2017 Bar Updates in Constitutional Law by Atty. Rene B. Gorospe.pdf

NOTES, UPDATES AND TEASERS

CONSTITUTIONAL LAW* Jurists Review Center Bar Review 2017 ENE B. GOROSPE R ENE

OUTLINE A. The Fundamental Po wers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Bill of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 C. Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 D. Equal Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 E. Searches an and Se Seizures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 F. Privacy of Communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 G. Freedom of Expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 H. Freedom of Religion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 I. Freedom of Movement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 J. Right to Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 K. Right of Association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 L. Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 M. Contract Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70  N. Poverty and Legal Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 O. Rights of Suspects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 P. Rights of the Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Q. Writs rits of Habeas of Habeas Corpus, Corpus, Amparo and  Amparo and Kalikasan  Kalikasan.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 R. Speedy Disposition of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 S. Self-Incrimination Cl C lause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 T. Excessive Fi Fines, Cr Cruel andJIn IURISTS nhuman PR unEVIEW ishments.C . .ENTER . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 U. Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 V.  Ex Post Facto L Facto Laaws and Bills oB fA ttaiR ndEVIEW er. . . . . .2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 AR *

Caveat : While most of the materials here are taken from cases, caution should be exercised in looking at the notes as some are  personal views designed to make the pri nciple or ru le discussed more interestin g through side comments, musings and other asides. Utmost discernment, discipline and discretion are thus advised to avoid any misunderstandings.

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Attempt had been made to carefully carefully proofread everything but it almost always happens that des pite best efforts errors will st ill crop up. Well, as J ustice Kennedy observed in his dissenting opinion in Groh v. Ramirez , 540 U.S. 551 (2004), at 568: “We all tend toward vis-à-vis A Library Of Liberties Arsenal Of Arms myopia when looking for our own errors. Every lawyer and every judge can  An recite examples of documents that they wrote, checked, and doublechecked, but that still contained glaring errors.” Murphy’s Law, anyone?

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hese notes on Constitutional on Constitutional Law are Law are to be taken as a quick reference to general ideas and fairly recent decisions which light up and enliven the study of the subject. They presuppose that one has at least done his or her homework through the years and these are just reminders of what were, ticklers of recent application ap plication of rules, principles principles and doctrines, doct rines, and an invitation invitation to an exploration of what may lie beyond. The study of law is best had if enjoyed. These notes are intended to be both informative and entertaining. Reviewees are also entitled to have fun even while preparing to take on the Bar exams.1 As had been writ: “A judicial decision does not have to be a bore.”2 Neither must a Bar review material be. It need not be a bland presentation of what has been. It might as well pick brains and prick some civic conscience in preparation for eventual practice as a responsible and respectable particle of sovereignty. So, here’s to humoring the Bar exams. There’s nothing as unnerving as approaching a problem from a perspective of trepidation. March on with confidence, head up high, a smile on your face and faith in yourself. yourself. The Bar exercise is just a good opportunity to prove and improve yourself. yourself. It is not an adversary  but an ally, ally, and and even if it were, it is one that you can persuade persuade and convince convince to become a lif lifelong elong friend. friend.

THE FUNDAMENTAL POWERS AND THE BILL OF R IGHTS IGHTS Governance Governa nce is the art and science of carefully balancing competing compet ing needs, concerns, co ncerns, wants, desiderata d esiderata and values of society, all demanding acceptance and preeminence. Insofar as the government and the  people are concerned, their interests interests may every now and then clash clash or compete for ascendancy, ascendancy, for for which which a careful weighing weighing of various considerations considerations has to be done to ensure that the demands of authority do not lead to slavery and the claims of liberty do not end up in anarchy.3 More recently, the Court also framed it in this wise: “[H]ow does the Charter of a republican and democratic State achieve a viable and acceptable acceptable balance between liberty, without which, government becomes an unbearable tyrant, and authority, without which, society becomes an intolerable and dangerous for the present, present , such balancing balancing may assume assume greater great er importance as the g government overnment arrangement?”4 And, for tries to come up with a society free of drug-related crimes while still respecting basic human rights. On the side of authority, you have the inherent and fundamental powers of the government – police  power, eminent eminent domain, domain, and taxation taxation – powers by which which its its goals may may be be achieved achieved and and its its will will enforced and implemented. On the other end, you have the guarantees and safeguards found in the Bill of Rights. And, in this regard the Court has held that “[i]n the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental JURISTS REVIEW CENTER  power.”5 1

 In regard to the need for an examination in the first place, take note of wh at the Court said in  Antolin v. Domondon, Domondon , 623 SCRA 163 (2010): “Examinations have a two-fold purpose. First, they are summative; examinations are intended to assess and record what and how much the students have learned. Second, andAR perhapsEVIEW more importantly, they are formative; examinations are intended to be  part and parcel of the lear ning process. In a perfect system, they are tools for learning.”

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 Francisco v. Permskul , 173 SCRA 324 (1989)

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 See Calalang v. Williams, Williams, 70 Phil. 726 (1940)

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GMA Network, Inc. v. Commission on Elections, Elections , 734 SCRA 88 (2014)

 People v. Rapeza, Rapeza, 520 SCRA 596 (2007), penned by Justice Tinga. This is a reiteration of his ear lier ponencia in People in People v. Tudtud , vis-à-vis A Library Of Liberties  An Arsenal Of Arms 412 SCRA 142 (2003), where it was held : “The Bill of Rights is the bedrock of constitutional constitutional government. If people people are stripped nak ed of their rights as human beings, democracy cannot cannot survive and government becomes meaningless. This explains why the Bill of Rights,

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In this interplay interplay between power and authority aut hority,, on o n one o ne hand, and liberty liberty and freedom, on the t he other, note must be taken ta ken of the fact that just like anything else, else, values, concepts conce pts and ideas change thro ugh time. What may have been recognized as outside the domain of State State regulation in in the past would wo uld no longer  6  be so immune immune from governmental governmental interference interference in later years.   As was said in one case, “What was ‘robbery’ in 1874 is now called ‘social justice.’”7 Or, as stated in elsewhere, “Social justice is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.”8 A.

THE FUNDAMENTAL POWERS

These fundamental powers are inherent in the national government, exercised by the legislature, and are only bestowed upon others, like the local government units, as a result of delegation. In the exercise of police power, there must be compliance with the requirements of legitimate ends  being  being accompli accomplished shed through legitim legitimate ate means. means.9 This power is the most pervasive, illimitable illimitable and plenary, affecting liberty and property of individuals for the advancement of the common good. It essentially embodies the right of the State to enact laws for the purpose of promoting the public welfare by restraining and regulating liberty and the use of property. Its also been said that “the test of  constitutionality of a police power measure is limited to an inquiry on whether the restriction imposed on constitutional rights is reasonable, and not whether it imposes a restriction on those rights,” and that it “does not rely upon the existence of definitive studies to support its use. Indeed, no requirement exists that the exercise of police power must first be conclusively justified by research. . . . Scientific certainty and conclusiveness, though tho ugh desirable, may not be demanded in every situat situation. ion. Otherwise, no government gove rnment will be able to act in situations demanding the exercise of its residual powers because it will be tied up conducting studies.”10 As for the power of condemnation, the Constitution already provides the allowable standards for its exercise – public use and just compensation.11 But then note must be taken of the expanded meaning meaning of  the term “public “public use” – “the concept of o f public public use is not limited limited to traditional tr aditional purposes. purpo ses. Here as elsewhere the idea that t hat ‘public use’ is strictly lim limited ited to clear cases of o f ‘use by the public’ has been discarded.”12 And  And case law has recently come up with newer rules relative to the exercise of this power. Taxation, of o f course, must not be exercised in an unreasonable, oppressive opp ressive and confiscato confiscatory ry manner. manner.13 Or, in the language of of Philippine  Philippine Health Care Providers, Inc. v. Commissioner of Internal Internal Revenue,600 Revenue, 600 SCRA 413 (2009), “[l]egitimate enterprises enjoy the constitutional protection not to be taxed out of  existence.” Also, it must not be forgotten that the exercise of the power of taxation constitutes a deprivation deprivation of property pro perty under the due process clause, and the taxpayer’s right right to due process is violated violated

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contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.” 6 7 8 9

 See People  See People v. Pomar , 46 Phil. 440 (1924)  Bengzon v. Drilon, Drilon , 208 SCRA 133 (1992)

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 Agabon v. Nation al Labor Relations Commission, Commission, 442 SCRA 573 (2004) Ynot v. Intermediate Appellate Court , Court , 148 SCRA 659 (1987)

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 Mirasol v. Department of Public Works and Highways, Highways , 490 SCRA 318 (2006)  Article III, §9  Heirs of Juancho Ar v. Reyes, ReyesOf , 125Liberties SCRA 220 (1983) vis-à-vis An A dona Library  See Reyes  See Reyes v. Almanzor , 196 SCRA 322 (1991)

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when arbitrary or oppressive methods are used in assessing and collecting taxes.14 Further, in regard to the delegation by the Constitution itself of the taxing power to the Local Government Units, Congress is not stripped of its power to exempt certain entities from local local taxation.15 And, on residual residual powers of  local government units, the Court Co urt has held that “[a] “[a ] local government unit may may exercise its its residual power  to tax when there is neither neither a grant nor a prohibition prohibition by statute; or when such taxes, fees, or charges are not otherwise specifically enumerated in the Local Government Code, National Internal Revenue Code, as amended, or ot her applicabl applicablee laws. In the present case, Section Sect ion 140, in relation relation to Section 131(c), o f  the Local Loc al Government Code aalready lready explicitly explicitly and clearly cover amusement tax ta x and respondent Cebu Ce bu City must exercise its authority to impose amusement tax within the limitations and guidelines as set forth in said statutory provisions.”16 1. Fernando v. St. Scholastica’s College , 693 SCRA 141 (2013) A local ordinance mandated that fences should only be one-meter high, or if they are higher, higher, then t hen they must be 80% see-thru, aside from requiring a 6-meter setback for parking purposes. That regulation meant that the school’s schoo l’s concrete concr ete perimeter fence built long long time ago would have to be dismantl d ismantled ed to make way for the set-back, as well as to comply with the height or see-thru requirement. The Court held both requirements are beyond the valid exercise of police power. The ordinance is oppressive of private rights. It did not see how an 80% see-thru fence could provide better protection and a higher level of security, or serve as a more satisfactory satisfactor y criminal criminal deterrent, than a tall t all solid concrete concret e wall. “It may even be argued that such exposed premises could entice and tempt would-be criminals to the property, and that a see-thru fence would be easier to bypass and breach. It also appears that the respondents’ concrete wall has served as more than sufficient protection over the last 40 years.” But would not the requirement also contribute to the aesthetic sense? Well, “the State may not, under the guise of police power, infringe on private rights solely for the sake of the aesthetic appearance of the community. Similarly, the Court cannot perceive how a see-thru fence will foster ‘neighborliness’  between members members of a community community.” .” Hence, “[c]ompellin “[c]ompelling g the t he respondents to construct their fence in accordance with the assailed assailed ordin o rdinance ance is, thus, a clear encroachment encroachment on their right right to property, which necessarily necessarily inclu includes des their right right to decide how best to t o protect pro tect their t heir property.” In addition, the Court stated: “It also appears appe ars that requiring the exposure expo sure of o f their propert y via via a see-thru see-t hru fence is violative of their right to privacy, pr ivacy, considering considering that the residence of the Benedictine nuns is also also located loca ted within the property. prop erty. The right to privacy has long been considered a fundamental right guaranteed by the Constitution that must  be protected from intrusion intrusion or constraint. constraint. The right to priv p rivacy acy is is essential essentially ly the right right to be let alone, as governmental powers should stop short of certain intrusions into the personal life of its citizens.” How about the set-back requirement? requirement? The Court saw through the t he real intent intent of o f the regulation regulation – taking t aking JURISTS REVIEW CENTER without compensation. “[T]he real intent of the setback requirement was to make the parking space free for use by the public, considering that it would no longer be for the exclusive use of the respondents as it would also be available for use by the general public. . . . The petitioners cannot justify the setback by BAR REVIEW 2017 arguing that the ownership of the property will continue to remain with the respondents. It is a settled rule that neither the acquisition of title nor the total destruction of value is essential to taking. In fact, it is usually usually in cases where the t he title remains with the private owner t hat inquiry should be made to determine de termine

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Yamane v. BA Lepanto Condominium Corporation, Corporation, 474 SCRA 258 (2005) City Government of City v. Bayan Telecommunications, Inc. , 484Arsenal SCRA 169 (2006) vis-à-vis AQuezon Library Of Liberties  An Of Arms  Alta Vista Golf and Country Club v. City of Cebu, Cebu , 781 SCRA 335 (2016)

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whether the impairment of a property is merely regulated or amounts to a compensable taking.” In this case, the implementati implementation on of the setback requirement would be tantamount t antamount to a taking of private property prope rty for public use without just compensation, in contravention to the t he Constituti Co nstitution. on. 2.  Hermano Oil Manufacturing Manufacturing & Sugar Corporation Corporation v. Toll Toll Regulatory Regulatory Board , 742 SCRA 395 (2014) In this case, the Court held that in a valid exercise of police power, there is no taking that has to be compensated. Here, the owner of a piece of land along the North Luzon Expressw E xpressway ay (NLEX) contended that the presence of an access fence deprived it of the enjoyment and possession of its property since it was barred from ingress ingress into into or egress from the NLEX. No t so, the Court said. The access fence is part of the safety measures in place necessary for the high-speed highway. “It is relevant to mention that the access fence was put up pursuant to Republic Act No. 2000 (Limited Access Highway Act), the enforcement of which was under the authority of the DOTC. . . . [T]he access fence was a reasonable restriction restriction on o n the petiti pet itioner’s oner’s property given the location thereof at the right side side of o f Sta. Rita Exit of the  NLEX. Although Although some adjacent adjacent properties were accorded unrestricted unrestricted access to the expressway, expressway, there was a valid and reasonable classification for doing so because their owners provided ancillary services to motorists using using the t he NLEX, like gasoline gasoline service stations and food foo d stores. st ores. A classif classificati ication on based on on  practical convenience convenience and and common common knowledge knowledge is is not not unconstitutional simply simply because it may may lack purely theoretical theo retical or scientific scientific uniformity. uniformity. Lastly, the lim limited ited access acce ss imposed imposed on the t he petitioner’s propert pro perty y did not not  partake of a compensable compensable taking due to the exercise exercise of the power po wer of eminent domain. domain. There is no question that t he property was not ta taken ken and devoted for public public use. Instead, the pro perty was subjected subjected to a certain restraint, i.e., i.e. , the access fence, in order to secure the general safety and welfare of the motorists using using the NLEX.” Secretary of the Department of Social Welfare and  3.  Manila Memorial Park, Inc. v. Secretary  Development , 711 SCRA 302, 366 (2013)

With regard to the effect of the senior citizen’s discount and the element of taking  that  that is involved in it, the following passage is enlightening. “It should be noted though that potential profits or  income/gross sales are relevant in police power and eminent domain analyses because they may, in appropriate cases, serve as an indicia when a regulation has gone ‘too far’ as to amount to a ‘taking’ under the power of eminent domain. When the deprivation or reduction of profits or income/gross sales is shown to be unreasonable, oppressive or confiscatory, then the challenged governmental regulation may be nullified for being a ‘taking’ under the power of eminent domain. In such a case, it is not profits or income/gross sales which are actually taken and appropriated for public use. Rather, when the regulation causes ca uses an establishment establishment to incur losses in an unreasonable, unreaso nable, oppressive oppre ssive or confiscatory manner, what is actually taken is capital and the rightR ofEVIEW the business establishment to a reasonable return on JURISTS CENTER investment. If the business losses losses are not halted because of the continued cont inued operation operat ion of the regulation, reg ulation, this eventually leads to the destruction of the business and the total loss of the capital invested therein.”

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AR Here, the petitioners failed to prove that the EVIEW regulation is unreasonable, oppressive or confiscatory.

4. Commissioner of Internal Revenue v. United Salvage and Towage (Phils.), Inc. , 729 SCRA 113 (2014)

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The following lines from this case provide comfort and a reassurance that the exercise of the taxing cannot countenance an  power could not be allowed allowed to berserk vis-à-vis and get wild: wil d: Arsenal “This Court A Library Ofrun Liberties  An Of Arms assessment based on estimates that appear to have been arbitrarily or capriciously arrived at  .

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Although taxes are the lifeblood of the government, their assessment and collection ‘should be made in accordance with law as any arbitrariness will negate the very reason for government itself.’” The Court added: “[W]e ought to reiterate our earlier earlier teachings that ‘in balan balancin cing g the t he scales between the power of  the State Stat e to tax and its inherent inherent right to pro secute perceived transgressors of the law on one side, and t he constitutional rights rights of a citizen citizen to due process pro cess of law law and the equal protection protect ion of the laws laws on the o ther, the scales must tilt t ilt in favor of the individual, individual, for a citizen’s right is amply protected protec ted by the Bill of Rights under the Consti Co nstitution.’ tution.’ Thus, while while ‘taxes are the lifeblood lifeblood of o f the governm go vernment,’ ent,’ the power to t o tax t ax has its limits, in spite of all its plenitude. Even as we concede the inevitability and indispensability of taxation, it is a requirement in all democratic regimes that it be exercised reasonably and in accordance with the  prescribed  prescribed procedure. After all, all, the statute of limi limitations tations on the collection collection of taxes was also also enacted to  benefit  benefit and protect the t he taxpayers.” taxpayers.”

B. BILL OF R IGHTS IGHTS Taking up the cudgels for liberty are the guarantees contained basically in the Bill of Rights. As the Court observed o bserved in in People v. Legaspi, Legaspi, 331 SCRA 95 (2000), the Bill of Rights is the mechanism for the delicate balance between governmental power and individual liberty, without which man is stripped of  his humanity and society becomes a putrid dump of lost lives. “The very purpose of a Bill of Rights was to withdraw withdr aw certain certa in subjects from the vicissitudes vicissitudes of political controversy, controve rsy, to place them beyond the reach of majorities and official officialss and to establish them as legal principles principles to be applied by the courts. co urts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other  fundamental fundamental rights rights may not be submitted submitted to vote; they depend on o n the outcome o utcome of no elections.” elections.”17 The bundle of freedoms and liberties guaranteed by the Bill of Rights is essentially directed against the State and its agencies and instrumentalities only. It could not be invoked against private persons.18 In  Atienza,  Atienz a, Jr. v. Commission on Elections, Elections, 612 SCRA 761 (2010), the Court held that the requirements of administrat administrative ive due process pro cess do not no t apply app ly to the internal affairs affairs of political parties. The due  process standards set in Ang in Ang Tibay cover Tibay cover only administrative bodies created by the state and through which certain governmental acts or functions are performed. “The discipline of members by a political  party does not involve involve the right right to life, life, lib liberty erty or property within within the meanin meaning g of the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent his removal by a  political  political party. The only rights, if any, any, that party members members may have, in in relation relation to other party party memb members, ers, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been violated violated have recourse to courts of o f law for the enforcement enforcement of those rights, rights, but not as a due process proc ess issue issue against the government or any of its agencies.”RIn Sesbreño Court of Appeals, Appeals, 720 SCRA 57 (2014), JURISTS Cv. EVIEW ENTER the presence of a policeman in an inspection of the electric meter of a residence for possible meter  tampering was not considered co nsidered as a situation subject to the provisi pro vision on of the Bill of Rights on searches se arches and seizures. seizures. The part icipation icipation of the po liceman, liceman, not an employee t he private electric electric company, was to BAR R 2017of the EVIEW render police assistance to ensure the personal security of private entity’s employees during the inspection, rendering him a necessary part of the team as an authorized representative.

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 Nevertheless,  Nevertheless, even as it is true that “[t]he Constitution cannot control [private] [private] prejudices, prejudices, but neither  17 18

West Virginia State of Education v. Barnette, Barnette , 319 US 624 (1943) vis-à-vis ABoard Library Of Liberties  An

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

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can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or  indirectly, give them effect.”19

C. DUE PROCESS Due process might as well provide provide a sort of a “Swiss Army Knife” guarantee given its adaptability and flexibili flexibility ty as a legal argument. The Due The Due Process Process Clause is Clause is a handy legal legal tool too l for for the prot p rotection ection of o f the valued rights to life, liberty and property, and all other freedoms and liberties that inhere or adhere to them. It provides pro vides both a safeguard to ensure e nsure fairness fairness in the proceedin proceed ings gs that may be taken towards the t he deprivation of any liberty or property interests, or the impairment of any other right or freedom, as well as the guarantee of reasonableness in the enactment of laws and other regulations which impact life, liberty and property.  Person includes  Person includes both citizens and aliens, natural and juridical. It may not encompass, however, the foetus, or the unborn child child20 though the t he 1987 Constitution has thought it advisabl advisablee to provide protection 21 for the unborn together with its its mother.  “The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life life of the unbor u nborn n from conception was to t o prevent the Legislature Legislature from enacting a measure legalizing abortion. It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was captured in the record of the proceedings of the 1986 Constitutional Commission.”22 Even the decedent is entitled to some form of protection in so far as his or her estate estat e is concerned.23 As for for life, life, liberty liberty and property, prop erty, while all all of these are pro tected, tect ed, the extent ext ent of the care and importance they get are not the same – some things are simpl simply y worth much more than others. Thus, when property rights come into conflict with human rights, the former must give way to the latter.24 “[W]hen freedom of the mind is imperiled by law, it is freedom that commands a momentum of respect; when property is imperiled, it is the lawmakers’ judgment that commands respect. This dual standard may not precisely reverse the t he presumption of constitutionality const itutionality in in civil civil liberties liberties cases, but obviously o bviously it it does do es set up a hierarchy 25 of values within the due process clause.”  And, the Court also stated that, “based on the hierarchy of  constitutionally constitutionally protected rights, the right to life life enjoys enjoys precedence over t he right to property. The reason is obvious: life life is irreplaceable, property pro perty is not. When the state stat e or LGU’s exercise of police power powe r clashes 26 with a few indivi individuals’ duals’ right to pro perty, the t he former should prevail.” pr evail.”  As between right not to join labor  organizations, the Court had this to say: “In the hierarchy of constitutional values, this Court has repeatedly held that the right to abstain from joining a labor organization is subordinate to the policy of  19 20 21 22 23

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

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

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 The State “shall equally protect the life of the mother and the life of the unborn from conception.” (Art. II, §12)  Imbong v. Ochoa, Jr., Jr. , 721 SCRA 146 (2014)

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 The Court observed in Republic in Republic v. Marcos-Manotoc, Marcos-Manotoc SCRA 367(2012): “Since the pendin g case before the Sandiganbayan AR , 665 EVIEW survives the death of Ferdinand E. Marcos, it is imperative therefore that the estate be duly represented. The purpose behind this rule is the protection of the right to due process of every party to a litigation who may be affected by the intervening death. The deceased litigant is himself protected, as he continues to be properly represented in the suit th rough the duly appointed legal representati ve of his estate.”

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 PBM Employees Org. v. PBM Co., Inc. , 51 SCRA 184 (1973) Tolentino v. Secretary of Finance, Finance ,Of 235 Liberties SCRA 630 (1994) vis-à-vis An A Library Social Justice Society v. Atienza, Jr. , 545 SCRA 92 (2008)

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encouraging encour aging unionism as an iinstrument nstrument of o f social justice.” justice.”27 Also,  Also, “[t]he “[t ]he law recognizes that the t he enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property.”28 (Citing Worcester v. Ocampo, Ocampo, 22 Phil. 42 [1912])] And, if there is a hierarchy of rights, rights, there is also a hierarchy of evidentiary values which calls into  play the guarantee of the Due Process Clause Clause if if the inappropriate inappropriate quantum quantum of proof is demanded by by the 29 adjudicator in a particular proceeding. Relevant to the chore of weighing conflicting values are so-called standards of review or levels of  scrutiny, or those t hose instruments of o f measurement for validity of rules and regulations, regu lations, adjustable and flexible flexible depending on the interests and values involved. These would be the deferential  or  or rational relationship test , the intermediate or intermediate or heightened scrutiny, scrutiny, and finally, strict finally, strict scrutiny. scrutiny. Determining whether there is sufficient sufficient justification justification for fo r the government’s g overnment’s action act ion depends very much on the level of scrut scrutiny iny used.30 This simply means that “if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects what are at the most rights of property, the permissible scope of regulatory measures is wider.” Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental interest, without courts seriously inquiring into the substantiality of such interest and examining the alternative means by which the objectives could be achieved. Under intermediate review, the substantiality of the governmental interest is seriously looked into and the availability of less restrictive alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than substantial governmental interest and on the absence of less restrictive means for achieving that interest. Strict scrutiny is a judicial standard for determini dete rmining ng the quality qua lity and the amount of governmental interest bro ught to justify just ify the regulation reg ulation of fundamental freedoms. It is used to day to test t est the validity of laws dealing dealing with the regulation of speech, gender, or race and facial challenges are allowed for this purpose.31 The Court has also declared: “[C]onstitutional due process demands a higher degree of clarity when infringements infringements on life life or liberty are intended. . . . In the matter matte r of statutes statut es that deprive d eprive a person perso n of physical 32 liberty, the demand for a clearer standard in sentencing is even more exacting.” If one were to t o have a better appreciation of these “standards of review,” review,” why not t ry to remi re minis nisce ce about the law school years where classroom sessions were either a bore, moments of trepidation and incessant prayers or occasions for hilarious incidents, courtesy of members other than the ones enjoying 27

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

(2010) 28 29 30 31

Ty-Delgado v. House of Representatives Electoral Tribunal , 782 SCRA 117 (2016)  Manalo v. Roldan-Confesor , 215 SCRA 808 (1992)

JURISTS REVIEW CENTER

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

 See Justice V.V. Mendoza’s discussions in Estrada in  Estrada v. S andiganbayan, andiganbayan, 369 SCRA 394 (2001)

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

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

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 People v. Bon, Bon, 506 SCRA 168 (2006)

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the fun? A student’s preparations for each subject then were generally dictated by the kind of professors he or she might have had – whether members of terrorist cells or the soft and kind apostles of nonviolence and charity. As for property, propert y, aside from those normally normally owned, it must also be understood that a final judgment vests in the prevailing party a right recognized and protected by law under the due process clause of the Constitution – it is a vested interest which the government should should recognize and pro tect, and of which the individual could not be deprived arbitrarily of without committing an act of injustice.33 Likewise, where an employee retires and meets the eligibili eligibility ty requirements under unde r the law, he acquires a vested right 34 to benefits benefits that is protected prot ected by the due process pr ocess clause.  And, while one may not be deprived of what is his vested right, the same may be lost if such deprivation is founded in law and jurisprudence, such as in legal separation where the guilty spouse may end forfeiting his share in the conjugal property.35 Public office is not property, and one cannot insist on staying in office if the office has already been abolished. abolished. But to the extent that t hat one’s right to security of tenure may be impaired, impaired, to that extent may due  process be called called upon for assistance. assistance. Unduly Unduly long long preventive preventive suspension suspension could could also also be assailed assailed on due 36  process grounds. Licenses, while merely in the nature of a privilege, are not also insulated from the checking effects of the Due Process Clause, especially if abuse attended their withdrawal or discontinuance.37 The mere fact that one’s claim to something might be based on a privilege and not a right is not determinative of  the appropriateness of invoking due process – reliance on the “right privilege dichotomy” has long been denigrated by leading lights in administrative law as “too crude for consistent application” by courts. 38 “Under traditional tr aditional form of property prop erty ownership, recipients rec ipients of privileges privileges or largesses from the government go vernment could be said to have no property pro perty rights because they possessed no traditionally traditionally recognized recognized proprietary interest therein. . . . But the right-privilege dichotomy came to an end when courts realized that individuals individuals should not be subjected to t o the unfettered unfett ered whims of government officials officials to withhold privil privileges eges  previously  previously given given to them. Indeed Indeed to perpetuate such distin distinction ction would leave leave the citizens citizens at the mercy of  State functionaries, and worse, threaten the liberties protected by the Bill of Rights.”39 Sight must must not be lost of the fact that t hat the Clause has two faces or components – the procedural and the substantive. The former is essentially directed at officers who adjudicate while the latter is directed  basicall  basically y at those who enact the laws. laws. The first first refers refer s to the guarantees of o f fairness fairness in the t he process pro cess of  determini dete rmining ng whether a right, liberty liberty or freedom free dom is to be impaired impaired or otherwise o therwise taken away while while the latter  latte r  goes to the very power o f the authorities to come co me up with rules and and other ot her strictures under which which man may may live and enjoy the blessings of a civilized society, including the price that he has to pay to stay. Then again, it must not also be forgotten that procedural due process operates differently under  33 34 35 36

JURISTS REVIEW CENTER

 Manotok Realty, I nc. v. CLT Realty Development Corporation , 476 SCRA 305 (2005)  Betoy v. Board of Dir ectors, National Power Power Corporation , 658 SCRA 420 (2011) Quiao v. Quiao, Quiao, 675 SCRA 642 (2012)

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 See Layno,  See Layno, Sr. v. Sandigan bayan, bayan, 136 SCRA 536 (1985) and Deloso and Deloso v. Sandig anbayan, anbayan, 173 SCRA 409 (1989)

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 “[P]ilotage as a profession has taken on the nature of a property right.” ( Corona v. United Harbor Pilots Association of the  Philippines,  Philippines, 283 SCRA 31 [1997])

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On the other hand, it has been held that an “ai rman license cannot be considered a property right, it is but a mere pr ivilege, subject to the restrictions imposed by the ATO and its revocation if warranted.” ( Ledesma ( Ledesma v. Court of Appeals, Appeals , 541 SCRA 444 [2007]) 38 39

 Mabuhay Textile Mills Corpor ation Ongp in, in, 141 SCRA 437 (1986) vis-à-vis A Library Ofv. Liberties  An

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

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changing circumstances. “Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.”40 Or, as stated in another case: “Procedural due process proc ess requires a determinati determination on of what process is due, when it is due, 41 and the degree of what is due.”  What may be required for purposes of judicial proceedings would not  be the same in admini administrative strative proceedings. proceedings.42 Those that satisfy the requirements of due process in the investigation of local loca l appointive officials officials would not no t suffice for elective o fficials, fficials,43 and so on. It has also also  been held held that where the trial court simply simply considered considered the person and past performance of the witness, witness, and decided on this basis that he was a credible witness, rather than look at the merits of his testimony, such act, by itself, was a major major error, erro r, a violation of due process proc ess – a court must always a lways decide on the basis of the evidence presented, not on the basis basis of any other extraneous consideration consideration not before before it.44 Basic to the idea of procedural due process is the presence of an impartial magistrate or tribunal, if  fairness is to be had. 45 In Office of the Court Administrator v. Floro, Jr., Jr. , 486 SCRA 66 (2006), it was held that where a judge entertains an unorthodox belief system – such as believing in “psychic visions,” and in dwarfs, and in being able to write while on trance, of having been seen by several people in two  places at the same same time, time, and of o f foreseein foreseeing g the future because of his his power of “psychic “psychic phenomenon” phenomenon” –  the same indubitably shows his inability to function with the cold neutrality of an impartial judge. Such  beliefs,  beliefs, specially specially so when acted upon by the judge, judge, are so at odds with with the critical critical and imparti impartial al thinking thinking required of a magistrate. The judiciary is certainly not the proper place for such a person to stay. And, in Rubin in Rubin v. Corpus-Cabochan Corpus-Cabochan,, 702 SCRA 330 (2013), the Court pointed out: “It must be borne in mind mind that the inhibition inhibition of o f judges is rooted root ed in the Constitution, Co nstitution, specifically specifically Article III, the t he Bill of Rights, which requires that tha t a hearing is conducted before be fore an impartial and disinterest disinterested ed tribunal because unquestionably unquest ionably,, every litigant is entitled to nothing less than the cold neutrality of an impartial judge. All the other  elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge.” On substantive substantive due process, pro cess, relevant relevant here is the concept of the “void-for vagueness” doctrine . It is “most commonl co mmonly y stated state d to the effect that tha t a statute stat ute establish e stablishing ing a criminal criminal offense offense must define the offense with sufficient sufficient definiteness definiteness that t hat persons perso ns of ordinary intelligence intelligence can understand understa nd what conduct co nduct is prohibi pro hibited ted  by the statute. It can only be be invoked against against that specie of legisl legislation ation that is utterly utterly vague on its face, i.e., i.e., that which cannot be clarified either by a saving clause or by construction.”46 A statute or act may  be said to t o be vague when it lacks comprehensibl co mprehensiblee standards that men of o f common intelligence 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 violates due process for failure failure to accord persons, p ersons, especially especially the  parties targeted by it, fair fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary a rbitrary flexing flexing of the Go vernment muscle. And

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City of Manila v. Laguio, Jr., Jr. , 455 SCRA 308 (2005) Secretary of Justice v. Lantion, Lantion , 343 SCRA 377 (2000)

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AR EVIEW Cf. Banco Español-Filipino v. Palanca, Palanca , 37 Phil. 921 (1918) and Ang Tibay v. Court of Industrial Relations, and Ang Relations, 69 Phil. 635 (1940)  Joson v. Torres, Torres , 290 SCRA 279 (1998)  People v. Sanchez , 569 SCRA 194 (2008)

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 “It must be borne in mind that the inhibition of judges is rooted in the Constitution, specifically Article III, the Bill of Rights, which requires that a hearing is conducted before an impartial and disinterested tri bunal because unquestionably, every litigant is entitled to nothing less than the cold neutrality of an impartial judge. All the other elements of due process, like notice and hearing, would be meaningless if the ultimateA d ecision wouldOf come from a partialvis-à-vis and biased judge.” ( Rubin v. Corpus-Cabochan, Corpus-Cabochan Library Liberties  An ( Rubin Arsenal Of Arms , 702 SCRA 330 [2013]). 46

 Estrada v. Sandiganba yan, yan, 369 SCRA 394 (2001)

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what about the overbreadth doctrine ? This doctrine decrees that a governmental purpose may not be achieved by means means which sweep unnecessarily broadly broad ly and thereby there by invade invade the area are a of protecte prot ected d freedoms. If one’s purpose is simply to roast a pig, then he need not have to burn the barn. Due Process guaranties have far-reaching consequences and ramifications. In the United States, for  instance, it has been implicated in the right of a woman to have an abortion,47 and likewise it has been attempted – unsuccessfully – to justify a claim to a right to suicide. 48 And, it has also been invoked to  justify  justify the the compelled compelled production produ ction of relevant relevant presidential materials materials as against against a generalized generalized assertion assertion of  49 executive privilege.   So, too, does due process makes its presence know in the requirement for  reasonableness reasonableness of presumptions,50  as well as in relation to the right not to be subjected to excessive exemplary damages.51 In regard to criminal cases, due process is implicated in the determination of the voluntariness and admissibility of extrajudicial confessions,52 the requirement for public trial53 and the reasonable doubt standard  are   are deemed dictates of due process.54 Court access by prisoners is also considered part of t he guarantee. “The constitutional guarantee of due process of law has as a corollary the requirement that pris p risoners oners be afforded access to the courts court s in order to challenge challenge unlawful unlawful convictions convictions and to seek redress for violations of their constitutional rights. This means that inmates must have a reasonable reasonable opportunity oppo rtunity to seek and a nd receive the assistance assistance of atto rneys.” rneys.”55 In the Philippines, the Court has ruled, for instance, that inordinate reliance on technical rules of   procedure may also offend offend the guarantee.56 Exorbitant and unreasonable filing fees likewise violate due  process. “A fili filing ng fee, by legal defini definition, tion, is that charged by a public official to accept a document for   processing. The fee should be just, fair, fair, and proportionate to the service service for which which the fee is being collected, collected, . . .” The due process pro cess clause clause permits the co urts to t o determine determine whether the t he regulation imposi imposing ng such fees is reasonable and within the bounds of its rate-fixing authority and to strike it down when it arbitrarily infringes on a person’s right to property.57 Due process has also been referred to in relation to

47

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

In Imbong In Imbong v. Ochoa, Ochoa , 721 SCRA 146 (2014), the Court declared: “The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion. It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was captured in the record of  the proceedings of the 1986 Constitutional Commission.” 48 49 50

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

JURISTS REVIEW CENTER

United States v. Nixon, Nixon , 418 U.S. 683 (1974) Tot v. United States, States , 319 U.S. 463 (1943)

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 See BMW  See BMW of North America, Inc. v. Gore, Jr. , 517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., Inc., AR EVIEW 532 U.S. 424 (2001); and, State Farm Mutual Automobile Insurance Company v. Campbell , 538 U.S. 408 (2003). 52 53 54 55 56 57

 See Dickerson  See Dickerson v. United Sta tes, tes, 530 U.S. 428 (2000)  Re Oliver , 333 U.S. 257 (1948)  In Re Winship, Winship, 397 U.S. 358 (1970)

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 Procunier v. Martinez , 416 U.S. 396 (1974)  See Banaga  See Banaga v. MaA jaducon, jaducon , 494 SCRA 153 (2006) vis-à-vis An Library Of Liberties

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Securities and Exchange Commission v. GMA Network, Inc., Inc. , 575 SCRA 113 (2008)

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the rights to counsel, counsel,58 information,59 equal protection,60 need for courts court s to explicitly explicitly state the t he factual and 61 legal bases for their judgments,  It has likewise been considered in connection with expropriations.62 In Republic In Republic v. Cagandahan, Cagandahan, 565 SCRA 72 (2008), the Court Court recognized reco gnized the right right of o f a person with the condition of Congenital Adrenal Hyperplasia (CAH), (CAH), or intersexuality, intersexuality, to have her birth certificate corrected to indicate the gender that such persons may think he or she has, which is different from what was indicated at the moment of birth. It is a recognition of such person’s liberty to choo se what he or she really really is. is. It was noted that the current state of Philippi Philippine ne statutes apparently compels that a person be classified classified either as a male or as a female, female, but the Court Co urt is not contro co ntrolled lled by mere appearances appeara nces when nature itself fundamentally negates such rigid classification. “Ultimately, we are of the view that where the  person is biological biologically ly or naturally naturally intersex intersex the deter de termi mini ning ng factor in his gender classif classificati ication on would be what the individual, like respondent, having reached the age of majority, with good reason thinks of  his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male male hormones (androgen) (andr ogen) there t here is preponderant prepo nderant biological support suppo rt for considering co nsidering him him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.”  Nevertheless,  Nevertheless, caution caution should should also also be had in in using using it it indis indiscrim criminatel inately y for it could as soon lend lend itself itself to noticeable misuse. Depending on how well one may wield wield the due du e process pro cess argument, argu ment, he may find find an ally or just an illusory companion. In one case, the Supreme Court opened its opinion with this observation: “It has not escaped the attention of the Court that when a party runs out o f arguments, arguments, or never had any to begin with, it usually pleads a denial of due process. The plea may impress at first glance, what with all its plaintive plaintive invocat invocation ion of the Bill Bill of Rights, Rights, but it does not no t often o ften succeed succee d upon closer examination.”63 In another case, it concluded with this observation: observation: “The Court is not unaware of the practice of some lawyers who, lacking plausible support for their position, po sition, simply simply claim a denial of due proce p rocess ss as if it it were wer e a universal absolution. The ground will prove unavailing, and not surprisingly since it is virtually only a  pro forma argument. forma argument. Due process is not to be bandied bandied like like a slogan. It is not a mere catch-phrase. As the highest hallmark hallmark of the free society, its name should shou ld not be invoked in vain vain but only when justice justice has not 64  been truly served.”  The Court Co urt also observed o bserved in another another case: “The Court shall not fake naiveté naiveté of the t he  prevalent  prevalent practice among lawyers lawyers who, for lack of better argument to bolster their position, position, engage in 65 waxing lyrical to ‘a denial of due process.’”  statutory due process in order to distinguish it Finally, the Court has come up with the concept of statutory 58

 E.g.,  E.g., People v. Bermas Bermas,, 306 SCRA 135 (1999); People (1999); People v. Santocildes, Jr., Jr. , 321 SCRA 310 (1999); and, People and, People v. Liwanag  Liwanag , 363 SCRA 62 (2001). In People In People v. Ferrer  Ferrer , 406 SCRA 658 (200 3), the Court declared: “The right to counsel proceeds from from the fundamental  principle of due process which basically means that a person must be hear d before being condemned. The due pr ocess requirement is  part of a person’s basi c rights; it is not a mere formality that may be dispensed with or performed perfunctorily.” 59

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

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

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 Bautista v. Secretary of Labor and Employment , 196 SCRA 470 (1991)  Pacific Timber Export Corpo ration v. Nationa l Laborvis-à-vis Relations Commission, Commission , 224 SCRA (1993) A Library Of Liberties  An Arsenal Of860 Arms  NEECO II v. National Labor Relations Commission, Commission, 469 SCRA 169 (2005)

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from constitutional  due process. In Serrano v. National Labor Relations Commission, Commission, 323 SCRA 445 (2000), the Court held that the dismissal of an employee who was separated for cause without affording him the notice not ice required by law was considered ineffectual  until  unt il validate validated d by final judgment. In effect, the employee would wou ld be deemed dee med still an employee employee in the meantime, and accordingly acco rdingly entitled to his wages until his dismissal would have been affirmed. The Court majority in that case was also emphatic that such dismissal was not a violation of due process as the guarantee in the Bill of Rights is directed against governmental governmental action, not private acts. Then, in Agabon in Agabon v. National Labor La bor Relations Commission, Commission, 442 SCRA 573 (2004), (200 4), the Court Co urt characterized chara cterized the t he dismissal dismissal without comply co mplying ing with the notice requirement as a violation of due process. How did it turn around in a manner that is not entirely contrary to what it said four years earlier? Simple. It came up with something new – two concepts of due process: (a) (b) statutory due process. While under the former, its violation would constitutional due process, and, (b) statutory lead to the nullity nullity of the action act ion made, in the latter it would wo uld not necessaril nece ssarily y be the case, depending on what 66 the statute violated itself provides. 1. Office of the Court Administrator v. Indar , 669 SCRA 24 (2012) This case is about the administrat administrative ive investigation investigation of o f a judge judge in Cotabato who was wa s involved involved in coming up with fictitious marriage annulment decisions which were thereafter registered in the Civil Registries of Manila and Quezon City.67 Since the respondent judge had moved to an unknown address, he could not be served with notice and he did not appear in the investigation. Is this fatal to the determination of  the case? No – he was given the opportunity oppor tunity but he tried to evade evad e service. service. The investigating jjustice ustice noted that all possible possible means means to locate the respondent judge and to personally personally serve the court notices to him were resorted to. The Supreme Court also said said that t hat the notice of its Resolution Resolution preventively preventively suspending suspending the judge was mailed and sent to him at his court. The Court held that “[i]t is settled that ‘technical rules of procedure and evidence are not strictly applied to administrat administrative ive proceedings. Thus, admini a dministrat strative ive due process cannot be fully equated equat ed with due  process in its strict strict judicia judiciall sense.’ sense.’ It is is enough that the party is given given the chance to be heard before before the case against him is decided. Otherwise stated, in the application of the principle of due process, what is sought to be safeguarded is not lack of previous notice but the denial of the opportunity to be heard.” Moreover, the constitutional precept that public office is a public trust serves as an underlying principle 66

 Note what the Court said in this case, a good window to what it had done recently in changing its mind on its earlier decisions. “This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and related cases. Social justice is not  based on rigid formulas set i n stone. It has to allow for changing times and circumstances.” 67

 To highlight the misconduct of the respondent judge, the Court noted:

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“In this case, Judge Indar issued decisions on numerous annulment ofENTER marriage cases which do not exist in the records of  URISTS EVIEW RTC-ShariffAguak, RTC-ShariffAguak, Branch 15 or the Office of the Clerk of Court of the Regional Trial Court, Cotabato City. There is nothing to show that (1) pr oceedings were had on the questioned cases; (2) docket fees fees had been paid; (3) the part ies were notified of a scheduled hearing as calendared; (4) hearings had been conducted; or (5) the cases were submitted for decision. As found by the Audit Team, the list of  AR andEVIEW case titles submitted by the Local Civil Registrars Registrars of Manila Quezon City are not found in the lis t of cases filed, pending or decided in RTC, Branch 15, Sh ariffAguak, nor in the r ecords of the Office of the Clerk of Court of the Regional Trial Court, Cotabato City. In In other words, Jud ge Indar, who had sworn to faithfully uphold the law, issued decisions on the questioned annulment of marriage cases, without any showing that such cases underwent trial and complied with the statutory and jurisprud ential requisites for voiding marriages. Such act undoubtedly constitutes gross misconduct.

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“In this case, Judge Indar Indar issued Decisions on numerous annulment of marriage cases when in fact he did not conduct any judicial A Library Of Liberties vis-à-vis An Arsenal Of Arms  proceedings on the cases. Not even the filing of the peti tions occurred. . . .”

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for the for the relaxation of the requirements of due process of law in administrative proceedings. The Court likewise likewise noted: “In thi t hiss case, Judge Indar was given ample ample opportunity oppo rtunity to contro vert the charges against him. While there is no proof that Judge Indar personall Indar personally y received received the notices of hearing hearing issued by the Investigating Justices, the first two notices of hearing were received by one Mustapha Randang of the Clerk of Court, Co urt, RTC-Cotabato, while while one of the notices was received received by a certain cert ain Mrs. Asok, who were presumably presumably authorized and capable capable to t o receive notices on behalf behalf of Judge Indar. Further, Judge Indar Inda r cannot feign ignorance ignorance of the administrat administrative ive investigation investigation against him because aside from the fact that the Court’s Resolution suspending him was mailed to him, his preventive suspension was reported in major major national newspapers. newspapers. Moreover, Moreo ver, Judge Indar was repeatedly sent notices of hearings to his his known addresses. Thus, there t here was due notice on Judge Indar I ndar of the charges against against him.” him.” 2.  Perla v. Baring , 685 SCRA 101 (2012) When it comes to complaint for support based on a child’s alleged filiation to a particular man, the Court said that the alleged filiation must be established with sufficient certainty. “Time and again, this Court has ruled that a high standard of proof is required to establish paternity and filiation. An order for  x x x support may create an unwholesome situation or may be an irritant to the family or the lives of the  parties so that it must be issued issued only if paternity or o r fili filiation ation is established by clear and convincin convincing g evidence.” 3.  Republic v. Albios Albios, 707 SCRA 584 (2013) If a marriage of convenience – e.g., e.g., for the acquisition of foreign citizenship – does not work out as  planned,  planned, could that that be a ground for for declaration declaration of nullity? nullity? No, the Court ruled ruled in in this this case. case. “Motives “Motives for  for  entering into a marriage are varied and complex. The State does not and cannot dictate on the kind of  life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the realm of their  right to privacy and would raise serious constitutional questions. The right to marital privacy allows married couples to structure their marriages in almost any way they see fit, to live together or live apart, to have children children or no children, children, to love one another or o r not, and so on. Thus, marriages entered entered into for  other purposes, limited or otherwise, such as convenience, companionship, money, status, and title,  provided that they comply comply with all all the legal requisites, requisites, are equally equally valid.” valid.” Thus, although the marriage marriage may be considered a sham or fraudulent for the purposes of immigration, it is not void ab initio and continues to be valid and subsisting.68 68

 See Leus  See Leus v. St. Scholastica’s College Westgrove Westgrove,, 748 SCRA 378 (2015), and, Capin-Cadiz v. Brent Hospital and Colleges, Inc. , 785 SCRA 18 (2016) , where the Court held invalid the sanctions – dismissal in Leus in Leus and  and indefinite suspension in Capin-Cadiz  –  – imposed on female employees in religious institut ions simply on the ground th at they got pregnant outside of marriage even as there was no legal impediment to them getting married. In Leus In  Leus,, the Court said that the fact of the petitioner’s pregnancy out of wedlock, without more, is not enough to characterize her conduct as disgraceful or immoral. “There must be substantial evidence to establish that pre-marital URISTS EVIEW ENTER sexual relations and , consequently, pregnancy out out of wedlock, are indeed considered disgraceful or immoral.” Further, the Court hel d: “That the petitioner was employed by a Catholic educational institution per institution  per se does not absolutely determine whether her pregnan cy out out of wedlock is disgraceful or immoral. There is still a necessity to determine whether the petitioner’s pregnancy out of wedlock is EVIEW considered disgraceful or immoral in accordance withAR the prevailing norms of conduct.” And, And, for that, secular  that, secular , not religious, religious , morality is to be the basis.

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Capin-Cadiz  echoed  echoed the Court’s holding in Leus in Leus,, stating, inter alia: alia: “Jurisprudence has already set the standard of morality with which an act should be gauged – it is public and secular, not religious. Whether a conduct is considered disgraceful or immoral should  be made i n accordance with the prevailing norms of conduct, wh ich, as st ated in  Leus, refer to those conducts which are proscribed  because t hey are detrimental to conditions upon which depend the existence and progress of human society. The fact that a  particular act does not conform to the traditional moral views of a certain sectarian inst itution is not sufficient reason to qualify such vis-à-vis Library Ofconfonn Liberties Arsenal Of Arms act as immoral unless it, A likewise, does not to public and secular An standards. More importantly, there must be substantial considered disgraceful or immoral.” And, in regard evidence to establish that premarital sexual relations and pr egnancy out of wedlock is considered

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4. Obergefell v. Hodges , 576 U.S. ___ (No. 14-556, 26 June 2015) Marriage is traditionally understood understoo d as a union union between betwe en a man and a woman. Do persons pe rsons of the same sa me sex have the right to demand that their similar arrangement arrangement be recognized and legitimized by the government? government? In this case, the U.S. Supreme Court said yes. It is part of o f the protected protec ted liberty liberty interests of  individuals, a means by which they define and express their identity. The Court also noted that the institution of marriage has evolved over time. “Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process. This dynamic can be seen in the Nation’s experiences with the rights of gays and lesbians. lesbians. Until the mid-20t mid-20th h century, centur y, same-sex intimacy intimacy long had been condemned as immora immorall by the state stat e itself in in most Western nations, na tions, a belief often embodied in the criminal criminal law. law. For this t his reason, reaso n, among others, o thers, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. . . Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.” The Court further held held that “[u]nder the Due Process Clause of the Fourteenth Fourt eenth Amendment, Amendment, no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. . . . In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. . . . The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibi responsibili lity, ty, however, ‘has not been reduced to any formul formula.’ a.’ . . . Rather, it requires courts to exercise exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” And, to highlight the flexibility of ideas and legal principles, the Court said: “It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving oppositesex partners. The Court, like many institutions, has made assumptions defined by the world and time of  which it is a part.” For its analysis, analysis, the Court made reference to the four principl pr inciples es and traditions trad itions regarding marriage that to the right of women to choose whether to get married or not, the Court said: “With particular regard to women, Republic Act No. 9710 or the Magna the Magna Carta of Women protects Women protects women women against discrimination in all matters relating to marriage marriage and family family relations, including including the right to choose freely a spouse and to enter into marriage only with their free and full consent.   Weighed against these safeguards, it becomes apparent that Brent’s condition is coercive, oppressive and discriminatory. There is no rhyme or reason for it. It forces Cadiz to marry for economic economic reasons and deprives her of the freedom to choose her status, which is a privilege that inheres in her as an intangible and inalienable right.”

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 Noteworthy also in Capin-Cadiz is the concurring opinion of Justice Jardeleza where he pointed out, among others: “While the URISTS EVIEW ENTER  ponencia views the issue from the perspective of public and secular morality, there is also a constitutional dimension to this case that should be considered. This is a woman’s right to personal autonomy as a fundamental right. The Constitution protects per sonal autonomy as part of the Due Process Clause in the Bill of Rights. Indeed, the Bill of Rights cannot be invoked against pri vate employers. However, the values expressed in the Constitu tion cannot be completely in the just adjudication of labor cases. In this case, Brent’s reliance AR ignored EVIEW on laws and governmental issuances justifies the view that the Constitution should permeate a proper adjudication of the issue. Brent invokes the MRPS to support Christine Joy’s dismissal. The MRPS is a department order issued by the Department of Education (DepEd) in the exercise of its power to regulate private schools. . . . Hence, in the application of laws and governmental regulations, their provisions should not be interpreted in a manner that will violate the fundamental law of the land.” In short, petitioner’s decision “to continue with her pr egnancy outside outside of wedlock is a constitutionally protected right.” On si ngle motherhood, he said: “While marriage is the ideal starting point of a family, there is no constitutional or statutory provision limiting the definition of a family or preventing any attempt to deviate from our traditional template of what a family should be. In In other jurisdictions, t here is a growing clamor for laws vis-à-vis A Library Of Liberties  An Arsenal Of Arms to be readjusted t o suit the needs of a risin g class of women women – single mothers by choice.” In other words, the petitioner “and other women similarly situated are free to be single mothers by choice.”

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impelled it to now accord the same-sex marriages the legitimacy sought. “And in assessing whether the force and rationale of its cases apply to same-sex same-sex couples, the Court must respect the basic basic reasons why the right to marry has been long protected. This analysis com pels the conclusion conclusion that same-sex same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.” It went to hold that “[a] first first premise premise of the Court’s Co urt’s relevant relevant precedents prec edents is that the right to personal choice choice regarding marriage is inherent in the concept of individual autonomy.” Further, “[a] second principle in this Court’s Court ’s jurisprudence is that the right to t o marry is is fundamental because because it supports suppo rts a two-perso two -person n union unlike any other in its importance to the committed individuals.” And, “[a] third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of  childrearing, procreation, and education.” Ultimately, “[f]ourth and finally, this Court’s cases and the  Nation’s traditions make clear that t hat marriage marriage is a keystone of our social order.” Accordingly Accordingly,, “[t]he limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” The Court further declared: “The right to marry is fundamental as a matter of history and tradition,  but rights rights come not from ancient ancient sources alone. They They rise, too, too , from a better inform informed ed understanding understanding of  how constitutional co nstitutional imperatives define define a liberty that remains urgent in our own era. era . Many who deem samesex marriage marriage to be wrong re reach ach that conclusion co nclusion based on decent and honorable honora ble religious or philosophical philosophical  premises,  premises, and neither they nor their belief beliefss are disparaged here. But when that sincere, sincere, personal opposition becomes en- acted law and public policy, the necessary consequence is to put the imprimatur  of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, Const itution, same-sex couples seek in marriage the same legal legal treatment treat ment as oppositeoppo sitesex couples, and it would disparage their choices and diminish their personhood to deny them this right. The right of o f same-sex couples to marry that is part of the liberty liberty promised by the Fourteent Four teenth h Amendment Amendment is derived, derived, too, too , from that Amendment’s Amendment’s guarantee guarantee of the equal protection of the t he laws. The Due Pro cess Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different different precept pr eceptss and are not no t always coextensive, yet in some instances instances each ea ch may be instruc instructive tive as to the t he meaning meaning and reach of the o ther. In any a ny particular particular case one o ne Clause may be be thought to capture capt ure the essence of the right in a more accurate and comprehensive way,even as the two Clauses may converge in the identification and definition of the right.” The Court then held: “These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of theR person, andCunder the Due Process and Equal Protection JURISTS EVIEW ENTER Clauses of the Fourtee Fourteenth nth Amendment Amendment couples cou ples of the same-sex same-sex may not be deprived depr ived of that right and that tha t liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.”

BAR ,R693 EVIEW 2017 Elections 5.  Maliksi v. Commission on Elections SCRA 214 and 696 SCRA 272 (2013) Procedural irregularities violate a party’s entitlement to due process of law, thereby resulting in an invalid judgment. This is about an election contest involving the position of municipal mayor. In the automated elections in 2010, Saquilayan emerged winner. Maliksi filed an election protest before the Regional Trial Court which resulted in a judgment in his favor. Saquilayan brought up the matter to the vis-à-vis A Library  An Of Arms Commission on Elections and Of the Liberties results were reversed. In Arsenal so deciding, the First Division of the

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Commiss Commission, ion, without giving giving notice to the parties, decided to recount the ballots ballots through the t he use of the t he  printouts of the ballot ballot images images from the CF cards. cards. In its original original decision, decision, the Court, by a 8-7 vote, said that there was w as no denial de nial of due process proc ess since Maliksi Maliksi was fully fully aware of the t he decryption, printing printing and use of the ballot images for the purpose of determining the true will of the electorate. Maliksi filed an  Extremely Urgent Urgent Motion for Reconsideration and Reconsideration and the Court obliged him – also by an 8-7 vote, but this time the majority had shifted to the other side! In reversing the original o riginal disposition, the new majority said that “the “t he First Division Division of the COMELEC COMELE C denied to him the right to due process by failing to give due notice on the decryption and printing of the  ballot  ballot images.” images.” The Court Co urt then t hen annulled annulled the recount pro ceedings ceedings conducted by the First First Division Division with the use of the printouts printout s of the ballot ballot images. The T he Court explained that “the First Division Division should not have conducted the assailed assailed recount reco unt proceedin proceed ings gs because beca use it was then exercising exercising appellate jurisdicti jurisdiction on as to which no existing rule of procedure allowed it to conduct a recount in the first instance. The recount  proceedings authorized under under Section 6, Rule Rule 15 of COMELEC COMELEC Resolution Resolution No. 8804, as amended, are to be conducted by the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial and city officials.” As the Court saw it, “the First Division arbitrarily arrogated unto itself the conduct of the recount proceedin pro ceedings, gs, contrary to the regular procedure of o f remanding remanding the protest to t o the RTC RT C and directing directing the reconstitution of the Revision Committee for the decryption and printing of the picture images and the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En COMELEC En Banc upheld the First Division’s Division’s unwarranted unwarrante d deviation from the standard procedure pro ceduress by invoking the COMELEC’s power  powe r  to ‘take such measures measures as [the Presiding Presiding Commissi Commissioner] oner] may deem proper,’ . . .” But, the t he Court said, said, “the  power of the COMELEC to adopt procedures that will will ensure ensure the speedy speedy resolution resolution of its its cases should should still be exercised only after giving to all the parties the opportunity to be heard on their opposing claims. The parties’ right to be heard upon adversarial issues and matters is never to be waived or sacrificed, or  to be treated so lightly because of the possibility of the substantial prejudice to be thereby caused to the  parties, or to any of them.” After noting that the official ballot and its picture image are considered “original documents” – both of them are given equal probative probat ive weight, that when either is presented presente d as evidence, one is not considered co nsidered as weightier than the other – the Court proceeded to qualify: “But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots in the proceedings had before them without notice to the parties. Despite the equal probative weight accorded to the official ballots and the printouts of their picture images, the rules for the revision of ballots adopted for their respective proceedings still consider the official ballots to be the primary or best evidence of the voters’ will. In that regard, the J picture images of the ballots are to be used only when it is first REVIEW CENTER URISTS shown that the official ballots are lost or their integrity has been compromised. ” Further, “[t]he disregard of Maliksi’s right to be informed of the decision to print the picture images Bpro AR REVIEW 2017 of the ballots and to conduct the recount ceedings during during the appellate appellate stage cannot be brushed aside  by the invocation invocation of the fact fact that Maliksi Maliksi was able able to file, file, after all, all, a motion for for reconsideration. To be exact, the motion for reconsideration was actually directed against the entire resolution of the First Division, while Maliksi’s claim of due process violation is directed only against the First Division’s recount reco unt procee pr oceedings dings that resulted re sulted in the prejudicial result rendered render ed against him. him. Notably Not ably,, the First Division Division did not issue any order directing the recount. Without the written order, Maliksi was deprived of the A Library Of Liberties vis-à-vis An Arsenal Of Arms chance to seek any reconsideration reconsideration or even to assail assail the irregularly-hel irregularly-held d recount reco unt through a seasonable

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 petition for for certiorari in this this Court. In that context, conte xt, he had no real r eal opportunity to assail the conduct of  the recount proceedings. The service of the First Division orders requiring Saquilayan to post and augment the cash deposits for the printing of the picture images images did not sufficiently sufficiently give Maliksi Maliksi notice of the First Division’s Division’s decision to print pr int the picture images. The said orders did not meet the requirements re quirements of due process because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders offer the factual bases for the finding of tampering. Hence, to leave for  Maliksi to surmise on the factual bases for finding the need to print the picture images still violated the  principles  principles of fair fair play, play, because because the responsibil responsibility ity and the obligati obligation on to lay down the factual bases and to inform inform Maliksi as the party part y to be pote p otentiall ntially y prejudiced thereby ther eby firmly firmly rested on the shoulders of o f the First Division. Moreover, due process of law does not only require notice of the decryption, printing, and recount proceedings pro ceedings to the parties, but also demands an opportunity to be present at such proceedings or to be represented therein.” 6. Cudia v. Superintendent of the Philippine Military Academy , 751 SCRA 469 (2015) In regard rega rd to administrat administrative ive investigations investigations involving involving students student s in mil military itary schools, schoo ls, the Court Co urt held: “Like in other institutions institutio ns of higher learning, there is aversion to wards undue undu e judicialization judicialization of o f an administrative administrative hearing in the military military academy acade my.. It has been said that the mission mission of the mili military tary is unique in the sense that t hat its primary business is to fight or be ready to fight wars should the occasion arise, and that over-proc over- proceduralizing eduralizing military military determinations necessarily gives soldiers soldiers less time time to accompli acco mplish sh this task. Extensive cadet investigations and complex due process hearing could sacrifice simplicity, practicality, and timeliness. . . . Excessive delays cannot be tolerated since it is unfair to the accused, to his or her  fellow fellow cadets, to t o the t he Academy, Academy, and, generally, generally, to the Armed Forces. A good balance balance should, therefore,  be struck to achi ac hieve eve fairness, fairness, thoroughness, and effi efficien ciency.” cy.” 7. Office of the Ombudsman v. Quimbo , 751 SCRA 632 (2015) In Office of the Ombudsman v. Sison, Sison, 612 SCRA 702 (2010), t he Court held that the t he Offi Office ce of the Ombudsman could not and should sho uld not intervene in the appeal app eal from its its decision, specially if it it is reversed. reverse d. It should remain remain detached, in keeping with its its role as adjudicator, not an advocate. InQuimbo In Quimbo,, however, the Court held otherwise. It said: “The issue of whether or not the Ombudsman possesses the requisite legal intere interest st to intervene in the proceedings proc eedings where its decision decision is at risk of being iinappro nappropriately priately impaired impaired has been laid to rest in Ombudsman v. De Chavez  [700  [700 SCRA 399 (2013), at 404-406]. In the said case, the Court conclusively ruled that even if the Ombudsman was not impleaded as a party in the  proceedings, part of o f its broad powers power s include includ e defending defending its decisions decisions before the CA. And pursuant to to Section Sect ion 1 of Rule 19 of the Rules of Court, Court , the Ombudsman may validly validly intervene intervene in the said sa id proceedings proce edings as its legal interest on the matter is beyond cavil.” The Court declared that the Court of Appeals gravely erred in disallowing the Ombudsman’s motion to intervene – it failed to consider the essence of the JURISTS REVIEW CENTER Ombudsman’s constitutionally and statutorily conferred powers establishing its clear legal interest in ensuring that its directive be implemented.

BAR REVIEW 2017 8. Ylaya v. Gacott , 689 SCRA 452 (2013) In view of the fact that disciplinary proceedings against lawyers are sui are  sui generis – generis – they are neither   purely civil civil nor purely crimin criminal al – and and that they involve involve investigati investigations ons by the Court into into the conduct of one of its officers, not the trial of an action or a suit, it is not mandatory to have a formal hearing in which the complainant must adduce evidence. The complainant is not indispensable to the proceedings and her  vis-à-vis Library Of Liberties  An Arsenal OfceArms failure failure to appear forAcross-examination cross-exami nation or to t o provide pro vide corroborative eviden evidence is of not that relevant.

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D. EQUAL PROTECTION The guarantee of equal protection is no argument for absolute equality, for what it only assures is legal equality. It would hardly be fair fair nor just that people peo ple whoare who are not equally circumstanced circumstanced be given the same treatment, otherwise, it would be as offensive to the notion as the very idea of unequal treatment among equals. Inherent therefore in the application of the Equal Protection Clause is the need for valid classifications  classifications  so as to determine who or what could properly be grouped together for particular  treatment, and excluding all others. As the Court intoned in Mirasol in Mirasol v. Department of Public Works and   Highways,  Highways, 490 SCRA 318 (2006), “[t]o begin with, classification by itself is not prohibited,” and then went on to state that “[n]ot all motorized vehicles are created equal.” In this regard, the classification must be related to the very purpose of the law and that there should be substantial distinctions which make for real differences. Gender may be relevant in regard to certain classifications but not in others. Age, legitimacy, academic performance, courses of study, office and status, and other bases for  classification classification may make for some valid differences differences at times, t imes, but not so under und er other o ther situations and climes, climes, and so on. And, what may be constitutional when seen from one perspective may not be so from another  vantage point.69 As for you taking the Bar exams, consider yourself not just anyone. While you are like your fellow examinees with the same ambition and aim of becoming lawyers, you are still different from everyone else. And if you’re good enough, you may even end up as a class by yourself.70 1. Garcia v. Drilon , 699 SCRA 352 (2013) Republic Act No. 9262 (2004), entitled “An Act Defining Violence Against Women and Their  Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other  Purposes,” is assailed for being allegedly violative of the guaranty of equal protection in the sense that it does not no t similarly similarly protect prote ct men who are victim of the same acts which are criminali criminalized zed by the law. Since R.A. 9262 is intended to prevent and criminalize spousal and child abuse, which could very well be committed by either the husband or the wife, petitioner posits, gender alone should not be enough basis to deprive the husband/father of the remedies under the law. The Court Cou rt said the equal equ al protection protec tion clause is not violated since there the re is a valid valid basis for for classification. classification. There is a substantial a substantial distinction between distinction between men and women in this particular area. “The unequal power  relationship between women and men; the fact that women are more likely than men to be victims of  violence; and the widespread gender bias and prejudice against women all make for real differences  justify  justifyin ing g the classi classifi fication cation under under the law. law. As Justice McIntyre succinctly succinctly states, ‘the accommodation of  differences ... is the essence of true equality.’” equality.’” The Court noted that “[a]ccording to the Philippine J REVIEW CENTER URISTS Commission on Women (the National Machinery for Gender Equality and Women’s Empowerment), violence against women (VAW) is deemed to be closely linked with the unequal power relationship between women and men otherwise known as “gender-based violence”. Societal norms and traditions BARpursuers, REVIEW 2017 and take on domi dictate people to t hink hink men are the leaders, p roviders, providers, do minant nant roles in society while women are nurturers, men’s companions and supporters, and take on subordinate roles in society. 69 70

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 See Village of Willowbrook v. Olech , 528 U.S. 562 (2000) (The Equal Protection Clause gives rise to a cause of action on behalf  of a “class of one” where the plaintiff does not allege membership in a class or group, b ut alleges that she has been intentionally treated differently from others similarly situated and there is no rational basis  An for such treatment.)Of Arms vis-à-vis A Library Of that Liberties Arsenal See also Nixon also Nixon v. Administra tor of General Services, Services , 433 U.S. 425 (1977).

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This perception leads leads to men gaini gaining ng more power over women. wo men. With With power comes the need to control to retain that power. And VAW is a form of men’s expression of controlling women to retain power.” Furthermore, women are the “usual” and “most likely” victims victims of violence. “On the other hand, no reliable reliable estimates may be obtained obt ained on domestic do mestic abuse and violence against ag ainst men in the Philippines Philippines because incidents thereof are relatively low and, perhaps, because many men will not even attempt to report the situation.” And, the Court further noted: “While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the Philippines, the same cannot render R.A. 9262 invalid.” Moreover, “[t]he mere fact that tha t the t he legislative legislative classification classification may result in actual actu al inequality inequality is not violative of o f the right to equal eq ual protection, protec tion, for every classification classification of persons perso ns or things for for regulation regu lation by law produces produce s inequality inequality in some degree, but the law is not thereby rendered invalid.” As for gender biases and prejudices, the Court observed that “[f]rom the initial report to the police through prosecution, trial, and sentencing, crimes against women are often treated differently and less seriously than other crimes.” Then, it added its own judicialmea judicial mea culpa – culpa – “Sadly, “Sadly, our o ur own court s, as well, well, have exhibited prejudices and biases against our women.” Thus, “[t]he enactment of R.A. 9262 aims to address addre ss the discrimination discrimination brought bro ught about a bout by biases and prejudices against women. wo men. As emphasized emphasized by the CEDAW [Convention on o n the Elimination Elimination of all Forms of Discrimination Discrimination Against Women] Wo men] Committee on the Elimination of Discrimination against Women, addressing or correcting discrimination through specific measures focused on women does not discriminate against men. Petitioner’s contention, therefore, that R.A. 9262 is discriminatory and that it is an “anti-male,” “husband-bashing,” and “hatemen” law deserves scant consideration. The Court also also pointed po inted out that t hat the “distinction “distinction between men and women is is germane to the purpose of R.A. 9262, which is to address violence committed against women and children, . . .” At the same time, “the application of R.A. 9262 is not limited limited to t o the existing e xisting conditions when it was promulgated, promulgat ed, but to future conditions as well, for as long as the safety and security of women and their children are threatened by violence and abuse. R.A. 9262 applies equally to all women and children who suffer  violence and abuse.” Finally, the Court dismissed the contention that R.A. 9262 singles out the husband or father as the culprit. “As defined above, VAWC V AWC may may likewise likewise be committed committed ‘against ‘aga inst a woman with whom the person pe rson has or had a sexual or dating relationship.’ Clearly, the use of the gender-neutral word ‘person’ who has or had a sexual or dating relationship with the woman encompasses even lesbian relationships.” Executive Secretary Secretary , 701 SCRA 269 (2013) 2.  Almario v. Executive

Here, the Court ruled that there was a violation violation of the equal protection pro tection clause when former former President Arroyo gave preferen pr eferential tial treatment treatment to certain persons relative relative to t o the t he national artist artist awards in disregard disregard J URISTS REVIEW CENTER of the rules, r ules, guidelines and policies policies of the National Commission Commission for Culture and the t he Arts and the Cultural Cultu ral Center of the Philippines as to the selection of the nominees for conferment of the Order of National Artists. Such guidelines and policies proscribed her from having a free and uninhibited hand in the BARdisregard REVIEW 2017 conferment of the said award. awa rd. The manifest of the rules, guidelines guidelines and processes proce sses of the NCCA and the CCP was an arbitrary act which unduly favored certain nominees, and that the conferment of the Order of National Artists on them was therefore made with grave abuse of discretion.

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 Serrano v. Gallant Maritime Services, Services, Inc. Inc. , 582 SCRA 254 (2009) 3.  Serrano

At issue here is the constitutionality of the vis-à-vis of the 5 th  paragraph of §10 R.A. No. 8042 A Library Of Liberties last clause An Arsenal Of Arms (Migrant Workers and Overseas Filipinos Act of 1995). The 5th  paragraph provides: “In case of 

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termination of overseas employment employment without just, valid or authorized cause cau se as defined defined by law law or contrac co ntract, t, the workers wo rkers shall be entitled to the t he full reimbursement of his placement placement fee with interest o f twelve percent (12%) per p er annum, plus his his salaries for the unexpired port p ortion ion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less. ” Does this violate the guarantee of  equal protection among OFWs? Yes. The Court noted that “[t]he enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their  employment periods, in the process pro cess singling out  one  one category cat egory whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while while sparing the other o ther catego ca tegory ry from such prejudice, simply simply because the latter’s latt er’s unexpired contract co ntractss fall short of one year.” The Court further observed that “the subject clause creates a sub-layer of  discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts cont racts shall be covered by the subject clause, and their t heir monet monetary ary benefits benefits limited limited to their t heir salaries salaries 71 for three months only.”  Mosqueda v. Pilipino Banana Growers & Export Association, Association, Inc ., – SCRA – (G.R. Nos. 4.  Mosqueda 189185 and 189305, 16 August 2016)

In regard to the ban imposed by the City City of Davao on aerial ae rial spraying spraying as an agricultural practice, pract ice, which the Court held to be invalid for being unreasonable as well as being violative of the Equal Protection Clause, the Court also discussed some significant concepts such as levels of scrutiny and overinclusiveness and overinclusiveness and underinclusiveness. underinclusiveness. “The reasonabil reaso nability ity of a distinction and sufficiency sufficiency of the justification justification given by the Go Government vernment for its conduct is gauged by using the means-end test . This test requires analysis of: (1) the interests of the  public  public that generally generally require its exercise, as distinguished distinguished from those of a particular particular class; and (2) the means employed that are reasonably r easonably necessary for the accomplishment accomplishment of the purpo se and are not unduly oppressive opp ressive upon indivi individuals. duals. To determine de termine the propriety propr iety of the classif classification, ication, courts cour ts resort to t o three levels of scrutiny, viz: the rational scrutiny, scrutiny, intermediate scrutiny  scrutiny  and  strict scrutiny. scrutiny. The rational basis  scrutiny (also  scrutiny (also known as the rational relatio relation n t est or rational rat ional basi basiss test) demands that the classifi classification cation reasonably relate to the legislative purpose. The rational basis test often applies in cases involving 71

 Congress seems to have wittingly or unwittingly defied the Supreme Court in enacting R.A. No. 10222 (approved on 8 March 2010). Section 7 of the new law, amended §10, ¶5 of R.A. 8042, by writing the same language invalidated in Serrano, Serrano, viz : “In case of  termination of overseas employment employment without just, valid or authorized cause as defined by law or contract, or any unauthorized deductions URISTS EVIEW ENTER from the migrant worker's salary, the worker shall be entitled to the full reimbursement if his placement fee and the deductions made with interest a t twelve percent (12%) p er annum, plus his salaries for t he unexpired portion of his employment contract contract or for three (3) months for every year of the unexpired term, whichever is less.”

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Serrano was Serrano was given a retroactive effect in other cases, like Pert/CP like  Pert/CPM M Manpower Exponent Co., Inc. v. Vinuya, Vinuya, 680 SCRA 284 (2012)  – applying retr oactively Serrano but Serrano but not R.A. 10022. The Court chose chose not to touch the issue of constitution constitution ali ty of the amendment  brought about by R.A. No. 10222, the Court Court saying, saying, “[w]hether “[w]hether or not R.A. 10022 is constitutional is not for for us to rule upon in the present case as this is an issue that is not squarely before us. In In other words, this is an issue that awaits its proper day in court; in the meanwhile, we make no pronouncement on it.” Subsequently, however, in Sameer Overseas Placement Agency, Inc. v. Cabiles , 732 SCRA 22 (2014), the Court took the bull by its horns:  “When a law is passed, this court awaits an actual case that clearly raises adversarial  positions in their proper context context before considering a prayer to declare it as unconstitutional. However, we are confronted with a unique Library  An Arsenal Of Arms situation. The law passed A incorporates theOf exactLiberties clause alreadyvis-à-vis declared as unconstitutional, without any perceived substantial change in the circumstances.” The Court went on to declare the amendment invalid.

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economics or social welfare, or to any other case not involving a suspect class. When the classification  puts a quasi-suspect quasi-suspect class class at a disadvantage, disadvantage, it it will will be be treated under intermediate intermediate or heightened heightened review. review. Classifications based on gender or illegitimacy receives intermediate 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 st rict scrutiny scr utiny review appli app lies es when a legislative legislative classification classification impermissibl impermissibly y 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 t hat it is the least restrictive means means to protect pro tect such interest.” interest.” As to whether a measure is too narrow, or to o broad, the Court had t his his to say: “The occurrence of   pesticide  pesticide drift drift is not limi limited ted to aerial sprayin spraying g 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 ordinance suffers suffers from from being being ‘underinclus ‘underinclusiv ive’ e’ because the classi classifi fication cation does not include 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 legislative end because it poorly poo rly serves the intended purpose pur pose of the law.” Further, “[a]side from its being being underinclusive, the assailed ordinance also tend to be ‘overinclusive’ because its impending implementation implementation will affect affect groups gr oups that t hat have no relation re lation to the t he accompli acco mplishment shment of the legislative legislative purpose. purp ose. Its implementation will unnecessarily impose impose a burden on o n a wider range of individuals than those included in the intended intended class based based on the purpose o f the law. It can be noted that t hat the imposition imposition of the ban is too  broad because the ordinance ordinance applies applies irrespective irrespective of the substance to be aerially aerially applied applied and irrespectiv irrespectivee of the agricultural activity to be conducted. . . . The imposition of the ban against aerial spraying of  substances other than fungicides and regardless of the agricultural activity being performed becomes unreasonable unreaso nable inasmuch inasmuch as it patently patent ly bears no relation to the t he purported purpo rted inconvenience, discomfort, health hea lth risk and environmental danger which the ordinance seeks to address.”

E. SEARCHES AND SEIZURES A citizen in a democratic and republican state, where sovereignty resides in the people and all government gover nment authority author ity emanates emanates from them, may consider it his birthright to be free from unwarranted and unreasonable unreaso nable intrusions into into his life. life. He would not want to have a Big Brother loo looking king over his shoulders and minding his affairs. The guarantee against unreasonable searches and seizures upholds that JURISTS REVIEW CENTER expectation of privacy. And, And, for starters, it requires that before any searches or seizures be had, the t he same must be, as a general rule, accompanied by a warrant, issued by one who is disinterested and detached from the task of law enforcement. But even in the issuance of such warrants by a judge, the magistrate 2017 grounds. He must have probable cause AR R is not that free to simply issue it for no B reason atEVIEW all or on flimsy for the t he same, which he must determine det ermine personally by carefully examini examining ng the complainant, c omplainant, his witnesses and other supporting documents. Further, reasonableness also goes to the manner of serving and executing it. Accordingly, not because one is armed with a warrant that he would now have the perfect right to simply barge into houses or dwellings like the gestapo. He must abide by the “knock and announce” procedure.72 As much as possible, he must still do it in a civilized manner, unless his life or 

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safety may be in danger, or the evidence would likely be destroyed by any delay. The requirement of o f a search warrant being a general rule, it necessarily follows follows that some so me exceptions would have to be accommodated, exceptions which are better understood when seen in the context in which they developed, such as search incident to a lawful arrest, arrest , search of o f moving moving vehicles, the plain view view doctrine, and, lately, lately, airport searches. In regard rega rd to warrantless warrantless arrests, there are the in flagrante delicto, delicto, “hot pursuit” and escaped-prisoners exceptions. Here, whether in cases of in flagrante delicto o delicto orr hot   pursuit , “[i]n both instances, the officer’s person officer’s  personal al knowledge of the fact of the commission of an cr imee while under  offense is absolutely required. Under paragraph (a), the officer himself witnesses the crim 73  paragraph (b), (b), he knows for knows for a fact that a crime has has just been committe committed.” d.”  As for for hot pursuit, the Court has pointed pointed out that “[f]rom the current phraseology of the rules on warrantless warrantless arrest, it appears that for   purposes of Section Sec tion 5(b), the followi following ng are the notable changes: first, the contemplated contemplated offense offense was qualified qualified by the word wo rd ‘just,’ connoting co nnoting immediacy; immediacy; and second, the warrantless warr antless arrest of o f a person sought to be arrested should be based on probable cause to be determined by the arresting officer based on his  personal knowledge knowledge of facts and circumstances circumstances that the person to be arrested has committed committed it.”74 In considering the things and circumstances relative to the question of whether a search or seizure was in accordance with the Constitution, one must always remember that the touchstone is reasonableness. 75 And that is not something cast in rigid and inflexible forms and shapes. “[T]he Fourth Amendment76 does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules can capture the ever changing complexity of human life.”77 It has also been stated that a search warrant proceeding is, in no sense, a criminal action or the commencement of a prosecution. The proceeding is not one against any person, but is solely for the discovery and to get po ssession of personal persona l property. prop erty. It is a special and peculiar peculiar remedy, drastic drast ic in in nature, and made necessary because of public necessity. It resembles in some respect what is commonly known as John Doe proceedings. Further, private complainants can participate in these proceedings – they may appear, participate and file pleadings to maintain, inter alia, alia, the validity of the search warrant issued by the court and the admissibility of the properties seized in anticipation of a criminal case to be filed. As for the search warrant itself, the Court said that it is a legal process which has been likened to a writ of  discovery employed by the State to procure relevant evidence of crime. It is in the nature of a criminal  process, restricted restricted to cases of public public prosecutions. A search warrant is is a police police weapon, issued issued under the 78  police power. In regard to anticipatory warrants warrants –  – where they are applied for even before the contraband is yet to  be delivered delivered to the place place to be searched – the U.S. Supreme Court declared declared inUnited inUnited States v. Grubbs, Grubbs, 547 U.S. U. S. 90 9 0 (2006): “Because the probabl pro bable-cause e-cause requirement requirement looks to whether evidence evidence will will be found when the search is conducted , all J warrants are, a sense,C‘anticipatory.’ In the typical case where the Rin URISTS EVIEW ENTER  police seek permissi permission on to search search a house for an item they believe believe is already located there, the magistrate’s magistrate’s determination that there is probable cause for the search amounts to a prediction that the item will still 73 74 75

BAR REVIEW 2017  People v. Villareal , 693 SCRA 549 (2013)  Pestilos v. Generoso, Generoso , 739 SCRA 337 (2014)

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 “[B]ecause the ultimate touchstone of the Fourth Amendment Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” ( Brigham City v. S tuart , 547 U.S. 398 [2006]) 76 77 78

 This is the American counterpart to Art. III, §2 of the Philippine Constitution.  Justice Breyer, concurring in Georgia Randolph, Randolph, 547 U.S. 103 (2006) vis-à-vis A Library Of v.Liberties  An United Laboratories, Inc. v. Isip, Isip, 461 SCRA 574 (2005)

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 be there when the warrant is executed.” In that sense, anticipatory anticipatory warrants warrants are no diff different erent in principle principle from ordinary warrants. They The y also also require the magistrate magistrat e to determin deter minee (1) that it is now probable that probable that (2) contraband, evidence of a crime, or a fugitive will be on be on the described described premises (3) when the warrant is executed. “In other words, for a conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement of probable cause, two prerequisites of probability must be satisfied. It must  be true t rue not only that if  the   the triggering condition occurs ‘there is a fair probability that contraband or  evidence of a crime will will be found in a particular place,’ . . . but also t hat there the re is probable cause to t o believe the triggering condition will occur  will  occur .” .” With regard to warrantless searches, specially of moving vehicles (and their use for smuggling), the following passage from People from People v. Lo Ho Wing , 193 SCRA 122 (1991),79 edifies:  edifies: “[T]he rules r ules governing search and seizure have over the years been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge –  a requirement which borders on the impossible in the case of smuggling effected by the use of a moving vehicle vehicle that can t ransport contraband from one place to another with impunity.” impunity.” Nevertheless, Nevertheless, there t here must still be probable cause to justify such warrantless search of a vehicle. Directly related to the right against unreasonable searches and seizures is the right to privacy. In this regard, the t he Court said said in Sabio v. Gordon, privacy are recognized and Gordon, 504 SCRA 704 (2006): “Zones of privacy  protected in our laws. laws. Within Within these zones, any form of intrusion intrusion is is imperm impermiss issibl iblee unless unless excused excused by law and in accordance with customary legal legal process. The meticulous meticulous regard we accord to these zones arises not only o nly from our conviction that t hat the right to privacy is a ‘constitutional ‘constitutional right ’ and ‘the right most valued  by civilized men,’ men,’ but also from our adherence to the Universal Declaration of Human Rights which mandates that, ‘no ‘no one shall be subjected to arbitrary interference with with his privacy’ privacy’ and ‘everyone ‘everyone has the right to the protection of the law against such interference or attacks.’” attacks.’” 1.  Laud v. People, 741 SCRA 239 (2014) Are “human remains” personal remains” personal property which property which could be the subject of a search warrant? Yes, the Court said. In a case involving alleged summary executions of six victims by the Davao the Davao Death Squad , the RTC issued a warrant for the search of the remains in three caves in Davao. The warrant was sought to be quashed, among other grounds, on the claim that human remains are not personal property. The Court said that “personal property” in the context of §3, Rule 126 of the Rules of Court refers to the thing’s mobility, mobility, and not to its capacity to be owned or alienated  by a particular person. perso n. Human remains can be transported from place to place, and they qualify under the phrase “subject of the offense”given that they prove the crime’s corpus delicti. delicti. Accordingly, they may be valid subjects of a search warrant.

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2.  People v. Cogaed , 731 SCRA 427 (2014) On silence or lack of protest as a possible manifestation of consent or waiver, the Court gave these BAR REVIEW 2017 guidelines. “Cogaed’s silence or lack of aggressive objection was a natural reaction to a coercive environment brought about by the police officer’s excessive intrusion into his private space. The  prosecution and the poli po lice ce carry the burden of o f showing showing that the waiver waiver of a constitutional right right is one which is knowing, intelligent, and free from any coercion. In all cases, such waivers are not to be  presumed.” And, in a warning warning akin to Miranda to Miranda waiver,  waiver, the Court Cou rt said: “For a valid waiver waiver by the accused

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of his or her constitutional right, it is not sufficient that the police officer introduce himself or herself, or   be kno wn as a police officer. officer. The police police officer officer must also inform the person to t o be searched that any inaction on his or her part will amount to a waiver of any of his or her objections objections that the circumstances circumstances do not amount to t o a reasonable search. searc h. The police officer must communicate communicate this clearly and in in a language known to the person who is about to waive waive his or her constitutional rights. rights. There must be an assurance given to the police officer that the accused fully understands his or her rights. The fundamental nature of a person’s constitutional right to privacy requires no less.”80 Further, for a valid stop and frisk, the policeman undertaking it must have made the personal observation observat ion about the suspicious movements of the suspect, not no t on the information supplied by somebody else. As the Court framed the issue: “The police officers identified the alleged perpetrator through facts that were not based on their personal knowledge. The information information as to the t he accused’s whereabouts was sent through throu gh a text message. The accused acc used who never acted act ed suspicious was identified identified by a driver. The bag that allegedly contained the contraband was required to be opened under intimidating circumstances and without the accused having been fully apprised of his rights. This was not a reasonable search within the meaning of the Constitution. There was no reasonable suspicion that would allow a legitimate ‘stop and frisk’ action.” The Court explained that “stop and frisk” searches are conducted to prevent the occurrence of a crime. “‘Stop and frisk’ searches (sometimes referred to as Terry  Terry  searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of  offenses. However, However , this should be balanced balanced with the need to protect prot ect the privacy p rivacy of citizens in in accordance accord ance with Article III, Sect ion 2 of the Constitution. Const itution. The T he balance lies lies in the concept of o f ‘suspiciousness’ ‘suspiciousness’ present in the situation where wher e the police p olice officer finds finds himself himself or herself in. This may be undoubtedly undou btedly based on the t he experience of the police officer. Experienced police officers have personal experience dealing with criminals criminals and criminal criminal behavior. Hence, Hence , they should have the ability ability to discern – based o n facts that they themselves observe – whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.” In this particular case, Cogaed was simply a passenger carrying a bag and traveling on board a jeepney. There was nothing suspicious, moreover, criminal, about riding a jeepney or carrying a bag. The assessment assessment of o f suspicion suspicion was not made by the t he police po lice officer officer but by the jeepney driver. It was the t he driver who signalled signalled to the t he police that Cogaed was “suspicious.” “suspicious.” 3.  Homar v. People, 768 SCRA 584 (2015) Where there is no arrest, there could be no justification for an incidental search. Here, the petitioner  was allegedly arrested arrest ed for jaywalking jaywalking but the same was not duly proven. “Clearly, no arrest preceded prec eded the JURISTS REVIEW CENTER search on the person of the petitioner. When Tan and Tangcoy allegedly saw the petitioner jaywalking, they did not arrest him but accosted acco sted him and pointed to him the right place for crossing. In fact, ac cording cord ing to the RTC, Tan and Tangcoy ‘immedi ‘immediately ately accosted him and told him to cross cro ss [at] the designated designated area.’ BAR REVIEW 2017 Tan and Tangcoy did not intend to bring the petitioner under custody or to restrain his liberty. This lack  of intent to arrest him was bolstered by the fact that there was no criminal charge that was filed against the petitioner for fo r crossing a ‘no jaywalking’ jaywalking’ area. From Fro m Tan’s testimony, the intent intent to arrest ar rest the petitioner  pet itioner  only came after they allegedly confiscated the shabu the shabu.” .”

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4.  People v. Breis, 767 SCRA 40 (2015) There is lessened expectation of privacy in a bus or other forms of public transportation. “The bus is public transportation, and is open to the public. The ex pectation of privacy privacy in relation relation to the constitutional right against unreasonable searches in a public bus is not the same as that in a person’s dwelling. In fact, at that point in time, only the bus was being searched, not Yumol, Breis, or their   belongings,  belongings, and the search of moving moving vehicles vehicles has been upheld. Moreover, Mo reover, appellants appellants are not in any  position to claim claim protection of the right right against against unreasonable unreasonable searches searches as to the warrantles warrantlesss search of the  bus.” And, And, in regard to leaving leaving things things behind, behind, the Court po inted out: “A further point. point. Appellants Appellants each attempted to alight from a departing bus, leaving behind their belongings. They may be deemed to have abandoned abandone d the box in their flight. flight. A thing thing is considered abandoned abandone d and possession there thereof of lost if the spes recuperandi (the recuperandi (the hope of recovery) is gone and the animus revertendi (the intention of returning) is finally given up. That appellants got up to leave a departing bus without bringing their box points to the absence of both spes both spes recuperandi recuperandi and animus revertendi. revertendi. Indeed, although their flight was thwarted by the PDEA agents, agent s, both appellants intended to leave the box behind without ret urning for for it. Abandonment has the effect of converting a thing into res nullius.” nullius.” In thi t hiss regard, “[i]n “[i]n the United States, Stat es, abandoned articles, such as those thrown away, are considered bona vacantia, vacantia, and may be lawfully searched and seized by law enforcement authorities.” Thus, “[a]pplied analogously, there is no objectionable warrantless search and seizure of the box of marijuana abandoned in the bus by appellants.” 5.  Dela Cruz v. v. People, 779 SCRA 34 (2016) On searches conducted in ports, “[r]outine baggage inspections conducted by port authorities, although done without search warrants, are not unreasonable searches per se. Constitutional provisions provisions  protecting privacy should should not be so literally literally understood so as to deny reasonable reasonable safeguards to ensure the safety of the traveling public.” The Court also held that “[w]hile there is a distinction between port  personnel and port po rt police off o fficers icers in in this case, considering considering that port po rt personnel are not necessarily necessarily law law enforcers, both should be considered agents of government under Article III of the Constitution. The actions of port personnel during routine security checks at ports have the color of a state-related function.” function.” Further, the Court Co urt distinguis distinguished hedconsented consented searches from searches from customs search. search. “Customs searches, as exception to the requirement of a valid search warrant, are allowed when “persons exercising police authority under the customs law . . . effect search and seizure . . . in the enforcement of customs laws.” The requirements requ irements for a valid valid customs custo ms search are: (1) the person p erson conducting co nducting the search sea rch is exercising police authority under customs law; (2) the search is for the enforcement of customs law; and (3) the place searched is not a dwelling place or house. v. People, 730 SCRA 655 (2014) 6.  Dela Cruz v.

JURISTSDrugs REVIEW C, ENTER In Social Justice Society v. Dangerous Board  570 SCRA 410 (2008), the Court, while upholding the validity of R.A. No. 9165’s mandatory random and suspicionless drug testing of students and employees, declared unconstitutional such drug testing for those charged with crimes punishable by AR REVIEW 2017 more than six years’ years’ imprisonment. imprisonment. TheB Court Co urt held he ld then that “[t]o impose mandato ry drug testing test ing on the accused is a blatant attempt a ttempt to harness a medical medical test as a tool t ool for criminal 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 Consti Co nstitution. tution. Worse still, still, the accused accu sed persons are veritably veritably forced to incriminate themselves.”

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he be forced forced to undergo drug testing? The Court said, NO! “The “The drug test in Section 15 does not cover   persons apprehended or arrested for any unlawful act, but only f or unlawful acts listed under Article apprehended or arrested’ cannot literally  II of R.A. 9165.” 9165.” The Court explained that “‘[a] person apprehended mean any person apprehended or arrested for any crime . The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends persons personsarrested or apprehended for unlawful acts listed under Article II   of the law.” Otherwise, to make the “phrase ‘a person apprehended or arrested’ in Section 15 applicable to all persons arrested or apprehended for unlawful acts, not only o nly under R.A. 9165 but for all other crimes, is tantamount tantamount to t o a mandatory mandatory drug testing of all all  persons apprehended or arrested for any crime. crime. To overextend o verextend the application application of this provision provision would would run counter to our pronouncement inSocial in Social Justice Society v. Dangerous Drugs Board and Philippine  Drug Enforcement Agency, Agency, . . .”  Maryland v. King , 569 U.S. ___ (No. 12-207, 3 June 2013) 7.  Maryland

In this case, King King was arrested on o n first- and second-degree assault charges. During the processing processing of  his case through a facility, booking personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act). The DNA matched an unsolved 2003 rape. The accused was then charged with that crime. He was eventually convicted for the rape in spite of his move to suppress the DNA match on Fourth Amendment Amendment grounds. The U.S. Supreme Court held that when officers officers make make an arrest supported by probable probable cause to t o hold for a serious offense offense and bring bring the suspect to t o the station st ation to  be detained in in custody, taking and analyzi analyzing ng a cheek swab of the arrestee’s arrestee’s DNA is, is, like like fingerprin fingerprinting ting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.81 v. North Dakota, 579 U.S. ___ (No. 14-1468, 23 June 2016) 8.  Birchfield v.

Could a person arrested for drunk driving be made to undergo a warrantless breath test  or  or taking of a blood sample? sample? The Court held that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Why the difference? Breath tests do not implicate implicate significant significant privacy p rivacy concerns. The physical intrusion intrusion is almost negligible. negligible. The T he same could co uld not be said said about blood blood tests. They T hey require “piercin “piercing g the skin”and skin”and extract a part pa rt of o f the subjects’s body, and thus are more significantly more intrusive than blowing into a tube. And, on the so-called implied consent laws  laws  which require drivers to submit to blood alcohol concentration (BAC) tests, t he Court said said that its prior prior opini o pinions ons have referred approvingly approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. comply. However, it is another matter for a State no t only o nly to insist insist upon an intrusive intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. “There must be a limit JURISTS REVIEW CENTER to the consequences to which which motorists may be deemed to have consented by virtue virtue of o f a decision decision to drive drive on public roads.” 9. United States v. Jones , 565 U.S. ___R (No. 10-1259, 23 January 2012) BAR 2017 EVIEW This case ill illustrates ustrates once more the adjustments adjustments and adaptations that would have to be done in regard to constitutional guarantees applied applied in relation relat ion to modern law-enforcement law-enforcement amenities, amenities, such as Global Position System (GPS) tracking device. The U.S. Supreme Court held that the attachment of such a

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 DNA testing is also subject to the requirement of reasonableness. Thus, in paternity suits, before a man may be required to vis-à-vis A requiring Library Liberties OforArms undergo such a test, the one himOf to do so must be able to present  An  primaArsenal facie evidence facie  evidence establish a reasonable possibility of paternity. (See Lucas (See Lucas v. Lucas, Lucas , 650 SCRA 667 [2011])

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device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search within the meaning of the Fourth Amendment. It is also said that it is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. The case also discussed some legal legal developments relative to the Fourt h Amendment Amendment protection. prot ection. “The text of o f the Fourth Fourt h Amendment Amendment reflects its its close connection to property, p roperty, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the  phrase ‘in ‘in their their persons, houses, papers, papers, and effects’ effects’ would have have been been superfluous. superfluous. Consistent Consistent with with this understanding, underst anding, our Fourth Fo urth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo century. Kyllo v.  v. United States, States, 533 U. S. 27, 31 (2001); . . . Thus, in Olmstead  v. United States, States, 277 U. S. S . 438 (1928), we held held that wiretaps attached att ached to telephone wires wires on the public streets did not constitute a Fourth Amendment search because ‘[t]here was no entry of the houses or  offices of the defendants,’. . . Our later cases, of course, have deviated from that exclusively  property-based approach. In Katz  In Katz  v.  v. United States, States, 389 U. S. 347, 351 (1967), we said that ‘the Fourth Amendment protects protec ts people, not places,’ p laces,’ and found a violation violation in attachment of an eavesdropping eavesdrop ping device device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person's ‘reasonable expectation of privacy.’” 10.

Writ of Habeas of Habeas Data

To provide further protection to the people against assaults on their right to privacy, the Supreme Court has also come up with the Rule on the Writ of Habeas of Habeas Data. Data.82 This is a remedy available to any  person whose right right to privacy in in life, life, libe liberty rty and security security is violated violated or threatened by an unlawful unlawful act or  omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of  the aggrieved party. Reliefs may include the enjoining of the act complained of, or the deletion, destruction, or rectificati rectification on of the t he erroneous data da ta or o r information. information.83 In Manila In Manila Electric Company v. Lim, Lim, 632 SCRA 195 (2010), the t he Court held that the writ could not  be used to thwart the exercise exercise of management management prerogative prerogative to transfer transfer employees. employees. The “habeas data rule, data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right to life, liberty and security against abuse in this age of information technology. It bears reiteration that like the writ of amparo, amparo, habeas data was data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations ofJURISTS or threats R toEVIEW the rights to life, liberty or security as a remedy CENTER independently from those provided under prevailing Rules.” Further, “the writs of amparo and habeas data will will NOT issue to protect purely property or commercial commercial concerns concerns nor when the gro unds invoked invoked in support of the petitions therefor therefor are a re vague oR r doubtful. Empl oymentt constitutes a pro perty right under  BARor 2017 EVIEW Employmen the context of o f the due process clause of the Constitution.” 11.

Gamboa v. Chan , 677 SCRA 385 (2012)

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 Effective 2 February 2008, pursuant the A.M. No. 08-1-16-SC (22 January 2008). vis-à-vis A Library OftoLiberties  An Arsenal  See also the Writ of Amparo, discussed in relation to the Writ of  Habeas Corpus. Corpus.

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maintaining a private army or PAG (Private Army Group) in a report it submitted to the  Zeñarosa Commission, Commission , a body created by then President Arroyo to investigate the existence of PAGs with a view to eliminating them before the 10 May 2010 elections and dismantling dismantling them permanently in the future. Portions of t he confidential confidential report were leaked to the press and Gamboa Gamboa was mentioned in both broadcast and print media. She claimed that she was publi pu blicly cly tagged as someone so meone who maintains a PAG on the basis of the unverified information that the PNP-Ilocos Norte gathered and forwarded to the Zeñarosa Commission, and that her malicious or reckless inclusion in the list also made her, as well as her  supporters and other people identified with her, susceptible to harassment and police surveillance operations. Contending that her right to t o privacy was violated violated and her reputation reputat ion maligned maligned and destroyed, she then sought a writ of habeas data seeking data seeking the following reliefs: (a) destruction of the unverified reports from the PNP Ilocos Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c) rectification of the damage done to her honor; (d) ordering respondents to refrain from forwarding unverified reports against her; and (e) restraining respondents from making baseless reports. The Supreme Supr eme Court held that an individual’s individual’sright right to privacy must privacy must be balanced with the government’s interests, and if the latter is of legitimate, overriding and compelling importance, importance, then the individual’s claim to privacy must give way. In this particular instance, “the state interest of dismantling PAGs far  outweighs the alleged intrusion on the private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was pursuant to a lawful mandate.” After noting that the issuance of Administrative Order No. 275 creating the Zeñarosa the Zeñarosa Commission Commission “articulates a legitimate state aim, which is to investigate the existence of PAGs with the ultimate objective of dismantling them permanently,” the Court proceeded to hold that “the forwarding of  information information by the PNP to the t he Zeñarosa Commi Co mmission ssion was not an unlawful unlawful act that violated violated or threatened her right to privacy in life, liberty or security. The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically created for the purpose of investigating the existence existence of these notorious noto rious groups.” As for the writ of habeas data, data, the Court came up also with edifying elucidations. Said the Court: “The writ of habeas data is an independe independent nt and summary remedy designed to protect pro tect the t he image, image, privacy, honor, honor , information, and freedom freedo m of information information of an indiv individual, idual, and to provide pro vide a forum to enforce one’s o ne’s right to the t he truth and to informati informational onal privacy. privacy. It seeks to protect a person’s right right to control information information regarding regard ing oneself, particularly in in instances in which which such information is being collected thro ugh unlawful means in in order to t o achieve unlawful ends. It must be emphasized e mphasized that in order or der for the t he privilege privilege of the writ to be granted, there must exist a nexus between the right right to privacy on the one hand, and the right to life, life, liberty liberty or security on the other.” o ther.” Then, t aking note of the novelty novelty of the remedy, remedy, the Court pointed out that “[t]he notion of informational privacy is still developing in Philippine law and jurisprudence. JURISTS REVIEW ENTER Considering that even the Latin American our own Rule on the t he Writ of Habeas of Habeas habeas data, data, onCwhich  Data is rooted, finds finds its origins origins from the European Europe an tradition of data protection, pro tection, this Court can be guided  by cases cases on the protection prot ection of personal data decided by the European Court of Human Human Rights Rights (ECHR). 84 B AR REVIEW 2017 Of particular note is Leander is  Leander v. Sweden,  in which the ECHR balanced the right of citizens to be free from interference in their private affairs with the right of the state to protect its national security.”

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F. PRIVACY OF COMMUNICATIONS Even without the t he explicit explicit guarantee guarant ee of the privacy of communications and correspondenc corre spondencee in the U.S. Constitution, Constitu tion, the same sa me privilege privilege was still considered available, pursuant available, pursuant to the Fourth the Fourth Amendment .85 This is because, wiretapping, or electronic eavesdropping, is also a form of a seizure, an intrusion into one’s sacred private precincts, which when not previously authorized by a judge, or demanded by exigencies, would be considered unreasonable and thus violative of a person’s right to be left and let alone. Spying on a person’s correspondence is also a form of unwarranted incursion into his private world. It has likewise been held that this constitutional protection is available even in highly personal relationships, such as in marital spats between Lothario-husbands and raging jealous wives.86 Related to privacy of communications is the Anti-Wiretapping Act (R.A. 4200) which the Court has declared as prohibiting the secret recording of conversations either through wiretapping87  or tape recorders. This means that whenever a recording is made of one’s conversations, the same must be with the knowledge and consent of everyone involved. involved.88 However, this does not apply if the conversation is not intended to be private be  private,, such as an altercation where the participants do not really care who are 89 listening.  Also, overhearing by means of a telephone extension is not covered by R.A. No. 4200, however, so held the Court in Gaanan v. Intermediate Appellate Court , 145 SCRA 112 1986). (But nowadays, with the proliferation of cellphones, who still needs a telephone extension?)  Now, of more immedi immediate ate concern is the convenien convenience ce – and danger – in in the use use of the internet internet and and cell cell  phones. 1. Vivares v. St. Theresa’s College , 737 SCRA 92 (2014) The Court asked: “The question now though tho ugh is up to what extent e xtent is the right to privacy protected in OSNs [onli [o nline ne social netwo networks]?” rks]?” In this case, graduating high school students which had revealing picture  posts – scantily scantily clad – in Facebook  in  Facebook   cost them their participation in the commencement exercises. Claiming that their right to privacy was violated, they availed of the remedy of habeas data. data. In the  process of resolving resolving the issue, issue, the Court provided a sort of a tour into the concept of habeas data, data,  privacy and Onlin Onlinee Social Networks. The Court stressed that habeas data “was data “was designed to safeguard individual freedom from abuse in the information age.’ age. ’ It is a prote pr otection ction against ag ainst unlawful acts or o r omissions omissions of public officials officials and of private individuals or entities engaged in gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the business of collecting or storing data. . . . It does not necessarily mean that the activity must be done in pursuit of a business. What matters is thatJthe person or entity must gathering, collecting or storing said data REVIEW Cbe URISTS ENTER or information about the aggrieved party or his or her family. Whether such undertaking carries the element of regularity, as when one pursues a business, and is in the nature of a personal endeavour, for  any other reason re ason or even for no reason at immaterial im material 2017 and such will will not prevent the writ from fro m getting Ball, ARisR EVIEW to said said person or o r entity.” 85 86 87 88 89

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

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As for the concept of privacy of privacy,, it “has, through time, greatly evolved, with technological techno logical 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, Privacy, where he explained explained the three strands of the right to  privacy,  privacy, viz: (1) locational locational or situational privacy; privacy; (2) inform informational ational privacy privacy;; and (3) decisional decisional privacy. privacy. Of the three, what is relevant relevant to the t he case at bar is the right to informational privacy  –– usually defined defined as the right of individuals to control information about themselves . With the availabi a vailability lity of numerous avenues for information gathering and data sharing nowadays, not to mention each system’s inherent vulnerability to attacks and intrusions, there is more reason that every individual’s right to control said flow of information should be protected and that each individual should have at least a reasonable expectation of privacy in cyberspace.” As for online networks, “[b]riefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to other members of the same or dif d ifferent ferent social media media platform platform through the sharing sharing of o f statuses, photos, phot os, videos, videos, among others, depending depending on the t he services services provided by the site. It is akin to having a room filled with millions of personal bulletin boards or ‘walls,’ the contents of which are under the control of each and every user. In his or her bulletin board, a user/owner can post anything  –– from text, to pictures, to music music and videos –– access to which which would depend on whether he or she allows one, some or all of the other users to see his or her posts. Since gaining popularity, the OSN  phenomenon  phenomenon has paved the way to the creation of o f various social networking sites, includi including ng the t he one o ne involved involved in the case at bar, www.facebook.co m (Facebook), which, which, according to its developers, developers, people peo ple use ‘to stay connected connec ted with friends and family, family, to discover what’s what ’s going on in in the world, and to share and express what matters to them.’” Facebook, it noted, no ted, has provided for different different privacy privacy tools designed designed to regulate the accessability of a user’s profile as well as information uploaded by user. “The foregoing are  privacy tools, availabl availablee to Facebook users, designed designed to set up barriers barriers to broaden or limi limitt the t he visibi visibili lity ty of his or her specific profile content, statuses, and photos, among others, from another user’s point of  view. In other words, Facebook extends its users an avenue to make the availability of their Facebook  activities reflect their choice as to ‘when and to what extent to disclose facts about [themselves] – and to put others in the position of receiving such confidences.’ Ideally, the selected setting will be based on one’s desire to interact interact with others, coupled with the opposing need to withhold withhold certain information information as well as to regulate the spreading of his or her personal information.” And what is the relevance of the privacy settings to the case? “Without these privacy settings, respondents’ contention that there is no reasonable reasonable expectation of o f privacy privacy in Facebook would, in context,  be correct. correc t. However, such is not the case. It is through the availability of said privacy tools that many 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 . This, however, does not mean that any Facebook user automatically a protected expectation of privacy in all of his or her  JURISTS Rhas CENTER EVIEW Facebook activities. Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this t o keep certain this case the children of petitioners, pet itioners, manifest the intention to posts private, through the employment to prevent access thereto or to limit its BARofRmeasures EVIEW 2017 visibility . And this intention can materialize in cyberspace through the utilization of the OSN’s privacy tools. In other words, utilization of these privacy tools is the manifestation, in cyber world, of the user’s invocation of his or her right to informational privacy .”

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The Court concluded: “Considering that the default setting for Facebook posts is ‘Public,’ it can be surmised surmised that the photographs photo graphs inOf question questi on were viewable viewab le to An everyone on Facebook, Faceboo k, absent any proof that vis-à-vis A Library Liberties Arsenal Of Arms  petitioners’  petitioners’ children children positively positively limi limited ted the disclosure disclosure of the photograph. If such were the case, they cannot

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invoke the protection attached to the right to informational privacy. It is well to emphasize at this point that setting set ting a post’s or pro file file detail’s privacy to ‘Friends’ is no assurance that t hat it can no longer be viewed  by another user who is not Facebook friends friends with with the source ofthe of the content.” The long and short of o f it it –  even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends, respondent STC can hardly be taken to task for the perceived privacy invasion since it was the minors’ Facebook Faceboo k friends friends who showed the pictures pictu res to school scho ol officials. officials. Respond Respondents ents were mere recipients of what were posted. po sted. They The y did did not resort reso rt to any unlawful means of gathering the information as it was voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. The Court concluded: “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 aff a ffect, ect, if indiscrimin indiscriminately ately circulated, the reputatio repu tation n of the minors minors enroll enro lled ed in a conservative conservat ive institutio institution. n. However, the t he records are bereft of any evidence, evidence, other than bare assertions that they utilized utilized Facebook’s  privacy settings to make the photos vis visibl iblee only to them or to a select few. Without Without proof that they placed the photographs phot ographs subject of this case within within the ambit ambit of their protected protect ed zone of o f privacy, privacy, they cannot now insist insist that they have an expectation o f privacy privacy with respect to the photographs photo graphs in question.” question.” California, 573 U.S. ___ (No. 13–132, 25 June 2014) 2.  Riley v. California

May the police, without a warrant, search digital information information on a cell phone seized from an arrest ed  person? The The answer, answer, as a rule, is no. Cell phones impl implicate icate extensive extensive privacy interests interests which which necessi necessitate tate the guiding guiding hand of o f a warrant. The Court reminded reminded everyone again that “the ultimate ultimate touchstone t ouchstone of o f the Fourth Amendment is ‘reasonableness’” and that “[w]here a search is undertaken by law enforcement officials officials to discover evidence o f criminal criminal wrongdoing, . . . reasonableness reasona bleness generally generally requires the obtaini obt aining ng of a judicial warrant.” warrant. ” The justification justification for fo r physical searches incident to lawful arrest – o fficer fficer safety and evidence preservation – could not be extended to search of digital data in cell phones. “Cell phones, . . . place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search.” For one, o ne, “[d]igital “[d]igital data stored on a cell phone cannot cannot itself itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the  physical  physical aspects of a phone to ensure that it will will not not be used as a weapon — say, say, to determi det ermine ne whether  there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” As for evidence destruction unique to digital digital data – remote wiping  and  and data encryption90 – the Court held: “In any event, as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: J First, law enforcement officers can turn the phone off or remove its REVIEW C URISTS ENTER  battery. Second, Seco nd, if they are concerned about encryption encryption or o r other o ther potential po tential problems, problems, they t hey can leave a  phone powered on and place it in an enclosure that isolates isolates the phone from radio waves.” Moreover, “[t]o “[t]o the extent that law enforcement still has specific concerns about the potential loss of evidence in a BAR REVIEW 2017  particular  particular case, there remain remain more targeted ways to address those concerns. If the police police are truly confronted with a ‘now or never’ situation, — for example, circumstances suggesting that a defendant’s 90

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 Remote wiping occurs occurs when a phone, connected to a wireless network, receives a signal that eras es stored data. This can happen when a third party sends a remote signal or when a ph one is preprogrammed to delete data upon entering or leaving certain geographic areas (s o-called “geofencing”).

vis-à-vis A feature Library Liberties  An toArsenal Of Arms Encryption is a security that s Of ome modern cell phones use in addition password protection. When such phones lock, data  becomes protected by sophisticated encryption that renders a phone all b ut “unbreakab le” unless police know the pass word.

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 phone will be the ta rget of o f an immin imminent ent remote-wipe attempt at tempt — they may be able to rely on exigent circumstances to search the phone immediately.” While it is true that a person arrested has a reduced privacy interests, still “[t]he fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search ‘is acceptable solely because a person is in custody.’” Just to illustrate the wide difference between digital contents and physical objects, the Court came up with the following following observations: observations: “The United States Stat es asserts that a search of all data stored on a cell  phone is ‘materially ‘materially indis indistingui tinguishabl shable’ e’ from searches of t hese sort s of physical physical items. items. . . . That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of  getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, wallet, or o r a purse. A conclusion conclusion that inspecting inspecting the contents of an arrestee’s pockets pocke ts works no substantial substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension extension of that reasoning to digital data has to rest o n its own bottom.” And, if only to remind everyone of the world that we keep in our phones, consider these: “Cell phones differ in in both a quantitative quant itative and a qualitative sense from other objects that t hat might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, ca lendars, tape recorde rec orders, rs, libraries, diaries, albums, albums, televisions, maps, or newspapers. newspap ers. One of o f the most notable no table distinguishing distinguishing featur features es of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities realities and tended as a general matter matter to t o constitute co nstitute only a narrow intrusion intrusion on o n privacy.” privacy.” Moreover, Moreo ver, “the  possible  possible intrusion intrusion on privacy is not physical physically ly limi limited ted in the same same way when it comes comes to cell cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. . . . We expect that the gulf between physical practicability and digital capacity will only continue to widen in in the future.” In this regard, “[t]he sto rage capacity cap acity of cell phones has several interre interrelated lated consequences consequ ences for privacy. First, a cell phone collects in one place many distinct types of information — an address, a note, a  prescription,  prescription, a bank statement, a video — that reveal much more in combination combination than any isolated isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than  previously  previously possible. possible. The sum of an individual individual’s ’s private life life can be reconstructed reco nstructed through a thousand  photographs labeled labeled with dates, locations, locations, and descriptions; descriptions; the same same cannot cannot be said said of a photograph or  J R C URISTS EVIEW ENTER two of o f loved loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the  phone, or even even earlier. earlier. A person might might carry in his his pocket a sli slip p of paper remindi reminding ng him to call Mr. Jones; he would not carry a record of all his his communicati communications ons with Mr. Mr . Jones for the past pa st several months, months, as B R 2017 AR EVIEW would routinely be kept on a phone. “Finally, “Finally, there is an element of pervasiveness that characterizes charact erizes cell phones but not physi p hysical cal records. record s. Prior to t o the digital d igital age, people peo ple did not typically carry a cache of sensitive personal information information with them t hem as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. . . . A decade ago police officers searching an arrestee might have occasionally stumbled across a Of highly personalvis-à-vis item such An as aArsenal diary. . .Of . Today, A Library Liberties Armsby contrast, it is no exaggeration to say that many of the more than 90% of American American adults who own a cell phone keep on on

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their person a digital record of nearly every aspect of their lives — from the mundane to the intimate.” And talking of one’s whereabouts, “GPS monitoring generates a precise, comprehensive record of  a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” As for apps, or mobile application software, they “offer a range of  tools to ols for managing detailed information information about all aspects aspect s of a person’s life. life. There are apps for Democratic Democ ratic Party Part y news and Republican Republican Party Part y news; apps for alcohol, drug, dr ug, and gambl ga mbling ing addictions; apps for sharing  prayer requests; apps for for tracking pregnancy symptoms; symptoms; apps for planni planning ng your budget; apps for every conceivabl conce ivablee hobby or pastime; p astime; apps for improving your romantic life. life. There are a re popular po pular apps for fo r buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase ‘there’s an app for that’ is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.” How has the world been transformed in the relatively few years? “In 1926, Learned Hand observed (in an opinion later quoted in Chimel ) that it is ‘a totally different thing to search a man’s pockets and use against him what they contain, cont ain, from ransacking his house for everything which may incrimin incriminate ate him.’ him.’ . . . If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form form many sensitive records record s previously found in the home; ho me; it also contains cont ains a broad array of private information never found in a home in any form — unless the phone is.” How then is the government to response to criminal enterprise facilitated or enhanced by the use of  cell phones? “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost. Our holding, of course, is not that the information information on o n a cell phone is immune immune from search; it is instead instead that t hat a warrant wa rrant is generall genera lly y required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely ‘an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.’ . . . Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself itself more effici efficient. ent. . . . Moreover, even though the search incident incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a  particular  particular phone” such as the exigent exigent circumstances circumstances exception. exception. As a reminder to everyone, “[m]odern cell phones are not just another technological convenience. With all they contain and all they J may reveal,R they hold for Americans ‘the privacies of life,’ . . . Cmany URISTS EVIEW ENTER The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before B searching a cell phone seized incident to an arrest is accordingly 2017 AR REVIEW simpl simplee — get a warrant.” Sounds so personal and familiar?

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FREEDOM OF EXPRESSION

The right to speak one’s mind freely is a highly valued freedom in a republican and democratic society.1 If the people peo ple are really really to be the source o f power, and that that sovereignty sovereignt y resides in in them, then they should rightfully determine the fate of the nation. But they can only do the same if they are free to know and learn and to discuss matters unfettered by restrictions placed on them by the government. The authorities are supposed to let the people decide what is good for them and the government, not t he other  way around. If the government had its way, chances are it would only be allowing the free flow of  information information that tha t would be favorable to itself itse lf.. In the t he process, pro cess, it would wo uld be fil filtering tering and managing the news and information that are to guide or influence the people in making their decisions. The interplay of  thoughts in the free and open market place of ideas provides the best means by which the interest of  society could be achieved, or so the philosophy of this freedom suggests. “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissibl impermissiblee end. The right to think t hink is is the beginning of freedo freedom, m, and speech must be prote pr otected cted from fro m the 2 government because speech is the beginning of thought.”  Parenthetically, the press is at the forefront of  expression, for without it dissemination could hardly be had.“The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media.”3 Without the mass media media to broadcast and  propagate a person’s ideas ideas or speech, it it would be more more like like flowers flowers born to blush blush unseen, unseen, wasting wasting their  their  4 sweetness in the desert air. In keeping with the underlying rationale for the freedom, this guarantee basically prohibits the State from exercising prior exercising prior restraint   or censorship. peo ple are to decide, dec ide, they must must be allowed allowed access restraint  or censorship. If the people to all available ideas and information, and not simply be given a sanitized version. At the same time, the freedom also means a corresponding check on subsequent on subsequent punishment . Otherwise, freedom to speak  unhindered may become a trap if a punishment so eagerly awaits a few steps away. Thus, only those which are clearly outside the scope of free expression may be subject to sanctions. In this regard, there is the concept of o f privileged privileged communications communications which exempts the person perso n communicating communicating from prosecution. prosecu tion. And here, it has been said that the enumeration under Art. 354 of the Revised Penal Code is not an exclusive list of qualifiedly privileged communications since fair since  fair commentaries on matters of public interest  are  are likewise likewise privileged. privileged. The T he rule on privileged communications had its genesis ge nesis not in the nation’s  penal code but in the Bill Bill of Rights Rights of the Constitution Constitution guaranteeing guaranteeing freedom of speech and of the press. press.5 It has also been be en held that t he civic duty to see to it that public p ublic duty is discharged discharged faithfully faithfully is inconsistent inconsistent with requirements placing on citizens the burden of proving good motives and justifiable ends in airing their plaints, comments or criticisms. 6 Indeed, a government that is not afraid of its own shadow should have no problem dealing with  people’s plaints. plaints. One that sees sinister sinister plots in every group action, act ion, one that gives strange strange meanings meanings to J URISTS REVIEW CENTER ordinary words, one which employs force to prevent people from knowing about skeletons in the closets may soon be hiding real skeletons if not checked at the earliest opportunity. More than a hundred years ago, it was observed: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but

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1 2 3

 “Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights.” ( Lopez v. People People,, 642 SCRA 668 [2011])  Ashcroft v. Free Speech Coalition, Coalition , 535 U.S. 234 (2002)

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

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 See Thomas Gray’s Elegy Gray’s Elegy Written on a Country Churchya rd 

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 Borjal v. Court of App eals, eals, 301 SCRA (1999) vis-à-vis An A Library Of 1Liberties Vasquez v. Court of Appeals, Appeals , 314 SCRA 460 (1999)

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illegitimate illegitimate and unconstitutional unco nstitutional practices pract ices get their first footing in that way, w ay, namely, namely, by silent approaches appro aches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and pr operty operty should be liberally construed. A close and literal construction construc tion deprives depr ives them of half their efficacy, efficacy, and leads to gradual grad ual depreciation deprec iation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.”7 Or, in the words of Justice Black, dissenting in Board in Board of Education v. Allen, Allen, “it nearly is always by insidi insidious ous approaches appro aches 8 that the citadels of liberty are most successfully attacked.” Do we really know how to learn from the past?9 Or is it much easier to go along with our indolent and careless ways to follow follow the t he path of o f least resistance, confi co nfident dent in our own o wn safety and welfare, until we realize we are already at the edge of the precipice, needing only a slight push or whiff of air to send us  plummeti  plummeting ng into the abyss? abyss? While While the guarantee guara ntee of freedom of expression has at its core co re political speech, it also spreads sprea ds its wings to cover other forms of speech, including commercial speech. In Pharmaceu In  Pharmaceutical tical and Health Care (20 07), Chief Justice Puno, in his his concurring concurr ing  Association of the Philippines v. Duque III , 535 SCRA 265 (2007), opinion wrote: “I write to elucidate another reason why the absolute ban   on the advertising and  promotion of breastmilk breastmilk substitutes substitutes found under Sections Sect ions 4(f) 4(f) and 11 of A.O. No. 2006-0012 (RIRR) should be struck do wn. The advertisi advert ising ng and promotion promot ion of breastmilk breastmilk substitutes substitut es properly prop erly falls falls within the ambit of the term commercial speech  – that is, speech that proposes an economic transaction. This is a separate category of speech which is not accorded the same level level of protection as that given to other  constitutionally guaranteed forms of expression but is nonetheless entitled to protection .” Any  parameters for commercial commercial speech pro tection? Well, Well, yes. C.J. Puno made reference to the four-part analysis of Central Hudson Gas & Electric v. Public Service Commission, Commission, 447 U.S. 557 (1980): “To  begin with, the commercial speech must ‘concern lawful activity and not be misleading”  if it is to  be protected protect ed under the First First Amendmen Amendment. t. Next, the asserted governmental interest must be substantial . If both of these requirements are met, it must next be determined whether the state regulation directly advances the government interest asserted , and whether it is not more extensive than is necessary to serve the interest.”  So what would all these lead to? “I proffer the humble view that the absolute ban  on advertising prescribed under Sections 4(f) and 11 of the RIRR is unduly vernmental interest interest of pro moting moting the restrictive and is more than necessary  to further the avowed go vernmental health of infants and young children. It ought to be self-evident, for instance, that the advertisement of  such products which are strictly informative cuts too deep on free speech. The laudable concern of the respondent for the promotion of the health of infants and young children cannot justify the absolute, overarching ban.”10

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challenge and  Estrada v. Sandiganbayan, Sandiganbayan, 369 SCRA 394 (2001), discussed the concepts of facial challenge a facial challenge is challenge is allowed allowed to be made to a vague statute statut e and to one which overbreadth , explaining that a facial is overbroad because of possible “chilling effect” upon protected speech. The theory is that “[w]hen BAR REVIEW 2017 statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for  7 8 9

 Boyd v. United Stat es, es, 116 U.S. 616 (1886)  392 U.S. 236 (1968), citing Boyd  citing Boyd .

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 In his separate opinion in Chavez v. Gonzales, Gonzales , 545 SCRA 441 (2008), Justice Carpio, referring to Pharmaceutical to  Pharmaceutical and Health vis-à-vis A Library Of Liberties  An Arsenal Of Arms Care Association, Association, pointed out that the “Court recognized false or misleading advertisement as unprotected expression only in October  2007.”

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rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally  protected expression is deemed to justif justify y allowing allowing attacks on overly overly broad statutes with with no requirement requirement that the person making making the attack att ack demonstrate that his own conduct conduct could not be regulated by a statute drawn with narrow specificity.” The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and  perceived grievances left left to fester because of t he inhibitory inhibitory effects effects of o f overly broad statutes. statut es. David  David v.  Macapagal-Arroyo,  Macapagal-Arroyo, 489 SCRA 160 (2006), also spoke of such concepts. “[T]he overbreadth doctrine is an analytical analytical tool too l developed for testing test ing ‘on their faces’ statutes statute s infree speech cases, also also known kno wn under  the American Law as First Amendment cases.” The Court also noted: “Moreover, the overbreadth doctrine is not intended for testing the validity of a law that ‘reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct.’ Undoubtedly, lawless violence, insurrection and rebellion are considered ‘harmful’ and ‘constitutionally unprotected conduct. conduc t.’’ . . . Thus, claims claims of facial overbreadth overbreadth are entertained e ntertained in in cases involvi involving ng statutes which, which, by again, that ‘overbreadth claims, if entertained their terms, seek to regulate only ‘spoken words’ and again, at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected protected conduct .’ . . . [F]acial invalidation of laws is considered as ‘manifestly strong medicine,’ to be used ‘sparingly and only as a last resort ,’ and is ‘generally disfavored ;’ The reason for this is obvious. Embedded in the traditional trad itional rules governing constitut ional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably conceivably be applied applied unconstitutionally unconst itutionally to others, o thers, i.e., i.e. , in other situations not before the Court. ” Assembly is also a form of expression. In this regard, the pronouncements of the Court in David in David v.  Macapagal-Arroyo,  Macapagal-Arroyo, are also enlightening. The Court said: “‘Assembly’ means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of  our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger  of  a substantive evil evil that Congress has a right to prevent. In other o ther words, like like other ot her rights embraced embraced in the freedom of expression, the right t o assemble is is not subject to previous p revious restraint restra int or censorship. It may not  be conditi co nditioned oned upon the prior issuance of a permit permit or authorization from the government government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such  place, and not for the assembly assembly itself, itself, may be validl validly y required. The ringing ringing truth here is that petitioner  David, et al . were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition  and violation of BP 880  were mere aftert afterthought hought.. Even the Solicito Solicitorr General, during the oral argument, failed to justify the arresting officers’ conduct. In  De Jonge v. Oregon, Oregon, it was held that peaceable assembly J URISTS REVIEW CENTER cannot be made a crime, crime, . . .” Secretary of Justice JustiB ceAR 1.  Disini, Jr. v. Secretary , 716 237 (2014) and 723 SCRA 109 (2014) RSCRA 2017 EVIEW

Issues were raised against the constitutionality of the various provisions of Cybercrime Prevention  Act of 2012 (R.A. 2012 (R.A. No. 10175). The Court upheld some provisions provisions but struck down others. o thers. Among the highlights highlights from the t he ruli ru ling: ng:

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Cyberspace, the benefits and costs. costs. Cyberspace is “a system that accommodates acc ommodates millions millions and billions billions of simultaneous andAongoing individual accessesvis-à-vis to and uses ofArsenal the internet. cyberspace is a boon to Library Of Liberties  An OfThe Arms

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the need of the current generation for greater information and facility of communication. But all is not well with the system since it could not filter out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes.”  Levels of Scrutiny. Scrutiny. “The Court has has in a way found the strict scrutiny standard, an American constitutional construct, useful in determining the constitutionality of laws that tend to target a class of  things or persons. pe rsons. According Acc ording to this standard, a legislative legislative classification classification that impermissibl impermissibly y interferes interferes with the exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is  presumed unconstitutional. unconstitutional. The burden is on the government government to prove that the classi classifi fication cation is necessary to achieve a compelling state interest and that 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 applications to equal protection.” On Illegal Access and “Ethical Hackers.” “In Hackers.” “In the cases before it, the 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 a condemnable act – accessing the computer system of another without right. right. It is a uni u niversal versally ly condemned condemned conduct.” How about the danger of o f suppressing suppressing the work of ethical hackers? No problem. “Ethical hackers evaluate the target system’s security and report back to the owners the vulnerabilities they found in it and give instructions for how these can be remedied. remedied. Ethical hackers are the equivalent equivalent of o f independent independent auditors who come into an organizati o rganization on to verify its bookkeeping records.”  Data Interference, Vandalism and Overbreadth Doctrine. Doctrine. “Under the overbreadth doctrine, a proper  governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms. But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form of  vandalism, the act of willfully destroying without right the things that belong to others, in this case their  computer data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to destroy other people’s computer systems and private documents.” doc uments.” And, moreover, mor eover, “[a]ll penal laws, laws, like the cybercrime law, have of o f course an inherent cchil hillin ling g effect, an in terrorem effect or the fear of possible prosecution that hangs on the heads of citizens who are minded minded to step beyond the boundaries of what is prope r.” Cybersquatting . Cyber-squatting is the acquisition of domain name over the internet in bad faith to  profit, mislead, mislead, destroy the reputation, and deprive others from registering registering the same. “The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy JURISTS REVIEW CENTER reputation, reput ation, or deprive de prive others who are not ill-motivated of the rightful opportunity oppo rtunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is  baseless.”  baseless.”

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 Privacy and Identity Theft . Computer-relate Comput er-related d Identity Theft is is the intentional acquisition, use, misuse, misuse, transfer, possession, alteration, or deletion of identifying information belonging to another, whether  natural or juridical, without right. “The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of o f the right protected protect ed by the guarantee against unreasonable unreasonable searches and seizures. But the Court acknowledged its existence as early as 1968 in Morfe in Morfe v. Mutuc, Mutuc, it ruled that vis-à-vis A Library Of Liberties  An Arsenal Of Arms the right to privacy exists independently of its identification with liberty; it is in itself fully deserving of 

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constitutional protection.” In this connection, “[i]n assessing the challenge that the State has impermissibl impermissibly y intrud intruded ed into these zo nes of privacy, a court must determine de termine whether a person perso n has exhibited exhibited a reasonable expectation expect ation of privacy and, if so, whether whet her that ex pectation has been violated violated by unreasonable unreasonable government intrusion.” Now, how about the application of the law in this regard? “[T]he charge of  invalidity invalidity of this section based on o n the overbreadth overbre adth doctrine do ctrine will not hold water wat er since the specific specific conducts co nducts  proscribed do not intrude intrude into into guaranteed freedoms freedoms like like speech. Clearly Clearly,, what this section regulates regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental fundamental right right to acquire another’s personal data.” Also, Also, the Court pointed out: “Evidently “Evidently,, the t he theft of identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be regarded as a form of theft. The Court has defined intent to gain as an internal act which can be established through the overt acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances circumstances reveal a differen differentt intent on o n the part of the perpetrato r. As such, the press, pre ss, whether  in quest of news reporting or social investigation, has nothing to fear since a special circumstance is  present to negate intent to gain which which is is required by this Section.” Section.” Cybersex. Cybersex. Cybersex, or the willful engagement, maintenance, control, or operation, directly or  indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer  system, for favor or consideration. Would not the law, as written, invite law enforcement agencies into the bedrooms of married couples or consenting individuals? No, “the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to penalize a ‘private showing x x x between and among two private persons x x x although that may be a form of obscenity to some.’ The understanding of those who drew up the cybercrime law is that the element of ‘engaging in a business’ is necessary to constitute constitu te the t he illegal illegal cybersex. The Act actually act ually seeks to punish pu nish cyber prostitut ion, white slave trade, trad e, and  pornography for favor favor and consideration. consideration. This includes includes interactive interactive prostitution and pornography, pornography, i.e., i.e., by webcam.” And the Court added, “[i]n any event, consenting adults are protected by the wealth of   jurisprudence  jurisprudence delineatin delineating g the bounds of obscenity. obscenity. The Court will will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons engaged in the  business  business of maintain maintainin ing, g, controlling, controlling, or operating, directly directly or indirectl indirectly, y, the lasciv lascivious ious exhibiti exhibition on of sexual organs or sexual activity with the aid of a computer system as Congress has intended.” Child Pornography. Pornography. “It seems that the above merely expands the scope of the Anti-Child Pornograp Por nography hy Act of 2009 (ACPA) to cover identical activities in cyberspace. In theory, t heory, nothing not hing prevents the government go vernment from invoking invoking the ACPA when prosecuting pro secuting persons per sons who comm co mmit it child child pornography porno graphy using a computer co mputer system.” system.”

JURISTS REVIEW CENTER Spam and Commercial Speech. Speech . Unsolicited Commercial Communications or  spam11  is the transmission of commercial electronic communication with the use of computer system which seeks to advertise, sell, or offer for sale products and services. “To prohibit the transmission of unsolicited ads REVIEW 2017 commercial ads addressed to him. AR would deny a person the right to read B his emails, even unsolicited 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 entitled to  pro tection. The State cannot rob him him of this right without violatin violating g the constitutionally constitutionally guarantee guara nteed d

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 “The term ‘spam’ surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or  A Library Of term Liberties  AnFlying Arsenal Of in Arms comment was said to be maki ng a ‘spam.’ The referr ed to vis-à-vis a Monty Python’s Circus scene Circus which actors would keep saying ‘Spam, Spam, Spam, and Spam’ when reading options from a menu.”

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freedom of expression. Unsolicited advertisements are legitimate forms of expression.” Cyberlibel . This would refer to the commission of libel through a computer system. The Court held that libel is is not a constitutionally constitutionally protected speech and that the government government has an obl o bligati igation on to t o protect  private indivi individuals duals from defamation. defamation. And, cyberlibel cyberlibel is actually not a new crime since Article Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes “similar means” for committing libel.” “But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or  article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were enact ed. The culture associated with internet internet media is distinct distinct from that of print. The internet is characterized as encouraging a freewheeling, anything-goes writing style. In a sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed with which such reactions are disseminated disseminated down do wn the line line to other internet users.”  Aiding or Abetting Commission Commission of Cybercrime Cybercrime.. Here, one has to differenti differentiate ate between the t he usual and traditional trad itional means means of aiding aiding or abetting abet ting from its commission commission through throug h the internet. internet . “Aiding or abetting abett ing has of course well-defined meaning and application in existing laws. When a person aids or abets another in destroying a forest, smuggling merchandise into the country, or interfering in the peaceful picketing of  laborers, his action is essentially essentially physical physical and so is susceptible to easy assessment as criminal in in character. charac ter. These forms of aiding or abetting lend themselves to the tests of common sense and human experience. But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat  blurred. The idea of ‘aiding ‘aiding or abetting’ wrongdo wro ngdo ings online online threatens the heretofore popular and unchallenged dogmas of cyberspace use.” And the Court went on to elucidate elucidate how easy it would be to get trapped under the law if if it it were to  be understood in its traditional non-internet non-internet application. application. “If the post is made availabl availablee to the public, public, meaning to everyone and not only to his friends, anyone on Facebook can react to the posting, clicking any of several buttons of preferences on the program’s screen such as ‘Like,’ ‘Comment,’ or ‘Share.’ ‘Like’ signifi signifies es that the t he reader reade r likes the posting p osting while ‘Comment’ enables him to po st online his feelings feelings or views about the same, such as ‘This is great!’ When a Facebook user ‘Shares’ a posting, the original ‘posting’ will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Faceboo k Friends. Twitter, on o n the other hand, is an internet social soc ial networking netwo rking and microblogging microblogging service that enables its users to send and read short text-based messages of up to 140 characters. These are known as ‘Tweets.’ ‘Twe ets.’ Microblogging Microblogg ing is is the practice of o f posting small pieces of digital content – which could  be in in the form form of text, pictures, links, links, short videos, or other media – on the internet. Instead of friends friends,, a Twitter user has ‘Followers,’ those who subscribe to this particular user’s posts, enabling them to read JURISTS REVIEW CisENTER the same, and ‘Following,’ those whom this particular user subscribed to, enabling him to read their   posts. Like Facebook, a Twitter Twitte r user can make his tweets available available only to his his Followers, Followers, or to the general public. If a post is available to the public, any Twitter user can ‘Retweet’ a given posting. BAR R 2017tweet without the need of copying and EVIEW Retweeting is just reposting or republishing another person’s  pasting it. In the cyberworld, cyberworld, there are many many actors: a) the blogger blogger who originates originates the assail assailed ed statement;  b) the blog service service provider like like Yahoo; c) the internet internet service service provider like like PLDT, Smart, Smart, Globe, Globe, or Sun; d) the t he internet café that may have have provided the computer used for po sting sting the blog; e) the t he person who makes a favorable comment on the blog; and f) the person who posts a link to the blog site.”

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Librarythe Ofpeculiarities Liberties vis-à-vis  An and Arsenal Armsrelative to the crime Then the Court A considered of the internet onlineOf postings

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of cyberlibel . “The question is: are online postings such as ‘Liking’ an openly defamatory statement, ‘Commenting’ on it, or ‘Sharing’ it with others, to be regarded as ‘aiding or abetting?’ . . . Besides, it is not clear if aiding or abetting abe tting libel in in the physical world is a crime.” crime.” Then, it noted that “in the complex world of cyberspace expressions expre ssions of thoughts, when w hen will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime? Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of readers who may think  little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding ‘Friends’ or  ‘Followers’ in the criminal criminal charge to be filed in court, cour t, who will make a choice as to who should go to jail for the outbreak of the challenged posting? The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their  constitutionally-guaranteed right to freedom of expression.” What then? Well, you can penalize certain conduct but it should not sweep too broadly. If it does, it would be a lesser evil to let the conduct go unpunished than sacrifice more important freedoms. “Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements can spread and travel fast across the globe like bad ne ws. Moreover, Mo reover, cyberlibel cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace communicati communication on technology to pro tect a person’s reputation reputat ion and peace of mind, mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms. If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress otherwise ot herwise robust discussion d iscussion of public public issues. Democracy Democ racy will will be threatened and with it, all liberties. liberties. Penal laws should provide reasonably r easonably clear guidelines for for law enforcement offi o fficials cials and triers of facts facts to t o prevent arbitrary and discriminatory enforcement. The terms ‘aiding or abetting’ constitute broad sweep that generates generat es chillin chilling g effect effect on those tho se who express themselves through cyberspace po sts, comments, co mments, and other  messages. Hence, Section 5 of the cybercrime law that punishes ‘aiding or abetting’ libel on the cyberspace is a nullity.”  Facial Challenge and Challenge and As  As Applied Challenges. Challenges. “When a penal statute statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable.” On the other  hand, “[i]n an ‘as applied’ challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. vagueness. Here, one can challenge challenge the constitutionality constitutionality of a statute stat ute only o nly if  if  he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute JURISTS REVIEW CENTER  based solely solely on the violation violation of the rights rights of third persons not not before the court . This rule is is also also known as the prohibition against third-party standing. But this rule admits of exceptions. A petitioner may for  instance mount a ‘facial’ challenge to the constitutionality of a statute even if he claims no violation of  BAR REVIEW 2017 his own rights under the assailed statute where it involves free speech on grounds of overbreadth or  vagueness of the statute. statute . The rational rat ionalee for thi t hiss exception is to counter the ‘chilli ‘chilling ng effect’ on protected protect ed speech that comes from statutes violating violating free speech. A person who do es not know kno w whether his speech constitutes constitu tes a crime c rime under an overbro overbroad ad or o r vague law may simpl simply y restrain himself himself from from speaking speak ing in in order  orde r  to avoid a void being charged of a crime. The overbroad overbro ad or vague vag ue law thus chil c hills ls him him into into silence.” And, relating vis-à-vis Liberties  An medium Arsenal Armscation. It it to the t he internet, “theAcyberspace c Library yberspaceOf is an incomparable, incomparable, pervasive per vasive m edium ofOf communication. communi I t is inevitable inevitable

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that any government threat of punishment regarding certain uses of the medium creates a chilling effect on the constitutionally constitutionally-protect -protected ed freedom of expression expression of o f the great masses masses that use it. In this case, the t he  particularly  particularly complex complex web of interaction interaction on social media media websit websites es would give law enforcers such latitude that they t hey could arbitrarily or selectively enforc enforcee the law. law. Who is to decide d ecide when to prosecu pr osecute te persons perso ns who  boost the visib visibil ility ity of a posting posting on the internet by liking liking it? Netizens are not not given given ‘fair ‘fair notice’ notice’ or warning warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided and abetted a cybercrime while another comment did not? Of course, if the ‘Comment’ does not merely react to the original posting but creates an altogether new defamatory story against Armand like “He beats his wife and children,” then that should  be considered considered an origin original al posting posting publis published hed on the internet. internet. Both the penal code and the cybercrime cybercrime law clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or religions, exacerbating existing tension in their relationships.”  Aiding or Abetting Commission of Child Pornography. Pornography. “Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors act ors in the cyberspace front in a fuzzy fuzzy way. What is more, more, as a s the petitioners point po int out, formal crimes crimes such as libel are not punishabl pu nishablee unless consummated. In the absence absenc e of legislation legislation tracing tra cing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.”  Aiding or Abetting Other Cybercrimes. Cybercrimes. “[T]he crime of aiding or abetting the commission of  cybercrimes under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Devices, Section Sect ion 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Sect ion 4(b)(3) on Computerrelated Identity Theft, Theft, and Section 4(c)(1) o n Cybersex. Cybersex. None of these offenses offenses borders on o n the exercise of the freedom of expression.”  Double Jeopardy. Jeopardy. Section Sect ion 7 of the law provides that a prosecu pr osecution tion under it shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws. “With the exception of the crimes of online libel and online child pornography, the Court would rather  leave the determination of the correct application of Section 7 to actual cases. Online libel is different. There should be no question that if the published material on print, said to be libelous, is again posted Jaterial REVIEW CENTER URISTS online or vice versa, that identical material m cannot be the subject of two separat se paratee libels. libels. The two o ffenses, one a violation violation of Article Article 353 of the Revised Revised Penal Code and the t he other a violation violation of Section 4(c)(4) of  o f  R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the BSection AR REVIEW OSG itself claims that online libel under 4(c)(4) is2017 not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another means of   publication.  publication. Charging Charging the offender offender under both laws would be a blatant blatant violation violation of the proscription against double jeopardy. The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child pornography in fact already covers the use of ‘electronic, A Library Of Liberties vis-à-vis An Arsenal Of Arms mechanical, digital, optical, magnetic or any other means.’ Thus, charging the offender under both

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Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional prohibition against against double jeopardy.”  Real-Time Collection of Traffic Traffic Data. Data. Section 12 authorized authorized law enforcement authorities, “with due cause,” to collect or record by technical or electronic means traffic data12 in real-time associated with specified communications transmitted by means of a computer system. “The first question is whether or  not Section 12 has a proper governmental purpose since a law may require the disclosure of matters normally considered private but then only upon showing that such requirement has a rational relation to the purpose of the law, that there is a compelling State interest behind the law, and that the provision itself is narrowly drawn. In assessing regulations affecting privacy rights, courts should balance the legitimate concerns of the State against constitutional guarantees. Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the tremendous activities in cyberspace for public good. To do this, it is within the realm of reason that the government should be able to monitor mo nitor traffi tr afficc data dat a to enhance its ability ability to combat all sorts of o f cybercrimes.” cybercrimes.” And, given reality presently, the Court noted:“In this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid arrangements and with unregistered SIM SI M cards do not have listed listed addresses and can neither neither be located locat ed nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child pornography could use relays of computers computer s to mislead mislead law enforcement authorities aut horities regarding regard ing their places of operations. operat ions. Evidently, it it is only realtime traffic traffic data collection c ollection or recording rec ording and a subsequent recourse reco urse to courtco urt-issued issued search and seizure warrant that can succeed in ferreting them out.” However with regard to that dangerous authorization based on “due cause,” “the Court cannot draw this meaning since Section 12 does not even bother to relate the collection collection of data d ata to t o the t he probable commiss commission ion of a particular crime. crime. It  just says, says, ‘with due cause,’ thus justif justifyi ying ng a general gathering gathering of data. It is akin akin to the use of o f a general search warrant that the Constitution prohibits. prohibits. Due cause is also not descriptive of the purpose for which data collection will be used.” In short, “the authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these agencies.”  Disclosure of Computer Data. Data. “[I]t is well-settled that t he power to t o issue subpoenas is not exclusively exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their  investigatory powers. pow ers. Besides, what Section Sect ion 14 envisions envisions is merely merely the enforcement o f a duly issued court warrant, a function usually lodged in the hands of law C enforcers JURISTS REVIEW ENTERto enable them to carry out their  executive functions. functions. The prescribed procedure for disclosure disclosure would wo uld not consti co nstitute tute an unlawful unlawful search or  o r  seizure nor would it violate the privacy of communications communications and correspo cor respondence. ndence. Disclosure can ca n be made made only after judicial intervention.” BAR REVIEW 2017 Take-Down Clause. Clause. Section 19 authorizes the Department of Justice Justice to issue issue an order to restrict or  12

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 “Traffic data refer only to the communication’s origin, destination, route, time, date, s ize, duration, or type of underlying service,  but not content, nor ident ities.” The Court also noted that in regard to traffic data, “[t]ransmitting communications is akin to putting a letter in an envelope properly AanLibrary Liberties Arsenal OfnoArms addressed, sealing it closed, d sending itOf through the postal svis-à-vis ervice. Those An who post po st letters have expectations that no one will read the information appearing outside the envelope.”

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 block access to computer data when computer data is prima prima facie facie found to be in violation of the  provisions  provisions of the law. “Here, the Government, in effect, effect, seizes and places the computer data d ata under its control and disposition disposition without a warrant. The Departmen Depa rtmentt of Justice Justice order cannot substitute for judicial judicial search warrant. The content of the computer data can also also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protect pro tected. ed. Legislature Le gislature may, within constitutional const itutional bounds, declare dec lare certain kinds of expression as ill illegal. egal. But for an executive officer officer to seize seize content alleged alleged to t o be unprotected unprotect ed without any judici judicial al warrant, it is not enough for him to be of the opinion that such content violates some some law, for to do so would make him judge, jury, and executioner all rolled into one. Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of  restrictions on speech. Restraints on free speech are generally evaluated on one of or a combination of  three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and present danger rule. Section 19, however, merely requires that the data to be blocked be found prima found prima facie in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually  be made to apply in in relation relation to any penal provision provision.. It does not take into consideration consideration any of the three tests mentioned above. The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to freedom of expression and against unreasonable searches and seizures.” 2. GMA Network, Inc. v. Commission on Elections , 734 SCRA 88 (2014) In this case, what was questioned was the reso lution of the Commission Commission on Elections whi which ch computed compute d the allowable campaign air time time limit limit in radio and televisi t elevision on on o n a nationwide tota t otall aggregate aggregat e basis instead instead of the previous per station basis – 180 minutes for radio advertisements and 120 minutes for television. There was also a question about the requirement allowing for a right to reply. The Court held that the new manner of determining airtime limit “is unreasonable and arbitrary as it unduly restricts and constrains constr ains the ability ability of candidates candidate s and political political parties to reach rea ch out and communicate with the people. Here, the adverted reason for imposing the ‘aggregate-based’ airtime limits – leveling the playing field – does not constitute a compelling state interest which would justify such a substantial restriction on the freedom of candidates and political parties to communicate their ideas, philosophies,  platforms  platforms and programs of government. government. And, this is is specially specially so so in the absence of a clear-cut basis basis for  the imposition of such a prohibitive measure. In this particular instance, what the COMELEC has done is analogous to letting a bird fly after one has clipped its wings. It is also particularly unreasonable and whimsical to adopt the aggregate-based time limits on broadcast time when we consider that the Philippines Philippines is not only composed of o f so many islands. islands. There are ar e also a lot of languages language s and dialects spoken spoke n among the citizens across the country. Accordingly, for a national candidate to really reach out to as JURISTS REVIEW CENTERthat he convey his message through many of the electorates as possible, then it might also be necessary his advertisements in languages and dialects that the people may more readily understand and relate to. To add all of these airtimes in different dialects would greatly hamper the ability of such candidate to REVIEW 2017In short, express himself – a form of suppression suppr essionB ofAR his political poli tical speech.” sho rt, “drastically curtailing curtailing the t he ability ability of a candidate to effectively reach out to the electorate would unjustifiably curtail his freedom to speak  as a means of connecting with the people.”

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How about the right to reply provision? reply  provision? “The Constitution itself provides as part of the means to ensure free, orderly, honest, fair and credible elections, elections, a task addressed add ressed to the COMELEC to provide vis-à-vis A Library Ofess Liberties  AnitArsenal Of Arms for a right to reply. Given that express expr constitutional constitu tional mandate, could co uld be seen that the Fundamental Law

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itself has weighed in on the balance to be struck between the freedom of the press and the right to reply. Accordingly, Accordingly, one is not merely to see the equation as purely between the press and the right to reply. Instead, the constitutionally constitutionally mandated mandated desiderata of o f free, orderly, orderly, honest, peaceful, peac eful, and credible credible elections would necessarily have to be factored in trying to see where the balance lies between press and the demands of a right-to-reply.” right-to-r eply.” Accordingly, “the traditional notion of preferring speech and the press over  so many other values of society do not readily lend itself to this particular matter. Instead, additional weight should should be accorded on the t he constitutional directive directive to afford afford a right right to t o reply. If there was no such mandate, then the submissions of petitioners may more easily commend themselves for this Court’s acceptance. But as noted above, this is not the case. Their arguments simplistically provide minimal importance to that constitutional command to the point of marginalizing its importance in the equation. In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter latt er must be proper pr operly ly viewed in context conte xt as being necessarily necessarily made made to accomm acco mmoda odate te the imperatives of fairness by giving teeth and substance to the right to reply requirement.” Bacolod v. Commission on Elections Elections , 747 SCRA 1 (2015) 3.  Diocese of Bacolod

As part of o f the Catholic Church’s Church’s oppositi oppo sition on to t o the t he Reproductive Health Law, the petitioners came came up with a tarpaulin measuring 6’ by 10’. The said tarpaulin had the heading “Conscience Vote,” identifying candidates who voted for (Team (Team Patay) Patay) or against against the law (Team (Team Buhay). Buhay). The COMELEC advised the petitioners to pull down the same since it violated the limitations set for campaign materials, namely, namely, that it should should be no bigger than 2’ by 3.’ The Church refused and brought up t his his case challenging the validity of the COMELEC directive. As a preliminary matter, could the opinion of the COMELEC be assailed on freedom of expression grounds grou nds since it it is not itself a statute statu te and the constitut co nstitutional ional provision refers to a law? “While “While it is is true that t hat the present petition assails not a law but an opinion by the COMELEC Law Department, this court has applied applied Article III, Section 4 of the Consti Co nstitution tution even to governmental governmental acts.” With regard to the t he main issue, the Court discussed: “The right to freedom of expression, thus, applies ap plies to the entire continuum of speech from utterances made to conduct enacted, and even to inaction as a symbolic manner of communication.” And, with regard to political speech, it declared: “Speech with  political  political consequences consequences is is at the core of the freedom freedom of expression expression and must must be protected by this this court.” The petitioners standing as non-candidates was also highlighted. “There is no reason for the state to minimize the right of non-candidate petitioners to post the tarpaulin in their private property. The size of the tarpaulin does not affect anyone else’s constitutional rights.” Moreover, “[t]he guarantee of  freedom of expression to individuals individuals withou withoutt any relationship to any political candidate should shou ld not be held hostage hosta ge by the possibility possibility of abuse by those seeking to be elected.” elected. ” Further, Furthe r, “[r]egulation “[r]egu lation of speech in in the J R C URISTS EVIEW ENTER context of electoral campaigns campaigns made by persons who are not candidates candidates or who do not speak as members members of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstitutional.” Are they then completely beyond regulation? No. AR REVIEW 2017 “ Regulation of election paraphernalia p araphernaliaBwill still be constitutionally valid if it reaches into speech of   persons who are not candidates or who do d o not speak as members of a political party if they are not  candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal  object the endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c) narrowly narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primary of the guarantee of free expression, and (d) demonstrably the A Library Of Liberties vis-à-vis An Arsenal Of Arms least restrictive restrictive means to achieve that object. The regulation must only be with respect respect to the time, place,

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and manner of the rendition of the message. In no situation may the speech be prohibited or censored  on the basis of its content. For this purpose, it will not matter whether the speech is made with or on  private property.” And, with regard to form and substance, substance, the Court declared: “We reiterate that the regulation involved at bar is content-base. content -base. The tarpaulin tarpa ulin is not easily divorce divorced d from the size size of the medium.” In other  o ther  words, “[t]he form of expression is just as important as the message itself.” The Court also saw the tarpaulins as a form of satire of satire of  of political parties, something that is similarly  protected under the freedom freedom of speech. Likewise, Likewise, in so far as there are others who who may not conform to the what the majority holds, “[a] becoming humility on the part of any human institution no matter how endowed with the secular ability to decide legal controversies with finality entails that we are not the keepers of all wisdom. Humanity’s lack of omniscience, even acting collectively, provides space for the weakest weake st dissent. To lerance has always been a libertarian virtue whose version is embedded in our Bill of  Rights. There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have always given as pause.” On expression expression and the t he use of one’s o ne’s own private private property, propert y, the Court pointed po inted out that “[f]reedom of  expression can be intimately related with the right to property. There may be no expression when there is no place where the expression may be made. COMELEC’s infringement upon petitioners’ property rights as in in the present case also reaches out to infringement on their fundamental right to speech.” In fine, “the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their own  private property is an impermi impermissi ssible ble encroachments encroachments on the right right to property.” pro perty.” 4. 1-United Transport Koalisyon (1-Utak) v. Commission on Elections , 755 SCRA 441 (2015) What is in issue here is the ban on the posting of campaign materials in public transports and private transport terminals. The Court held that there was an invalid content-netural regulation – it is not within the power of the COMELEC since the restriction is greater than necessary to advance government interest. Moreover, regulation of franchise of  franchise does  does not extend to regulation of other aspects of private Ownership. The Court also had occasion to discuss the Captive Audience Doctrine. Doctrine. That doctrine “states that when a listener cannot, as a practical matter, escape from intrusive speech, the speech can be restricted. The ‘captive-audience’ ‘captive-audience’ doctrine recognizes that a listener listener has a right not t o be exposed expo sed to an unwanted message in circumstances in which the communication cannot be avoided. A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others. Such selective restrictions have been upheld onlyJwhen the speaker intrudes on the privacy of the home or the degree REVIEW CENTER URISTS of captivity makes it either impossible or impractical for the unwilling viewer or auditor to avoid exposure.”

BAR REVIEW 5.  Pleasant Grove , 555 U.S. 460 2017 (2009) Grove City v. Summum The U.S. Supreme Court presented the gist of the case in this way: way: “This case presents presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the vis-à-vis Library OfisLiberties  An Arsenal Of Arms monument because A a public park a traditional public forum. We conclude, however, that although a

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 park is a traditional public public forum for speeches speec hes and other transitory transitory expressive expressive acts, the display display of of a  permanent  permanent monument monument in a public public park is not a form of o f expression expression to which which forum analysis analysis appli ap plies. es. Instead, Instead , the placement place ment of a permanent monument in a public public par k is best viewed as a form of government go vernment speech and is therefore not subject to scrutiny under the Free Speech Clause.” With regard to the application ap plication of the freedo freedom m of speech to the t he government itself, the Court said: “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. . . . (‘[T]he Government's own speech . . . is exempt from First Amendment scrutiny’) . . . . (‘Government is not restrained by the First Amendment from controlling its own expression’).” The  government speech doctrine  doctrine  was reiterated in Walker v. Texas Div., Sons of Confederate Veterans, Inc., Inc., 576 U.S. ___ (No. 14-144, 18 June 2015).  Integrated Bar of the Philippines Philippines v. Atienza , 613 SCRA 518 (2010) 6.  Integrated

In Bayan In Bayan v. Ermita, Ermita, 488 SCRA 226 (2006), the Court spoke of the right to peaceable assembly in this way: “The first point to mark is that the right to peaceably assemble and petition for redress of  grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys  primacy  primacy in the realm realm of constitutional constitutional protection. For For these rights constitute the very basis basis of a functional functional democratic democrat ic polity, polity, without which all the other ot her rights would be meaningless meaningless and unprotected.” unprotect ed.” At the same time, though, thoug h, it recognized the t he validity validity of the law – Public – Public Assembly Assembly Act of of 1985 (B.P. 1985 (B.P. 880) – providing providing for guidelines in in the conduct conduc t of rallies rallies and other othe r mass actions. B.P. 880 88 0 provides a restriction re striction that t hat simply simply regulates the time, place and manner of the assemblies – it does not impose an absolute ban on public assemblies. This set of regulations included the need to obtain a permit from the local chief executive, which may only be denied on ground of clear and present danger to public order, public safety, public convenience, public morals or public health. In Integrated In Integrated Bar of the Philippines Philippines,, the issue is whether the mayor could co uld unilaterally specify a place other than the one indicated by the applicants for the public assembly? No, he cannot without an acceptable basis. Here, the Court ruled that the mayor, in modifying the permit outright, gravely abused his discretion, specially so as he did not immediately inform the applicants who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. “The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court co urt after afte r an unfavorable action on the permit. pe rmit. Respondent failed to indicate indicate how he had arrived at modif mod ifying ying the terms te rms of the permit against the standard of o f a clear and present danger  da nger  test which, it bears repeating, is an indispensable condition to such modification.” Related to the t he foregoing is is the holding holding of the Court in David in David v. Macapagal-Arroyo, Macapagal-Arroyo, 489 SCRA 160 (2006), that “wholesale cancellation of all permits to rally is a blatant disregard of the principle that JURISTS REVIEW CENTER ‘freedom of assembly is not to be limited, much less denied, except on a showing of a clear and   present  present danger  danger  of  of a substantive evil that the State has a right to prevent .’ Tolerance is the rule and limitation is the exception. . . . With theB blanket of permits, the distinction between protected AR Rrevocation EVIEW 2017 and unprotected assemblies was eliminated.” Entitled “Restoring “Restoring Integrity: Integrity: A Statement Statement by the Faculty Faculty 7.  Re: Letter of the UP Law Faculty Entitled of the University of the Philippines College of Law on the Allegations of Plagiarism and   Misrepresen  Misrepresentation tation in the Supreme Supreme Court,”  644  644 SCRA 543 (2011)

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vis-à-vis A aLibrary Ofa College Liberties  An Arms of expression and May members of faculty of of Law invoke theArsenal guaranteeOf of freedom

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academi acade micc freedom freedo m to shield themselves from any possibl po ssiblee disciplinary proceed proceedings ings against them for having come up with a public public statement which the Court t ook to be disrespectful disrespectful and contemptuous? The Court said no, saying that the legal reasoning used in the past by this Court to t o rule that freedom of expression expression is not a defense in administrative cases against lawyers for using intemperate speech in open court or in court submissions can similarly be applied to invocation of academic freedom. The Court also pointed out that a reading of the Show Cause Resolution will plainly show that it was neither the fact that respondents had criticized a decision of the Court nor that they had charged one of its members of   plagiaris  plagiarism m that motivated motivated the said Resolution Resolution – it it was the manner manner of the criticis criticism m and and the contumacious contumacious language by which respondents, who are not parties nor counsels in a pending case have expressed their  opinion in favor of the petitioners in said pending case. The right to criticize the courts and judicial officers must be balanced against the equally primordial concern that the independence of the Judiciary  be protected from due infl influence uence or interference. interference. The Court further reminded the respondents and everybody else that freedom of expression is not an absolute – there are other societal values that press for recognition, and one such societal value that  presses for recognition in the case at bar is the threat to judicial judicial independence independence and the orderly administratio administration n of justice that immoderat immoderate, e, reckless rec kless and unfair unfair attacks atta cks on judicial decisions and institutions  pose. The constitutional right to freedom of expressi expression on of members members of the Bar may may be be circumscrib circumscribed ed by their ethical duties as llawyers awyers to give due respect to the t he courts court s and to uphold u phold the public’ p ublic’ss faith in in the legal  profession  profession and the justice justice system. system. And, with higher standing in the community, as an educator, for instance, comes greater  responsibility, the Court declaring that the reason that freedom of expression may be so delimited in the case of lawyers applies applies with greater force forc e to the academi acad emicc freedom of law professors. When the criticism comes from persons outside the profession who may not have a full grasp of legal issues or from individuals individuals whose personal or other interests in making the criticism criticism are obvious, the Court may perhaps tolerate or ignore them, but when law professors are the ones who appear to have lost sight of the  boundaries of fair fair comm co mmentary entary and worse, wors e, would wou ld justify justify the same as an exercise of civil civil liberties, liberties, the Court cannot remain silent for such silence would have a grave implication on legal education in the country. The Court failed to see how it can ennoble the profession if it allowed respondents to send a signal to their t heir students that t he only way to effectively plead their cases and persuade others o thers to their point of view is to be offensive – the mark of o f the true tru e intellectual is one who can express his opinions opinions logically and soberly without without resort to exaggerated rhetoric rheto ric and unproductive recriminations. recriminations. Further, it was pointed out that lawyers, when they teach law, are considered engaged in the practice of law – their actions as law professors must be measured against the same canons of professional responsibility applicable to acts of members of the Bar as the fact of their being law professors is REVIEW URISTS inextricably entwined with the factJthat they are lawyers. CENTER 8. Fortun v. Quinsayas , 690 SCRA 623 (2013)

BARand REVIEW 2017 Disbarment proceedings proce edings are confidential premature p ublication of such may subject publication subject the offender  o ffender  to sanctions. Here, there was a disbarment complaint filed against the lawyer for the principal accused in the Maguindanao the  Maguindanao Massacre, Massacre, which fact was then reported on-line13 and in broadcast. The lawyer  against whom the complaint was filed sought to have several persons allegedly responsible for the

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  Noteworthy is what the court said about internet postings. “GMA Network did not deny that it posted the details of the Library Of Liberties  An Arsenal Of Arms disbarment complaint on A its website. It merely said that it has vis-à-vis no publication where the article could be printed and that the news was not televised. Online posting, however, is already publication considering that it was done on GMA Network’s online news website.”

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dissemination declared in direct contempt. The Court declared: “As a general rule, disbarment proceedings are confidential in nature until their  final resolution and the final decision of this Court. In this case, however, the filing of a disbarment complaint against petitioner is itself a matter of public concern considering that it arose from the Maguindanao Massacre case. The interest of the public is not on petitioner himself but primarily on his involvement and participation as defense counsel in the Maguindanao Massacre case. Indeed, the allegations in the disbarment disbarment complaint relate to petitioners p etitioners supposed supp osed actions actio ns involving involving the Maguindanao Massacre case. The T he Maguindanao Massacre is a very high-profile case. Of the 57 victims of the massacre, 30 were journalists. It is understandable that any matter related to the Maguindanao Massacre is considered a matter of public interest and that the personalities involved, including petitioner, are considered as public figure.” In other words, “[s]ince the disbarment complaint is a matter of public interest, legitimate media had a right to publish such fact under freedom of the press. The Court also reco gnizes gnizes that respondent media groups and personalities personalities merely merely acted on a news lead they received when they reported report ed the fili filing ng of the disbarment complaint.” complaint.” Further, Furt her, the Court Cou rt said that “The distribution distribut ion  by Atty. Quinsayas Quinsayas to the media of the disbarment c omplain omplaint, t, by itself, itself, is not suffici sufficient ent to absolve absolve the media from responsibility responsibility for violating the confidentiali c onfidentiality ty rule. However, Ho wever, since petitioner is a pu publi blicc figure or has become a public figure because he is representing a matter of public concern, and because the event itself that led to the filing of the disbarment case against petitioner is a matter of public concern, the media has the right to report the filing of the disbarment case as legitimate news. It would have been different if the disbarment case against petitioner was about a private matter as the media would then be  bound to respect the confidential confidentiality ity provision provision of disbarm disbarment ent proceedings under Section Section 18, Rule Rule 139-B of the Rules of Court.” In fine, “[i]f there is a legitimate legitimate public interest, media is not not prohibited p rohibited from making a fair, true, true , and accurate news report of a disbarment complaint. In the absence of a legitimate public interest in a disbarment complaint, members members of the media must preserve pre serve the confi co nfidentiality dentiality of disbarment disbarment proceedings pro ceedings during its pendency. Disciplinary proceedings against lawyers must still remain private and confidential until their final determination.”

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FREEDOM OF R ELIGION ELIGION

A man’s relationship with his idea of a deity or a Supreme Being is something which the State is not supposed to interfere interfere with. Nor No r is it really competent competent to t o deal with it. Like matters matters of o f thought, concerns about conscience and belief are a man’s own business. In any case, it is hardly possible for a worldly institution that the government is to try to interest itself in spiritual matters. Religion is a matter of faith JURISTS REVIEW CENTER and belief, not of scientific fact and verification. And, getting into the act on religious matters could hardly be beneficial beneficial to anyone, either for the government go vernment itself or for any particular religion. religion. Lessons Lesso ns from the past have made any such unions disastrous disastrous and counterproductiv counterproduct ive. e.

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Freedom Freedo m of religion religion guarantees guara ntees complete freedo m to believe withou withoutt any interference interference from the State. Sta te. The right to act, or to translate that belief into action, however, may be subject to certain regulations consistent consistent with the mandate of the State Stat e to promote the welfare of everyone everyone and to provide for an orderly society. Nevertheless, Nevert heless, this right right on the part pa rt of the government go vernment is not to be lightly assumed, as it must have to be weighed carefully with any religion-grounded freedom or interest that may be interfered with.

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In Estrada In Estrada v. Escritor  Escritor , 408 SCRA 1 (2003), the Court noted that in the Philippines Philippines we adopt a policy

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of benevolent neutrality  which allows for accommodation of religious practices and morality, and that an act or practice grounded on religious freedom may only be overcome by a compelling state interest . “ Benevolent neutrality recognizes government must pursue pursue its secular goals and interests but at the neutrality recognizes that government same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could neutrality could allow for accommodation of religion, provided it does doe s not offend o ffend compelling compelling state interests.” intere sts.” accommodation of morality based on religion, In the final decision on the case, Estrada case, Estrada v. Escritor , 492 SCRA 1 (2006), the Court then went on to allow a court interpret inter preter er to continue co ntinue with with her conjugal arrangement arrange ment with a married married man not her husband, since the same was sanctioned by her religion religion and there was wa s no compelling compelling state interest that would have warranted overriding her religion-grounded practice – ““we find that in this particular case and under these distinct circumstances , respondent Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to freedom of religion.” In Hosanna-Tabor In  Hosanna-Tabor Evangelical E vangelical Lutheran Church and School v. v . Equal E qual Employment Opportunity Opportunit y Commission, Commission , 565 U.S. ___ (No. 10-553, 11 January 2012), the U.S. Supreme Court discussed the socalled “ministerial “ministerial exception” in regard rega rd to claims claims of discrimination discrimination leveled against aga inst religious religious organizations o rganizations relative to employment relationships. In this case, Perich, a teacher who was also considered a minister  (“called teacher”) in a religious institution, developed narcolepsy (symptoms included sudden and deep sleeps from which she could not be roused). rouse d). She was placed on o n disabili disability ty leave, then after some time she notified the school that she would be able to report to work but she was informed that the school had already contracted with a lay teacher to fill her position for the remainder of the school year. The congregation congr egation subsequently subsequ ently offered offered to pay p ay a portion port ion of her health insurance premiums in in exchange for her  resignation as a called teacher. She refused re fused to resign and later presented pre sented herself at the school and refused to leave leave until she received written documentation that she had repo rted to work. The principal principal later later call c alled ed Perich and told her that she would likely be fired. Her employment was subsequently terminated on grounds which included her “insubordination and disruptive behavior,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” She then filed a charge with the Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation. litigation. Invoking I nvoking what is known as the “ministerial “ministerial exception,” exception, ” Hosanna-Tabor  Hosanna-T abor  argued that the suit was barred by the First Amendment because the claims concerned the employment relationship between a religious institution and one of its ministers. The Court agreed. It held held that t hat since the passage o off Title Title VII of the Civil Rights Rights Act of 1964 and other  employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded J inURISTS the First Amendment, precludes application of such legislation REVIEW Cthat ENTER to claims concerning the employment relationship between a religious institution and its ministers. It explained that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for  failing to do so, intrudes upon more than a mere employment BAR REVIEW 2017decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will  personify  personify its beliefs beliefs.. By imposing imposing an unwanted minister minister,, the state stat e infringes infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.” vis-à-vis A First Library Of Liberties  An Arsenal Of Arms Given the text of the Amendment itself, which gives special solicitude to the rights of religious

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organizations, organizations, the Court said that it “cannot accept accep t the remarkable remarkable view view that the Religion Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.” The Court further  stated that the “purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful – a matter ‘strictly ecclesiastical,’ . . . – is the church’s alone.” The Court concluded: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will  preach their beliefs, beliefs, teach their faith, faith, and and carry out their their missi mission. on. When When a minis minister ter who who has has been fired fired sues her church alleging that her termination was discriminato discriminatory, ry, the First Amendment has struck stru ck the balance for us. The church must be free to choose those who will guide it on its way.” Valenciano, re: Holding of Religious Rituals at the Halls Hall s of Justice 1.  Re: Letter of Tony Q. Valenciano,  Building in Quezon Quezon City, – SCRA – (A.M. No. 10-4-19-SC, 7 March 2017)

Here, in response to t o an issue about abo ut the t he use of the basement of the Quezon Quezo n City Hall of Justice for the holding of Catholic masses, the Court came up with guidelines so as not to violate the separation of  church and state stat e while allowing for for the exercise of one’s religion. religion. The Court directed direct ed the Executive Execut ive Judge of Quezon City to REGULATE and CLOSELY MONITOR the holding of masses and other reli re ligious gious  practices within within the Quezon City City Hall Hall of Justice Justice by by ensurin ensuring, g, among others, that: (a) it it does not disturb or interrupt interru pt court co urt proceedings; pro ceedings; (b) it does not adversely ad versely affect and interr interrupt upt the t he delivery of public service; service; and ( c) it does not no t unduly inconvenience the public. public. In no case c ase shall a particular p part art of o f a public building building  be a permanent place for for worship for for the benefit benefit of any and all all religi religious ous groups. There T here shall shall also also be no  permanent  permanent display display of o f religious religious icons in all halls halls of justice in the t he country. co untry. In case of religious religious rituals, religious icons and images may be displayed but their presentation is limited only during the celebration of such activities so as not to offend the sensibilities of members of other religious denominations or the non-religious public. After any religious affair, the icons and images shall be hidden or concealed from  public  public view. Such dispositi disposition on shall shall apply to all halls halls of justice justice in in the country. Other churches, religi religious ous denominations or sects are entitled to the same rights, privileges, and practices in every hall of justice. In other ot her buildin buildings gs not owned or controlled by the Judiciary, Judiciary, the Executive Judges should coordinate and seek approval of the building owners/administrators accommodating their courts.

I. FREEDOM OF MOVEMENT Man is a peripatetic being. He keeps moving about. He would likely develop bedsores and other  maladies if he simply stayed in one place. In any case, being able to move about and go to other places JURISTS REVIEW CENTER could have an informativ informativee and educativ educat ivee benefit, benefit, aside from the mere pleasur e of going to t o places and seeing sights other than the same old boring commonplace views. And, for the purpose of going places, even as he cannot run like cheetahs, flyB like or swim2017 like fishes, he might as well approximate the REVIEW ARbirds, same by building vehicles by which he can. And, talking of contempor co ntemporary ary events, seen se en in light light of the ease with which men men and women move and fly across acro ss boundaries, boundar ies, the implications implications of o f trans-national trans-nat ional illnesses illnesses might might as a s well be facto factored red in the calculus. c alculus. With concerns about swine flu, ebola, MERS, could one just be irresponsible in his travels?

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as he or she pleases. As a rule, certain clearances and permits have to be secured, otherwise sanctions may be imposed, specially on those in the judiciary, from judges to personnel.14 Also, just because you have a vehicle by which you can move move about does not necessarily necessarily mean mean that you can use it anywhere and everywhere. You can not insist on using a tricycle to traverse the expressways. In this regard, the following lines from  Mirasol v. Department of Public Works and   Highways,  Highways, 490 SCRA 318 (2006), may enlighten. “A toll way is not an ordinary road. As a facility designed designed to promote the t he fastest access to certain destinations, destinations, its use, operation, and maintenance 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.”

J. R IGHT IGHT TO INFORMATION Corollary to the right to express oneself freely is the right to be informed on matters which concern himself and the rest of the body politic. If the people are to make meaningful contributions to their  governance, then they must know what is happening inside and outside the halls of government. Basic to this right to be informed is the necessity for laws to be published in order to be effective. It makes no sense presuming knowledge15  if the government itself has not made provisions for the dissemination of statutes and regulations which affect the people’s lives and interests. Related to  publication,  publication, the Court held in Nagkakaisang in Nagkakaisang Maralita ng Sitio Masigasig, Inc. v. Military Shrine Services-Philippine Veterans Veterans Affairs Office, Department of National Defense, Defense, 697 SCRA 359 (2013), that a handwritten addendum to a Presidential Proclamation which was not included in the published version as it appeared in the Official Gazette  Gazette  will not recognized – such addendum is deemed not included as valid part of the Proclamation. It must not also be lost sight of that not only laws but laws but also administrative circulars which circulars which are not merely internal or interpretative which must also be published. And, in regard to this, the Court has also held that publication alone is not enough – there must also be filing of copies of the said circulars, rules and regulations in the Office of the National Administrative Register (ONAR) at the University of the Philippines Philippines Law Center. Cente r.16 However, there is no need for filing with the ONAR when it comes to merely internal or interpr interpretat etative ive circulars or resolutions.17 Neither does do es it apply to those t hose coming from the Judicial and Bar Council since such body is not under the executive department but the judicial department.18 On the need to balance the right to know and the government’s need to keep certain things 14

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 See, e.g., e.g.,  Leave Division, Office of Administrative Services-Office of the Court Administrator v. Heusdens , 662 SCRA 126 (2011), Del (2011),  Del Rosario v. Pascua, Pascua, 667 SCRA 1 (2012), and, Office of Administrative Services-Office of the Court Administrator v.  Macarine,  Macarine, 677 SCRA 1 (2012). 15

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

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 See, for instance, GMA Network, Inc. v. Movie and Television Review and Classification Board , (2007), Republic Board , 514 SCRA 191 (2007), Republic v. Pilipinas Shell Petroleum Corporation, Corporation , 550 SCRA 680 (2008), and Securities and Exchange Commission v. PICOP Resources, Inc., Inc. , 566 SCRA 451 (2008). 17

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 Board of Trustees of the Government Service Insurance System v. Velasco Velasco,, 641 SCRA 372 (2011). In Cawad v. Abad , 764 SCRA 1 (2015), it was held that Implementing Rules which merely interpret and reiterate the law and which do not create create a new duty or attach a new disability need not A be published nor filed with ONAR. Library Of Liberties vis-à-vis An Arsenal Of Arms 18

Villanueva v. Judicial and Bar Council , 755 SCRA 182 (2015)

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confidential, the Court had this to say in Senate of the Philippines v. Ermita, Ermita, 488 SCRA 1 (2006): “A transparent government is one of the hallmarks of a truly republican state. Even in the early history of  republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. . . . History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously.” And in that spirit, it did the deli de licate cate balancing involving involving the invocation of executive privilege legislativee inquiry inquiry , with the concomitant right and the power of legislativ right of the people peo ple to know as a consequence of such hearings. It held: “Executive privilege, whether asserted against Congress, the courts, or the  public, is recognized only in relation to t o certain types of information of a sensitive character . While executive privilege is a constitutional concept, a claim thereof may thereof may be valid or not depending on the ground grou nd invoked to justify it and the context conte xt in which which it is made. made. Noticea N oticeably bly absent is any recognition recog nition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. ” Then, notin not ing g the exceptional and personal nature of Executive privilege, the Court found “it essential to limit to the President the  power to invoke invoke the privilege. privilege. She may of o f course authorize the Executive Secretary to invoke invoke the  privilege  privilege on her her behalf, behalf, in in which which case the Executive Secretary must must state that the t he authority is ‘By order  of the President,’ P resident,’ which w hich means means that he personally pe rsonally consulted with w ith her. The privilege being being an extraord extr aordinary inary  power, it must be wielded wielded onl o nly y by the highest official official in in the executive executive hierarchy. I n other ot her words, wo rds, the t he President President may not authorize aut horize her subordinates to exercise such power.” How is people’s right to information implicated in all of these? “E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not no t merely the legisl legislative ative power of o f inquiry inquiry,, but the t he right of the people peo ple to information. information. There are, it  bears noting, clear clear distin distinctions ctions between between the right right of Congress to information information which which underlies underlies the power  of inquiry inquiry and the right of the people to information information on matters of public public concern. . . . To the t he extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their  own opinions on the matter before Congress – opinions which they can then communicate to their  representatives repre sentatives and other ot her government gover nment officials officials through thro ugh the various legal means allowed allowed by their freedom 19 of expression.” Moreover, even as “E.O. 464 applies only R to EVIEW officials of executive branch, it does not follow that JURISTS Cthe ENTER the same is exempt from the need for publication.” Since the subject matter of said executive issuance is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice, “logic dictates that the challenged order must be BAR REVIEW 2017 covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of  19

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

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“[T]he conduct of inquiries in aid of legislation is not only intended to benefit Congress but also the citizenry. The people are equally concerned with this proceeding and have the right to participate therein in order to protect their interests. The extent of their   participation will largely depend on the information gathered gathered and made known to them. In other words, the right to in formation really vis-à-vis A Library Of Liberties  Anhonesty Arsenal Of Arms goes hand-in-hand with the constitutional policies of full public disclosure and in the public service. It It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in the government.”

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the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented.” implemented.” With regard to judicial records, Hilado records,  Hilado v. Reyes, Reyes, 496 SCRA 282 (2006), teaches us that the term “judicial record” or “court record” does not only refer to the orders, judgment or verdict of the courts  – it comprises comprises the offici official al collection collection of all all papers, exhi exhibits bits and pleadings pleadings filed filed by the parties, parties, all all processes issued issued and returns made thereon, appearances, and word-for-word testim te stimony ony which took place during the trial and which which are in the possession, possession, custody, or control co ntrol of the judiciary judiciary or of o f the courts for purposes of rendering court decisions. The interest of the public hinges on its right to transparency in the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial  proceedings, safeguard the integrity integrity of the fact-fi fact-findin nding g process, process, and foster an informed informed public public discussi discussion on of public affairs. Accordingly, justice requires that all should have free access to the opinions of judges and justices, and it would be against sound public policy to prevent, suppress or keep the earliest knowledge of these from the public. In fine, once a particular information has been determined to be of   public  public concern, the accessory right of access to t o official official records, including including judicial judicial records, reco rds, becomes available. However, there is a difference, between court orders or judgments and the parties’ pleadings and whatever may go with the same. Unlike court orders and decisions, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. Information regarding the financial standing of a person at the time of his death and the manner by which his private estate may ultimately be settled is not a matter of general, public concern or one in which a citizen or the public has an interest by which its legal rights or liabilities liabilities may may be affected. If the information information sought so ught is not a matter  of public concern or interest, denial of access thereto does not violate the constitutional right to information. Then, on privacy concerns, People concerns, People v. Cabalquinto, Cabalquinto, 502 SCRA 419 (2006), comes co mes to the fore. If one were to wonder why AAA is so familiar a rape victim, it is because of the policy adopted by the Court in Cabalquinto. Cabalquinto. It is normally the case that the names of o f the parties pa rties involved in a case, from the plaintiffs plaintiffs to defendants, to accused and the victims, are identified in the reports of cases which are disseminated for everyone to read. In Cabalquinto the Cabalquinto the Court adopted a new policy in regard to crimes involving violence to women and their children. Taking into consideration the need to maintain the confidentiality of information information in cases involving involving violence against women wo men and their children, children, the Court, Co urt, starting start ing with said case, withheld the real rea l name name of the victim-survivor victim-survivor and used fictitious initials initials instead instead to t o represent repre sent her. The T he Court further furt her declared that, “[l]ikewise, the personal circumstances of the victims-survivors victims-survivors or any other  information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed.” Subsequently, in People in People v. Rentoria, Rentoria, 533 SCRA 708 (2007), the t he Court also decreed thatJthe exact addresses of the victims victims should should be deleted. Thus, if you now REVIEW CENTER URISTS read initials that sound like battery sizes or advertisements comparing a named brand with their  competitors, you would wo uld understand why. why.

BAR R 2017has held: “We are prepared to concede EVIEW With With regard to t o profes pro fessional sional board examinations, examin ations, the Court co ncede that national board examinations such as the CPA Board Exams are matters of public concern. The  populace in in general, general, and the examinees examinees in in particular, particular, would understandably understandably be interested interested in the fair fair and competent administration of these exams in order to ensure that only those qualified are admitted into the accounting profession. And as with all matters pedagogical, these examinations could be not merely quantitative means of assessment, but also means to further improve the teaching and learning of the art A Library Of Liberties vis-à-vis An Arsenal Of Arms and science of accounting. On the other hand, we do realize that there may be valid reasons to limit

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access to the Examination Papers in order to properly administer the exam. More than the mere convenience of the examiner, it may well be that there exist inherent difficulties in the preparation, generation, encoding, administration, and checking of these multiple multiple choice exams that require that the questions and answers remain confidential for a limited duration.”20 Records and Documents and the Attendance of Court officials 1.  In Re: Production of Court Records and Employees as Witnesses Under the Subpoenas of February 10, 2012 and the Various  Letters for the Impeachment Prosecution Panel dated January 19 and 25, 2012 , 14 February 2012 (http://sc.judiciary (http://sc.judiciary.gov.ph/juri .gov.ph/jurisprudence/2012/f sprudence/2012/february2012/noti ebruary2012/notice.pdf) ce.pdf)

Relative to the presentation of evidence against the Chief Justice in his impeachment trial, requests were made with the Supreme Court for the examination and production of certain documents and records, reco rds, as well as the testimony of Justices, officials officials and employees of the Court, Co urt, including including the issuance of certified true copies of the rollos and rollos and the Agenda and Minutes of the Deliberations relative to certain cases. Here, the Court Co urt had to approach the matter from perspective perspective of the principle principle of separation separation of powers and the concomitant independence of the judiciary. “From the constitutional perspective, a necessary starting vantage point in this consideration is the principle of separation of powers   through the recognition of the independence of each branch of government   and through the protection of   privileged  privileged and confidential confidential documents documents and processes, as recognized reco gnized by law, law, by the rules and by Court  principle of comity  – the practice of voluntarily  policies.”  policies.” Then, these t hese consi co nsiderations derations taken with the principle observing inter-departmental courtesy   in undertaking their assigned constitutional duties for the harmonious harmonious working of government government – the Court proceeded to state that “[i]nter-departmental courtesy demands that the highest levels of each department be exempt from the compulsory processes of  the other departments on matters related to the functions and duties of their office. ” With the foregoing backdrop, the Court then discussed confidentiality of court deliberations and records. reco rds. “In the Judiciary, privileges privileges against aga inst disclosure disclosure of official official records ‘create ‘cr eate a hierarchy of rights that  protect certain confidential confidential relationshi relationships ps over and above above the publi public’s c’s evidentiary evidentiary need’ or ‘right ‘right to every every man’s evidence.’ Accordingly, certain information contained in the records of cases before the Supreme Court are considered confidential and are exempt from disclosure. To reiterate, the need arises from the dictates of o f the integrity of the Co urt’s decision-maki de cision-making ng function which may may be affecte affected d by the disclosure disclosure of information. Specifically, the Internal Rules of the Supreme Court (IRSC) prohibits the disclosure of  o n each case included in the agenda (1) the result of the raffle of cases, (2) the actions taken by the Court on of the Court’s session, and (3) the deliberations of the Members in court sessions on cases and matters pending before it .” JURISTS REVIEW CENTER What about the confidentiali c onfidentiality ty requirement? “[T]he “[T ]he rules on o n confidentiality confidentiality will enable enable the Members of the Court to t o ‘freely discuss discuss the issues without fear of criticism for holding unpopular unpop ular positions’ or fear  B R 2017 AR EVIEW of humiliation for one’s comments. The privilege against disclosure of these kinds of  information/communication is known as deliberative process privilege , involving as it does the deliberative process of reaching a decision. ‘Written advice from a variety of individuals is an important element of the government’s decision-making process and that the interchange interc hange of advice could be stifled if courts court s force forced d the government to d disclose isclose those recommendations;’ the privilege privilege is intended ‘to prevent pr event

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the “chilling” “chilling” of deliberative communications.’” And, in this t his regard, confidentiality confidentiality is not something so mething that the Court alone is claiming for itself. “[A] Senator may invoke legislative privilege when privilege when he or she is questioned outside the Senate about information gathered during during an executive session of the Senate’s legislative inquiry in aid of legislation. In the same manner, a justice of the court or a judge may invoke  judicial privilege in privilege in the Senate sitting as an Impeachment Court, for proceedings in the performance of  his or her own judicial functions. What applies to magistrates applies with equal force to court officials and employees who are privy to these deliberations . They may likewise claim exemption when asked about this privileged information.” What is then the extent of this rule of confidentiality applicable to courts? The Court explained that while Section 2, Rule 10 of the Internal Rules of the Supreme Court (IRSC) speaks only of the confidentiality of court deliberations, “it is understood that the rule extends to documents and other communications which are part of or are related to the deliberative process . The deliberative  process privil privilege ege protects from disclosure disclosure documents reflecting reflecting advisory advisory opinions, opinions, recommendations recommendations and deliberations that are ar e component parts p arts of the pro cess for formulating governmental gover nmental decisions decisions and policies. Obviously, the privilege may also be claimed by other court officials and employees when asked to act on these documents do cuments and other comm co mmunic unications. ations. ” deliberative process process privilege privilege ? “To qualif And, how do you draw the parameters of this judicial deliberative q ualify y for   protection under the deliberati deliberative ve process privil privilege, ege, the agency agency must show show that the document document is both both (1) predecisional   and (2) deliberative .” Otherwise put, “[a] document is ‘predecisional’ under the deliberative process privilege privilege if it it precedes, pre cedes, in temporal tempo ral sequence, the decisi de cision on to which it relates. In other  othe r  words, communications are considered predecisional if they were made in the attempt to reach a final conclusion . A material is ‘deliberative,’ on the other hand, if it reflects the give-and-take of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency . If the disclosure of the information would expose the government’s decisionmaking process in a way that discourages candid discussion among the decision-makers (thereby undermining the courts’ ability to  perform their functions), functions), the information information is deemed privil privileged. eged. Court records which are ‘predecisional’ and ‘deliberative’ in nature nat ure are thus protected and cannot be the subject subj ect of a subpoena if judicial privilege is to be preserved.  The privilege in general insulates insulates the t he Judiciary from an improper improper intrusion into the functions of the judicial branch and shields justices, judges, and court officials and employees from public scrutiny or the pressure of public opinion that would impair a judge’s ability to render  impartial decisions. decisions. The T he deliberative process proc ess can be impaired by undue exposure of o f the decision-making  process to public scrutiny scrutiny before before or even after the decision decision is made,. made,. . .” .”

In addition, “two other grounds may be cited for denying access to court records, as well as JURISTS REVIEW C ENTER  preventing  preventing members members of the bench, from being being subjected subjected to compulsory compulsory process:(1) the disqualification by reason of privileged communication and (2) the pendency of an action or matter ” – “Members of the Court may not be compelled to testify in the impeachment proceedings against the Chief Justice BAR REVIEW 2017 or other Members of the Court about information they acquired in the performance of their official function of adjudication, such as information on how deli de liberations berations were conducte co nducted d or the material inputs inputs that the justices used in decision-making, because the end-result would be the disclosure of confidential information that could subject them to criminal prosecution. Such act violates judicial violates judicial privilege (or privilege (or the equivalent of executive privilege) privilege) as it pertains to the exercise of the constitutional mandate of  adjudication.” HowA about court Of officials and employees? Well,Arsenal the sameOf rules on confidentiality apply vis-à-vis An Library Liberties Arms to them. In this regard, too, note must be taken of the fact that “[u]nder existing laws, neither the

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Impeachment Court nor the Senate has the power to grant immunity from criminal prosecution for  revealing confidential information.” The Court further clarified that the rule on confidentiality confidentialit y applied to internal deliberations and  actions  (adjudicatory functions) as distinguished from external matters . “To state the rule differently, Justices of the Court cannot be compelled compelled to testif t estify y on matters relating relating to the internal deliberations and adjudicator y functions functions and duties. du ties. This is to be differentiate differentiated d actions of the Court , in the exercise of their adjudicatory from a situat situation ion where the t he testimony is on a matter matte r which is external to their adjudicatory functions and duties. For example, where the ground cited in an impeachment complaint is bribery, a Justice may be called as a witness in the impeachment of another Justice, as bribery is a matter external to or is not connected with wit h t he adjudicatory functions functions and duties of a magistrate. magistrate. A Justice, however, may not be called called to t o testif t estify y on the t he arguments the accused Justice presented presented in the internal internal debates as these constitute c onstitute details of the deliberative process.” On the need to subpoena court personnel to testify, the court said, “witnesses need not be summoned to testify on matters of public record ” because “entries in official records may be presented without the necessity of o f presenting in court the officer or person person who made the entries . Entries in public public or off o ffici icial al books or records may be proved by the pro duction of the boo ks or records themselves or by a copy certified by the legal keeper thereof. These records, however, may be presented and marked in evidence only where they are not excluded by reasons of privilege and the other reasons discussed above .” And to make it clear for everyone, the Court declared: “As a last point and mainly for purposes of  stress, the privileges discussed above that apply to justices and judges apply mutatis mutandis to mutandis to court officials officials and employees with respect respe ct to t o their t heir official official functions. If the intent only o nly is for them to identify and certify to the existence and genuineness of documents within their custody or control that are not otherwise confidential or privileged under the above discussed rules, their presence before the Impeachment Court can be and should be excused where certified copies of these non-privileged and non-confidential documents can be provided.” 2.  Re: Request for Copy of 2008 Statement of Assets, Liabilities and Net Worth [SALN] and   Personal Data Sheet or Curriculum Curriculum Vitae of the Justice of the Supreme Court and  Officers and Employees of the Judiciary , 672 SCRA 27 (2012) Relative Relative to the issues of transparency transparency and access to matters of public public concern, this case about the request for Statements of Assets, Liabili Liabilities ties and Net Worth (SALN) and other related documents about members of the judiciary, the Court came up with the following guidelines: 1. All requests shall be filed with the Office the ClerkC ofENTER Court of the Supreme Court, the Court of  JURISTS RofEVIEW Appeals, the Sandiganbayan, the Court of Tax Appeals; for the lower courts, with the Office of the Court Administrator; and for attached agencies, with their respective heads of offices. AR EVIEW 2. Requests shall cover only copiesBof theR latest SALN,2017 PDS and CV of the members, officials and employees employees of the Judiciary, and a nd may cover only previous records if so specifically requested and considered as justified, as determined by the officials mentioned in par. 1 above, under the terms of these guidelines and the Implementing Rules and Regulations of R.A. No. 6713.

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3. In the case of requests for copies of SALN of the Justices of the Supreme Court, the Court of  Appeals, the Sandiganbayan and the Court of Tax Appeals, the authority to disclose shall be made by the A Library Of Liberties vis-à-vis An Arsenal Of Arms Court En Court En Banc. Banc.

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4. Every request shall explain the requesting party’s specific purpose and their individual interests sought to be served; shall state the commitment that the request shall only be for the stated purpose; and shall be submitted in a duly accomplished request form secure d from the SC website. The use of the information secured shall only be for the stated purpose. 5. In the case of requesting individuals other than members of the media, their interests should go  beyond  beyond pure or or mere curiosity curiosity.. 6. In the case of the members members of the media, the request shall additionally be supported by proof under  oath of their media affiliation and by a similar certification of the accreditation of their respective organizations as legitimate media practitioners. 7. The T he requesting party, whether as individuals or as members members of the media, must have no derogatory record of having misused any requested information previously furnished to them.

Trade and Related Related Matters Matters (CTRM) of the the National Economic Economic and  3.  Sereno v. Committee on Trade  Development Authority Authority (NEDA), 782 SCRA 486 (2016)

Minutes Minutes of closed-door meetings meetings of the Committee Committee on o n Trade and Related Maters (CTRM) are exempt exempt from the constitutional right of access to information. The Court pointed out that two requisites must concur concu r before the right to information information may be compelled by writ ofmandamus of mandamus.. “ Firstly  Firstly, the information sought must be in relation to matters of public concern or public interest. And secondly And  secondly,, it must not be exempt by law from the operation of the constitutional guarantee. As to the first requisite, there is no rigid test in determining whether or not a particular information is of public concern or public interest. Both terms cover a wide-range of issues that the public may want to be familiar with either because the issues have a direct effect on them or because the issues ‘naturally arouse the interest of an ordinary citizen.’ As such, whether or not the information sought is of public interest or public concern is left to the proper determination of the courts on a case to case basis. . . . The second requisite is that the information information requested must not be excluded by law law from the constitutional guarantee. guarantee. In that regard, the Court has already declared that the constitutional guarantee of the people’s right right to t o information information does not cover national security matters and intelligence information, trade secrets and banking transactions and criminal matters. Equally excluded from coverage of the constitutional guarantee are diplomatic corresponde corr espondence, nce, closed-door closed-do or Cabinet meeting and executive execut ive sessions sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. In Chavez v. Public Estates Authority, Authority, the Court has ruled that the right to t o informati information on does do es not extend to t o matters acknowledged as ‘privil ‘privileged eged information information under the separation of powers,’ which include ‘Presidential conversations, correspondences, or  discussions during closed-door Cabinet meetings.’ Likewise exempted from the right to information are ‘information ‘information on o n military military and diplomatic secrets, sec rets, information affecting national security, secu rity, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused.’”

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Here, the respondents claim exemption on the ground that the May 23, 2005 meeting was classified as a closed-door closed-do or Cabinet meeting by virtue virtue of the committee’s composition and the nature of its mandate Bde Rpolicy-making. AR EVIEW 2017 dealing with matters of foreign affairs, affairs, trade tra and They assert that the t he information information withheld w ithheld was within the scope of the exemption from disclosure disclosure because beca use the CTRM meetings were directly related to the exercise of the sovereign prerogative of the President as the Head o f State in the conduct of foreign affairs affairs and the regulation reg ulation of trade, trade , as provided in Section 3(a) 3( a) of Rule IV of the Rules Ru les Implementing Implementing R.A.  No. 6713. The Court upheld upheld such claim. claim. “The “The respondents are correct. It is always always necessary, necessary, given given the highly highly importa important nt and complex powers to fix tariff rates vested veste d in the President, that the t he recommendations vis-à-vis A Library Of Liberties  An Arsenal Of Arms submitted for the President’s consideration be well-thought out and well-deliberated. The Court has

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expressly recognized in Chavez v. Public Estates Authority that Authority that ‘a frank exchange of exploratory ideas and assessments, free from the glare of publicity publicity and pressure by in interest terested ed parties, part ies, is essential to protect pro tect the independence of decision-making of those tasked to exer cise Presidential, Legislative and Judicial  power. . . . Without Without doubt, therefore, ensuring and promoting the free exchange of ideas among the t he members of the committe committeee tasked to give tariff recommendations reco mmendations to the Pr President esident were truly tru ly imperative.” In addition, the Court also declared: “Every claim of exemption, being a limitation on a right constitutionally constitu tionally granted grante d to the t he people, peop le, is liberally liberally construed in favor of disclosure and strictly against the claim of confidentiality. However, the claim of privilege privilege as a cause c ause for exemption e xemption from the obligation to disclose information must be clearly asserted by specifying the grounds for the exemption. In case of  denial of access acce ss to the information, it is the government agency concerned conce rned that has the burden of showing that the t he information information sought to be obtained is not a matter of o f public public concern, or that the same is exempted exempted from the coverage of the constitutional guarantee. We reiterate, therefore, that the burden has been well-discharged herein.” Further, Furthe r, “executive “execut ive privilege privilege is properly invoked in relation to specific categories of information, not to categories of persons. As such, the fact that some members of the committee were not part of o f the President’s Cabinet was of no moment. What should determine dete rmine whether or not information was within the ambit of the exception from the people’s right to access to information was not the composition of the body, but the nature of the information sought to be accessed.” Finally, “[i]n case of  conflict, there is a need to strike a balance between the right of the people and the interest of the Government Government to be protected. Here, the need to ensure the protection prot ection of the privilege privilege of non-discl non-disclosure osure is necessary to allow the free exchange of ideas among Government officials as well as to guarantee the well-considered recommendation free from interference of the inquisitive public.” Foreign Affairs v. v. BCA International International Corporation Corporation , 795 SCRA 276 (2016) 4.  Department of Foreign

In this case involving involving an arbitration proceeding, proc eeding, BCA  BCA International  sought  sought the issuance of a subpoena ad testificandum and testificandum and subpoena duces tecum  tecum  relative to its dispute with the Department of Foreign Affairs. The DFA opposed the same, alleging that the presentation of the witnesses and documents was  prohibited  prohibited by law and protected by the deliberativ deliberativee process priv p rivil ilege. ege. In the t he meantime, meantime, there was an appearance of three witnesses subpoenaed during the arbitration hearings. The Supreme Court subsequently issued a TRO enjoining the arbitral tribunal from taking cognizance of the testimonies of  the 3 witnesses. It eventually held that the deliberative process privilege could privilege could be properly invoked in an arbitration arbitration proceeding if warranted under the circumstances. circumstances. The Court also noted that t hat “this case is one of first impression impression involving involving the product pro duction ion of evidence evidence in an arbitration case ca se where the t he deliberative process privilege is invoked.” The Court Cou rt said that the Regional Trial Court was wrong wro ng in holding that the t he information information was wa sno longer   privileged.  privileged. “Contrary to the RTC's ruling, there is nothing nothinC g in our ou r Chavez v. Public Estates Authority JURISTS REVIEW ENTER ruling which states that once a ‘definite proposition’ is reached by an agency, the privileged character of  a document no longer exists. On the other hand, we hold that before a ‘definite proposition’ is reached  by an agency, a gency, there are no ‘official ‘official acts, transactions, decisions’ decisions’ yet which can be accessed by the BAR REVIEWor2017  public  public under the right to t o informati information. on. Only Only when there is an official official recommendation recommendation can a ‘defini ‘definite te  proposition’ arise and, accordingly, accordingly, the t he public’s public’s right to information information attaches. att aches. However, Ho wever, thi t hiss right to information information has certain li limitations mitations and does not cover privileged information information to t o protect pro tect the t he independe independence nce of decision-making by the government.” After declaring that “[d]eliberative process privilege is one kind of privileged information, which is within the exceptions of the constitutional right to vis-à-vis A urt Library Of  An character Arsenal of Ofthe Arms information,” the Court Co went on on to Liberties state st ate that “[t]he privileged privileged inform information ation does not end

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when an agency has adopted a definite proposition or when a contract has been perfected or  consummated; ot herwise, the purpo se of the privil privilege ege will be defeated. The deliberative process privilege applies applies if its purpose is served, that is, ‘to protect prot ect the frank exchange exchange of ideas and opinions critical to the government’s decision[-]making process where disclosure would discourage such discussion in the future.’ In Judicial In  Judicial Watch of Florida v. Department of Justice, the Justice, the U.S. District District Court for the District of Columbia held that the deliberative process privilege's ‘ultimate purpose xx x is to prevent injury to the quality of agency decisions decisions by allowing allowing government gove rnment officials officials freedom to debate alternative a lternative approaches appro aches in private,’ and this ultimate purpose purpo se would not be served ser ved equally well well by making the privilege privilege temporar t emporary y or held to have expired.” Further, “‘[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.’” In fine, fine, “[t]he deli de liberative berative process pro cess privilege privilege can ca n also be invoked invoked in arbitration arbitratio n proceedings procee dings under RA 9285. ‘Deliberative process privilege contains three policy bases: first, bases:  first, the privilege protects candid discussions within an agency; second, agency; second, it prevents public confusion from premature disclosure of agency opinions before the agency establishes final policy; and third, it protects the integrity of an agency’s decision; the public should not judge offi o fficials cials based on information information they considered co nsidered prior to issuing issuing their  final final decisions.’ decisions.’ Stated St ated differently, differently, the privil p rivilege ege serves serve s ‘to assure a ssure that subordinates subo rdinates within an agency will will feel free to provide the decision[-]maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of   proposed policies policies before before they have have been been final finally ly formulated formulated or adopted; and to protect again a gainst st confusing confusing the issues and misleading the public by dissemin dissemination ation of documents doc uments suggesting rea reasons sons and rationales rat ionales for  a course of action which were not in fact the ultimate reasons for the agency’s action.’ Under RA 9285, orders of an arbitral tribunal are appealable to the courts. If an official is compelled to testify before an arbitral tribunal and the order o rder of o f an arbitral tribunal is is appealed to t o the court c ourts, s, such official can be inhibited inhibited  by fear of later later being being subject subject to public public criticism criticism,, preventing preventing such official official from making making candid candid discussions discussions within his his or her agency. The decisi dec ision on of o f the court co urt is widely published, published, including details involving involving the  privileged  privileged information. information. This disclosure disclosure of privileged privileged information information can inhib inhibit it a public public official official from expressing his or her candid opinion. Future quality of deliberative process can be impaired by undue exposure of the decisionmaking process to public scrutiny after the court decision is made.” The Court further held that “[t]here is a public policy involved in a claim of deliberative process  privilege  privilege – ‘the ‘the policy of open, frank frank discussion discussion between subordinate subordinate and and chief concerning concerning admini administrative strative action.’ Thus, the deliberative process privilege cannot be waived.” Nevertheless, “[a]s a qualified  privilege,  privilege, the burden falls falls upon the government go vernment agency asserting asserting the t he deliberative deliberative process privilege privilege to to  prove that the information information in question satisfi satisfies es both requirements requirements – predecisional predecisional and deliberative.” deliberative.”

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R IGHT IGHT OF ASSOCIATION

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Man being a social being necessarily finds it part of his natural inclinations that he associate with others. ot hers. He would w ould not relish the idea o f simply simply being being an island all by himself himself,, isolated from the t he rest or o r the mainland. And the act of so joining others could be a form of expression – you link up with people who are likely to share your interests, sentiments, philosophy, ideology or affection. 21  And, the right to associate may also include as a necessary corollary, the right not to associate, though such latter right

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may not justify a lawyer in refusing to pay his dues to the IBP.22 The right to associate may also mean that an organization would have the right to choose who its members are, excluding or expell expe lling ing those whose who se personality perso nality traits may run into confli c onflict ct with the group’s gr oup’s 23 refusing participation participation to a group in a parade where that gro up’s message message would not be  philosophy,  philosophy,  or refusing 24 in conformity with the organizer’s own idea of what the activity is all about.  And, when it comes to associations directly related to one’s employment, “the right to abstain from joining a labor organization is subordinate to the policy of encouraging unionism as an instrument of social justice.”25

L. EMINENT DOMAIN While the government may negotiate with the owner for the acquisition of the latter’s property, such a procedure may not always result in a successful transaction, however, especially if there is need for  more expeditious action, or, the owner may simply be disinclined to sell. Thus, this coercive power of  the government to take property p roperty even if the owner oppo ses, provided the same is is for public public use and there t here is payment of just compensation. Accordingly, questions on expropriation may deal with issues of  necessity,26 or arbitrary exercise,27 as well as the justness the justness and  and timeliness of timeliness of the payment payment for the property p roperty 28 taken.  As for for judicial determination dete rmination of just just compensation, co mpensation, the Court Co urt has reverted revert ed to the old rule that the same is a judicial function, not one to be simply determined by looking at what is indicated in the tax declaration. 29 With regard to public use, the same has also been construed to have a more expansive meaning so as to cover certain purposes which could not have been included in the past, such as tourism, 30 and setting up the birthplace of a known religious leader as a National Historical Landmark.31 Also, considering that the power of eminent domain involves the strong arm of the law to compel an unwilling person to part with his property,32 extreme caution is called for in resolving complaints for  condemnation condemnation – when a serious doubt aris a rises es regarding the supposed public public use of property, the t he doubt

22

 In re Edillon, Edillon , 84 SCRA 554 (1978)

23

 See Boy  See Boy Scouts of America v. Dale, Dale , 530 U.S. 640 (2000), where the U.S. Supreme Court upheld the right of the Boy Scouts to exclude a homosexual. See also Ordinario v. People, People, 428 SCRA 773 (2 004), which in volves a teacher in Boy Scout who was convicted of sexual assault for putting his organ into the mouth of a male ten-year old pupil. 24 25

 Hurley v. Irish American Gay, Lesbian and Bis exual Group of Bost on, on, 515 U.S. 557 (1995)  Bank of the Philippine Islands v. BPI Employees Employees Union-Davao Chapter-Federation Chapter-Federation of Unions in BPI BPI Unibank , 627 SCRA 590

(2010) 26 27 28

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

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

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 The interest rate has been set at twelve  per centum (12%) centum (12%) per annum, to be computed from the time of taking to the date of   payment, which rate should help eliminate the constant fluctuation and inflation of the value of currency currency over over time. ( Republic v. Court  of Appeals, Appeals, 383 SCRA 611 [2002]; Reyes [2002]; Reyes v. National Housing Aut hority, hority , 395 SCRA 494 [2003]; Republic [2003]; Republic v. Court of Appeals., Appeals., 454 SCRA 516 [2005]). However, star ting 1 July 2013, theAR ra te hasEVIEW been lowered to six per six per cent  (6%).  (6%). (See Department (See Department of Agrarian Reform v. Sta. Romana, Romana, 729 SCRA 387 [2014])

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 “The fact that said lots are being utilized by respondents Legaspis for their own private purposes is, consequently, not a valid vis-à-vis Of Liberties  An Arsenal Of Arms reason to deny exercise ofAtheLibrary right of expropriation, for as long as the taking is for a public purpose and just compensation is paid.” ( Republic  Republic v. Legaspi, Sr. , 670 SCRA 110 [2012])

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should be resolved resolved in favor of the property propert y owner and against the State,33 or, that eminent domain cases are to be strictly construed against the expropriator.34  This perspective would make it easier to understand the Court’s recent rulings mandating payment within within five (5) years from finality of the  judgment  judgment of expropriation, expropriation, otherwise the owner would would be entitled entitled to demand demand recovery of possession, possession,35 as well as the repurchase o f the property prop erty when the purpo se for which it was expropriated is abandoned. abandoned.36 Further, note that the t he exercise exercise of the power of o f eminent eminent domain is is not subject subject to t o the t he strictures ofres of res  judicata or  judicata or the principle of law of the case. The mere fact that the government or its agencies may not have prevailed prevailed in the first first attempt to t o expropriate a property does doe s not preclude p reclude them from from doing so again a gain,, 37 making adjustments or rectifications in whatever may have been the earlier deficiencies. Also, in the context of expropriation proceedings, the soil has no value separate from that of the expropriated land.38 Luisita, Inc. v. Presidential Presidential Agrarian Reform Reform Council , 670 SCRA 392 (2012) 1.  Hacienda Luisita,

In Republic In  Republic v. Vda. De Castellvi, Castellvi, 58 SCRA 336 (1974), the Court spoke about the elements of  “taking,” “taking,” in order to properly determine determine the reckoni recko ning ng date for just compensation. compensation. It made reference reference to entry, which must be for more than a momentary period, and which entry must also be under warrant or  color of legal authority, as well as the need to devote the property to public use, and, the ouster and deprivation of o f the owner of o f all beneficial beneficial enjoyment enjoyment of the prope p roperty. rty. Meanwhile, inTiongson inTiongson v. National   Housing Authority A uthority,, 558 SCRA 56 (2008), the Court held that where the initial taking of a property subject to expropriation was by virtue of a law which was subsequently declared unconstitutional, just compensation is to be determined as of the date of the filing of the complaint, not the date of taking. In the case of Hacienda of  Hacienda Luisita, Luisita, the Court also had to determine when the property was deemed taken take n for purposes purpo ses of the agrarian reform program considering that the earlier plan to co mply – by means means of a “stock distribution plan” (SDP) (SDP ) – was eventually invali invalidate dated. d. So, is it at the time the SDP agreement agree ment was approved (1989), or the time when compulsory acquisition was subsequently mandated (2006) following the invalidation of the SDP agreement? The Court said, it is the former. It explained that the date of “taking” is 21 November 1989, the date when Presidential Agrarian Reform Council (PARC) approved the Hacienda’s SDP in view of the fact that this is the time that the farmworkers-beneficiaries (FWBs) were considered to own and possess the agricultural lands in Hacienda Luisita. To be precise, these lands became subject of the agrarian reform coverage through the stock distribution scheme only upon the approval of the SDP. Such approval is akin to a notice of coverage ordinarily issued under  compulsory acquisition. “‘Taking’ also occurs,” the Court further stated, “when agricultural lands are voluntarily offered by JURISTS REVIEW CENTER a landowner and a nd approved appro ved by PARC for CARP coverage coverag e through throug h the stock distribution scheme, as in the instant case. Thus, HLI’s submitting its SDP for approval is an acknowledgment on its part that the agricultural lands of Hacienda Luisita Luisita are covered co vered by CARP. However, it was the PARC appro val which which

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33 34 35 36 37 38

 Barangay Sind alan, San Fernando, Pampanga v. Court of Appeals, 518 Appeals, 518 SCRA 649 (2007) San Roque Realty and Development Corporation v. Republic, Republic, 532 SCRA 493 (2007)  Republic v. Lim , 462 SCRA 265 (2005)

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 Mactan-Cebu Internatio nal Airport Authority v. Lozada, Sr., Sr. , 613 SCRA 618 (2010)  See Municipality  See Municipality A of Parañaque V.M.Liberties Realty Corporation, Corporation , 292 SCRA (1998) vis-à-vis Libraryv.Of  An678 Arsenal  Republic v. Rural Ban k of Kabacan, In c., c., 664 SCRA 233(2012)

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should be considered as the effective date of ‘taking’ as it was only during this time that the government officially confirmed the CARP coverage of these lands.” Such approval operates and takes the place of  a notice of coverage ordinarily issued under compulsory acquisition. acquisition. 2.  National Power Corpora Corporation tion v. Zabala , 689 SCRA 554 (2013) In this case, the Court reaffirmed the rule that “[l]egislative enactments, as well as executive issuances, fixing or providing for the method of computing just compensation are tantamount to impermissible encroachment on judicial prerogatives.” Thus, it disregarded the National Power  Corporation’s reliance on §3A(b) of R.A. No. 6395 (NAPOCOR Charter) which provides merely for a 10% right-of-way easement fee, fee, instead of the full amount for the property affected by the transmission lines lines of NAPOCOR. “[S]ince “[S ]ince the high-tension electric current passing through throug h the transmi tra nsmission ssion lines lines will  perpetually deprive deprive the t he property pro perty owners o wners of the normal use of o f their land, it is only just and proper to require Napocor to recompense them for the full market value of their property.” Statutes Statut es and executive issuances fixing or providing for the method of computing just compensation are not binding on courts and, at best, are treated as mere guidelines in ascertaining the amount thereof. 3.  National Power Corpora Corporation tion v. Cruz , 702 SCRA 359 (2013) The appointment of the Provincial the Provincial Appraisal Appraisal Committee ( Committee ( PAC   PAC ) instead of three (3) commissioners to assist the court co urt in determining determining just compensation co mpensation substantiall substa ntially y complies complies with §5 of Rule 67 of the Rules of Court. It was explained, thus: “Although the appointment of commissioners is mandatory, the Rules do not impose any qualifications or restrictions on the appointment, other than that the commissioners should not number more than three and that they should be competent and disinterested disinterested parties. part ies. . . . It is immaterial immaterial that the RTC appointed ap pointed a committee instead committee instead of three persons per sons to act ac t as commissioners, commissioners, since the PAC is composed of three members — the Provincial Assessor, the Provincial Engineer, and the Provinci Pro vincial al Treasurer. Co nsidering their their positions, we find each member member of the PAC competent to perform the duty required req uired of them, i.e., i.e., to appraise the valuati valuation on of the affected lots. . . . The mere fact that they are government go vernment officials officials does not no t disqualify them as disinterested persons, as a s the provincial government has no significant interest in the case. Instead, what we find material is that the PAC was tasked to  perform precisely precisely the same same duty that the commiss commissioners ioners,, under under Section Section 5, Rule 67 of the Rules Rules of Court, are required to discharge.” In short, “[t]he appointment of the PAC served the same function as an appointment of three persons as commissioners under the Rules.” 4. Cabahug v. National Power Corporation , 689 SCRA 666 (2013) In this case, while Cabahug granted the NPC a continuous easement of right of way for the latter’s transmissi transmission on lines and their appurtenances, acceptin acce pting g a ten percent (10%) ( 10%) easement fee pursuant to Sec. 3-A of Republic Republic Act No. No . 6395, heJreserved theRright to receive additional additional compensation compensation pursuant to the CENTER URISTS EVIEW case of National of National Power Corporation Corporation v. Gutierrez , 193 SCRA 1 (1991). Cabahug subsequently filed a case for additional pay payment, ment, but the NPC said it already paid paid what was due pursuant to R.A. No. 6395.

BAR but REVIEW The trial court ruled in favor of Cabahug the Court2017 of Appeals reversed, holding that he already got what was due him as evidenced by the Grant of Right of Way he Way he executed in favor of NPC. The Supreme Court saw otherwise, however, specially in light of the reservation made in said grant, which mean that receipt of the easement fee did not bar further compensation from NPC. “Considering that Gutierrez was specifically made the point of reference for Jesus Cabahug’s reservation to seek further  compensation from NPC, we find that the CA likewise erred in finding that the ruling in said case does A Library Of Liberties vis-à-vis An Arsenal Of Arms not apply to the case at bench.” In Gutierrez , the issue presented for the Court’s resolution was the

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 propriety of making making NPC liab liable le for the payment payment of the full full market value value of the affected affected property despite despite the fact that transfer of title thereto was not required by said easement. “In upholding the landowners’ right to full just compensation, the Court ruled that the power power of eminent domain may be exercised although title is not transferred to the expropriator in an easement of right of way. Just compensation which should should be neither more nor less than the money equivalent of the proper pr operty ty is, moreo moreover, ver, due where the nature and effect of the easement is to impose limitations against the use of the land for an indefinite  period and deprive the landowner landowner its ordinary use.” Then, the Court added: “Even without the reservation made by Jesus Cabahug in the Grant of Right of Way, Way, the application of Gutierrez to this case is not improper as NPC represents it to be. Where the right of way easement, as in this case, similarly involves transmission transmission lines which not o nly endangers life life and limb limb but restricts as well the owner's o wner's use of the land traversed thereby, the ruling in Gutierrez remains doctrinal and should be applied. It has been ruled that the owner should be compensated for the monetary equivalent of the land if, as here, the easement is intended intended to perpetually to perpetually or indefinitely deprive the owner ow ner of his proprietary prop rietary 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 introduc tion of structures structure s or objects which, by their nature, nature , create creat e or increase the probability probability of injury, injury, death upon or destruction of life and property found on the land is necessary.” And, just to remind everyone about who has the final say on just compensation, the Court declared: “Too, “Too , the CA reversibly erred in sustaining NPC’s reliance reliance on Section 3-A of RA 6395 which stat es that only 10% of the market value of the property propert y is is due to t o the t he owner of the property subject to an easem ea sement ent of right of way. Since said easement falls within the purview of the power of eminent domain, NPC’s utilization utilizat ion of said provision provision has been repeatedly struck down by this Court in a number of cases. The determination of just compensation in eminent domain proceedings is a judicial function and no statute, decree, decree , or executive execu tive order can mandate that t hat its own determination shall shall prevail over the court c ourt’s ’s findings. findings. Any valuation for just compensation laid down in the statutes may serve only as a guiding principle or  one of the factors in determining just compensation, but it may not substitute the court's own judgment as to what amount should be awarded and how to arrive arrive at such amount. Hence, Section Se ction 3A of R.A. No. 6395, as amended, is not binding binding upon this Court.”  Secretary of the the Department Department of Public Public Works and Highways v. Tecson , 700 SCRA 243 (2013) 5.  Secretary and 756 SCRA 389 (2015)

The subject property was taken way back in 1940 by the government for the purpose of using it as  part of a national highway highway without the courtesy of any expropriation expropriation proceedings proceedings being being ini initiated. tiated. In 1994, the owners asked for the payment of just compensation but they were not happy with the offer of the government so they went to court to recover their property. When the case eventually reached the Rwas CENTER URISTS EVIEW Supreme Court, the pivotal issue issue toJbe resolved the valuation valuati on to be used – the t he value at time of taking (1940), or value at the time of the recovery suit more than fifty years later (1995)? (Incidentally, is the action barred by laches or prescription?)

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On the effect of long delay, the Court stated: “Laches is principally a doctrine of equity which is applied to avoid recognizing a right when to do so would result in a clearly inequitable situation or in an injustice. This doctrine finds no application in this case, since there is nothing inequitable in giving due course to respondents’ claim. Both equity and the law direct that a property owner should be compensated if his property is taken for public use. Neither shall prescription bar respondents’ claim vis-à-vis A Library Liberties  AnisArsenal Of Government Arms following the long-standing ruleOf ‘that where private property taken by the for public use

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without first acquiring acquiring title thereto either through expropriation or negotiated sale, the owner’s action to recover the land or the value thereof does not prescribe.’” prescribe.’” Any effect then of the delay? “For failure of respondents to question the lack of expropriation proceedings proceedings for a long period of time, they are deemed to have waived waived and are estopped from assailing assailing the power o f the government to expropriate or  the public use for which the power was exercised. What is left to respondents is the right of  compensation.”  Now for the valuation. valuation. “Just compens co mpensation ation is ‘the fair value of the property as between betw een one who the time of the the actual taking taking by the the government .’ receives, and one who desires to sell, x x x fixed at the This rule holds true when the property is taken before the filing of an expropriation suit, and even if it is the property owner who brings the action for compensation.” Accordingly, “just compensation due respondents respo ndents in this case should, therefore, there fore, be fixed fixed not as of the time of payment payment but at the t he time of taking, that is, in 1940.” But is it not unfair to the landowners, making use of the value in 1940 (P =0.70/sq. =0.70/sq. m) instead of the value of o f =1,500 = P1,50 0 at the time t ime the action was filed? filed? No, the Court Co urt explained: “While “While disparity in the above amounts is obvious and may appear inequitable to respondents as they would be receiving such outdated valuation after a very long period, it is equally true that they too are remiss in guarding against the cruel effects of belated claim. The concept of just compensation does not imply fairness to the property owner alone. Compensation must be just not only to the property owner, but also to the  public  public which ultimately ultimately bears the cost of expropriation.” Then the Court added that there must be  payment  payment of interest, at the rate of 6% per annum, to be computed from 1940 until full full payment. payment.39 On motion for reconsideration, the Court added compounding interest, exemplary damages and attorney’s fees, as well as an admonition on need for timely payment. “It is important to note, however, that interest shall be compounded at the time judicial demand is made pursuant to Article 2212 of the Civil Civil Code of the Philippines, Philippines, . . .” and, “[c]onsidering “[c ]onsidering that respondents-movant respo ndents-movantss only resorted resort ed to judicial demand for the payment of the fair market value of the land on March 17, 1995, it is only then that the interest earned shall itself earn interest.” Further, the Court expounded on interest payment and just compensation. “Clearly, the award of interest on the value of the land at the time of taking in 1940 until full payment is adequate compensation to respondents-movants for the deprivation of their property without the benefit benefit of expropriation expropriation proceedin procee dings. gs. Such interest, however meager or enormous it may be, cannot be inequitable and unconscionable because it resulted directly from the application of law and  jurisprudence  jurisprudence – standards that have have taken into account fairnes fairnesss and equity in setting the interest interest rates due for the use or forbearance of money. Thus, adding the interest computed to the market value of the 39

 Justice Velasco dissented on the just compensation, pointing out that it would be very iniquitous to the property owners. He  pointed out that under the decision – after 72 years from tak ing – the amount to be paid would only be the measly amount of  =1,500/sq. m.) were to be followed, it would =1,500/sq. P =27, =2 7,06 066. 6.03 032 2 , whereas if th e judgment of the Court of Appeals (based on the valuation of P URISTS EVIEW ENTER total P =22, =2 2,022 022,0 ,040. 40. 00 . He lamented: “Instead of being accorded justice and equity, respondents are, thus, penalized again by being awarded a mere pittance. The Court should not countenance DPWH's illegal act and penalize respondents hy awarding them with a miserable amount of just compensation after going through the ar duous process of vindicating their constitutional and property rights.”

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Justice Leonen agreed with Justice Velasco the awarded amounted to gross injust ice. He then came up with his own idea AR amount EVIEW as to how to make the compensation fairer: “[T]he proper way to resolve this would be to use the economic concept of present value. This concept is usually summarized this way: Money received received today is more valuable than the same amount of money received received tomorrow. By applying this concept, we are able to capture jus t compensation in a more holistic manner. We ta ke into consideration the potential of money to increase (or decrease) in value across time.” (Under the submission of Justice Leonen, at the interest rate of 6% per annum, the value of the lot would be P =49.25 per sq. m., or P =357,949.00.) He then concluded: “Using the established concept of present value =357,949.00.) incorporates the di scipline of economics into our jurispruden ce on takings. Valuation is indeed an inexact science and economics also has its own assumptions. However, in my reckoning, this is infinitely better than leaving it up to the trial court judge. I submit that th is vis-à-vis Aground. Library Of Arsenal Ofand Arms  proposal is a happy middle It meets theLiberties need for doctrinal doctrinal precision  An urged by Justice Peralta the thirst for substantial justice in Justice Velasco's separate opinion. After all, I am sure that we all share in each other's goals.”

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 property at the time time of taking signif signifies ies the real, substantial, full  and  and ample value ample value of the property. Verily, the same constitutes due compliance with the constitutional mandate on eminent domain and serves as a basic measure of fairness.” In addition to the payment of interest, interest, “additional compensation shall be awarded to respondents-movants by way of exemplary damages and attorney’s fees in view of the government’s taking without the benefit of expropriation proceedings.” And for the overly extended delay, “considering that respondents-movants were deprived of beneficial ownership over their property for more than seventy (70) years without the benefit of a timely expropriation proceedings, and to serve as a deterrent to the State from faili failing ng to institute institute such pro ceedings within within the prescribed period under  the law, a grant of exemplary damages in the amount of One Million Pesos (P =1,000,000.00) =1,000,000.00) is fair fair and reasonable. Moreover, an award for attorney’s fees in the amount of Two Hundred Thousand Pesos (P200,000.00) in favor favor of o f respondents-movants respondents-movants is in order.” The Court also referred to R.A. 8974 as sort of a guide in regard to timely payments: “This Court is not unaware that at present, stringent laws and rules are put in place to ensure that owners of real  property acquired acquired for for national government government infrastructure infrastructure projects projects are promptly paid just just compensation. compensation. Specifical Specifically ly,, Section 4 of o f Republic Republic Act No. 8974 (R.A. 8974), which which took too k effect on November 26, 2000,  provides suffici sufficient ent guidelines guidelines for implem implementin enting g an expropriation proceeding, . . .” From there, it it held held that “[w]hile the foregoing provisions, being substantive in nature or disturbs substantive rights, cannot be retroact retr oactivel ively y applied to the present case, c ase, We trust that this t his established established mechanism will will surely deter hasty acquisition of private properties in the future without the benefit of immediate payment of the value of  the property prop erty in accordance acco rdance with Section 4 of R.A. 8974. 897 4. This effectively effectively addresses J . Velasco’s concerns that sustaining our earlier rulings on the matter would be licensing the government to dispense with constitutional requirements requirements in taking taking private properties. Moreover, any a ny gap on the procedural aspect of  the expropriation proceedings will be remedied by the aforequoted provisions. In effect, R.A. 8974 enshrines a new approach towards eminent domain that reconciles the inherent unease attending expropriation proceedings with a position of fundamental equity.”  Mactan-Cebu International International Airport Airport Authority v. v. Lozada, Sr. , 613 SCRA 618 (2010) 6.  Mactan-Cebu

When property taken through eminent domain is no longer needed for the public purpose for which it was expropriated, does do es the former owner have the right right to t o repurchase it? Generally Generally,, no. And thi t hiss traces  back to Fery to Fery v. Municipality of Cabanatuan, Cabanatuan, 42 Phil. 28 (1921). (1921) . In this case of Mactan-Cebu of Mactan-Cebu,, the Court revisited Fery revisited Fery and  and came up with a new rule. After noting that Fery that Fery was not decided pursuant to our now sacredly held constitutional right that private property shall not be taken for  public use without use without just   just  compensation, compensation, it proceeded to declare that “[t]hese requirements partake of the nature of implied conditions that should be complied with to enable the condemnor to keep the property expropriated. More particularly, particularly, with respect to the element element of public public use, the expropriator should commit commit to t o use the t he J R C URISTS EVIEW ENTER  property pursuant pursuant to the purpose stated in the petition petition for expropriation expropriation filed, filed, faili failing ng which, which, it it should should file file another petition for the new purpose. If not, it is then incum incumbent bent upon the expropriator to return r eturn the said  propert  prop erty y to its private owner, o wner, if the latter desires to t o reacquire the same. Otherwise, the judgment judgment of  B AR REVIEW 2017 expropriation exprop riation suffers an intrinsic intrinsic flaw, as it would wo uld lack one indispensable indispensable element for the pro per exercise exerc ise of the power of eminent domain, namely, the particular public purpose for which the property will be devoted. Accordingly Accordingly,, the t he private property o wner would be denied due process of law, and the judgment would violate the property owner’s right to justice, fairness, and equity.”

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Then, it held: “In light of these premises, we now expressly hold that the taking of private property, vis-à-vis A Library Ofexercise Liberties  An Arsenal Of Arms consequent to the Government’s of its power of eminent domain, is always subject to the

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condition that the property be devoted to the specific public purpose for which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion reversion of the property, subject to the return of the amount of just compensation received. In such a case, case , the exercise exerc ise of the power pow er of eminent eminent domain has become improper for lack of the required factual justification.” In Vda. de Ouano v. Republic, Republic, 642 SCRA 384 (2011), the Court reiterated Lozada reiterated Lozada and  and Heirs  Heirs of  40  Moreno,  Moreno,  making the application of the principle enunciated in Lozada in Lozada more  more explicit. The Court said, “failing to keep its end of the bargain, MCIAA can be compelled by the former landowners to reconvey the parcels of land land to them, otherwise, they would be denied the use of their properties upon a state of  affairs affairs that was not conceived conceived nor contemplated when the expropriation was authorized. aut horized. In effect, effect, the t he government merely held the properties condemned in trust until the proposed public use or purpose for  which the lots were condemned was actually consummated by the government. Since the government failed to perform the obligation that is the basis of the transfer of the property, then the lot owners Ouanos and Inocians can demand the reconveyance of their old properties after the payment of the condemnation condemnation price.” It was also made clear here that “ MCIAA  MCIAA v. Lozada, Sr., Sr., revisited and abandoned the Fery the Fery.” .” Expounding on the Court’s holding, it stated: “ In esse, 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, Withal, the mandatory requirement requirement of due process ought to be strictly followed, followed, such that the state stat e must show, at the minimum minimum,, a genuine genuine need, an a n exacting public public purpose to t o take t ake private property, the t he purpose to be specifically alleged or least reasonably deducible from the complaint. Public use, as an eminent domain concept, concep t, has now no w acquired an expansive meaning meaning to include include any a ny use that is of “usefulness, util ut ility, ity, or advantage, or what is productive of general benefit [of the public].’ If the genuine public necessity –  the very reason or o r condition as it were – allowing, at the first first instance, the expropriation expro priation 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 situation should hold if if the government devotes the t he property to t o another  ano ther   public  public use use very very much different different from the original original or deviates deviates from from the declared declared purpose to benefit benefit another   private perso n. It has been said that the direct use by the state of its power to oblige 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. 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 re turn 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, proc ess, dishonor the t he judgment of expropriation. expro priation. This is not in keeping with the idea idea JURISTS REVIEW CENTER of fair play. The notion, therefore, that the government, via expropriation proceedings, acquires unrestricted ownership over or a fee simple title to the covered land, is no longer tenable.”

BARsaid REVIEW 2017  land  purchased  realty. It als a lso o worth highlighti highlighting ng what the Court about expropriated   land compared to purchased   realty. “Expropriated lands should be differentiated from a piece of land, ownership of which was absolutely transferred by way of an unconditional purchase and sale contract freely entered by two parties, one without obligation obligation to buy and the other without t he duty to sell. sell. In that case, the fee simpl simplee concept reall re ally y comes into play. There Ther e is really really no occasion occa sion to apply ap ply the ‘fee ‘fee simple concept’ if the transfer is conditional.

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The taking of a private land in in expropriation expropriat ion proceedings procee dings is is always conditioned on o n its its continued cont inued devotion devot ion to its public purpose. As a necessary corollary, once the purpose is terminated or peremptorily abandoned, abandone d, then the t he former owner, if he he so desires, may seek its its r eversion, eversion, subject subject of course co urse to the return, at the t he very least, least, of o f the just compensation compensation received. To be compelled compelled to renounce dominion dominion over a piece of land is, in itself, an already bitter pill to swallow for the owner. But to be asked to sacrifice for the common good and yield ownership to the government which reneges on its assurance that the private  property shall shall be be for a public public purpose may may be be too much. But it would would be worse if the power of eminent eminent domain were deli de liberate berately ly used as a subterfuge to t o benefit another with influence and power in the political p olitical  process, including including development development firms. firms. The mischi mischief ef thus depicted is not at all far-fetched far-fetched with the continued application of Fery of Fery.. Even as the Court deliberates on these consolidated cases, there is an uncontroverted allegation that the MCIAA is poised to sell, if it has not yet sold, the areas in question to Cebu Property Ventures, Inc. This provides provides an added dimensi dimension on to abandon Fery.”  Fery.” 7.  Republic v. Heirs Heirs of Saturnino Saturnino Q. Borbon , 745 SCRA 40 (2015) In case of an aborted expropriation, there is need to pay disturbance compensation, compensation, not  just  compensation. compensation. “The expropriator who has taken possession possession of the t he property subject of expropriation is obliged to pay reasonable compensation to the landowner for the period of such possession although the  pro ceedings ceed ings had been discontinued on o n the ground that the public public purpose purpo se for the expropriation had meanwhile ceased.” Corporation tion v. Posada , 752 SCRA 550 (2015) 8.  National Power Corpora

When the expropriation is discontinued, such as when “the taking of private pro perty pert y is is no longer longer for  a public purpose, the expropriation complaint should be dismissed by the trial court. The case will  proceed only if the trial trial court’s order of expropriation became final final and executory and the expropriation causes prejudice prejudice to the property propert y owner.” And in in regard to the governing law for expropriation expropr iation proceedings pro ceedings for national iinfrastructu nfrastructure re projects, project s, the same are governed by Rule 67 of the Rules of Court and Republic Act No. 8974, with this clarification – “The power of eminent domain is an inherent competence of the state. It is essential to a sovereign. . . . “However, the manner of its exercise such as which government instrumentality can be delegated with the power to condemn, under what conditions, and how may be limited by law. Republic Act No. 8974 does these, but it should not be read as superseding the power of this court to t o promul pro mulgate gate rules of procedure. Thus, our existing rules should be read in conjunction with the law that limits and conditions the power of eminent eminent domain. domain. Expropriation, the procedure pro cedure by which which the governm go vernment ent takes tak es  possession  possession of private property, is outlined outlined primaril primarily y in in Rule 67 of the Rules Rules of Court.” The provisi pro visional onal value provided pro videdJfor in R.A.R No. No . 8974 897 4 isCaENTER form form of a frontloading  cost.  cost. “The statuto statutory ry URISTS EVIEW requirement to t o pay a provisional amount equivalent to the t he full Bureau of o f Internal Revenue zonal valuation does not substitute for the judicial determination of just compensation. The payment to the property owner of a preliminary amount is one way to R ensure that property BAR 2017 will not be condemned arbitrarily. It EVIEW allows frontloading the costs of the exercise so that it is the government instrumentality that bears the  burden and not the owner whose property propert y is is taken. The payment payment of a provisional provisional value value may also serve serve as indemnity for damages in the event that the expropriation does not succeed.”

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With With regard to the issue as to whether an expropriator may discontinue discontinue an expropriation proceeding that it instituted, instituted, the Court said: “Considering “Considering that the National Power Corpo ration is no longer using A Library Of Liberties vis-à-vis An Arsenal Of Arms respondents’ properties for the purpose of building the Substation Project, it may be allowed to

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discontinue discontinue with the expropria expropriation tion proceedings, subject subject to the approval of the court. co urt. However, the grant gra nt of the Motion to Withdraw Withdraw carries with it the necessary consequence of making making the trial court’s order  of condemnation condemnatio n final final and executory.” executo ry.” Accordingly, “expropriation “expropriation proceedings proc eedings must be dismi dismissed ssed when it is determined that it is not for a public purpose, except when: First, the trial court’s order already  became final final and executory; Second, the government government already took too k possession possession of the property; and Lastly, the expropriation case already caused prejudice to the landowner.” In this case, the Court noted that respondents have not yet been deprived of their property since the National Power Corporation was never  able to take possession. It could not therefore determine whether damages have been suffered as a result of the expropriation. Accordingly Accordingly,, the case needed to be remanded to the t he trial court to determine determine whether  respondents respo ndents have already been prejudiced by the expropriation. exprop riation. Further, “[t]he “[t] he withdraw withdrawal al of the Petition  before this court will will have no practical effect effect other than to make the trial court’s order of condemnation condemnation final and executory. In order to prevent this absurdity, the National Power Corporation should file the  proper Motion to Withdraw Withdraw before the trial court,” whereupon, it it would be its burden to plead plead and prove to the t he trial court its reasons for discontinuing with with the expropriation exprop riation while while the respondents may also plead and prove damages incurred from the commencement of the expropriation, if any. Corporation tion v. Manalastas Manalastas , 782 SCRA 363 (2016) 9.  National Power Corpora

“The bone of contention in this case is the inclusion of the inflation rate of the Philippine Peso in determinin determining g the just just compensation compensation due to respondents.” Entry was in in 1977 to 1978 without the knowledge or consent co nsent of owners, without any expropriation proceedings being being initiated, initiated, and without any compensation made. In 2000, a complaint was filed by the landowners demanding removal of the power  lines and its accessories and payment of damages, or in the alternative, payment of the fair market value of the affected areas. The Court said that “valuation of the land for purposes of determining just compensation should not include include the t he inflation inflation rate of o f the Philippine Philippine Peso because beca use the delay in payment payment of the price of expropr exp ropriated iated land is suffici sufficiently ently recompensed throug t hrough h payment of interest on the market value of the land land as of the time t ime of taking from the landowner.” And, for the guidan gu idance ce of everyone, just everyone, just compensation is compensation is for the courts to determine, determine, not the t he parties. “It is the courts, not the litigants, litigants, who decide on the proper prop er interpretation or application of the law and, thus, only the courts may determine the rightful compensation in accordance with the law and evidence evidence presented by the parties. It is incongruous incongruous for the court below below to to uphold a propo sition merely merely because because it was recommended by a party, despite t he same being erroneo erroneous.” us.” The Court also condemned the expropriator to pay exemplary damages and damages and attorney’s fees for fees for the irregular way the property propert y was taken. “As held held in the Resolution dated April Apr il 21, 2015 201 5 inSecretary inSecretary of the  Department of Public Public Works and Highways, et al. v. Spouses Spouses Heracleo and Ramona Tecson, additional compensation in the form of exemplary damages and attorney’s JURISTS REVIEW CENTERfees should likewise be awarded as a consequence of the government agency’s a gency’s illegal occupation occupatio n of the owner’s property for a very long time, resulting in pecuniary loss to the owner . Indeed, government agencies should be admonished and made to realize that B itsAR negligence and2017 inaction in failing to commence the proper  REVIEW expropriation expropriation proceedin pro ceedings gs before taking private property, propert y, as provided for by law, cannot be countenanced co untenanced  by the Court.” 10.

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Where the entire property pro perty is not taken and the remaining remaining portions are practically pra ctically rendered rendere d useless for  for  A Librarydamages Of Liberties Arsenal Of Arms the owner, then consequential would vis-à-vis have to be An paid. Here, following the expropriation of a

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 portion of a property, two irregularly irregularly shaped danglin dangling g lots with an area of 750 sq.m. were left. left. “There is no question that the remaining 750 sq.m. dangling lots were not expropriated by petitioner. The RTC and the CA, however, agreed that Unson was entitled to just compensation with respect to the said  portions.” And, if the trial court, in arriving arriving at the amount of just compensation compensation already already factored factored in the consequential damages suffered by the owner for the unusable 750 sq.m. lots, it would run against the equitable proscription of unjust enrichment for the owner to still retain ownership over it. 11.

 National Power Corpora Corporation tion v. Heirs of Macabangkit Macabangkit Sangkay Sangkay , 656 SCRA 60 (2011)41

And what is inverse condemnation? How does it differ from a claim for damages? The Court had occasion to discuss the same in another case involving the National Power Corporation and its tunnels  bored deep under the lands of unsuspecting unsuspecting owners. The Court explain explained ed that an “action to recover just compensation from from the State or its expropriating agency differs from the action for damages. The former, also known as inverse condemnation, condemnation, has the objective objective to recover the value value of property pro perty taken in fact by the go vernmental vernmental defendant, defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency. . . . On the other hand, the latter action seeks to vindicate a legal wrong through damages, which may be actual, moral, nominal, temperate, liquidated, or exemplary. When a right is exercised in a manner not conformable with the norms enshrined in Article 19 and like provisions on human relations in the Civil  Code, Code, and the exercise results results to the damage of another, a legal wrong is is committed committed and the t he wrongdoer  is held responsible. The two actions are radically different in nature and purpose. The action to recover   just compensation compensation is is based on the Constitution while while the action for for damages is predicated predicated on statutory statu tory enactments. Indeed, the former arises from the exercise by the State of its power of eminent domain against private property for public use, but the latter emanates from the transgression of a right. The fact that the owner rather than the t he expropriator brings the former former does not change c hange the essential essential nature of the suit as an inverse condemnation, for the suit is not based on tort, but on the constitutional prohibition against the taking of property without just compensation. It would very well be contrary to the clear  language of the Constitution to bar the recovery of just compensation for private property taken for a  public  public use solely solely on the basis basis of statutory prescription.” prescription.” For Legal Research purposes, the Court referenced Corpus Juris Secundum (29A Secundum (29A CJS, Eminent  CJS,  Eminent  “Inverse condemnation is a cause of action against against a governmental defendant defendant to recover   Domain,  Domain, §381): “Inverse the value of property propert y which which has been taken take n in fact fact by the governmental governmenta l defendant, even e ven though no formal exercise of the power of eminent domain has been attempted by the taking agency. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur occ ur without such formal proceedings. proc eedings. The phrase ‘inverse as a common understanding JURISTS REVIEW Ccondemnation,’ ENTER of that phrase would suggest, simply describes an action that is the ‘inverse’ or ‘reverse’ of a condemnation condemnation proceeding.”

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The weakest guarantee in the Bill of Rights, it is almost seen as a relic from days past where it must have had its grandeur. The Clause easily yields to the demands of police power such that the occasions in which it may prevail could more be the exception than the rule. “The impairment clause is no longer  41

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inviolate; in fact, there are many who now believe that is an anachronism in the present-day society.”42  Nevertheless,  Nevertheless, “[w]hil “[w]hilee it is is true that the police police power is superior to the impai impairment rment clause, clause, the principl principlee will apply only where the contract co ntract is so related to the public welf are that it will will be considered congenitall congenita lly y susceptible susceptible to change by the legislature legislature in the interest of the greater gre ater number. number. Most present-day contracts 43 are of that nature.” Insofar as the taxing power is concerned, it has also been observed that: “In truth, the Contract Clause has never been thought as a limitation on the exercise of the State’s power of taxation save only where a tax exemption has been granted for a valid consideration.”44  And, that the contractual tax exemptions, exemptions, in the real sense of the term and where the non-impairment clause of the Constitution can rightly rightly be invoked, are t hose agreed to by the taxing authority in contracts, such as those co ntained ntained in  government  government bonds or debentures debentures , lawfully entered into by them under enabling laws in which the government, acting in its private capacity, sheds its cloak of authority and waives its governmental immunity. immunity. Tax exemptions of this kind may may not be revoked revok ed without withou t impairing impairing the obligations of contracts. cont racts. These contractual tax exemptions, exemptions, however, are not to be confused withtax withtax exemptions granted under   franchises.  franchises. A franchise franchise partakes parta kes the nature natu re of a grant which is beyond beyond the purview p urview of the non-impairment 45 clause of the Constitution. In Lepanto In Lepanto Consolidated Consolidated Mining Co. v. WMC Resources Int’l. Pty. Ltd., Ltd., 507 SCRA 315 (2006), the Court had occasion o ccasion to apply the Contract Clause. It held held that t hat Section 40 of the Philippin Philippinee Mining Mining Act of  1995 requiring the approval of the President with respect to assignment or transfer of FTAAs, if made applicable retroactively retroac tively to the t he Columbio FTAA, would be tantamount tanta mount to an a n impairment impairment of the obligations under said contract as it would wo uld effectivel effectively y restrict the right of tthe he parties thereto to assign assign or transfer their  interests in the said FTAA.

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The Constitution Constitut ion guarantees guarante es free access to t he courts and quasi-judicial bodies, and likewise likewise mandates that adequa a dequate te legal assistance shall not be denied to any person by reason of o f poverty. povert y. This may may mean that those who cannot afford filing fees may get some form of accommodation, such as being allowed to litigate as paupers, thereby being exempted from the payment of filing fees. Can this be availed of a  juridical  juridical person? In Re: In Re: Query of Mr. Roger C. Prioreschi Prioreschi re re Exemption from Legal and Filing Filing Fees of  the Good Shepherd Foundation, Inc., Inc., 596 SCRA 401 (2009), the Court held that only individuals may  be granted exemption exemption from filing filing fees as indigents indigents – foundations, foundations, even if serving serving indigents, indigents, are not entitled. “The clear intent and precise language of the aforequoted provisions of the Rules the  Rules of Court  indicate that only o nly a natural party litigant  may  may be regarded as a s an indigent indigent litigant. litigant.”” Accordingly Accor dingly,, that t hat “the Good Shepherd Foundation, Inc. is working for indigent C and underprivileged people is of no moment. JURISTS REVIEW ENTER Clearly, the Constitution Constitut ion has explicitly explicitly premised the free the free access clause on clause on a person’s poverty person’s poverty,, a conditi co ndition on that only a natural person can suffer. ”

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

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

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

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R IGHTS IGHTS OF SUSPECTS

A basket of rights that was refused recognition rec ognition or parsimoniously parsimoniously applied applied by the Court Cou rt in the past pa st has now grown and expanded to t o aff a fford ord protection pro tection greater than the text of the origi o riginal. nal. Whil Whilee the Supreme 46 Court in the not-t oo-distant past refused to apply the Miranda the Miranda doctrine  doctrine in People in People v. Jose, Jose, 37 SCRA 450 (1971), (1971 ), and likewise likewise did not recognize recog nize any retroact retr oactive ive application of the 1973 Constitution Constitu tion version of the 47  Miranda warnings,  Miranda warnings,  the same is now part of the easily-forgotten past. The doctrine has become firmly entrenched in law and jurisprudence, even constitutionalized at that.48 In regard to t o expanding the rights of suspects, take note of o f the newly minted minted Anti-Torture Act of 2009 (R.A. No. 9745 [2009]). It is meant to implement the guarantees in Section 12 of the Bill of Rights against torture and other related acts. It adds the adds the right, among others, ot hers, to be informed informed of one’s o ne’s right right to demand physical examination by an independent and competent compet ent docto do ctorr of his/her own choice, which may  be waived, waived, provided it is in writing writing and in in the presence of counsel. counsel.49 The rights given given to persons somehow thought of having having comm co mmitted itted a crime crime or those under custodial  suspects  – are meant to ensure that they are afforded the chance to exercise investigation – a.k.a., a.k.a.,  suspects whatever protection is due them in any criminal prosecution. Thus, they are given the opportunity to exercise their privilege not to incriminate themselves, otherwise there would be no point keeping one’s silence silence at trial t rial if if the damning statements had already been secured during dur ing the investigation. investigation. Then, T hen, to make sure that the person under investigation knows what that privilege of silence is all about, he is also given a chance to have ha ve the assistance of a lawyer. He may waive waive his rights, including the assistance of counsel, cou nsel,  provided the same is done in the presence of a lawyer. lawyer. In the language of the Fundamental Law, the lawyer must be competent and independent. He must be present from beginning to end, and his loyalty to the cause of his client must be beyond reproach.50 But when do the  Miranda Rights  Rights  become available? The Court has come up with apparently conflicting rulings. In People In  People v. Marra, Marra, 236 SCRA 565 (1994), and People and People v. Ting Lan Uy, Jr., Jr., 475 46 47

 Miranda v. Arizona, Arizona, 384 U.S. 436 (1966)  Magtoto v. Manguera, Manguera, 63 SCRA 4 (1975)

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 In 2000, the U.S. Supreme Court revisited Miranda revisited  Miranda and  and came up with a declaration that Miranda that Miranda is  is of constitutional moorings, a “constitutional decision,” which could not therefore be overturned by Congress as it represents the Court’s reading of what the Constitution requires, at minimum. ( Dickerson v. United States, States , 530 U.S. 428 [2000]) 49

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

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BAR REVIEW * * * * * 2017 Any person who does does not wish to avail of the rights un der this pr ovision may knowingly and voluntarily waive such rights in writing, executed in the presence and assistance of his/her counsel. 50

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 A awyer awyer who notarizes the sworn statement of a suspect whom he assis ts seriously compromises compromises his independen ce, because by so doing, he vouches for the regularity of the circumstances surrounding the taking of the sworn statement by the police. ( People v.  Labtan,  Labtan, 320 SCRA 140 [1999]) Also, lawyers engaged the police are generally suspect,vis-à-vis as in many areas, rel ationshipOf between lawyers, and law en forcement AbyLibrary Of Liberties  AntheArsenal Arms authorities can be symbiotic. ( People v. Deniega, Deniega, 251 SCRA 626 [1995])

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SCRA 248 (2005), (20 05), the t he Court held, in effect, that the t he rights would only be availabl availablee if a person has already  been arrested and in custody. However, in this case of People v. Reyes, Reyes, 581 SCRA 691 (2009), we find find this line: “The mantle of protection afforded by the above-quoted above-quoted constitutional provision covers the  period from the time time a person is taken into into custody custo dy for for the investigation investigation of his his possible possible participati participation on in the commi co mmission ssion of a crime crime or from fro m the time he is singled singled out o ut as a suspect in the commission commission of o f the offense although not yet in custody.” Given the historical background and the rationale for the Miranda the Miranda Rights, Rights, however, it would seem to be the better view that the rights kick in the moment a person has already  become the suspect  the suspect , or the one singled out for investigation for possible participation in the crime under  scrutiny. The rights are precisely intended to afford him the opportunity to avail of his right against selfincrimination at a time when he might not know any better – the Miranda the Miranda Doctrine  Doctrine  was precisely intended intended to make the hapless suspect suspect realize that he has t he right not to t o answer the t he questions asked by the police which are precisely intended to elicit incriminating answers. Then, also, the lawyer should not simply simply be a lawyer in form. form. He must also be so in substance, substa nce, areal  a real  51 lawyer and not one who took up Law but never made it beyond the bar examinations.   Moreover, nobody could take the place of a lawyer. lawyer. In People In People v. Ordoño, Ordoño, 334 SCRA 673 (2000), since the place had no lawyers, the statement state ment of the accused w was as taken take n in the presence of Parish Priest, Municipal Municipal Mayor, Chief of Police, other police officers, plus the wife and mother of the accused. The Court held the confession inadmissible. Even as it commended the police, it held that there is no substitute for lawyers. “To the credit of the police, they requested the presence of the Parish Priest and the Municipal Mayor  of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation.” R.A. 7438 does not propose that they appear in the alternative or as a substitute for counsel. How about media interviews? In People In People v. Endino, Endino, 352 SCRA 307 (2001), the Court advised trial courts not to simplistically admit such confessions. “[B]ecause of the inherent danger in the use of  television as a medium for admitting one’s guilt, and the recurrence of this phenomenon in several  cases, it is prudent that trial courts are reminded that extreme caution must be taken in further  the police, with the connivance of unscrupulous admitting similar confessions . For in all probability, the police, media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond  the exclusionary rule by having an accused admit an offense on television. television. Such a situation situation would be detrimental to the guaranteed rights of the accused and thus imperil our criminal justice system.”52 With the foregoing pronouncements of the Court relative to admissions or confessions made to media men, should it not also consider having the right to be advised of one’s Miranda one’s Miranda rights  rights – including the right to counsel – to be done prior  to  to any interviews made by the media? The right to counsel and the right not to incriminate oneself might become useless if the printCand broadcast reporters are allowed to make JURISTS REVIEW ENTER the interviews even before the suspect had the opportunity to think for himself in a voluntary and an informed manner whether to speak or not. This element of knowing and voluntary waiver may only be safeguarded – in the spirit of the Miranda the Miranda doctrine  doctrine – through the assistance of counsel timely made.53 BAR REVIEW 2017

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

A Library Of Liberties  AnRule Arsenal Of Arms  See Rene B. Gorospe, “Beyond Stonehill  : Extending vis-à-vis the Exclusionary to Uncounselled Media Confessions,” UST Law  Review,  Review, Vol. XLVIII XLVIII (January-December (January-December 200 4), at 131 -190. ( http://ustlawreview.com/pdf/vol.XLVI http://ustlawreview.com/pdf/vol.XLVIII/A II/Articles/Beyond_Stonehill.pdf) rticles/Beyond_Stonehill.pdf) 53

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1.  People v. Guillen, 710 SCRA 533 (2013) Could silence and passivity at a t ime ime when the complainant-victim is is confronting the susp suspect ect foll fo llowing owing his arrest be taken as evidence of guilt? The Court said, no. “Clearly, “Clearly, when appellant remained silent when confronted by the accusation of “AAA” at the police station, he was exercising his basic and fundamental right to remain re main silent. silent. At that t hat stage, sta ge, his silence silence should not be taken ta ken against him. him. Thus, it was error erro r on the part of the trial court to t o state stat e that appellant’s ap pellant’s silence silence should be deemed as implied implied admission admission of guilt. In fact, this right cannot be waived except in writing and in the presence of counsel and any admission admission obtained o btained in violation of this t his rule shall be inadmissible inadmissible in evidence.” 2.  People v. Lauga, 615 SCRA 548 (2010) In People In  People v. Malngan, Malngan, 503 SCRA 294 (2006), the Court considered the confessions made to a  barangay chairman chairman inadmi inadmissi ssibl blee since there was no Miranda no Miranda Warning  given  given prior to questioning. The Court observed: “ Arguably,  Arguably, the barangay tanods, including the Barangay Chairman, in this particular  instance, may be may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses as well as killed the whole family of Roberto Separa, Sr. She was, therefore, already under  custodial custo dial investigation investigation and the rights guaranteed guarant eed by Article Article III, Section Sect ion 12 (1), of the Constitution Constitu tion should 54 have already been been observed or applied applied to her.” Taking the teachings and spirit of Malngan of  Malngan further,  further, the Court held in  Lauga  Lau ga that  that Bantay  Bantay Bayan members or voluntary barangay-based anti-crime or neighborhood watch groups should similarly be covered by the Miranda the Miranda Doctrine Doctrine.. The Court observed that they are recognized by the local government units to perform functions functions relating relating to the preservation of peace and order at the barangay level. barangay level. Thus, on the authority to conduct a custodial investigation, any inquiry they make has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights  provided for for under Articl Articlee III, Section Section 12 of the Constitution. Constitution. Accordingly Accordingly,, any extrajudicial extrajudicial confession confession taken without a counsel is inadmissible in evidence. Oh, well, domino method of adjudication. 3.  People v. Pepino, 779 SCRA 170 (2016) In regard to police line-ups, the Court here said that “[a]s a rule, a police lineup is not  part  part of the custodial investi investigation; gation; hence, the right to t o counsel c ounsel guaranteed by the Constituti Co nstitution on cannot yet be invoked at this stage. The right to be assisted by counsel attaches only during custodial investigation and cannot 54

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 In People  In People v. Ulit , 423 SCRA 374 (200 4), the Bara ngayEVIEW chairman ordered the barangay tanods to “invite and bring” the accused URISTS ENTER to the barangay hall, and thereafter asked the accused if he raped the complainant. complainant. The suspect admitted and executed a sworn statement to that effect. The Court said that the uncounselled sworn statement of the accused was considered admissible because he was not then under arrest nor under custodial investigation. “The exclusionary rule is premised on the presumption that the defendant is thrust into EVIEW procedures where the potentiality for compulsion, physical an unfamiliar atmosphere and runs through menacingAR police interrogation and psychological, is forcefully apparent. As intended by the 1971 Constitutional Convention, this covers ‘in vestigation conducted by  police authorities which will include investigations conducted by the municipal police, the PC and the NBI NBI and such other police agencies in our government.’ The b arangay chairman is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of  Article III of the Constitution. Under these circumstances, it cannot be successfully claimed that the appellant’s statement before the  barangay chairman is inadmissible.” ( Both Ulit  and   and Samus were Samus were en banc decisions.) banc decisions.)

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In People In People v. To maquin, maquin, 435 SCRA 23 (2004), the Court noted that a barangay captain barangay captain “is called upon to enforce the law and vis-à-vis A Library Of Liberties  An Arsenal Of Arms ordinances in his barangay and barangay and ensure peace and order at all times.” As such, he could not be considered as an i ndependent counsel for  the purpose of assisting a suspect.

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 be claimed claimed by the accused during identificati identification on in a police lineup.” lineup.” In his his dissentin dissenting g opinion, opinion, Justice Leonen Leo nen had this to say: “Premature media media exposure o f suspected criminal criminalss affects the integrity integrity of the identification identification made by a witness. Law enforcers enforc ers fail to prevent p revent undue influence influence and suggestion su ggestion when they  present suspects to the media media before before the actual identificati identification on by a witness. witness. An irregular irregular out-of-court out-o f-court identification taints any subsequent identification made in court.” Thus, “when the suggestiveness is  principall  principally y due to t o a premature media media presentation of the accused coupled with the accusation by law enforcers, it is reasonable to assume that the subsequent identification is already tainted.”

P. R IGHTS IGHTS OF THE ACCUSED Once a person under investigation is found to be probably guilty of the commission of a crime, he is charged in court thereby becoming an accused , entitled to another set of o f rights, rights, from the presumption presumption of innocence to an opportunity to avail of momentary liberty through bail, to being informed of the charges, to setting out his defense by himself or counsel, facing his accusers and testing their credibility, speedy, impartial and public trial, and compulsory process for the production of witnesses and evidence in his behalf. Through all of these, he is assured of the guarantee of being heard before judgment is rendered.55 With regard to bail, the Court Cour t said in Leviste in Leviste v. Court of Appeals, Appeals, 615 SCRA 619 (2010), that “[b]ail acts as a reconciling mechanism to accommodate both the accused’s interest in pretrial liberty and society’s interest in assuring the accused’s presence at trial.” Otherwise stated, “[a]n erroneously convicted accused who is denied bail loses his liberty to pay a debt to society he has never owed.” Now, as regards potential pot ential extraditees, take note not e of o f the metamorphosis. metamorphosis. In Government of the United States of   America v. Purganan Purganan,, 389 SCRA 623 (2002), t he majority majority ruled ruled that a potential extraditee is not entitled to notice and hearing before the issuance of a warrant of arrest. Confronted arrest. Confronted anew with the question in Government of Hong Kong Special Administrative Region v. Olalia, Jr., Jr., 521 SCRA 470 (2007), (2007), the Court had a change of mind. It noted that the modern trend in public international law is the primacy  placed on the worth of the individual individual person and the sanctity sanctity of human rights, citing the Universal Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Fundamental among the rights enshrined in the International Covenant on Civil and Political Rights are the rights of  every person to life, life, liberty, liberty, and due proce p rocess. ss. Revisiting Revisiting Purganan  Purganan,, the Court reasoned out that if bail bail can  be granted in deportation cases, it it saw no justifi justification cation why it it should not not also be allowed allowed in extradition extradition cases – clearly, the right of a prospective extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of  human rights. It further explained that while extradition is not a criminal proceeding, it is characterized JURISTS CENTER  by the foll following: owing: (a) it it entails a deprivation depri vation ofRliberty liEVIEW berty on the part of the potential extraditee and (b) (b) the means employed to attain the purpose of extradition is also “the machinery of criminal law”  –  obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal BAR EVIEWperiod  process . By any standard, detention detentio n for an R extended pe2017 riod of o f more than two t wo (2) years is a serious serious deprivation of o f a potential potent ial extraditee’s extradite e’s fundamental right to liberty. Also, Also, while the Philippines’ Philippines’ extradition law does not provide p rovide for the grant gra nt of bail to an a n extraditee, ho wever, there the re is no provisi pro vision on prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.

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vis-à-vis A Library Of Arsenal Of Arms  In People  In People v. Alcanzado, Alcanzado , 428 SCRA 681Liberties (20 04), the Court held that  An i f a demurrer to evidence with leave of court is denied, the trial court should give the accused the opportunity to present his evidence. It cannot simply proceed to convict him. 55

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 Nevertheless,  Nevertheless, the t he Court Cou rt held held that the applicabl applicablee standard of due process for potential extraditees seeking bail should not be the same as that in criminal proceedings – in the latter, the standard of due  process is premised premised on the presumption presumption of innocence innocence of theaccused theaccused,, in the former, former, the t he assumption is that such extraditee extr aditee is a fugitive fugitive from justice. justice. Thus, the prospectiv pro spectivee extraditee bears the onus probandi o probandi of  f  showing that he or she is not a flight flight risk and should be granted bail. An An extradition pro ceeding being sui  generis,  generis, the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. The potential extraditee must prove by “clear and convincing proof” that he is not a flight risk and will abide with all orders and processes of the extradition court. With With regard to t o the question q uestion as to when the presumption of innocence innocence comes to an end, t he Court held held in Trillanes IV v. Pimentel, Sr., Sr., 356 SCRA 471 (2008), and Re: and Re: Conviction of Judge Adoracion G.  Angeles, RTC, Br. 121, Caloocan City in Criminal Cases Nos. Q-97-69655 to 56 for Child Child Abuse, 543 SCRA 196 (2008), that such presumption only comes to an end upon final conviction. However, in  Leviste v. Court of Appeals, Appeals, 615 SCRA 650 (2010), and reiterated in Qui v. People, People, 682 SCRA 94 (2012), the Court Co urt declared: “After conviction conviction by the trial court, the presumption of innocence terminates and, accordingly, the constitutional right to bail ends.” Sandiganbayan (Third Division) Division) , 767 SCRA 282 (2015) 1.  Enrile v. Sandiganbayan

In this case, the petitioner, more than 90 years of age, and of frail health, was charged with the non bailabl  bailablee offens offensee of plunder. plunder. He petitioned the Court that he be allowed allowed to post bail in view of the peculiar  peculiar  his circumstances circumstances – poor health, health, age, and voluntary surrender. surrender. The Court obliged. obliged. On the right to bail, the Court said: “It is worthy to note that bail is not granted to prevent the accused from committing additional crimes. The purpose of bail is to guarantee the appearance of the accused at a t the trial, tr ial, or whenever so required requ ired by the trial court. cour t. . . . [B]ail [B ]ail acts as a reconcil reco nciling ing mechanism mechanism to accommodate both the accused’s interest in his provisional liberty before or during the trial, and the society’s interest in assuring the accused’s presence at trial.” The Court then went on to hold that admission to bail in otherwise non-bailable offenses is subject to judicial discretion. In the case of the  petitioner, the Court took to ok note of his his poor health as a justifi justification cation in his his admiss admission ion to bail. bail. The Court Cour t held: “In our view, his social and political po litical standing standing and his having immediately immediately surrendered to the authorities upon his being charged in court indicate that the risk of his flight or escape from this  jurisdi  jurisdiction ction is highl highly y unlikely unlikely.. His personal dispositi disposition on from the onset of his indictment indictment for plunder, formal or otherwis o therwise, e, has demonstrated his utter respect for the legal processes of this this country. We also do not ignore that at an earlier time many years ago when he had been charged with rebellion with murder and JURISTS REVIEW ENTER multiple frustrated murder, he already evinced a similar C personal disposition of respect for the legal  processes, and was granted bail bail during during the pendency pendency of his his trial because he he was not seen as a fligh flightt risk. With his solid reputation in both his public and his private lives, his long years of public service, and BAR REVIEW 2017bail.” Also, “[t]he currently fragile state history’s judgment of him being at stake, he should be granted of Enrile’s health presents another compelling justification for his admission to bail.” Accordingly, the Court found that there was no question at all that Enrile’s advanced age and ill health required special medical attention.

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The Court further declared: “Bail for the provisional liberty of the accused, regardless of the crime charged , should beA allowed the merits the charge, charge , provided his continued vis-à-vis Library independently Of Liberties of  An of Arsenal Of Arms incarceration incarcerat ion is clearly clearly shown to be injurious to his health o r to endanger his life. life. Indeed, Indee d, denying him bail

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despite imperiling imperiling his health and life life would not serve the true t rue objective o bjective of preventive incarceration incarcerat ion during the trial.” 2.  People v. Valdez , 776 SCRA 672 (2015) Bail is a matt matter er of right, except e xcept when when the offense is punishable byreclusion by reclusion perpetua and perpetua and the evidence of guilt is strong. How should the term “ punishable”  punishable” be construed? The T he Court said: said: “In Our mind, mind, the  prescribed , not imposable, penalty.” term “ punishable”  punishable” should refer to prescribed  The Court explained: “The RPC provides for an initial penalty as a general prescription for the felonies defined therein which consists of a range of period of time. This is what is referred to as the ‘prescribed penalty .’ For instance, under Article 249 of the RPC, the prescribed penalty for homicide is reclusion temporal which ranges from 12 years and 1 day to 20 years of imprisonment. Further, the Code provides for attending or modifying circumstances which when present in the commission of a felony affects the computation of the penalty to be imposed on a convict. This penalty, as thus modified, is referred referred to as t he ‘imposable penalty .’” The Court further pointed pointed out o ut that “[i]t “[i]t would wo uld be the height of absurdity to deny Valdez the right to t o bail and grant her the same only after trial tr ial if if it it turns tu rns out that there t here is no complex co mplex crime crime comm co mmitted. itted. Likewise, it is unjust unjust for Us to t o give a stamp of o f approval appro val in depriving depriving the accused person’s constitutional right to bail for allegedly committing a complex crime that is not even considered as inherently grievous, odious od ious and hateful. hateful. To note, no te, Article Art icle 48 of the RPC on complex crimes crimes does not change the nature of the constituent offenses; it only requires the imposition of the maximum  period of the penalty prescribed prescribed by law. When committed committed through falsif falsification ication of official official/publi /publicc documents, the RPC does not intend to classify malversation as a capital offense.” Coverage of the Multiple Murder Cases Against  3.  Re: Petition for Radio and Television Coverage  Maguindanao  Maguindanao Governor Governor Zaldy Ampatuan , 652 SCRA 1 (2011)56

In  Re: Live TV and Radio Coverage of the Hearing of President President Corazon C. Aquino’s Libel Case57 and Re: and Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against  the Former President Joseph E. Estrada, Estrada, 360 SCRA 248 (2001), the Supreme Court did not allow allow for  live radio-TV coverage of the trials involved therein. Now, in regard to the so-called Maguindanao Massacre where there were 57 victims victims and 197 accused, the Court is being asked once more to allow allow for  such live live broadcast of o f the proceedin procee dings. gs. Would the request fare any better. better. Yes, Pro Yes, Pro hac vice. Here, the Court highlighted the delicate balance between seemingly competing yet certainly complementary rights complementary rights – the right of the accused to a fair trial free from prejudice caused by undue  publicity  publicity,, and the right of the people to know what is happening inside inside the t he courth cou rthous ouse. e. The Court explained: “The rationale for an outright total prohibition was shrouded, as it is now, inside the comfortable cocoon of a fearedJspeculation noCscientific URISTS Rwhich EVIEW ENTER study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing rules and exacting regulations . In this day and age, it is about time to craft a win-win situation  that shall not compromise rights in the criminal of justice, sacrifice press freedom and allied BARadministration REVIEW 2017 rights, and interfere with the integrity, dignity and solemnity of judicial proceedings. Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative administrative matters, matt ers, whil w hile, e, at a t the t he same time, maintaining maintaining the same underly unde rlying ing principles upheld in the two previous cases.” The Court further stated that “the right of an accused to a fair trial is not

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incompatible to a free press, that pervasive publicity is not per not  per se prejudicial se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render  a bias-free decision. decision. Mere fear of possibl po ssiblee undue influence influence is not tantamount to t o actual prejudice prejudice resulting resulting in the deprivation of the right to a fair trial.” Making use of the totality of circumstances test , the Court paved the way, way, pro hac vice, for vice, for the live live  broadcast of the proceedings proceedings subject subject of the case. “One apparent circumstance circumstance that sets the Maguindan Maguindanao ao Massacre cases ca ses apart from the earlier cases is the impossibili impossibility ty of accommodating accommodat ing even the parties to the cases – the private p rivate complainants/families complainants/families of the victims victims and other ot her witnesses – inside inside the courtroo court room.” m.” The Court explained that “[e]ven before considering what is a ‘reasonable number of the public’ who may observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the  proceedings as those of the impl impleaded eaded parties parties or trial trial participants. participants. It bears noting at this this juncture juncture that the  prosecution and the defense defense have listed listed more more than 200 witnesses witnesses each. The impossib impossibil ility ity of holdin holding g such  judicial  judicial proceedings in a courtroom courtro om that t hat will will accommodate all the interested parties, whether w hether private complainants or accused, accused , is unfortunate unfortu nate enough. enou gh. What more if the right itself commands that a reasonable re asonable number of the general public public be allowed allowed to witness the proceeding proc eeding as it takes place inside inside the courtro co urtroom. om. 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.” The Court then proceeded to lay down certain guidelines toward addressing the concerns mentioned in Aquino in Aquino and  and Estrada  Estrada.. Towards the end the Court concluded: “Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context. Technology per Technology per se has se has always been neutral. It is the use and regulation thereof that need fine-tunin fine-tuning. g. Law and technology can work to the advantage and furtherance of the various rights rights 58 herein involved, within the contours of defined guidelines.” On motion for reconsideration, the Court modified its earlier resolution on the issue and said, inter  alia: alia: “In a constitutional sense, public trial is not synonymous with publicized trial. The right to a public trial belongs to the accused. The requirement of a public trial is satisfied by the opportunity of the members of the public and the press to attend the trial and to report what they have observed. The accused’s right to a public trial should not be confused with the freedom of the press and the public’s right to know as a justification for allowing the live broadcast of the trial. The tendency of high profile case like the subject case to generate undue publicity with its concomitant undesirable effects weights heavily against broadcasting broad casting the trial. More Moreover, over, the t he fact that the t he accused has legal remedies after the fact is of no moment, since the damage has been done and may be irreparable. It must be pointed out that the JURISTS REVIEW ENTER fundamental fundamental right right to due process of the accused cannot beC afforded after the fact but must be pro tected at the first instance.” How about the need to accommodate who may be personally interested to witness the BARthose REVIEW 2017  proceedings? “To address the physical physical impossib impossibil ility ity of accommodating accommodating the large number number of interested  parties insi inside de the courtroom court room in Camp Camp Bagong Diwa, Diwa, it is not necessary to allow allow the press to t o broadcast the proceedings here and abroad, but the Court may allow the opening of closed-circuit viewing areas outside the courtroom court room where those who may be so minded minded can come and watch the proceedings pro ceedings.. This

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vis-à-vis A Library Ofuse Liberties  An Arsenal Of Arms  Have you noticed how you have made of modern means of communications and entertainment as tools in your study of law, such as in internet research not only for cases but also for digests, digests, reliable or otherwise? 58

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out-of-court, out-o f-court, real-time real-time viewing viewing grants to a larger audience the oppo rtunity to monitor the proceedings as if they were inside the trial court cou rt but at the t he same time obviates the massive publicity entailed entailed in media  broadcasting. This This is sim simil ilar ar to the t he procedure adopt ed by this this Court in allowing members of the public to watch its oral arguments at a viewing area outside of the Session Hall where a large monitor projects the images and sounds from inside the Session Hall in real time.” time.” The T he Court Cour t then the n provided the following new guidelines for the audio-visual recording and streaming of the video coverage: a. An aud io-visual recording of th e Maguindan ao massacre cases may be made both for documentary purposes and for transmittal to specified closed-circuit viewing areas: (i) outside the courtroom, within the Camp Bagong  Camp  Bagong   Diwa’s premises;  Diwa’s premises; and (ii) selected trial courts in Maguindanao, Koronadal, South Cotabato, and General Santos City where the relatives of the accused and the victims reside. Said trial courts shall be identified by the Office of  the Court Admini strator. strator . These viewing viewing areas shal l be under the control of the tr ial court judges involved, subject subject to this Court’s supervision.  b. The viewing viewing area will be installed to accommodate accommodate the public who who want to observe the proceedings within the Camp Bagong Camp  Bagong Di wa premises. wa premises. The streaming of this video coverage within the different court premises in Mindanao will be installed so that the relatives of the parties and the interested public can watch the proceedings in real time. c. A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala the  sala of  of the trial court. No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court. d. The transmittal of the audio-visual audio-visual recording from from inside the courtroom courtroom to the clo closed-c sed-circuit ircuit viewing viewing areas shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings. e. The Public Public Information Information Office Office and the Office Office of of the Court Court Administrator shall coordinate coordinate and assist the trial courts involved on the physical set-up of the camera and equipment. f. The original original audio-recording audio-recording shall be be depos deposited ited in the National National Museum Museum and the Reco Records rds Management Management and Archives Office for the preservation and exhibition in accordance with law. g. The audio-visua audio-visuall recording recording of the proceedings proceedings and its transmittal shall be made under under the control control of the trial court which may issue supplementary directives, as th exigency requires, subject to this Court’s supervision. h. In all cases, cases, the witnesses witnesses should be be excluded from watching watching the procee proceedings, dings, whether whether inside the courtroom or in the designated viewing areas. The Presiding Judge shall issue the appropriate orders to insure compliance with this directive and for the imposition of appropriate sanctions for its violation.

4. Go v. People, 677 SCRA 213 (2012) This involves a prosecution for Other Deceits  Deceits  brought by a foreign national (Cambodian). The Cambodian complainant was able to attend first hearing but then was subsequently unable to return. The JURISTS REVIEW Che ENTER Prosecution Pro secution wanted wa nted to t o take ta ke his deposition in Cambodia since was allegedly a frail frail old businessman businessman who was then being treated for lung infection at the Cambodia Charity Hospital in Laos, Cambodia and that, upon doctor’s do ctor’s advice, he could not make the long travel to the Philippin Philippines. es. The trial t rial court court granted g ranted such B R 2017 AR EVIEW request but the RTC annulled the MeTC order while the Court of Appeals sided with the MeTC. The High Tribunal disagreed with the appellate court. “The examination of witnesses must be done orally  before a judge in in open court. This is is true especiall especially y in in crimina criminall cases where where the Constitution secures to the accused accu sed his right to a public p ublic trial and to meet the witnessess witne ssess against him him face face to face. face . The requirement is the ‘safest and most satisfactory method of investigating facts’ as it enables the judge to test the witness’ credibility through his manner and deportment while testifying. It is not without exceptions, A Library Of Liberties vis-à-vis An Arsenal Of Arms however, as the Rules of Court recognizes the conditional examination of witnesses and the use of their 

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depositions as testimonial evidence in lieu of direct court testimony.” And, in that regard, “for purposes of taking the deposition in criminal cases, more particularly of a prosecution witness who would forseeably be unavailable unavailable for trial, t rial, the testimonial te stimonial examination examination should should be made before the court, or at least least  before the judge, judge, where the case is pending pending as required by by the clear clear mandate mandate of Section 15, Rule Rule 119 of  the Revised Rules of Criminal Procedure.” Accordingly, “[s]ince the conditional examination of a prosecution witness must take place at no other place than the court where the case is pending, the RTC properly nullified the MeTC's orders granting the motion mot ion to take ta ke the deposition dep osition of o f Li Luen Ping before the Phil P hilippine ippine consular official official in Laos, Cambodia.” The Court further noted: “Certainly, to take the deposition of the prosecution witness elsewhere and not before the very same court where the case is pending would not only deprive a detained accused of his right right to t o attend a ttend the proceedings pro ceedings but but also deprive the trial judge judge of the opportunity o pportunity to observe the prosecution witness' deportment and properly assess his credibility, which is especially intolerable when the witness’ testimony is crucial to the prosecution's case against the accused.” It also explained that “[t]here is a great deal of difference between the face-to-face confrontation in a public criminal trial in the presence of the presiding judge and the cross-examination of a witness in a foreign  place outside the courtroom in the absence absence of a trial judge.” judge.” Would it make any difference if it is the prosecution or the accused seeking deposition? “[W]here it is the prosecution that seeks to depose the complaining witness against the accused, the stringent  procedure under Section 15, Rule 119 cannot be ignored without violating violating the constitutional rights rights of  the accused to due process.” How about if it is the accused seeking that form of accommodation? “It must be emphasized emphasized that while while the t he prosecution must provide the accused every opportunity opport unity to take the t he deposition of witnesses that are material to his defense in order to avoid charges of violating the right of  the accused to compulsory process, the State itself must resort to deposition-taking sparingly if it is to guard against accusations of violating the right of the accused to meet the witnesses against him face to face. Great care ca re must be observed in the taking taking and use of deposi depo sitions tions of prosecution prosecut ion witnesses witnesses to the end that no conviction of an accused will rely on ex parte affidavits and depositions.”

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WRITS OF HABEAS CORPUS, AMPARO AND K ALIKASAN ALIKASAN

The privilege of the writ of habeas corpus  corpus  affords one who may be unlawfully detained an opportunity to have an expeditious inquiry into the nature of the deprivation of liberty such that if there is no legal basis for the same then he should be set free. It also affords a remedy in custody fights in the domestic battle battle grounds to t o determi dete rmine ne who may have better right right over a person who could not take care of his own affairs. However, “[t]he mere loss or destruction of the records of a criminal case subsequent to conviction of the accused will Jnot render R theEVIEW judgment of conviction void, nor will it warrant the CENTER URISTS release of the convict by virtue of a writ of habeas corpus. The proper remedy is the reconstitution of   judicial  judicial records which is is as much a duty of the prosecution as of the defense.” defense.”59 AR REVIEW Years before the writ of o f amparo, amparo, inBSubayno v. Enrile, Enrile2017 , 145 SCRA 282 (1986), the Supreme Court said said that the writ of habeas corpus may corpus may not be used as a means means of obtaining evidence evidence on the whereabout wher eaboutss of a person. Then, in Martinez in Martinez v. Mendoza, Mendoza, 499 SCRA S CRA 234 (2006), the Court held that the grant of relief  in a habeas corpus proceeding corpus proceeding is not predicated on the disappearance of a person, but on his illegal detention. It may not be used as a means of obtaining obtaining evidence evidence on the whereabouts of o f a person, or as a

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means of finding finding out who has specifically specifically abducted abducte d or caused cau sed the disappearance disappea rance of a certain certa in person. When forcible taking and disappearance – not arrest and detention – have been alleged, the proper remedy is not habeas corpus proceedings, corpus proceedings, but criminal  investigation   investigation and and proceedings. That was then. Now, we have also the writ of amparo. Since the privilege of the writ of habeas corpus  corpus  does not reach out to cases where the fact of  detention is denied, or the identity of those keeping a person, or his whereabouts are uncertain, the Supreme Court came up with the Writ of Amparo. Amparo.60 This is a remedy avail available able to any a ny person whose who se right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a  public  public official official or employee, employee, or of a private private indiv individual idual or entity. entity. It covers extralegal killings  and enforced  disappearances  or threats thereof. In contrast to the writ of habeas corpus, corpus, under the Writ of Amparo it is not enough for the respondent to simply disclaim any knowledge of the aggrieved person subject of  the writ, or the surrounding circumstances about the latter. He is also duty bound to state the steps or  actions taken to determine determine the fate or whereabouts of said person and the person o r persons responsible responsible for the threat, act or omission. He is also bound to disclose all relevant information in his possession  pertaining  pertaining to the threat, act a ct or omi o missi ssion on against the aggrieved person, as well as to state other o ther matters 61 relevant relevant to t o the investigation, investigation, its resolution and the prosecution pro secution of the case.  The writ of amparo is amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary  proceeding that requires requires only substantial substantial evidence evidence to make the appropriate appropriate interim interim and permanent permanent relief reliefss available to the petitioner. It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings. Rather, it serves both preventive p reventive and curative cura tive roles in addressing the problem pro blem of extrajudicial killi killings ngs and enforced enforce d disappearances. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.62 Further, since the fundamental function of the writ of  amparo  amparo  is to cause the disclosure of details concerning the extrajudicial killing or the enforced disappearance of an aggrieved party, if the whereabouts of an individual were never hidden, there would  be no need for the issuance issuance of the privil privilege ege of the writ of amparo.63 Among the significant significant characte c haracteristics ristics and features of the remedy of writ ofamparo of amparo are  are the foll fo llowing: owing: (a) it does do es not determine dete rmine criminal, criminal, civil or administrative administrative liability; liability; (b) it simply determines responsibility 64 and accountability ;  (c) it allows for flexibility in regard to rules of evidence, adopting the doctrine of  totality to tality of evidence in that courts court s consider all the pieces of evidence adduced in their totality, and consider  co nsider  60 61 62

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

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URISTS ENTER  See also the Rule on the Writ of Habeas Data discussedEVIEW in the section on Searches and Seizures.  Rodriguez v. Ma capagal-Arro yo, yo, 660 SCRA 84 (2011), citing Secretary of National Defense v. Manalo , 568 SCRA 1 (2008)

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 Mison v. Gallegos, Gallegos, 760 SCRA 363 (201 5). Here, i t was held there was no need for issuance of the privilege of of the writ of amparo AR EVIEW in regard to an alien who was arrested b y Bureau of Immigration agents pursuant to a Warrant of Deportation where there was no refusal to give information on his whereabouts, or any attempt to conceal him.

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 in whatever way,  Responsibility refers to the extent the actors h ave been established by substantial evidence to have participated  in  by action or omission, in an e nforced disappearance, as a measure of the remedies the Court sh all craft, among them, the dir ective to file the appropriate criminal and civil cases against the responsible parties in the proper courts.  Accountability , refers to the measure of remedies that should be addressed to those [i] who exhibited involvement in the enfor ced disappearance without bringing the level  of their complicity to the level of responsibility ; or [ii] who are imputed with knowledge  relating to the enforced disappearance and vis-à-vis Aclosure; Library Arsenal Of Arms who carry the burden of dis or [iii]Of thoseLiberties who carry, but have failed  An to discharge, the burden of ex traordinary dili gence in the investigation  of the enforced disappearance.

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any evidence otherwise inadmissible under usual rules to be admissible if it is consistent with the admissible evidence adduced, thus allowing for the admission of hearsay evidence; (d) the doctrine of  command responsibil resp onsibility ity doctrine doct rine may likewise likewise find application in proceedings proc eedings seeking the privilege privilege of the writ of amparo; amparo; (e) the writ is immediately executory and need not to await a motion for execution; (f) the retirement, reassignm rea ssignment ent or separation separa tion from the service of respondents respo ndents does doe s not necessarily necessarily terminate their amenability to the amparo pro amparo proceedings ceedings.. It has also been held that the threatened demolition of a dwelling by virtue of a final judgment of the court, cour t, is not included among the enumeration e numeration of rights for which the remedy of a writ ofamparo ofamparo is  is made available. available. Such Suc h claim claim to dwelling does no nott constitute co nstitute right to life, liberty liberty and security. The T he Court Cour t will not 65 waste its precious time and effort effort on matters not covered by the writ. In Navia In Navia v. Pardico, Pardico, 673 SCRA 618 (2012), the Court also also spelled spelled out the elements elements of enforced or  involuntary disappearances, disappearances, as provided for in the  Philippine Act on Crimes Against International  Internationa l   Humanitarian Law, Genocide and Other Crimes Crime s Against Humanity (R.A. Humanity (R.A. No. 9851), viz : (a) be an arrest, detention, abduction or any form of deprivation of liberty, (b) carried out by, or with the authorization, support or acquiescence acquiescence of, the State St ate or a political political organization, organization, (c) followed followed by the t he State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the  person subject of the amparo petition, amparo petition, and, (d) that t hat the intention for such refusal is is to remove subject subject  person from the protection protect ion of the law for a pro longed period of time. “As clarified clarified in Navia in Navia,, with the enactment of R.A. No. 9851, the Amparo the  Amparo Rule  Rule is now a procedural law anchored, not only on the constitutional rights to life, liberty and security, but on a concrete statutory definition as well of what an ‘enforced or involuntary disappearance’ is. Therefore, A.M. No. 07-9-12-SC’s reference to enforced disappearances should be construed to mean the enforced or involuntary disappearance of persons contemplated in Section 3(g) of R.A. No. 9851. Meaning, in probing enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in relation to R.A. No. 9851.”66 In Balao In Balao v. Macapagal-Arroyo, Macapagal-Arroyo, 662 SCRA 312 (2011), the t he Court held that the “documented practice of targeting targ eting activists in the military’s military’s counterco unter-insurgency insurgency program prog ram by itself does not fulfill fulfill the evidentiary standard provided in the Amparo the Amparo Rule to establish an enforced disappearance.” And, in conne c onnection ction with the constitutional policy policy protecting and advancing the people’s right right to a 67  balanced  balanced and healthful healthful ecology,  the Court has come up with the Writ of Kalikasa of Kalikasan n (Rules of Procedure for Environmental Cases [A.M. No. 09-6-8-SC, 29 April 2010]). The Writ of Kalikasan is Kalikasan is a “remedy available to a natural or juridical person, entity authorized by law, people’s organization, nongovernmental gover nmental organization, or any public interest group gro up accredited accred ited by or registered register ed with any government gover nment agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by anJunlawful omission of a public official or employee, or private Ror CENTER URISTSact EVIEW individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.” Related to the foregoing is the Writ of  Continuing Mandamus which provides remedy re medy when any agency or instrumentality of the government go vernment BaAR REVIEW 2017 or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or 

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Canlas v. Napico Homeowners Ass’n., I – XIII, Inc. , 554 SCRA 208 (2008).  Mison v. Gall egos, egosA , 760 SCRA 363 (2015). Library Of Liberties vis-à-vis An

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enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law. The person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto supporting evidence, s pecifyi  pecifying ng that the petition concerns an environmental law, law, rule or regulation, re gulation, and praying that judgment be rendered commanding the respondent respo ndent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the  petitioner by reason of the mali malicious cious neglect to perform perform the duties of the respondent, under under the law, rules or regulations.” regulations.” In Resident In  Resident Marine Mammals of the Protected Prote cted Seascape Tañon Ta ñon Strait v. Reyes, Reyes, 756 SCRA 513 (2015), the Court Co urt pointed out that provision provision in the Rules the Rules of Procedure Procedure for Environmental Cases which Cases which allow for citizen suits, suits, eliminated the need to give the Resident Marine Mammals legal standing – the  Rules permit  Rules permit any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws. And, in Mosqueda in Mosqueda v. Pilipino Banana Grower Growerss & Export Association, Inc., Inc., – SCRA – (G.R. Nos. 189185 and 189305, 16 August 2016) , the Court noted that the so-called Precautionary so-called  Precautionary Principle applied in environmental cases requires scientific basis. The  Principle   Principle   has “emerged from a need to  protect humans and and the environment environment from from increasi increasingl ngly y unpredictable, unpredictable, uncertain, uncertain, and and unquantifi unquantifiable able but  possibly  possibly catastrophic catastrophic risks such as those associated with Genetically Genet ically Modifi Modified ed Organisms Organisms and climate climate change, among others. The oft-cited Principle 15 of the 1992 Rio Declaration on Environment and Development (1992 Rio Agenda), first embodied this principle, . . .” Nevertheless, “[i]t is notable, therefore, therefor e, that the precautionary prec autionary principle shall only be relevant if there is concurrence concurre nce of three elements, namely: uncertainty, threat of environmental damage and damage and serious  serious or irreversible harm. In harm. In situations where the threat threa t is relatively relatively certain, or that t he causal link link between an action and environmental damage can be established, or the probability of occurrence can be calculated, only preventive, not precautionary measures, may be taken. Neither wil w illl the precautionary precau tionary principle principle apply if there is no indication of a threat thr eat of environmental harm, or if the threatened harm is trivial or easily reversible.”  Secretary of National Defense Defense v. Manalo Manalo , 568 SCRA 1 (2008) 1.  Secretary

“While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection.” Thus the Court began its decision in the first very  petition fil filed ed for a Writ Writ of Amparo of Amparo..68 As to the Writ’s origin  and nature, the Court said: “The writ of amparo originated amparo originated in Mexico. ‘ Amparo’  Amparo’ literally means ‘protection’ in Spanish.” Amparo Spanish.” Amparo “combines  “combines the principles of judicial review derived from the U.S. U. S. with the t he limitations limitations on o n judicial power powe r characteristic charac teristic of the t he civil law tradition which  prevails  prevails in Mexico. Mexico. It enables enables courts to enforce the constitution by protecting indivi individual dual rights in JURISTS REVIEW CENTER  particular  particular cases, but prevents them from from using this this power to t o make law for the entire nation.” nation.” Through time, adoption and adaptations in some other places, it has also begun to assume different forms for  different different purposes purp oses – (1) amparo libertad  for the t he protection protect ion of personal freedom, equival equivalent ent to thehabeas the habeas B for AR REVIEW 2017 corpus writ; corpus writ; (2) amparo contra leyes  leyes  for the judicial review of the constitutionality of statutes; (3) 68

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

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amparo casacion for casacion for the judicial review of the constitutionality and legality of a judicial decision; (4) amparo administrativo for administrativo for the judicial review of administrative actions; and (5) amparo agrario for agrario for the  protection of peasants’ rights rights derived from from the agrarian reform reform process.  process. In the Philippines, before the adoption of the Amparo the Amparo Rules,  Rules, we had the constituti co nstitutional onal guarantee of  right to life, liberty liberty and security under the Due Process Proce ss Clause and the right against a gainst unreasonable searches and seizures (Art. II, §§1 and 2), enforceable by means of the writ of habeas corpus (Art. corpus (Art. III, §15) as 69 well as the Grave Abuse Clause  (Art. VIII, §1, ¶2). On the Grave Abuse Clause, Clause, the Court said: “The “The Clause accords a similar general protection to human rights extended by the amparo contra leyes, leyes, amparo casacion, casacion, and amparo administrativo. administrativo. Amparo libertad  libertad  is  is comparable to the remedy of habeas corpus  corpus  found in several provisions of the 1987 Constitution. The Clause is an offspring of the U.S. common law tradition tra dition of judicial review, review, which finds its its roots ro ots in the 1803 case c ase of Marbury v. Madison.” But the means then available were obviously inadequate remedy to pressing problems of extralegal  killings  and enforced disappearances  which cried out for better solutions. Thus, the writ of amparo. amparo. “While constitutional rights can be protected under the Grave Abuse Clause through remedies of  injunction injunction or prohibition p rohibition under Rule 65 of the Rules of Court and a pet ition forhabeas forhabeas corpus under corpus under Rule 102, these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. disappe arances. However, How ever, with the swiftness swiftness required to resolve reso lve a petition for a writ ofamparo of amparo through thro ugh summary proceedings proceed ings and the availabil availability ity of appropriate appro priate interim and permanent reliefs under the  Amparo  Amp aro   Rule, this hybrid writ of the common law and civil law traditions – borne out of the Latin American and Philippine Philippine experience of human rights abuses – o ffers a better bette r remedy to extralegal killings killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary summary proceeding procee ding that requires only substantial evidence to make t he appropriate appro priate reliefs available available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.” In fine, amparo writ amparo writ serves both bot h preventive and curative cur ative roles in addressing the problem pro blem of extralegal  The Amparo Rule  Rule was intended to address addr ess the intract intractable able problem killings  and enforced disappearnces . The Amparo of “extralegal killings” and “enforced disappearances.” Its coverage, in its present form, is confined to  Extralegal killings are these two instances or to threats thereof. And what do you mean by those terms? Extralegal killings killings committe committed d without due d ue process pro cess of law, i.e., i.e., without legal safeguards or judicial proceedings. On the other hand, enforced disappearances   are attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or o r a refusal to acknowledge the deprivation of liberty liberty which which  places such such persons outside the protection of R law. JURISTS EVIEW CENTER  production  by the responsible officials and persons of  What reliefs are available? One would be the production all official and unofficial reports   of the investigation undertaken in connection with their case, all  BAR REVIEW 2017 medical reports, records and charts , reports of any treatment given or recommended and medicines  prescribed,  prescribed, if if any, to include include a list of medical and (sic) personnel (military and civilian)  who attended to the brothers while in detention. And, in this regard, the Court clarified the nature of an amparo  production order. “The production order under the Amparo the Amparo Rule  Rule should not be confused with a search warrant for law enforcement enforcement under Article Article III, Section 2 of o f the 1987 Constitution. This This Constitutional

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 provision  provision is a protection of the people from the unreasonable unreasonable intrusion intrusion of the government, government, not a  protection of the government government from the demand of the people people such as respondents. respondents. Instead, theamparo the amparo  production order may be likened likened to the production of documents documents or thin t hings gs under Section 1, Rule 27 of  the Rules of Civil Procedure.” Another relief  is  is the disclosure of the present places of official assignments of identified military  personnel   personnel  who  who might might have had something something to do with the abduction, detention and torture of theamparo theamparo  petitioners.  petitioners. “The “The disclosure disclosure of the present present places places of assign assignmen mentt of [two mil military itary men] men] whom respondents  both directly directly impli implicated cated as perpetrators behind behind their their abduction and and detention, is is relevant relevant in in ensurin ensuring g the safety of respondents by avoiding their areas of territorial jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices and court processes in relation to any investigation and action for violation of the respondents’ rights.” And by way of final note, the Court declared: “The writ of amparo is amparo is a tool too l that gives gives voice to preys of silent guns and prisoners behind secret walls.” (Now, as for you, the Bar examinee, it is time to give

voice to your silent pens and to break free from the prison walls you have made out of your unfounded trepidations about the Bar exams!) Tagitis, 606 SCRA 598 (2009) and 612 SCRA 685 (2010) 2.  Razon, Jr. v. Tagitis,

The remedy under the Writ of Amparo of Amparo is  is a work in progress, and we are all witnesses to the same. In this case the Court further expounded on the nature and importance of the Writ of o f Amparo. The  Amparo. The Court said that the Writ of Amparo of Amparo “does “does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility ,   ,  or at least accountability , for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance.” The Court further explained that “[i]n all these cases, the issuance of the Writ of Amparo of Amparo is  is justified by our   primary  primary goal of addressing addressing the the disappearance, disappearance, so that the lif lifee of the victim victim is preserved and his liberty liberty and security are restored. We highlight this nature of a Writ of Amparo of Amparo case  case at the outset to stress that the unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and proc edures in ordinary court actions and proceedings. In this sense, the Rule on the Writ of   Amparo (  Amparo ( Amparo  Amparo Rule) Rule) issued by this Court is unique. The  Amparo Rule  Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate.” In regard to t o the t he need for some so me adjustments, adjustments, specially specially with respect to matters of evidence, evidence, the Court explained that flexibility is necessary under the unique circumstances that enforced disappearance cases  pose to the courts. To have an effective eff remedy, the standard of o f evidence must be responsive to the Jective REVIEW CENTER URISTS evidentiary difficulties difficulties faced. “Thus, whil w hilee we must follow the substantial substant ial evidence evidence rule, ru le, we must observe o bserve flexibility in considering the evidence we shall take into account. The fair and proper rule, to our mind, is to consider all the pieces of evidence B adduced in their totality, 2017and to consider any evidence otherwise AR REVIEW inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e –  i.e., ., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. ”

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In keeping withA theLibrary idea thatOf theLiberties remedy under the Writ of Amparo is of Amparo a work in progress, take note vis-à-vis  An Arsenal isOf Arms of what the Court said in Burgos in Burgos v. Macapagal-Arroyo Macapa gal-Arroyo,, 621 SCRA 481 (2010) – even as some of the

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named respondents had retired or been reassigned elsewhere, they, as presen as  presentt respondents, respondents, “shall continue to be personally impleaded for purposes of the responsibilities and accountabilities they may have incurred during their incumbencies.”70 3.  Boac v. Cadapan Cadapan, 649 SCRA 618 (2011) Among the significant aspects of this case which arose from the abduction and disappearance of two women and a man is the recognition of the credibility of the testimony of Manalo in the earlier case of  its Decision in the just cited Secretary Secretary of National Defense. Defense. “The Court takes judicial notice of its of National Defense v. Manalo which Manalo which assessed the account of Manalo to be a candid and forthright narrative of his and his brother Reynaldo’s abduction by the military in 2006; and of the corroborative testim test imonies, onies, in the same case, of o f Manalo’s brother Re Reynaldo ynaldo and a forensic specialist, as well as Manalo’s Manalo’s graphic description of o f the detention area. There Ther e is thus no compelling compelling reason for the Court, in the present case, to disturb its appreciation in Manalo’s testimony. The outright denial of petitioners Lt. Col. Boac, et al. thus crumbles.”  Hierarchy of Amparo Petitioners. Petitioners. Also,  Also, the Court spoke of a hierarchy hierarchy of parties when it comes to  petitions for writs writs of amparo. amparo. The exclusive and successive order mandated by Section 2 of the Rule on the Writ of Amparo of  Amparo must  must be followed. “The order of priority is not without reason – ‘to prevent the indiscriminate and groundless filing of petitions for amparo which amparo which may even prejudice the right to life, liberty or security of the aggrieved party.’” Thus, the parents of the two missing persons could not file a petition on behalf of the third missing individual, specially if there is no showing that there were no known members of the immediate family or relatives of the latter. Incidentally, in this regard the Court noted that, in contrast, in a habeas corpus proceeding, corpus proceeding, any person any person may apply for the writ on behalf of  the aggrieved party. Command Responsibility in Amparo Proceedings. Proceedings. While the Court maintained the pronouncement in Rubrico in Rubrico in  in denying the application of o f command responsibility responsibility inamparo in amparo cases  cases to determine determine criminal  liability, liability, it nevertheless neverthe less went on to t o state sta te that tha t “command responsibi respo nsibili lity ty may be loo loosely sely applied applied inamparo inamparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo co amparo court urt would wo uld issue. issue. In such application, application, the amparo court amparo court does do es not impute impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party. Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further  investigation by the appropriate government agency.”  Motion for Execution of Writ of Amparo. “[T]here Amparo. “[T]here is no need to file a motion for execution for an amparo or amparo or habeas corpus decision. corpus decision. Since the right to life, liberty and security of a person is at stake, the REVIEW CENTER URISTS  proceedings should should not be delayed delayedJand execution of any decision deci sion thereon must be be expedited expedited as soon as  possible  possible since since any form form of delay, delay, even for a day, day, may jeopardize jeopardize the very rights that these writs seek to immediately protect.” Moreover, “The Rules of Court only find suppletory application in an amparo BAR Rweaken, EVIEW 2017  proceeding if if the Rules strengthen, strengthen, rather than the procedural efficacy efficacy of the writ. writ. As it it is, the Rule dispenses with dilatory motions in view of the urgency in securing the life, life, liberty or security sec urity of the 70

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In  Burgos,  Burgos, the Court concluded that “the PNP and the AFP have so far failed to conduct an exhaustive and meaningful investigation into the disapp earance of Jonas Burgos, and to exercise the extraordinary diligence (in the p erformance of their duties) that the Rule on the Writ of Amparo of Amparo requires.”  requires.” The Court also referred the case to the Commission on Human Rights as “the “ the Court’s directly vis-à-vis A Library Of Liberties  An Arsenal Of Arms commissioned agency tasked with the continuatio continuatio n of the investigation of the Burgos abduction a nd the gathering of evidence, with the obligation to report its factual findings and recommendations to this Court. ”

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aggrieved party. Suffice it to state that a motion for execution is inconsistent with the extraordinary and expeditious remedy being offered by an amparo proceeding. amparo proceeding. In fine, the appellate court erred in ruling that its directive to immediately release immediately release Sherlyn, Karen and Merino Merino was not automatically automatically executory. executory. For  that would defeat the very purpose of having summary proceedings in amparo  amparo  petitions. Summary  proceedings, it bears emphasis, emphasis, are imm immediatel ediately y executory without without prejudice prejudice to further further appeals appeals that may may  be taken therefrom.” therefrom.”  Effect of Transfer, Retirement or Separation from Service. Service. Finally, Finally, it is also notewort note worthy hy that some so me respondents remained to be such notwithstanding that they might have been reassigned or transferred or  retired. We find this in the dispositive portion: “Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Mirabelle Samson, Gen. Jovito Palparan, P alparan, Lt. Col. Co l. Rogelio Boac, Arnel Enriquez and Donald Caigas shall shall remain personally remain personally impl  impleaded eaded in the petitions to answer for any responsibilities responsibilities and/or accounta acc ountabil bilities ities they may have incurred during their incumbencies.”  Rodriguez v. Macapagal-Arr Macapagal-Arroyo oyo , 660 SCRA 84 (2011) 4.  Rodriguez

The Court discussed some noteworthy highlights regarding the writs of amparo and amparo and habeas data in data in this case. Grant of Interim Reliefs. Reliefs. Being interim reliefs, they can only be granted before a final adjudication of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, amparo, once granted, necessarily entails the protection of the aggrieved party. Accordingly, since the Court granted  petitioner the privi privilege lege of the writ writ of amparo, amparo, there was no more need to issue a temporary protection order independently of the former. The order restricting respondents from going near Rodriguez is subsumed under the privilege of the writ. Concepts of Responsibility and Accountability. Accountability. Since there the re is no determination det ermination of administrat administrative, ive, civil or criminal liability in amparo and amparo and habeas data proceedings, data proceedings, courts can only go as far as ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing.  Presidential Immunity from Suit . A non-sitting President does not enjoy immunity from suit, even for acts committed during the latter’s tenure. Courts should look with disfavor upon the presidential  privilege  privilege of immuni immunity, ty, especiall especially y when it impedes impedes the search for truth or impairs impairs the vindicati vindication on of a right. Command Responsibility in Amparo proceedings.  proceedings. Although Altho ugh original o riginally ly used for ascert aining aining criminal criminal complicity, the command responsibi respo nsibili lity ty doctrine do ctrine has also found fou nd application in civil cases for human rights abuses. This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. The Court held that command responsibility may likewise find application in proceedings seeking the privilege of  JURISTS REVIEW CENTER the writ of amparo. amparo. The doctrine of command responsibility may be used to determine whether  respondents are accountable for and have the duty to address the abduction of the petitioner petitioner in order to enable the courts to devise remedial measures to protect his rights. Nothing precludes the Court from BAR REVIEW 2017 applying the doctrine of command responsibility in amparo proceedings amparo  proceedings to ascertain responsibi responsibili lity ty and accountability in extrajudicial killings and enforced disappearances.

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Command responsibility of the President . The president, p resident, as commander-in-chi co mmander-in-chief ef of the mili military, tary, can c an  be held held responsibl responsiblee or accountable for extrajudicial extrajudicial killi killings ngs and enforced disappearances. disappearances. To hold someone liable under the doctrine do ctrine of command co mmand responsibility, responsibility, the following following elements must obtain: obta in: (a) the A Library Of Liberties Arsenal Of Arms existence existence of a superior-subordinate superior-sub ordinate relationshi relationship pvis-à-vis between the t An he accused as superior and the perpetrator perpetrat or of  o f 

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the crime as his subordinate; subordinate; (b) the superior knew or had reason rea son to know that the crime was about to to  be or had been commi committed; tted; and (c) the superior fail failed ed to take the necessary and reasonable reasonable measures measures to  prevent the criminal criminal acts or punish the perpetrators thereof. The president, being the commander -in-chief -in-chief of all armed forces, necessarily possesses control over  the military that qualifies him as a superior within the purview of the command responsibility doctrine. On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., i.e., actual knowledge, such may nonetheless be established through circumstantial evidence. In the Phil P hilippines, ippines, a more liberal view view is adopted adop ted and a nd superiors superior s may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, otherwise known as the  Institutionalization of the Doctrine of ‘Command Responsibility’ Responsibi lity’ in all  Government Offices, particularly at all Levels of Command in the Philippine National Police and other   Law Enforcement Agencies (E.O. Agencies (E.O. 226 [1995]). Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government official’s area of   jurisdi  jurisdiction; ction; (b) the acts have been repeatedly or regularly regularly committed committed within within his his area of responsib responsibil ility ity;; or  (c) members of his immediate staff or office personnel are involved. As to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief  of the armed forces, the president has the power to effectively command, control and discipline the military.  Doctrine of Totality of Evidence. Evidence. Under the doctrine of totality of evidence in amparo cases, courts consider all the pieces of evidence adduced in their totality , and to consider any evidence evidence otherwise inadmissibl inadmissiblee under the t he usual rules to be admissible admissible if it is consistent with the admissible admissible evidence adduced. adduce d. The Court reduced the rules to the most basic test of reason – reason – i.e., i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test. Commission on Human Rights Shortcomings. Shortcomings. Here, while the Court found that there was no substantial substantial evince evince to show that t he personnel of the CHR who looked into the case of Rodriguez violated, violated, or threatened with violation, Rodriguez’s right to life, liberty and security, it nonetheless emphasized its criticism as regards their capacity to recognize torture or any similar form of abuse. The Court pointed out that the CHR, being constitutionally mandated to protect human rights and investigate violations thereof, should ensure that its officers are well-equipped to respond effectively to and address human rights violations. The actuations of respondent CHR personnel unmistakably showed their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal.  Effect of Failure to Conduct a Fair and a nd Effect Eff ect Investigation. Investigation. Failure to conduct a fair and effect J R CENTER URISTS EVIEW investigation amounts to a violation of or threat thre at to a person’s rights to life, liberty liberty and security. The Rule on the Writ of Amparo of  Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of omission  of a public official, reiterating that in the context B AR REVIEW 2017 of amparo proceedings, amparo proceedings, responsibility  may refer to the participation of the respondents, by action or  omission, in omission, in enforced disappearance, while accountability  may attach to respondents who are imputed  with knowledge relatin knowledge relating g to the enforced disappearance and who carry the burden of disclosure; disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of  investigation of  the enforced disappearance. Adverting to Secretary of National Defense v. Manalo, Manalo, 568 SCRA 1, 42 (2008), the t he Court reminded reminded everyone that the right to security of a person includes the positive obligation A Library Of Liberties vis-à-vis An Arsenal Of Arms positive obligation of the government government to ensure the observance of the duty to investi investigate. gate. The Court noted no ted that in this this case,

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there was only perfunctory investigation by the superiors, exerting no efforts to take Ramirez’s account of the events into consideration. Rather, these respondents solely relied relied on the t he reports and narration of  the military. 5.  Navia v. Pardico, 673 SCRA 618 (2012) In this case, the Court clarified, in conjunction with the provisions of the Philippine the Philippine Act on Crimes  Against International Humanitarian Law, Genocide and Other Crimes Against Humanity Humanit y (R.A. No. 9851), that for the protective writ of amparo to issue in enforced disappearance cases, allegation and  proof that the persons subject subject thereof are mis missin sing g are not enough – it it must must also also be shown by the required required quantum of proof that their disappearance was carried out by, or with the authorization, support or  acquiescence acquiescence of the t he government government or o r a political p olitical organization, followed followed by a refusal to acknowledge the same or give information information on the fate or whereabout wher eaboutss of said missi missing ng persons. perso ns. The petitioner pet itioner must be able to prove by substantial evidence the indispensable element of government participation. Here, guards of a subdivision invited two persons in relation to a complaint against them for theft of  electric wires and lamps in the subdivision. The two, accompanied by the mother of one of them, went to the t he security office, office, and after some so me questioning by the guards, guar ds, one was allowed to leave while while the other  ot her  (Pardico) (Pard ico) was left behind, and he was wa s subsequently reported repo rted by his his wife as missing. missing. After After the t he wife could not locate him, she finally filed a petition for Writ of Amparo of Amparo,, which the trial court eventually granted. On appeal, the Court had to resolve the issue issue as to whether the disappearance of Pardico as alleged alleged  by the wife and proved pro ved during the summary summary proceedings before before the t he trial court fell within within the ambit ambit of  A.M. No. 07-9-12-SC and relevant relevant laws. The Court Cour t said no, and came up with the following following important important  points to consider in an amparo proceeding, amparo proceeding, specifically in regard to enforced disappearances. disappearances. “Whil “Whilee Section Sect ion 1 provides A.M. No. 07-9-12-SC’s coverage, said Rules Rules does not, however, define define extralegal killings and enforced disappearances. This omission was intentional as the Committee on Revisi Revision on of the Rules of Court which drafted A.M. No. 07-9-12-SC 07 -9-12-SC chose to allow allow it to evolve through time and jurisprudence and through substantive laws as may be promulgated by Congress. Then, the  budding  budding jurisprudence jurisprudence on amparo blossomed amparo blossomed in Razon, in Razon, Jr. v. Tagitis when Tagitis when this Court defined enforced disappearances. The Court in that case applied the generally accepted principles of international law and adopted the International Convention Convention for the t he Protection Prot ection of All Persons from Enforced Enforced Disappearance’s definition definition of enforced disappearances, disappearanc es, . . . Not long thereafter, therea fter, another anot her significant significant development affecting A.M. No. 07-9-12-SC came about about after Congress enacted Republic Republic Act (RA) (RA) No. 9851 985 1 on December  December  11, 2009. Section 3(g) thereof defines enforced or involuntary disappearances as follows: (g) ‘Enforced or involuntary involuntary disappearance disappearance of persons’ means the arrest, detention, det ention, or abduction of persons by, or with the authorizati autho rization, on, support suppo rt or o r acquiescence of, a St State ate or o r a poli po litical tical organization organization followed followed by a refusal refusal to J R C URISTS EVIEW ENTER acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those  persons, with with the intention intention of removing removing from from the protection of the law for a prolonged period period of time.” time.” Given Given the foregoing definition, definition, the Court held further: “Therefore, “Therefore, A.M. No. 07-9-12-SC’s reference to B AR REVIEW 2017 enforced disappearances should be construed to mean the enforced or involuntary disappearance of   persons contempl co ntemplated ated in Section 3(g) of RA No. 9851. Meaning, Meaning, in probing enforced disappearan d isappearance ce cases, courts should read A.M. No. 07-9-12-SC in relation to RA No. 9851.”

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After setting forth fort h the elements of enforced disappearances, disappearances, the Court concluded that “it is is now clear  that for the protective writ of amparo to issue, issue, allegation allegation and proof proo f that the persons subject thereof are vis-à-vis A h. Library Of Liberties Arsenal Of Arms missing missing are not enough. enoug It must also be shown and pro ved  An proved by substantial substant ial evidence that the disappearance disappeara nce

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was carried out by, or with the authorization, support or acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or  whereabouts whereabo uts of o f said missi missing ng persons, perso ns, with the intention o f removing removing them from from the protect pro tection ion of the law for a prolonged pro longed period of time.” In this particular case, while while the Court Co urt basically believed believed the version of the petitioner p etitioner seeking see king the writ, it nevertheless that “in an amparo petition, amparo petition, proof pro of of disappearance alone is not enough. It is likewise likewise essential to establish that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. This indispensable element of State participation is not  present in this this case.” But is it it not that t hat under Section 1 of A.M. No. No . 07-9-12-SC a writ of amparo may amparo may lie lie against aga inst a private individual or entity? Yes, “[b]ut even if the person sought to be held accountable or responsible in an amparo petition amparo  petition is a private individual individual or entity, entit y, still, still, governm go vernment ent involvem involvement ent in the disappearance disappearance remains an indispensable element.” Here, the respondents were mere security guards at a private subdivision, a private entity – they did not work for the government and nothing had been presented that would link or connect them to some covert police, military or governmental operation. The Court reiterated: “As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be attended by some governmental involvement. This hallmark of State  participation  participation differenti differentiates ates an enforced enforced disappearance case case from an ordinary case of a missi missing ng person.” Arcayan, 693 SCRA 192 (2013) 6.  Pador v. Arcayan

To be entitled to the t he privilege privilege of the writ of o f amparo, amparo, the petitioner pe titioner must prove pro ve by substantial substant ial evidence that his or her rights to life, liberty and security are being violated or threatened by an unlawful act or  omission. omission. The writ does not envisage envisage the protection of concerns that are purely property or commercial commercial in nature. The Court reminded everyone that “the privilege of the writ of amparo is an extraordinary remedy adopted to address the special concerns of extralegal killings and enforced disappearances . ‘Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the  Amparo Rule be diluted and undermined by the indiscriminate indiscriminate filing filing ofamparo of amparo petitions  petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.’” 7.  De Lima v. Gatdula, 691 SCRA 226 (2013)  privilege of the In this case, the Court clarified the the difference between writ of amparo and amparo and the privilege Writ of Amparo . “The privilege of the Writ of Amparo of Amparo should be distinguished from the actual order called the Writ of Amparo. Amparo. The privi pr ivilege lege includes availment availment of the entire proce pr ocedure dure outlined o utlined in A.M. A.M. No. 07-9-12-SC, the t he Rule on the Writ of of Amparo examining the petition and its attached attac hed affidavits, affidavits, the J Amparo. REVIEW CENTER URISTS. After Return and the evidence presented in the summary hearing, the judgment should detail the required acts from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the  petitioner’s  petitioner’s lif life, e, lib liberty erty or security. security. A judgment judgment simply sim2017 ply grants ‘the ‘the privil privilege ege of the writ’ writ’ cannot cannot be BAR Rwhich EVIEW executed. It is tantamount tantamount to a failure failure of o f the judge to t o intervene and grant judicial judicial succor to the petitioner. Petitions filed to avail of the privilege of the Writ of  Amparo arise out of very real and concrete circumstances. Judicial Jud icial responses respo nses cannot be as tragically tr agically symbolic symbolic or rituali ritua listic stic as “granting “grant ing the privi pr ivilege lege of the Writ of Amparo of Amparo.” .”

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The Court Cou rt explained that “the issuance of thevis-à-vis sets in motio motion n presumptive judicial protection prot ection A Library Of Liberties writ itself An Arsenal Of Arms for the petitioner. The court compels compels the respondents to appear before a court o f law law to show whether 

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the grounds for more permanent protection and interim reliefs are necessary. The respondents are required to file a Return after the issuance issuance of the writ through the clerk of court. The Return serves as the responsive pleading to the petition. Unlike an Answer, the Return has other purposes aside from identifying the issues in the case. Respondents are also required to detail the actions they had taken to determine the fate or whereabouts of the aggrieved party.” Thereafter, “[t]here will be a summary hearing only after the Return is filed to determine the merits of the petition and whether interim reliefs are warranted. If the Return is not filed, the hearing will be done ex parte. After parte. After the hearing, the court will render the judgment within ten (10) days from the time the petition is submitted for decision. If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate. The judgment should contain measures which the judge views as essential essential for the continued protection prot ection of the petitioner pe titioner in in the Amparo the Amparo case. These measures must be detail deta iled ed enough enoug h so that the judge may be able to verify and monitor the actions act ions taken by the respondents. responde nts. It is this judgment that could be subject to appeal to the Supreme Court via via Rule 45. After the measures have served their the ir purpose, purpose , the judgment will be satisfied. satisfied. In Amparo In Amparo cases, this is when when the threats to the  petitioner’s  petitioner’s life, life, liberty liberty and security security cease to exist exist as evaluated by the court that t hat renders the judgment. judgment. Parenthetically Parent hetically,, the case may also be terminated thro ugh consolidation co nsolidation should a subsequent case c ase be filed filed  – either either crimi criminal nal or civil civil.. Until Until the full full satisfaction satisfaction of the judgment, judgment, the extraordinary extraordinary remedy of Amparo allows vigilant judicial monitoring to ensure the protection of constitutional rights.” Among the other significant points to consider: •

“It is the Return that that serves as the respons responsiv ivee pleadi pleading ng for petition petitionss for the issu issuance ance of Wri Writs ts of Amp of  Amparo aro.. The requirement to file an Answer is contrary to the intention of the Court to  provide a speedy speedy remedy to those whose right right to life, life, lib liberty erty and security security are violated violated or are threatened to be violated.”

•

“A writ of Amparo is a special proceeding . It is a remedy by which a party seeks to establish a status, a right or particular fact. It is not a civil nor a criminal action, hence, the application of the Revised Rule on Summary Procedure is seriously misplaced.”

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“The Return in Amparo cases allows the respo respondents ndents to frame the issues issues subject to a hearing. Hence, it should be done prior to t he hearing, hearing, not after.”

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A mem memorandu orandum m is is a prohib prohibited ited plea pleadi ding ng under under the Rule Rule on the Wri Writt of Amparo of Amparo..

8. Caram v. Sequi , 732 SCRA 86 (2014) A petition for a writ of amparo is not the proper reco urse for obtaining obtaining parental authority and custody of a minor child. The mother’s directly accusing the Department of Social Welfare and Development JURISTS REVIEW CENTER officers of forcibly separating her from her child and placing the latter up for adoption, supposedly without complying with the necessary legal requisites to qualify the child for adoption, clearly indicated that she was not searching for a lost child but asserting her parental authority over the child and BAR REVIEW 2017 contesting custody over him. Since what is involved is the issue of child custody and the exercise of   parental rights rights over a chil child, d, who, for all all intents intents and purposes, purposes, has been been legall legally y considered considered a ward of the State, the Amparo rule cannot be properly applied. applied.

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SPEEDY DISPOSITION OF CASES

The Court came up with enlightening reminders on the guaranty of speedy disposition of cases in Coscolluela v. Sandiganbayan (First Division), Division), 701 SCRA 188 (2013). This involved a criminal  prosecution which which almost almost took to ok eight (8) years from from the time time the complaint complaint was filed filed with with the Office Office of  the Ombudsman to the time that the case was filed with the Sandiganbayan. For the fundamentals, fundamentals, the Court lectured about the right to speedy disposition. disposition. “This “This constitutional right is not limited limited to t o the accused in criminal criminal proceedings but extends to t o all parties in all cases, be it civil civil or admini a dministrat strative ive in natur nature, e, as well we ll as all proceedings, proceed ings, either judicial judicial or quasi-judicial. quasi-judicial. In this accord, acco rd, any  party to a case may may demand demand expeditious expeditious action to all all offi official cialss who are tasked with with the admini administration stration of   justice.  justice. It must be be noted, however, that the right right to speedy disposition disposition of cases should should be understood understood to  be a relative relative or flexi flexible ble concept such that a mere mere mathemati mathematical cal reckoning of the time time invol involved ved would would not not  be sufficien sufficient. t. Jurisprudence Jurisprudence dictates that the right is deemed dee med violated violated onl o nly y when the proceedin pro ceedings gs are attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured; or even without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. Hence, in the determination of whether the defendant has been denied his right to a speedy disposition of a case, the following factors may be considered and  balanced:  balanced: (1) the length length of delay; delay; (2) the reasons for the delay; delay; (3) the assertion assertion or fail failure ure to assert such right by the accused; and (4) the prejudice caused by the delay.” As for the rationale, the Court elucidated: “Lest it be misunderstood, the right to speedy disposition of cases is not merely hinged towards the objective of spurring dispatch in the administration of justice  but also to prevent the oppression of the citizen citizen by holdin holding g a criminal criminal prosecution suspended over him him for an indefinite indefinite tim t ime. e. Akin to the right to t o speedy speed y trial, its its ‘salutary objective’ is to assure a ssure that an innocent  person may be free from the anxiety anxiety and expense of litigation litigation or, if otherwise, of having having his his guilt guilt determined within the shortest possible time compatible with the presentation and consideration of  whatsoever whatso ever legitimate defense he may interpo interpose. se. This loo loomin ming g unrest as well as the tactical tac tical disadvantages carried by the passage of time should be weighed against the State and in favor of the individual. In the context of o f the right right to a speedy trial, trial, the Court Co urt in Corpuz v. Sandiganbayan ( Sandiganbayan (Corpuz  Corpuz )[, )[, 442 SCRA 294, 312, 313-314 (2004),] illumined: ‘A balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc  basis.  basis. ¶ ‘x x x Prejudice should be assessed in the light of the interest o f the defendant that t he speedy trial was designed to prot p rotect, ect, namely na mely:: to prevent pre vent oppressive opp ressive pre-trial incarceration; to minimi minimize ze anxiety and concerns of the accused to trial; t rial; and to limit limit the possibility possibility that his defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire ent ire system. There is also prejudice if the e defense witnesses are unable to recall accurately JURISTS Rth EVIEW CENTER the events of the distant past. Even if the accused is not imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often, hostility. His financial resources may be drained, his association is curtailed, and he is BAR REVIEW 2017 subjected to public obloquy. ’”

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S. SELF-INCRIMINATION CLAUSE Under this privilege, privilege, a person p erson is free to keep k eep within his his breast any incriminato incriminatory ry matters and a nd he could not be forced to disclose disclose them. If the authorities want want to pin hi him down, they have to co me up with their  own proof independent of what might be concealed by the person himself. Nevertheless, it must be remembered that the guarante gu aranteee is against against compelled testim test imonial onial evidence, evidence, not no t object evidence which may include fingerprints, blood samples, urine samples, DNA samples and the like. When it comes to availing of the privilege, distinctions have to be made as to whether the person invoking it it is an accused, a mere witness, or a party part y in in a civil civil suit. While While an accused can c an refuse altogether  altoge ther  to take the witness stand, a witness may only refuse to answer incriminating questions. If he is the respondent in proceedings in which loss or forfeiture of property71 or loss of a license or profession72 is a consequence, then he may also invoke the privilege like an accused.  No inference inference of guilt guilt should be made from the invocation invocation of o f the privilege, privilege, otherwi ot herwise se it would be useless. The prosecution is still required to prove guilt by its own evidence, not by seizing upon the exercise of the right. Further, while while the language of the privilege privilege suggests an absolute right not to be compell co mpelled ed to provide p rovide an incriminating answer, the same is subject, however, to the so-called immunity statutes – the “use or  derivative use” or the “transactional” immunity statutes. The courts have upheld the validity of such statutes provided they accord the person compelled to testify a degree of protection coextensive with what is otherwise guaranteed by the constitutional proscription against self-incrimination. In Tanchanco v. Sandiganbayan, Sandiganbayan, 476 SCRA 202 (2005), the t he Court held held that the kind of immunity immunity that may be granted in the Philippines Philippines is is broader broade r than American “transactional immunity” immunity” since since the t he latter  latte r  are judge-made while in the Philippines they are granted by the legislature, while in  Mapa v. Sandiganbayan, Sandiganbayan, 231 SCRA 783 (1994), the t he Government Government was held held to its part of the bargain relative relative to grant of transactional immunity. In Disini In  Disini v. Sandiganbayan, Sandiganbayan, 621 SCRA 415 (2010), immunity was granted to Jesus to  Jesus Disini  Disini in exchange for his agreement to testify for the Government in relation to the dispute with Westinghouse regarding the Bataan Nuclear Plant. In that grant, he was also given the right not to testify against Herminio against Herminio T. Disini. T. Disini. Subsequently the Government said that Jesus Disini could not refuse to testify te stify against Herminio against Herminio.. The Court Cou rt said: “Surely “Sure ly,, the principle of fair play, play, which is the essence of due process, should hold the Republic Republic on to its promise.” promise.” The guarantee given to Jesus against  Jesus against being compelled to testify in cases against Herminio constitutes a grant of immunity from civil or criminal  prosecution. “The grant, therefore, therefore, of imm immunity unity to petitioner Disi Disini ni against against being being compelled compelled to testify testify is ultimately a grant of immunity from being criminally prosecuted by the State for refusal to testify, something that falls within the express coverage of the immunity given him.” Then, as if to provide JURISTS REVIEW CENTER lessons on human relations, relations, the t he Court said that it “should not allow respondent respo ndent Republi Repu blic, c, to put p ut it bluntly, bluntly, to double cross petitioner Disini. . . . More than any one, the government should be fair.”

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1.  Salinas v. Texas, 670 U.S. ___ (No. 12–246, 17 June 2013) Here, the accused, without being placed in custody or receiving Miranda receiving  Miranda warnings, voluntarily answered the questions of a police officer who was investigating a murder. But then he balked when the

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officer asked whether a ballistics test would show that the shell casings found at the crime scene would match petitioner’s petitioner’s shotgun. He was subsequently subsequently charged charged with murder, and at trial t rial prosecutors argued that his reaction to the officer’s officer’s question suggested that he was guilty. Is this violative of the right against self-incrimination? The U.S. Supreme Court said no. “The privilege privilege against aga inst self-in self-incrimi crimination nation ‘is an exception to t o the t he general principle that the Government Go vernment has the right to everyone’s testimony.’ . . . To prevent the privilege from shielding information not  properly within within its its scope, we have long held held that a witness witness who “‘desires “‘desires the protection of the privil privilege ege . . . must claim it’” at the time he relies on it.” Further, “[t]hat requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, . . . or cure any potential self-incrimination through a grant of immunity, . . . The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness’ reasons for refusing to answer. . . . In these ways, insisting that witnesses expressly invoke the privilege ‘assures that the Government obtains all the information to which it is entitled.’”  Nevertheless,  Nevertheless, after after noting some some exceptions, exceptions, the Court held: “[A] witness witness need not not expressly expressly invoke invoke the privilege where some form of official compulsion denies him ‘a “free choice to admit, to deny, or to refuse to answer.”’” In this case, however, the accused “cannot benefit from that principle because it is undisputed that his interview with police was voluntary.” Finally, Finally, the Court not ed: “Our cases ca ses establish that a defendant normall no rmally y does not invoke the privilege privilege  by remaini remaining ng silent. silent. . . . A witness does not expressly expressly invoke invoke the privilege privilege by standing standing mute.” Sandibanbayan (Fourth (Fourth Division) , 699 SCRA 713 (2013) 2.  People v. Sandibanbayan

“The authority to grant immunity is not an inherent judicial function,” the Court declared in this involving a denial of the Ombudsman’s motion to discharge an accused pursuant to an immunity agreement. “Indeed, Congress has vested such power in the Ombudsman as well as in the Secretary of  Justice. Besides, the t he decision decision to employ e mploy an accused as a state sta te witness must necessarily originate from the  public  public prosecutors whose missi mission on is is to obtain a successful successful prosecution of the several several accused before before the courts. The T he latter do not as a rule have a vision vision of o f the true strength o f the prosecution’s evidence evidence until after the trial is is over. Consequentl Co nsequently, y, courts should generally generally defer defer to the judgment of the t he prosecution prosecut ion and deny a motion to t o discharge an accused acc used so he can be used as a witness only in in clear cases of o f failure failure to meet the requirements requirements of o f Section 17, Rule 119.” The Court explained that the authority of the Ombudsman to enter into grant immunity enables him “to carry out his constitutional mandate to ensure accountability in the public service. It gives the Ombudsman wide latitude in usingJURISTS an accusedRdischarged from the information to increase the chances EVIEW C ENTER of conviction of the other accused and attain a higher prosecutorial goal. Immunity statutes seek to  provide a balance between the state’s interests and and the individual individual’s ’s right right against self-in self-incrim criminati ination. on. To secure his testimony withou withoutt exposing expo sing him hi to the risk of prosecution, prosecu reco gnizes that the witness BmAR REVIEW 2017tion, the law recognizes can be given immunity from prosecution. In such a case, both interests and rights are satisfied.” What benefit would it be to grant immunity to one who is a co-conspirator? “One rule of wisdom is that where a crime is contrived in secret, the discharge of one of the conspirators is essential so he can testify testify against the others. Who else outside the conspiracy can testify testify about the goings-on that took place among the accused involved in the conspiracy to defraud the government in this case? No one can A Library Of Liberties vis-à-vis An Arsenal Of Arms underestim underest imate ate Mercado Mer cado’s ’s testimony since since he alone can provide a det ailed picture of the fraudulent scheme

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that went into the approval and issuance of the tax credit certificates. The documents can show the irregularities but not the detailed events that led to their issuance. As correctly pointed out by the  prosecution, Mercado’s testimony can fill fill in the gaps in the evidence.” But is this not rewarding the criminal? Well, the immunity granted does not blot out the fact that such co-conspirator committed the offense. “While he is liable, the State saw a higher social value in eliciting information from him rather  than in engaging in his prosecution.” 3.  Dela Cruz v. v. People, 730 SCRA 655 (2014) Where there is coerced drug testing followi following ng an arrest relative relative to a complaint complaint not related to drugs, the same may amount to a violation of the right against ag ainst self-incrim self-incrimination. ination. The Court Co urt said: “We are aware aw are of the prohibi pro hibition tion against testim test imonial onial compulsion compulsion and the allowable exceptions to such suc h proscription. Cases where non-testimonial non-te stimonial compulsion has been allowed allowed reveal, re veal, however, t hat the pieces of evidence evidence obtained obta ined were all material to the principal cause of the arrest .” In this particular case, “[i]t is incontrovertible that petiti pet itioner oner refused to have his his urine extracted and tested for drugs. drug s. He also asked for a lawyer lawyer prior  to his urine test. He was adamant in exercising his rights, but all of his efforts proved futile, because he was still compelled to submit his urine for drug testing under those circumstances.” The Court then concluded that “[i]n the face of these constitutional guarantees [against unreasonable searches and seizures and right against self-incrimination], we cannot condone drug testing of all arrested persons regardless of the crime of offense for which the arrest is being made.”

T. EXCESSIVE FINES, CRUEL AND INHUMAN PUNISHMENTS Punishment Punishment is supposed to be the price that has to be paid by those found guilty g uilty of crimes against the State – a way of making amends for violation of society’s rules. It is the manner by which society may somehow exact a form of retribution. The constitutional guarantee on punishments is geared towards seeing to it that whatever penalty is imposed does not become such that it violates the very notion of a civilized society where the mandates of substantive due process reigns. Penalties could not be grossly disproportionate to the infraction of society’s rules.73  Nevertheless, the Court refused to make adjustments in the penalty for imprisonment for estafa, estafa, which punishments had been pegged to amounts 74 determined way back in the 1930s.  Fines should not be excessive, and other forms of punishments should not be cruel or inhuman as determined by present day standards. Likewise, just because a person may have been sent to prison does it mean that he is completely cut off from the world, stripped of all constitutional rights. He still retains some, though to the extent only that would be consistent with his status as prisoner. JURISTS REVIEW CENTER In the case of Brown of Brown v. Plata Plata,, 563 U.S. ___ (2011), the U.S. Supreme Court held that overcrowding in prisons resulting in deficiencies in the medical care of the prisoners violate the Eighth Amendment BAR REVIEW guarantee against cruel and unusual punishments. In other2017 words, if a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation.

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DOUBLE JEOPARDY

The guarantee again aga inst st double jeopardy is another assurance of fairness fairness – that a person be not exposed more than once to the danger of being punished punished for the commission ssion of the same offense . In this regard, it must be remembered that the guarantee is in relation to the same the same offense. offense. Thus, it may be that a single a single 75 act  could  co uld give give rise to two t wo or more offenses, offenses,  prosecution for which will not give rise to a violation of  the constitutional proscription. proscription. However, Ho wever, if the act  gives  gives rise to violation of a national law and law and a local  ordinance, ordinance, convi co nviction ction or acquittal under either shall shall be a bar to prosecution for the t he same act. It has also  been noted that double jeopardy attaches if if one is is tried tried by both a mili military tary court and a civi civili lian an court over  76 the same act. The rule is also also that an a n acquittal puts put s an end to the crimi cr iminal nal case and the prosecution prosecut ion could not elevate e levate 77 it to a higher tribunal except in case of a mistrial   or when there is grave abuse of discretion discretion on the part of the judge amounting a mounting to lack o r excess of jurisdiction jurisdiction which then renders the resulting judgment void.78 Thus, a violation violation of the basic basic rules of statut ory construction which amounts to grave abuse of discretion would render any judgment of acquittal acquitt al useless.79 Further, where a Motion a Motion to Dismiss/Quash Dismiss/Quash is  is based on the ground that the “facts charged do not constitute an off o ffense,” ense,” the Sandiganbayan Sandiganbayan cannot pro ceed to dismiss the case based on insufficiency of evidence. evidence. As a consequence, jeopardy would not at tach.80 The prosecution may not also appeal to increase the penalty, though if the accused himself does appeal, appea l, he stands the risk of having the penaltyrectified  penaltyrectified  –  – and increased!81 And, the employer, too, cannot appeal on behalf of an employee who has jumped bail.82 1.  People v. Atienza, 673 SCRA 470 (2012) Here the Court reiterated the general rule that the grant of a demurrer to evidence operates as an acquittal and is, thus, final and unappealable otherwise it would place the accused in double jeopardy –  the verdict being one of acquittal, the case ends there. Nevertheless, the Court added: “Although the dismissal order is not subject to appeal, it is still reviewable but only through certiorari under certiorari under Rule 65 of the Rules of Court. For the writ to issue, issue, the trial t rial court must be shown to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction such as where the prosecution was denied the opportunity to present its case or where the trial was a sham, thus, rendering the assailed judgment void. The burden is on t he petitioner to clearly clearly demonstrate demonstrate that t hat the trial court blatantly abused its authority to a point so grave as to t o deprive it of its very power to dispense justice.” justice.” 75

 E.q.,  E.q., Nierras v. Dacuycuy, Dacuycuy, 181 SCRA 1 (19 90) [bouncing checks], and, People and, People v. Ortiz-Miyake, Ortiz-Miyake , 279 SCRA 180 (1997) [ill egal recruitment]; and, Ramiscal, and, Ramiscal, Jr. v. Sandiganba yan, yan, 499 SCRA 375 (2006) [R.A. 3019 and Revised Penal Code] 76 77

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

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Galman v. Sandiganbayan, Sandiganbayan, 144 SCRA 43 (1986)

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 People v. Laguio, Jr., Jr. , 518 SCRA 393 (2007). See also Heirs also Heirs of Jane Honrales v. Honrales, Honrales, 629 SCRA 423 (2010), and, Cerezo v. People, People, 650 SCRA 222 (2011). 79 80 81 82

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 People v. Sandiganbayan, Sandiganbayan , 559 SCRA 449 (2008)  People v. Dumlao, Dumlao, 580 SCRA 409 (2009)  People v. Rondero, Rondero, 320 SCRA 383 (1999)

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

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Modesto-San n Pedro , 635 SCRA 191 (2010) 2.  Ivler v. Modesto-Sa

If irresponsible driving leads to a vehicular collision resulting in damage to property, injuries to a  passenger and death to another another passenger, passenger, how many offenses offensesare are comm co mmitted? itted? Technicall Te chnically, y, only one even as there would be two t wo resulting charges – one for reckless rec kless imprudence imprudence resulting re sulting in in physical physical injuries, injuries, and, another one for reckless imprudence resulting in homicide and damage to property. What if the accused  pleads guilty guilty to the lesser lesser charge involv involvin ing g physical physical injuri injuries, es, could he plead plead this this as a way to preclude the second charge char ge involving involving homicide? The Court said yes yes because double dou ble jeopa jeopardy rdy would have set in – there is actually only one offense of reckless imprudence ! In other words, reckless imprudence is imprudence is a single crime, and its consequences on persons and property are material only to determine the penalty.

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EX POST FACTO LAWS AND BILLS OF ATTAINDER 

The constitutional proscription against against ex post facto laws facto laws and bills of attainder ensures fundamental fairness. No man should be punished for acts which when done were perfectly lawful. Due process requires at the very least that before a person could be held to account for what alleged wrong he committed, committed, he was forewarned o f the consequences of his act. Both ex post facto  facto  laws and bills of attainder are retroactive in their application. They impose a  penalty  penalty or disabil disability ity after the act has been comm co mmitted itted when no such disadvantageous effect effect was yet  present when the act was done. Worse, Worse, in the case of bills bills of attainder, the sanction sanction is imposed imposed without without  judicial  judicial proceedings. Thus, there is is also also a violation of the principle principle of separation of powers – Congress legislates but it is the judiciary that adjudicates. Where an amendatory law imposes a new penalty, such as a fine, could that penalty be imposed on someone who committed committed the offense before before the t he amendment, amendment, and whose case was t hen on appeal at the time of effectivity of the amendatory law? In Gonzales v. Court of Appeals, Appeals, 277 SCRA 518 (1997), as well as in Cadua v. Court of Appeals,  312 SCRA 703 (1999), the Court said the new penalty may be imposed imposed since an appeal throws t hrows the entire case open for review. One may wonder, however, how such reasoning reaso ning could provide pro vide a satisfactor satisfactory y answer to the question qu estion as to why the imposition of the new penalty (fine) is not a violation of the proscription against ex post facto laws. facto laws. Would it not be a case of a law “which changes the punishment and infl inflicts icts a greater gre ater punishment p unishment than the law annexed to t o the crime when it was committed”? Valeroso v. People, People, 546 SCRA 450 (2008), provided a better answer. There is no violation where overall overa ll the resulting penalty is still more beneficial to the accused, accu sed, such as when the t he total tot al  period imprisonm imprisonment ent is reduced.

R laws, EVIEW With regard to the rule againstJ exURISTS post facto laws, facto it hasCalso alENTER so been observed that, “[a]s the text o f the Clause makes clear, it ‘is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.’” Nevertheless, “limitations on ex post facto  facto  judicial B AR REVIEW 2017 decisionmaking are inherent in the notion of due process.” Indeed, “[d]eprivation of the right to fair  warning, warning, . . . can result both bot h from vague statutory language and from an unforeseeable unforeseeable and retroactive ret roactive 83  judicial  judicial expansion expansion of statutory language that appears narrow and precise on its its face.”

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Cojuangco, Jr., 674 SCRA 492 (2012) 1.  Republic v. Cojuangco,

If the prescriptive period is extended by law such that it makes it longer, does it affect those crimes which were committed prior to the amendment of the law? In Rom In  Romualdez ualdez v. Marcelo, Marcelo, 497 SCRA 89 (2006), the Court said no. It there observed: “Notably, “Notably, Section 11 of R.A. 3019 now provides that the offenses committed under that law prescribes in 15 years. Prior to its amendment by Batas Pambansa (B.P.) Blg. 195 on March 16, 1982, however, the prescriptive prescriptive period for offenses offenses punishabl punishablee under R.A. 3019 was wa s only 10 years. Since the acts complai co mplained ned of were committe committed d before the enactment enact ment of B.P. 195, 19 5, the prescriptive period for such acts is 10 years as provided in Section 11 of R.A. 3019, as originally enacted.” The Court made reference reference to its earlier earlier pronouncemen pro nouncementt in People v. Pacificador , 354 SCRA 310 (2001) that the t he longer prescriptive prescriptive period of fifteen fifteen (15) years would not apply for the reason that t hat the amendment, amendment, not being being favorable favorable to the accused cannot be given retroactive effect. effect. Cojuangco applied and reiterated the foregoing principle. And, the Court reminded us also of the rationale for the rule on prescription: “Prescription of actions is a valued rule in all civilized states from the beginning of organized society. It is a rule of fairness since, without it, the plaintiff can postpone the filing of his action to the point of depriving the defendant, through the passage of time, of access to defense witnesses who would have died or left to live elsewhere, or to documents that would have been discarded or could no longer be located. Moreover, Mo reover, the memories of witnesses witnesses are eroded by time. time. There is an absolute need in the interest of fairness to bar actions that have taken the plaintiffs too long to file in court.”84 Customs Employees Association Association (BOCEA) v. Teves, 661 SCRA 589 (2011) 2.  Bureau of Customs

Here, the argument was advanced that the t he Attrition  Attrition Law (R.A. Law (R.A. No. 9335) is a bill of attainder. The Court said no, it is not. It explained e xplained that “[a] bill of attainder is a legislative legislative act which inflicts inflicts punishment on individuals individuals or members of a particular pa rticular group gro up without withou t a judicial trial. Essential to a bill of attainder atta inder are a specification of certain individuals or a group of individuals, the imposition of a punishment, penal or  otherwise, ot herwise, and the t he lack of judicial judicial trial.” It also gave a brief background o n bill billss of attainder att ainder as discussed  by Justice Felici Feliciano ano in his concurring concurring opinion opinion inTuason in Tuason v. Register of Deeds, Caloocan City, City, 157 SCRA 613 (1988) ( 1988),, specifi spe cifically cally that bills of attainder are “an ancient instrument of tyranny” whereby Parliam Pa rliament ent would at times times enact bills bills or statutes which declared certain persons persons attainted and their blood corrupted so that it lost all heritable quality, though “[i]n more modern terms, a bill of attainder is essentially a usurpation of judicial power by a legislative body. It envisages and effects the imposition of a penalty –  the deprivation of life or liberty or property – not by the ordinary processes of judicial trial, but by legislative legislative fiat. fiat. While cast in the form of special legislation, a bill of attainder (or bill of pains and 84

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 Take note of the difference between the URISTS discovery of possible criminal acts in behest loans  in earlier cases and in the investment  EVIEW ENTER involved in the instant case: “In the prosecution of cases of behest loans, the Court reckoned the prescriptive per iod from the discovery of such loans. The reason for this is that the government, as aggrieved party, could not have known that those loans existed when they were made. Both parties AR to such loans supposedly conspired to perpetrate fraud againstEVIEW the government. They could only have been discovered after the 1986 EDSA Revolution when the people ousted President Marcos from office. And, prior to that date, no person would have dared question the legality or propriety of the loans.

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“Those circumstances do not obtain in this case. For one thing, what is questioned her e is not the grant of behest loans that, by their  nature, could be concealed from the public eye by the simple expedient of suppressing their documentations. What is rather involved here is UCPB’s in vestment in UNICOM, which corporation is allegedly owned by respondent Cojuangco, supposedly a Marcos crony. That investment does not, however, appear to have been wi thheld from the curious or from those who were minded to know like banks vis-à-vis A Library Arsenal OfofArms or competing businesses. Indeed, the OSGOf madeLiberties no allegation that responden An t members of the board directors of UCPB connived with UNICOM to suppress public knowledge of the investment.”

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penalties, if it prescribed a penalty other than death) is in intent and effect a penal judgment visited upon an identified person or group of persons (and not upon the general community) without a prior charge or demand, without wit hout notice and a nd hearing, hear ing, without an opportunity to defend, without any of the civilized forms and safeguards of the judicial process as we know it. ”

Go then and become becom e a lawyer. You’d find find that the learning process p rocess does not n ot prescribe. For as long as one is alive, the capacity capacity and knack for for educating oneself would not terminate by mere m ere lapse of time, or by  b y  the simple fact that you have become a bona fide  member  member of the legal profession. If one were to simply follow and abide by his adversary’s definition of the problem, or his characterization of the issue, then he would have lost half the battle. One must know how to see things in proper context and in appropriate perspective in order not to be blindly led or misled. Others may want you to take the path they may prefer or have gotten accustomed to but then it may be better to take the road less traveled as it might make all the difference in the Bar . . . and in your life. 85 Go forth in your quest, head up high with the self-generated confidence, motivated by what you want to be and guided by your best lights, liberated from pressures or other extraneous influences, for nothing  is more satisfying and fulfilling than knowing at the end of the day that you did it – in your own way!

Look forward then to a beautiful, refreshing and exhilarating morning when the results of your toils would finally bear fruits that you, your family and friends would savor and enjoy.

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 “Two roads diverged in a wood, and A Library OfI – Liberties vis-à-vis An Arsenal Of I took the one less traveled by, And that has made all the difference.” (Robert Frost, “The Road Not Taken” [1916])

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