant was charged with violating the San Francisco Housing Code for refusing, after three efforts by
city housing inspectors to secure his consent, to allow a warrantless inspection of the ground-floor quarters
which he leased and residential use of which allegedly violated the apartment building's occupancy permit.
b. The Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code
enforcement inspection of his personal residence. Search warrants which are required in nonemergency
situations should normally be sought only after entry is refused. In the nonemergency situation here,
appellant had a right to insist that the inspectors obtain a search warrant.

o Warrantless arrests
1. Rule 113, Sec. 5

o LAWFUL ARREST WITHOUT WARRANT (Sec 5)

 Who may arrest?
 A PEACE OFFICER or
 a PRIVATE PERSON
 When may arrest without warrant?

d) IN FLAGRANTE DELICTO - When, in his presence, the person to be arrested

a. has committed,
b. is actually committing, or
c. is attempting to commit an offense;

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
e) HOT PURSUIT –
a. When an offense has just been committed, and
b. he has probable cause to believe based on personal knowledge of facts or
circumstances
c. that the person to be arrested has committed it; and
f) ARREST OF ESCAPEE - When the person to be arrested is a prisoner who has
escaped
a. FROM A PENAL ESTABLISHMENT or place where he is serving final judgment or
is temporarily confined while his case is pending, or
b. WHILE BEING TRANSFERRED from one confinement to another.

 In cases falling under paragraph (a) and (b) above, the person arrested without a warrant
shall
 BE DELIVERED to the nearest police station or jail and
 BE PROCEEDED against in accordance with section 7 of Rule 112.

2. Art. 125, Revised Penal Code

a. Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties
provided in the next preceding article shall be imposed upon the public officer or employee who shall detain
any person for some legal ground and shall fail to deliver such person to the proper judicial authorities
within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their
equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their
equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or
their equivalent.

3. Rebellion as Continuing Offense

b. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and
other crimes and offenses committed in the furtherance, on the occasion thereof, or incident thereto, or in
connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing
offenses which set them apart from the common offenses, aside from their essentially involving a massive
conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the
bounds of the law and existing jurisprudence in our jurisdiction.

4. Umil vs. Ramos, G. R. 81567, July 9, 1990

c. Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive
organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is
justified as it can be said that he was committing an offense when arrested. The crimes of rebellion,
subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance
thereof or in connection therewith constitute direct assaults against the State and are in the nature of
continuing crimes.
d. The military agents noticed bulging objects on their waist lines. When frisked, the agents found
them to be loaded guns. Anonuevo and Casiple were asked to show their permit or license to possess or
carry firearms and ammunition, but they could not produce any. Hence, they were brought to PC
Headquarters for investigation. Found in their possession were voluminous subversive documents and live
ammunition. The record shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed
firearms and ammunition in their person when they were apprehended. There is no merit in the contention
that the informations filed against them are null and void for want of a preliminary investigation. The filing
of an information, without a preliminary investigation having been first conducted, is sanctioned by the
Rules. Sec. 7, Rule 112 of the Rules of Court.
e. In the course of the search with a valid search warrant, Vicky Ocaya armed in a car driven by Danny
Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol were found in
the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters
for investigation. When Vicky Ocaya could not produce any permit or authorization to possess the
ammunition, an information charging her with violation of PD 1866 was filed with the Regional Trial Court
of Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the
other hand, was released from custody. It would appear, however, that Vicky Ocaya was arrested in
flagranti delicto so that her arrest without a warrant is justified. No preliminary investigation was
conducted because she was arrested without a warrant and she refused to waive the provisions of Article
125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the Rules of Court, as amended.
f. Espiritu was arrested without a judicial warrant of arrest when during a press conference at the National
Press Club on November 22, 1988, he uttered through tri-media who was heard urging all drivers and
operators to go on nationwide strike on November 23, 1988, to force the government to give in to
their demands to lower the prices of spare parts, commodities, water and the immediate release
from detention of the president of the PISTON. Policemen waited for petitioner outside the National
Press Club in order to investigate him, but he gave the lawmen the slip. He was next seen at about 5:00
o'clock that afternoon at a gathering of drivers and sympathizers at the corner of Magsaysay Blvd. and
Valencia Street, Sta. Mesa, Manila where he was heard to say. The police finally caught up with the
petitioner on 23 November 1988. He was invited for questioning and brought to police headquarters after
which an Information for violation of Art. 142 (Inciting to Sedition) of the Revised Penal Code was filed
against him before the Regional Trial Court of Manila. Since the arrest of the petitioner without a warrant
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
was in accordance with the provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner
is detained by virtue of a valid information filed with the competent court, he may not be released on habeas
corpus.

o Committed in the Presence of Police Officers

1. People v. Sucro, 195 SCRA 388 (1991)
a. Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without
warrant is considered lawful. The rules states: "Arrest without warrant, when lawful.— A peace officer or
private person may, without warrant, arrest a person: (a) When in his presence, the person to be arrested
has committed,is actually committing, or is attempting to commit an offense; (b) When an offense has in
fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested
has committed it."
b. The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the
activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters away
from Regalado's house. Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity.
He saw Sucro talk to some persons, go inside the chapel, and return to them and exchange some
things. These, Sucro did three times during the time that he was being monitored. Fulgencio would
then relay the on-going transaction to P/Lt. Seraspi. An offense is committed in the presence or within the
view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer
sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once
to the scene thereof .
c. The fact that Macabante, when intercepted by the police, was caught throwing the marijuana stick and
when confronted, readily admitted that he bought the same from Sucro clearly indicates that Sucro
had just sold the marijuana stick to Macabante, and therefore, had just committed an illegal act of which
the police officers had personal knowledge, being members of the team which monitored Sucro's nefarious
activity. The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that
police officers have personal knowledge of the actual commission of the crime when it had earlier
conducted surveillance activities of the accused.

2. Del Castillo v. People, GR No. 185128, January 30, 2012

a. The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable
cause must be determined personally by the judge; (3) the judge must examine, in writing and under oath
or affirmation, the complainant and the witnesses he or she may produce; (4) the applicant and the
witnesses testify on the facts personally known to them; and (5) the warrant specifically describes the place
to be searched and the things to be seized.
b. Probable cause for a search warrant is defined as 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.
c. It must be remembered that the warrant issued must particularly describe the place to be searched and
persons or things to be seized in order for it to be valid. A designation or description that points out the
place to be searched to the exclusion of all others, and on inquiry unerringly leads the peace officers to it,
satisfies the constitutional requirement of definiteness. In the present case, Search Warrant No. 570-9-
1197-24 specifically designates or describes the residence of the petitioner as the place to be searched.
Incidentally, the items were seized by a barangay tanod in a nipa hut, 20 meters away from the residence
of the petitioner. The confiscated items, having been found in a place other than the one described in the
search warrant, can be considered as fruits of an invalid warrantless search, the presentation of which as
an evidence is a violation of petitioner's constitutional guaranty against unreasonable searches and seizure.
d. The police officers, as well as the barangay tanods were acting as agents of a person in authority
during the conduct of the search.

3. People v. Luisito Go, G.R. No. 116001, March 14, 2001

a. In the cases at bar, the police saw the gun tucked in appellant's waist when he stood up. The gun was
plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any
license for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing
a crime in the presence of the police officers. No warrant of arrest was necessary in such a situation,
it being one of the recognized exceptions under the Rules.
b. As a consequence of appellant's valid warrantless arrest, he may be lawfully searched for dangerous
weapons or anything which may be used as proof of the commission of an offense, without a search
warrant, as provided in Rule 126, Section 12. This is a valid search incidental to the lawful arrest. The
subsequent discovery in his car of drug paraphernalia and the crystalline substance, which was later
identified as shabu, though in a distant place from where the illegal possession of firearm was committed,
cannot be said to have been made during an illegal search. As such, the seized items do not fall within the
exclusionary clause, which states that any evidence obtained in violation of the right against warrantless
arrest cannot be used for any purposes in any proceeding. Hence, not being fruits of the poisonous tree,
so to speak, the objects found at the scene of the crime, such as the firearm, the shabu and the drug
paraphernalia, can be used as evidence against appellant. Besides, it has been held that drugs discovered
as a result of a consented search is admissible in evidence.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o Personal Knowledge of the Offense
1. People vs. Gerente, 219 SCRA 756 (1993)
a. The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed
Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found
the instruments of death: a piece of wood and a concrete hollow block which the killers had used to
bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen
and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the
policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente
and two others had killed him, they could lawfully arrest Gerente without a warrant. Patrolman Urrutia
frisked Gerente and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil.
The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic Chemist
found them to be marijuana.
b. The search of Gerente and the seizure of the marijuana leaves in his possession were valid because they
were incident to a lawful warrantless arrest. Paragraphs (a) and (b), Section 5, Rule 113 of the Revised
Rules of Court provide: 'SECTION 5. Arrest without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:"(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense;" "(b) When an offense has in
fact just been committed, and he has personal knowledge of facts indicating that the person to be
arrested has committed it; . . .'

2. People v. Sinoc, 275 SCRA 357 (1997)

a. There is no question that the police officers in this case were aware that an offense had just been
committed; i.e., that some twelve hours earlier, a "Pajero" belonging to a private company had been stolen
("carnapped") and its driver and passenger shot, the former having died and the latter being on the verge
of death. Nor is there any doubt that an informer ("asset") had reported that the stolen "Pajero" was at the
Bliss Housing Project at Monkayo. It was precisely to recover the "Pajero" that a team composed of SPO1
Michael Aringo and "joint elements of 459 PNP MFC and Moncayo Police Stn led by Insptr Eden T. Ugale,"
went to that place and, on taking custody of the "Pajero," forthwith dispatched a radio message to "Higher
Headquarters" advising of that fact. There is no question either that when SPO1 Aringo and his companions
reached the place where the "Pajero" was parked, they were told by Paulino Overa, owner of the apartment
behind which the vehicle was parked, that the man who had brought the "Pajero" would be back by 12:00
noon; that the person thus described did in fact show up at about 10:00 A.M., and was immediately identified
by Overa as "the one who rode on that car 'Pajero;'" just as there is no question that when the police officers
accosted him, Sinoc had the key to the stolen "Pajero" and was in the act of moving toward it admittedly to
take possession of it (after having arrived by bus from Tagum together with another suspect, "Ram").
Sinoc's link to the stolen vehicle (and hence to the kidnapping and killing accompanying its asportation)
was thus palpable.
b. The foregoing circumstances left the police officers no alternative save to arrest Sinoc and take possession
of the "Pajero." His arrest without warrant was justified; indeed, it was in the premises the officers' clear
duty to apprehend him; their omission to do so would have been inexcusable.

3. People v. Baula, G.R. No. 132671, November 15, 2000

a. The police authorities went to the locus criminis of the hacking of Patrocinia Caburao, and took pictures of
the body of the victim. The investigation revealed that before the victim was killed, she had been to Brigida
Tumamang's store; that accused-appellants were also at the store having a drinking spree; that the victim
left the store between seven o'clock and eight o'clock in the evening, and that, fifteen minutes later,
accused-appellants also left. SPO4 Mirande, with several policemen, repaired to the respective houses of
accused-appellants. The policemen asked Ruben Baula and Crisanto Baula for the clothing they wore on
the night of the murder. Ruben Baula gave his bloodstained pair of short pants, and Crisanto Baula turned
over his bloodstained polo shirt. The policemen next went to the hut of Danilo Dacucos. Inside the hut, the
group found hanging on the wall a bloodstained bolo. The bloodstained pair of short pants, polo shirt and
bolo, together with the victim's dried blood samples, had the same type "O" blood as that of the victim.
b. Admittedly, the bloodstained bolo, polo shirt and short pants were taken, sans any search warrant, from
accused-appellants Danilo Dacucos, Crisanto Baula and Ruben Baula, respectively, at a time when the
police started to question them about the killing of Patrocinia Caburao. Accused-appellants were not being
arrested at the time that the subject articles were allegedly taken from them but were just being questioned
by the police officers conducting the investigation about the death of Patrocinia Caburao. The investigating
officers had no personal knowledge of facts indicating that the accused had committed the crime. Being in
no position to effect a warrantless arrest, the police officers were thus likewise barred from effecting a
warrantless search and seizure.

4. People v. Cubcubin, G.R. No. 136267, July 10, 2001

a. Cavite City police station received a telephone call that a person had been shot. The driver slumped dead
on his tricycle which was then parked on the road. The witness told the police investigators that she had
seen Cubcubin and the victim arrived at Sting Cafe at about 12:00 midnight and drinking beer. Armando
Plata, another tricycle driver, told the police that the description fitted a person known as alias "Jun Dulce."
The policemen went to his house, knocked and opened by a man who answered the description given by
witnesses. The police said that upon entering the house, he noticed a white t-shirt, bearing the brand name

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
"Hanes" and the name "Dhenvher" written in the inner portion of the shirt's hemline, placed over a divider
near the kitchen. Upon close examination, he said that he found it to be "bloodied." When he picked up the
t-shirt, two spent .38 caliber shells fell from it. Cubcubin was arrested and was taken to the police station.
b. In this case, the arrest of Cubcubin was effected shortly after the victim was killed. The arrest was not valid
as there was no probable cause from the arresting officer. The two did not have "personal knowledge of
facts" indicating that accused-appellant had committed the crime. Their knowledge of the circumstances
from which they allegedly inferred that Cubcubin was probably guilty was based entirely on what they had
been told by others. Thus, the police officers merely relied on information given to them by others.
c. In an analogous case, the police was informed that the accused was involved in subversive activities. On
the basis of this information, the police arrested the accused and, in the course of the arrest, allegedly
recovered an unlicensed firearm and some subversive materials from the latter. This Court held that the
arresting officers had no personal knowledge since their information came entirely from an informant. It was
pointed out that at the time of his arrest, the accused was not in possession of the firearm nor engaged in
subversive activities. His arrest without a warrant could not be justified under §5(b).
d. In another case, the accused, in a case of robbery with rape, were arrested solely on the basis of the
identification given by one of the victims. This Court held the arrest to be illegal for lack of personal
knowledge of the arresting officers.

o Time of Arrest
1. People vs. Rodrigueza, 205 SCRA 791 (1992)
a. After the test-buy, Major Zeidem ordered a team to conduct an operation to apprehend the suspects. In the
evening of the same date, CIC Galutan and S/Sgt. Moliñawe proceeded to Regidor Street, Daraga, Albay
and arrested appellant, Antonio Lonceras and Samuel Segovia. The constables were not, however,
armed with a warrant of arrest when they apprehended the three accused. The arrestees were brought
to the headquarters for investigation. Thereafter, agents of the Narcotics Command (NARCOM) conducted
a raid in the house of Jovencio Rodrigueza, father of appellant. Taduran did not go with them. During the
raid, they were able to confiscate dried marijuana leaves and a plastic syringe, among others. The search,
however, was not authorized by any search warrant.
b. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a malefactor in
flagrante delicto. Applied to the case at bar, the term in flagrante delicto requires that the suspected drug
dealer must be caught redhanded in the act of selling marijuana or any prohibited drug to a person acting
or posing as a buyer.
c. In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this
qualification. Based on the very evidence of the prosecution, after the alleged consummation of the sale of
dried marijuana leaves, CIC Taduran immediately released appellant Rodrigueza instead of arresting and
taking him into his custody. This act of CIC Taduran, assuming arguendo that the supposed sale of
marijuana did take place, is decidedly contrary to the natural course of things and inconsistent with the
aforestated purpose of a buy-bust operation. It is rather absurd on his part to let appellant escape without
having been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty by an agent of the
law.

2. PP v. del Rosario, 305 SCRA 740

a. Alonzo stopped his tricycle by the side of Nita's Drugstore, General Luna St., Cabanatuan City, when three
women flagged him. Parked at a distance of about one and a-half (1½) meters in front of him was a tricycle
driven by accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a woman grappling for
possession of a bag. After taking hold of the bag one of the two men armed with a gun started chasing a
man who was trying to help the woman, while the other snatcher kicked the woman sending her to the
ground. Soon after, the armed man returned and while the woman was still on the ground he shot her on
the head. The bag taken by the man was brought to the tricycle of accused del Rosario where someone
inside received the bag. The armed man then sat behind the driver while his companion entered the sidecar.
When the tricycle sped away Alonzo gave chase and was able to get the plate number of the tricycle. He
also recognized the driver, after which he went to the nearest police headquarters and reported the incident.
The following day, Del Rosario was arrested by SPO4 De Leon during the police raid at the place of "Jun"
Marquez at Brgy. Dicarma.
b. In People vs. Sucro we held that when a police officer sees the offense, although at a distance, or hears
the disturbances created thereby, and proceeds at once to the scene thereof, he may effect an arrest
without a warrant on the basis of Sec. 5, par. (a), Rule 113, since the offense is deemed committed in his
presence or within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in
flagrante delicto or caught immediately after the consummation of the act. The arrest of del Rosario is
obviously outside the purview of the aforequoted rule since he was arrested on the day following the
commission of the robbery with homicide.
c. On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent requirements before a
warrantless arrest can be effected: (1) an offense has just been committed; and, (2) the person making the
arrest has personal knowledge of facts indicating that the person to be arrested had committed it. Hence,
there must be a large measure of immediacy between the time the offense was committed and the time of
the arrest, and if there was an appreciable lapse of time between the arrest and the commission of the
crime, a warrant of arrest must be secured. Aside from the sense of immediacy, it is also mandatory that

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
the person making the arrest must have personal knowledge of certain facts indicating that the person to
be taken into custody has committed the crime. Again, the arrest of del Rosario does not comply with these
requirements since, as earlier explained, the arrest came a day after the consummation of the crime and
not immediately thereafter. As such, the crime had not been "just committed'' at the time the accused was
arrested. Likewise, the arresting officers had no personal knowledge of facts indicating that the person to
be arrested had committed the offense since they were not present and were not actual eyewitnesses to
the crime, and they became aware of his identity as the driver of the getaway tricycle only during the
custodial investigation.

3. PP v. de la Cruz, 571 SCRA 469

a. An informant tipped off the Drug Enforcement Unit of the Marikina Police Station that wanted drug pusher
Wifredo Loilo alias "Boy Bicol" was at his nipa hut hideout in San Mateo, Rizal. A team was organized to
arrest Boy Bicol. Once there, they saw Boy Bicol by a table talking with accused-appellant. They shouted
"Boy Bicol sumuko ka na may warrant of arrest ka. (Surrender yourself Boy Bicol you have a warrant of
arrest.)" Upon hearing this, Boy Bicol engaged them in a shootout and was fatally shot. Dela Cruz
was seen holding a shotgun through a window. He dropped his shotgun when a police officer
pointed his firearm at him. The team entered the nipa hut and apprehended Dela Cruz. They saw a
plastic bag of suspected shabu, a digital weighing scale, drug paraphernalia, ammunition, and magazines
lying on the table. PO1 Calanoga, Jr. put the markings "CVDC", the initials of Dela Cruz, on the bag
containing the seized drug.
b. Tthere is no question that accused-appellant was not the owner of the nipa hut that was subject of the buy-
bust operation. He did not have dominion or control over the nipa hut. Neither was accused-appellant a
tenant or occupant of the nipa hut, a fact not disputed by the prosecution. The target of the operation was
Boy Bicol. Accused-appellant was merely a guest of Boy Bicol. Apart from his presence in Boy Bicol's nipa
hut, the prosecution was not able to show his participation in any drug-dealing. He was not even in
possession of drugs in his person. He was merely found inside a room with shabu, not as the room's owner
or occupant but as a guest. While he allegedly pointed a firearm at the buy-bust team, the prosecution
curiously failed to produce the firearm that accused-appellant supposedly used. The prosecution in this
case clearly failed to show all the elements of the crime absent a showing of either actual or constructive
possession by the accused-appellant.
c. Since accused-appellant was not in possession of the illegal drugs in Boy Bicol's nipa hut, his subsequent
arrest was also invalid.

4. Go vs. Court of Appeals, 206 SCRA 586 (1992)

a. On 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading
towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in
the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and
Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan
inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant
was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the
shooting and there retrieved an empty shell and one round of live ammunition for a 9mm caliber pistol.
Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. On
8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he
was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained
him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner
as the gunman.
b. The warrantless "arrest" or detention of petitioner in the instant case do not falls within the terms of Section
5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: "Sec. 5. Arrest without
warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a)
When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested
is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being transferred from one
confinement to another.
c. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith
delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule
112, Section 7." Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The arresting
officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as
effected "when [the shooting had] in fact just been committed" within the meaning of Section 5 (b).
Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner
was the gunman who had shot Maguan. The information upon which the police acted had been derived
from statements made by alleged eyewitnesses to the shooting -- one stated that petitioner was the
gunman; another was able to take down the alleged gunman's car's plate number which turned out to be
registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge."
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of
Section 5 of Rule 113.

5. People v. Calimlim, G.R. No. 123980, August 30. 2001

OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
a. Calimlim who was charged for 4 counts of rape was arrested one day after the crime committed. He avers
that his arrest violated Section 5 of Rule 113, since his arrest was made one day after the crime was
committed, but without any judicial warrant, although the police had ample time to get one. This he claims
is also in violation of Article III, Sec. 2 of the Constitution. But here it will be noted that appellant entered a
plea of not guilty to each of the informations charging him of rape. Thus, he had effectively waived his right
to question any irregularity which might have accompanied his arrest and the unlawful restraint of his liberty.

o Marked Money
1. People vs. Enrile, 222 SCRA 586 (1993)
a. both policemen said that on that occasion they saw Polines hand over to Abugatal the marked money
representing payment for the mock transaction. Abugatal left with the money and returned ten minutes later
with a wrapped object which he gave Polines. The two policemen then approached Abugatal and placed
him under arrest, at the same time confiscating the wrapped object. Subsequent laboratory examination
revealed this to be marijuana with flowering tops weighing 22 grams. The prosecution also showed that,
upon prodding, Abugatal led the policemen to a house at 20 De Vera Street, also in San Francisco del
Monte, Quezon City, where he called out for Antonio Enrile. Enrile came out and met them at the gate.
Abugatal pointed to Enrile as the source of the marijuana, whereupon the policemen immediately arrested
and frisked him. They found in the right front pocket of his trousers the marked money earlier delivered to
Abugatal, with Serial No. PJ966425.
b. It was Abugatal who was allegedly caught red-handed by the policemen as he sold the marijuana to Polines.
Enrile was not even at the scene of the entrapment at that time. Abugatal said he did lead the policemen
to Enrile's house where he pointed to Enrile as the source of the marijuana. Even assuming this to be true,
that circumstance alone did not justify Enrile's warrantless arrest and search. The discovery of the marked
money on him did not mean he was caught in the act of selling marijuana. The marked money was not
prohibited per se. Even if it were, that fact alone would not retroactively validate the warrantless search and
seizure.

o Lack of Urgency
1. People v. Pasudag, G.R. No. 128822, May 4, 2001
a. SPO2 Pepito Calip of the PNP Sison, Pangasinan, went to Brgy. Artacho to conduct anti-jueteng operations.
He urinated at a bushy bamboo fence behind the public school. About five (5) meters away, he saw a
garden of about 70 square meters. There were marijuana plants in between corn plants and camote tops.
He inquired from a storekeeper nearby as to who owned the house with the garden. The storeowner told
him that Alberto Pasudag owned it. SPO2 Calip went to the Police Station and reported to Chief of Police
Romeo C. Astrero. The latter dispatched a team (composed of SPO2 Calip, SPO3 Fajarito, SPO3 Alcantara
and PO3 Rasca) to conduct an investigation. At around 2:30 in that same afternoon, the team arrived at
Brgy. Artacho and went straight to the house of accused Pasudag. SPO3 Fajarito looked for accused
Pasudag and asked him to bring the team to his backyard garden which was about five (5) meters away.
Upon seeing the marijuana plants, the policemen called for a photographer, who took pictures of accused
Pasudag standing beside one of the marijuana plants. They uprooted seven (7) marijuana plants. The
team brought accused Pasudag and the marijuana plants to the police station.
b. As a general rule, the procurement of a search warrant is required before a law enforcer may validly search
or seize the person, house, papers or effects of any individual. The Constitution provides that "the right of
the people to be secure in their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, . . . ." Any evidence obtained in violation
of this provision is inadmissible. In the case at bar, the police authorities had ample opportunity to
secure from the court a search warrant. SPO2 Pepito Calip inquired as to who owned the house. He
was acquainted with marijuana plants and immediately recognized that some plants in the backyard of the
house were marijuana plants. Time was not of the essence to uproot and confiscate the plants. They were
three months old and there was no sufficient reason to believe that they would be uprooted on that same
day.

2. People vs. Aminnudin, 163 SCRA 402 (1988)

a. The PC officers had earlier received a tip from one of their informers that the accused-appellant was on
board a vessel bound for Iloilo City and was carrying marijuana. He was identified by name. Acting on this
tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the
gangplank after the informer had pointed to him. They detained him and inspected the bag he was carrying.
It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic
examiner.
b. There was no warrant of arrest or search warrant issued by a judge after personal determination by him of
the existence of probable cause. Contrary to the averments of the government, the accused-appellant was
not caught in flagrante nor was a crime about to be committed or had just been committed to justify the
warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked
to dispense with the obtention of the warrant as in the case of Roldan v. Arca, for example. Here it was
held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs
law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can
be secured.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
c. In the case at bar, Aminnudin was not, at the moment of his arrest, committing a crime nor was it shown
that he was about to do so or that he had just done so. What he was doing was descending the gangplank
of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he
was like any of the other passengers innocently disembarking from the vessel. It was only when the informer
pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to
apprehension. It was the furtive finger that triggered his arrest. The identification by the informer was the
probable cause as determined by the officers (and not a judge) that authorized them to pounce upon
Aminnudin and immediately arrest him.

o Effect of Bail
1. Rule 114, Section 26
d. Section 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation.
— An application for or admission to bail shall not bar the accused from challenging the validity of his
arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided that he raises them before
entering his plea. The court shall resolve the matter as early as practicable but not later than the start
of the trial of the case.
o Effect of Entry of Plea
1. People v. Plana G.R. No. 128285, November 27, 2001
a. With respect to the second issue raised by accused-appellants, they were detained without judicial order
and prior to the filing of the information, suffice it to say, that they already waived their right to question the
irregularity, if any, in their arrest. Accused-appellants respectively entered a plea of "not guilty" at their
arraignment. By so pleading, they submitted to the jurisdiction of the trial court, thereby curing any defect
in their arrest, for the legality of an arrest affects only the jurisdiction of the court over their persons.

o Validity of Conviction
1. People v. Conde, G.R. No. 113269, April 10, 2001
a. On May 25, 1992, PO3 Rodencio Sevillano was told to investigate the robbery with homicide incident. On
May 30, 1992, the police arrested the three accused. Police recovered the weapons used in the robbery,
when Felicidad Macabare, Conde's wife, went to the police station to talk to the accused. These weapons
were discovered inside her bag after a routine inspection. Sevillano admitted, however, that they did not
have a warrant of arrest when they apprehended the accused. Nor did they have a search warrant when
they inspected Felicidad's bag and when they searched the house of a certain Jimmy where they found the
stolen items.
b. On the validity of arrest, None of the circumstances of Section 5 of Rule 113 is present in this case.
Appellants were merely walking along Tandang Sora Avenue and were not committing any crime. Neither
can it be said that the crime had just been committed. Five days had already passed from the time of the
robbery with homicide. It cannot also be said that the arresting officers had probable cause based on
personal knowledge. PO3 Sevillano admitted that they learned about the suspects from Apollo Romero and
certain unnamed informants. The third circumstance is patently not present. The lapse of five days gave
the police more than enough time to conduct surveillance of the appellants and apply for a warrant of arrest.
Clearly, appellants' rights provided in Sec. 2, Art. III of the Constitution were violated.
c. Unfortunately, appellants did not assert their constitutional rights prior to their arraignment. This is fatal to
their case. An accused is estopped from assailing the legality of his arrest if he failed to move for the
quashing of the Information against him before his arraignment. When the appellants entered their pleas
on arraignment without invoking their rights to question any irregularity, which might have accompanied
their arrests, they voluntarily submitted themselves to the jurisdiction of the court and the judicial process.
Any objection, defect, or irregularity attending their arrests should had been made before they entered their
pleas. It is much too late for appellants to raise the question of their warrantless arrests. Their pleas to the
information upon arraignment constitute clear waivers of their rights against unlawful restraint of
liberty.
d. Furthermore, the illegal arrest of an accused is not sufficient cause for setting aside a valid
judgment rendered upon a sufficient complaint after trial free from error. The warrantless arrest,
even if illegal, cannot render void all other proceedings including those leading to the conviction of
the appellants and his co-accused, nor can the state be deprived of its right to convict the guilty
when all the facts on record point to their culpability.
e. As for the stolen objects presented in evidence, their seizure is assailed by appellants. We agree that
the warrantless search in the house of a certain Jimmy, based on the confession of accused Alejandro
Perez, Jr., is definitely questionable. PO3 Rodencio Sevillano categorically stated that they were able to
recover the stolen items, i.e., the beach towel and the umbrella, because of the confession of
Alejandro Perez, Jr. who was not assisted by counsel when he confessed and eventually led the
police to the whereabouts of the said items. The use of evidence against the accused obtained by virtue
of his testimony or admission without the assistance of counsel while under custodial investigation is
proscribed under Sections 12 and 17, Article III of the Constitution. Under the libertarian exclusionary rule
known as the "fruit of the poisonous tree", evidence illegally obtained by the state should not be used to

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
gain other evidence because the illegally obtained evidence taints all evidence subsequently obtained.
Simply put, the objects confiscated at said house are inadmissible as evidence.
f. On the other hand, we find in order the search of the bag of Felicidad Macabare, at the time she was visiting
her husband who was a detainee. PO3 Sevillano testified, this search is part of police standard
operating procedure, and is recognized as part of precautionary measures by the police to safeguard
the safety of the detainees as well as the over-all security of the jail premises. However, the weapons
confiscated from Felicidad Macabare, were not formally offered as evidence by the prosecution, hence
probatively valueless.

o Exclusionary Rule
1. Demaisip vs. CA, 193 SCRA 373
 The petitioner stresses the fact that the alleged search warrant was never produced in court, and that in
the absence thereof, it was as if the authorities were armed with none at the time of the search. It is a fact
that no warrant was shown in court, although there were supposed testimonies of its existence. The Court
is of the opinion nonetheless that this is not necessarily fatal. As found by the Court of Appeals: “At any
rate, objections to the legality of the search warrant and to the admissibility of the evidence obtained thereby
were deemed waived when no objection to the legality of the search warrant was raised during the trial of
the case nor to the admissibility of the evidence obtained through said warrant.” It is indeed fundamental
that the objections are a matter of privilege, which may be waived. Amid a waiver, the court is duty bound
to admit the evidence, in this case, testimony as to the existence of a piece of paper

2. Roan vs. Gonzales, 145 SCRA 687

 The petitioner claims he was the victim of an illegal search and seizure conducted by the military authorities.
The articles seized from him are sought to be used as evidence in his prosecution for illegal possession of
firearms. He asks that their admission be temporarily restrained (which we have) and thereafter
permanently enjoined. The challenged search warrant was issued by the respondent judge on May 10,
1984. The petitioner's house was searched two days later but none of the articles listed in the warrant was
discovered. However, the officers conducting the search found in the premises one Colt Magnum revolver
and eighteen live bullets which they confiscated. They are now the bases of the charge against the
petitioner. The validity of search warrant was challenged to invalidate the searched and seizure of the
firearms. The petitioner claims that when the depositions were taken of the complainant's two witnesses,
the complainant himself was not subjected to a similar interrogation. The respondent judge also declared
that he "saw no need to have applicant’s deposition taken considering that he was applying for a search
warrant on the basis of the information provided by the aforenamed witnesses whose depositions as
aforementioned had already been taken by the undersigned."
 As this Court held in Mata v. Bayona: "Mere affidavits of the complainant and his witnesses are thus not
sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he
may produce and attach them to the record. Such written deposition is necessary in order that the Judge
may be able to properly determine the existence or non-existence of the probable cause, to hold liable for
perjury the person giving it if it will be found later that his declarations are false.”
 The search warrant is invalid. Thus, the pistol and bullets cannot, of course, be used as evidence against
the petitioner in the criminal action against him for illegal possession of firearms.
 To be valid, a search warrant must be supported by probable cause to be determined by the judge or some
other authorized officer after examining the complainant and the witnesses he may produce. No less
important, there must be a specific description of the place to be searched and the things to be seized, to
prevent arbitrary and indiscriminate use of the warrant.
 Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "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."
 As held in a long line of decisions, the probable cause must refer to only one specific offense.
 Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because:
1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived
by the petitioner. In short, the military officers who entered the petitioner's premises had no right to be there
and therefore had no right either to seize the pistol and bullets.
 It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per
se. Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily
seized simply because they are prohibited. A search warrant is still necessary. If the rule were otherwise,
then the military authorities could have just entered the premises and looked for the guns reportedly kept
by the petitioner without bothering to first secure a search warrant. The fact that they did bother to do so
indicates that they themselves recognized the necessity of such a warrant for the seizure of the weapons
the petitioner was suspected of possessing.
 It is true that there are certain instances when a search may be validly made without warrant and articles
may be taken validly as a result of that search. For example,

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
i. a warrantless search may be made incidental to a lawful arrest, as when the person being arrested
is frished for weapons he may otherwise be able to use against the arresting officer.
ii. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband and even
in the interior upon a showing of probable cause.
iii. Vessels and aircraft are also traditionally removed from the operation of the rule because of their
mobility and their relative ease in fleeing the state's jurisdiction.
iv. The individual may knowingly agree to be searched or waive objections to an illegal search.
v. And it has also been held that prohibited articles may be taken without warrant if they are open to
eye and hand and the peace officer comes upon them inadvertently.
 Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents
cannot even claim that they stumbled upon the pistol and bullets for the fact is that these things were
deliberately sought and were not in plain view when they were taken. Hence, the rule having been violated
and no exception being applicable, the conclusion is that the petitioner's pistol and bullets were confiscated
illegally and therefore are protected by the exclusionary principle.

3. PP vs. Estrada, June 26, 2000

 Even if the medicines or drugs seized were genuine and even if they contain the proper chemicals or
ingredients for their production or manufacture, if the producer, manufacturer or seller has no permit or
authority from the appropriate government agency, the drugs or medicines cannot be returned although
the search warrants were declared illegal. It might be the burden of the party seeking issuance of a
warrant to convince the issuing magistrate that probable cause exists, and to procure the proper admissible
evidence to show that the party against whom the warrant is directed is not duly authorized by the Bureau
of Foods and Drugs (BFAD). However, if there is an allegation that the possession of the goods or things
seized were illegal for lack of appropriate permit from the duly authorized agencies, the party seeking the
return of her seized properties must show the corresponding permits or authority to manufacture, sell or
possess the same.

IX. PRIVACY OF COMMUNICATION & CORRESPONDENCE

A. Communications Surveillance
1. In May 2016, Rodrigo Duarte was elected asthe President of the of the Philippines. Since his election,
President Duarte has presented his position on various policies (including on the war of drugs1). These
policies in addition to the lack of oversight of state surveillance and the increase in the capacity of police and
other agencies to conduct intrusive surveillance, pose a significant risk that unlawful surveillance will result
not only the violation of individuals’ privacy but also in enabling other serious human rights violations.
2. It is urgent that President Duarte takes various measures to ensure that authorities permitted to undertake
surveillance are regulated by a robust legal framework that upholds principles of legitimacy, proportionality
and necessity to ensure that any interference with privacy is targeted and not arbitrary, as well as legislate for
prior judicial authorisation, independent oversight, user notification, and access to remedy in case of
violations.
o Interception of communications
3. In the Philippines, there are various laws which regulate communications surveillance, these include Anti-
Wiretapping Law of 1965 (Republic Act No. 4200), the Anti-Photo and Video Voyeurism Act of 2009 (Republic
Act No. 9995), the Cybercrime Prevention Act of 2012 (Republic Act No. 10175) and the Human Security Act
of 2007 (Republic Act No. 9372)
4. While the Philippine legislation prohibits unauthorised wiretapping and other violations of the privacy of
communication,it allows lawful interception when such activity is authorized by a written court order in relation
to cases involving specific crimes (e.g., treason, espionage, provoking war and disloyalty in case of war,
piracy, mutiny in the high seas, rebellion, sedition, and kidnapping).
5. Particularly following the election of President Duterte, a range of bills have been tabled to expand the crimes
for which wiretapping can be authorised to cover the surveillance of a person, if there is probable cause
tending to prove that the person has committed the crim e of coup d’etat,13plunder and other graft and
corruption offenses, or has violated the Comprehensive Dangerous Drugs Act of 2002 (CDDA).
o No implementation of oversight and accountability mechanism for the police

6. The Human Security Act provides for the establishment of a Grievance Committee to be composed of
composed of the Ombudsman, the Solicitor General, and the undersecretary of the Department of Justice.
Three sub-committees headed by the Deputy Ombudsmen in Luzon, the Visayas and Mindanao will assist the
Grievance Committee to receive, evaluate and investigate complaints against the actuations of the police and
law enforcement officials in the implementation of the Act. If the investigation results in the gathering of
evidence, the sub-committees may file the appropriate cases against the concerned police and law
enforcement officers. But this Committee has yet to be established.
7. A Joint Oversight Committee, also provided for in the law, is to be composed of senators and members of
congress. It has the power to summon members of the police and law enforcement authorities and the
members of the Anti-Terrorism Council to be questioned regarding how they undertake surveillance of
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
individuals. It also receives reports of the relevant agencies on their operations. The Joint Oversight
Committee must present bi-annual reports to the Houses of Congress.17However such reports have not yet
been published.
8. It is essential that these two oversight mechanisms be fully implemented. An independent oversight
mechanism is necessary to ensure the transparency and accountability of the surveillance authorisation
processes. The oversight mechanism must be independent of the executive, properly resourced to conduct
investigations, and able to command public confidence through regular reporting and public sessions.
o No oversight of intelligence agencies.
9. The Philippines has several intelligence agencies in place. These include The National Security Council
(NSC), the Office of the National Security Adviser (ONSA), the National Intelligence Coordinating Agency
(NICA), the National Intelligence Committee (NIC), the National Intelligence Board (NIB), the Intelligence
Service, Armed Forces of the Philippines (ISAFP).
10. Concerns have been raised by the lack of transparency and oversight of these agencies. There are no
oversight mechanisms in place to oversee the mandate and the activities of these agencies and the President
is the highest authority in matters of national security and m os t of the agencies report directly to him. The
President chairs the National Security Council. The Council advises the President on the integration of
domestic, foreign, military, political, economic, social and educational policies relating to national security.
11. Policies on national security are the mandate of the National Intelligence Coordinating Agency (NICA) which
is the main intelligence agency of the Philippine government. Since 1987, the mandate of NICA has expanded
from “organize and coordinate the intelligence collection activities of various government instrumentalities
concerned” to “directing, coordinating, and integrating all government activities involving national intelligence.”
12. In the two previous Congresses, several bills proposing oversight of the intelligence agencies were proposed,
but never adopted.
13. Independent oversight of intelligence agencies is fundamental to guarantee respect of human rights, including
the right to privacy and freedom of expression. The mandate, remit and operations of all intelligence agencies
must be reviewed to meet international standards. The State should be transparent about the use and scope
of communications surveillance techniques and powers.
o Regulations of Cybercrime Prevention Act.
14. Section 12 (Real-Time Collection of Traffic Data) of the Cybercrime Prevention Act was stricken down as
unconstitutional by the Supreme Court in the landmark case Disini v. The Secretary of Justice. The provision
would have authorized the National Bureau of Investigation (NBI) and the Philippine National Police (PNP) to
collect or record in real-time, with due cause, traffic data associated with specified communications
transmitted by means of a computer system. The Supreme Court ruled that the provision threatens the
Constitutional right to privacy, by giving law enforcement authorities sweeping and unrestrained authority. It
held that “the grant of the power to track cyberspace communications in real time and determine their sources
and destinations must be narrowly drawn to preclude abuses”.
15. However, the Implementing Rules and Regulations (IRR) of the law, which were promulgated in August 2015,
effectively reinstated the struck down provision. The Regulations broadly authorize law enforcement
authorities, upon the issuance of a court warrant, “to collect or record by technical or electronic means [...]
computer data that are associated with specified communications transmitted by means of a computer
system.” The Rules effectively amend the Anti-Wiretapping Law by expanding anew the list of crimes
exempted from the prohibition on communication surveillance to include all types of cybercrimes. Rules
having the effect of amending a law and expanding the powers of surveillance is clearly unconstitutional and
in violation of the principle of legality under international human rights law.
o Data retention
16. The regime of data retention is outlined in the Implementing Rules and Regulations of the Electronic
Commerce Act (2000). The act is intended to provide for the “recognition and use of electronic commercial
and non-commercial transactions and documents, penalties for unlawful use thereof and for other purposes”.
Section 20 of its Implementing Rules and Regulations26outlines appropriate forms of data retention and the
mandate of “relevant government agencies” to impose regulations on data retention.
17. As part of its regulatory function, the National Telecommunications Commission released a memorandum
(MC 04-06-2007) in June 2007 on the data log retention of telecommunications traffic. Section 1 states:
6“PTEs [public telecommunications entities] shall retain the call data records on voice calls and similar
records for non-voice traffic. on-voice traffic includes SMS, MMS and other similar telecommunications
services.”
18. Section 2 states:“Records indicating traffic data on the origin, destination, date, time, and duration of
communications shall be retained within the following periods:two (2) months for non-metered services with
fixed monthly charges; four (4) months for other telecommunications services not covered in (a); or until
excused by NTC for records requested in connection with pending complaints.”
19. This provision effectively requires companies to indiscriminately retain personal data of all customers, which,
as such, constitutes an unalwful interference with the right to privacy. Bills seeking to establish a mandatory
o SIM card registration system

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
20. Except for contracted subscribers of telecommunication companies, there is currently no mandatory
requirement to have SIM cards registered. There have been efforts, however, to establish a mandatory SIM
card registration scheme.
21. During the 16th Congress, the House of Representatives successfully passed House Bill No. 5 23
(“Subscriber Identity Module (SIM) Card Registration Act”) which would require each SIM card end-user to
verify his/her identity at the point of sale by presenting proof of identity. The bill did not see any development
before the previous Congress adjourned. However, various bills proposing a similar policy have again been
filed in the current Congress, accompanied by calls to have the same certified as an urgent measure in light
of the supposed increase in the number of hoax bomb threats.
o Surveillance capabilities
22. Absent any public avowal by the authorities of their surveillance powers, evidence of the surveillance
capabilities of the government has emerged primarily from the media and investigative journalists.
23. Over the years, several sources have hinted that the State has acquired or at least expressed interest in
acquiring various interception tools, which would provide law enforcement and intelligence agencies in the
Philippines with significant capacity to conduct intrusive surveillance, including social media monitoring, and
remote hacking of devices.
24. Since the election of current Philippine President Rodrigo Duterte, the government has been focused on its
crackdown on the illegal drugs trade and surveillance is at the core of this work which means that is has
become a key recipient of State resources.
25. If the 2017 budget proposal is approved, the Office of the President will get PhP2 billion in confidential and
intelligence funds, up from PhP250 million this year, and PhP5.5 billion as contingency funds. When one
opposition lawmaker questioned the significant increase, the President defended the budget by claiming that
it would be used for his “many fights,” as well as on “efforts to gather necessary intelligence data for
government programs.” These assertions have been echoed by Budget Secretary Benjamin Diokno who said
that the President’s confidential and intelligence funds will be used in the fight against drugs and criminality.
o Lack of investigations of reports of Foreign Surveillance Activities
26. Documents released by Edward Snowden in May 2014 show that the US' National Security Agency (NSA)
had "access via DSD asset in a Philippine provider site. Collects Philippine GSM, short message service
(SMS) and Call Detail Records.” This, the NSA predicted“[w]ill soon become a source of lucrative intelligence
for terrorist activities in Southern Philippines.” The 2013 project. codenamed MYSTIC, involved the
interception of large amounts of the communications of five countries, including the Philippines, from
undersea cables.
27. Such spying programmes by foreign governments directly threaten the privacy of Filipino citizens as well as
the security of the telecommunication network and infrastructure. There is a need for an independent inquiry
into the evidence provided which would also identify what measures must be taken to ensure that the Filipino
government meets its international legal obligations to protect the right to privacy from external unlawful
interference.

B. Data Protection
28. Although the Data Privacy Act was enacted in 2012, the National Privacy Commission, which is the agency
tasked to administer and implement the law, was appointed only in March 2016. Thus, prior to 2016, there
was no government mechanism in place to monitor and protect da t a privacy.
29. Government agencies that collect and process personal data remained unregulated because they are exempt
from the scope of application of the Act, which means that the storage and processing of large amounts of
personal data collected by public bodies are subject to weak security measures against data breaches. This,
in turn, made possible several data breaches over the years, the most prominent of which is the breach of the
Commission on Elections’s (COMELEC) voter database.
o Massive Breach of the Government’s Electoral Commission
30. The COMELEC breach leaked online the personal information of approximately 55 million registered Filipino
voters.38While some personal data in the tables (e.g., voters’ names, birth dates, and Voter’s Identification
Numbers) were encrypted, others (e.g., residential address and birthplace) were not and could be easily
ascertained. For Filipino voters registered overseas, there were cases wherein a person’s birthplace, passport
number, and the names of his/her parents could be identified by anyone familiar with the individual’s real
name.
31. The immensity of the risk posed by the breach cannot be downplayed. Now recognized a s one of the biggest
breaches of government data in history,40it directed the public’s attention to the extent of personal
information being collected and held by Philippine government agencies, a s well as their ability (or the lack
thereof) to secure such information.
o Bills seeking to establish a National ID System
32. Proposals to establish a national ID system have been filed by lawmakers at the House of Representatives,
as well as in the Senate. The government will be mandated to issue a Filipino Identification Card for all
Filipino citizens, which will include the owner’s imprinted photograph, name, birth date, sex, date of issue,
signature, and individual serial number as issued by the Philippine Statistics Authority. Without appropriate
safeguards against the expansive surveillance capabilities of the government and the inability to secure

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
against data breaches, there are concerns that this initiative increases significantly the risks to privacy being
confronted by individuals.

C. LAWS
1. R.A. No. 4200 (Anti-Wire Tapping Law) (1965)
 SECTION 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or
however otherwise described:
i. It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in
the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or
any other such record, or copies thereof, of any communication or spoken word secured either
before or after the effective date of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the contents thereof, either verbally or
in writing, or to furnish transcriptions thereof, whether complete or partial, to any other
person: Provided, That the use of such record or any copies thereof as evidence in any civil,
criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by
this prohibition.
 SECTION 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done any
of the acts declared to be unlawful in the preceding section or who violates the provisions of the following
section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction
thereof, be punished by imprisonment for not less than six months or more than six years and with the
accessory penalty of perpetual absolute disqualification from public office if the offender be a public official
at the time of the commission of the offense, and, if the offender is an alien he shall be subject to
deportation proceedings.
 SECTION 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace
officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful
in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and
disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit
rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as
defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage
and other offenses against national security: Provided, That such written order shall only be issued or
granted upon written application and the examination under oath or affirmation of the applicant and the
witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of
the crimes enumerated hereinabove has been committed or is being committed or is about to be
committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal
to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition,
such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may
be, have actually been or are being committed; (2) that there are reasonable grounds to believe that
evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the
prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such
evidence.

The order granted or issued shall specify: (1) the identity of the person or persons whose
communications, conversations, discussions, or spoken words are to be overheard, intercepted, or
recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the
telephone number involved and its location; (2) the identity of the peace officer authorized to
overhear, intercept, or record the communications, conversations, discussions, or spoken words;
(3) the offense or offenses committed or sought to be prevented; and (4) the period of the
authorization. The authorization shall be effective for the period specified in the order which shall
not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by
the court upon being satisfied that such extension or renewal is in the public interest. cd

All recordings made under court authorization shall, within forty-eight hours after the expiration of
the period fixed in the order, be deposited with the court in a sealed envelope or sealed package,
and shall be accompanied by an affidavit of the peace officer granted such authority stating the
number of recordings made, the dates and times covered by each recording, the number of tapes,
discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or
any part thereof have been made, or if made, that all such duplicates or copies are included in the
envelope or package deposited with the court. The envelope or package so deposited shall not be
opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon
order of the court, which shall not be granted except upon motion, with due notice and opportunity
to be heard to the person or persons whose conversation or communications have been recorded.

The court referred to in this section shall be understood to mean the Court of First Instance within
whose territorial jurisdiction the acts for which authority is applied for are to be executed.

 SECTION 4. Any communication or spoken word, or the existence, contents, substance, purport, effect,
or meaning of the same or any part thereof, or any information therein contained, obtained or secured by
any person in violation of the preceding sections of this Act shall not be admissible in evidence in any
judicial, quasi-judicial, legislative or administrative hearing or investigation.
2. Arts, 290, 291, 292 and 299. Revised Penal Code.

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NOTES TO CONSTITUTION 2
 Art. 290. Discovering secrets through seizure of correspondence. — The penalty of prision
correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed
upon any private individual who in order to discover the secrets of another, shall seize his papers or
letters and reveal the contents thereof.
o If the offender shall not reveal such secrets, the penalty shall be arresto mayor and a fine not
exceeding 500 pesos.
o The provision shall not be applicable to parents, guardians, or persons entrusted with the custody
of minors with respect to the papers or letters of the children or minors placed under their care or
study, nor to spouses with respect to the papers or letters of either of them.chanrobles virtual law
library
 Art. 291. Revealing secrets with abuse of office. — The penalty of arresto mayor and a fine not
exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity,
shall learn the secrets of his principal or master and shall reveal such secrets.chanrobles virtual law
library
 Art. 292. Revelation of industrial secrets. — The penalty of prision correccional in its minimum and
medium periods and a fine not exceeding 500 pesos shall be imposed upon the person in charge,
employee or workman of any manufacturing or industrial establishment who, to the prejudice of the owner
thereof, shall reveal the secrets of the industry of the latter.
3. RA No. 9372 (Human Security Act)
4. RA 10173 (Data Privacy Act)
5. Anti-Photo & Video Voyeurism Act
6. Anti – Terrorism Act
7. Writ of Habeas Data

 The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security
is violated or threatened by an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party. It is an independent and summary
remedy designed to protect the image, privacy, honor, information, and freedom of information of an
individual, and to provide a forum to enforce one's right to the truth and to informational privacy. It seeks to
protect a person's right to control information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve unlawful ends.
 In developing the writ of habeas data, the Court aimed to protect an individual's right to informational
privacy, among others. A comparative law scholar has, in fact, defined habeas data as "a procedure
designed to safeguard individual freedom from abuse in the information age." 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. 202666, [September 29, 2014], 744 PHIL 451-480)

D. CASE LAWS
8. Gaanan vs. IAC, 145 SCRA 113 (1986)

 Atty Pintor called up Atty Laconico requesting the latter to pay P8,000 in exchange of the former’s client
desistance in filing direct assault. Laconico requested Gaanan (his clerk) to secretly listen to the telephone
conversation through a telephone extension so as to hear personally the conditions for the settlement.
Later, Pintor filed against Laconico and Gaanan violation of section 1 of RA 4200 Anti-Wire Tapping for
secretly overhearing the private conversation. Whether or not an extension telephone is among the
prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would
 The mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices
in RA No. 4200 or others of similar nature. The extension telephone is not among such devices or
arrangements.

9. Katz vs. U.S., 389 U.S. 347 (1967)

 Katz was convicted under an indictment charging him with transmitting wagering information by telephone
across state lines in violation of 18 U.S.C. § 1084. Evidence of petitioner's end of the conversations,
overheard by FBI agents who had attached an electronic listening and recording device to the outside of
the telephone booth from which the calls were made, was introduced at the trial. The Court of Appeals
affirmed the conviction, finding that there was no Fourth Amendment violation, since there was "no physical
entrance into the area occupied by" petitioner.
 Held: The Government's eavesdropping activities violated the privacy upon which petitioner justifiably relied
while using the telephone booth, and thus constituted a "search and seizure" within the meaning of the
Fourth Amendment.
 The Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording
of oral statements. Silverman v. United States.

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NOTES TO CONSTITUTION 2
 Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence
or absence of a physical intrusion into any given enclosure.
 Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally
have been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is
a constitutional precondition of such electronic surveillance.

10. Ramirez vs. CA, G.R. No. 93833, September 28, 1995

 Socorro D. Ramirez had a confrontation with Ester Garcia. Ramirez who not being authorized by secretly
recorded their confrontation with the use of a tape recorder and thereafter communicate in writing the
contents of the said recording to other person. Garcia filed complaint against Ramirez for violation of RA
4200 Anti-Wire Tapping law. Ramirez contends that the provision merely refers to the unauthorized taping
of a private conversation by a party other than those involved in the communication.
 The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all
the parties to any private communication to secretly record such communication by means of a tape
recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought
to be a party other than or different from those involved in the private communication. The statute's intent
to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier
"any." Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a
communication who records his private conversation with another without the knowledge of the latter (will)
qualify as a violator" under this provision of R.A. 4200.

11. Salcedo-Ortanez v. CA, 235 SCRA 111 (1994)

 On 2 May 1990, Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for
annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of
marriage license and/or psychological incapacity of the petitioner. Ortanez offered in evidence three (3)
cassette tapes of alleged telephone conversations between petitioner and unidentified persons. The trial
court admitted all of private respondent's offered evidence. These tape recordings were made and obtained
when private respondent allowed his friends from the military to wire tap his home telephone.
 RA 4200 Anti-Wire Tapping law expressly makes such tape recordings inadmissible in evidence. Absent a
clear showing that both parties to the telephone conversations allowed to recording of the same, the
inadmissibility of the subject tapes is mandatory under RA 4200.

12. Alejano v. Cabuay, G.R. No. 160792, August 25, 2005

 Principle of “civil deaths” - prison officials can open (and read if not confidential) all incoming and outgoing
mail of prisoners to prevent the smuggling of contraband into the prison facility and to avert coordinated
escapes.
 321 soldiers stage a coup d’etat in Oakwood. Among those arrested and detained were Alejano, Trillanes
and Maestrecampo. These detention prisoners alleged that ISAFP Detention Center violated the detainees'
right to privacy when the ISAFP officials opened and read the letters handed by detainees Trillanes and
Maestrecampo to one of the petitioners for mailing. Petitioners point out that the letters were not in a sealed
envelope but simply folded because there were no envelopes in the ISAFP Detention Center. Petitioners
contend that the Constitution prohibits the infringement of a citizen's privacy rights unless authorized by
law. The Solicitor General does not deny that the ISAFP officials opened the letters.
 The letters alleged to have been read by the ISAFP authorities were not confidential letters between the
detainees and their lawyers. The petitioner who received the letters from detainees Trillanes and
Maestrecampo was merely acting as the detainees' personal courier and not as their counsel when he
received the letters for mailing. In the present case, since the letters were not confidential communication
between the detainees and their lawyers, the officials of the ISAFP Detention Center could read the letters.
If the letters are marked confidential communication between the detainees and their lawyers, the detention
officials should not read the letters but only open the envelopes for inspection (of possible contraband) in
the presence of the detainees.
 That a law is required before an executive officer could intrude on a citizen's privacy rights is a guarantee
that is available only to the public at large but not to persons who are detained or imprisoned. The right to
privacy of those detained is subject to Section 4 of RA 7348, as well as to the limitations inherent in lawful
detention or imprisonment. By the very fact of their detention, pre-trial detainees and convicted prisoners
have a diminished expectation of privacy rights.

o Privileged Communications
13. In Re Laureta, 148 SCRA 382 (1987)

 Eva Maravilla Illustre lost three times in the estates case of heirs of Ponciano Maravilla. She sent
several threats through letters to the justices of First Division to admit whether there was unjust decision
on their decisions. She filed a complaints against in the Ombudsman and also publicized the complaints
in the newspaper. Atty Wenceslao Laureta issued show cause order by the court as disgruntled litigant.
Laureta contended that the letters sent to the court were covered by privileged communication.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
 Respondents' reliance on the "privacy of communication" is misplaced. Letters addressed to individual
Justices, in connection with the performance of their judicial functions become part of the judicial record
and are a matter of concern for the entire Court. The contumacious character of those letters
constrained the First Division to refer the same to the Court en banc, en consulta and so that the
Court en banc could pass upon the judicial acts of the Division.

14. People vs. Albofera, 152 SCRA 123 (1987)

 Accused Albofera contends that his letter to prosecution witness, Rodrigo Esma is inadmissible in
evidence against him under the exclusionary provisions of Section 3, Article III of the 1987 Constitution
 "Sec. 4 (1) The privacy of communication and correspondence shall be inviolable except upon lawful
order of the Court, or when public safety and order require otherwise. "(2) Any evidence obtained in
violation of this or the preceding section shall be inadmissible for any purpose in any proceeding."
 The submission is untenable. The foregoing provision implements another Constitutional provision on
the security of a citizen against unreasonable search and seizure. The production of that letter by the
prosecution was not the result of an unlawful search and seizure nor was it through unwarranted
intrusion or invasion into Albofera's privacy. Albofera admitted having sent the letter and it was its
recipient, Rodrigo Esma himself, who produced and identified the same in the course of his testimony
in Court. Besides, there is nothing really self-incriminatory in the letter. Albofera mainly pleaded that
Esma change his declaration in his Affidavit and testify in his (Albofera's) favor. Furthermore, nothing
Albofera stated in his letter is being taken against him in arriving at a determination of his culpability.

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

 Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered
the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private
respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took 157
documents consisting of private correspondence between Dr. Martin and his alleged paramours,
greeting cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and
papers were seized for use in evidence in a case for legal separation and for disqualification from the
practice of medicine which petitioner had filed against her husband.
 Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be] inviolable" is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who
is the party against whom the constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or order
requires otherwise, as prescribed by law." Any violation of this provision renders the evidence obtained
inadmissible "for any purpose in any proceeding." The intimacies between husband and wife do not
justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for
any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her
integrity or his right to privacy as an individual and the constitutional protection is ever available to him
or to her.
 The law insures absolute freedom of communication between the spouses by making it
privileged. Neither husband nor wife may testify for or against the other without the consent of the
affected spouse while the marriage subsists. Neither may be examined without the consent of the other
as to any communication received in confidence by one from the other during the marriage, save for
specified exceptions. But one thing is freedom of communication; quite another is a compulsion for
each one to share what one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.

16. Deano v. Godinez, 12 SCRA 483 (1964)

 Trinidad A. Deaño filed defamatory case against Diogenez Godinez based on a communication sent
by the latter as district supervisor to his immediate superior, the Division Superintendent of Schools.
Trinidad claims that, with malice aforethought and in disregard of proper decorum and accepted
administrative practices, defendant wrote the aforesaid communication making therein statements
which are contrary to morals, good customs or public policy, and to existing rules and regulations,
thereby causing irreparable damage to her personal dignity and professional standing. As quoted, "In
view of the above, Dr. Deaño is a carping critic, a fault finder and suspects every teacher or school
official to be potential grafters and swindlers of the medical-dental funds. . . . The lady dentist will not
be welcomed in Lumbatan district next school year. . . . She did more harm than good to the teeth of
the patients she treated."
 The letter sent by defendant being a privileged communication, it is presumed that it was sent without
malice. A communication sent by an official to his immediate superior in the performance of a legal
duty, as an explanation of a matter contained in an indorsement sent to him by his superior officer,
although couched in a language somewhat harsh and uncalled for, is excusable in the interest of public
policy, and is considered a privileged communication, for which the writer is not liable for damages.

17. Waterhouse Drug Corporation v. NLRC, G.R. No. 113271. October 16, 1997

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NOTES TO CONSTITUTION 2
 In its decision of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the ground
that Waterhouse Drug Corp were not able to prove a just cause for Catolico's dismissal from her
employment. It found that petitioner's evidence consisted only of the check of P640.00 drawn by YSP
in favor of Catolico as allegedly a refund of an overprice purchase of medicine by Catolico to YSP. The
envelope containing the check inside were opened by her co-employee and saw the P640 refund check.
The NLRC decided in favor of Catolico as illegal dismissal although it declared that the check was
inadmissible in evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution.
 The check is admissible as it was opened by private individual, not the government authorities. In the
People v. Marti, the constitutional protection against unreasonable searches and seizures refers to the
immunity of one's person from interference by government and cannot be extended to acts committed
by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.
 The Court find no reason to revise the doctrine laid down in People v. Marti that the Bill of Rights does
not protect citizens from unreasonable searches and seizures perpetrated by private individuals. It is
not true, as counsel for Catolico claims, that the citizens have no recourse against such assaults. On
the contrary, and as said counsel admits, such an invasion gives rise to both criminal and civil liabilities.

18. Roxas vs. Zuzuarregei, June 12, 2007

 Atty. Roxas likewise cannot hide under the mantle of the right to privacy. It must be disclosed that prior to his letter
addressed to Justice Nazario, Atty. Roxas first wrote then Chief Justice Panganiban asking for an investigation as
to how the assailed decision was rendered and to sanction the perpetrators. The accusations contained therein
are similar to those in his letter to Justice Nazario. The fact that his letters were merely addressed to the Justices
of this Court and were not disseminated to the media is of no moment. Letters addressed to individual Justices, in
connection with the performance of their judicial functions, become part of the judicial record and are a matter of
concern for the entire court.

19. In the matter of petition for habeas corpus of Camilo Sabio, October 17, 2008

 The Court find Section 4(b) of E.O 1 directly repugnant with Article VI, Section 21. Section 4(b) exempts
the PCGG members and staff from the Congress' power of inquiry. This cannot be countenanced.
Nowhere in the Constitution is any provision granting such exemption. The Congress' power of inquiry,
being broad, encompasses everything that concerns the administration of existing laws as well as
proposed or possibly needed statutes. It even extends "to government agencies created by Congress
and officers whose positions are within the power of Congress to regulate or even abolish." 23 PCGG
belongs to this class.

o Right to privacy
20. SJS vs. Dangerous Drugs Board and PDEA, GR No. 157870, November 3, 3008

 Do Sec. 36 (g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates
for senator in addition to those laid down by the Constitution?
o Yes. Unconstitutionality of Sec. 36 (g) of RA 9165 is rooted on its having infringed the
constitutional provision defining the qualification or eligibility requirements for one aspiring to
run for and serve as senator. Sec. 36 (g) of RA 9165 effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36
(g) unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously
as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. Thus,
legislative power remains limited in the sense that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of the power itself and the allowable subjects
of legislation. The substantive constitutional limitations are chiefly found in the Bill of
Rights and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the
qualifications of candidates for senators.
 Are paragraphs (c), (d), (f) and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of legislative power?

o In the case of students, the constitutional viability of the mandatory, random, and
suspicionless drug testing for students emanates primarily from the waiver by the students
of their right to privacy when they seek entry to the school, and from their voluntarily
submitting their persons to the parental authority of school authorities. In the case of private
and public employees, the constitutional soundness of the mandatory, random, and
suspicionless drug testing proceeds from the reasonableness of the drug test policy and
requirement.
o Unlike the situation covered by Sec. 36 (c) and (d) of RA 9165, the Court finds no valid
justification for mandatory drug testing for persons accused of crimes. We find the
situation entirely different in the case of persons charged before the public prosecutor's office
with criminal offenses punishable with six (6) years and one (1) day imprisonment. The
operative concepts in the mandatory drug testing are "randomness" and "suspicionless". In
the case of persons charged with a crime before the prosecutor's office, a mandatory drug

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NOTES TO CONSTITUTION 2
testing can never be random or suspicionless. The ideas of randomness and being
suspicionless are antithetical to their being made defendants in a criminal complaint. They
are not randomly picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded against their will.
The persons thus charged, by the bare fact of being haled before the 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. 40 To impose mandatory drug
testing on the accused is a blatant attempt to harness a medical test as a tool for criminal
prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would
violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution.
Worse still, the accused persons are veritably forced to incriminate themselves.
21. Ayer Productions vs. Capulong

 The proposed motion picture entitled "The Four Day Revolution" was endorsed by MTRCB as well as
the other government agencies consulted. General Fidel Ramos also signified his approval of the
intended film production. The proposed motion picture would be essentially a reenactment of the events
that made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television
play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with real
events, and utilizing actual documentary footage as background. Enrile objected not use the actual
footage, his name or any of this family to any matter personal to them. The production continued without
his name. Later, Enrile filed a Complaint with TRO seeking to enjoin petitioners from producing the
movie as without his consent and over his objection. Enrile asserts a right of privacy and claims that
the production and filming of the projected mini-series would constitute an unlawful intrusion into his
privacy which he is entitled to enjoy.
 Whether the "balancing of interests test" or the "clear and present danger test" be applied in respect of
the instant Petitions, the Court believes that a different conclusion must here be reached: The
production and filming by petitioners of the projected motion picture "The Four Day Revolution" does
notconstitute an unlawful intrusion upon private respondent's "right of privacy." Enrile is a public figure
whose right of privacy is necessarily narrower than that of an ordinary citizen.
 The right of privacy or "the right to be let alone," like the right of free expression, is not an absolute
right. A limited intrusion into a person's privacy has long been regarded as permissible where that
person is a public figure and the information sought to be elicited from him or to be published about him
constitute matters of a public character. Succinctly put, the right of privacy cannot be invoked to resist
publication and dissemination of matters of public interest. The interest sought to be protected by the
right of privacy is the right to be free from "unwarranted publicity, from the wrongful publicizing of
the private affairs and activities of an individual which are outside the realm of legitimate public
concern."

22. Vivares, et al. vs. STC, G.R. No. 202666, September 29, 2014

 Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period
material, graduating high school students at St. Theresa's College (STC), Cebu City. Sometime in
January 2012, while changing into their swimsuits for a beach party they were about to attend, Julia
and Julienne, along with several others, took digital pictures of themselves clad only in their
undergarments. These pictures were then uploaded by Angela Lindsay Tan (Angela) on her
Facebook profile. Escudero, a computer teacher at STC's high school department, learned from her
students that some seniors at STC posted pictures online, depicting themselves from the waist up,
dressed only in brassieres. Escudero then asked her students if they knew who the girls in the photos
are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes Taboada (Chloe), among others.
Using STC's computers, Escudero's students logged in to their respective personal Facebook accounts
and showed her photos of the identified students, which include: (a) Julia and Julienne drinking hard
liquor and smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing
articles of clothing that show virtually the entirety of their black brassieres.
 Is there a right to informational privacy in OSN activities of its users? Did STC violate the right to privacy
of the student?
 STC did not violate the right to privacy. In sum, there can be no quibbling that the images in question,
or to be more precise, the photos of minor students scantily clad, are personal in nature, likely to affect,
if indiscriminately circulated, the reputation of the minors enrolled in a conservative institution. However,
the records are bereft of any evidence, other than bare assertions that they utilized Facebook's privacy
settings to make the photos visible only to them or to a select few. Without proof that they placed the
photographs subject of this case within the ambit of their protected zone of privacy, they cannot now
insist that they have an expectation of privacy with respect to the photographs in question.
 Had it been proved that the access to the pictures posted were limited to the original uploader, through
the "Me Only" privacy setting, or that the user's contact list has been screened to limit access to a select
few, through the "Custom" setting, the result may have been different, for in such instances, the
intention to limit access to the particular post, instead of being broadcasted to the public at large or all
the user's friends en masse, becomes more manifest and palpable.
 In US v. Gines-Perez is most instructive: [A] person who places a photograph on the Internet precisely
intends to forsake and renounce all privacy rights to such imagery, particularly under circumstances
such as here, where the Defendant did not employ protective measures or devices that would have
controlled access to the Web page or the photograph itself.

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NOTES TO CONSTITUTION 2
 Also, United States v. Maxwell held that "[t]he more open the method of transmission is, the less privacy
one can reasonably expect. Messages sent to the public at large in the chat room or e-mail that is
forwarded from correspondent to correspondent loses any semblance of privacy."

23. Ople vs. Torres, G.R. No. 127685 July 23, 1998
 Administrative Order No. 308, entitled "Adoption of a National Computerized Identification Reference
System," was issued by the President on December 12, 1996. Petitioner challenges the constitutionality
of said Administrative Order on two (2) grounds, namely: (1) it is a usurpation of the power of Congress
to legislate; and (2) its impermissibility intrudes on our citizenry's protected zone of privacy. Petitioner
contends that the Administrative Order is not a mere administrative order but a law and, hence, beyond
the power of the President to issue. He further alleges that said Administrative Order establishes a
system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino
citizen and foreign resident, and more particularly, violates their right to privacy.
 In declaring the Administrative Order null and void for being unconstitutional, the Supreme Court held
that the Administrative Order involves a subject that is not appropriate to be covered by said
administrative order. An administrative order is an ordinance issued by the President which relates to
specific aspects in the administrative operation of government. It must be in harmony with the law and
should be for the sole purpose of implementing the law and carrying out the legislative policy.
 The essence of privacy is the right to be let alone. The right to privacy is recognized and enshrined in
several provisions of the Constitution. Zones of privacy are likewise recognized and protected in our
laws. Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden of government to show that A. O. No. 308 is
justified by some compelling state interest and that it is narrowly drawn. What is not arguable is the
broadness, the vagueness, the overbreath of A. O. No. 308 which if implemented will put our people's
right to privacy in clear and present danger.
 AO. No. 308 falls short of assuring that personal information which will be gathered about our people
will only be processed for unequivocally specified purposes. Even while we strike down A. O. No. 308,
we spell out that the Court is not per se against the use of computers to accumulate, store, process,
retrieve and transmit data to improve our bureaucracy. Given the record-keeping power of the
computer, only the indifferent will fail to perceive the danger that A. O. No. 308 gives the government
the power to compile a devastating dossier against unsuspecting citizens.
24. KMU v. NEDA, G.R. No. 167798, April 19, 2006

 Under EO 420 ‘Unified multi-purpose ID system”, the President directs all government agencies and
government-owned and controlled corporations to adopt a uniform data collection and format for their
existing identification (ID) systems. Petitioners in G.R. No. 167798 allege that EO 420 is
unconstitutional because it constitutes usurpation of legislative functions by the executive branch of the
government. Furthermore, they allege that EO 420 infringes on the citizen's right to privacy.
 EO 420 is well within the constitutional power of the President to promulgate. The President has not
usurped legislative power in issuing EO 420. EO 420 is an exercise of Executive power - the President's
constitutional power of control over the Executive department. EO 420 is also compliance by the
President of the constitutional duty to ensure that the laws are faithfully executed. Certainly, under this
constitutional power of control the President can direct all government entities, in the exercise of their
functions under existing laws, to adopt a uniform ID data collection and ID format to achieve savings,
efficiency, reliability, compatibility, and convenience to the public. The President's constitutional power
of control is self-executing and does not need any implementing legislation.
 On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the data that can
be collected, recorded and shown compared to the existing ID systems of government entities. EO 420
further provides strict safeguards to protect the confidentiality of the data collected, in contrast to the
prior ID systems which are bereft of strict administrative safeguards.
 EO 420 applies only to government entities that already maintain ID systems and issue ID cards
pursuant to their regular functions under existing laws. EO 420 does not grant such government
entities any power that they do not already possess under existing laws. In contrast, the assailed
executive issuance in Ople v. Torres sought to establish
National Computerized Identification Reference System, a national ID system that did not exist prior
to the assailed executive issuance. Obviously, a national ID card system requires legislation because
it creates a new national data collection and card issuance system where none existed before.

 In the present case, EO 420 does not establish a national ID system but makes the existing sectoral
card systems of government entities like GSIS, SSS, Philhealth and LTO less costly, more efficient,
reliable and user-friendly to the public. Hence, EO 420 is a proper subject of executive issuance
under the President's constitutional power of control over government entities in the Executive
department, as well as under the President's constitutional duty to ensure that laws are faithfully
executed.
o Exclusionary Rule
25. Art. III, Sec. 3(2)
26. Silverthorne Lumber vs. US, 251 US 385 (1920)

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NOTES TO CONSTITUTION 2
 The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the Court, but that it shall not be used at all. Of course,
this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of
them is gained from an independent source they may be proved like any others, but the knowledge
gained by the Government's own wrong cannot be used by it in the way proposed.
27. People v. Aruta, G. R. 120915, April 3. 1998

 In the morning of December 13, 1988, the law enforcement officers received information from an
informant named "Benjie" that a certain "Aling Rosa" would be leaving for Baguio City on December
14, 1988 and would be back in the afternoon of the same day carrying with her a large volume of
marijuana; (2) At 6:30 in the evening of December 14, 1988, accused-appellant alighted from a Victory
Liner Bus carrying a travelling bag even as the informant pointed her out to the law enforcement officers;
(3) The law enforcement officers approached her and introduced themselves as NARCOM agents; (4)
When asked by Lt. Abello about the contents of her travelling bag, she gave the same to him; (5) When
they opened the same, they found dried marijuana leaves; (6) Accused-appellant was then brought to
the NARCOM office for investigation.

 In People v. Tangliben, acting on information supplied by informers, police officers conducted a

surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who
may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs.
At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting
suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later
on when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a
plastic wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest.
o In instant case, the apprehending officers already had prior knowledge from their informant
regarding Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-
spot tip. Moreover, the policemen knew that the Victory Liner compound is being used by drug
traffickers as their "business address". More significantly, Tangliben was acting suspiciously.
His actuations and surrounding circumstances led the policemen to reasonably suspect
that Tangliben is committing a crime. In instant case, there is no single indication that Aruta
was acting suspiciously.
 In People v. Malmstedt, the Narcom agents received reports that vehicles coming from Sagada were
transporting marijuana. They likewise received information that a Caucasian coming from Sagada
had prohibited drugs on his person. There was no reasonable time to obtain a search warrant,
especially since the identity of the suspect could not be readily ascertained. His actuations also
aroused the suspicion of the officers conducting the operation. The Court held that in light of such
circumstances, to deprive the agents of the ability and facility to act promptly, including a search
without a warrant, would be to sanction impotence and ineffectiveness in law enforcement, to the
detriment of society.
o Note, however, the glaring differences of Malmstedt to the instant case. In present case, the
police officers had reasonable time within which to secure a search warrant. Second, Aruta's
identity was priorly ascertained. Third, Aruta was not acting suspiciously.
Fourth, Malmstedt was searched aboard a moving vehicle, a legally accepted exception to
the warrant requirement. Aruta, on the other hand, was searched while about to cross a
street.
 In People v. Bagista, the NARCOM officers had probable cause to stop and search all vehicles
coming from the north to Acop, Tublay, Benguet in view of the confidential information they received
from their regular informant that a woman having the same appearance as that of accused-appellant
would be bringing marijuana from up north. They likewise had probable cause to search accused-
appellant's belongings since she fitted the description given by the NARCOM informant. Since there
was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said
search is admissible against accused-appellant.
o Again, this case differs from Aruta as this involves a search of a moving vehicle plus the fact
that the police officers erected a checkpoint. Both are exceptions to the requirements of a
search warrant.
 In Manalili v. Court of Appeals and People, the policemen conducted a surveillance in an area of
the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching
the place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He
was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared
to be trying to avoid the policemen. When approached and asked what he was holding in his hands,
he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the
policemen had sufficient reason to accost accused-appellant to determine if he was actually "high" on
drugs due to his suspicious actuations, coupled with the fact that based on information, this area was
a haven for drug addicts.
o In all the abovecited cases, there was information received which became the bases for
conducting the warrantless search. Furthermore, additional factors and circumstances were
present which, when taken together with the information, constituted probable causes which
justified the warrantless searches and seizures in each of the cases.

 In fine, there was really no excuse for the NARCOM agents not to procure a search warrant
considering that they had more than twenty-four hours to do so. Obviously, this is again an instance

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NOTES TO CONSTITUTION 2
of seizure of the "fruit of the poisonous tree," hence illegal and inadmissible subsequently in
evidence.
 The exclusion of such evidence is the only practical means of enforcing the constitutional injunction
against unreasonable searches and seizure. The non-exclusionary rule is contrary to the letter and
spirit of the prohibition against unreasonable searches and seizures.

28. People v. Rondero, G.R. 125687, December 9, 1999

 It bears emphasis, however, that under the above-quoted provisions, what is actually proscribed is the
use of physical or moral compulsion to extort communication from the accused-appellant and not the
inclusion of his body in evidence when it may be material. For instance, substance emitted from the
body of the accused may be received as evidence in prosecution for acts of lasciviousness and
morphine forced out of the mouth of the accused may also be used as evidence against him.
Consequently, although accused-appellant insists that hair samples were forcibly taken from him and
submitted to the NBI for forensic examination, the hair samples may be admitted in evidence against
him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in
nature acquired from the accused under duress.
 On the other hand, the blood-stained undershirt and short pants taken from the accused are
inadmissible in evidence. They were taken without the proper search warrant from the police officers.
Accused-appellant's wife testified that the police officers, after arresting her husband in their house,
took the garments from the clothesline without proper authority. This was never rebutted by the
prosecution. Under the libertarian exclusionary rule known as the "fruit of the poisonous tree," evidence
illegally obtained by the state should not be used to gain other evidence because the illegally obtained
evidence taints all evidence subsequently obtained. Simply put, accused-appellant's garments, having
been seized in violation of his constitutional right against illegal searches and seizure, are inadmissible
in court as evidence.
 Nevertheless, even without the admission of the bloodied garments of the accused as corroborative
evidence, the circumstances obtaining against accused-appellant are sufficient to establish his guilt.

o Liability for damages

29. Aberca vs. Ver, 160 SCRA 590 (1989)

 Article 32 of the Civil Code which renders any public officer or employee or any private individual liable
in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does
not exempt the respondents from responsibility. Only judges are excluded from liability under the said
article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal
statute.

30. Illusorio v. Bildner, G.R. 139789, May 12, 2000

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NOTES TO CONSTITUTION 2

CIVIL LIBERTIES

X. FREEDOM OF EXPRESSION
o Art. III, Sec. 4

 Section 4- No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for redress
of grievances.

o What are considered protected speech:

 Protected speech includes every form of expression, whether oral, written, tape or disc recorded. It
includes motion pictures as well as what is known as symbolic speech such as the wearing of an
armband as a symbol of protest. Peaceful picketing has also been included within the meaning of
speech.

o Prohibitions under Section 4

1) Prohibition against PRIOR RESTRAINT
2) Prohibition against SUBSEQUENT PUNISHMENT
o Prohibition against prior restraint
1) Prior restraint means official governmental restrictions on the press or other forms of expression in
advance of actual publication or dissemination.
2) Examples/forms of prior restraint
1) movie censorship
2) judicial prior restraint = injunction against publication
3) license taxes based on gross receipts for the privilege of engaging in the business of
advertising in any newspaper
4) flat license fees for the privilege of selling religious books
o When prohibition does not apply
1) During a war. Ex. Government can prevent publication about the number/locations of its troops (Near
v. Minnesota, 238 US 697)
2) Obscene publications.
o Standards for allowable subsequent punishment

TEST CRITERION

There should be a RATIONAL CONNECTION

1. Dangerous Tendency Test
between the speech and the evil apprehended.
There should be a clear and present danger that the
2. Clear and Present Danger Test
words when used under such circumstances are of
such a nature as to create a CLEAR AND
PRESENT DANGER that they will bring about the
substantive evils that the State has a right to
prevent.
3. Balancing of Interests Test The courts should BALANCE the PUBLIC
INTEREST served by legislation on one hand
and the FREEDOM OF SPEECH (or any other
constitutional right) on the other. The courts will
then decide where the greater weight should be
placed.

A. Freedom of Speech

 The doctrine on freedom of speech was formulated primarily for the protection of “core” speech, i.e.
speech which communicates political, social or religious ideas. These enjoy the same degree of
protection. Commercial speech, however, does not.

o Commercial Speech

 A communication which no more than proposes a commercial transaction.

o To enjoy protection:

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
1. It must not be false or misleading; and
2. It should not propose an illegal transaction.

o Even truthful and lawful commercial speech may be regulated if:

1. Government has a substantial interest to protect;

2. The regulation directly advances that interest; and
3. It is not more extensive than is necessary to protect that interest. (Central Hudson Gas and Electric Corp.
v. Public Service Commission of NY, 447 US 557)

o Unprotected Speech

1. LIBEL

1) FAIR COMMENT (U.S. Rule). These are statements of OPINION, not of fact, and are not considered
actionable, even if the words used are neither mild nor temperate. What is important is that the opinion is
the true and honest opinion of the person. The statements are not used to attack personalities but to give
one’s opinion on decisions and actions.
2) OPINIONS. With respect to public personalities (politicians, actors, anyone with a connection to a
newsworthy event), opinions can be aired regarding their public actuations. Comment on their private lives,
if not germane to their public personae, are not protected.

2. OBSCENITY

Test for obscenity (Miller v. California)

1) Whether the average person, applying contemporary community standards would find that the work,
taken as a whole, appeals to the prurient interest.
2) Whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined
by law.
3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Procedure for seizure of allegedly obscene publications

1. Authorities must apply for issuance of search warrant.

2. Court must be convinced that the materials are obscene. Apply clear and present danger test.
3. Judge will determine whether they are in fact “obscene”.
4. Judge will issue a search warrant.
5. Proper action should be filed under Art. 201 of the RPC.
6. Conviction is subject to appeal.

o Content-based restrictions on free speech, and content-neutral regulations

 Content-based restrictions are imposed because of the content of the speech and are, therefore,
subject to the clear-and-present danger test. For example, a rule such as that involved in Sanidad v.
Comelec, prohibiting columnists, commentators, and announcers from campaigning either for or
against an issue in a plebiscite must have compelling reason to support it, or it will not pass muster
under strict scrutiny. These restrictions are censorial and therefore they bear a heavy presumption of
constitutional invalidity. In addition, they will be tested for possible overbreadth and vagueness.
 Content-neutral restrictions, on the other hand, like Sec. 11(b) of R.A. No. 6646, which prohibits the
sale or donation of print space and air time to political candidates during the campaign period, are not
concerned with the content of the speech. These regulations need only a substantial governmental
interest to support them. A deferential standard of review will suffice to test their validity. The clear-
and-present danger rule is inappropriate as a test for determining the constitutional validity of laws, like
Sec. 11(b) of R.A. No. 6646, which are not concerned with the content of political ads but only with their
incidents. To apply the clear-and-present danger test to such regulatory measures would be like using
a sledgehammer to drive a nail when a regular hammer is all that is needed.
 The test for this difference in the level of justification for the restriction of speech is that content-based
restrictions distort public debate, have improper motivation, and are usually imposed because of fear
of how people will react to a particular speech. No such reasons underlie content-neutral regulations,
like regulation of time, place and manner of holding public assemblies under B.P. Blg. 880, the Public
Assembly Act of 1985. (Osmena v. COMELEC, 288 SCRA 447, March 31, 1998 [Mendoza])

o What is the most influential test for distinguishing content-based from content-neutral regulations?

1. The United States Supreme Court held in United States v. O’ Brien:

 [A] a governmental regulation is sufficiently justified (1) if it is within the constitutional power of the
government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental
interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged
First Amendment freedoms (of speech, expression and press) is no greater than is essential to the
furtherance of that interest (391 U.S. 367, 20 L. Ed. 2df 692, 680 [1968] [bracketed numbers added])

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
 This is so far the most influential test for distinguishing content-based from content-neutral regulations
and is said to have “become canonical in the review of such laws.” (G. Gunther & K. Sullivan,
Constitutional Law 1217 [13th ed. 1997]). It is noteworthy that the O’ Brien test has been applied by
this Court in at least two cases (Adiong v. Comelec, 207 SCRA 712 [1992]; Osmena v. Comelec,
supra.).
 Under this test, even if a law furthers an important or substantial governmental interest, it should be
invalidated if such governmental interest is “not unrelated to the suppression of free expression.”
Moreover, even if the purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to
achieve the governmental purpose in question. (Social Weather Stations, Inc. v. Comelec, G.R. No.
147571, May 5, 2001, En Banc [Mendoza]) Chavez v. Secretary Gonzales
 Content based and content neutral regulations- Regulations of speech may either be content-based
(the subject of the speech or utterance is sought to be regulated) and content-neutral (it regulates only
the conduct associated with speech, such as the time, place and manner). To pass constitutional
muster, any content-based regulation must show that the government has a compelling or overriding
interest in the subject regulation. A content neutral restriction, on the other hand, need only show an
important government interest, as long as it leaves open alternative channels of communication.
o CASES:

2. Chavez vs. Secretary Gonzales, GR No. 168338, February 15, 2008- The acts of the Secretary of Justice
and the NTC in warning television stations against playing the “Garci tapes” under pain of revocation of their
licenses, were content-based restrictions and should be subjected to the “clear and present and danger test”.
3. Newsounds Broadcasting Network, Inc., et al. vs. Dy, et al., GR No. 170270/GR No. 179411, April 2,
2009- The immediate implication of the application of the “strict scrutiny” test is that the burden falls upon
respondents as agents of the government to prove that their actions do not infringe upon petitioners’
constitutional rights. As content regulation cannot be done in the absence of compelling reason to infringe the
right to free expression.
4. The Diocese of Bacolod, Represented by the Most Rev. Bishop Vicente M. Navarra, et al. v. COMELEC,
GR No. 205728, January 21, 2015, En Banc (Leonen) This case defines the extent that our people may
shape the debates during elections. It is significant and of first impression. We are asked to decide whether
the Commission on Elections (COMELEC) has the competence to limit expressions made by the citizens –
who are not candidates – during elections.

 All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of speech implicit in the kind of society framed
by our Constitution.
 Our Constitution has also explicitly included the freedom of expression, separate and in addition to the
freedom of speech and of the press provided in the US Constitution. The word “expression” was added
in the 1987 Constitution x x x for having a wider scope x x x.
 Speech may be said to be inextricably linked to freedom itself as “[t]he right to think is the beginning of
freedom, and speech must be protected from the government because speech is the beginning of
thought.” (Freedom of Speech and Expression, 116 Harv. L. Rev. 272, 277 [2002], quoting Justice
Kennedy in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389, 1403 [2002])
 Communication is an essential outcome of protected speech. Communication exists when “(1) a
speaker, seeking to signal others, uses conventional actions because he or she reasonably believes
that such actions will be taken by the audience in the manner intended; and (2) the audience so takes
the actions.” (Heidi M. Hurd, Sovereignty in Silence, 99 Yale L. J. 945, 954 [1990]) “[I]n communicative
action[,] the hearer may respond to the claims by x x x either accepting the speech act’s claims or
opposing them with criticism or requests for justification.” (Hugh Baxter, System and Lifeworld in
Haberma’s Theory of Law, 23 Cardozo L. Rev. 473, 499 [2002])

5. Speech is not limited to vocal communication. “[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’ (Joshua Waldman, Symbolic Speech and Social Meaning, 97 Colum. L.
Rev. 1844, 1847 [1997]) such that “’when ‘speech’ and ‘nonspeech’ elements are combined in the same
course of conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring into play the [right
to freedom of expression].’” (Id., citing US v. O’Brien, 391 U.S. 367, 376 [1968])

 The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.
 Even before freedom “of expression” was included in Article III, Section 4 of the present Constitution,
this court has applied its precedent version to expressions other than verbal utterances.

6. 1 Utak vs COMELEC, GR 206020 April 14 2015- The COMELEC may only regulate the franchise or permit
to operate and not the ownership per se of PUVs and transport terminals. The posting of election campaign
material on vehicles used for public transport or on transport terminals is not only a form of political
expression, but also an act of ownership – it has nothing to do with the franchise or permit to operate the PUV
or transport terminal.

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NOTES TO CONSTITUTION 2
 - A government regulation based on the captive-audience doctrine may not be justified if the
supposed “captive audience” may avoid exposure to the otherwise intrusive speech. Here, the
commuters are not forced or compelled to read the election campaign materials posted on PUVs and
transport terminals. Nor are they incapable of declining to receive the messages contained in the
posted election campaign materials since they may simply avert their eyes if they find the same
unbearably intrusive. Hence, the doctrine is not applicable.
 - It unduly infringes on the fundamental right of the people to freedom of speech. Central to the
prohibition is the freedom of individuals such as the owners of PUVs and private transport terminals to
express their preference, through the posting of election campaign material in their property, and
convince others to agree with them.
 - The prohibition under the certain provisions of RA 9615 are content-neutral regulations since they
merely control the place where election campaign materials may be posted, but the prohibition is
repugnant to the free speech clause as it fails to satisfy all of the requisites for a valid content-neutral
regulation.
 - The restriction on free speech of owners of PUVs and transport terminals is not necessary to a stated
governmental interest. First, while Resolution 9615 was promulgated by the COMELEC to implement
the provisions of Fair Elections Act, the prohibition on posting of election campaign materials on PUVs
and transport terminals was not provided for therein. Second, there are more than sufficient provisions
in our present election laws that would ensure equal time, space, and opportunity to candidates in
elections. Hence, one of the requisites of a valid content-neutral regulation was not satisfied.

7. Disini vs. Secretary of Justice- to prohibit the transmission of unsolicited commercial ads; and the State
cannot rob him of his right without violating his constitutionally guaranteed freedom of expression.
8. Commercial Speech vis-a-vis Section 4©(3) of RA No. 10175- To prohibit the transmission of unsolicited
ads would deny a person the right to read his emails, even if unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded the same level of protection as
that given to other constitutionally guaranteed forms of expression, but is nonetheless is entitled to protection.
The State cannot rob him of his right without violating the constitutionally guaranteed freedom of expression.
Unsolicited advertisements are legitmate forms of expression.
9. GMA Network vs. COMELEC, September 2, 2014- when the COMELEC drastically reduced the airtime
within which national candidates and political parties may air political advertisements on television and radio,
it unduly restricted and constrained the ability of candidates and political parties to reach out and
communicate with the people.
10. Social Weather Stations vs. COMELEC, May 5, 2001- Election surveys are covered by the protection to
freedom of expression as they refer to the measurement of opinions and perception of voters as regards to a
candidate’s popularity, qualifications, platforms or a matter of public discussion in relation to the election,
including the voter’s preference for candidates or publicly discussed issues during the campaign period.The
prohibition imposed by Section 5.4 of RA 9006 (Fair Election Act) is invalid because: 1) it imposes prior
restraint on the freedom of expression; 2) it is a direct and total suppression of a category of expression even
though such suppression is only for a limited period; and 3) the government interest sought to be promoted
can be achieved by means other than the suppression of freedom of expression.
11. The overbreadth and the vagueness doctrines have special application only to free-speech cases, and are
not appropriate for testing the validity of penal statutes. The doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they
are called in American law.

 A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men
of common intelligence must necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.[57] The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or
prevent activities constitutionally subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms.
 As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will accordingly refrain from that behavior, even though some
of it is protected.
 A “facial” challenge is likewise different from an “as-applied” challenge. Distinguished from an as-
applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally protected speech or activities.
 The vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to
penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on
either vagueness or overbreadth grounds.
 The allowance of a facial challenge in free speech cases is justified by the aim to avert the “chilling
effect” on protected speech, the exercise of which should not at all times be abridged. As reflected
earlier, this rationale is inapplicable to plain penal statutes that generally bear an “in terrorem effect” in
deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.
 The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected
to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against
employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy before judicial
power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous
and speculative. It would, essentially, force the court to consider third parties who are not before it. As
I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test
will impair the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the State’s power to prosecute on a mere showing that, as applied to third
parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.
 It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind
of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech
cases.
 By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to
plot areas of protected speech, inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if the court confines itself only to facts as applied
to the litigant.
 In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, observed
that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of
the First Amendment, and that claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks, it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the
“transcendent value to all society of constitutionally protected expression.”
 American jurisprudence instructs that “vagueness challenges that do not involve the First Amendment
must be examined in light of the specific facts of the case at hand and not with regard to the statute's
facial validity.”
 In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been
utilized in examining the constitutionality of criminal statutes. In at least three cases, the Court brought
the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on
fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these
three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the
therein assailed penal statute, unlike in the present case.
 From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following
elements may be culled: (1) the offender commits an act punishable under any of the cited provisions
of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of
the predicate crime sows and creates a condition of widespread and extraordinary fear and panic
among the populace; and (3) the offender is actuated by the desire to coerce the government to give
in to an unlawful demand.
 Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually
committed to trigger the operation of the key qualifying phrases in the other elements of the crime,
including the coercion of the government to accede to an “unlawful demand.” Given the presence of
the first element, any attempt at singling out or highlighting the communicative component of the
prohibition cannot recategorize the unprotected conduct into a protected speech.

12. ABS-CBN vs. COMELEC, 323 SCRA 811 (2000)-The prohibition of publication of exit poll or electoral
survey would be unreasonably restrictive because it effectively prevents the use of exit poll data not only for
election day projections, but also for long term research.
13. MTRCB vs. ABS-CBN, et al., January 17, 2005- P.D. No. 1986 gives petitioner “the power to screen, review
and examine “all television programs,” emphasizing the phrase “all television programs”. Thus, when the law
says “all television programs,” the word “all” covers all television programs, whether religious, public affairs,
news documentary, etc. The principle assumes that the legislative body made no qualification in the use of
general word or expression. It then follows that since “The Inside Story” is a television program, it is within the
jurisdiction of the MTRCB over which it has power of review.
14. Soriano v. Laguardia, GR No. 164785; Soriano v. MTRCB GR No. 165636, April 29, 2009-The Supreme
Court said that Soriano’s “statement can be treated as obscene, at least with respect to the average child,”
and thus his utterances cannot be considered as protected speech. Ang Dating Daan has earlier been given a
“G” rating for general viewership. The Supreme Court said the MTRCB suspension was limited only to the
show Ang Dating Daan, not Soriano, as the MTRCB “may not suspend television personalities, for such would
be beyond its jurisdiction.”

B. Freedom of the Press

15. Four (4) Aspects of Press Freedom

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
 Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four
aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from
punishment subsequent to publication; (3) freedom of access to information; and (4) freedom of
circulation. (Francisco Chavez v. Raul M. Gonzales, et. al., G.R. No. 168338, 15 February 2008, En
Banc [Puno, CJ])

16. Borjal vs. CA, 301 SCRA 1, In order to maintain a libel suit, it is essential that the victim is identifiable
although it is not necessary that he be named. It must also be shown that a third party could identify him as
the object of the libelous article. Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following:
1. private communication made by any person to another in the performance of any legal, moral or
social duty;
2. a fair and true report, made in good faith, without remarks, of any judicial, legislative or other official
proceeding which are not confidential in nature including any statement made therein or act performed
by public officer.

 - A privileged communication may either be absolutely privileged (those which are not actionable or
even if author acted in bad faith, e.g. speech by member of Congress therein or any committee thereof)
or qualified privileged (those containing defamatory imputations which are not actionable unless found
to have been made without good intention or justifiable motive, e.g., private communications and fair
and true reports without any comments/remarks).
 - Fair commentaries on matters of public interest are privileged and constitute a valid defense in an
action for libel or slander. The doctrine of fair comment means that while in general every discreditable
imputation publicly made is deemed false, because every man is presumed innocent until his guilt is
judicially proved.

C. Freedom of Assembly

 The first point to mark is that the right to peaceably assemble and petition for redress of grievances is,
together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the
realm of constitutional protection. For these rights constitute the very basis of a functional democratic
polity, without which all the other rights would be meaningless and unprotected. (BAYAN, et al. v.
Ermita, et al., G.R. No. 169838, April 25, 2006, En Banc [Azcuna])

o The standards for allowable impairment of speech and press also apply to the right of assembly and
petition.
o Rules on assembly in public places:

1) Applicant should inform the licensing authority of the date, the public place where and the time when the
assembly will take place.
2) The application should be filed ahead of time to enable the public official concerned to appraise whether there
are valid objections to the grant of the permit or to its grant, but in another public place. The grant or refusal
should be based on the application of the Clear and Present Danger Test.
3) If the public authority is of the view that there is an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter.
4) The decision of the public authority, whether favorable or adverse, must be transmitted to the applicants at the
earliest opportunity so that they may, if they so desire, have recourse to the proper judicial authority.

o Rules on assembly in private properties:

 Only the consent of the owner of the property or person entitled to possession thereof is required.

o Batas Pambansa Blg. 880 – The Public Assembly Act of 1985

 Meaning of Public Assembly- “Public assembly” means any rally, demonstration, march, parade,
procession or any other form of mass or concerted action held in a public place for the purpose of
presenting a lawful cause, or expressing an opinion to the general public on any particular issue; or
protesting or influencing any state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.
 The processions, rallies, parades, demonstrations, public meetings and assemblages for religious
purposes shall be governed by local ordinances; Provided, however, That the declaration of policy as
provided in Section 2 of this Act shall be faithfully observed.
 The definition herein contained shall not include picketing and other concerted action in strike areas by
workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing
rules and regulations, and by the Batas Pambansa Bilang 227. (Section 3[a], B.P. Blg. 880)
 Permit when required and when not required- A written permit shall be required for any person or
persons to organize and hold a public assembly in a public place. However, no permit shall be required
if the public assembly shall be done or made in a freedom park duly established by law or ordinance or
in a private property, in which case only the consent of the owner or the one entitled to its legal
possession is required, or in the campus of a government–owned and operated educational institution

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
which shall be subject to the rules and regulations of said educational institution. Political meetings or
rallies held during any election campaign period as provided for by law are not covered by this Act.
(Section 4, B.P. Blg. 880)
 Freedom Parks- Every city and municipality in the country shall within six months after the effectivity
of this Act establish or designate at least one suitable “freedom park” or mall in their respective
jurisdictions which, as far as practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of any prior permit. (Section
5, B.P. Blg. 880)

o Action to be taken on the application (Section 6, B.P. Blg. 880)

1) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there
is clear and convincing evidence that the public assembly will create a clear and present danger to
public order, public safety, public convenience, public morals or public health.
2) The mayor or any official acting in his behalf 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. 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 office of the mayor and shall be
deemed to have been filed.
3) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the applicant who must be heard on the
matter.
4) The action on the permit shall be in writing and served on the applicant within twenty-four hours.
5) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in
his permit, the applicant may contest the decision in an appropriate court of law.
o Integrated Bar of the Philippines v. Hon. Mayor Jose “Lito” Atienza, G.R. No. 175241, 24 February 2010,
1st Div. (Carpio Morales) Section 6(c) of the Public Assembly Act (BP 880) provides that “If the mayor is of the
view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the
permit, he shall immediately inform the applicant who must be heard on the matter.”

 - In modifying the permit outright, Atienza gravely abused his discretion when he did not immediately
inform the IBP who should have been heard first on the matter of his perceived imminent and grave
danger of a substantive evil that may warrant the changing of the venue. Atienza failed to indicate how
he had arrived at modifying the terms of the permit against the standard of a clear and present danger
test which x x x is an indispensable condition to such modification. Nothing in the issued permit adverts
to an imminent and grave danger of a substantive evil, which “blank” denial or modification would, when
granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof.
 - It is true that the licensing official is not devoid of discretion in determining whether or not a permit
would be granted. It is not, however, unfettered discretion. While prudence requires that there be a
realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant
circumstances, still the assumption – especially so where the assembly is scheduled for a specific
public place – is that the permit must be for the assembly being held there. It smacks of whim and
caprice for Atienza to impose a change of venue for an assembly that was slated for a specific public
place. It is thus reversible error for the appellate court not to have found such grave abuse of discretion
and, under specific statutory provision, not to have modified the permit “in terms satisfactory to the
applicant.”

o Meaning of Maximum Tolerance- “Maximum tolerance” 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. (Section 3[c], B.P. Blg. 880)
o B.P. No. 880 is merely a “content-neutral” regulation

 - It is very clear that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that
simply regulates the time, place and manner of the assemblies. This was adverted to in Osmena v.
Comelec (G.R. No. 132231, March 31, 1998, 288 SCRA 447), where the Court referred to it as a
“content-neutral” regulation of the time, place, and manner of holding public assemblies (Ibid, p. 478).
 - A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies (except picketing and other concerted action in strike areas by workers and employees
resulting from a labor dispute, which are governed by the Labor Code and other labor laws, political
meeting or rallies held during election campaign period, which are governed by the Election Code and
other election related laws, and public assemblies in the campus of a government-owned and operated
educational institution, which shall be subject to the rules and regulations of said educational institution
[Sec. 3(a) and Sec. 4 of B.P. No. 880]) that would use public places. The reference to “lawful cause”
does not make it content-based because assemblies really have to be for lawful causes, otherwise they
would not be “peaceable” and entitled to protection. Neither are the words “opinion,” “protesting” and
“influencing” in the definition of public assembly content-based, since they can refer to any subject.
The words “petitioning the government for redress of grievances” come from the wording of the
Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefits
of all rallyists and is independent of the content of the expressions in the rally.
 - Furthermore, the permit can only be denied on the ground of clear and present danger to public order,
public safety, public convenience, public morals or public health. This is a recognized exception to the
exercise of the right even under the Universal Declaration of Human Rights and the International

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
Covenant on Civil and Political Rights x x x. (BAYAN, et al. v. Ermita, et al., G.R. No. 169838, April 25,
2006, En Banc [Azcuna])
 - The Calibrated Pre-emptive Response (CPR) Policy adopted by the Arroyo Administration in dealing
with public assemblies: The Court now comes to the matter of the CPR. As stated earlier, the Solicitor
General has conceded that the use of the term should now be discontinued, since it does not mean
anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit
of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General.
 - At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
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.
 - In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly.
 - For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people
and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely
regulates the use of public places as to the time, place and manner of assemblies. Far from
being insidious, “maximum tolerance” is for the benefit of rallyists, not the government., The
delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the
constitutionally-sound “clear and present danger” standard. (BAYAN, et al. v. Ermita, et al., G.R. No.
169838, April 25, 2006, En Banc [Azcuna])Purpose

1. United States vs. Bustos, 37 Phil. 731 (1918)

 The interests of society and the maintenance of good government demand a full discussion public
affairs. Complete liberty to comment on the conduct of public men is necessary for free speech. "The
people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a
free government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App. Div. N. Y., 510.) Of
course, criticism does not authorize defamation.
 The guaranties of a free speech and a free press include the right to criticize judicial conduct.

2. Burgos vs. Chief Of Staff, 133 SCRA 800 (1984)

 The premises searched were the business and printing offices of the "Metropolitan Mail" and the "We
Forum" newspapers. As a consequence of the search and seizure, these premises were padlocked
and sealed, with the further result that the printing and publication of said newspapers were
discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom
of the press guaranteed under the fundamental law, (Sec. 9, Art. IV of the Constitution) and constitutes
a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is essential for the
political enlightenment and growth of the citizenry.

3. New York Times vs. Sullivan 376 US 254 (1964)

 Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he
had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared
over the names of the four individual petitioners and many others. The advertisement included
statements, some of which were false, about police action allegedly directed against students who
participated in a civil rights demonstration and against a leader of the civil rights movement; respondent
claimed the statements referred to him because his duties included supervision of the police
department. The trial judge instructed the jury that such statements were "libelous per se," legal injury
being implied without proof of actual damages, and that, for the purpose of compensatory damages,
malice was presumed, so that such damages could be awarded against petitioners if the statements
were found to have been published by them and to have related to respondent.

 Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official
for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the
statement was made with knowledge of its falsity or with reckless disregard of whether it was true or
false.
 Expression does not lose constitutional protection to which it would otherwise be entitled because it
appears in the form of a paid advertisement.

o Restrictions
4. Gonzales vs. COMELEC, 27 SCRA 835 (1969)

 Issue #1: RA 4880 Revised Election Code prohibited of too early nomination of candidates presents a
question that is not too formidable in character. According to the act: "It shall be unlawful for any political
party, political committee, or political group to nominate candidates for any elective public office voted
for at large earlier than one hundred and fifty days immediately preceding an election, and for any other
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
elective public office earlier than ninety days immediately preceding and election. Does it violate the
freedom of association?
 Held: No. There is no infringement of their freedom of association. They can do so, but not for such a
purpose. The Court sustain its validity.

 How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of
freedom of speech or of the press. It likewise extends the same protection to the right of the people
peaceably to assemble. As was pointed out by Justice Malcolm in the case of United States v. Bustos,
this right is a necessary consequence of our republican institution and complements the right
of free speech.
o ASSEMBLY means a right on the part of citizens to meet peaceably for consultation in
respect to public affairs. From the same Bustos opinion: "Public policy, the welfare of society,
and the orderly administration of government have demanded protection for public opinion."
To paraphrase the opinion of Justice Rutledge, speaking for the majority in Thomas v.
Collins, it was not by accident or coincidence that the rights to freedom of speech and of the
press were coupled in a single guaranty with the rights of the people peaceably to assemble
and to petition the government for redress of grievances. All these rights while not identical
are inseparable. They are cognate rights and the assurance afforded by the clause of this
section of the Bill of Rights wherein they are contained, applies to all. As emphatically put in
the leading case of United States v. Cruikshank, "the very idea of a government, republican
in form, implies a right on the part of its citizens to meet peaceably for consultation in respect
to public affairs and to petition for redress of grievances." As in the case of freedom of
expression, this right is not to be limited, much less denied, except on a showing of a clear
and present danger of a substantive evil that Congress has a right to prevent.
 Issue #2: RA 4880 provided the limitation on the period of "election campaign" or "partisan political
activity" calls for a more intensive scrutiny. According to Republic Act No. 4880: "It is unlawful for any
person whether or not a voter or candidate, or for any group or association of persons, whether or
not a political party or political committee, to engage in an election campaign or partisan political
activity except during the period of one hundred twenty days immediately preceding an election
involving a public office voted for at large and ninety days immediately preceding an election for any
other elective public office. The term 'candidate' refers to any person aspiring for or seeking an
elective public office regardless of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate. The term 'election campaign'
of 'partisan political activity' refers to acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office . .” Does it violate the freedom of expression?

 The majority of the Court is thus of the belief that the ban on the solicitation or undertaking of any
campaign or propaganda, whether directly or indirectly, by an individual, the making of speeches,
announcements or commentaries or holding interview for or against the election for any party or
candidate for public office, or the publication or distribution of campaign literature or materials, suffers
from the corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of
suffers from the corrosion of invalidity unconstitutionality.
 The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of
our constitutional system. No law shall be passed abridging the freedom of speech or of the press . . .
What does it embrace?
 At the very least, free speech and free press may be identified with the liberty to discuss publicly and
truthfully any matter of public interest without censorship or punishment. There is to be then no previous
restraint on the communication of views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings unless there be a clear and present danger
of substantive evil that Congress has a right to prevent.
 Freedom of expression is not an absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other societal values that press
for recognition. How is it to be limited then?

 This Court spoke, in Cabansag v. Fernandez, of two tests that may supply an acceptable criterion
for permissible restriction. Thus: "These are the 'clear and present danger' rule and the 'dangerous
tendency' rule.
o CLEAR AND PRESENT DANGER RULE - means that the evil consequence of the comment
or utterance must be 'extremely serious and the degree of imminence extremely high'
before the utterance can be punished. The danger to be guarded against is the 'substantive
evil' sought to be prevented ." It has the advantage of establishing according to the above
decision "a definite rule in constitutional law. It provides the criterion as to what words may
be published."
 “The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent. It is
a question of proximity and degree."
 The term CLEAR seems to point to a causal connection with the danger of the
substantive evil arising from the utterance questioned. PRESENT refers to the time
element. It used to be identified with imminent and immediate danger. The danger
must not only be probable but very likely inevitable.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o DANGEROUS TENDENCY RULE - "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. 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."
5. Social Weather Station v. Comelec, G.R. 147571, May 5, 2001
 Issue: Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing
Section 5.4 of R.A. No. 9006 (Fair Election Act), which provides: Surveys affecting national candidates shall
not be published fifteen (15) days before an election and surveys affecting local candidates shall not be
published seven (7) days before an election. Petitioner SWS states that it wishes to conduct an election
survey throughout the period of the elections both at the national and local levels and release to the media
the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation,
on the other hand, states that it intends to publish election survey results up to the last day of the elections
on May 14, 2001. Petitioners argue that the restriction on the publication of election survey results
constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to
justify such restraint.
 Held: Section 5.4 is invalid and unconstitutional because (1) it imposes a prior restraint on the freedom of
expression, (2) it is a direct and total suppression of a category of expression even though such suppression
is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by
means other than the suppression of freedom of expression.
 Indeed, "any system of prior restraints of expression comes to this Court bearing a heavy presumption
against its constitutional validity. ...The Government 'thus carries a heavy burden of showing justification
for the enforcement of such restraint.'" There is thus a reversal of the normal presumption of validity that
inheres in every legislation.
a. O’Brien Test
 A government regulation is sufficiently justified [1] if it is within the constitutional power of the
Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental
interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged
First Amendment freedoms [of speech, expression and press] is no greater than is essential to the
furtherance of that interest.
 Under this test, even if a law furthers an important or substantial governmental interest, it should be
invalidated if such governmental interest is "not unrelated to the suppression of free expression."
Moreover, even if the purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to
achieve the governmental purpose in question.

6. 1 Utak vs COMELEC, GR 206020 April 14 2015

 Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign material
during an election period in PUVs and transport terminals carries with it the penalty of revocation of the
public utility franchise and shall make the owner thereof liable for an election offense. The prohibition
constitutes a clear prior restraint on the right to free expression of the owners of PUVs and transport
terminals. As a result of the prohibition, owners of PUVs and transport terminals are forcefully and
effectively inhibited from expressing their preferences under the pain of indictment for an election
offense and the revocation of their franchise or permit to operate.
 Thus, in Adiong v. COMELEC, the Court struck down the COMELEC's prohibition against the posting
of decals and stickers on "mobile places." The Court ratiocinated that: significantly, the freedom of
expression curtailed by the questioned prohibition is not so much that of the candidate or the political
party. The regulation strikes at the freedom of an individual to express his preference and, by displaying
it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once
the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by
the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was
careful to rule out restrictions on reporting by newspaper or radio and television stations and
commentators or columnists as long as these are not correctly paid-for advertisements or purchased
opinions with less reason can we sanction the prohibition against a sincere manifestation of support
and a proclamation of belief by an individual person who pastes a sticker or decal on his private
property.
 The CAPTIVE-AUDIENCE DOCTRINE states that when a listener cannot, as a practical matter,
escape from intrusive speech, the speech can be restricted. The "captive-audience" doctrine
recognizes that a listener has a right not to be exposed to an unwanted message in circumstances in
which the communication cannot be avoided.

7. Disini vs. Secretary of Justice

 STRICT SCRUTINY TEST - According to this standard, a legislative classification that

impermissibly interferes with the exercise of fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
restrictive means to protect such interest. Later, the strict scrutiny standard was used to assess the
validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental
rights, as expansion from its earlier applications to equal protection.

8. Chavez v. Sec. Gonzales, GR No. 168338, February 15, 2008

 Issue: In relation to the “Hello Garci” tape, DOJ Secretary Raul Gonzales warned reporters that those
who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be
held liable under the Anti-Wiretapping Act. He also stated that persons possessing or airing said tapes
were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the
crime was committed or was being committed in their presence. On June 9, 2005, in another press
briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media
organizations "found to have caused the spread, the playing and the printing of the contents of a tape"
of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national
elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine
Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was
able to disseminate the contents of the tape more widely. On June 11, 2005, the NTC issued warning
to all radio stations and television network that their broadcasting/air of such false information shall be
just cause for suspension, revocation and cancellation of their licenses. Whether the acts of Gonzales
abridge the freedom of speech and of the press?
 Held: The challenged acts in the case at bar need to be subjected to the clear and present danger
rule, as they are content-based restrictions. The acts of respondents focused solely on but one
object — a specific content — fixed as these were on the alleged taped conversations between the
President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the
time, place or manner of the dissemination of speech or expression. The mere press statements of
the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint
that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the
press statements made by respondents were not reduced in or followed up with formal orders or
circulars. It is sufficient that the press statements were made by respondents while in the exercise of
their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice,
while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech
uttered, for and on behalf of the government in an official capacity is covered by the rule on prior
restraint. The concept of an "act" does not limit itself to acts already converted to a formal order or
official circular. Otherwise, the non formalization of an act into an official order or circular will result in
the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that
should be struck down as they constitute impermissible forms of prior restraints on the right to free
speech and press.
 Generally, restraints on freedom of speech and expression are evaluated by either or a
combination of three tests,
o (a) DANGEROUS TENDENCY DOCTRINE which permits limitations on speech once a rational
connection has been established between the speech restrained and the danger
contemplated;
o (b) BALANCING OF INTEREST TESTS, used as 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 of type of
situation; and
o (c) CLEAR AND PRESENT DANGER RULE which rests on the premise that speech may be
restrained because there is substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil consequences sought to be
prevented must be substantive, "extremely serious and the degree of imminence extremely
high."
 The clear and present danger rule applies equally to all kinds of media, including broadcast
media.
 Four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from
punishment subsequent to publication; (3) freedom of access to information; and (4) freedom of
circulation
o 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. Thus, it precludes governmental acts that required approval of a proposal to
publish; licensing or permits as prerequisites to publication including the payment of license
taxes for the privilege to publish; and even injunctions against publication. Even the closure of
the business and printing offices of certain newspapers, resulting in the discontinuation of their
printing and publication, are deemed as previous restraint or censorship. Any law or official that
requires some form of permission to be had before publication can be made, commits an
infringement of the constitutional right, and remedy can be had at the courts.
o Form of restraint on freedom of speech.

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NOTES TO CONSTITUTION 2
 (1) CONTENT-NEUTRAL regulation, i.e., merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and under well defined
standards; or
 LEVEL OF SCRUTINY: INTERMEDIATE APPROACH - only a substantial
governmental interest is required for its validity. Because regulations of this
type are not designed to suppress any particular message, they are not subject
to the strictest form of judicial scrutiny but an— somewhere between the mere
rationality that is required of any other law and the compelling interest standard
applied to content-based restrictions.
o A governmental regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is no greater
than is essential to the furtherance of that interest.
 (2) CONTENT-BASED RESTRAINT or CENSORSHIP, i.e., the restriction is based on
the subject matter of the utterance or speech.
 LEVEL OF SCRUTINY: STRICT SCRUNITY TEST - Only when the
challenged act has overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden of overcoming
the presumed unconstitutionality.
o The government must also show the type of harm the speech sought
to be restrained would bring about — especially the gravity and the
imminence of the threatened harm — otherwise the prior restraint will
be invalid. Prior restraint on speech based on its content cannot be
justified by hypothetical fears, "but only by showing a substantive and
imminent evil that has taken the life of a reality already on ground."
o As formulated, "the question in every case is whether the words used
are used in such circumstances and are of such a nature as to create
a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity
and degree.”
 Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected
to an intermediate review. A content-based regulation, however, bears a heavy
presumption of invalidity and is measured against the clear and present danger rule.
The latter will pass constitutional muster only if justified by a compelling reason, and
the restrictions imposed are neither overbroad nor vague.
 Carpio, Concurring
o The rule is that expression is not subject to any prior restraint or censorship because
the Constitution commands that freedom of expression shall not be abridged. Over time,
however, courts have carved out narrow and well-defined exceptions to this rule out of
necessity.
o The exceptions, when expression may be subject to prior restraint, apply in this
jurisdiction to only four categories of expression, namely: pornography, false or misleading
advertisement, advocacy of imminent lawless action, and danger to national security.
o All other expression is not subject to prior restraint. As stated in Turner Broadcasting
System v. Federal Communication Commission, "[T]he First Amendment (Free Speech
Clause), subject only to narrow and well understood exceptions, does not countenance
governmental control over the content of messages expressed by private individuals."
o Expression not subject to prior restraint is protected expression or high-value
expression. Any content-based prior restraint on protected expression is
unconstitutional without exception. A protected expression means what it says — it is
absolutely protected from censorship. Thus, there can be no prior restraint on public debates
on the amendment or repeal of existing laws, on the ratification of treaties, on the imposition
of new tax measures, or on proposed amendments to the Constitution.
o Prior restraint on expression is content-based if the restraint is aimed at the message or idea
of the expression. Courts will subject to strict scrutiny content-based restraint. If the content-
based prior restraint is directed at protected expression, courts will strike down the restraint
as unconstitutional because there can be no content-based prior restraint on protected
expression. The analysis thus turns on whether the prior restraint is content-based, and if so,
whether such restraint is directed at protected expression, that is, those not falling under any
of the recognized categories of unprotected expression.
o If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral
even if it burdens expression. A content-neutral restraint is a restraint which regulates the
time, place or manner of the expression in public places without any restraint on the content
of the expression. Courts will subject content-neutral restraints to intermediate scrutiny.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o An example of a content-neutral restraint is a permit specifying the date, time and route of a
rally passing through busy public streets. A content-neutral prior restraint on protected
expression which does not touch on the content of the expression enjoys the presumption of
validity and is thus enforceable subject to appeal to the courts. Courts will uphold time, place
or manner restraints if they are content-neutral, narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of expression.

Nature of Prior Restraint

Nature of expression CONTENT-BASED CONTENT-NEUTRAL

(Restraint is aimed at the (a restraint which
message or idea of the regulates the time, place
expression) or manner of the
expression in public
places)

PROTECTED EXPRESSION STRICT SCRUTINY TEST INTERMEDIATE

REVIEW TEST
(Note: Not subject to prior restraint) (Only when the challenged act
has overcome the clear and (only a substantial
UNPROTECTED EXPRESSION present danger rule will it pass governmental interest is
constitutional muster, with the required for its validity.)
(e.g pornography, libel, sedition, national government having the burden
security issues) of overcoming the presumed
(Note: it may be subject to prior restraint) unconstitutionality.)

XI. FREEDOM OF INFORMATION

o Section 7
 The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
o Rights guaranteed under Section 7
1. Right to information on matters of public concern
2. Right of access to official records and documents
o Persons entitled to the above rights
 Only Filipino citizens.
o Discretion of government
 The government has discretion with respect to the authority to determine what matters are of public
concern and the authority to determine the manner of access to them.
o Limitations
1. National security matters and intelligence information (Chavez v. PEA and Amari, GR 133250, July 2002)
2. Investigation of crimes by law enforcement agencies before the prosecution of the accused (Ibid);
3. Privileged communication rooted in the separation of powers (Ibid);
4. Information on military and diplomatic secrets (Ibid);
5. Trade or industrial secrets (Garcia v. Board of Investments, 177 SCRA 374);
6. Offers exchanged during diplomatic negotiations (Akbayan v. Aquino, G.R. No. 170516. July 16, 2008);
7. Banking transactions
8. Diplomatic correspondence
9. Executive sessions
10. Closed door cabinet meetings
11. Supreme Court deliberations, and
12. Other confidential information.
o Publications of laws and regulations
1. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette,
unless it is otherwise provided. (Art. 2, Civil Code)
2. Full publication is a condition for law’s effectivity (Tañada v. Tuvera, 136 SCRA 27).
3. All statutes (includes those of local application and private laws), presidential decrees and executive orders
by President acting under power either directly conferred by the Constitution or validly delegated by the
legislature, and administrative rules and regulations for implanting existing laws, charter of a city, circulars by

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
Monetary Board Internal regulations and letter of instructions concerning guidelines for subordinates and not
the public are not included (Ibid).
4. Effectivity: Fifteen days after publication unless a different effectivitY date is fixed by the legislature (Ibid).
o Access to court records
1. Court personnel shall not disclose to any unauthorized person any confidential information acquired by them
while employed in the judiciary, whether such information came from authorized or unauthorized sources.
 Confidential information means information not yet made a matter of public record relating to pending
cases, as well as information not yet made public concerning the work of any justice or judge relating
to pending cases, including notes, drafts, research papers, internal discussions, internal memoranda,
records of internal deliberations and similar papers.
 The notes, drafts, research papers, internal discussions, internal memoranda, records of internal
deliberations and similar papers that a justice or judge uses in preparing a decision, resolution or order
shall remain confidential even after the decision, resolution or order is made public. (Sec. 1, Canon II
Confidentiality Code of Conduct for Court Personnel [AM No. 03-06-13-SC]).
2. Under the Constitution, access is subject to limitations as may be provided by law. Therefore, a law may
exempt certain types of information from public scrutiny such as national security. The privilege against
disclosure is recognized with respect to state secrets bearing on the military, diplomatic and similar matter.
Since intestate proceedings do not contain any military or diplomatic secrets which will be disclosed by its
production, it is an error on the part of the judge to deny Ramon’s motion (Hidalgo v. Reyes, AM No. RTJ-
05-1910, Apr. 15, 2005).
 NOTE: With regard to court hearings and court records and the right of accused over right to public
information – With the possibility of losing not only the precious liberty but also the very life of an
accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the
basis of a just and dispassionate judgment, a verdict that would come only after the presentation of
credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether open
or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim to ferret
veritable facts free from improper influence, and decreed by a judge with an unprejudiced mind
unbridled by running emotions or passions (Re: Request for Live Radio-TV Coverage of the Trial in the
Sandiganbayan of the Plunder Cases against former President Joseph
 Ejercito Estrada, Secretary of Justice Hernando Perez v. Joseph Ejercito Estrada, A.M. No. 00-1-4- 03-
SC, June 29, 2001].
 Legazpi vs. CSC; Valmonte vs. Belmonte; BARA vs. COMELEC
 Berdin vs. Mascarinas, 526 SCTA 592- While access to official records may not be prohibited, it
certainly may be regulated.
o Right to information relative to Government contract negotiations
 It is incumbent upon the PCGG, and its officers, as well as other government representatives, to
disclose sufficient public information on any proposed settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth. Such information must pertain to definite
propositions of the government. While evaluation of bids or proposals is ongoing, there are no “official
acts, transactions, or decisions.” However, once the committee makes an official recommendation,
there arises a definite proposition. From this moment, the public’s right to information attaches, and any
citizen can assail the non-proprietary information leading to such definite proposition (Chavez v.
PCGG, G.R. No. 130716, December 9, 1998).
o Right to information relative to Government diplomatic negotiation
 Secrecy of negotiations with foreign countries is not violative of the right to information. Diplomacy has
a confidential nature. While the full text (of the JPEP) may not be kept perpetually confidential, it is in
line with the public interest that the offers exchanged during negotiations continue to be privileged
information. Furthermore, the information sought includes documents produced and communicated by
a party external to the Philippine government. However, such privilege is merely presumptive, and will
not apply to all cases There is a distinction between the text of the treaty and the offers and negotiations.
They may compel the government to disclose the text of the treaty but not the offers between RP and
Japan, because these are negotiations of executive departments. Diplomatic Communication
negotiation is privileged information (Akbayan v. Aquino, G.R. No. 170516, July 16, 2008).
 The privileged character of the information does not end when an agency has adopted a definite
proposition or when a contract has been perfected or consummated; otherwise, the purpose of the
privilege will be defeated. The deliberative process privilege applies if its purpose is served, that is, "to
protect the frank exchange of ideas and opinions critical to the government's decision-making process
where disclosure would discourage such discussion in the future." Thus, "[t]he deliberative process
privilege exempts materials that are 'predecisional' and 'deliberative,' but requires disclosure of policy
statements and final opinions 'that have the force of law or explain actions that an agency has already
taken." (Department of Foreign Affairs vs. BCA International Corporation, G.R. No. 210858, June
29, 2016)
 Freedom of Information (FoI) is a right enshrined in our fundamental law. It refers to the right of the
people to information on matters of public concern. It is the right of every citizen to access official
records, documents and papers pertaining to official acts, transactions or decisions, as well as to
government research data used as basis for policy development (Sec. 7, Art. III, 1987 Constitution).
This includes the public’s right to know the public officials’ and employees’ assets, liabilities, net worth
and financial and business interests.
 So as not to render this right ineffectual brought about by the lack of a law therefor, President Rodrigo
Roa Duterte passed Executive Order No. 2, Series of 2016, which implemented the FoI Program in the

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
executive branch. For its part, the Supreme Court passed the Rule on Access to Information About
the Supreme Court early this year. The Supreme Court likewise ordered the creation of FoI Manuals
in the entire judiciary, ie, Court of Appeals, Sandiganbayan, Court of Tax Appeals and lower courts.
 Non-disclosure of SALNs, PDSs and CVs is a privilege that belongs to the Supreme Court as an
institution, not to any justice or judge in his/her individual capacity. Hence, no sitting or retired justice
or judge, even the Chief Justice, may claim exemption without the consent of the Court.
 To borrow the words of the Supreme Court, “while the Constitution holds dear the right of the people to
have access to matters of concern, the Constitution also holds sacred the independence of the
judiciary”. Thus, the passage of the Rule on Access to Information About the Supreme Court, which
allowed people to exercise their right to know by allowing access to public and official records in the
custody of the Supreme Court subject only to reasonable requirements provided therein.

XII. FREEDOM OF ASSOCIATION

o Section 8.
 The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law, shall not be abridged.
o General Principles:
 The right to form associations shall not be impaired without due process of law and is thus an aspect
of the right of liberty. It is also an aspect of the freedom of contract. In addition, insofar as the
associations may have for their object the advancement of beliefs and ideas, the freedom of association
is an aspect of the freedom of speech and expression, subject to the same limitation.
o Case Laws
1. The right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged (Sec. 8, Article III, 1987
Constitution).
2. The right to self-organization shall not be denied to government employees (Sec. 2[5], Art. IX—B). NOTE:
Right to association and right to unionize of government employees do not include the right to strike (SSS
Employees Association v. CA, 175 SCRA 686)
3. The State shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to
security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as may be provided by law (Sec. 3, Art. XIII).
 NOTE: The right to form associations does not necessarily include the right to be given legal
personality. However, if the law itself should make possession of legal personality a precondition for
effective associational action, involved would be not just the right to have legal personality but also the
right to be an association (Philippine Association of Free Labor Unions v. Secretary of Labor, GR L-
22228, February 27, 1969).
4. Every group has a right to join the democratic process, association itself being an act of expression of the
member’s belief, even if the group offends the sensibilities of the majority. Any restriction to such requires a
compelling state interest to be proven by the State (Ang Ladlad LGBT Party v. COMELEC, supra).
5. The freedom of association presupposes a freedom not to associate. An organization may remove a member
if:
a. It is engaged in some form of expression, whether public or private;
b. The forced inclusion of a member would significantly affect the organization’s ability to advocate public or
private viewpoints (Boy Scouts of America v. Dale, 530 U.S. 64).
6. Communist and similar organizations. The basic guidelines for prosecution under the Anti- Subversion Act,
are the following elements for the crime to be established.
a. In case of subversive organizations other than the CPP:
i. that the purpose of the organization is to overthrow the present Government of the Philippines
and to establish in this country a totalitarian regime under the domination of a foreign power;
ii. that the accused joined such organization; and
iii. that he did so knowingly, willfully and by overt acts; and
b. In the case of the CPP:
i. that the CPP continues to pursuthe objectives which led Congress in 1957 to declare it to be an
organized conspiracy for the overthrow of the Government by illegal means for the purpose of
placing the country under the control of a foreign power;
ii. that the accused joined the CPP; and
iii. that he did so willfully, knowingly and by overt acts (People v. Ferrer, 101 Phil. 234)
7. Compulsory membership of a lawyer in the integrated bar of the Philippines does not violate the constitutional
guarantee. Integration does not make a lawyer a member of any group of which he is not already a member.
He became a member of the Bar when he passed the Bar examinations. All that integration actually does is to

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
provide an official national organization for the well defined but unorganized and in cohesive group of which
every lawyer is a ready a member. Bar integration does not compel the lawyer to associate with anyone. He is
free to attend or not attend the meetings of his Integrated Bar Chapter or vote or refuse to vote in its elections
as he chooses. The only compulsion to which he is subjected is the payment of annual dues. The Supreme
Court, in order to further the State's legitimate interest in elevating the quality of professional legal services,
may require that the cost of improving the profession in this fashion be shared by the subjects and
beneficiaries of the regulatory program— the lawyers (In Re: Edillon, 84 SCRA 554)
o Government employees have the right to form unions. Do they have the right to strike?
 Specifically, the right of civil servants to organize themselves was positively recognized in Association
of Court of Appeals Employees (ACAE) vs. Ferrer-Caleja. But, as in the exercise of the rights of free
expression and of assembly, there are standards for allowable limitations such as the legitimacy of the
purposes of the association, the overriding considerations of national security and the preservation of
democratic institutions.
 As regards the right to strike, the Constitution itself qualifies its exercise with the provision "in
accordance with law." This is a clear manifestation that the state may, by law, regulate the use of this
right, or even deny certain sectors such right. Executive Order No. 180 which provides guidelines for
the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier
CSC circular which "enjoins under pain of administrative sanctions, all government officers and
employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action
which will result in temporary stoppage or disruption of public service" by stating that the Civil Service
law and rules governing concerted activities and strikes in government service shall be observed.31
(Citations and emphases omitted)
 Employees of government-owned and controlled corporation can freely exercise their right to freedom
of expression, subject to law, including Civil Service Commission issuances that prohibit mass actions
causing work stoppage. Government employees must uphold their commitment to public interest and
act in accordance with the Code of Conduct and Ethical Standards of Public Officials and Employees.
This level of limitation or regulation also applies to governmental financial institutions, often grouped
with government-owned and controlled corporations. Concurring opinion of J. Leonen, in Davao City
Water District v. Aranjuez, et al. [G.R. No. 194192, 16 June 2015]

XIII. FREEDOM OF RELIGION

1. Art. III, Sec. 5
 Section 5- No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
A. NON-ESTABLISHMENT CLAUSE
2. Concept and basis
1. Neither a State nor the Federal Government can set up a church. Neither can it pass laws which aid one
religion, aid all religions, or prefer one religion over another, neither can, openly or secretly, participate in
the affairs of any religious organizations or groups and vice versa (Everson v. Board of Education, 30 US
1).
2. It is rooted in the separation of Church and State (Sec. 2(5), Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI).
3. The non-establishment clause bars the State from establishing, through laws and rules, moral standards
according to a specific religion. Prohibitions against immorality should be based on a purpose that is
independent of religious beliefs. When it forms part of our laws, rules, and policies, morality must be
secular. Laws and rules of conduct must be based on a secular purpose. In the same way, this court, in
resolving cases that touch on issues of morality, is bound to remain neutral and to limit the bases of its
judgment on secular moral standards. When laws or rules refer to morals or immorality, courts should be
careful not to overlook the distinction between secular and religious morality if it is to keep its part in
upholding constitutionally guaranteed rights. There is the danger of "compelled religion" and, therefore, of
negating the very idea of freedom of belief and non establishment of religion when religious morality is
incorporated in government regulations and policies. (Perfecto vs. Esidera, A.M. NO. RTJ-15-2417, July
22, 2015)
3. Acts permitted and not permitted by the clause Benevolent neutrality doctrine:
 The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. The purpose of
accommodations is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account…to exempt,
when possible, from generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish (Estrada v. Escritor, A.M. No. P-02-
1651, June 22, 2006)."
 NOTE: Benevolent neutrality recognizes that religion plays an important role in the public life of the
United States as shown by many traditional government practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the inscription of "In God We Trust" on American

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
currency; the recognition of America as "one nation under God" in the official pledge of allegiance to
the flag; the Supreme Court’s time-honored practice of opening oral argument with the invocation "God
save the United States and this Honorable Court"; and the practice of Congress and every state
legislature of paying a chaplain, usually of a particular Protestant denomination, to lead representatives
in prayer. These practices clearly show the preference for one theological viewpoint— the existence of
and potential for intervention by a god—over the contrary theological viewpoint of atheism (Ibid).
4. Acts permitted
1. Tax exemption on property actually, directly and exclusively used for religious purposes
(Art. VI, Sec. 28 [3]);
2. Religious instruction in public schools (Art. XIV, Sec. 4[2]):
o Requisites:
a) At the option of parents/guardians expressed in writing;
b) Within the regular class hours by instructors designated or approved by
religious authorities of the religion to which the children belong;
c) Without additional costs to the government;
3. Financial support for priest, preacher, minister, or dignitary assigned to the armed forces,
penal institution or government orphanage or leprosarium (Art. VI, Sec. 29 [2]);
4. Government sponsorship of town fiestas, some purely religious traditions have now been
considered as having acquired secular character (Garces vs. Estenzo, 104 SCRA 510); and
5. Postage stamps depicting Philippines as the venue of a significant religious event – benefit
to the religious sect involved was merely incidental (Aglipay v. Ruiz, 64 Phil. 201).
6. Book lending program for students in parochial schools because of the benefit to parents
and students (Board of Education v. Allen, 392 US 236).
7. Display of crèche in a secular setting which depicts the origin of the holiday (Lynch v
Donely, 465 U.S. 668).
8. Financial support for secular academic facilities (i.e. library and science center) in
parochial schools – has secular use (Tilton vs. Richardson, 403 U.S. 672).
9. Exemption from zoning requirements to accommodate unique architectural features of
religious buildings i.e. Mormon’s tall pointed steeple (Martin vs. Corporation of the Presiding
Bishop 434 Mass. 141).
10. Ecclesiastical Affair. It is one that concerns doctrine, creed, or form of worship of the
church, or the adoption and enforcement within religious association of needful laws and
regulations for the government of the membership, and the power of excluding from such
association those deemed not worthy of membership (Austria v. NLRC and Central
Philippine Union of Seventh Day Adventist, GR 124382). It involves the relationship between
the church and its members and relates to matters of faith, religious doctrines, worship and
governance of the congregation to which the state cannot meddle. Where civil rights depend
upon some matter pertaining to ecclesiastical affairs, the civil tribunal tries the civil rights and
nothing more (Gonzales v. Archbishop, 51 Phil. 420; Fonacier v. Court Appeals, 96 Phil.
417).
5. RE: LETTER OF TONY Q. VALENCIANO, HOLDING OF RELIGIOUS RITUALS AT THE HALL OF
JUSTICE BUILDING IN QUEZON CITY
 To disallow the holding of religious rituals within halls of justice would set a dangerous precedent and
commence a domino effect. Strict separation, rather than benevolent neutrality/accommodation, would
be the norm. Thus, the establishment of Shari'a courts, the National Commission for Muslim Filipinos,
and the exception of Muslims from the provisions of the RPC relative to the crime of bigamy would all
be rendered nugatory because of strict separation. The exception of members of Iglesia ni Cristo from
joining a union or the non-compulsion recognized in favor of members of the Jehovah's Witnesses from
doing certain gestures during the flag ceremony, will all go down the drain simply because we insist on
strict separation.
 That the holding of masses at the basement of the QC Hall of Justice may offend non-Catholics is no
reason to proscribe it. Our Constitution ensures and mandates an unconditional tolerance, without
regard to whether those who seek to profess their faith belong to the majority or to the minority. It is
emphatic in saying that "the free exercise and enjoyment of religious profession and worship shall be
without discrimination or preference." Otherwise, accommodation or tolerance would just be mere lip
service.
 One cannot espouse that the constitutional freedom of religion ensures tolerance, but, in reality, refuses
to practice what he preaches. One cannot ask for tolerance when he refuses to do the same for others.
6. Acts not permitted
1. Religious instruction in public schools (Art. XIV, Sec. 4[2]):
2. Prayer and Bible-reading in public schools (Engel v. Vitale 370 U.S. 421; Abington School
District v. Schema 374 U.S. 203)
3. Financial subsidy for parochial schools (Lemon vs. Kurtzman,403 U.S. 602)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
4. Religious displays in public spaces: Display of granite monument of 10 commandments
in front of a courthouse is unconstitutional for being unmistakably non-secular (Glass Roth
vs. Moore, 335 F.3d 1282 (11thCir. 2003).
5. Mandatory religious subjects or prohibition of secular subjects (evolution) in schools
(Epperson vs. Arkansas, 393 U.S. 97).
6. Word “God” in the Pledge of Allegiance: religious vs. atheist students (Endow vs. US, 292
F.3d 597 (9th Cir. 2002).
7. Governmental reliance on religious justification and using the Bible and the Koran to justify
the exclusion of Ang Ladlad which advances the right of the LGBT is inconsistent with this
policy of neutrality and grave violation of the non-establishment clause (Ang Ladled LGBT
party v. COMELEC, GR 190582, and April 8, 2010).
 NOTE: How does one tell whether a case is a free exercise case or a non establishment case?
One simple guide: every violation of the free exercise clause involves compulsion whereas a
violation of the non-establishment clause need not involve compulsion (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer).
B. FREE EXERCISE CLAUSE
7. Dual Aspect of Freedom of Religious Belief and Worship:
1. Freedom to Believe – absolute as long as the belief is confined within the realm of thought
(see Nuchal, Outline Reviewer in Political Law, 2009 Ed., p. 162; Bernas The 1987 Philippine
Constitution: A Comprehensive Reviewer); and
2. Freedom to Act on One’s Belief – subject to regulation where the belief is translated into
external acts that affect the public welfare (Ibid).

C. TESTS
o Non-Establishment (LEMON TEST)
 Is a test to determine whether an act of government violates the non establishment clause.
 Requisites:
1. Have a secular purpose;
2. Not promote or favor any set of religious beliefs or religion generally; and
3. Not get the government closely involved (entangled) with religion.
o Free – Exercise Clause
1. CLEAR AND PRESENT & DANGER TEST
 circumstance and of such nature as to create a clear and present substantive evil that state has right
to prevent.
 Requisites:
1. Whether the words are used in a burden on the such circumstances and are of such
a nature as to create a clear and present danger that they will bring about substantive
evils that Congress has a right to prevent. It is a question of proximity and
2. The danger created must not only clear and present but also traceable to the ideas
expressed.
CASES
 Ebralinag vs. Div. Superintendent of Schools of Cebu, 219 SCRA 256 - members of Jehovah’s
witnesses may validly refuse participating in flag ceremonies (singing the national anthem, saluting the
flag, etc.) on account of their religious beliefs.
 Iglesia ni Cristo vs. CA, 259 SCRA 529- The exercise of religious freedom can be regulated when it
will bring about clear and present danger of a substantive evil which the State has a duty to prevent.
However, criticism on certain catholic tenets and dogmas does not constitute clear and present danger.
 Tolentino vs. Sec. of Finance, 235 SCRA 630 – Freedom of religion does not prohibit imposition of a
generally applicable sales and use tax on the sale of religious materials by a religious organization. For
the purpose of defraying cost of registration.
 Islamic Da’wah Council of the Philippines vs. Executive Secretary, 405 SCRA 497- Classifying a
food product as halal is a religious function because the standards are drawn from the Qur’an and
Islamic beliefs. By giving the Office of the Muslim Affairs exclusive power to classify food products as
halal, E. O. No. 46 encroached on the religious freedom of Muslim organization to interpret what food
products are fit for Muslim consumption. The State has in effect forced Muslim to accept its own
interpretation of the Qur’an and Sunnah on halal food.
 Ang Ladlad LGBT Party v. COMELEC, April 8, 2010 - Citing Art. III, sec. 5 of the Constitution, the
Court stressed that “[n]o law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof.” Thus, it found a grave violation of the non-establishment clause for the
COMELEC to utilize the Bible and Koran to justify the exclusion of AngLadlad. The Court held that
moral disapproval “is not a sufficient governmental interest to justify exclusion of homosexuals from
participation in the party list system.” Upholding equal protection, the Court ruled that from the
standpoint of the political process, LGBTs have the same interest in participating in the party-list system
on the same basis as other political parties similarly situated. As such, laws of general application
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
should apply with equal force to LGBTs and they deserve to participate in the party list system on the
same basis as other marginalized and underrepresented sectors. The Court also found that there was
a transgression of AngLadlad’s fundamental right of freedom of expression since, by reason of the
COMELEC action, the former was precluded from publicly expressing its views as a political party and
participating on an equal basis in the political process with other party-list candidates.
2. COMPELLING STATE INTEREST
 Is the test used to determine if the interests of the State are so compelling enough to justify infringement
of religious freedom.
 Requisites:
1. Has the Statute or government action created a burden on the free exercise of
religious freedom?
2. Is there sufficiently compelling interest to justify infringement of religious freedom?
3. Has the State in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed anymore than necessary to achieve
the legitimate goal of the State?
 Conscientious Objector Test
1. A conscientious objector (CO) is an "individual who has claimed the right to refuse to
perform military service” on the grounds of freedom of thought, conscience, and/or
religion ("International Covenant on Civil and Political Rights; See Article 18". Office of
the United Nations High Commissioner for Human Rights. Retrieved April 1, 2014).
2. The United State Supreme Court held that the test of religious belief within the
meaning of the exemption in the Universal Military Training and Service Act – Section
6(j) excepts from combatant service in the armed forces those who are conscientiously
opposed to participation in war by reason of their "religious training and belief," i.e., belief
in an individual's relation to a Supreme Being involving duties beyond a human
relationship but not essentially political, sociological, or philosophical views or a merely
personal moral code – is whether it is a sincere and meaningful belief occupying in the
life of its possessor a place parallel to that filled by the God of those admittedly qualified
for the exemption.
The exemption does not cover those who oppose war from a merely personal moral
code, nor those who decide that war is wrong on the basis of essentially political,
sociological or economic considerations, rather than religious belief. There is no issue
here of atheistic beliefs, and, accordingly, the decision does not deal with that question.
This test accords with long established legislative policy of equal treatment for those
whose objection to military service is based on religious beliefs [United States v. Seeger,
380 U.S. 163 (1965)].
3. James M. Imbong, et al. v. Hon. Paquito N. Ochoa, Jr., et al., GR No. 204819,
April 8, 2014, En Banc (Mendoza) - The Supreme Court is of the view that the
obligation to refer imposed by the RH Law violates the religious belief and conviction of
a conscientious objector. Once the medical practitioner, against his will, refers a patient
seeking information on modem reproductive health products, services, procedures and
methods, his conscience is immediately burdened as he has been compelled to perform
an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas)
has written, "at the basis of the free exercise clause is the respect for the inviolability of
the human conscience.
o What is a purely ecclesiastical affair to which the State can not meddle following the
Separation of Church and State Doctrine?
 An ecclesiastical affair is “one that concerns doctrine, creed, or form of worship of the church, or the
adoption and enforcement within a religious association of needful laws and regulations for the
government of the membership, and the power of excluding from such associations those deemed not
worthy of membership.” Based on this definition, an ecclesiastical affair involves the relationship
between the church and its members and relate to matters of faith, religious doctrines, worship and
governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to
which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers,
administration of sacraments and other activities with attached religious significance. (Pastor Dionisio
V. Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 1st Div. [Kapunan])
 Iglesia Ni Cristo v. Court of Appeals- Under the non-establishment clause of freedom of religion,
when it comes to religious differences, the State enjoys no banquet of options – neutrality alone is its
fixed and immovable stance. It is not its task to defend one religion against an attack by another
religion. After all, the remedy against bad theology is better theology. Let them duel in the market
place of ideas. The marketplace of ideas demands that speech should be met by more speech, for it
is the spark of opposite speech, the heat of colliding ideas, that can fan the embers of truth.
 Taruc vs. Bishop dela Cruz, et al., GR No. 144801, March 10, 2005- The expulsion/excommunication
of members of a religious institution/organization is a matter best left to the discretion of the officials,
and the laws and canons, of said institution/organization.
o CASE LAWS

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NOTES TO CONSTITUTION 2
1. Islamic Da’wah Council of the Phils. Vs. Executive Secretary, GR No. 153888, July 9,
2003

 Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and
with the common good."
 Without doubt, classifying a food product as halal is a religious function because the standards used
are drawn from the Qur'an and Islamic beliefs. By giving OMA the exclusive power to classify food
products as halal, EO 46 encroached on the religious freedom of Muslim organizations like herein
petitioner to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also, by
arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims to accept
its own interpretation of the Qur'an and Sunnah on halal food.
 Only the prevention of an immediate and grave danger to the security and welfare of the community
can justify the infringement of religious freedom. If the government fails to show the seriousness and
immediacy of the threat, State intrusion is constitutionally unacceptable. In a society with a democratic
framework like ours, the State must minimize its interference with the affairs of its citizens and instead
allow them to exercise reasonable freedom of personal and religious activity.
 In the case at bar, we find no compelling justification for the government to deprive muslim
organizations, like herein petitioner, of their religious right to classify a product as halal, even on the
premise that the health of muslim Filipinos can be effectively protected by assigning to OMA the
exclusive power to issue halal certifications.

o Non-establishment Clause
2. Garces vs. Estenzo, 104 SCRA 510

 A wooden image of San Vicente Ferrer was acquired by the barangay council with funds raised by
means of solicitations and cash donations pursuant to Resolution No. 5 of said council, duly ratified by
the barangay assembly in a plebiscite, reviving the traditional socio-religious celebration of the feast
day of the saint. The image was brought to the Catholic parish church during the saint's feast day as
per Resolution No. 6 which also designated the hermano mayor as the custodian of the image. After
the fiesta, however, petitioner parish priest refused to return custody of the image to the council until
after the latter, by resolution, filed a replevin case against the priest and posted the required bond. The
parish priest and his co-petitioners thereafter filed an action for annulment of the council's resolutions
relating to the subject image contending that when they were adopted, the barangay council was not
duly constituted because the chairman of the Kabataang Barangay was not allowed to participate; and
that they contravened the constitutional provisions on separation of church and state. freedom of
religion and the use of public money to favor any sect or church. The lower court dismissed the
complaint and upheld the validity of the resolution.
 The questioned resolutions did not contravene any constitutional provision since the image was
purchased with private funds, not with tax money, and in connection with a socio-religious affair, the
celebration of which is an ingrained tradition in rural communities.

3. Aglipay vs. Ruiz, 64 Phil 201

 Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the
discretionary power to determine when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase "advantageous to the Government" does
not authorize the violation of the Constitution. It does not authorize the appropriation, use or application
of public money or property for the use, benefit or support of a particular sect or church. In the present
case, however, the issuance of the postage stamps in question by the Director of Posts and the
Secretary of Public Works and Communications was not inspired by any sectarian feeling to favor a
particular church or religious denominations. The stamps were not issued and sold for the benefit of
the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church.

XIV. LIBERTY OF ABODE AND TRAVEL

o Art. III, Sec. 6
o

 Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except
in the interest of national security, public safety or public health, as may be provided by law.

1. Freedom to choose and change one’s place of abode.

2. Freedom to travel within the country and outside.
o Curtailment of rights:

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NOTES TO CONSTITUTION 2

RIGHT MANNER OF CURTAILMENT

Lawful order of the court and within the limits
1. Liberty of abode
prescribed by law.
May be curtailed even by administrative officers
2. Right to travel
(ex. passport officers) in the interest of national
security, public safety, or public health, as may be
provided by law.
o Limitations (Right to Travel)
1. Interest of national security;
2. Public safety;
3. Public health;
4. Any person on bail; or (see Nachura, Outline Reviewer in Political Law; Bernas, The 1987 Philippine
Constitution: A Comprehensive Reviewer).

 The right to travel is guaranteed by the Constitution. However, the exercise of such right is not absolute.
Section 6, Article III of the 1987 Constitution allows restrictions on one’s right to travel provided that
such restriction is in the interest of national security, public safety or public health as may be provided
by law. This, however, should by no means be construed as limiting the Court’s inherent power of
administrative supervision over lower courts.

o CASE LAWS

 In Office of Administrative Service-Office of the Court Administrator v. Judge Ignacio B.

Macarine, A.M. No. MTJ-10-1770, July 19, 2012, the Supreme Court ruled that OCA Circular No. 49-
2003 does not restrict but merely regulates, by providing guidelines to be complied by judges and court
personnel, before they can go on leave to travel abroad. To “restrict” is to restrain or prohibit a person
from doing something; to “regulate” is to govern or direct according to rule. To ensure management of
court dockets and to avoid disruption in the administration of justice, OCA Circular No. 49-2003 requires
a judge who wishes to travel abroad to submit, together with his application for leave of absence duly
recommended for approval by his Executive Judge, a certification from the Statistics Division, Court
Management Office of the OCA. The said certification shall state the condition of his docket based on
his Certificate of Service for the month immediately preceding the date of his intended travel, that he
has decided and resolved all cases or incidents within three (3) months from date of submission,
pursuant to Section 15(1) and (2), Article VIII of the 1987 Constitution. Thus, for traveling abroad without
having been officially allowed by the Court, Judge Macarine is guilty of violation of OCA Circular No.
49-2003.
 Genuino vs. de Lima, et al., G.R. No. 199034, April 17, 2018- The issuance of DOJ Circular No. 41
has no legal basis. Under Sec 6, Art. 3 of the 1987 Constitution provides three considerations that may
permit a restriction on the right to travel: national security, public safety or public health. As a further
requirement, there must be an explicit provision of statutory law or the Rules of Court providing for the
impairment.
 To begin with, there is no law particularly providing for the authority of the secretary of justice to curtail
the exercise of the right to travel. To be clear, DOJ Circular No. 41 is not a law. It is not a legislative
enactment which underwent the scrutiny and concurrence of lawmakers, and submitted to the President
for approval. It is a mere administrative issuance apparently designed to carry out the provisions of an
enabling law which the former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise
known as the Administrative Code of 1987. It is, however, important to stress that before there can
even be a valid administrative issuance, there must first be a showing that the delegation of
legislative power is itself valid. It is valid only if there is a law that (a) is complete in itself, setting
forth therein the policy to be executed, carried out, or implemented by the delegate; and (b)
fixes a standard the limits of which are sufficiently determinate and determinable to which the
delegate must conform in the performance of his functions.
 Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the
DOJ of empowering itself under the pretext of dire exigency or urgent necessity.” Unlike the courts, the
DOJ does not have the inherent power “to restrict the right to travel in any way.”
o Precautionary Hold Departure Order (PHDO)- that bars individuals facing criminal
complaints from leaving the country. The High Court said a prosecutor can file a PHDO
application with “any regional trial court within whose territorial jurisdiction the alleged crime
was committed.”
o “For compelling reasons, it may be filed with any regional trial court within the region where the
crime was committed if the place of the commission of the crime is known. The regional trial
courts in the City of Manila, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de
Oro City shall also have authority to act on applications filed by the prosecutor based on
complaints instituted by the National Bureau of Investigation, regardless of where the alleged
crime was committed,” it added.
o On the other hand, the SC assured that the issuance of a PHDO will not affect any findings of
probable cause in the preliminary investigations of criminal complaints before the DOJ’s
National Prosecution Service (NPS) and its regional and city offices.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o “The preliminary finding of probable cause is solely based on the complaint and is for the sole
purpose of issuing PHDO and shall be without the prejudice to the resolution by the prosecutor
of any criminal complaint during the preliminary investigation,” it said.
o The PHDO shall remain valid until recalled by the issuing court. “Once issued, the PHDO may
be lifted by a verified motion filed by the respondent questioning the existence of probable
cause or a showing that she or he is not a flight risk. The PHDO may also be lifted to allow him
or her to leave the country upon posting of a bond in an amount to be determined by the court,”
it stated.
o - The Court said the PHDO may be applied for in the same manner that a search warrant may
be issued, thus, a judge must first determine probable cause upon personal examination of
witnesses under oath or affirmation.
 Return to one’s country (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989 & Oct. 27, 1989).
o The right to return to one’s country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel. Nevertheless, the right
to return may be considered as a generally accepted principle of International law, and under
the Constitution, is part of the law of the land. However, it is distinct and separate from the right
to travel and enjoys a different protection under the Intl. Covenant of Civil and Political Rights

1. Art. 13 (2), Universal Declaration of Human Rights- provides that everyone has the right
to leave any country, including his own, and to return to his country.
2. Art. 12 (4), Covenant on Civil and Political Rights- provides that no one shall be arbitrarily
deprived of the right to enter his own country.

o Note: The right to travel and the liberty of abode are distinct from the right to return to one’s
country, as shown by the fact that the Declaration of Human Rights and the Covenant on
Human Rights have separate guarantees for these. Hence, the right to return to one’s country
is not covered by the specific right to travel and liberty of abode. (Marcos v. Manglapus)
 SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK) vs. Quezon City, G.R. No. 225442,
August 08, 2017
o Nevertheless, grave and overriding considerations of public interest justify restrictions even if
made against fundamental rights. Specifically on the freedom to move from one place to
another, jurisprudence provides that this right is not absolute. As the 1987 Constitution itself
reads, the State may impose limitations on the exercise of this right, provided that they: (1)
serve the interest of national security, public safety, or public health; and (2) are
provided by law.
o The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety
and prevention of juvenile crime, inarguably serve the interest of public safety. The restriction
on the minor's movement and activities within the confines of their residences and their
immediate vicinity during the curfew period is perceived to reduce the probability of the minor
becoming victims of or getting involved in crimes and criminal activities. As to the second
requirement, i.e., that the limitation "be provided by law," our legal system is replete with laws
emphasizing the State's duty to afford special protection to children, i.e., RA 7610, as amended,
RA 9775, RA 9262, RA 9851, RA 9344, RA 10364, RA 921, RA8980, RA9288, and Presidential
Decree (PD) 603, as amended.
 Marcos vs. Sandiganbayan, GR No. 115132, August 9, 1995- The person’s right to travel is subject
to the usual constraints imposed by the very necessity of safeguarding the system of justice. Whether
the accused should be permitted to leave the country for humanitarian reasons is a matter addressed
to the court’s discretion. (Yap vs. CA, GR No. 141529, June 6, 2001).
 ZABAL, et al. vs. Executive Secretary, G.R. No. 238467, February 12, 2019- his case does not
actually involve the right to travel in its essential sense contrary to what petitioners want to portray. Any
bearing that Proclamation No. 475 may have on the right to travel is merely corollary to the closure of
Boracay and the ban of tourists and non-residents therefrom which were necessary incidents of the
island's rehabilitation. There is certainly no showing that Proclamation No. 475 deliberately meant to
impair the right to travel. Tue questioned proclamation is clearly focused on its purpose of rehabilitating
Boracay and any intention to directly restrict the right cannot, in any manner, be deduced from its import.
This is contrary to the import of several laws recognized as constituting an impairment on the right to
travel which directly impose restriction on the right, viz.:
 Some of these statutory limitations [to the right to travel] are the following:
1. The Human Security Act of2010 or Republic Act (R.A.) No. 9372. The law restricts the right
travel of an individual charged with the crime of terrorism even though such person is out on
bail.
2. The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary
of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use
of, or withdraw, a passport of a Filipino citizen.
3. The 'Anti-Trafficking in Persons Act of 2003' or RA 9208. Pursuant to the provisions
thereof, the Bureau of Immigration, in order to manage migration and curb trafficking in
persons, issued Memorandum Order Radjr No. 2011-011, allowing its Travel Control and
Enforcement Unit to 'offload passengers with fraudulent travel documents, doubtful purpose of
travel, including possible victims of human trafficking' from our ports.
4. The Migrant Workers and Overseas Filipinos Act of 1995 or R.A. No. 8042, as amended
by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
Administration (POEA) may refuse to issue deployment permit[ s] to a specific country that
effectively prevents our migrant workers to enter such country.
5. The Act on Violence Against Women and Children or R.A. No. 9262. The law restricts
movement of an individual against whom the protection order is intended.
6. Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country
Adoption Board may issue rules restrictive of an adoptee's right to travel 'to protect the Filipino
child from abuse, exploitation, trafficking and/or sale or any other practice in connection with
adoption which is harmful, detrimental, or prejudicial to the child.”

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2

OTHER GUARANTEED RIGHTS

XV. RIGHT TO SPEEDY DISPOSITION OF CASES

o Section 16.

 Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial,
quasi-judicial, or administrative bodies.

o Distinction between Section 14 and Section 16

 While the rights of an accused only apply to the trial phase of criminal cases, the right to a speedy
disposition of cases covers ALL phases of JUDICIAL, QUASI-JUDICIAL or ADMINISTRATIVE
proceedings.

o CASES:

 Where the case for violation of the Anti-Graft Law was pending for preliminary investigation with the
Office of the Tanodbayan for 3 years and it is indicated that the case is of simple nature and was
prosecuted for political reasons, it is held that there was violation of the accused’s right to speedy
disposition of case. Right to speedy disposition extends to preliminary investigations. (Tatad vs.
Sandiganbayan, 159 SCRA 70).
 NOTE: Recent decision of the Supreme Court on the Inordinate delay Doctrine (Cagang v.
Sandiganbayan, GR Nos. 206438 and 206458, 2018-07-31)- The Supreme Court interpreted the
reckoning period for the right to ‘speedy disposition of…cases’ under Article III, Section 16, to start from
the preliminary investigation of cases, and not before the preliminary investigation and not from the
fact-finding stage,”
 People vs. Sandiganbayan (First Division), G.R. No. 240776, 20 November 2019, the Supreme
Court reiterated the rule that in determining whether there is inordinate delay by the Office of the
Ombudsman in resolving criminal complaints filed before it, the period taken for fact-finding
investigations prior to the filing of the formal complaint for the conduct of preliminary investigation
should be excluded. Consequently, the period should start to run (or be counted) only from the time
that a formal complaint is filed against the respondents - where they are required to file their counter-
affidavits - and not during case build-up where the proceedings are not adversarial in nature.

XVI. INVOLUNTARY SERVITUDE

o General Rule

 1. It is every condition of enforced or compulsory service of one to matter under what form for such
servitude may be disguised (Rubi v. Provincial Board, 39 Phil. 660).

o Exceptions:
1. As punishment for a crime whereof one has been duly convicted (Sec. 18[2], Art. III);
2. Service in defense of the state (Sec. 4, Art. II; see People v. Zosam 38 O.G. 1676);
3. Naval enlistment (See Robertson v. Baldwin, 165 U.S. 75);
4. Posse commitatus (power of the county, poder del condado) – an ancient obligation of the individual to assist in
the protection of the peace and good order of his community is still
5. recognized in all well-organized governments. Under this power, those persons in the state, county, or town who
were charged with the maintenance of peace and good order were bound, ex oficio, to pursue and to take all
persons who had violated the law. For that purpose they might command all the male inhabitants of a certain age
to assist them. (see U.S. v. Pompeya, 31 SCRA 245);
6. Return to work order in industries affected with public interest (Kapisanan ng mga Manggawa sa Kahoy v.
Gotamco Sawmills, 45 O.G. Supp. No. 9, p. 147); and
7. Patria potestas -- Children are obliged to obey their parents so long as they are under parental power, and to
observe respect and reverence toward them always (Art. 311, New Civil Code).
o Political Prisoners

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
1. No person shall be detained solely by reason of his political beliefs and aspirations (Sec. 18 [1], Article III, 1987
Constitution).
2. Person(s) who have been arrested or detained by reason of the commission of an act penalized by existing laws
as political crime, or by reason of any other act which is complexed with, or connected to such crimes (Office of
the President, Guidelines for the grant of bail, release or pardon of persons detained or convicted of crimes
against national security and public order, and violation of the Articles of War, of 11 August 1992).

NOTE: Prisoners of conscience – people who have been jailed because of their political, religious or
other conscientiously-held beliefs, ethnic origin, sex, color, language, national or social origin,
economic status, birth, sexual orientation or other status, provided that they have neither used nor
advocated violence (“The Forgotten Prisoners”, The London Observer, May 18, 1961).

3. Political crimes are those directly aimed against the political order, as well as such common crimes
as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a
crime usually regarded as common like homicide, is perpetrated for the purpose of removing from
the allegiance “to the Government the territory of the Philippines Islands or any part thereof,” then
said offense becomes stripped of its “common” complexion, inasmuch as, being part and parcel of
the crime of rebellion, the former acquires the political character of the latter (People v. Hernandez,
99 Phil. 515).

4. On the other hand, Task Force Detainees- Philippines (TFDP) suggests the following criteria for
identifying political prisoners:
a. When the individual was arrested and imprisoned on the occasion or as a consequence of
cause-oriented political mass actions such as pickets, strikes, rallies, etc.;
b. When the detainee was picked up by authorities for his or her membership to cause-oriented
groups;
c. When the prisoner was taken by authorities as a result of counterinsurgency operations, and
when the perpetrators claim that the arrest and detention was a product of counter-
insurgency operations; and
d. When the prisoner is a victim of religious and/or ethnic discrimination (Office of the President,
Guidelines for the grant of bail, release or pardon of persons detained or convicted of crimes
against national security and public order, and violation of the Articles of War, of 11 August
1992).

XVII. IMPRISONMENT FOR DEBT

o Section 20

 No person shall be imprisoned for debt or non-payment of a poll tax (Sec. 20, Article III, 1987
Constitution).

o Debt

 any civil obligation arising from contract (Bernas, The 1987 Philippine Constitution: A Comprehensive
Reviewer). -The civil liability from a crime is not “debt” within the purview of the constitutional provision
against imprisonment for non payment of “debt”.

1. Generally, a debtor cannot be imprisoned for failure to pay his debt. However, if he contracted his debt through
fraud, he can be validly punished in a criminal action as his responsibility arises not from the contract of loan but
from commission of a crime (Lozano v. Martinez, G.R. No. L-63419, December 18, 1986).
2. BP 22 (Bouncing Checks Law) does not violate the constitutional provision of non-imprisonment for debt. The
gravamen of the offence is not the non-payment of a debt but putting into circulation of a worthless checkn(Ibid).
3. BP 115 (Trust Receipt Law) does not seek to enforce a loan but to punish dishonesty and abuse of confidence in
the handling of money or goods to the prejudice of another.

 Vergara vs. Gedorio, 402 SCRA 520- Debt, as used in the Constitution, refers to a civil debt or one
not arising from a criminal offense. Clearly, the non payment of rentals is covered by the constitutional
guarantee against imprisonment.

o Poll tax

 can be understood as the cedula tax or residence tax. The Constitution does not prohibit the cedula tax
but it prohibits imprisonment for non-payment of the cedula or residence tax (Bernas, The 1987
Philippine Constitution: A Comprehensive Reviewer).

XVIII. EX POST FACTO LAWS AND BILLS OF ATTAINDER

o Art III, Sec. 22

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
 Section 22. No ex post facto law or bill of attainder shall be enacted.

o Definition of ex-post facto law.

4. One which makes an action done before the passing of the law, and which was innocent when done, criminal,
and punishes such action.
5. One which aggravates the crime or makes it greater than when it was committed.
6. One which changes the punishment and inflicts a greater punishment than that which the law annexed to the
crime when it was committed.
7. One which alters the legal rules of evidence and receives less testimony than the law required at the time of the
commission of the offense in order to convict the accused.
8. One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or deprivation of a
right, which, when done, was lawful.
9. One which deprives a person accused of a crime of some lawful protection to which he has become entitled such
as the protection of a former conviction or acquittal, or a proclamation of amnesty.

 Note: The prohibition on ex post facto laws only applies to retrospective PENAL laws.

o Definition of BILL OF ATTAINDER

5. A bill of attainder is a LEGISLATIVE act which inflicts punishment W/O JUDICIAL trial.
6. The bill of attainder does not need to be directed at a specifically named person. It may also refer to easily
ascertainable members of a group in such a way as to inflict punishment on them without judicial trial.
7. Elements of the bill of attainder
a. There must be a LAW.
b. The law imposes a PENAL burden on a NAMED INVIDIDUAL/EASILY ASCERTAINABLE MEMBERS of
a GROUP.
c. The penal burden is imposed DIRECTLY by the LAW W/O JUDICIAL trial.
o CASES:

 What is a bill of attainder? Is P.D. 1866 a bill of attainder?

o [T]he Court, in People v. Ferrer, defined a bill of attainder as a legislative act which inflicts
punishment on individuals or members of a particular group without a judicial trial. Essential
to a bill of attainder are a specification of certain individuals or a group of individuals, the
imposition of a punishment, penal or otherwise, and the lack of judicial trial. This last element,
the total lack of court intervention in the finding of guilt and the determination of the actual
penalty to be imposed, is the most essential. P.D. No. 1866 does not possess the elements of
a bill of attainder. It does not seek to inflict punishment without a judicial trial. Nowhere in the
measure is there a finding of guilt and an imposition of a corresponding punishment. What the
decree does is to define the offense and provide for the penalty that may be imposed,
specifying the qualifying circumstances that would aggravate the offense. There is no
encroachment on the power of the court to determine after due hearing whether the prosecution
has proved beyond reasonable doubt that the offense of illegal possession of firearms has
been committed and that the qualifying circumstances attached to it has been established also
beyond reasonable doubt as the Constitution and judicial precedents require. (Misolas v.
Panga, 181 SCRA 648, 659-660, Jan. 30, 1990, En Banc [Cortes])
 What is an ex post facto law? Is R.A. No. 8249 an ex post facto law?
o Ex post facto law, generally, prohibits retrospectivity of penal laws. R.A. 8249 is not a penal
law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those
acts of the Legislature which prohibit certain acts and establish penalties for their violations; or
those that define crimes, treat of their nature, and provide for their punishment. R.A. 7975,
which amended P.D. 1606 as regards the Sandiganbayan’s jurisdiction, its mode of appeal and
other procedural matters, has been declared by the Court as not a penal law, but clearly a
procedural statute, i.e., one which prescribes rules of procedure by which courts applying laws
of all kinds can properly administer justice. Not being a penal law, the retroactive application
of R.A. 8249 cannot be challenged as unconstitutional.
o Petitioner’s and intervenors’ contention that their right to a two-tiered appeal which they
acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The
same contention has already been rejected by the court several times considering that the right
to appeal is not a natural right but statutory in nature that can be regulated by law. The mode
of procedure provided for in the statutory right of appeal is not included in the prohibition against
ex post facto laws. R.A. 8249 pertains only to matters of procedure, and being merely an
amendatory statute it does not partake the nature of an ex post facto law. It does not mete out
a penalty and, therefore, does not come within the prohibition. Moreover, the law did not alter
the rules of evidence or the mode of trial. It has been ruled that adjective statutes may be
made applicable to actions pending and unresolved at the time of their passage.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o At any rate, R.A. 8249 has preserved the accused’s right to appeal to the Supreme Court to
review questions of law. On the removal of the intermediate review of facts, the Supreme Court
still has the power of review to determine if the presumption of innocence has been convincingly
overcome. (Panfilo M. Lacson v. The Executive Secretary, et. al., G.R. No. 128096, Jan. 20,
1999 [Martinez])
o RA 8249, an act which further defines the jurisdiction of the Sandiganbayan, is not penal law
but a substantive law on jurisdiction whose retroactive application is constitutional (Lacson vs.
Exec. Secretary, 301 SCRA 298).
o Nasi-Villar vs. People, 571 SCRA 202- A law can never be considered ex-post facto law as
long as it operates prospectively since its stricture would cover only offenses committed after
and not before its enactment.
o The prohibition of ex post facto laws and bill of attainder applies to court doctrines pursuant to
the maxim “legisinterpretatiolegis vim obtinet”- the interpretation placed upon the written law
by a competent court has the force of law ( PP vs. Jabinal, 55 SCRA 602).
o The law making the use of an unlicensed firearm a qualifying circumstance in murder cannot
apply retroactively. (PP vs. Patoc, 398 SCRA 62).
o Re DNA tests conducted by the prosecution against accused being unconstitutional on the
ground that resort thereto was tantamount to the application of an ex-post facto law- Describing
the argument as specious, the Supreme Court held “no ex-post facto law was involved in the
case at bar”. It added that “the science of DNA typing involved the admissibility, relevance and
reliability of the evidence obtained under the Rules of Court”. Whereas, “an ex-post facto law
referred primarily to a question of law, DNA profiling requires a factual determination of the
probative weight of the evidence presented”. (PP vs. Yatar, May 19, 2004)

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2

RIGHTS OF PERSONS BEFORE A CRIMINAL PROSECUTION

A. RIGHT TO FREE ACCESS TO COURTS

 SECTION 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall
not be denied to any person by reason of poverty.

1. Free Legal Assistance Act of 2010.

 The term legal services to be performed by a lawyer refers to 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 (Sec. 3, RA 9999).

a. 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.
b. 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 Lawyers, under BAR Matter No. 2012, issued by the Supreme Court (Sec.
5, RA 9999).
2. Indigent litigants exempt from payment of legal fees.

 Indigent litigants:

1) Whose gross income and that of their immediate family do not exceed an amount double the
monthly minimum wage of an employee and,
2) who do not own real property with a fair market value as stated in the current tax declaration of
more than three hundred thousand (Php 300,000.00) pesos Shall be exempt from the payment of
legal fees.

 The legal fees shall be a lien on any judgment rendered in the case favorable to the indigent
litigant unless the court otherwise provides.To be entitled to the exemption herein provided, the
litigant shall execute an affidavit that he and his immediate family do not earn a gross income
abovementioned, nor they own any real property with the fair value aforementioned, supported
by an affidavit of a disinterested person attesting to the truth of the litigant’s affidavit. The
current tax declaration, if any, shall be attached to the litigant’s affidavit. Any falsity in the
affidavit of litigant or disinterested person shall be sufficient cause to dismiss the complaint or
action or to strike out the pleading of that party, without prejudice to whatever criminal liability
may have been incurred.

3) A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex
parte application and hearing, is satisfied that the party is one who has no money or property sufficient and
available for food, shelter and basic necessities for himself and his family. Such authority shall include an
exemption from payment of docket and other lawful fees, and of transcripts of stenographic notes which
the court may order to be furnished him. The amount of the docket and other lawful fees which the indigent
was exempted from paying shall be a lien on any judgment rendered in the case favorable to the indigent,
unless the court otherwise provides.

 Any adverse party may contest the grant of such authority at any time before judgment is rendered by
the trial court. If the court should determine after hearing that the party declared as an indigent is in fact
a person with sufficient income or property, the proper docket and other lawful fees shall be assessed
and collected by the clerk of court. If payment is not made within the time fixed by the court, execution
shall issue or the payment thereof, without prejudice to such other sanctions as the court may impose
(Sec.21, Rule 21, Rules of Court).

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
B. CUSTODIAL RIGHTS OF A SUSPECT
o Section 12.

 (1) Any person under investigation for the commission of an offense shall have the right to be informed
of his right to remain silent and to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
 (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.
 (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible
in evidence against him.
 (4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

o Availability
1. They exist only in custodial interrogation (People v. Judge Ayson, 175SCRA 216).

 Custodial investigation

a. Any questioning initiated by law enforcement officers (PNP, DOJ, NBI) after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way, i.e., Signing of arrest reports and booking sheets.
b. 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 (Sec.2, RA 7438 [An Act Defining Certain Rights
Of Person Arrested, Detained Or Under Custodial Investigation As Well As The Duties Of The
Arresting, Detaining And Investigating Officers, And Providing Penalties For Violations
Thereof]).
c. They are available when the investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect, the suspect has been
taken into police custody, and the police carry out a process of interrogation that lends itself
to eliciting incriminating statements. The rule begins to operate at once as soon as the
investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed
upon a particular suspect who has been taken into custody and to whom the police would
then direct interrogatory question which tend to
2. The constitutional provision on custodial investigation does not apply to a spontaneous statement, not elicited
through questioning by the authorities but given in an ordinary manner whereby the suspect orally admits
having committed the crime. Neither can it apply to admissions or confessions made by a suspect in the
commission of a crime before he is placed under investigation. What the Constitution bars is the compulsory
disclosure of incriminating facts or of the Constitution are guaranteed to preclude the slightest use of coercion
by the state as would lead the accused to admit something false, not to prevent him from freely and
voluntarily telling the truth (People v. Baloloy, G.R. No.140740. April 12, 2002).
o Requisites

 The Court, as guardian of the rights of the people laid down the procedure, guidelines and duties which
the arresting, detaining, inviting, or investigating officer or his companions must do and observe at the
time of making an arrest and again at and during the time of the custodial interrogation in accordance
with the Act No. 7438. It is high-time to educate our law-enforcement agencies who neglect either by
ignorance or indifference the so-called Miranda rights which had become insufficient and which the
Court must update in the light of new legal developments:

1. The person arrested, detained, invited or under custodial investigation must be informed in
a language known to and understood by him of the reason for the arrest and he must be
shown the warrant of arrest, if any; Every other warnings, information or communication must
be in a language known to and understood by said person;
2. He must be warned that he has a right to remain silent and that any statement he
makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the
presence of an independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one
will be provided for him; and that a lawyer may also be engaged by any person in his behalf,
or may be appointed by the court upon petition of the person arrested or one acting in his
behalf;

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
5. That whether or not the person arrested has a lawyer, he must be informed that no custodial
investigation in any form shall be conducted except in the presence of his counsel or after a
valid waiver has been made;
6. The person arrested must be informed that, at any time, he has the right to communicate
or confer by the mostexpedient means – telephone, radio, letter or messenger – with his
lawyer (either retained or appointed), any member of his immediate family, or any medical
doctor, priest or minister chosen by him or by any one from be visited by/confer with duly
accredited national or international nongovernment organization. It shall be the responsibility
of the officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said rights provided it is made
voluntarily, knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it
must be done in writing AND in the presence of counsel, otherwise, he must be warned that
the waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time
or stage of the process that he does not wish to be questioned with warning that once he
makes such indication, the police may not interrogate him if the same had not yet
commenced, or the interrogation must ceased if it has already begun;
10. The person arrested must be informed that his initial waiver of his right of his rights does
not bar him from invoking it at any time during the process, regardless of whether he may
have answered some questions or volunteered some statements;
11. He must also be informed that any statement or evidence, as the case may be, obtained
in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part,
shall be inadmissible in evidence (People v.Mahinay, 302 SCRA 455).
o When rights are not available:
1) During a police line-up. Exception: Once there is a move among the investigators to elicit admissions
or confessions from the suspect.
2) During administrative investigations.
3) Confessions made by an accused at the time he voluntarily surrendered to the police or outside the
context of a formal investigation.
4) Statements made to a private person.
o Exclusionary rule
1) Any confession or admission obtained in violation of this section shall be inadmissible in evidence
against him (the accused).
2) Therefore, any evidence obtained by virtue of an illegally obtained confession is also inadmissible,
being the fruit of a poisoned tree.
o Waiver

 Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised
Penal Code, or under custodial investigation, shall be in writing and signed by such person in
the presence of his counsel; otherwise the waiver shall be null and void and of no effect (Sec. 2 [e],
RA7438).
 Whenever a protection given by the Constitution is waived by the person entitled to that protection, the
presumption is always against the waiver. Consequently, the prosecution must prove with strongly
convincing evidence to the satisfaction of this Court that indeed the accused willingly and voluntarily
submitted his confession and knowingly and deliberately manifested that he was not interested in
having a lawyer assist him during the taking of that confession (People v. Jara, G. R. No. L-61356-57,
September 30, 1986).

o CASES:
1. Read: Miranda vs. Arizona, Gamboa vs. Cruz, Escobedo vs. Illinois.
2. People vs. Lauga, GR No. 186228, March 15, 2010- Barangay based organizatios in the nature of watch
groups, as in the case of bantay bayan, are recognized by local government unit to perform functions relating
to the preservation of peace and order at the barangay level. Thus, without ruling on the legality of the
actions taken by Banting and the specific scope of duties and responsibilities delegated to a bantay bayan,
particularly on the authority to conduct a custodial investigation, any inquiry he makes has the color of a state-
related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for
under Article III, section 12 of the constitution. The Supreme Court, therefore, finds the extra-judicial
confession of Lauga which was taken without a counsel, inadmissible in evidence.
3. Luz vs. People- roadside questioning does not fall under custodial investigation, nor it can be considered a
formal arrest, by the very nature of the questioning, the expectations of the motorist and the officer, and the
length of time the procedure is conducted.
4. Applies to preliminary investigation, PP vs. Sunga, 399 SCRA 624
5. PP vs. Vallejo, May 9, 2002- To be an effective counsel, a lawyer need not challenge all the questions being
propounded to his client. The presence of counsel to preclude the slightest coercion as would lead the
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
accused to admit something false. Indeed counsel should not prevent an accused from freely and voluntarily
telling the truth.
6. PP vs. Domantay, 307 SCRA 1- RA 7438 has extended the constitutional guarantee to situations in which an
individual has not been formally arrested but has merely been “invited” for questioning.
7. PP vs. Garcia, 400 SCRA 229, A confession made to a private person is admission in evidence.
8. PP vs. Lozada, 406 SCRA 494, An unwritten confession is inadmissible.
9. A party in an administrative inquiry may or may not be assisted by counsel (Ampong vs. CSC, 563 SCRA
293).
10. Van Luspo vs. People, GR No. 188487, February 14, 2011- The court sustained the admissibility of the
sworn statements of the other accused, explaining that the investigations performed by the PNP were
administrative and not custodial in nature.
11. Perez vs. People, 544 SCRA 532- While investigations by an administrative body may at times be akin to a
criminal proceeding, a party in an administrative inquiry may or may not be assisted by counsel, irrespective
of the nature of the charges and of respondent’s capacity to represent himself, and no duty rests on such
body to furnish the person being investigated with counsel.

C. RIGHT TO BAIL
o Kinds of Bail

 Rule 114, Sections 10, 11, 14 & 15

o Section 13 Bail

 Section 13 Bail. All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

o Bail Defined

 Rule 114, Section 1, ROC

1. Bail is the security given for the release of a person in custody of the law, furnished by him or a
bondsman, conditioned upon his appearance before any court as may be required (Sec. 1, Rule
114, Rules of Court).
2. Bail is accorded to a person in custody of the law who may by reason of the presumption of
innocence he enjoys, be allowed provisional liberty upon filing a security to guarantee his
appearance before any court, as required under specific circumstances (People v.Fitzgerald, GR
149723, October 27, 2006).
3. The right to bail can be availed of only by a person who is in custody of the law or otherwise
deprived of his liberty, and it would be premature, not to say incongruous, to file a petition for bail
for someone whose freedom has yet to be curtailed (Cortes v. Judge Catral, A.M. No. RTJ-99-
1508, December 15, 1999).
o Exceptions:
1. Those charged with capital offense when evidence of guilt is strong. Since the evidence in this
case (rebellion) is hearsay, the evidence of guilt is not strong, bail is allowed (Enrile v. Perez, G.R.
No. 147780 May 10, 2001).
2. Military men. Military men who participated in failed coup d’état because of their threat to national
security (Comendador v. De Villa, 200SCRA 80). The denial of the right to bail to military does not
violate the equal protection clause because there is substantial distinction between military and
civilians (Nachura, Outline Reviewer in Political Law).
o Bail as a Matter of Right.

 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:

1. Before or after conviction by the MTC; and,

2. Before conviction of the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment (Sec. 4, Rule 114, Rules of Court).
o Bail when Discretionary (Sec. 5, Rule 114).
1. 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.
2. The court, in its discretion, may allow the accused to continue on provisional liberty after the same
bail bond during the period to appeal subject to the consent of the bondsman.
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
3. If the court imposed a penalty of imprisonment exceeding 6 years but not more than 20 years, the
accused shall be denied bail, or his bail previously granted shall be cancelled, upon showing by
the following or other similar circumstances:
i. That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteracion;
ii. 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;
iii. That the accused committed the offense while on probation, parole, or under
conditional pardon;
iv. That the circumstances of the accused or his case indicates the probability of flight if
released on bail; or
v. That there is undue risk that during the pendency of the appeal, the accused may
commit another crime.
o Whether bail is a matter of right or of discretion

 reasonable notice of hearing is required to be given to 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 (Sec. 5, Rule 114).

o Factors considered in setting the amount of bail:

1. Ability to post bail
2. Nature of the offense
3. Penalty imposed by law
4. Character and reputation of the accused
5. Health of the accused
6. Strength of the evidence
7. Probability of appearing at the trial
8. Forfeiture of previous bail bonds
9. Whether accused was a fugitive from justice when arrested
10. If accused is under bond in other cases
o Implicit limitations on the right to bail:
1. The person claiming the right must be in actual detention or custody of the law.
2. The constitutional right is available only in criminal cases, not, e.g. in deportation proceeding
o Bail in extradition.

 After the potential extradite has been arrested and placed under the custody of the law, bail maybe
applied for and granted as an exception, only upon a clear and convincing showing that:

1. Once granted bail, the applicant will not be a flight risk or a danger to the community, and
2. There exists a 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 US v.Judge Purganan and Mark Jimenez,
GR 148571, December 17, 2002).

 NOTE: Extradition proceedings are separate and distinct from trial for the offenses for which he is
charged. The extradite should apply before the courts trying the criminal cases against him, not before
the extradition court (Ibid).

o Deportation cases

 If bail can be granted in deportation cases, considering that the Universal Declaration of Human Rights
applies to deportation cases, there is no reason why it cannot be invoked in extradition cases
(Government of Hong Kong v. Hon. Felixberto Olalia, Jr., GR 1533675, April 19, 2007).

o Waiver of Bail.

 The right to bail is another of the constitutional right which can be waived (People v. Judge Donato,
198 SCRA 130). The failure of the accused to call the attention of the trial court to the unresolved
petition for bail is deemed a waiver of the right to bail (People v. Manes, GR 122737, February 17,
1999).

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o Bail and suspension of the privilege of the writ of habeas corpus.

 The right to bail is not impaired by the suspension of the privilege of the writ of habeas corpus (Sec.
15, Art. III)

o CASES:
1. In bail application where the accused is charged with a capital offense, will it be proper for the judge
to grant bail without conducting hearing if the prosecutor interposes no objection to such
application?

 Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail
applications, in which the accused stands charged with a capital offense. The absence of objection
from the prosecution is never a basis for the grant of bail in such cases, for the judge has no right to
presume that the prosecutor knows what he is doing on account of familiarity with the case. “Said
reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to
determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge
before whom the petition for provisional liberty will be decided. The mandated duty to exercise
discretion has never been reposed upon the prosecutor.”
 Imposed in Baylon v. Sison was this mandatory duty to conduct a hearing despite the prosecution's
refusal to adduce evidence in opposition to the application to grant and fix bail. (Joselito V. Narciso v.
Flor Marie Sta. Romana-Cruz, G.R. No. 134504, March 17, 2000, 3rd Div. [Panganiban])

2. Is a condition in an application for bail that accused be first arraigned before he could be granted bail
valid?

 In the first place x x x in cases where it is authorized, bail should be granted before arraignment,
otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed
and the case is dismissed, there would then be no need for the arraignment of the accused. In the
second place, the trial court could ensure the presence of petitioner at the arraignment precisely by
granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under
Rule 114, Sec. 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that “the accused
shall appear before the proper court whenever so required by the court or these Rules,” while under
Rule 116, Sec. 1(b) the presence of the accused at the arraignment is required.
 On the other hand, to condition the grant of bail to an accused on his arraignment would be to place
him in a position where he has to choose between (1) filing a motion to quash and thus delay his release
on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2)
foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released
on bail. These scenarios certainly undermine the accused’s constitutional right not to be put on trial
except upon valid complaint or information sufficient to charge him with a crime and his right to bail.
(Lavides v. CA, 324 SCRA 321, Feb. 1, 2000, 2nd Div. [Mendoza])

3. Government of Hongkong Special Administrative Region v. Judge Olalia

 The decision of the SC in Government of the USA v. Judge Purganan which says that “no bail rule
applies in extradition since bail is available only to one who had arrested and detained for violation of
Philippine criminal laws” was re-examined and, after re-examination, the rule now is that an extraditee
may be allowed to post bail during the pendency of an extradition proceeding. However, for him to be
allowed to post bail, still he must prove that (1) once granted bail he will not be a flight risk or a danger
to the community; and (2) that there exists special, humanitarian and compelling circumstances that
will justify the grant of bail to him, by a clear and convincing evidence.
 The reason why the Purganan ruling was re-examined is because of the modern trend in public
international law where an individual person is no longer considered a mere object of international law
but rather as a subject thereof, and the primacy given to human rights, among which is the right to
liberty.

4. Juan Ponce Enrile v. Sandiganbayan (3rd Div.), G.R. No. 213847, August 18, 2015, En Banc (Bersamin)
A close reading of the ruling of the SC in this case allowing former Senator Juan Ponce Enrile to post bail
although he was charged of plunder, a non-bailable offense, was because of the Olalia ruling.

 -In this case, former Senator Enrile was shown not to be a flight risk or a danger to the community (his
voluntary surrender to the authorities and his record of respect for court processes in earlier cases),
and that there exist special, humanitarian and compelling circumstances (his advanced age, fragile
state of health and medical predicament that will require the services of doctors of his choice) that will
justify the grant of bail to him. After all, the main purpose of bail is to assure the presence of an accused
during the trial of the case as required by the court.
 -“Bail for the provisional liberty to the accused, regardless of the crime charged, should be allowed
independently of the merits of the charge, provided his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling hid health and
life would not serve the true objective of preventive incarceration during the trial.
 -“It is relevant to observe that granting provisional liberty to Enrile will then enable him to have his
medical condition be properly addressed and better attended to by competent physicians in the
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
hospitals of his choice. This will not only aid in his adequate preparation of his defense but, more
importantly, will guarantee his appearance in court for the trial.
 -“On the other hand, to mark time in order to wait for the trial to finish before a meaningful consideration
of the application for bail can be had is to defeat the objective of bail, which is to entitle the accused to
provisional liberty pending the trial. There may be circumstances decisive of the issue of bail x x x that
the courts can already consider in resolving the application for bail without awaiting the trial to finish.
The Court thus balances the scales of justice by protecting the interest of the People through ensuring
his personal appearance at the trial, and at the same time realizing for him the guarantees of due
process as well as to be presumed innocent until proven guilty.”
 Where the accused was originally charged with a capital offense but later convicted of non-capital and
which he appeals, bail cannot be granted as a matter right (Obosa vs. CA, 266 SCRA 281).
 The constitutional right to bail is available only in criminal proceedings. The right is not available in
extradition proceedings that are not criminal in nature. In the absence of any provision in the
constitution, the law or the treaty, adopting the practice of not granting bail, as a general rule, would
be a step towards deterring fugitives from coming to the Philippines to hide from or evade their
prosecutors.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2

RIGHTS OF AN ACCUSED RIGHTS DURING AND AFTER CRIMINAL

PROSECUTION

D. RIGHTS OF THE ACCUSED

o Section 14.

 (1) No person shall be held to answer for a criminal offense without due process of law.
 (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved,
and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is unjustifiable.

o Rights of a person charged with a criminal offense

1. Right to due process of law
2. Right to be presumed innocent
3. Right to be heard by himself and counsel
4. Right to be informed of the nature and cause of the accusation against him
5. Right to have a speedy, impartial and public trial
6. Right to meet the witnesses face to face
7. Right to have compulsory process to secure the attendance of witnesses and the production of
evidence in his behalf
o “DUE PROCESS”

 This means that the accused can only be convicted by a tribunal which is required to comply with the
stringent requirements of the rules of criminal procedure.

o “PRESUMPTION OF INNOCENCE”

 The Constitution does not prohibit the legislature from providing that proof of certain facts leads to a
prima facie presumption of guilt, provided that the facts proved have a reasonable connection to the
ultimate fact presumed.
 Presumption of guilt should not be conclusive.

o “RIGHT TO BE HEARD BY HIMSELF AND COUNSEL”

1. The right to be heard includes the following rights:
a. Right to be present at the trial
b. The right to be present covers the period from ARRAIGNMENT to PROMULGATION of sentence.
c. After arraignment, trial may proceed notwithstanding absence of accused, provided 2 requisites are met.
Note, that trial in absentia is allowed only if the accused has been validly arraigned.
1. Accused has been duly notified; and
2. His failure to appear is unjustifiable.

 The accused may waive the right to be present at the trial by not showing up. However, the court can
still compel the attendance of the accused if necessary for identification purposes. Exception: If the
accused, after arraignment, has stipulated that he is indeed the person charged with the offense and
named in the information, and that any time a witness refers to a name by which he is known, the
witness is to be understood as referring to him.
 While the accused is entitled to be present during promulgation of judgement, the absence of his
counsel during such promulgation does not affect its validity.

2. Right to counsel

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
a. Right to counsel means the right to EFFECTIVE REPRESENTATION.
b. If the accused appears at arraignment without counsel, the judge must:
1. Inform the accused that he has a right to a counsel before arraignment
2. Ask the accused if he desires the aid of counsel
3. If the accused desires counsel, but cannot afford one, a counsel de oficio must be appointed
4. If the accused desires to obtain his own counsel, the court must give him a reasonable time to get
one.
3. Right to an impartial judge
4. Right of confrontation and cross-examination
5. Right to compulsory process to secure the attendance of witnesses
o “RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST HIM”

 Purposes of the right:

1. To furnish the accused with a description of the charge against him as will enable him to make his
defenses
2. To avail himself of his conviction or acquittal against a further prosecution for the same cause
3. To inform the court of the facts alleged.

 If the information fails to allege the material elements of the offense, the accused cannot be convicted
thereof even if the prosecution is able to present evidence during the trial with respect to such elements.
 The real nature of the crime charged is determined from the recital of facts in the information. It is not
determined based on the caption or preamble thereof nor from the specification of the provision of law
allegedly violated

o RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL”

 RA 8493 is a means of enforcing the right of the accused to a speedy trial (Uy v. Hon. Adrian, GR
159098, October 27, 2006).“The arraignment of an accused shall be held within thirty (30) days from
the filing of the information, or from the date the accused has appeared before the justice, judge or
court in which the charge is pending, whichever date last occurs. Thereafter, where a plea of not guilty
is entered, the accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence
within thirty (30) days from arraignment as fixed by the court.
 If the accused pleads not guilty to the crime charged, he/she shall state whether he/she interposes a
negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of
the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and
require the accused to prove such defense by clear and convincing evidence”(Sec. 7, RA 8493, [The
Speedy Trial Act])

 Factors used in determining whether the right to a speedy trial has been violated.

1. Time expired from the filing of the information

2. Length of delay involved
3. Reasons for the delay
4. Assertion or non-assertion of the right by the accused
5. Prejudice caused to the defendant.

 Effect of dismissal based on the ground of violation of the accused’s right to speedy trial
o If the dismissal is valid, it amounts to an acquittal and can be used as basis to claim double
jeopardy. This would be the effect even if the dismissal was made with the consent of the
accused

 Remedy of the accused if his right to speedy trial has been violated
o He can move for the dismissal of the case. If he is detained, he can file a petition for the
issuance of writ of habeas corpus.

 Definition of impartial trial

o The accused is entitled to the “cold neutrality of an impartial judge”. It is an element of due
process.

 Definition of public trial

o The attendance at the trial is open to all irrespective of their relationship to the accused.
However, if the evidence to be adduced is “offensive to decency or public morals”, the public
may be excluded.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o The right of the accused to a public trial is not violated if the hearings are conducted on
Saturdays, either with the consent of the accused or if failed to object thereto.

o RIGHT TO MEET WITNESS FACE TO FACE”

 Purposes of the right:

1. To afford the accused an opportunity to cross-examine the witness

2. To allow the judge the opportunity to observe the deportment of the witness

 Failure of the accused to cross-examine a witness

o If the failure of the accused to cross-examine a witness is due to his own fault or was not due
to the fault of the prosecution, the testimony of the witness should be excluded.

 When the right to cross-examine is demandable

o It is demandable only during trials. Thus, it cannot be availed of during preliminary
investigations.

 Principal exceptions to the right of confrontation

1. The admissibility of “dying declarations”

2. Trial in absentia under Section 14(2)
3. With respect to child testimony

o Failure to present as witness poseur-buyer in a prosecution for illegal sale of marijuana, is not
fatal to the prosecution’s case, because what is required is merely proof of the consummation
of the sale transaction if there is convincing evidence that the accused was a marijuana peddler
and not simply the victim of instigation (see People v. Tapeda, 244 SCRA 339).

o CASES:

 The vagueness doctrine merely requires reasonable degree of certainty for the law to be upheld- not
absolute precision or mathematical exactitude ( Estrada vs. Desierto, November 19, 2001).
 Despite the allegation of minority of the victim, an accused appellant may not be sentenced to death
under RA 7659 due to the failure of the information to allege relationship to the victim. It would be a
denial of the right of the accused to be informed of the charges against him and, consequently, a denial
of due process (PP vs. Sandoval, 348 SCRA 476).
 A person subject of an extradition request from another sovereign State is bereft of the right to notice
and hearing during the evaluation stage of the extradition process. An extradition proceeding is sui
generis. It is not criminal proceeding which will call into operations all the rights of an accused as
guaranteed by the Bill of Rights. The extraditee’s right to notice and hearing is present only when the
petition for extradition is filed in court- it is only then when he has the opportunity to meet the evidence
against him (Secretary of Justice vs. Lantion, 343 SCRA 377, 2000).
 Political offense doctrine: Ocampo vs. Abando, February 11, 2014- the burden of demonstrating
political motivation is adduced during trial where the accused is assured an opportunity to present
evidence.
 RE: PETITION FOR RADIO AND TELEVISION COVERAGE OF THE MULTIPLE MURDER CASES
AGAINST MAGUINDANAO GOVERNOR ZALDY AMPATUAN, ET AL., [A.M. No. 10-11-6-SC ]- The
impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested
parties, whether private complainants or accused, is unfortunate enough. What more if the right itself
commands that a reasonable number of the general public be allowed to witness the proceeding as it
takes place inside the courtroom. Technology tends to provide the only solution to break the inherent
limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial. Thus, the
Supreme Court PARTIALLY GRANTS PRO HAC VICE the request for live broadcast by television and
radio of the trial court proceedings of the Maguindanao Massacre cases, subject to the guidelines
outlined therein.
 Barcelona vs. Lim, GR No. 189171, June 3, 2014- the right to speedy trial maybe waived except when
otherwise expressly provided by law. One's right to speedy disposition of his case must, therefore, be
asserted. Due to the failure of the petitioner to assert his right, he is considered to have waived it.
 The absence of cross-examination by the defense due to the supervening death of plaintiff/witness
does not necessarily render the deceased’s testimony inadmissible. Where no fault can be attributed
to plaintiff/witness, it would be a harsh measure to strike out all that has been obtained in the direct
examination (PP vs. Narca, 275 SCRA 696).

E. PRIVILEGE AGAINST SELF-INCRIMINATION

o Art. III, Sec. 17

 Section 17. Self-incrimination clause No person shall be compelled to be a witness against himself.

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
o Scope and coverage
1. The kernel of the right is not against all compulsion, but testimonial compulsion only (Alih v.
Castro, 151 SCRA 279).
2. The right against self-incrimination is simply against the legal process of extracting from the lips
of the accused an admission of his guilt. It does not apply where the evidence sough to be
excluded is not an incriminating statement but an object evidence (People v. Malimit, 264 SCRA
167).

 NOTE: Handwriting in connection with a prosecution for falsification is not allowed. Ratio: writing is
something more than moving the body, or the hands, or the fingers; writing is not a purely mechanical
act, because it requires the application of intelligence and attention; and in the case at bar writing
means that the petitioner herein is to furnish a means to determine whether or not he is the falsifier, as
the petition of the respondent fiscal clearly states (Beltran v. Samson 53 Phil 570).

3. The prohibition extends to the compulsion for the production of documents, papers and chattels
that may be used as evidence against the witness, except where that State has a right to inspect
the same such as the books of accounts of corporations, under the police or taxing powers (see
Regala v. Sandiganbayan , 262 SCRA 122).
o When is a question incriminating:

 A question tends to incriminate when the answer of the accused or the witness would establish a fact
which would be a necessary link in a chain of evidence to prove the commission of a crime by the
accused or the witness.

o Distinction between an accused and an ordinary witness

1. An accused can refuse to take the witness stand by invoking the right against self-incrimination.
2. An ordinary witness cannot refuse to take the stand. He can only refuse to answer specific
questions which would incriminate him in the commission of an offense.
o Scope of right
1. What is PROHIBITED is the use of physical or moral compulsion to extort communication from
the witness or to otherwise elicit evidence which would not exist were it not for the actions
compelled from the witness.
2. The right does NOT PROHIBIT the examination of the body of the accused or the use of findings
with respect to his body as physical evidence. Hence, the fingerprinting of an accused would not
violate the right against self-incrimination. However, obtaining a sample of the handwriting of the
accused would violate this right if he is charged for falsification.
3. The accused cannot be compelled to produce a private document in his possession which might
tend to incriminate him. However, a third person in custody of the document may be compelled
to produce it.
o Who can invoke the right:

 Only natural persons. Judicial persons are subject to the visitorial powers of the state in order to
determine compliance with the conditions of the charter granted to them.

o When the right can be invoked:

1. It is available not only in criminal prosecutions but also in all other government proceedings,
including civil actions and administrative or legislative investigations. May be claimed not only by
accused but by any witness to whom an incriminating question is addressed (Nachura, Outline
Reviewer in Political Law).
a. Administrative proceedings with penal aspect i.e. medical board investigation (Pascual v.
Board of Medical Examiners, 28 SCRA 345);
b. Forfeiture proceeding (Cabal v. Kapunan, Jr., 6 SCRA 1064).
c. Fact-Finding investigation by an ad hoc body (Galman vs. Pamaran, G.R.Nos. 71208-09
August 30, 1985).
d. The right of the accused against self-incrimination is extended to respondents in
administrative investigations that partake of the nature of or are analogous to criminal
proceedings. The privilege has consistently been held to extend to all proceedings
sanctioned by law; and to all cases in which punishment is sought to be visited upon a
witness, whether a party or not (Bengzon, Jr. v. Senate Blue RibbonCommittee, 203 SCRA
767).

 NOTE: Petitioners neither stand as accused in a criminal case nor will they be subjected by the
respondent to any penalty by reason of their testimonies. Hence, they cannot altogether decline
appearing before respondent, although they may invoke the privilege when a question calling for an

OMPAD, ENOYA, DE LA FUENTE [USJR]

NOTES TO CONSTITUTION 2
incriminating answer is propounded (Standard Chartered Bank v... Senate Committee on Banks, G.R.
167173, December 27, 2007)

2. A corporation may be compelled to submit to the visitorial powers of State even if this will result in
disclosure of criminal acts of the corporation (Hale v.Henkel 201 US 43).
o Immunity Statutes
1. Transactional Immunity Statute provides that 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 (see Mapa, Jr. v. Sandiganbayan, 231 SCRA 783);

 Example: One of the functions of the Commission on Human Rights is to grant immunity from
prosecution to any person whose testimony or whose possession of documents or other evidence is
necessary or convenient to determine the truth in any investigation conducted by it or under its authority
(Art. XIII, Sec. 18[8]).

2. Use Immunity Statute/ Use-and-Derivative prohibits the use of a witness’ compelled testimony
and its fruits in any manner in connection with the criminal prosecution of the witness (Galman v.
Pamaran, 138 SCRA 272)
o CASES:

 In its ruling in People vs. Rualo, 152 SCRA 635, Supreme Court ruled that when an arrested person
signs a Booking Sheet and Arrest Report at a police station, he does not admit the commission of
an offense nor confess to any incriminating circumstance. The Booking Sheet is merely a statement of
the accused's being booked and of the date which accompanies the fact of an arrest. It is a police report
and may be useful in charges of arbitrary detention against the police themselves. It is not an extra-
judicial statement and cannot be the basis of a judgment of conviction.
 In the cases of People vs. Mauyao, 207 SCRA 732 and People vs. Turla, 167 SCRA 278, we held
that the signature of the accused-appellant on the Receipt of Property Seized is a declaration against
his interest and a tacit admission of the crime charged, for mere unexplained possession of prohibited
drugs is punished by law. The signature of the accused-appellant on the receipt is tantamount to
an uncounselled extra-judicial confession outlawed by the Bill of Rights (Sec. 12[i], Art. III, 1987
Constitution). It is, therefore, inadmissible as evidence for any admission wrung from the accused in
violation of his constitutional rights is inadmissible against him.
 It bears emphasis, however, that under the above-quoted provisions, what is actually proscribed is the
use of physical or moral compulsion to extort communication from the accused-appellant and not the
inclusion of his body in evidence when it may be material. For instance, substance emitted from the
body of the accused may be received as evidence in prosecution for acts of lasciviousness (US v. Tan
Teng, 23 Phil. 145 [1912]) and morphine forced out of the mouth of the accused may also be used as
evidence against him (US v. Ong Siu Hong, 36 Phil. 735 [1917]). Consequently, although accused-
appellant insists that hair samples were forcibly taken from him and submitted to the NBI for forensic
examination, the hair samples may be admitted in evidence against him, for what is proscribed is the
use of testimonial compulsion or any evidence communicative in nature acquired from the accused
under duress. (People v. Rondero, 320 SCRA 383, 399-401, Dec. 9, 1999, En Banc [Per Curiam])

o Does the right against self-incrimination extend to administrative proceedings?

 In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-
incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect,
such as an administrative investigation of a licensed physician who is charged with immorality, which
could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier
case of Cabal v. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one’s license as a
medical practitioner, is an even greater deprivation than forfeiture of property. (Secretary of Justice
v. Lantion, 322 SCRA 160, 184, Jan. 18, 2000, En Banc [Melo])

o May the Right against Self-incrimination be validly invoked during Inquiries in Aid of Legislation?

 [I]t has been held that “a congressional committee’s right to inquire is ‘subject to all relevant limitations
placed by the Constitution on governmental action,’ including ‘the relevant limitations of the Bill of
Rights’.” One of the basic rights guaranteed by the Constitution to an individual is the right against self-
incrimination. (Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767, Nov. 20, 1991, En
Banc [Padilla])

o What are the two types of immunity statutes? Which has broader scope of protection?

 Our immunity statutes are of American origin. In the United States, there are two types of statutory
immunity granted to a witness. They are the transactional immunity and the use-and-derivative-use
immunity. Transactional immunity is broader in the scope of its protection. By its grant, a witness can
no longer be prosecuted for any offense whatsoever arising out of the act or transaction. In contrast,

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NOTES TO CONSTITUTION 2
by the grant of use-and-derivative-use immunity, a witness is only assured that his or her particular
testimony and evidence derived from it will not be used against him or her in a subsequent prosecution.
(Mapa, Jr. v. Sandiganbayan, 231 SCRA 783, 797-798, April 26, 1994, En Banc [Puno])

o Is the grant of immunity to an accused willing to testify for the government a special privilege and,
therefore, must be strictly construed against the accused?

 [W]e reject respondent court’s ruling that the grant of section 5 immunity must be strictly construed
against the petitioners. It simplistically characterized the grant as a special privilege, as if it was gifted
by the government, ex gratia. In taking this posture, it misread the raison d’ etre and the long pedigree
of the right against self-incrimination vis-à-vis immunity statutes.
 The days of inquisition brought about the most despicable abuses against human rights. Not the least
of these abuses is the expert use of coerced confessions to send to the guillotine even the guiltless.
To guard against the recurrence of this totalitarian method, the right against self-incrimination was
ensconced in the fundamental laws of all civilized countries. Over the years, however, came the need
to assist government in its task of containing crime for peace and order is a necessary matrix of public
welfare. To accommodate the need, the right against self-incrimination was stripped of its
absoluteness. Immunity statutes in varying shapes were enacted which would allow government to
compel a witness to testify despite his plea of the right against self-incrimination. To insulate these
statutes from the virus of unconstitutionality, a witness is given what has come to be known as
transactional or a use-derivative-use immunity x x x. Quite clearly, these immunity statutes are not a
bonanza from government. Those given the privilege of immunity paid a high price for it – the surrender
of their precious right to be silent. Our hierarchy of values demands that the right against self-
incrimination and the right to be silent should be accorded greater respect and protection. Laws that
tend to erode the force of these preeminent rights must necessarily be given a liberal interpretation in
favor of the individual. The government has a right to solve crimes but it must do it, rightly. (Mapa, Jr.
v. Sandiganbayan, 231 SCRA 783, 805-806, April 26, 1994, En Banc [Puno])
 Standard Chartered Bank vs. Senate Committee on Banks, 541 SCRA 456- The right against self
incrimination is extended in an administrative investigations that partake of the nature of or are
analogous to criminal proceedings. The privilege has consistently been held to extend to all
proceedings sanctioned by law; and all cases in which punishment is sought to be visited upon a
witness, whether a party of not.
 The right against self-incrimination is defeated by the public nature of documents sought to be
accessed (Almonte vs. Vasquez).
 In the case of PEOPLE vs. YATAR, G.R. No. 150224, May 19, 2004, the Supreme Court affirmed the
admissibility and probative value of DNA (deoxyribonucleic acid). Citing the first ever Supreme Court
decision on the admissibility of DNA evidence, i.e., People v. Vallejo, G.R. No. 144656, 9 May 2002,
382 SCRA 192, 209, the Court, in Yatar, held that in assessing the probative value of DNA evidence,
courts should consider, inter alia, the following factors: “how the samples were collected, how they were
handled, the possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests”
 In Yatar, in an attempt to exclude the DNA evidence, the appellant contended “that the blood sample
taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well
as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution”.
 The Court rejected the argument. It held that “the kernel of the right is not against all compulsion, but
against testimonial compulsion”, citing Alih v. Castro, G.R. No. 69401, 23 June 1987, 151 SCRA 279.
It held that “the right against self- incrimination is simply against the legal process of extracting from the
lips of the accused an admission of guilt” and that “it does not apply where the evidence sought to be
excluded is not an incrimination but as part of object evidence”.
 Citing People v. Rondero, G.R. No. 125687, 9 December 1999, 320 SCRA 383, the Court held that
“although accused-appellant insisted that hair samples were forcibly taken from him and submitted to
the National Bureau of Investigation for forensic examination, the hair samples may be admitted in
evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence
communicative in nature acquired from the accused under duress.”
 Hence, according to the Court, “a person may be compelled to submit to fingerprinting, photographing,
paraffin, blood and DNA, as there is no testimonial compulsion involved”. It cited People v. Gallarde,
G.R. No. 133025, 27 February 2000, 325 SCRA 835, where immediately after the incident, “the police
authorities took pictures of the accused without the presence of counsel”. In that case, the Court ruled
that “there was no violation of the right against self-incrimination”. It further stated that “the accused
may be compelled to submit to a physical examination to determine his involvement in an offense of
which he is accused”.

F. PUNISHMENTS
o Section 19.

 (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither
shall the death penalty be imposed, unless, for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion
perpetua.

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NOTES TO CONSTITUTION 2
 (2) The employment of physical, psychological, or degrading punishment against any prisoner or
detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be
dealt with by law.

o When is a penalty “cruel, degrading and inhuman”?

1. A penalty is cruel and inhuman if it involves torture or lingering suffering. Ex. Being drawn and
quartered.
2. A penalty is degrading if it exposes a person to public humiliation. Ex. Being tarred and
feathered, then paraded throughout town.
o Standards used:
1. The punishment must not be so severe as to be degrading to the dignity of human beings.
2. It must not be applied arbitrarily.
3. It must not be unacceptable to contemporary society
4. It must not be excessive, i.e. it must serve a penal purpose more effectively than a less severe
punishment would.
o Excessive fine

 A fine is excessive, when under any circumstance, it is disproportionate to the offense.

 Note: Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is
attached if the court finds that the punishment is cruel, degrading or inhuman.
 Reason: Without a valid penalty, the law is not a penal law.

o CASE:

 The death penalty is not a cruel punishment. There was no total abolition of the death penalty. The
ConCom had deemed it proper for Congress to determine its reimposition because of compelling
reasons involving heinous crimes. (PP v. Echegaray, 267 SCRA 682DOUBLE JEOPARDY

o Section 21.

 Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.

o Requisites for a valid defense of double jeopardy:

1. First jeopardy must have attached prior to the second.
2. The first jeopardy must have terminated.
3. The second jeopardy must be for the same offense as that in the first.
o When does jeopardy ATTACH: (1st requisite)
1. A person is charged
2. Under a complaint or information sufficient in form and substance to sustain a conviction
3. Before a court of competent jurisdiction
4. After the person is arraigned
5. Such person enters a valid plea.
o When does jeopardy NOT attach:
1. If information does not charge any offense
2. If, upon pleading guilty, the accused presents evidence of complete self-defense, and the court
thereafter acquits him without entering a new plea of not guilty for accused.
3. If the information for an offense cognizable by the RTC is filed with the MTC.
4. If a complaint filed for preliminary investigation is dismissed.
o When does first jeopardy TERMINATE: (2ND REQUISITE)
1. Acquittal
2. Conviction
3. Dismissal W/O the EXPRESS consent of the accused
4. Dismissal on the merits.
o Examples of termination of jeopardy:

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NOTES TO CONSTITUTION 2
1. Dismissal based on violation of the right to a speedy trial. This amounts to an acquittal.
2. Dismissal based on a demurrer to evidence. This is a dismissal on the merits.
3. Dismissal on motion of the prosecution, subsequent to a motion for reinvestigation filed by the
accused.
4. Discharge of an accused to be a state witness. This amounts to an acquittal.
o When can the PROSECUTION appeal from an order of dismissal:
1. If dismissal is on motion of the accused. Exception: If motion is based on violation of the right to
a speedy trial or on a demurrer to evidence.
2. If dismissal does NOT amount to an acquittal or dismissal on the merits
3. If the question to be passed upon is purely legal.
4. If the dismissal violates the right of due process of the prosecution.
5. If the dismissal was made with grave abuse of discretion.
o What are considered to be the “SAME OFFENSE”: (under the 1st sentence of Section 21)
1. Exact identity between the offenses charged in the first and second cases.
2. One offense is an attempt to commit or a frustration of the other offense.
3. One offense is necessarily included or necessary includes the other.

 Note: where a single act results in the violation of different laws or different provisions of the same law,
the prosecution for one will not bar the other so long as none of the exceptions apply.

o Definition of double jeopardy (2nd sentence of Sec. 21)

 Double jeopardy will result if the act punishable under the law and the ordinance are the same. For
there to be double jeopardy, it is not necessary that the offense be the same.

o SUPERVENING FACTS
1. Under the Rules of Court, a conviction for an offense will not bar a prosecution for an offense
which necessarily includes the offense charged in the former information where:
a. The graver offense developed due to a supervening fact arising from the same act or
omission constituting the former charge.
b. The facts constituting the graver offense became known or were discovered only after the
filing of the former information.
c. The plea of guilty to the lesser offense was made without the consent of the fiscal and the
offended party.
2. Under (1)(b), if the facts could have been discovered by the prosecution but were not discovered
because of the prosecution’s incompetence, it would not be considered a supervening event.
o Effect of appeal by the accused:

 If the accused appeals his conviction, he WAIVES his right to plead double jeopardy. The whole case
will be open to review by the appellate court. Such court may even increase the penalties imposed on
the accused by the trial court.

o Effect of Motion for Reconsideration and Appeal by the prosecution:

1. A judgment of acquittal, even if erroneous, ends the case finally (People v. Hernando, 108
SCRA 121) 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 offence (Kepnerv. United States, 195 U.S. 100).
2. No error, how flagrant, committed by the court against the State, can be reversed by it for
decision of the Supreme Court when the defendant has once been place in jeopardy and
discharged even though the discharge was the result of the error committed (State v. Rook,
49 L.R.A.186, quoted in People v. Ang Cho Kio, 95 Phil. 475).
3. The rule prohibiting appeal should not be avoided in the guise of certiorari (Central Bank v.
Court of Appeals, G.R. No. L-41859, March 8, 1989). The special civil action for certiorari is
intended for the correction of errors of jurisdiction. Its principal office is only to keep the inferior
court within the parameters of its jurisdiction or to prevent it from committing such a grave
abuse of discretion amounting to lack or excess of jurisdiction. It is not a remedy for errors of
judgment (People v. CA, G.R.No. 142051, February 24, 2004)

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NOTES TO CONSTITUTION 2
4. However an appeal from the order from the order of dismissal shall not constitute double
jeopardy:
a. Dismissal is made upon motion, or with the express consent of the defendant;
b. Dismissal is not acquittal or based upon consideration of the evidence or on the merits of the
case;
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 of the
Philippines v.City of Manila, G.R. No. L-36528, September 24, 1987).
5. The accused cannot appeal a judgment of acquittal, except to strike out and expunge from the
records the hurtful and irrelevant remarks against the accused (People v. Mendoza, 74 Phil. 119).
o Dismissal with consent of accused
1. A case shall not be provisionally dismissed except with the express consent of the accused and
with notice to the offended party. (Rule 117, Sec. 8[1]).
2. The raison d’ etre for the requirement of the express consent of the accused to a provisional
dismissal of a criminal case is to bar him from subsequently asserting for the same offense or for
an offense necessarily included therein (Regalado, Remedial Law Compendium, Vol. II, 9th
Revised Edition, p. 442; People v. Bellosillo, 9 SCRA 835 (1963)
o CASES:
1. Bonsubre vs. Yerro, et al., February 11, 2015, Bernabe

 A case is provisionally dismissed if the following requisites concur:

1. The prosecution with the express conformity of the accused, or the accused, moves for a
provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move for
its provisional dismissal;
2. The offended party is notified of the motion for a provisional dismissal of the case;
3. The court issues an Order granting the motion and dismissing the case provisionally; and
4. The public prosecutor is served with a copy of the Order of provisional dismissal of the case.

 In the case at bar, none of the foregoing requisites were met. While it may appear that the respondents
consented to a provisional dismissal of the case under the Compromise Agreement, the prosecution
neither presented the same for the court’s approval nor filed the required motion to that effect such that
no order was in fact issued granting the provisional dismissal of the case. Hence, petitioner’s assertion
that the respondents are estopped from invoking their right to speedy trial is without basis.
 Accordingly, the September 18, 2001 Dismissal Order grounded on the denial of respondents’ right to
speedy trial being a final order that cannot be subject of reconsideration or an appeal, no error can be
imputed against the CA in upholding the RTC Ruling denying due course to petitioner’s notice of appeal
relative to the criminal aspect of the case. That being said, the Court reminds petitioner that nothing
precludes him from preserving his interest over the case but only with respect to its civil aspect as aptly
observed by the courts a quo.

2. PP vs. Udang, January 10, 2018

 VIOLATION OF SECTION 5 (B), ARTICLE III OF RA 7610 AND RAPE ARE SEPARATE AND
DISTINCT CRIMES
o Petitioner was charged and convicted for violation of Section 5 (b), Article III of RA 7610, not
rape. The offense for which he was convicted is punished by a special law while rape is a felony
under the Revised Penal Code. They have different elements. The two are separate and
distinct crimes. Thus, petitioner can be held liable for violation of Section 5 (b), Article III of RA
7610 despite a finding that he did not commit rape.
o Our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of Clause 20,
Section 1(now Sec. 21), Article III of the Constitution ordains that “no person shall be twice put
in jeopardy of punishment for the same offense.” The second sentence of said clause provides
that “if an act is punishable by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.” Thus, the first sentence prohibits
double jeopardy of punishment for the same offense whereas, the second contemplates double
jeopardy of punishment for the same act. Under the first sentence, one may be twice put in
jeopardy of punishment of the same act, provided that he is charged with different offenses, or
the offense charged in one case is not included in, or does not include, the crime charged in
the other case. The second sentence applies, even if the offense charged are not the same,
owing to the fact that one constitutes a violation of an ordinance and the other a violation of
statute. If the two charges are based on one and the same act, conviction or acquittal under
either the law or the ordinance shall bar a prosecution under the other. Incidentally, such
conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment
or the same offense. So long as jeopardy has been attached under one of the informations
OMPAD, ENOYA, DE LA FUENTE [USJR]
NOTES TO CONSTITUTION 2
charging said offense, the defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in either case.

3. Elsewhere stated, where the offense 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. The question of identity or lack of identity of offenses is addressed by
examining the essential elements of each of the two offenses charged, as such elements are set out in the
respective legislative definitions of the offenses involved. (People v. Quijada, 259 SCRA 191, July 24,
1996)
4. To substantiate a claim of double jeopardy, the following must be proven: (1) A first jeopardy must have
attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy
must be for the same offense, or the second offense includes or is necessarily included in the offense
charged in the first information, or is an attempt to commit the same or is a frustration thereof.
5. Legal jeopardy attaches only: (1) upon a valid indictment; (b) before a competent court; (c) after arraignment;
(d) when a valid plea has been entered; and (e) the case was dismissed or otherwise terminated without the
express consent of the accused. (Cuison v. CA, 289 SCRA 159, April 15, 1998 [Panganiban])
6. As a rule, a judgment of acquittal cannot be reconsidered because it places the accused under double
jeopardy (Re MR in Lejano vs. People, GR No. 176389, January 18, 2011).
7. The impeachment proceedings against petitioner Estrada was not concluded as a series of events prompted
the Senate to declare the impeachment functus officio- thus, he was neither acquitted nor was the
impeachment proceeding dismissed without his express consent. Neither was there conviction/ It follows then
that the claim of double jeopardy must fail. (Estrada vs. Desierto, April 3, 2001).
8. Under Sec. 8, Rule 117 of the Rules of Court, a provisional dismissal of a case becomes permanent after the
lapse of one year for offenses punishable by imprisonment of not exceeding six years or a lapse of two years
for offenses punishable by imprisonment of more than six years.
9. For this rule to bar the subsequent filing of a similar case against the accused, the following must be
established: 1) the provisional dismissal had express consent of the accused; 2) the provisional dismissal was
ordered by the court after notice to the offended party; 3) the 1 yr. or 2-yr. period to revive had lapsed; 4)
there is no justification to file a subsequent case beyond the period of one or two years. (PP vs. Lacson, May
28, 2002).
10. The order approving the plea of guilty to homicide was not a judgment of conviction. It merely approved the
agreement between the parties on the plea to a lesser offense by the accused and the condition attached to
it. (PP vs. Romero, 399 SCRA 386)
11. Disini vs. DOJ Secretary- online libel as to which charging the offender under both section 4(c) of RA 10175
and Article 353 of RPC is unconstitutional because it constitutes a violation of the proscription against double
jeopardy. Same with charging the offender under section 4(c)(2) of RA 10175 and RA 9775 (Anti Child
Pornography) constitute double jeopardy.
12. Braza vs. Sandiganbayan, February 20, 2013- there is double jeopardy if the subsequent information
charges the accused with different offense, even if it arises from the same act or set of acts. Prosecution for
the same act is not proscribed; what is forbidden is prosecution for the same offense.

XIX. PRIVILEGE OF THE WRIT OF HABEAS CORPUS

- Art. II, Sec. 15
- Art. VII, Sec, 18
- Villavicencio vs. Lukban, 39 Phil 778 (1919)
- Moncupa vs. Ponce Enrile, 141 SCRA 223 (1986)
- Lansang vs. Garcia, 42 SCRA 448 (1971)
- Chavez vs. Court of Appeals, 24 SCRA 663 (1968)
- Gumabon vs. Director of Prisons, 37 SCRA 420 (1971)
- In re Abadilla, 156 SCRA 92 (1987)
- Norberto Feria vs. CA, et al. G.R. 122954 Feb 15, 2000

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