Article III(3)Revised

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ARTICLE III

BILL OF RIGHTS Bill of Rights • It is a formal declaration or enumeration of the fundamental rights secured and guaranteed by the Constitution to the individuals. • It is a set of proscriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on those powers of government as a means of securing the enjoyment of those rights. Civil Rights o Those rights that belong to every citizen of the state or country, or in a wider sense to all its inhabitants, and are not connected with the administration or administration of government. They include rights to property, marriage, equal protection of the laws, freedom of contract etc. They are rights appertaining to a person by virtue of his citizenship in a state or community. o Such term may also refer, in its general sense, to rights capable of being enforced or redressed in a civil action. Political Rights o They refer to the right to participate, directly or indirectly, in the establishment or administration of government, e.g., the right of suffrage, the right to hold public office, the right to petition and, the general rights appurtenant to citizenship vis-à-vis the management of the government. (Simon v. CHR) • The Bill of Rights is designed to preserve the ideals of liberty, equality and security “against the assault of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those

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who have no patience with general principles.” (quoted in Philippine Blooming Mills EO v. PBM)

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Nature: Its nature is to protect individuals from arbitrary exercise of governmental powers.

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Self-executing. Generally, any governmental action in violation of the Bill of Rights is void. These provisions are generally self-executing.

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Note: In Republic v. Sandiganbayan (2003), the SC held that the Bill of Rights under the 1973 Constitution was not operative from the actual and effective take-over of power by the revolutionary government following the EDSA revolution until the adoption on March 24, 1986, of the Provisional (Freedom) Constitution. During this period, the directives and orders of the revolutionary government were the supreme law, because no constitution limited the extent and scope of such directives and orders. Thus during the interregnum, a person could not invoke any exclusionary right under the Bill of Rights, because there was neither a constitution nor a Bill of Rights at the time. However, the protection accorded to individuals under the ICCPR and the UDHR remained in effect during the interregnum.

Three great powers (1) Police Power (2) Power of eminent domain (3) Power of taxation

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ARIS S. MANGUERA Police power

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Definition: Police power is the power vested in legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. (CJ Shaw) Scope: Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this reason, its scope expands and contracts with changing needs. (See US v. Toribio, Green Book at 102)

Exercise of police power: It is lodged primarily in the national legislature.

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Tests of police power (Cruz) o Lawful subject- the activity of property sought to be regulated affects public welfare o Lawful means-The means should be reasonably necessary and not unduly oppressive upon individuals. Eminent domain

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Definition: The right of the state to acquire property for public use upon payment of just compensation.

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Exercise of the power: Lodged primarily in the national legislature, but its exercise may validly be delegated to other governmental entities. (Cruz) Taxation

Characteristics: Police power has been characterized as “the most essential, insistent and the least limitable powers, extending as it does to all great public needs.”Police power is considered the most pervasive, the least limitable, and the most demanding of the three powers. It is dynamic. It may also use the taxing power as an implement for the attainment of a legitimate police objective. (Cruz)

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Definition: Taxation refers to the inherent power of the state to demand enforced contributions for public purposes.

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Scope: Taxation is so pervasive that it reaches even the citizen is abroad and his income earned from source outside the State.

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Exercise of the power: Primarily vested in the national legislature, it may now also be exercised by the local legislative bodies in pursuant to a direct authority conferred by Article X, Section 51 of the Constitution. (Cruz)

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“Each local government unit shall have the power to create its own sources of revenue and to levy taxes, fees and charges, subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy.”

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Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. Section 1

Due Process of Law

• Equal Protection of Law

Person • The due process clause protects all persons, natural as well as artificial. Natural persons include both citizens and the alien. (Cruz) • Artificial persons like corporations and partnerships are also covered by the protection but only insofar as their property is concerned. (Cruz citing Smith Bell & Co. v. Natividad) The reason for the narrower scope is that the life and liberty of artificial person, as a creature of law are derived from and therefore subject to control of the legislature. (Cruz)

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Deprivation • To deprive is to take away forcibly, to prevent from possessing, enjoying or using something. (Cruz citing Webster New World Dictionary) • As applied to due process, deprivation connotes denial of the right to life, liberty or property. (Cruz)

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Life Life as understood under the due process clause connotes in the first place the integrity of the physical person. The meaning is that it is not permissible for the government to deprive the individual of any part of his body, and this is true even if it be as punishment for crime. (Cruz)

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Right to life is not just a protection of the right to be alive or to the security of one’s limb against physical harm. The right to life is the right to a good life. It is concerned with the quality of living- a life of dignity and decent standards of living. (Bernas) Q: Do the unborn have a constitutional right to life? A: “The State …shall equally protect the life of the mother and the life of the unborn from conception.” (Article II Section 12) See Article 402 of the Family Code. Liberty Liberty is the freedom to do right and never wrong. (Mabini) Liberty includes “the right to exist and the right to be free from arbitrary personal restraint or servitude. xxx It includes the right of the citizen to be free to use his faculties in all lawful ways. (Rubi v. Provincial Board of Mindoro) Subject to only reasonable restrictions of the law, a person is free to do as he pleases. (Cruz) According to Justice Laurel, the chief elements of the guaranty are the right to labor, the right to contract, the right to choose one’s employment, and the right of locomotion. (Cruz quoting Rubi v. Prov.of Mindoro) Scope: Physical, spiritual, and intellectual. It includes the right to exist and to be free from arbitrary personal restraint or service. Freedom to enjoy his faculties to the restraints of common welfare. Strictly speaking, the right to association is already comprehended in due process, particularly as it protects the person’s liberty. Note: People do not have the right to bear arms. Only those authorized by law may bear arms. Even the provision in the American Constitution has reference only to a collective right

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Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided, it be born later with the conditions specified in the following article.

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of militia to bear arms. No similar provision is found in our Constitution. (Chavez. V. Executive Secretary) Property • Property is anything that can come under the right of ownership and be subject of contract. Protected property includes all kinds of property found in the Civil Code. It has been deemed to include vested rights. It also include the right to work and the right to earn a living. (Cruz, Bernas) • It represents more than the things a person owns; it includes the right to secure, use and dispose of them. (Torraco v. Thompson) Protected Property • Profession is a property right. (Pilotage as a profession is a property right) (Corona v. UHPAP) • The right to labor is property within the constitutional guarantee of due process (Batangas-Tayabas Bus Co. v. CA) Absence of Protected Property • Membership in the sangguiniang kabataan is not a property right protected by the Constitution, because it is a mere statutory right. (Montesclaros v. COMELEC) • Public office is not property, but one lawfully ousted from it may institute an action to recover the same, flowing from the de jure officer’s right to office (Nunez v. Averia) Indeed while the Court has recognized that while public office is not property to which one may acquire as vested right, it is nevertheless a protected right (Bince v. Comelec) One’s employment, profession or trade or calling is a property right, and the wrongful interference therewith is an actionable wrong. Thus, an order of suspension, without opportunity for hearing, violates property rights. (Crespo v. Provincial Board) • A preventive suspension for an unreasonable length of time violates due process. (Deloso v. Sandiganbayan)

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ARIS S. MANGUERA

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Mere privileges, such as the license to operate a cockpit, are not property rights and are revocable at will (Pedro v. Provincial Board of Rizal) (I think this should not be taken as an absolute statement)

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Regulation. Property’s proper regulation has been upheld as a legitimate subject of the police power of the State, particularly when its conduct affects eithere the execution of legitimate governmental functions, the preservation of the State, the public health and welfare and public morals (JMM Promotion and Management v. CA)

Absence of Violation • Section 56 of the Indigenous Peoples Rights Act provides that property rights within ancestral domain already existing or vested shall be protected. The provision respects vested rights regardless of whether they pertain to indigenous or non-indigenous lands and ancestral domains. (Cruz v. Sec. of Environment and Natural Resources) DUE PROCESS OF THE LAW

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Origin: By the 39th chapter of the Magna Carta wrung by the barons from King John, the despot promised that “no man shall be taken, imprisoned or disseized or outlawed, or in any manner destroyed; nor shall we go upon him, nor send him, but by the lawful judgment of this peers or by the law of the land.” In 1335, King Edward III’s Stature 28 declared that “no man, of what state or condition whoever be, shall be put out of his lands, or tenements, nor taken, nor imprisoned, nor indicted, nor put to death, without he be brought in to answer by due process of law.” It is this immortal phrase that has resounded through the centuries as the formidable champion of life, liberty and property in all-freedom loving lands. (Cruz)

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Definition: Embodiment of the sporting idea of fair play. (Frankfurter, Mr. Justice Holmes and the Supreme Court pp 32-33) Responsiveness to the supremacy of reason, obedience, to the dictates of justice. (Ermita-Malate Hotel & Motors Association v. City of Manila) • Due process is a guaranty against arbitrariness on the part of the government. • Observance of both substantive and procedural rights is equally guaranteed by due process (Tupas v. CA)

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Who are protected: Universal in application to all persons, without regard to any difference, in race, color or nationality. Artificial persons are covered by the protection but only insofar as their property is concerned (Smith Bell & Co v. Natividad) The guarantee extends to aliens and includes the means of livelihood. (Villegas v. Hiu Chiong)

Aspects of due process: (1) Procedural (2) Substantive Procedural due process • Procedural due process refers to the mode of procedure which government agencies must follow in the enforcement and application of laws. It is a guarantee of procedural fairness. • “Law which hears before it condemns” (Daniel Webster) • Basically means notice and opportunity to be heard. (+unbiased judge) • Note: Publication is imperative to the validity of laws, PD’s, EO’s, administrative rules and regulations, and is indispensable part of due process. •

ARIS S. MANGUERA (1) It contributes to accuracy and thus minimizes errors in deprivations. (2) It gives the person so is subject of deprivation, a sense of rational participation in a decision that can affect his destiny and thus enhances his dignity as a thinking person. (Bernas, Green Book at 116) Notice • Notice to a party is essential to enable it to adduce its own evidence and to meet and refute the evidence submitted by the other party. Every litigant is entitled to his day in court. He has a right to be notified of every incident of the proceeding and to be present at every stage thereof so that he may be heard by himself and counsel for the protection of his interests. (Cruz, Constitutional Law) Hearing/Opportunity to be heard • Due process does not necessarily require a prior hearing. A hearing or an opportunity to be heard may be subsequent. (Rural Bank of Buhi v. CA) (In this case, the SC said that, where there is an examination and a prima facie showing that a bank is insolvent, appointment of a receiver of a bank may be made without hearing because of the dire consequences of a prior hearing; bank runs would happen resulting in panic and hysteria.) • The ordinary requirements of procedural due process may yield to the necessities of protecting vital public interests, through the exercise of police power. Ex parte cease and desist orders are permitted by law and regulations in situations like stopping the continuous discharge of pollutants (Pollution Board v. CA) • “To be heard” does not only mean verbal arguments in court. One may be heard also through pleadings. (Zaldivar v. Sandiganbayan)

Purposes

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When hearing required:

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Where a public administrative body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather than general and prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing. (PHILCOMSAT v. Alcuaz) Fixing rates is quasi-judicial in nature. It must be preceded by a hearing. The fact of the order being merely interlocutory does not alter the situation because for all practical purposes it is final as to the period covered. (PHILCOMSAT v. Alcuaz)

When hearing not required: (Ateneo Bar Ops Reviewer) (1) When administrative agencies are exercising their quasi-legislative functions. (2) Abatement of nuisance per se. (3) Granting by courts of provisional remedies. (4) Cases of preventive suspension. (5) Removal of temporary employees in government service. (6) Issuance of warrants or distraint and/or levy by BIR Commissioner. (7) Cancellation of the passport of a person charged with a crime. (8) Issuance of sequestration orders (considered a provisional remedy) (9) Judicial order which prevents an accused from traveling abroad to maintain the effectivity of the court’s decision. (10) Suspension of a bank’s operation by the Monetary Board upon a prima facie finding of liquidity problems in such bank.

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As a general rule, notice and hearing are not essential to the validity of administrative action where the administrative body acts in the exercise of executive, administrative, or legislative functions. (PHILCOMSAT v. Alcuaz) In promulgation of general rules (Taxi-cab Operators v. Board of Transportation)

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ARIS S. MANGUERA

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Provisional Rates. The NTC can provisionally approve rates proposed by public services without need for hearing, but subject to hearing 30 days thereafter. It applies both to initial and revised rates (Radio Communications v. NTC) (Why? Provisional rates are, by their nature temporary and subject to adjustment after final hearing. It must be noted that it is impossible for the NTC to send notices to all affected parties. The law does not require the impossible. Moreover, may publication yata dito eh) • Exercise of quasi-legislative power. (like price fixing) (Maceda v. ERB) • Evaluation stage of extradition process (Sec. of Justice v. Lantion) • Note: The filing of a motion for reconsideration cures the defect of absence of a hearing. (Chua v. CA) Fair and impartial judge • Due process of law requires a hearing before an impartial and disinterested tribunal, and every litigant is entitled to nothing less than the cold neutrality of an impartial judge. (Castillo v. Juan) • Elements of due process like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge. (Webb v. People)

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Civil. The failure of the clerk to send the notice to the defendant by mail did not destroy the jurisdiction of the Court and that such irregularity did not infringe the requirement of due process of law. (El Banco Espanol Filipino v. Palanca)

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Publicity and TV Coverage. To warrant a finding of prejudicial publicity, there must be an allegation and proof that the judges have been unduly influenced (not simply might be), by the barrage of publicity (Webb v. De Leon)

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Administrative. Notice and hearing are essential only when an administrative body exercises its quasi-judicial function. In the performance of its rules and regulations, an administrative body need not comply with the requirements of notice and hearing. (Corona v. United Harbor Pilots Association) • The essence of due process in administrative proceedings is an opportunity to explain one’s side or an opportunity to seek consideration of the ruling being complained of. (Nachura citing Arboleda v. NLRC) • Administrative due process does not require that the one who heard the evidence is also the one who heard the evidence is also the one who renders the decision (as long as the one who decides familiarized himself with the evidence) • If the decision is appealed, the person deciding the appealed decision should not decide on the appeal.

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Deportation. Although deportation proceedings are not criminal in nature, the consequences can be as serious as those of a criminal prosecution. The provisions in the Rules of Court for criminal cases are applicable.

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Extradition Proceedings. Individuals are bereft of the right to notice and hearing during the evaluation stage of the extradition process because it is sui generis. (Sec. of Justice v. Lantion) The detention of a potential extraditee prior the conclusion of the extradition proceedings does not amount to a violation of his right to due process. Subsequent opportunity to be heard is enough.(Gov’t of US v. Purganan)

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Academic Discipline. The proceedings in student discipline may be summary and cross examination is not an essential pat thereof. (Guzman vs. N.U.). The contract between the school and student is not an ordinary contract(Non vs. Dames). The school has the right to determine the continuance of the schooling of a student applying their

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ARIS S. MANGUERA academic and disciplinary standards.(Garcia vs. L.I.T.). However, penalties imposed by the schools must be commensurate to the offenses committees (Malabanan vs. Ramento). • Q: If the Bill of Rights is invokable only against the State, why is there due process in academic proceedings? A: See Bernas Green Book at 116. •

STANDARDS

Proceedings 1.Civil 2.Criminal 3.Quasi-Judicial/ Administrative 4.Deportation 5.Extradition Proceedings 6.Academic

Standard: El Banco Espanol Filipino v. Palanca Section 16 of Article III Rules of Court Ang Tibay vs. C.I.R. Lao Gi v. Court of Appeals Secretary of Justice vs. Lantion De Guzman vs. N.U. (cited in ADMU v Capulong)

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BANCO ESPANOL FILIPINO VS. PALANCA As applied to a judicial proceeding, the requirement of due process is satisfied if the following conditions are present: 1. There must be a court or tribunal clothed with judicial power to hear and determine the matter before it: 2. Jurisdiction must be lawfully acquired over the person or the defendant or over the property which is the subject of the proceedings Jurisdiction over the person is acquired by; a. voluntary appearance of a party in court in submission to its authority b. coercive power of legal process exerted over the person Jurisdiction over property is acquired by: a. seizure of the property under legal process, whereby it is brought into the actual custody of the law b. institution of legal proceedings wherein, under special provisions of the laws, the power of the court over the property is recognized and made effective 3. The defendant must be given an opportunity to be heard 4. Judgment must be rendered upon lawful hearing ANG TIBAY VS. C.I.R. The following are the cardinal primary rights, which must be respected in proceedings, which is administrative or quasi-judicial in character; 1. The right to hearing, including the right to present one’s case and submit evidence. 2. The tribunal must consider the evidences presented 3. The decision must be supported 4. the evidence must be substantial 5. The decision must be based on the evidence presented at the hearing or contained at the record 6. The tribunal must act on its own independent consideration 7. The board/body must render decisions in such manner that the parties in proceedings can know the various issues involved, and the reason for the decision rendered

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ARIS S. MANGUERA LAO GI VS. COURT OF APPEALS Although the deportation proceeding does not partake of the nature of a criminal action, the constitutional right of a person to due process shall not be denied. The Rules of Criminal Procedure in the Rules of Court are applicable to deportation proceedings because it affects freedom and liberty of the person Minimum Standards: 1. Determine if there’s sufficient cause to charge deportation 2. inform of the charges/ specific grounds for deportation 3. Hearing under the Rules of Procedure presented by the CID Commissioner 4. Order based on the determination of CID Commissioner SECRETARY OF JUSTICE VS. LANTION An extradition proceeding is sui generis. It is not a criminal proceeding, which will call into operation all the rights of the accused as guaranteed by the Bill of Rights. GUZMAN VS. NATIONAL UNIVERSITY The proceedings in student discipline may be summary and cross examination is not an essential part thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due process and these are that: 1. The students must be informed in writing of the nature and cause of any accusation against them 2. They shall have the right to answer the charges against them, with the assistance of counsel, if desired 3. They shall be informed of the evidence against them 4. They shall have the right to adduce evidence in their own behalf 5. The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. Note: The proceedings in student discipline may be summary and cross examination is not an essential part thereof. (Guzman vs. N.U.). The contract between the school and student is not an ordinary contract(Non

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vs. Dames). The school has the right to determine the continuance of the schooling of a student applying their academic and disciplinary standards.(Garcia vs. L.I.T.). However, penalties imposed by the schools must be commensurate to the offenses committees (Malabanan vs. Ramento). Substantive Due Process

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Substantive due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property. (Cruz, Constitutional Law) The requirement of substantive due process is not a rigid concept. The heart to of substantive due process is the requirement of “reasonableness” or absence of exercise of arbitrary power. These are necessarily relative concepts which depend on the circumstances of every case.

Requirements to pass substantive due process: (1) Lawful subject or purpose- the law must be a valid governmental objective- the interest of the public generally as distinguished from those of a particular class. (2) Lawful means- means employed must be reasonably related to the accomplishment of the purpose and not unduly oppressive. Other requirements: (1) must not contravene the constitution or a “higher” statute (2) must not be partial or discriminatory (3) must not prohibit but may regulate trade (4) must not be unfair or oppressive (5) must be general and consistent with public policy (6) must not be unreasonable Requirement of Publication (Jack’s Compendium) • Publication may not be dispensed with. Such omission would violate due process as it would deny the public knowledge of the laws that are supposed to govern them. The publication must be in full or its no publication at all. (Tanada v. Tuvera)

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ARIS S. MANGUERA

Presumption • There is a presumption of validity when the State acts to interfere with life, liberty or property. (“Prior restraint” not included) Hierarchy of rights • Human Rights and Right to life are superior to right to property. (Philippine Blooming Mills) Void for vagueness • When is a law vague? (1) It violates due process for failure to accord persons fair notice of the conduct to avoid. (2) It leaves law enforcers unbridled discretion in carrying out its provisions. •

When a statute lacks a comprehensible standard, it violates due process for failure to accord persons, especially persons targeted by it, fair notice of conduct to avoid, and it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of government muscles (Estrada v. Sandiganbayan)

Q: Is PP 1017 vague? A: A facial review on the ground of vagueness is unwarranted. Void for vagueness doctrine hold that “a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application.” (In her ponencia, J Sandoval Guttierez said void for vagueness doctrine “is also an analytical tool for testing ‘on their faces’ statues in free speeches.” However, Justice Tinga dissents on this matter thus “the void for vagueness doctrine applies to criminal laws and not merely those that regulate speech or other fundamental constitutional right.” Justice Tinga disagrees that the “void for vagueness doctrine” is inapplicable in no-free speech cases) (David v. Arroyo) Overbreadth doctrine

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A government purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Q: Is PP 1017 overbroad? A: A facial review of PP 1017 using the over the overbreadth doctrine is uncalled for because: (1) The overbreadth doctrine is an analytical tool developed for testing “on their faces” statutes in free speeches. (A plain reading of PP 1017 shows it is not primarily directed to speech or even speech-related conduct. It is actually a call upon AFP to prevent to prevent or suppress all forms of lawless violence) (2) 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. (PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation) (3) The facial invalidation of laws is considered “manifestly strong medicine” to be used “sparingly and only as a last resort” and is generally disfavored.” (4) A facial challenge on the ground of overbreadth doctrine is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. (David v. Arroyo) Cases: • Police power cannot interfere with private property for purely aesthetic purposes. (Churchill vs. Rafferty)

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ARIS S. MANGUERA

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The state may not under the guise of police power, permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. (People vs Fajardo) The liberty of the citizen may be restrained in the interest of public health, or of the public order and safety, or otherwise within the proper scope of the police power. (Ermita-Malate vs. City Mayor) If the movement and not the slaughter is banned and carabaos are arbitrarily confiscated, then that what constitute violation of due process of law. (Ynot vs IAC) The legislature may not under the guise of protecting the public interest, arbitrarily interfere with private business for it is a property right of the owner. Theaters, cinematographs and other exhibitions cannot be considered as public utilities. (Balacuit vs. CFI) Promoting safe transit upon and avoid obstruction on roads and streets is a valid governmental interest. (Agustin Vs. Edu) An ordinance must not contravene the constitution or any statutes. (Magtajas vs. Prce Properties Corp.) The State is not required to compensate the owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain. (Bennis vs. Michigan) The due process requirement does not require the state to accept the “substitute judgment” of close family members in the absence of substantial proof that their views reflect the patient’s. However, it may require clear and convincing evidence of the patient’s wishes, it may also choose to defer only those wishes rather than confide the decisions to close family members. (Cruzan vs. Missouri Department of Health) Profession is a legitimate subject of police power. So long as professionals and other workers meet reasonably regulatory

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standard no such deprivation of property exists. (JMM Promotion and Management vs. CA) A statute must satisfactorily show the presence of compelling state interest and that the law, rule or regulation is narrowly drawn to preclude abuses.( Ople vs. Torres) Public officers is not a property right but a privilege and a public trust. (Montesclaros vs. COMELEC) The absence of publication is fatal as held in Tañada vs. Tuvera. Even if a Manual of Operation is internal in nature, if its effects reach out other than its employees then it must be published. (Pilipinas Kao vs. CA) In Tañada vs. Tuvera, it was said that all statutes including those of local application and private laws shall be published as a condition for their effectivity. Covered by this rule are presidential decrees, executive orders, administrative rules and regulations in so far they enforce or implement existing law pursuant to a valid delegation. Interpretative regulations and letter of instructions issued by administrative superiors need not be published. Whether or not the circular addresses a small group or not, the fact that it is an administrative circular which enforces laws, makes publication imperative. (Philsa vs. Sec of Labor) Equal Protection Definition: The equal protection clause is a specific constitutional guarantee of the equality of person. The equality it guarantees is “legal equality” or the equality of all persons before the law. (Under it, each individual is dealt with as an equal person in the law, which does not treat the person differently because of what he is or what he possesses. The goddess of justice is portrayed as blindfold, not because she must be hindered in seeing where right lies, but that she may not discriminate against suitors before her, dispensing instead and even handed justice all.)

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“All persons or things similarly situated must be treated alike, both as to rights and responsibilities. Equality among equals” Economic

Scope of Equality (Nachura Outline) Political Social

(5) Free access to courts [Art III, Sec. 11] (6) Marine Wealth reserved for Filipino citizens [Art XII, Section 2(2)] (7) Reservation of certain areas of investments [Art XII, Section 10] (8) Reduction of social, economic and political inequities [Article XIII, Secs. 1, 2 and 3]

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Free access to courts [Art III, Sec 11] (2) Bona fide candidates being free from harassment and discrimination [Art IX-C, Sec 10] (3) Reduction of social, economic and political inequalities [Article XIII, Sec. 1]

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Reduction of social, economic and political inequalities [Article XIII, Sec. 1]

See Ichong v. Hernandez, Villegas v. Hiu Chiong, Dumlao v. Comelec. Tan v. Del Rosario

Scope of Protection. • The protection is available to all persons, including aliens, whether accused of a crime or not. Artificial persons are also

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entitled to the guarantee, although they may be required to open their books of accounts for examination by the State in the exercise of police and taxing powers. (See Moncada v. People’s Court)

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The right is personal; it may be invoked only by the person entitled to it (Stonehill v. Diokno) As such, the right may be waived (Lopez v. Commissioner of Customs)

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Reasonable Classification allowed. Equal protection does not prohibit classification as long as it is based on REASONABLE classification.

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When a classification considered reasonable. A classification is considered to be reasonable when: (1) Classification rests on substantial distinction; (2) Classification is germane to the purpose of the law; (3) Classification is not limited to the existing conditions only; and (4) Classification applies equally to all members of the same class. (People v. Cayat)

Note: • The Constitution does not require absolute equality. A classification based on valid and reasonable standards does not violate the equal protection clause. (Tiu v. CA) • What is important is that the classification is not arbitrary (Sison v. Ancheta) • He who challenges the law must present proof of arbitrariness Cases of valid classification

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Mode of Public Transportation. A regulation that prohibits any car beyond six years to operate as taxi is valid. Taxis are reasonably distinct from other modes of public transportation. The regulation is applicable to all taxis of the country. (Taxicab Operators v. BOT)

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Taxing one particular class. Compensation earners v. Professionals. The equal protection clause tolerates inequalities arising from reasonable singling out of one particular class for taxation. Taxpayers who are recipients of compensation income are set apart as a class. As they do not have to pay overhead expenses, they are not entitled to make deductions from income tax purposes which is not the case of professionals in practice of their calling and businessmen. In the case of the latter, there is no uniformity in the cost or expenses necessary to produce their income. (Sison v. Ancheta)

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Occupation. The equal protection clause does not mean that all occupation called by the same name are treated the same way. (Basco v. PAGCOR; Gambling case) • There is dissimilarities between land-based and sea-based Filipino overseas workers in terms of work environment, safety, dangers and risks to life and limb and accessibility to social, civic and spiritual activities. (The Conference of Maritime Manning Agencies v. POEA)

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Compulsory retirement based on age. Employees attaining that age are subject to compulsory retirement because of the need for new blood. (Dumlao v. COMELEC)

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Radio/Television v. News papers. There are important differences in the characteristics of the two media. Radio and television has more impact on people than newspapers. (TELEBAP vs. Comelec)

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Big investors in the secured area v. Business operators outside the area. There are substantial differences between the big investors who are lured to establish their industries in the “secured area” compared to business operators outside the area. On one hand, we are talking of billion-peso investments, on the other, definitely none of such magnitude. The first can give economic impact that is national in scope, the other, merely local. (The real concern of RA 7227 is to convert the lands formerly occupied by the US military bases in to economic or industrial areas. In furtherance of such objective, Congress deemed it necessary to extend economic incentives to attract and encourage investors) (Tiu v. CA)

ARIS S. MANGUERA

•

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Cases of invalid classification • Employees with the same rank and position. A practice of giving higher pay for foreign hires than Filipinos of equal rank is unconstitutional. The principle of “equal pay for equal work” requires that persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. If the employer accords employees the same position and rank, the presumption is that these employees perform equal work. (International School Alliance of Educators v. Quisumbing)

•

Imposition of tax by name. Imposition of a tax on an entity by name is not valid even if it’s the only existing entity in the industry. Should another entity arise, the imposition would be discriminatory on the first named entity. (Ormoc Sugar Central v. Ormoc City)

ON PUBLIC OFFICERS • Public Officers. The office of the Ombudsman is different from other investigatory and prosecutory agencies of the

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•

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government because the subject of its jurisdiction are public officials who through official pressure and influence can quash, delay or dismiss investigations held against them. (Almonte v. Vasquez) PNP officers. A law providing for a preventive suspension for members of the PNP beyond 90 days until the case is decided is valid. The PNP officers are treated differently from other classes of persons charged criminally or administratively insofar as preventive suspension is concerned. It was said that policeman who carry weapon and the badge of law which can be used to harass or intimidate witnesses against them needs to be suspended in order to protect his victim and the witnesses against him. (Himagan v. People) Municipal Election Officers. There is a substantial distinction between municipal/city election officers and other COMELEC officials. The singling out of city and municipal election officers (as prohibited from holding office in the same city or municipality for more than 4 years) in order to “ensure the impartiality of election officials by preventing them from developing familiarity with the people of their place of assignment” justifies the distinction. (The purpose of the law is to break an important link in the chain of corruption. It is safe to say that without the complicity of such officials, largescale anomalies in the registration of voters can hardly be carried out. (De Guzman v. COMELEC) Official duty for purpose of detention. The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. Functions and duties of the office are not substantial distinctions, which lift the accused from the class of prisoners interrupted in their freedom and restricted in liberty of movement. (People v. Jalosjos) Elective v Appointive Officials. Substantial distinctions exist between appointive and elective officials. The former occupy their office by virtue of the mandate of the electorate.

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They are elected to an office foe a definite term and may be removed only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation by an appointing authority. (Fariñas v. Executive Secretary)

employment. Fee is unreasonable, because it is excessive and it fails to consider substantial differences in the situation of the aliens required to pay it. The same amount is collected from every alien, whether he is casual or permanent, parttime or full-time, a lowly employee or a highly paid executive. (Villegas v. Hiu Chiong Pao Ho) There is a difference in a resident and non-resident alien. (General Milling Corporation v. Torres)

ON WOMEN • Bartending. A law prohibiting women from bartending to protect the morals of women is valid. The physical and psychological differences between men and women make the difference reasonably related to the valid purpose. (Goesart v, Cleary) • Teaching. A law prohibiting women from becoming teachers is invalid. The distinction between men and women serves no valid purpose. (Bernas Primer) • Marriage. A company’s policy of not accepting or considering as disqualified from work any woman worker who contracts marriage violate women’s right against discrimination afforded by the Constitution. (PT&T v. NLRC)

•

ON ALIENS • Retail Trade. A law passed prohibiting aliens from engaging in the retail trade for the purpose of addressing a demonstrated harmful stranglehold by aliens on the retail trade is valid. The distinction made between citizen and aliens is substantial and reasonably related to the valid purpose, because citizens own greater allegiance to the state and conversely the State owes greater protection to its citizens. (Ichong v. Hernandez) • Specific Nationality. A law prohibiting Chinese only from engaging in retail trade is not valid unless the distinction between Chinese and other aliens in relation to the purpose of the law can be justified. (Bernas Primer) • There is no logic in exacting the payment of fifty pesos from aliens who have already secured a clearance for

On TAXATION • Tax must not be passed for a specific entity only for it will not be applicable to future conditions as well. (Ormoc Sugar Central v. Ormoc City) • Inequalities which result from the singling out of one particular class for taxation or exemption infringe no constitutional limitation. There is a difference between a “homeless poor’ and the “homeless less poor” because the second group or middle class can afford to rent houses in the meantime that they cannot buy yet their own houses. The two social classes are thus differently situated in life. (Tolentino v. Sec. of Finance) • Taxpayers who are recipients of compensation income are set apart as a class. As they do not have to pay overhead expenses, they are not entitled to make deductions for

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ON THE POOR • Free transcript of records. A law requiring courts to give free transcript of records to indigent litigants is valid. The classification serves to equalize opportunities in courts between rich and poor. • Running for Public Office. A law prohibiting indigents from running for public office is not valid. • Different groups may receive different treatments. Statutes have been passed giving rights and benefits to the disabled and the less fortunate. (Binay v. Domingo)

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income tax purposes which are not the case of professionals in practice of their calling and businessmen. In the case of the latter, there is no uniformity in the costs or expenses necessary to produce their income. (Sison v. Ancheta) • Special grant of tax exemption in favor of Marcos heirs will constitute class legislation. (Chavez v. PCGG) • There is reasonable classification under the LGC to justify the different tax treatment between electric cooperatives that are registered with the NEA and those under CDA. (Philreca v. Sec. of DILG)

ARIS S. MANGUERA uneducated, religious or non-religious. No particular group or classes of persons are identified by the law against whom the death penalty shall be exclusively imposed. (People vs. Mercado)

Other cases • Revenue of a city. A law classifying a city as a highly urbanized city on the basis of its regular annual income (thus depriving residents of a vote in provincial elections) is valid. Classification based on income is classification based on substantial distinction. Revenue of a city shows its capability to subsist in relative economy. (Ceniza v. COMELEC) • Dismissal of a case. Dismissal of a case against one defendant must apply to other if no reasonable differences exist. (Republic v. Sandiganbayan) • Prosecution. It is unfair to exempt a similarly situated litigant from prosecution without allowing the same exemption to others. (Regala v. Sandiganbayan) • Denial of privilege. There is no basis however why all the departments, it would be the judiciary that has been denied of the franking privilege. (Philippine Judges Association vs. Pardo) • Payment of civil liability. Payment of civil liability is not made a condition precedent to probation but is a condition for his continued enjoyment of the same. Probation is not an absolute right. It is a mere privilege whose grant rests upon discretion of the trial court. (Soriano vs. C.A.) • Death Penalty. The death penalty law applies to all persons and to all classes of persons – rich, poor, educated or

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Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 2

Freedom from unreasonable Search and Seizure

Freedom from unreasonable arrest

Purpose of the Provision • The purpose is to protect the privacy and sanctity of the person and of his house and other possessions against arbitrary intrusions by the State officers. Scope • The provision does not prohibit all kinds of searches and seizure, only those which are unreasonable. • Section 2 of Article III does not protect citizens from unreasonable searches and seizures perpetrated by private individuals. The proscription applies only against the government and its agencies tasked with enforcement of the law. (People v. Marti; Waterous Drug Corp. v. NLRC) (But see Zulueta v. CA) SEARCH

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•

Search is an examination of a man’s house or other buildings or premises, or of the person, or of his vehicle with a view to the discovery of contraband or illicit or stolen property or some evidence of guilt to be use in the prosecution of a criminal action for some crime or offense. • [Mere looking at what was in the sala and the kitchen of the house to see if a penknife was there cannot be strictly considered as a search (People vs. Ella, et al., C.A. 49 O.G. 1891)] • When searches are reasonable. Searches are reasonable when they are authorized by agencies entitled to direct such searches. A reasonable search is not to be determined by a fixed formula but it is to be resolved according to the facts of each case (Valmonte vs De Villa citing foreign jurisprudence) • The provision does not prohibit all search and seizures. What is prohibited are unreasonable search and seizures. Checkpoints • Legality. Checkpoints are not illegal per se. Under exceptional circumstances(as where the survival of the government is on the balance, or when lives of the people are in grave peril) checkpoints may be allowed and may be installed by the government.(Valmonte vs. De Villa) • Not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. (People v. Escaño) • When considered legal. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks are not constitutive of unreasonable search. (People v. Escaño) • Requirements for Checkpoints: (1) Existence of exceptional circumstances (2) conducted on a fixed area (3) inspection limited to visual search

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•

•

•

•

(4) occupants must not subjected to physical or body search (Caballes vs. CA) Illustration. For, example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, or simply looks into a vehicle, or flashes a light therein. A warantless search of incoming and outgoing passengers, at the arrival and departure areas of an international airport, is a practice not constitutionally objectionable because it is founded on public interest, safety, and necessity. (Valmonte vs. DeVilla) Q: Can vehicles be stopped and extensively searched? A: If vehicles are stopped and extensively searched, it should be because of some probable cause which justifies a reasonable belief of men at the checkpoints that either the motorist is a law-offender or the contents of the vehicle are or have been instruments of some offense. (Valmonte vs. De Villa) Q: Where can warrant less searches and seizures in checkpoints be compared to? A: These warrantless searches and seizures at the checkpoints are quite similar to searches and seizures accompanying arrests during the commission of a crime, or immediately thereafter. (Valmonte vs. De Villa) Q: Must checkpoints be announced? A: No. Not only would it be impractical, it would also forewarn those who intend to violate the ban. Even so, badges of legitimacy of checkpoints may still be inferred from their fixed location and the regularized manner in which they are operated. (People v. Escano, 2000)

Areal Zoning and Saturation Drives • Under ordinary circumstances, such would be illegal and violative of the Bill of Rights. But under extra ordinary circumstances (i.e. overriding social need e.g. unabated criminality, rising lawlessness, alarming communist activities)

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ARIS S. MANGUERA such can be done, provided it is with stringent procedural safeguards. (Guazon vs. De Villa) Search Warrant • It is (1) an order in writing (2) issued in the name of the Republic of the Phils. (3) issued by a judge (4) directed to a peace officer (5) commanding him to search for personal property described therein and (6) to bring it before the court •

Objects of the search warrant (1) for subject of the offense (2) for stolen or embezzled and/or proceeds or fruits of the offense (3) used or intended to be used as the means of committing an offense.

•

Proper procedure for search warrants: 1) police submits affidavits before a judge 2) judge should be stationed in RTC with jurisdiction over the property to be searched 3) judge interviews the applicant for the warrant and if the judge determines probable cause, the warrant is issued. 4) Object seized is deposited in court 5) fiscal files a case in court ARREST

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Arrest is the depriving of a person of his liberty done by legal authority.

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Warrant of arrest is a written order which is made in behalf of the State and is based upon a complaint issued pursuant

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to a statute and/or court rule and which commands law enforcement officers to arrest a person and bring him before a magistrate.

• •

2) fiscal then issued a subpoena addressed to the respondent to submit a counter affidavit. 3) fiscal then determined whether there is prima facie case evidence to file an information in court. 4) judge determines whether or not to issue a warrant

Burden of Proof. The burden of proof to validity of a warrant or its reasonableness falls upon the government. Scope of guarantee. It is available to all persons, including aliens, whether accused of a crime or not. Artificial persons are also entitled to the guarantees although they may be required to open books of accounts for examination as required by the State in its exercise of police power of taxation. As a rule however, the premises may not be searched not their papers and effects seized except by virtue of a valid warrant. Persons- applies to everybody, to citizens as well as aliens in the Phils., natural or artificial. Houses- is not limited to dwelling houses but extends to garages, warehouses, shops, stores, offices, and even safety deposit boxes. It does not however include open spaces and spaces belonging to an individual. Papers and effects- include sealed letters and packages in the mail which may be opened and examined only in pursuance of a valid search warrant.

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Requisites Constitutional: See Section 2 Article III Statutory: Must not be for more than one specific offense (Revised Rules of Court)

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Proper procedure for obtaining arrest warrants: 1) a complaint, usually by affidavit, is first filed with the fiscal’s office.

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•

•

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PROBABLE CAUSE Probable cause means such facts and circumstances antecedent to the issuance of a warrant, that are in themselves sufficient to induce a cautious man to rely upon them and act in pursuance thereof. (People vs. Sy Juco) Probable cause for arrest. Such facts and circumstances which should lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. Probable cause for search. Such facts and circumstances that would lead a discreet and prudent man to believe that an offense has been committed and that the objects sought in connection of the offense are in the place sought to be searched.

Other points about Probable Cause: 1) Probable cause must be defined in relation to the action which it justifies. 2) Probable cause means probable cause of something specific. 3) What is required is not absolute certainty nor proof beyond reasonable doubt but probable cause. 4) Probable cause must be based upon personal knowledge of the applicant or witness. 5) Probable cause is a factual and practical concept which is not necessarily technical. 6) Only the judge and the judge alone can determine probable cause. (except deportation of aliens)(Placer).

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“Determined personally” This means that the judge conducting the examination must do it in person and not through a commissioner or a deputy clerk of court (Bache case). • It is not required that the judge personally examine the complainant and witnesses. He may personally evaluate the report and supporting documents submitted by the fiscal regarding the existence of probable cause (Soliven vs. Makasiar). However, he cannot solely rely on the certification of the fiscal in the absence of the report and necessary documents that will support such certification (Lim vs. Felix). •

Oath. It is an outward pledge given by the person taking it that his attestation or promise is made under immediate sense of responsibility to God.(Alvarez vs. CFI)

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Affirmation. A solemn and formal declaration that an affidavit is true, this being substituted for an oath in certain cases. Here, there is no invocation of God or a supreme being.

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Particularity of description. A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People vs. Rubio); or when the description expresses a conclusion of fact – not of law – by which the warrant officer may be guided in making the search and seizure(People vs. Rubio); or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. (Revised Rules of Court). The description must not be too general as to give the executing officer too much discretion that even those that do not bear direct relation to the offense may be seized. (Stonehill vs. Diokno). However, where by nature of goods to be seized, their description must be rather general, it is

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not required that a technical description be given (People vs. Rubio).

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General Warrant. A general warrant is one that does not allege any specific acts of omissions constituting the offense charged in the application for the issuance of the warrant. It contravenes the explicit demand of the Bill of Rights that the things to be seized be particularly described. • John Doe Warrant. John Doe warrant satisfies the requirement of particularity of description provided it contains a description personae such as will enable the officer to identify the accused. (People vs. Veloso) • However, it must be noted that John Doe warrants must be the exception not the rule. Generally, the warrant must clearly indicate the proper person upon whom the warrant is to be served by stating his personal appearance and peculiarities, his occupation and place of residence and any other circumstances by means of which he can be identified. • There is however a limit to John Doe warrants. Thus a warrant for the arrest of fifty John Does is of the nature of a general warrant which does not satisfy the requirement of particularity description (Pangandaman vs. Casar). Exclusionary rule • Any evidence obtained without a warrant, by authority of invalid warrant (and not falling to valid exceptions) shall be inadmissible for any purpose in any proceeding. (Section 3(2) of Article III) • Exclusionary rule is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. (Stonehill v. Diokno) • To come under exclusionary rule, the evidence must be obtained by government agents and not by private individuals acting on their own such as in the case of People v. Marti.

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Even if a vessel security is armed and tasked to maintain peace and order, he is still a private employee and does not discharge any governmental function. (People v. Bongcarawan) • BUT See Zulueta vs. CA: “The intimacies between husband and wife do not justify any one of them breaking the drawers and cabinets of the other. A person, by contracting marriage does not shed his/her right to privacy as an individual.” • Goods illegally seized must be returned unless the possession of such goods is prohibited by law (Castro v. Judge Pabalan) • Firearms which have been illegally seized in a “zona” is inadmissible in evidence. Pending the determination of the legality of such articles, they shall remain in custodia legis, subject to such appropriate disposition as the corresponding courts may decide. (Alih v. Castro) • It is not required that the property to be searched be owned by the person against whom the search is directed. It is sufficient that the property is under the control or possession of the person sought to be searched. (Burgos v. Chief of Staff) • The objection to an unlawful search or seizure and to evidence obtained thereby is purely personal and cannot be availed of by third parties. (Stonehill v. Diokno) • The moment imported goods are in possession or control of Customs, even if seized without warrant, the Bureau of Customs acquires exclusive jurisdiction over the goods, subject only to appeal to the proper tax court and to the Supreme Court. (Collector of Customs v. Judge Villaluz) • An application for a bail has no effect of waiver of the right to challenge the validity of a warrant. (Okabe v. Judge de Leon, 2004, page 46 of 2006 Bernas Primer) •

ARIS S. MANGUERA (1) Incidental to lawful arrest (Sec 12, Rule 126 of Rules of Court) (2) Plain view (3) Moving vehicle (4) Consented warantless searches (5) Customs Searches (6) Stop and Frisk (Terry v. Ohio; Posadas v. CA; Malacat v. CA) (7) Exigent and Emergency Circumstances (People v. De Gracia) (8) RA 6235, Search pursuant to routine airport security Procedure (9) Others [a] Armed Conflict. [b] Areal Target zone and Saturation Drives in the exercise of military powers of the President. (Guazon v. De Villa) [c] Checkpoints (Valmonte v. De Villa)

Allowable warrantless searches

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SECTION 2-FREEDOM FROM SEARCH

EXCEPTION: If search is reasonable

A. With a valid warrant

B. Without a valid warrant

(1)Requirements: (1) issued upon probable cause (2) personally examined by the judge (3) Examined under oath and affirmation (4) Particularly describing the place to be searched and the persons or things to be seized(Section 2 Article III) (5) warrant must not be for more than one offense (Revised Rules of Court)

(1) Incidental to lawful arrest (Sec 12, Rule 126 of Rules of Court) (2) Plain view (3) Moving vehicle (4) Consented warantless searches (5) Customs Searches (6) Stop and Frisk (7) Exigent and Emergency Circumstances (8) RA 6235 (People v. Canton) (9) Others [a] Armed Conflict. [b] Areal Target zone and Saturation Drives in the exercise of military powers of the President. (Guazon v. De Villa) [c] Checkpoints (Valmonte v. De Villa)

(2) Warrant for administrative inspection

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C. Without warrant (by a private individual) (1) SOP (People vs. Marti) (2) Security Check (People vs Bongcarawan)

D. Of other nature or purpose (See Bernas, Green Book p 179) (1) Subpoena duces tecum [(2) Administrative Inspection] (Nachura: Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations is basically an exercise of police power of the State, and would not require a search warrant. These are routine inspection which, however, must be conducted during reasonable hours.)

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A. With a valid warrant

Procedural Rules • Where criminal case is pending. As a matter of policy, where a criminal case is pending, the court wherein it is filed, or the assigned branch thereof, has primary jurisdiction to issue the search warrant • Where no criminal case is yet filed. Where no such criminal case has yet been filed, the executive judges or their lawful substitutes, in the areas contemplated in Circular 1-91, shall have primary jurisdiction. (Malalaon v. CA) • However, where the obtention of search warrant is necessitated and justified by compelling considerations or urgency, time and place, a court whose territorial jurisdiction does not embrace the place searched may issue the warrant. (Ilano v. CA) • The moment an information is filed with the RTC, it is that court which must issue the warrant of arrest. The MTC judge who continued with the preliminary investigation and issued warrants of arrest violated procedure. (Espino v. Salubre) • If the case is already remanded to the MTCC, after the information for perjury was erroneously filed with the RTC, it was error for the RTC judge not to recall the warrant of arrest issued, because the issuance of warrant is not a ministerial function of the judge. (Alib v. Labayen) • Where a search warrant is issued by one court and the criminal action based on the results of the search is afterwards commenced in another court, it is not the rule that a motion to quash the warrant or to retrieve things thereunder seized may be filed only with the issuing court. Such a motion may be filed for the first time in either the issuing court or that in which the criminal action is pending. • The judge may order the quashal of the warrant he issued even after the same had already been implemented,

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ARIS S. MANGUERA particularly when such quashal is based on the finding that there is no offense committed. • General Rule: Only the judge may validly issue a warrant. Exception: Orders of arrest may be issued by administrative authorities, but only for the purpose of carrying a final finding of violation of law, e.g. an order of deportation or an order of contempt, but not for the sole purpose of investigation or prosecution. (Morano v. Vivo) The Bureau of Immigration may issue warrant of arrest only for the purpose of carrying out a final decision of deportation or when there is sufficient proof of guilt of the alien. (Sy v. Domingo) (But see Harvey v. Santiago) • Sec 7 Rule 126 requires that no search of a house, room or any of the premises shall be made except in the presence of the lawful occupant thereof or any member of his family, or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion, residing in the same locality. Failure to comply with this requirement invalidates the search. (People v. Gesmundo) A(1)(1) Issued upon probable cause Probable Cause for search- such facts and circumstances that would lead a discreet and prudent man to believe that an offense has been committed and that the objects sought in connection of the offense are in the place sought to be searched. • Existence of probable cause is determined by the facts of each case • It must be probable cause of something specific (Stonehill vs. Diokno) • It must be defined in relation to the action which it justifies • Mere conclusions of law do not establish probable cause (Corro vs. Lising) (Burgos vs. Chief of Staff) • Presentation of master tapes is not an absolute requirement for a search warrant to issue (Columbia Pictures Entertainment) History of the rule that master tapes is not an absolute requirement for a search warrant to issue

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20th Century Fox Film August 19, 1988 The presentation of the master copies of the copyrighted films from which the pirated films were allegedly copied, was necessary for the validity of search warrants against those who have in their possession the pirated films. The applicant must present to the court the copyrighted films to compare them with the purchased evidence of the videos allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. This linkage of the copyrighted films to be pirated films must be established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted films cannot serve as basis for the issuance of a search warrant. Columbia Pictures, Inc. vs Court of Appeals October 1994 Assailed warrants were issued on April 1988. Adhered to the ruling in 20th Century fox that presentation of the master copies of the copyrighted films is necessary to the validity of the warrants. Columbia Pictures et. al. v. Court of Appeals August 28, 1996 The court ruled that the ruling in 20th Century Fox cannot be retroactively applied on the determination of the validity of the warrants prior the ruling of 20th Century Fox Film. Likewise the Court ruled therein that the presentation of the master tapes in such cases is not an absolute requirement for a search warrant to issue. Columbia Pictures Entertainment, Inc. v. Court of Appeals September 20, 1996 Adopted the ruling in Columbia Pictures dated August 1996. (Nachura outline says that presentation of master tapes is a requirement citing the 20th Century Fox case/Columbia case[1994]. Jack’s Compendium on the other hand cites Columbia Pictures 19963 and Columbia Pictures Entertainment, 3

The earlier pronouncement regarding the necessity for the presentation of the master tapes of the copyrighted films for the validity of search warrants merely serves as a guidepost in determining the existence of probable cause

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ARIS S. MANGUERA 1996)In the Green Book, it is stated that presentation of master copies is essential only if there is doubt about the nexus between the master tape and the copies, page 164 of the Greenboook. ) IN SHORT, PRESENTATION OF MASTER TAPES IS NOT AN ABSOLUTE REQUIREMENT FOR A SEARCH WARRANT TO ISSUE!

• • • • • • • •

In search warrants, proof of probable cause for a warrant need not point to a specific offender (Webb vs. de Leon) On the spot tip + surveillance + suspicious action + refusal to open bag (People vs. Tangliben) Information about a drug addict + reddish eyes + walking in swaying manner + avoids a policeman (Manlili vs CA) Tip + bulge + suspicious failure to produce passport + description of a Caucasian (People vs. Malmstedt) Specific description fits the confidential information (People vs. Bagista) When the smell of marijuana emanated from the plastic bag. Intelligence report of a deep penetration agent (People vs. Lo Ho Wing) Jack Jimenez: Breach of Checkpoint + Misrepresentation of identity + Failure to answer what the bag contains + Passing of bag back and forth. (People v. Elicano)

A(1)(2) Personally examined by the judge • The judge must conduct the examination personally and not thorough commissioner or deputy clerk of court (Bache case) where there is a doubt as to the true nexus between the master tapes and the pirated tapes. This directive was not intended not to be an inflexible requirement in all copyright infringement cases. It does not rule out the use of testimonies or documentary evidence or other classes of evidence where the production in court of the master tapes will result in delay, inconvenience or express out of proportion to their evidentiary value. (Columbia Pictures Inc. v. CA 261 SCRA 944 cited in Jack’s Compendium at 58)

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• • •

The judge may personally evaluate the report and supporting documents submitted by the fiscal. (Soliven vs. Makasiar) The judge cannot rely solely on the certification of the fiscal in the absence of necessary documents that will support such certification (Lim vs. Felix) Only the judge can determine the probable cause for issuance of a warrant (Salazar vs. Achacoso) (exception: deportation of aliens; [Harvey vs. Santiago])

A(1)(3) Examined under oath and affirmation Oath- an outward pledge given by person taking it that his attestation or promise is made under immediate sense of responsibility to God. (Alvarez vs. CFI) Affirmation- a solemn and formal declaration that an affidavit is true, this being substituted for an oath in certain cases. Here, there is no invocation of God or a supreme being. • The oath required must refer to the truth of the facts within the personal knowledge of the complainant or his witnesses because the purpose is to convince the judge of the existence of probable cause. (Alvarez v. CFI)

•

The true test of sufficiency of an affidavit is whether it has been

drawn in such a manner that perjury could be charged thereon and affiant be held liable for the damages caused. (Alvarez v. CFI)

A(1)(4) Particularly describing the place to be searched and the persons or things to be seized • Test: One that would not permit seizure of the wrong property (Sec. of Justice v. Marcos) • Must not be too general (Stonehill vs. Diokno) Must be specific as the circumstances will allow (People vs. Rubio) • Must be conclusion of fact not of law (People vs Rubio) • Things described must be limited to those which bear direct relation to the offense for which the warrant is being issued (Revised Rules of Court)

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ARIS S. MANGUERA

• • •

•

General warrants and “scatter-shot warrants” are not valid. Note: It is not enough that the object be sufficiently described. It is necessary that the warrant be applied to what is described. (Bernas, Green Book at 179) What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thought, or had represented in the proofs they submitted to the court issuing the warrant. (People v. CA) Mistake in the identification of the owner of the place does not invalidate the warrant if the place id properly described. (Frank Uy v. BIR, 2000) A(1)(5) Warrant must not be for more than one offense • However, in People v. Dichoso, it was held that the Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into prohibited and regulated drugs, and defines and penalizes categories of offenses which are closely related or which belong to the same class or species; thus one search warrant may be validly issued for several violations thereof. (People v. Salanguit)

A(2) Administrative Inspection Camara v. Municipal Court (387 US 523) arose out of the conviction of the appellant for refusing entry to a housing inspector who, unarmed with a search warrant, sought to inspect appellant’s dwelling. The Supreme Court reversed the conviction saying “We hold that administrative searches of the kind at issue here are significant intrusions upon interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual. For the determination of probable cause the Court allowed the issuing magistrate’s evaluation to rest upon the “passage of time, the nature of the building or the condition of the area.” As for

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description the Court was willing to accept warrants on an areawide basis. (Bernas Green Book, page 183) (However, according to Nachura, Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations is basically an exercise of police power of the State, and would not require a search warrant. These are routine inspection which, however, must be conducted during reasonable hours.) B(1) Incidental to lawful arrest (1) The arrest must be lawful (2) The arrest must precede the search (3) Search cannot be made in a place other than the place of the arrest. (4) Object of search must either be: (a) weapon; (b) anything used in the commission of the offense; or (c) anything that may constitute as proof in the commission of the offense. (See Section 13 Rule 126) • “A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense” (Section 13 of rule 126) • Arrest must precede that search; the process cannot be reversed (Malacat vs. CA) Exception: A search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search (People vs. Tudtud citing 68 Am.Jur 2d)

•

Purpose of search incidental to a lawful arrest: (1) Protect the arresting officer against physical harm from the person being arrested. (2) To prevent the person arrested from destroying evidence within his reach.

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ARIS S. MANGUERA

•

Warantless search incidental to lawful arrest should not be strained beyond what is needed in order to serve its purpose. (Bernas, Green Book at 184)

•

Warantless search cannot be made in a place other than the place arrest. (Bernas, Green Book at 185)

•

Warantless search incidental to a lawful arrest may extend beyond the person once arrested to include the premises or surroundings under his immediate control. (People v. Musa) [But see Chimel v. California, 395 US 752 (1969): “Scope of allowable warantless search is limited to the area within which the person arrested could reach for a weapon or reach for evidence to destroy it.” and page 185 of Green Book.]

B(2) Plain view Requirements: (1) Prior valid intrusion based on the valid warantless arrest in which the police are legally present in the pursuit of their official duty. (2) The evidence was inadvertently discovered by the police who have the right to be there. (3) The evidence must be immediately apparent (4) Plain view justified mere seizure of evidence without further search (People vs. Valdez) (See Roan vs. Gonzales) B(3) Moving vehicle (1) There must exist a probable cause (2) There must be no sufficient time to obtain a warrant

• • •

The important thing is that there was probable cause to conduct the warantless search (Caballes vs. CA) If there is time to obtain a warrant in order to search the vehicle, a warrant must be first obtained. (Lim v. Ponce-de Leon) Moving vehicles include fishing vessels. (Roldan v. Arca)

B(4) Consented warantless searches Requirements for effective waiver of rights: (1) it must appear that the right exist (2) the person involved had knowledge, actual or constructive of the existence of such right.

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(3) Said person had an actual intention to relinquish the right. (4) It must be understood to cover only what is included within the terms of the language (Veroy vs. Layague) • Waiver must be given by the person himself or by the one who has the authority to execute waiver for him. (People v. Damaso) • Search must be limited only to the extent of consent given. (Jack) • A permission granted for officers to enter a house to look for rebel soldiers does not include permission for a room to room search for firearms. (Spouses Veroy v. Layague) B(5) Customs Searches (1) Reasonable cause to suspect the presence of dutiable articles (2) Search made by authorized person under the Tariff Code (3) Search is made not in a dwelling place. (See Papa v. Mago) Note: Searches at borders and ports of entry do not require the existence of probable cause. • The Tariffs and Customs Code authorizes persons having police authority under the Code to effect search and seizures without a search warrant to enforce customs laws.

• • •

Exception: A search warrant is required for the search of a dwelling house. Imported goods remain under the jurisdiction of Bureau of Customs as importation is not terminated. (Tariff and Customs Code). BOC acquires exclusive jurisdiction over imported goods, for the purposes of enforcement of customs laws, from the moment the goods are actually in its possession or control. (Papa vs. Mago)

B(6) Stop and Frisk My requisites: (ASM) (1) The individual has a suspicious behavior. (Terry v. Ohio; People v. Canton) (2) There is a belief that criminal activity is afoot. (Terry v. Ohio) (3) Belief must be based on a genuine reason in light of the police officer’s experience and surrounding conditions. (Malacat v. CA)

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ARIS S. MANGUERA (4) The purpose of the search is not to discover evidence of a crime but to allow the officer to pursue his investigation without risk of violence. (5) Search is limited to outer clothing. (Malacat v. CA)* (6) Search is limited to weapons. (People v. Canton)** ** But see Manalili v. CA where the object seized was a prohibited substance. Nachura’s requisites: (1) The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons. (2) The apprehending officer must have a genuine reason, in accordance with the police officer’s experience and the surrounding conditions, to warrant the belief that the person to be held has weapons or contraband concealed about him. (3) Search and seizure should precede the arrest for the principle to apply. (People v. Sy Chua) 2 Fold interest in stop and frisk (1) Crime prevention and detection (2) Self- preservation

•

Even before the arrest, when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is presently dangerous, he may conduct a limited protective search.

•

The purpose of this limited search is not to discover evidence of a crime but to allow the officer to pursue his investigation without risk of violence. • Mere suspicion or hunch will not validate stop and frisk. (Malacat vs. CA) • A genuine reason must exist, in light of the police officer’s EXPERIENCE and surrounding conditions, to warrant the belief that the person detained has weapons

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concealed about him. (People vs. Solayao, Posadas vs. CA) B(7) Exigent and Emergency Circumstances People vs De Gracia: This is a case of an attempted coup d’etat. The SC opined that the case based on the circumstances, falls under one of the exceptions to the prohibition against warantless search. The following facts were taken to account: (1) Reasonable ground to believe that a crime was being committed. (2) There was no opportunity to apply for and secure a search warrant from the courts. (3) There was a prevailing general chaos and disorder (in People v. De Gracia, there was an attempted coup) (See People vs. Bolasa)

ARIS S. MANGUERA D(2) Administrative Inspection

•

There must exist reasonable governmental interest in administrative inspection. Only reasonableness of need to conduct periodic, area-wide inspection is needed. (See Camara v. Municipal Court 387 US 523 (1967)) (???)

•

In the case of Camara v. Municipal Court, for the determination of probable cause the Court allowed the issuing magistrate’s evaluation to rest upon the “passage of time, the nature of the building or the condition of the area.” As for description the Court was willing to accept warrants on an area-wide basis.

When the Constitution says that it is mean to cover “searches and seizure of whatever nature and purpose”, the phrase extended search and seizure clause to (1) Subpoena duces tecum and (2) administrative inspection. (Bernas submits. Green Book at 179) D(1) Subpoena duces tecum (1) Good cause must be established (Rule 27) (2) Things must be material to any matter involved in the action (Rule 27) (3) Things must be particularly described (4) Things must not be privileged (Rule 27) (5) Things cannot be used to incriminate the other party

•

Subpoena duces tecum is a process directed to a person requiring him to bring with him any books, documents or other things under his control (Section 1, Rule 21) (See Rule 27, Production or Inspection of Documents or Things)

•

Good cause for production of documents must be established. Documents cannot be used to incriminate the other party. Also, the documents must be particularly described (See Material v Judge Natividad and Oklahoma cases)

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ARIS S. MANGUERA

SECTION 2: FREEDOM FROM ARREST EXCEPTION: If arrest is reasonable

A. With Warrant (1) Judicial Warrant Requirements: (1) issued upon probable cause (2) personally examined by the judge (3) Examined under oath and affirmation (4) Particularly describing the place to be searched and the persons or things to be seized(Section 2 ArticleIII) (5) warrant must not be for more than one offense (Revised Rules of Court) (2) Orders of arrest by administrative authorities for the purpose of carrying out a finding of a violation of law

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B. Without Warrant (1) Sec 5 of Rule 113, Rules of Court (2) Escape or rescue of a person lawfully arrested (Section 13, Rule 113) (3) Surrender of the accused by the bondsmen (Section 23, Rule 114) (4) Attempt to leave the country without court permission (Section 23, Rule 114) (5) Final Order of Deportation (6) Crimes against national security (?)

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B(1) Sec 5 of Rule 113, Rules of Court (a) when in his presence, the person to be arrested has committed, is actually committing, or attempting to commit an offense; (b) when an offense has in fact been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while case is pending, or has escaped while being transferred from one confinement to another.

ARIS S. MANGUERA accused are assumed to be always continuing the offense. (Umil v. Ramos) (See David v. Arroyo) Personal Knowledge

•

•

In Flagrante Delicto, ELEMENTS

•

For an in flagrante delicto arrest to be valid two elements must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, or is actually committing or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.(People v. Binad Sy Chua, page 90 of Jack’s Compendium)

In the Presence

•

•

An offense is committed in the presence or within the view of an officer, when the officer SEES the offense, although at a distance, or HEARS the disturbances created thereby and PROCEEDED AT ONCE to the scene thereof (US vs. Samonte; Padilla v. CA) (Perhaps Hot Pursuit and Stop and frisk may fall under section 5(a)) (See Ateneo Bar Operations Reviewer)

Is Committing • A person charged with rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof may be arrested without a warrant because these are continuing offenses and therefore the

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•

•

• •

Policemen while patrolling in car received a radio message from their camp directing them to proceed to “Ihaw-ihaw” where there have been a shooting, went to the place and there saw the victim and bystanders pointing to the accused fleeing from the scene. The Court said that an offense had in fact just been committed, and the officers had personal knowledge of the facts indicating the accused had committed it. (People v. Jayson, 1997) Finding lifeless body with stab wounds and an informant pointed to the accused as the assailant. Bloodstains in the accused’s pants were found to be the same blood type as that found on the fatal knife. (People vs. Jayson citing ____) Policemen went to the scene of the crime and found a piece of wood and concrete hollow block used by the killer. A neighbor who witnessed the killing pointed to the accused as the assailant (People vs. Jayson citing People vs. Garente) Policemen received a report and immediately responded. One of the victims pointed to the 4 persons one of which was wearing his jacket. When they were approached they ran to different directions. (People vs. Jayson citing People vs. Acol) When the policemen conducted a surveillance A person is seen wearing the stolen article (?)

B(2) Escape or rescue of a person lawfully arrested(Sec 13 of Rule 113) Sec 13 of Rule 113- If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. B(3) Surrender of the accused by the bondsmen (Section 23, Rule 114) Sec 23 Rule 114 –For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion.

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ARIS S. MANGUERA

B(4) Attempt to leave the country without court permission (Section 23, Rule 114) An accused released on bail may be re-arrested without the necessity of warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. •

If an arrest without warrant is unlawful at the moment it is made, generally nothing that happened or discovered afterwards can make it lawful. (People v. Burgos)

Buy-bust operation • A buy-bust operation is a form of entrapment. The method is for an officer to pose as a buyer. He, however, neither instigates nor induces the accused to commit a crime. (People v. de la Cruz) • However, if the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment and no conviction may be had. (People v. Doria) When to challenge validity of arrest • The accused must move for the quashing of the information against him before arraignment. Otherwise he is estopped from questioning the validity of the arrest. (People v. Cabiles) Filing of Bail bond • Filing of a bail bond is a waiver of the accused of the right to question it. (Callanta v. Villanueva)

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Section 3. (1)The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

third person could be held liable under RA 4200 if they commit any of the prohibited acts under RA 4200. (Ramirez v. CA) • The use of a telephone extension to overhear a private conversation is not a violation of RA 4200 because it is not similar to any of the prohibited devices under the law. Also, a telephone extension is not purposely installed for the purpose of secretly intercepting or recording private communication. (Gaanan v. IAC)

Section 3 Section 3(1): Privacy of Communication and Correspondence Privacy of Communication and Correspondence

Exclusionary Rule Exceptions

Correspondence and communication • It covers letters, messages, telephone calls, telegrams and the like. • Letters addressed to individual Justices, in connection with the performance of their judicial functions become part of judicial record and are a matter for the entire Court. (In Re Laureta) • Written correspondence must be particularly described. As regards communication, the identity of the person or persons whose communication is to be intercepted, the identity of the offense or offenses sought to be prevented and the period of the authorization given can be specified. • Telephone extension was not among the devices covered by the law. (Gaanan v. IAC) RA 4200 • The law does not distinguish between a party to the private communication or a third person. Hence, both party and a

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A. Lawful Order of the Court

B. When Public Safety or Order Requires as prescribed by law

A Lawful Order of the Court • Probable cause is required for a court to allow intrusion. (Bernas) • Written correspondence must be particularly described. • As regards communication, the identity of the person or persons whose communication is to be intercepted, the identity of the offense or offenses sought to be prevented and the period of the authorization given can be specified. B When Public Safety or Order Requires as prescribed by law Requisites:

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(1) Intrusion must be based upon a government’s officials assessment that public safety and order demand such intrusion (2) Discretion of public officer must be exercised “as prescribed by law”. (3) Other than the President, other officers should first be properly authorized. (Bernas) • Public order and safety were defined as “the security of human lives, liberty and property against the activities of invaders, insurrectionists, and rebels. (1971 ConCon) Note: While letters containing confidential communication between detainees and their lawyers enjoy a limited protection between detainees and their lawyers enjoy a limited protection in that prison officials can open and inspect the mail for contraband but could not read the contents thereof without violating the inmates’ right to correspondence. Letters that are not of that nature could be read by prison officials. (Alejano v. Cabuay) See: Section 7 & 8 of Human Security Act Q: How does the HSA differ from the Anti-Wiretapping Law? A: (1) The judicial authorization under the HSA does not necessarily identify the name and address of the suspect whose communications are to be intercepted. It must only be specified in the Authorization if it is known. On the other hand, the AntiWiretapping Law requires that the name and person of the suspect be identified and stated in the Judicial Authorization. (2) The Judicial Authorization under the HSA valid for a shorter period. The Anti-Wiretapping law grants authorization for a straight period of 60 days. Nevertheless, the HSA amend the Anti-Wiretapping Law to the effect that the surveillance allowed by the HAS is not deemed a violation of the Anti-Wiretapping Law, the contrary provisions of the latter notwithstanding. (AHRC-A Quick Guide to HSA at 9)

ARIS S. MANGUERA

Exclusionary rule • Any evidence obtained without a warrant, by authority of invalid warrant (and not falling to valid exceptions) shall be inadmissible for any purpose in any proceeding. (Section 3(2) of Article III) • Exclusionary rule is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. (Stonehill v. Diokno) • To come under exclusionary rule, the evidence must be obtained by government agents and not by private individuals acting on their own such as in the case of People v. Marti. • Even if a vessel security is armed and tasked to maintain peace and order, he is still a private employee and does not discharge any governmental function. (People v. Bongcarawan) • BUT See Zulueta vs. CA: “The intimacies between husband and wife do not justify any one of them breaking the drawers and cabinets of the other. A person, by contracting marriage does not shed his/her right to privacy as an individual.” • Goods illegally seized must be returned unless the possession of such goods is prohibited by law (Castro v. Judge Pabalan) • Firearms which have been illegally seized in a “zona” is inadmissible in evidence. Pending the determination of the legality of such articles, they shall remain in custodia legis, subject to such appropriate disposition as the corresponding courts may decide. (Alih v. Castro) • It is not required that the property to be searched be owned by the person against whom the search is directed. It is sufficient that the property is under the control or possession of the person sought to be searched. (Burgos v. Chief of Staff)

Section 3(2): Exclusionary Rule

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•

The objection to an unlawful search or seizure and to evidence obtained thereby is purely personal and cannot be availed of by third parties. (Stonehill v. Diokno) • The moment imported goods are in possession or control of Customs, even if seized without warrant, the Bureau of Customs acquires exclusive jurisdiction over the goods, subject only to appeal to the proper tax court and to the Supreme Court. (Collector of Customs v. Judge Villaluz)

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ARIS S. MANGUERA

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

•

Exit polls and the dissemination of their results through mass media constitute an essential part of the freedom of speech and of the press. (ABS-CBN v. COMELEC) • Plebiscite issues are matters of public concern and the people’s right to be informed must be preserved. The people’s choice of forum for discussion should not be restricted. (Sanidad v. Comelec)

• Freedom from Censorship

Freedom from subsequent Punishment

Freedom of Speech • Freedom of Speech is defined by Wendell Philips as “at once the instrument and the guaranty and the bright consummate flower of all liberty.” (Cruz)

•

•

•

Scope. Speech, Expression and press include every form of expression whether oral, written, tape or disc recorded. It also includes movies as well as what is referred to as symbolic speech such as the wearing of an arm band as a symbol of protest. Peaceful picketing has also been included within the meaning of speech. (Bernas) Reasons for the Guaranty: (1) Freedom of expression is essential for the search of truth. (2) It is needed for democracy to work properly. (3) It promotes individual self-realization and selfdetermination. (Bernas, Green Book) When available. Freedom of expression is available only insofar as it is exercised for the discussion of matters affecting public interest. (Cruz)

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Right to Privacy and Freedom of Speech. The right to privacy cannot be invoked in order to resist publication and dissemination of matters of public interest. What is protected by the right of privacy is the right to be free from unwarranted publicity, from wrongful publicizing of the private affairs and activities of an individual which are outside the realm if legitimate public concern. The right to privacy does not extend to a fictional or novelized representation of a person. A limited intrusion into a person’s privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute matters of a public character. (Ayer Productions v. Capulong) Section 4: Freedom of Speech

Protected Core Speech Speech which communicates (1) political (2) social or (3) religious ideas.

Not accorded with same protection as core speech. Commercial Speech

Forms of Speech NOT Protected (1)Libel (2)Obscenity Reason: Such utterances are not essential part of any exposition of ideas, and are of such

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ARIS S. MANGUERA slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the special interests in order and morality. (Chaplinsky v. New Hampshire)

Elements of Freedom of Expression (1) Freedom from previous restraint or censorship; (2) Freedom from subsequent punishment. Freedom from prior restraint • Prior Restraint means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. • Prior restraint’s most blatant form is a system of licensing administered by an executive officer.

•

Legislative Restraint. The security of the freedom of the press (and expression) requires that it should be exempt not only from prior restraint from the executive, but also from legislative restraints. (Near v. Minnesota)

•

Closure is in the nature of restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law and constitutes virtual denial of petitioner’s freedom to express themselves in dissent. (Burgos v. Chief of Staff) • Censorship or prior restraint is done by suppressing publication and punishing as contempt further publication. In determining the extent of constitutional protection, it has been

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•

•

generally, if not universally considered that it is the chief purpose of the guaranty of freedom of press is to prevent previous restraints of publication. (Near v. Minnesota) What is involved in the case of Ayer Productions v. Capulong is a prior and direct restraint upon the exercise of speech and of expression by petitioners. Capulong has restrained petitioners from filming and producing the entire proposed motion picture. A non-criminal process, which requires the prior submission of a film to a censor, avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. (Freedman v. Maryland)

•

Presumption of invalidity. Any system of prior restraints of expression bears a heavy presumption against its constitutional validity. The Government thus carries the burden of showing justification for the enforcement of such restraint. (New York Times v. US)

•

The VAT is not a license tax and therefore, not a form of prior restraint. It is not a tax on the exercise if the privilege, much less a constitutional right. It is imposed on the sale, barter, lease or exchange (Tolentino v. Sec of Finance)

•

Other Examples of Prior Restraint o Licensing system o Judicial Restraint o License taxes based on gross receipts o Flat license fees for the privilege of selling religious books o Press Censorship o Movie Censorship

Movie Censorship

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•

•

“Motion pictures are important both as a medium for the communication of ideas and the expression of the artistic impulse. Their effects on the perception by our people of issues and public officials or public figures as well as prevailing cultural traits is considerable. It is important as an organ of public opinion.”(Gonzales vs. Kalaw Katigbak) Standards for movie Censorship be valid (1) The burden of proving that the film is unprotected expression must rest on the censor. (2) The requirement cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes a protected expression. (3) The procedure must also assure a prompt final judicial decision to minimize the deterrent effect of an interim and possibly erroneous denial of a license.(Freedman v. Maryland) Note: Philippine jurisprudence does not follow Freedman in every respect. It allows banning of movies before a court order is made.

Exceptions to the rule of freedom from prior restraint/ Exceptions to the presumption of invalidity (1) When a nation is at war (2) Obscene Publications (3) Security of community life may be protected against incitements to acts of violence or overthrow by force of orderly government. (Near v. Minnesota) (4) General Welfare and Public Interest (example: COMELEC’s power to regulate time in broadcast media [UNIDO v. COMELEC]) Note: There is no presumption of invalidity arises with respect to exercises of supervisory or regulatory authority on the part of the COMELEC for purposes of securing equal opportunity among candidates for

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ARIS S. MANGUERA political office, although such may result in some limitation of the rights of free speech and free press. (NPC vs. COMELEC) Subsequent Punishment • If prior restraint were all that the constitutional guarantee prohibited and government could impose subsequent punishment without restraint, freedom of expression would be a “mockery and a delusion.” THREE TESTS STANDARDS FOR ALLOWABLE SUBSEQUENT PUNISHMENT TESTS A. Dangerous Tendency

B. Clear and Present Danger

C. Balancing of Interest

APPLICATION • In speech cases involving incitement to sedition. • In cases of contempt of the Supreme Court • Note: This test is more or less discarded (Jack Jimenez; See SWS v. COMELEC) • In cases involving restrictions on election campaigns. • In cases involving contempt of inferior courts. • Assembly and Petitions • Commercial Speech • Intended for legislation whose object is not the prevention of evil measurable by proximity and degree. (Bernas) • See Gonzales v.

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When is a government control-based regulation justified? D. O’Brien Test Used in determining whether a control based regulation is justified. A. Dangerous Tendency • Speech may be curtailed or punished when it creates a dangerous tendency which the State has the right to prevent. • All it requires for speech to be punishable is that there be a rational connection between the speech and the evil apprehended. • On acts of force, violence or unlawfulness. It is not necessary that some definite or immediate acts of force, violence or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. • It is not necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about a substantive evil which the legislative body seeks to prevent, (Cabansag v. Fernandez) • Example: People v. Perez B. Clear and Present Danger • The question in every case is “whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that the State has a right to prevent.” (Schenck v. US) It is a question of proximity and degree. o Clear seems to point to a causal connection with the danger of the substantive evil arising from the utterance questioned. (Gonzales v. COMELEC)

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o Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable. (Gonzales v. COMELEC) o Substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. (Gonzales v. COMELEC) • An attempt to overthrow a government the government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. (Dennis v. US) • Violent picketing would create a clear and present danger to the safety of persons and the public order and is therefore not entitled to the protection of the Constitution. • Examples: Primicias Case, Reyes v. Bagatsing, Ruiz v. Gordon. C. Balancing of Interest • “When a particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of the two conflicting interests demands greater protection under the particular circumstances presented.” (American Communications Associations v. Douds) • Importance of the Balancing of Interest test: Dangerous Tendency and Clear and Present Danger rules are couched in terms of degree of evil and proximity of evil. But not all evils easily lend themselves to measurement of proximity and degree. • Criticism of the test: The test in effect allows courts to decide that a freedom may not be enforced unless the courts believe it is reasonable to do so. (Justice Black)

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D. O’Brien Test 1. It is within the constitutional power of the Government; 2. If it furthers an important or substantial governmental interest; 3. If the governmental interest is unrelated to the suppression of free expression; and 4. If the incident restriction is no greater than is essential to the furtherance of the interest.

•

•

•

In his concurring and separate opinion, Chief Justice Reynato S. Puno said that “the advertising and promotion of breastmilk substitutes properly falls within the ambit of the term commercial speech…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 protection.”

•

“[T]he absolute ban on advertising…is unduly restrictive and is more than necessary to further the avowed governmental interest of promoting the 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,” said Chief Justice Puno.4

COMMERCIAL SPEECH Commercial Speech is a communication which “no more than proposes a commercial transaction”. Advertisement of goods or of services is an example. Protection. Commercial speech does not enjoy the degree of protection as core speech does.

UNPROTECTED SPEECH To enjoy protection: (1) Must no be false or misleading (2) Should propose an illegal transaction

Libel

•

Hudson Test for Commercial Speech Even truthful and lawful, commercial speech may be regulated if: (1) the government has a substantial interest to protect; (2) the regulation directly advances that interest; (3) it is not more extensive than is necessary to protect that interest. (Central Hudson Gas & Electric Corp. v. Public Service Commission of NY) Pharmaceutical and Health Care Association of the Philippines v. Secretary Duque III, et al., GR No. 173034, October 9, 2007.

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•

4

Libel is a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. (Article 353 of the RPC) The REQUISITES for libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge (c) identity of the person defamed; and (d) existence of malice. (Vasquez v. CA)

Supreme Court Website.

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Allegation • An allegation is considered defamatory if it ascribes to a person the commission of a crime which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead. (Vasquez v. CA) Publication • It means making the defamatory matter, after it has been written known to someone other than the person to whom it has been written. (A man’s reputation is not the good opinion he has of himself, but the estimation in which others hold him) (Ledesma v. CA) Identity • It is essential that the victim be identifiable although it is not necessary that he be named. It is not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication. (Borjal v. CA) Malice • There is malice when the author of the imputation is prompted by ill-will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. (Alonzo v. CA) • Presumption of Malice. “Every defamatory imputation is presumed to be malicious even if it be true if no good intention and justifiable motive for making it is shown. (Article 354 of RPC) Exceptions: (1) A private communication made by any person to another in the performance of any legal, moral or social duty; and (2) A fair and true report, made in good faith, without any comments or remarks, of any juridical,

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ARIS S. MANGUERA legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Article 354 of RPC) (3) Fair commentaries on matters of public interest (Borjal v. CA) PRIVILEGED COMMUNICATION Absolutely privileged Qualifiedly privileged (1) Pleadings that are relevant (1) A private communication (2) Testimony of Witnesses made by any person to (3) Remarks made in the course another in the performance of of the trial any legal, moral or social duty; (4) Section 11 of Article VI and (2) A fair and true report, made in good faith, without any comments or remarks, of any juridical, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Article 354 of RPC) (3) Fair commentaries on matters of public interest (Borjal v. CA)

Rule on Privileged Communication • The rule on privileged communication is that a communication made in good faith on any subject matter in which the communicator has interest, or concerning which he

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has duty, is privileged if made to a person having a corresponding interest, although it contains incriminatory matter which, without privilege, would be libelous and actionable. (Ledesma v. CA) • The concept of privileged communications implicit in the freedom of the press. (Borjal v. CA) • Pleadings. Pleadings, etc., are privileged; but, to be so, they must be relevant to the matter under investigation. (Gutierrez v. Abila) So also about remarks made in the course of the trial (Malit v. People) • Complaint in SEC. The publication of a complaint filed with SEC before any judicial action is taken thereon is privileged as a report of a judicial proceeding. (Reasons: (1) Said pleadings have become part of the public record open to the public to scrutinize; (2) Said pleadings are presumed to contain allegations and assertions lawful and legal in nature, appropriate to the disposition of issues ventilated before courts for the proper administration of justice and therefore, of general public concern.) (Cuenco v. Cuenco) • Standards. The law against libel is protective of reputation according to community standards and not according to personal or family standards. (Bulletin Publishing Corp v. Noel) Clear and Present Danger Test is used. (Reyes v. Bagatsing, David v. Arroyo, Bayan v. Ermita) • Derogatory remarks in newspapers. To enjoy immunity, a publication containing derogatory information must be not only true but also fair, and it must be made in good faith and without comments or remarks. (Policarpio v. Manila Times Publishing Co.) • Honest mistake or imperfection. In preparation of stories, press reporters and edition usually have to race with their deadlines; consistently with good faith and reasonable care, they should not be held to account to a point of suppression, for honest mistake or imperfection in the choice of words (Quisumbing V. Lopez).

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ARIS S. MANGUERA

•

• •

Defamatory information against public officials. For liability to arise without offending the press freedom, there is the test to meet: statements was made with 'actual malice'- ie. knowledge that it was false or with reckless disregard of whether it was false or not (NY times v. Sullivan). This rule is extended to a defamatory imputation against a barangay official as well as a PCGG Commissioner. (Jalandoni v. Drilon) The rule in TIMES case is extended to private sector public figures (e.g. newscaster, political analyst etc). (Hustler Magazine And Larry Flynt Vs. Jerry Falwell) HOWEVER, malice is not required in publications relating to judicial action. One of the fundamental pubic interests is the maintenance of the integrity and orderly functioning of the administration of justice. The protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice which is as important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizens is the maintenance of the independence of the Judiciary. A publication relating to judicial action in a pending case which tends to impede embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guarantee of press freedom and punishable as contempt (In re: Jurado) FAIR COMMENT (US RULE): These are statements of OPINION, not of fact, and are not considered actionable, even if the words used are neither mild nor temperate. What is important is that the opinion is the true and honest opinion of the person. The statements are not used to attack personalities but to give one’s opinions on decisions and actions. OPINIONS. With respect to public personalities (politicians, actors, anyone with a connection to a newsworthy event), opinions can be aired regarding

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ARIS S. MANGUERA or descriptions of masturbation, excretory functions, and lewd exhibition of genitalia. (Miller v. California)

their public actuations. Comment on their private lives, if not germane to their public personae, are not protected.

Obscenity • Nature. Obscenity is an unprotected speech which the State has the right to regulate. • Old definition: People v. Kottinger (1923) defined obscenity as something which is offensive to chastity, decency or delicacy. • Example: A live sexual intercourse is plain pornography (People v. Padan) • There is no perfect definition of obscenity but the latest word is that of Miller v. California (Fernando v. CA, Dec. 6, 2006) Miller Test a) Whether the average person, applying contemporary community standards* would find that the work, taken as a whole, appeals to the prurient5 interest; (b) Whether the work depicts or describes, in a patently offensive way, sexual conduct** specifically defined by the applicable state law; (c) Whether the work, taken as a whole lacks serious literary, artistic, political, or scientific value.(Miller vs. California (1973)) (Gonzales v. Kalaw Katigbak) * The court should not apply a national standard but the standard of the community in which the material is being tested. (Cruz) ** Examples include (a ) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representation

5

Itching, longing; uneasy with desire or longing; of persons having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd (Roth vs. US)

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Note: It would be misreading of Miller to conclude that the trier of facts has unbridled discretion in determining what is patently offensive. (Fernando v. CA citing Jenkins v. Georgia) Note: Stricter rules could be followed for television, radio and schools.

•

RENTON vs. PLAYTIME THEATERS DOCTRINE: Zoning legislation dealing with adult entertainment that does not ban adult theaters altogether is not invalid being properly analyzed as a form of time, place and manner of regulation. “Content-neutral time, place and manner regulations are acceptable so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication.

BETHEL SCHOOL DISTRICT vs. FRASER DOCTRINE: The first amendment does not prevent the school district from disciplining students in giving offensively lewd and indecent speech at a school assembly. The use of an offensive form of expression may not be prohibited to adults making a political point but it does not follow that the same latitude must be permitted to children in public school. It is highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. It is well within the power of the school to prohibit vulgar language to be used by its students. HAZELWOOD SCHOOL DISTRICT vs. KUHLMEIER DOCTRINE: Schools had the authority to censor if it could affect the education of others. This case ruled that the

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censorship in the schools was only acceptable if it were for “valid educational purpose.” Stricter rules should be followed for speech in school because of the nature of the community that is involved and the relationship between school and parents.

•

Q: May sex in the internet be banned? A: It depends. Obscenity may be banned. But attempts to regulating sex which does not come under the definition of obscenity for the purpose of protecting minors have failed on the argument under the definition of obscenity and are therefore legitimate for adults. (Reno v. American Civil Liberties Union (1997), US v. American Library Association (2003))

Procedure before law enforcement agencies may seize allegedly obscene publications: (1) The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; (2) The authorities must convince the court that the materials sought to be seized are “obscene,” and pose a clear and present danger of an evil substantive enough to warrant State interference and action; (3) The judge must determine whether or not the same are indeed “obscene”. The question is to be resolved on a case-to-case basis and on His Honor’s sound discretion; (4) If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; (5) The proper suit is then brought in the court under Article 201 of the Revised Penal Code; (6) Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are in deed obscene. (Pita v. CA) ASSEMBLY AND PETITION

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ARIS S. MANGUERA

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Attribute of citizenship. Right to peaceful assembly is an attribute of citizenship. It is found wherever civilization exists. It was not a right granted to the people by the Constitution. It was there long before the adoption of the Constitution (of US). (Navarro v. Villegas)

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Fundamental. The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. (De Jonge v. Oregon)

•

Enjoys Primacy. The right to peaceably assemble and petition for redress of grievance is together with freedom of speech, of expression of the press, a right that enjoys primacy in the realm of constitutional protection. Fort these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. (Bayan v. Ermita)

•

Not Absolute. The right while sacrosanct is not absolute. The privilege of a citizen to use the streets may be regulated in the interest of all. The right must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order. (Primicias v. Fugoso) • A statute requiring persons using public streets for a parade or procession to procure special license therefore for local authorities is not an unconstitutional abridgement of the rights of assembly or of freedom of speech and press, where the licensing authorities are strictly limited in the issuance of licenses, to a consideration of time, place, and manner of the parade or procession with a view to conserving the public convenience and of affording an opportunity to provide policing, and are not invested with arbitrary discretion to issue or refuse license. (Primicias v. Fugoso)

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The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. (Primicias v. Fugoso)

•

Standards. The right of assembly and petition is equally as fundamental as freedom of expression, the standards for allowable impairment of speech and press are also used for assembly and petition. • Fear of serious injury cannot alone justify suppression of free speech and assembly. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. (Primicias v. Fugoso) • The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. (Primicias v. Fugoso)

•

Peaceful Picketing.Peaceful picketing is constitutionally protected. The guarantee of free speech protects the strikers. (PCIB v. Philnabank Employees)

•

Extent of the authority of the State to regulate public assemblies. The Mayor is possessed of reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order. (Navarro v. Villegas)

•

Disciplinary action may be taken against students for conduct which “materially disrupt class work or involves substantial disorder or invasion of the rights of others.” However, considering the importance of the right of assembly

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ARIS S. MANGUERA and petition, the penalty imposed is too severe. (Malabanan v. Ramento)

•

Freedom of Speech and Judiciary. There is no antimony between free expression and the integrity of the justice system. Freedom of expression needs to be adjusted to and accommodated with the requirements of equally important public interest such as the maintenance of the integrity and orderly functioning of the administration of justice. Judicial independence is undermined by the irascible demonstrations outside the courthouses. They wittingly or unwittingly spoil the ideal of sober, non-partisan proceedings before a cold and impartial judge. A state may thus adopt safeguards necessary to assure that the administration of justice is at all stages, free from outside control and influence. ( In Re: Valmonte)

Bayan v. Ermita o BP 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. o BP 880 refers to all kinds of public assemblies that would use public places. Is BP 880 Content-based? NO o Reference to lawful cause. The reference to lawful cause does not make it content-based because assemblies really have to be for lawful causes, otherwise they will not be peaceable and entitled to protection. o “Opinion”, “protesting”, and “influencing”. The words opinion, protesting and influencing in the definition of public assembly is not content-based, since they refer to any subject. o “Petitioning the government for redress of grievances”. The words petitioning the government for redress of grievances come from the wording of the Constitution so its use cannot be avoided.

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o Maximum Tolerance is for the protection and benefit

o Moreover, under BP 880, the authority to regulate

of all rallyists and is independent of the content of the expression in the rally. PERMITS o But permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under UDHR and ICCPR. CPR o Calibrated Preventive Response does not mean anything other than the maximum tolerance policy set forth in BP 880. (CPR then serves no purpose if it means maximum tolerance and it is illegal if it means something else). What is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

assemblies and rallies is lodged with the local government units. They have the power to issue permit and to revoke such permits after due notice and hearing on the determination of the presence of cleat and present danger. Here, petitioners were not even notified and heard on the revocation of their permits. The first time they learned of it was at the times of the dispersal. Such absence of notice is a fatal defect.

David v. Arroyo Are dispersals of the rallies of KMU and NAFLU-KMU members unconstitutional? o Yes. Apparently, the dispersal was done merely on the basis of Malacanang’s directive canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is blatant disregard of the principle that “freedom of assembly is not to be limited, much less denied, except a showing of clear and present danger of a substantive evil that the State has a right to prevent.” Respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion.

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Summary of the rules on assembly and petition in public places (1) Applicant should inform the licensing authority of the date, the public place where and the time when the assembly will take place. (2) The application should be filed ahead of time to enable the public official concerned to appraise whether there are valid objections to the grant of the permit or to its grant, but in another place. The grant or refusal should be based on the application of the Clear and Present Danger Test. (3) If the public authority is of the view that there is an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. (4) The decision of the public authority, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity so that they may, if they so desire, have recourse to the proper judicial authority. (Reyes v. Bagatsing) Rules on assembly in private properties: • Only the consent of the owner of the property or person entitled to the possession thereof is required.

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Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Section 5

Non-establishment Clause

Free Exercise Clause A. Freedom to Believe B. Freedom to Act

Freedom of Religion • Freedom of religion is a fundamental right which is entitled to the highest priority and the amplest protection for it involves the relationship of man to his Creator. (Ebralinag v. Superintendent) • Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present. (INK v. CA) • Religious freedom has 2 fold aspects: (1) Freedom to Believe; (2) Freedom to act on one’s belief. Religion • Any specific system of belief, worship, conduct etc., often involving a code of ethics and philosophy. (Webster’s New World Dictionary) • A profession of faith to an active power that binds and elevates man to his Creator. (Aglipay v. Ruiz) • Religion also includes a refusal to believe in God. (Cruz)

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2 Guarantees of Section 5 (1) Non-establishment clause (2) Free exercise clause Q: How does one tell whether a case is a free exercise case or a non-establishment case? A: One simple guide is this: every violation of the free exercise clause involves compulsion whereas a violation of the non-establishment clause need not involve compulsion. (Bernas) Non- establishment clause • The Establishment clause does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not. • The non-establishment clause simply means that the state cannot set-up a church; nor pass laws which aid one religion, aid all religion, or prefer one religion over another nor force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion; that the state cannot punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance; that no tax in any amount, large or small, can be levied to support any religious activity or institution whatever they be called or whatever form they may adopt to teach or practice religion; that the state cannot openly or secretly participate in the affairs of any religious organization or group and vice versa. (Everson v. Board of Education) • Stated otherwise, the clause seeks to prevent sponsorship, financial support, and active involvement of the sovereign in religious activities.

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Kurtzman Test: There will be no violation of the establishment clause if: (1) the statute has a secular legislative purpose; (2) its principal or primary effect is one that neither advances nor inhibits religion; and (3) it does not foster an excessive government entanglement with religion. (Lemon v. Kurtzman) • The State cannot pass laws or impose requirements which aid all religions as against non-believers. • Study of the bible or of religion, when presented objectively as part of a secular program of education may be effected consistently with the Constitution. (Obiter in Abington) • A law requiring that at least 10 verses of the bible shall be read at the opening of each public school on every school day found to be violative of the non-establishment clause. (Abington v. Schempp) • State sponsored bible readings and prayers in public schools have been invalidated for violating (1) and (2). (School District v. Schempp)

(1) Article VI Section 28(3) [Exemption from taxation of properties actually, directly and exclusively used for religious purposes] (2) Article XIV Section 4(2) [Citizenship requirement of ownership of educational boards] (3) Article XIV Section 3(3) [Optional religious instruction in public elementary and high schools: at the option expressed in writing by the parents or guardians, religious instruction taught within regular class hours by instructors designated and approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the government] (4) Article VI Section 29(2) [Appropriation allowed where the minister or ecclesiastic is employed in the armed forces, in a penal institution, or in a government-owned orphanage or leprosarium.]

Other Constitutional provisions expressing the nonestablishment principle: (1) Article VI, Section 29(2) [Prohibition against the use of public money or property for the benefit of any religion, or of any priest, minister, or ecclesiastic] (2) Article II Section 6 [The separation of Church and State shall be inviolable.] (3) Article IX-C Section 2(5) [A religious sect or denomination cannot be registered as a political party] (4) Article VI Section 5(2) [No sectoral representative from the religious sector.]

Standards for allowable government aid: (1) Government aid must have a secular legislative purpose. (2) It must have a primary effect that neither advances nor inhibits religion. (3) It must not require excessive entanglement with recipient institutions.

Exceptions to the Non-establishment clause

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Government Aid • The non-establishment clause does not prohibit all government aid that might redound to the benefit of religion.

Government must have a secular purpose • There was no violation of the Constitution where it was shown that the money used by a barangay council for the purchase of a religious image was raised by it from private contributions and did not constitute public funds. The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the patron saint. The barrio fiesta a socio-religious affair. (Garces v. Estenzo)

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Lending of secular textbooks to parochial school children and the grant of construction aid for science buildings have been allowed satisfying (1) and (2). (Board of Education v. Allen) (Note: According to Cruz in view of Article VI Section 29(2), Allen, Everson, and Zorach cases might not be applicable in the Philippines)

It must have a primary effect that neither advances nor inhibits religion. • The Philippine SC allowed the issuance of religious commemorative stamps as giving merely incidental benefits to religion. (Aglipay v. Ruiz) Any benefit indirectly enjoyed by a religious institution, as long as such benefit was only incidental to a legitimate secular objective, would not violate the prohibition. (Aglipay v. Ruiz) • The expropriation of the birthplace of Felix Y. Manalo, founder of Iglesia ni Kristo, for the purpose of preserving it as a historical landmark, was upheld as for “public use”. Whatever benefits the adherents of Iglesia would reap would only be incidental to the public historical purpose. (Manosca v. CA) • Salary payments and reimbursements for secular textbooks and other instructional materials under a system involving close government supervision was invalidated as not satisfying (3). (Committee for Public Education v. Nyquist) • In a dispute over property belonging to a voluntary organization (a cofradia) strictly independent of the church, the rule is that “the use of properties of a ‘religious congregation’ in case of division is controlled by the numerical majority of the members. (Canete v. CA) • Continuing government surveillance is equated to excessive government entanglement.

•

Ecclesiastical Affair is one that concerns doctrine, creed or form of worship of the church, or the adoption and enforcement within a religious association of needful laws

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ARIS S. MANGUERA and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership. (Austria v. NLRC) Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relates to matters of faith, religious doctrines, worship and governance of the congregation. Examples of these affairs in which the State cannot meddle are proceedings for excommunication, ordination of religious ministers, administration of sacraments, and other activities to which is attached religious significance. Intramural religious dispute. • Intramural disputes regarding religious dogma and other matters of faith are outside the jurisdiction of the secular authorities. These are questions that may be resoled by the religious authorities themselves, and among themselves only. (Cruz) • Dogma is not binding. It is also settled that whatever dogma is adopted by a religious group cannot be binding upon the State if it contravenes its valid laws. (Thus, while the Church may provide for the dissolution of marriage by its own courts, the ecclesiastical decree cannot prevail against the Civil Code which prohibits divorce. {But see Estrada v. Escritror}) • However, where the dispute involves the property rights of the religious group, or the relations of the members where property rights are involved, the civil courts may assume jurisdiction. (Fonacier v. CA) • The court has no jurisdiction to entertain a complaint about an expulsion or communication from a church. (Taruc v. Bishop, 2005) • Where a civil right depends upon some matter pertaining to ecclesiastical affairs, the civil tribunal tries the civil right and nothing more. (Gonzales v. Archbishop of Manila)

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Free Exercise Clause • The free exercise clause forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. It also safeguards the free exercise of the chosen form of religion. (Cantwell v. Connecticut) Thus, the embraces two concepts: (1) Freedom to believe and (2) freedom to act. Aspects of freedom of religious profession and worship: (1) Freedom to believe (2) Freedom to act on one’s belief Freedom to Believe • Absolute. Freedom to believe is absolute as long as the belief is confined within the realm of thought. • An individual has full freedom to believe as he pleases no matter how absurd his beliefs are to other, even if they be hostile and heretical to the majority. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Freedom to act on one’s belief • Subject to Regulation. Freedom to act on one’s belief is subject to regulation where the belief is translated into external acts that affect public welfare. • Dissemination of religious information. The constitutional guarantee of free exercise of religious profession and worship carries with it the right to disseminate religious information, and any restraint of such right can be justified only on the ground that there is a clear and present danger of an evil which the State has the right to prevent. (INC v. CA) • The right to proselytize is recognized as part of religious freedom. (American Bible Society v. City of Manila)

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• •

•

•

•

•

Flag Salute. Members of the Jehova’s witness may refuse to salute the flag on account of their religious scruples. (Ebralinag v. Division Superintedndent) Religious Freedom and Contractual Rights. RA 3350 was upheld exempting members of a religious sect from being compelled to join a labor union. (Victoriano v. Elizalde Rope Workers Union) Religious freedom although not unlimited, is a fundamental personal right and liberty, and has a preferred positions in the hierarchy of values. Contractual rights, therefore, must yield to the freedom of religion. License on dissemination of religious articles. License may not be required by the State for the dissemination of religious literature unless the dissemination is done as business operation for profit. (American Bible v. City of Manila) Regulation of Solicitations. State regulations for the protection of the public imposed on solicitations for religious purposes do not constitute an abridgment of freedom of religion. (Centeno v. Villalon) [Note that solicitations for religious purposes are not covered by PD 1564 (Solicitation Permit Law) which requires a prior permit from DSWD in solicitations for “charitable or public welfare purposes.” (Centeno v. Villalon)] VAT. The free exercise clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization. (Tolentino v. Secretary of Finance) Where the resulting burden on the exercise of religion is so incidental as to make it difficult to differentiate it from any other economic imposition that might make the right to disseminate religious doctrines costly, then the imposition is not invalid. (Tolentino v. Secretary of Finance) The registration requirement is a central feature of the VAT system…The registration fee is a mere administrative fee, one not imposed on the exercise of a privilege, much less a constitutional right. (Tolentino v. Secretary of Finance)

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•

Note: In the ABS case, it was a form of regulation, in the Tolentino case, it is a form of imposition on revenue.

2 APPROACHES/STANDARDS ON RELIGION CLAUSES A. Separation (1) Strict Separation (2) Strict Neutrality/ 2nd theory of government neutrality B. Benevolent Neutrality A(1) Strict Separation • Strict Separationist believes that the Establishment Clause was meant to protect the state from the church, and the state’s hostility towards religion allows no interaction between the two. A(2) Strict Neutrality/ 2nd Theory of Gov’t Neutrality • Strict Neutrality view believes that the state must be neutral in its relations with groups of religious believers and nonbelievers. • This approach is not hostile to religion. But it holds that religion may not be used as a basis of classification for purposes of governmental action. It does not permit, much less require accommodation of secular programs to religious belief. • Criticism: This approach could lead to a de facto voiding of religious expression in the Free Exercise clause. To most observers, strict neutrality has seemed incompatible with the very idea of a free exercise clause. B. Benevolent Neutrality/Accommodation • Benevolent Neutrality recognizes that religion plays an important role in the public life. • Benevolent Neutrality theory believes that with respect to governmental actions which incidentally aid or burden religious exercise, accommodation of religion may be allowed

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•

• • •

•

•

•

to allow individuals and groups to exercise their religion without hindrance. Benevolent neutrality recognizes that government must pursue its secular goals and interests, but at the same time, strive to uphold religious liberty to the greatest extent possible within constitutional limits. Note: The benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the Philippine Constitution. The power of the Courts to grant exemptions in general has been decided twice by the Court( Ebralinag and American Bible Society cases) The Court can make exemptions in cases involving criminal laws of general application. (Estrada v. Escritor) Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interest. Compelling Interest Test: (1) Whether the right to religious freedom has been burdened (2) Ascertain whether there is sincerity in the religious belief. Benevolent Neutrality Test: (1) Does the law impose a burden on the freedom of religion? (2) Is there a compelling state interest>? (3) Did the state use the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state.

Religious Tests • The constitutional prohibition against religious tests is aimed against clandestine attempts on the part of the government to

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prevent a person from exercising his civil or political rights because of his religious beliefs. (Cruz) • The purpose of the prohibition of religious tests is to render the government powerless “to restore the policy of probing religious beliefs by test oaths or limiting public offices to persons who have a belief or profess to have a belief in some parparticular kind of religious concept. (Torcaso v. Watkins) • Duty to Vote. The duty to register and vote, when constitutionally imposed, may well be made to yield to free exercise of religion. • Military Service. Q: The Constitution imposes the duty to defend the State. May the State allow exemptions on religious grounds? A: Yes, as long as exemptions is not religiously motivated on its face and is not religiously discriminatory. (Gillete v. US) (But see People v. Zosa: “Invocation of religious scruples to avoid military service was brushed aside by the Supreme Court.” ) • Q: Section 2175 of the Revised Administrative Code (1917) disqualifies an “ecclesiastic” from being elected or appointed to a municipal office. Is this consistent with the religious clause of the Constitution? A: No. (7-5 decision of the SC under 1973 Constitution, Pamil v. Teleron) (McDaniel v. Patty) Note: Section 2175 of the Revised Administrative Code has been repealed by Section 23 of the Election Code of 1971. (Jack’s Compendium at 125)

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Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health.

•

Section 6

•

Liberty of Abode: Freedom to choose and change one’s abode Limitations: (1) Within limits prescribed by law; and (2) Upon lawful order of the court

•

• •

Right to travel: Freedom to travel both within the country and outside Limitations: (1) In the interest of national security, public safety or public health; OR (2) Lawful order of the court

There is a rewriting of the original rule in the Constitution, which was confined to the liberty of abode. The new rule expressly includes the right to travel, and the exceptions have been restricted. Purpose of Guaranty. To further emphasize the individual’s liberty as safeguarded in general terms by the due process clause. Right to return to one’s country is not covered. The right to travel and liberty of abode are distinct from the right to return to one’s country, as shown by the fact that Declaration of Human Rights and the Covenant on Human Rights have separate guarantees for these. Hence, the right to return to one’s country is not covered by the specific right to travel and liberty of abode. Consequently, the requirements prescribed

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by in Section 6 relative to the right to travel and liberty of abode do not apply. (Marcos v. Manglapus) A maid has the right to transfer to another residence even if she had not yet paid the amount advanced for her transportation from the province, by an employment agency which was then effectively detaining her because of the moral duress extended on her. (Cuanca v. Salazar) Where the hold-order has expired and no good reason appears for extending it, an alien may not be indefinitely kept from leaving the country. The right to travel is guaranteed by the Constitution and the Universal Declaration of Human Rights to which the Philippines is a signatory. (Kant Kwong v. PCGG)

Limitation of liberty of abode: Lawful order of the court • The right to change abode and travel within the Philippines are not absolute rights. It can be regulated by “lawful order.” An order of the CA releasing a petitioner on bail constitute such lawful order as contemplated by Section 6. • A person facing criminal charges may be restrained by the court form leaving the country or if abroad, compelled to return. • A lessee may be judicially ejected for violation of his contractual duties. • The judge may prevent a person from entering certain premises under dispute or declared off-limits by the proper authorities. Limitation on right to travel: Interest of national security, public safety or public health as may be provided by law. • Public safety. An administrative order issued by the Secretary of Labor temporarily suspending the deployment of Filipino domestic helpers abroad was uphold, in view of the need to extend protection to female domestics who were most prone to exploitation and abuse by their foreign

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• •

•

•

employers. The ban on their right to travel was justified on the ground of public safety. (Philippine Association of Service Exporters v. Drilon) Public Safety. Where there is threat of volcanic eruption, residents in the affected area may be forced to evacuate and be prevented from returning until the danger is over. Public Health. Health officers may restrict access to contaminated areas and also quarantine those already exposed to the disease sought to be contaminated. (Lorenzo v. Director of Health) In Provincial Board of Mindoro v. Rubi, the respondents were justified in requiring members of certain non-Christian tribes to reside in a reservation, for their better education, advancement and protection. The measure was held to be a legitimate exercise of the police power. In Villavicencio v. Lukban, the mayor of Manila was not sustained by the SC when he “deported” some 170 women of ill-repute to Davao for ridding the city of serious moral and health problems.

ARIS S. MANGUERA

•

•

may be legally prohibited form leaving the country during the pendency of the case. (Defensor-Santiago v. Vasquez) Consequence of Bail. A court may prevent a person admitted to bail from leaving a country. This is a necessary consequence of a bail bond which is to secure a person’s appearance when needed. (Manotoc v. CA) Pending Cases. Parties with pending cases should apply for permission to leave the country from the very same courts which, in the first instance, are in the best position to pass upon such applications and to impose the appropriate conditions therefore, since they are conversant with the facts of the cases and the ramification of implications thereof. (Defensor-Santiago v. Vasquez)

A lawful order of the court is also a valid restriction on the right to travel. • Safeguarding the systems of justice. The person’s right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the systems of justice. Whether an accused should be permitted to leave the country for humanitarian reasons is matter addressed to the court’s discretion. (Romualdez- Marcos v. Sandiganbayan) • Hold departure Order. The hold departure order is but an exercise of the court’s inherent power to preserve and maintain the effectiveness of its jurisdiction over the case and over the person of the accused. (Defensor-Santiago v. Vasquez) • Bail. By posting bail, the accused holds herself amenable to all times to the orders and processes of the court, thus she

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Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as a basis for policy development shall be afforded the citizen, subject to such limitations as may be provided by law.

•

Section 7 •

•

Access informationonon matters of public is to Right totoinformation Corollary rightconcern of access essential to public the proper exercise of freedom of records expression matters of concern official andon such matters. documents. Note: These are political rights available to citizens only. Limitation: (1) Must be on matters of public concern (2) These rights are subject to limitations as may be provided by law Recognized Limitations: (1) National Security matters k (2) Intelligence information k (3) Trade and Industrial Secrets (4) Banking Transactions (5) Diplomatic Correspondence k (6) Executive sessions (7) Closed-door cabinet meetings (8) Supreme Court deliberations (9) Criminal Matters Note: Regulatory discretion must include both authority to determine what matters are of public concern (substantive regulations) and authority to determine the manner of access to them (procedural regulations)

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This section is related to: (1) Article VI, Section 16(4) requiring publication of the legislative journals from time to time excepting such parts as may, in the judgment of the House, affect national security. (2) Article VI, Section 20 providing that “the records and books of accounts of the Congress shall be open to the public in accordance with law, and such books shall be audited by the COA which shall publish annually an itemized list of amounts paid and expenses incurred for each Member.” These provisions are self-executing. (Legaspi v. CSC)

•

Scope. Right to information contemplates inclusion of negotiations leading to the consummation of a transaction. The right affords only access to records, documents and papers, which means the opportunity to inspect and copy them at his expense. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations. (Chavez v. PEA and Amari)

•

Access. The constitutional right gives citizens “access to official records”. But the Constitution does not accord them the right to compel custodian of official records of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matter of public concern. (Valmonte v. Belomonte)

•

Public Concern like public interest eludes exact definition. They embrace a broad spectrum of subjects which the public may want to know either because these directly affect their lives or simply because such matters arouse interest of an ordinary citizen. Each case must be examined separately. (Legaspi v. CSC)

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Burden. In case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law form the operation of the gurantee.

•

Standards for curtailment. It is submitted that the standards that have been developed for the regulation of speech and press and of assembly and petition and of association are applicable to the right of access to information. (Bernas)

•

Standing. The people are regarded as the real party in interest. A relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws. The requirement on personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general “public” which possesses the right.

• •

•

• •

Remedy. The remedy is mandamus. The need for publication of laws reinforces this right. In Tanada v. Tuvera, the Court said, “laws must come in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the peope.” E0 200 provides that the required publication may be alternatively in a newspaper of general circulation in the Philippines.

Recognized Limitations:

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(1) (2) (3) (4) (5) (6) (7) (8) (9)

•

National Security matters k Intelligence information k Trade and Industrial Secrets Banking Transactions Diplomatic Correspondence k Executive sessions Closed-door cabinet meetings Supreme Court deliberations Criminal Matters

National Security Matters include State secrets regarding military, diplomatic and other national security, and information on inter-government exchanges prior to the conclusion of treaties and executive agreements. Where there is no need to protect State secrets, the privilege to withhold documents and other information may not be invoked, provided that they are examined “in strict confidence” and given “scrupulous protection.” Trade secrets (Intellectual Property Code, RA 8283) Banking transactions (Secrecy of Bank Deposits Act, RA 1405) Criminal Matters or classified law enforcement matters “such as those relating to the apprehension, the prosecution and the detention of criminals, which the courts may not inquire into prior to such arrest, detention and prosecution.”

CASES • The SC sustained the rights of a municipal mayor to examine judicial records subject to reasonable rules and conditions. (Baldoza v. Dimaano) • Duty of Custodians. “Except perhaps when it is clear that the purpose of the examination is unlawful or sheer, idle curiosity, we do not believe it is duty under the law of registration officers to concern themselves with motives,

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•

• •

•

•

•

reasons, and objects of the person seeking access to the records.” (Subido v. Ozatea) Duty to disclose, not discretionary. While manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern and to afford access to public records cannot be discretionary on the part of the said agencies. (Legaspi v. CSC) Civil Service Eligibility. The civil service eligibility of a sanitarian is a public concern. Voting slips constituting the decision of the members of the MTRCB are not private nor confidential because they are made in the exercise of official functions. (Aquino-Sarmiento v. Morato) Contents of the manual setting forth the procedure for administering the lethal injection shall be confidential is unduly oppressive because the contents of the manual are matters of public concern affecting the lives of the people and such matters arouse the interest of the individual citizen. (Echegaray v. Sec. of Justice) When the constitutional guarantees of freedom of the press and the right to information, on the one hand, and the fundamenatal rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial race against another, jurisprudence tells us that the right of the accused must be preferred to win. (The SC allowed audio-visual recording of the trial for documentary purposes, not for live or real-time broadcast) (In Re: Request for Live-Radio-TV Coverage) The Executive Secretary, upon petition of a citizen may be ordered to give access to the name of executive officials holding multiple positions in government, copies of their appointments, and list of the recipients of luxury vehicles seized by the Bureau of Customs. This is covered by the right

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•

•

to information on matters of public concern. (Gonzales v. Narvasa) In MARQUEZ VS. DESIERTO, it was said that bank accounts of suspects in anti Graft cases may be examined pursuant to the Ombudsman Act. Moreover, RA 6770 provides that the Ombudsman may examine and have access to bank accounts and records and order an in camera inspection, provided that there must be a pending case before a court of competent jurisdiction. The inspection is limited to the subject matter of the pending case before the court of competent jurisdiction Q: What specific clarification has the new Constitution added to the 1973 version? A: The new Constitution specifies the right of access “to government research data used as basis for policy development.” This has reference especially to government funded research data.

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ARIS S. MANGUERA organizations, associations or unions.9 Self-organization is a recognized form of promoting social justice and human rights to the working class. The right of laborers to organize is an exercise of every citizen to pursue his calling, whether of labor or business, as he in his judgment thinks fit, or of the right guaranteed by the Constitution of acquiring, processing, and protecting property.10

Section 8. The right of the people, including those employed in the public and private sectors, to form unions, association, or societies for purpose not contrary to law shall not be abridged. Section 8

• Right to form or join unions, associations or societies…

•

•

•

•

Scope. The right to form or join unions or associations, includes the right not to join or, if one is already a member, to disaffiliate from the association. • The right to form association does not include the right to be given juridicial personality. (PAFLU v. Sec. of Labor)

Right not to join (Reyes v. Trajano)

This right is an aspect of the general right of liberty. More specifically, it is an aspect of freedom of contract; and in so far as associations may have for their object the advancement of beliefs and ideas; freedom of association is an aspect of expression and of belief. Freedom of association is the right of individuals to form a body corporate.6 The freedom is based on the premise that it is the right of free adults to mutually choose their associates for whatever purpose they see fit. Given the nature of man as gregarious, it is said that the right to associate, to come together, is innate and rooted in natural law. The freedom is also considered as a fundamental human right.7 The right to organize is considered to be one phase of the more comprehensive freedom of association.8 Strictly speaking, “organizing” refers to the act of establishing or persuading others to form or join a particular group. As applied to labor, the right to organize is usually identified with the right of employees to organize into a labor

The right is not absolute • It was held that the Anti-Subversion Act does not violate right to form associations because the purpose of the statute was to outlaw only those organizations aimed at the violent overthrow of the government, and that the government has a right to protect itself against subversion is a proposition too plain to require elaboration. (People v. Ferrer) • It was held that the right to association was not violated when political parties were prohibited from participating in the barangay election in order to insure the non-partisanship of candidates; political neutrality is needed to discharge the duties of barangay officials. (Occena v. Comelec) • The SC upheld the validity of RA 3350 allowing workers to disassociate from or not to join a labor union despite a closed shop agreement, if they are members of any religious sect which prohibits affiliation of their members in any such labor organization. (Victoriano v. Elizalde Rope Workers Union)

6

9

7

10

CAROL DEVINE ET. AL., HUMAN RIGHTS, THE ESSENTIAL REFERENCE 101 (1999). See The Right to Unionize, 9 MISSISSIPPI COLLEGE L. REV. 154 . 8 KIRT BRAUN, THE RIGHT TO ORGANIZE AND ITS LIMITS 66 (1950).

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QUINTIN C. MENDOZA, PHILIPPINE LABOR RELATIONS LAW 42 (1992). 31 AM JUR 2D § 33.

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Art 245 of the Labor Code which makes managerial employees ineligible to join, assist or form a labor union, does not violate Section 8 Article III. (UPCSU v. Laguesma) • A closed-shop agreement is legal. It is valid form of union security, and such provision in a CBA is not a restriction of the right of freedom of association guaranteed by the Constitution. (Villar v. Inciong) • The closed shop, the union shop, the maintenance of membership shop, the professional shop, the maintenance of treasury shop, and check-off provisions are valid forms of union security and strength. They do not constitute unfair labor practice nor are they violations of the freedom of association. (Tanduay Distillery Labor Union v. NLRC) • Compulsory membership of a lawyer in the IBP does not violate the constitutional guarantee. (In Re Edillon) • Government employees have the right to form unions. This is guaranteed by Article III, Section 8, Article IX-B, Section 2(5) and Article XIII, Section 3. (TUP v. NHC)

•

Right to Strike. The right to strike is not included in the right to form unions. It may be denied by law for valid reasons.

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Section 9. Private property shall not be taken for public use without just compensation. Eminent Domain Definition • The right of the state to acquire property for public use upon payment of just compensation. • It is the ultimate right of sovereign power to appropriate, not only the public, but even the private property of all citizens within the territorial sovereignty, to public purposes. (Charles River Bridge v. Warren Bridge) • The power of a sovereign state to take or to authorize the taking of any property within its jurisdiction for the public use without the owner’s consent. (Grotius) • It is an inherent power of the State that need not be granted even by the fundamental law. (Republic v. Tagle) It is founded on the law of necessity. • Like police power, power of eminent domain is inalienable. • Eminent Domain v. Destruction from Necessity. Destruction by necessity may be validly undertaken by private individuals. Moreover, destruction from necessity cannot require the conversion of the property taken to public use, nor is there any need for the payment of just compensation. Scope • In the hands of Congress, the scope of eminent domain is plenary. It can thus reach every form of property which the State might need for public use. It can reach even private property already dedicated to public use*** or even property devoted to religious worship. (Barlin v. Ramirez) • The acquisition of an easement of a right of way falls within the purview of the power of eminent domain. (Camarines Norte Cooperative v. CA)

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•

Unlawful denial of building permit is tantamount to expropriation.

Exercise of the power Inherently, it is possessed by the State. (Bernas) It is lodged primarily in the national legislature.(Cruz) It is exercised by: (1) National Government o Congress o Executive (pursuant to legislation enacted by Congress) (2) Local Government units (pursuant to an ordinance enacted by their respective legislative bodies) (3) Public Entities (thru charters) (4) Public Utilities (as may be delegated by law) Expropriation • Expropriation refers to the procedure for enforcing the right. • 2 Stages in Expropriation Proceedings (1) Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts. (2) Determination of just compensation (See Rule 67. Expropriation) Constitutional Limitations to the exercise of eminent domain (1) Article III, Section 1 (Due Process and Equal Protection) (2) Article III, Section 9 (Public use and Just Compensation) Constitutional provisions on eminent domain (1) Article III, Section 9 (2) Article XII, Section 18 (The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the government.) (3) Article XIII, Section 4 (Agrarian Reform Program)

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(4) Article XVIII, Section 22 (Expropriation of idle or abandoned agricultural lands) Elements of the exercise of eminent domain (1) There must be a taking of a private property (2) The taking must be for public use (3) There must be just compensation Requisites for the exercise of eminent domain (1) Necessity (2) Private Property (3) Taking in the constitutional sense (4) Public Use (5) Just Compensation (6) Due Process of Law (1) Necessity • A reasonable or pratical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and property owner consistent with such benefit. • The foundation of the right to exercise eminent domain is genuine necessity and that the necessity must be of public character. Government may not capriciously or arbitrarily choose which private property should be expropriated. (Lagcao v. Labra) • When the power is exercised by the Legislature, the question of necessity is generally a political question. (Meycauayan, Bulacan v. IAC) • But when the exercised by a delegate, the determination of whether there is a genuine necessity for the exercise is a justiciable question. (Republic v. La Orden) • The issue of the necessity of the expropriation is a matter properly addressed to the RTC in the course of the expropriation proceedings. If the property owner objects to the necessity of takeover, he should say so in his Answer to

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the Complaint. The RTC has the power to inquire into the legality of the exercise of the right of eminent domain and to determine whether there is a genuine necessity for it. (Bardillon v. Barangay Masili, Calamba, laguna) (2) Private Property • All private property capable of ownership may be expropriated, except money and choses in action11. Even services may be subject. Even services may be subject to eminent domain. (Republic v. PLDT) • A franchise is a property right and may therefore be expropriated. • Churches and other religious properties are likewise expropriable notwithstanding the principle of separation of Church and State. • Private property already devoted to public use cannot be expropriated by a delegate of legislature acting under a general grant of authority. (City of Manila v. Chinese Community) • Property already devoted to public use is still subject to expropriation, provided this is done directly by the national legislature or under a specific grant of authority to the delegate. A mere general authority may not suffice. (3) “Taking” in the constitutional sense Requisites of Taking: (1) The expropriator must enter upon the private property (2) The entry must be permanent and not for a momentary period. (3) The entry must be under the warrant of color of legal authority 11

A choses in action is a personal right not reduce into possession but recoverable by a suit at law, a right to receive, demand or recover a debt, demand or damages on a cause of action ex contractu or for a tort or omission of duty. (Black’s Law Dictionary)

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•

•

• •

•

•

(4) The property must be devoted for public use. (5) Utilization of the property must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property (Republic. V. Vda. De Castellvi) Where there is taking in the constitutional sense, the property owner need not file a claim for just compensation with the COA; he may go directly to the court to demand payment. (Amigable v. Cuenca) Taking may include trespass without actual eviction of the owner. The imposition of an easement of a 3-meter strip on the property was considered taking. (Ayala de Roxas v. City of Manila) A municipal ordinance prohibiting a building which would impair the plaza form the highway was likewise considered taking. (People v. Fajardo) Compensable taking does not need to involve all the property interests, which form part of the right to ownership. When one or more of the property rights are appropriated and applied to a public purpose, there is taking even if the bare title to the property still remains with the private owner. (US v. Causby) But see Penn Central v. New York: There is no taking since the landmark law had not transferred control over the property to the city, but only restricted the appellant’s exploitation of it. A state statute that substantially furthers important public policies and enhance the quality of life by preserving the character and desirable aesthetic features of a city may so frustrate distinct INVESTMENT-BACKED INTERESTS. It is well settled that expropriation of private land for urban development and slum clearance is for a public purpose even if the developed area is alter sold to private homeowners, commercial firms, entertainment and service companies. (Reyes v. NHA)

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ARIS S. MANGUERA

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•

• •

• •

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If a land has been acquired for public use in fee simple unconditionally, either by the exercise of eminent domain or by purchase, the former owner retains no rights in the land, and the public use may be abandoned or the land devoted to a different use, without any impairment of the estate acquired, or any reversion to the former owner. (Fery v. Cabanatuan) Police power v. Eminent Domain. By police power, property is “regulated.” By eminent domain, property is “taken.” The distinction is important because regulation is not compensable whereas taking must be compensated. Q: When injurious property is destroyed in the public interest, is there compensable taking? A: No, because no property interest is retained to be applied thereby to public use. Q: To constitute compensable taking, must all the property interests in the bundle of rights which constitute ownership be appropriated? A: No. When one or more of these property interest are appropriated and applied to some public purpose there already is compensable taking even if the bare title to the property remains with the private owner. If the State takes patrimonial property of the municipality, that is, property acquired by the municipality with its private funds in the its corporate or private capacity, compensation is required.

(4) Public Use • Public use is the general concept of meeting public need or public exigency. It is not confined to actual use by the public in its traditional sense. The term has now been held to be synonymous with public interest, public benefit, public welfare and public convenience. (Estate of Salud Jimenez v. PEZA) • The meaning of public use has also been broadened to cover uses, which, while not directly available to the public,

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redound to the public’s indirect advantage or benefit. (Heirs of Juancho Ardona v. Reyes) • The expropriation of the birthplace of Felix Manalo, founder of INC, for the purpose of preserving it as a historical landmark, was upheld as for “public use” under the broadened definition of public use. That only few would actually benefit from the expropriation of the property does not necessarily diminish the essence and character of public use. (Manosca v. CA) • Expropriation for socialized housing, is for public use. Socialized housing is defined as “ the construction of dwelling units for the middle and lower class members of our society, including the construction of the supporting infrastructure and other facilities. (Sumulong v. Guerrero) • The Constitution understands public use in a broad sense as meaning public welfare. That includes development of tourism. (Heirs of Ardona v. Judge Juan Reyes) • Expropriations for the construction of irrigation systems to make water available for farmers, expropriation for urban and housing reform and for agrarian reform are for public use. • Taking of private property for subdivision and resale for land reform is for public use. Land reform itself is mandated by the Constitution; that fact already establishes the public purpose of the taking for land reform. (Mataas na Lupa Tenants v. Dimayuga) • The condemnation of private lands in an irrational or piecemeal fashion, or the random expropriation of small lots to accommodate no more than a few tenants or squatters, is certainly no the condemnation for public use contemplated by the Constitution. This deprives a citizen of his property for the convenience of a few without perceptible benefit to the public. (Lagcao v. Labra, 2004) • Justice Aquino: Appreciable number of people • Q: What happens if the expropriator does not use the property for a public purpose but sells it to a private user?

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ARIS S. MANGUERA

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A: The predominant precept is that upon abandonment of real property condemned for public purpose, the party who originally condemned the property recovers control of the land if the condemning party continues to use the property for public purpose; however, if the condemning authority ceases to use the property for a public purpose, property reverts to the owner in fee simple. The government’s taking of private property, and then transferring it to private persons under the guise of public use or purpose is the despotism found in the immense power of state’s power to oblige a landowner to renounce his productive and invaluable possession to another citizen, who will use it predominantly or his own private gain, is offensive to our laws. (Heirs of Moreno v. Mactan-Cebu International Airport, 2005; page 106 of 2006 Bernas Primer)

(5) Just Compensation • Just compensation has been described as “the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation.” (Province of Tayabas v. Perez) • Just Compensation means not only the correct amount to be paid to the owner of the land but also payment within a reasonable time from its taking. (Eslaban v. De Onorio)

•

Formula: Where whole of the property expropriated: JC = MV* Manotok v. NHA: Market Value alone cannot substitute the court’s judgment in expropriation proceeding.

Where a part of certain property is expropriated: JC = [MV] + [(CD) – (CB)] [Market Value*] Plus [Consequential Damages (including attorney’s fees)] Less [Consequential Benefits] >But in no case shall benefits exceed damages.

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ARIS S. MANGUERA damages, hence Article 2209 of the Civil Code applies[6%]. (NPC v. Angas) But in some cases 12% (Wycoco v. Caspillo)

*at the time of taking or commencement of complaint, whichever is earlier. (Eslaban v. De Onorio)

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Market value is the sum of the money which a person, desirious compelled to buy, and an owner, willing but not compelled to sell, would agree on as a price to be given and received therefor.

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Judicial Prerogative. The ascertainment of what constitutes just compensation for property taken in eminent domain cases is a judicial prerogative. (EPZA v. Dulay)

•

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Form of Compensation. Compensation is to be paid in money and no other. • But, it was held that in agrarian reform, payment is allowed to be made partly in bonds, because under the CARP, “we do not deal with the traditional exercise of the power of eminent domain; we deal with a revolutionary kind of expropriation.” (Association of Small Landowners v. Sec, of Agrarian Reform 175 SCRA 343) • Under Section 16(e) of RA 6657, the deposit of compensation must be in “cash” or in “Land Bank bonds,” not in any other form, and certainly not in a “trust account.” (Land Bank v. CA)

•

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Principal Criterion. The principal criterion in determining just compensation is the character of the land at the time of the taking. The tax declaration is only one of the factors to be used in determining the market value of the property. Delay. When there is delay in the payment of just compensation, the owner is entitled to payment of interest if claimed; otherwise, interest is deemed waived. (Urtula v. Republic) The kind of interest involved here is by way of

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Entitled to just compensation. The owner is entitled. All those who have lawful interest in the property to be condemned, including a mortgagee, a lessee, and avendee in possession under an executory contract.

Title to the property. Title does not pass until after payment (Visayan v. CAmus) except in agrarian reform. • The owner of the land subject to expropriation may still dispose of the same before payment of just compensation (Republic v. SIC)

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Taxes. Taxes paid by the owner after taking by the expropriator are reimbursable. (City of Manila v. Roxas)

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Q: The contract for the construction of the NAIA International Airport was nullified for being contrary and public policy but after the construction of the building had almost been completed. What remedy does the contractor have? A: Since the state is taking over the property, the contractor is entitled to just compensation. Under RA 8974 the government must make a direct payment (not just deposit under Rule 67) of the preferred value of the property before it can enter and exercise proprietary rights. (Republic v. Judge Gingoyon 2005, page 109 of 2006 Bernas Primer)

•

(6) Due Process of Law • The defendant must be given an opportunity to be heard. • PD’s 1670 and 1669 were declared unconstitutional for violating the due process clause because the decrees do not provide for any form of hearing or procedure. • Government may not capriciously or arbitrarily choose what private property should be taken. Due process must be

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served. With due recognition of the power of Congress to designate the particular property to bet taken and how much thereof may be condemned in the exercise of the power of expropriation, it is still a judicial question whether in the exercise of such competence, the party adversely affected is a victim of partiality and prejudice. (De Knecht v. Bautista) Judicial Review • Exercise of the power of eminent domain is subject to judicial review. • The following aspects of the exercise of the power have been subjected to judicial scrutiny: (1) The adequacy of the compensation; (2) The necessity of the taking; (3) The public use character of the purpose of the taking. • Not subject to judicial review. It is submitted that when land is expropriated for subdivision and resale for social justice purposes directly by the legislature and not through an inferior agency of the State, the necessity and public purpose of the taking are not subject to judicial review. Article XIII, Section 4, constitutes a textual commitment of discretion on the subject to the legislature. (Bernas) Essential Requisites for a local government unit to validly exercise eminent domain. (1) An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. (2) The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless; (3) There is payment of just compensation as required under Article III, Section 9 and other pertinent laws.

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ARIS S. MANGUERA (4) A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. (Municipality of Paranaque v. VM Realty Corp)

•

Writ of Possession. The issuance of the writ of possession becomes ministerial upon the [i] the filing of a complaint for expropriation sufficient in form and substance, and [ii] upon deposit made by the government of the amount equivalent to 15% of the FMV (fair market value) of the property sought to be expropriated per current tax declaration. (Biglang-Awa v. Judge Bacalla)

•

Right to dismiss. In an expropriation cases, there is no such thing as the plaintiff’s “matter-of-right” to dismiss the complaint, precisely because the landowner may have already suffered damages at the start of the taking. The plaintiff’s right to dismiss the complaint has always been subject to court approval and to certain conditions. (NPC & Pobre v. CA, 2004)

•

In rem proceeding. Expropriation is an in rem proceeding, and after condemnation, the paramount title is in the public under a new and independent title. In case of non-payment, the right of the expropriatory authority is far from that of an unpaid seller in ordinary sales to which the remedy of rescission may perhaps apply. (Republic v. CA, 2002)

UDHA, Urban Development and Housing Act, RA 7279 • Expropriation proceedings may, therefore, be resorted to only when the other modes of acquisition have been exhausted. Compliance with these conditions must be deemed mandatory because they are the only safeguards in securing the right owners of private property to due process when their property is expropriated for public use. (Filstrea, Int’l v. CA; Lagcao v. Labra)

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Under 7279, lands for socialized housing are to be acquired in the following order: (1) Government lands; (2) Alienable Lands of the public domain; (3) Unregistered, abandoned or idle lands; (4) Lands within the declares Ares for Priority Development, Zonal Improvement sites, Slum Improvement and Resettlement sites which have not yet been acquired; (5) BLISS sites which have not yet been acquired; (6) Privately owned lands.

•

The mode of expropriation is subject to two conditions, namely: (1) It shall be resorted only when the other modes of acquisition have been exhausted; and (2) Parcels owned by small property owners are exempt from such acquisition. (Small property owners are: [a] owners of residential lands with an area not more than 300sq.m. in highly urbanized cities and not more than 800 sq.m. in other urban areas; and [b] they do not own residential property other than the same.

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ARIS S. MANGUERA

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Section 10. No law impairing the obligation of contracts shall be passed. Non-impairment clause Purpose • The purpose of the impairment clause is to safeguard the integrity of valid contractual agreements against unwarranted interference of the State. (Cruz) Unwarranted interference of the state impairs commercial intercourse, threaten the existence of credit, as well as sap the moral out of the people and destroy the sanctity of private faith. Thus, the nonimpairment clause was constituted to guard against this evil. (Home Building v. Blaisdell) Contract • The term “contract” as used in the impairment clause refers to any lawful agreement on property or property rights, whether real or personal, tangible of intangible. The agreement may be executed or executory. The parties may be private persons only, natural or artificial, or private persons on the one hand and the government or its agencies on the other hand. (Cruz) • The term “contract” does not cover marriage contract. Thus, a subsequent law allowing divorce would be applicable to marriage previously solemnized under a law prohibiting their dissolution. • Not only existing laws but also “the reservation of the essential attributes of sovereignty is read into contracts as a postulate of the legal order.” (Tolentino v. Sec. of Finance) • License. A license or a permit is not a contract between the sovereignty and the licensee of permitee, and is not a property in the constitutional sense, as to which the constitutional proscription against impairment of the obligation of contracts may extend. (Gonzalo Sy v. Central Bank)

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ARIS S. MANGUERA •

Timber licenses, permits and license agreements are not contracts within the purview of the due process clause and may be amended, modified, replaced or rescinded by the Chief Executive when national interest so requires. (TBAP v. Comelec) • Franchise partakes the nature of a grant which is beyond the purview of the non-impairment clause. • Tax exemptions contained in franchises are far from being strictly contractual in nature. (Meralco v. Laguna) • Note: The distinction between the license and contract is not really necessary because even contracts yield to police power. Law • As used in the impairment clause, “law” includes statutes enacted by the national legislature, executive orders and administrative regulations promulgated under a valid delegation of power, and municipal ordinances passed by the local legislative bodies. • However, it does not include judicial decisions or adjudications made by administrative bodies in the exercise of their quasi-judicial powers. (Cruz) BUT WAIT, see Ganzon v. Inserto which held that the order of the court violated the constitutional prohibition against the impairment of contracts! • To impair, the law must retroact so as to affect existing contracts concluded before its enactment. There would be no impairment, if the law is made to operate prospectively only, to cover contracts entered into after its enactment.

•

Obligation. The “obligation” of the contract is the vinculum juris i.e., the tie that binds the parties to each other.

•

Impairment is anything that diminishes the efficacy of the contract. There is substantial impairment when

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(1) the law changes the terms of legal contract between parties, either in the time or mode of performance, or (2) impose new conditions, or dispenses with those expressed, or (3) authorizes for its satisfaction something different from that provided in its terms. (Clements v. Nolting)

•

•

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Impairment must be substantial. To fall within the prohibition, the change must not only impair the obligation of the existing contract, but the impairment must be substantial. Moreover, the law must effect a change in the rights of the parties with reference to each other, and not with respect to non-parties (Philippine Rural Electric Cooperatives Assoc. v. Sec. of DILG) Note: Section 11, Article XII. “Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration or repeal by the Congress when the common good so requires.” Limitations: (1) Police Power (2) Eminent Domain (3) Taxation Police Power o Reason. The reason for this is that public welfare is superior to private rights. (PNB v. Remigio) o When principle applicable. While it is true that the police power is superior to the nonimpairment clause, the principle will apply only where the contract is so related to the public welfare that it will be considered congenitally susceptible to change by the legislature in the interest of the greater number. (NDC v. PVB) o Test: The test of validity even in the case of legislation interfering with existing contracts is

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ARIS S. MANGUERA reasonableness. (AATI v. TMCI) (Remember the “lawful purpose and lawful means test”) o It is not indispensable that exceptional circumstances must exist before police power can be exercised. (AATI v. TMCI) (This is opposed to the Blaisdell case which postulates that the police power may only be invoked and justified by an emergency) o Tenancy legislation. Pre-existing share tenancy contracts could be validly converted into leasehold tenancy through the valid exercise of police power (Ilusorio v. CAR) Tenancy legislation is a manifestation of a deep and earnest concern to solve an age-old problem of Philippine society. (Del Rosario v. Delos Santos) o BP 22 was sustained as not violative of the nonimpairment clause, and even if it were, the law was a police measure and therefore superior to contracts. (Lozano v. Martinez) o BP 25 regulating the rentals of dwelling units, was held as a constitutional exercise of the police power, and an exception to the non-impairment clause. (Canleon v. ADC) o A provision prohibiting payment of purchases already contracted is violative of non-impairment clause. (Philconsa v. Enriquez) o Police power and social justice. RA 809 which increased the share of sugar planters in the sugar milled by sugar centrals is a social legislation designed to ameliorate the condition of laborers in the sugar plantations. The Congress availed of police power in enacting RA 809. It is not police power alone that sustains its validity. It was also enacted to enforce social justice. (AATI v. TMCI)

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o An administrative order discontinuing the assignment of salaries of public schoold teachers to their creditors was declared not violative of the guarantee, as the latter could still collect loans after the salaries had been received by the teachers themselves. (Tiro v. Hontanosas) o The POEA resolution and memorandum circular increasing and adjusting rates of compensation and other benefits in the POEA Standard Employment Contracts for seafarers, being a valid implementation of EO 797 which was enacted under the police power of the State, prevail over the non-impairment clause. (CMMA v. POEA) o A municipal zoning ordinance is a police measure and prevails over a restriction contained in the title to property. (Ortigas v. Feati Bank) o Court order. It was held that the non-impairment clause would be violated by the court’s order of substituting a mortgage with a security bond as security for the payment of a loan, as this would change the terms and conditions of the original mortgage contract over the mortgage’s objections. (Ganzon v. Inserto) o A bank’s conservator may only revoke contracts that are defective. It cannot repudiate valid obligations of the bank. (FIB v. CA) o The requirement of notice of rescission does not violate the constitutional prohibition against the impairment of the obligation contracts. It does not change the time or mode of performance or impose new conditions or dispense with the stipulations regarding the binding effect of the contract.(Siska Development Corp. v. Office of President) Moratorium statute

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o Q: What is a moratorium? o A: The moratorium is a postponement of

o o

o

fulfillment of obligations decreed by the state through the medium of the courts or the legislature. (Rutter v. Esteban) Q: What is the test of the constitutionality of a moratorium statute? A: The test lies in the determination of the period of suspension of the remedy. It is required that such suspension be definite and reasonable. (Rutter v. Esteban) Impairment should only refer to the remedy and not to a substantive right. Note: With the acceptance of the superiority of police power over contract, the contract clause now has very limited usefulness. It can in fact be removed from the Constitution without substantive loss. The 1986 Constitutional Commission nevertheless decided to retain the clause for fear that removing it might fan fears and cause economic instability. (Bernas)

Taxation o The reservation of the essential attributes of sovereignty is read into contracts. The constitutional guarantee does not limit the exercise of the power of taxation of the State. (Tolentino v. Sec. of Finance) o A lawful tax on a new subject, or an increased tax on an old one, does not interfere with a contract or impair its obligation within the meaning of the Constitution. o Tax exemptions. The tax exemptions contained in the franchises are far from being strictly contractual in nature. (Meralco v. Laguna)

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o Tax exemptions, when covered by the clause. Where a law grants a tax exemption in exchange for valuable consideration, such exemptions is considered a contract and cannot be repealed because of the impairment clause. (Casanova v. Hord) All other tax exemptions are not contractual and so may be revoked at will by the legislature. o Contractual tax exemptions (to be considered within the coverage of the nonimpairment clause) are those agreed to by the taxing authority in contracts such as those in government bonds and debentures, lawfully entered into by them under enabling laws which the government acting in its private capacity, sheds its cloak of authority and waives governmental immunity. (Meralco v. Laguna) o Q: A and B enter into a contract for the sale of cigars. Before delivery is made a law is passed imposing a sales tax on the seller. Does the law impair the obligation of the contract? o A: No. The law does not change the relationship between A and B. What it does is to establish an obligation of the seller to one not a party to the contract, i.e., the government. (La Insulare v. Machucha Go-Tanco)

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Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Section 11

Free access to the courts

Adequate legal assistance

•

This is a social justice provision, implemented by the Rules of Court provision allowing “pauper suits.” • The new Constitution has expanded the right so that in addition to giving free access to courts it now guarantees free access also to “quasi-judicial bodies” and to “adequate legal assistance.” • The Supreme Court shall have the power to promulgate rules concerning legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases. (Article VIII, Section 5(5)) • See Rule 141, Section 19. (Indigent litigants exempt from payment of legal fees)

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Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. Section 12

Section 12(1) Miranda Rights

Section 12(2) Right against means which vitiates free will.

Section 12(3) Exclusionary Rule

Right against secret detention places, incommunicado etc.

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Section 12(4) Penal and Civil Sanctions for violations Compensation and Rehabilitation to victims and their families

Rights available to persons under custodial investigation (1) Miranda Rights (Section 12(1)) (2) Right against torture, force, etc, which vitiates the free will (Section 12(2)) (3) Right against detention places, etc (Section 12(4)) Section 12(1) Miranda Rights (1) Right to remain silent (2) Right to have competent and independent counsel, preferably of his own choice. (3) Right to be provided with the services of counsel of he cannot afford the services of one. (4) Right to be informed of these rights. Applicability • The Miranda doctrine was first institutionalized in the 1973 Constitution which took effect on January 17, 1973. The rights guaranteed therein are to be given only prospective effect. (Magtoto v. Manguera) When rights are available: (1) AFTER a person is taken into custody. (2) When a person is otherwise deprived of his freedom of action in any significant way. (3) When a person is merely “invited” for questioning (RA 7438). (People v. Domantay) (4) When the investigation is being conducted by the government (police, DOJ, NBI) with respect to a criminal offense. When rights are not available:

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(1) During a police line-up. (Exception: Once there is a move among the investigators to elicit admissions or confession from the suspect. Or when the person is already under custodial investigation.) (2) During administrative investigations (Sebastian v. Garchitorena) (3) Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation.(People v. Taylaran) (4) Statements made to a private person.

•

•

•

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Rights are available only during custodial investigation. The rights guaranteed in Section 12, Article III, exists only in “custodial investigation” or “in-custody interrogation of accused persons” (People v. Judge Ayson) which has been defined as “any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”. The rule begins to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime, and direction is then aimed upon a particular subject who has been taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements. (People v. de la Cruz) Miranda rights apply only from the moment the investigating officer begins to ask questions for the purpose of eliciting admissions, confessions, or any information from the accused. (De la Torre v. CA) “Custodial investigation” shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law. (RA 7438)

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ARIS S. MANGUERA

•

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Police line-up. A police line-up is not considered a part of any custodial inquest because it is conducted before the stage of investigation is reached. (People v. Bravo) This is because, in a line-up, the process has not yet shifted from the investigatory to the accusatory stage, and it is usually the witness or the complainant who is interrogated and who gives a statement in the course of line-up. (People v. Amestuzo, 2001) However, where the accused, having become the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, it was held that when the out-of-court identification was conducted by the police, the accused was already under custodial investigation. (People v. Escordial, 2002) An out-of-court identification may be made in a “show-up” (where the accused brought face to face with the witness for identification), or in a “police line-up” (where the suspect is identified by a witness from a group of persons gathered for that purpose). During custodial investigation, these types of identification have been recognized as “critical confrontations of the accused by the prosecution,” necessitating the presence of counsel for the accused. This is because the result of these pre-trial proceedings “might well settle the fate of the accused made in a police line-up or in a show-up after the start of custodial investigation is inadmissible in evidence against him. (People v. Escordial, 2002)

Not Custodial Investigation • A person under normal audit investigation is not under custodial investigation because an audit examiner can hardly be deemed to be law enforcement officer contemplated in the rule. (Navallo v. Sandiganbayan) • An investigation conducted by a court administrator does not constitute custodial investigation within the contemplation of the constitutional gurantee because he is not a law enforcement officer. (OCA v. Sumilang)

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An investigation conducted by the Civil Service Commission involving fake eligibility is not custodial investigation. (Remolono v. CSC, 2001) • Preliminary investigation is not part of custodial investigation. The interrogation by the police, if any, would already have been ended at the time of the filing of the criminal case in court or in the public prosecutor’s office. (Ladiana v. People, 2002) Conceivably, however, even after charges are filed, the police might still attempt to extract confession or admissions from the accused outside the judicial supervision. In such situation, Section 12(1) would still apply. (Bernas, Green Book p. 461) • Confession not given to police officers but to media men in an attempt to solicit sympathy and forgiveness from the public is not part of custodial investigation. However, because of the inherent danger in the use of television as a medium for admitting one’s guilt, courts are reminded that extreme caution must be taken in further admitting similar confessions. (People v. Endino, 2001) • The guarantee does not apply to a spontaneous statement, not elicited through questioning by the authorities but given in an ordinary manner whereby the suspect orally admitted having committed the offense. • Spontaneous statements, or those not elicited through questioning by law enforcement officers, but given in an ordinary manner are admissible. (People v. Guillermo) Right to Remain Silent • If the suspect refuses to give a statement, no adverse inference shall be made from his refusal to answer questions. • The court during the trial is not duty bound to appraise the accused that he has the right to remain silent. It is the counsel of the accused who should claim the right for him. If counsel does not claim the right and calls the accused to the witness stand, then he waives the right to be silent. (People v. Tampus)

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Right to competent and independent counsel •

•

Scope. The right exists at all stages of the investigation (People v. Hassan) If he cannot afford the services of counsel, he must be provided (by the Government) with one. • The right to counsel is not imperative in administrative proceedings. (Because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures.) (Lumiqued v. Exevea) • The constitutional right to counsel extend only to testimonial compulsion and not when the body of the accused is proposed to be examined as in a paraffin test. (People v. Gamboa) • The right to counsel is not required in a police line-up, inasmuch as police line-up is not part of the custodial inquest. Neither may this right be invoked when the suspect is given a paraffin test, as he is not yet under custodial investigation (People v. De Guzman, People v. Lamsing)

•

Purpose: The right to counsel is intended to preclude the slightest coercion as would lead the accused to admit something false. (Gamboa v. Cruz)

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Duty. The counsel should be able, throughout the investigation, to explain the nature of the questions by conferring with his client and halting the investigation should the need arise. The duty of the lawyer includes ensuring that the suspect under custodial investigation is aware that the right of an accused to remain silent may be invoked at any time. (People v. Sayaboc) • The lawyer should never prevent an accused from freely and voluntarily telling the truth (People v. Enanoria)

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To be competent and independent, it is only required for the lawyer to be “willing to safeguard the constitutional rights of the accused, as distinguished from one who would merely be giving a routine peremptory and meaningless recital of the individual’s constitutional rights. (People v. Bagnate, 2004)

ARIS S. MANGUERA

•

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Independent. The counsel’s interest must not be adverse as that of the accused. • The counsel must be independent. Obviously he cannot be a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney, whose interest is admittedly adverse to the accused. As legal officer of the municipality, it seriously doubted whether a municipal attorney can effectively undertake the defense of the accused. • Neither can the mayor be considered an independent counsel, because as mayor his duties were inconsistent with his responsibilities to the suspect. (People v. Velarde, 2002) • However, the mere fact that the lawyer was a retired member of the Judge Advocate’s Office does not cast any doubt on his impartiality in assiting the accused during custodial investigation. (People v. Hernandez, 1997) Denied with Right to counsel • Where a lawyer, not counsel of choice, arrived at the CIS headquarters around 9pm, the second night of appellant’s detention, talked to the appellant about his rights, left the appellant in the custody of the CIS agents during the actual interrogation, and then came back the next day for examination and signature of the statement of the appellant, the petitioner is considered to have been denied of the right to counsel. (People v. Lucero) • Where lawyer left about 30 minutes from the start of the investigation with instructions that before the accused signs any extrajudicial statement, it should be shown to him first, the accused here is considered to have been denied of the right to counsel. (People v. Morial, 2001)

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•

•

•

• •

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Preferably of his own choice. The phrase “preferably of his own choice” does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense; otherwise, the tempo of custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or another is not available to protect his interest. (People v. Barasina) The right to counsel does not mean that the accused must personally hire his own counsel, anyone acting on behalf of the person under investigation, or appointed by the court upon petition by said person or by someone on his behalf. (People v. Espiritu, 1999) While the choice of lawyer in cases where the person under custodial interrogation cannot afford the services of counselor where the preferred lawyer is not available—is naturally lodged in the police investigators, the suspect has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection to the lawyer’s appointment during the course of investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer. (People v. Jerez) Mere pro forma appointment of a counsel de officio who fails to genuinely protect the interests of the accused merits disapprobation. (People v. Bernas, 1999) Where the accused was not asked whether he wishes or can afford to retain his own lawyer, but was merely told that Atty. Cimafranca was a lawyer and asked if he needed his services, it was clear that he was not made aware that he could choose his own lawyer other that the one assigned by the police. (People v. Alberto, 2002) Right to counsel still applies in certain pre-trial proceedings that are considered “critical stages” in the criminal process.

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Custodial interrogation before or after charges have been filed, and non-custodial interrogation after the accused has been formally charged, are considered “critical pre-trial stages” in the criminal process. Right to be informed of such rights • Effective Communication. This contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. (People v. Nicandro) • Must be understood. Making the accused read his constitutional rights is simply not enough. The prosecution must show that the accused understood what he read, and that he understood the consequences of his waiver. (People v. Canela) • The right to be informed carries with it the correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject understanding what is conveyed. Since it is comprehension sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence and other relevant personal circumstances of the person under investigation. (People v. Manriquez, 2000) Rights cannot be waived except in writing and signed in the presence of his counsel • Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sister, his spouse, the municipal mayor, the municipal judge, the district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extra-judicial confession shall

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ARIS S. MANGUERA be inadmissible as evidence in any proceeding. (Section 2(d) RA 7438) Guidelines of Arresting. Detaining, Inviting or Investigating Officers or his Companions Must Do and Observe (People v. Mahinay, 1999) (1) The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any. Every other warning, information or communication must be in a language known to and understood by said person. (2) He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him. (3) He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice. (4) He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf. (5) That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made. (6) The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means, e.g. by telephone, radio, letter or messenger, with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by anyone of his immediate family or by his counsel, or be visited by/confer with duly accredited national or international nongovernment organization. It shall be the responsibility of the officer to ensure that this is accomplished.

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(7) He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently, and ensure that he understood the same. (8) In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insists on his waiver and chooses to speak. (9) The person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with a warning that once he makes such indication this police may not interrogate him if the same had not yet commenced, or the interrogation must cease if its has already begun. (10) The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements. (11) He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence. Waiver

•

What may be waived. The right to remain silent and the right to counsel, but not the right to be informed of these rights.

Requisites of valid waiver of rights: (1) Made voluntarily, knowingly and intelligently (2) Waiver should be in writing (3) Waiver should be made in the presence of counsel

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No retroactive effect. The doctrine that an uncounselled waiver of right to counsel and to remain silent is not to be

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•

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given legal effect was initially a judge-made one, and first announced on April 26, 1983 in Morales v. Ponce-Enrile. While this doctrine eventually became part of Section 12(1) of Article III, the requirement and restrictions therein have no retroactive effect and do not reach waivers made prior to April 26, 1983. (Filoteo v. Sandiganbayan) In the presence of counsel. Waiver must be in writing and made in the presence of counsel. (Section 12(1), Article III) (But note provisions of RA 7438) Burden of Proof. The burden of proving that there was a valid waiver rests on the prosecution. The presumption that official duty has been regularly performed cannot prevail over the presumption of innocence. (People v. Jara) Section 12(2)

No torture, force, etc., which vitiates the free will shall be used • Where the appellants did not present evidence of compulsion or duress or violence on their persons; where they failed to complain to the officers who administered the oaths; where they did not institute any criminal or administrative action against the alleged intimidators for matreatment, where there appeared to be no marks of violence on bodies and where they did not have themselves examined by a reputable physician to buttress their claim: all these should be considered factors indicating voluntariness of confessions. (People v. Bagnate, 2004) Section 12(3) Confessions/admissions obtained in violation of rights are inadmissible in evidence

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•

•

•

•

•

•

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There are two kinds of involuntary or coerced confessions treated in section 12, namely: (1) coerced confession, the product of third degree methods, such as torture, force, violence, threat and intimidation which are dealt in paragraph (2); and (2) uncounselled statements given without the benefit of the Miranda warning, which are the subject of paragraph (1). (People v. Vallejo, 2002) Confession and admissions. The 1987 text covers both “confessions” and “admissions”. Admission is the “act, declaration, or omission of party as to a relevant fact” (Rule 130, Section 26). Confession is the declaration of accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. (Rule 130, Section 33) Confessions or admissions covered by the provision need not be explicit, they can be merely implicit in any evidence that is communicative in nature. Thus, the signature of an accused on a receipt of seized property, or marijuana cigarettes where the accused wrote his name is inadmissible. But where an accused is not being prosecuted for possession of marked bills, there is no self-incrimination if the marked bills are presented. A signature in the Booking Sheet and Arrest Report is not an admission of guilt but only the fact of booking and arrest. Even if the extrajudicial confession was in writing and signed by counsel, because the accused was not given the Miranda warnings [i.e., informed of his right to remain silent, that anything he says can and will be used against him, and that he is entitled to the assistance of counsel], the confession was held inadmissible in evidence. (People v. Samolde) Oral confessions made to newsmen are not covered by Section 12 Article III. (People v. Domantay, 1999) Fruit of the poisonous tree. A phrase minted by Mr. Justice Frankfurter. According to this rule, once the primary source (“the tree”) is shown to have been unlawfully obtained, and secondary or derivative evidence (“the fruit”) derived from it is

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ARIS S. MANGUERA also inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence. • Where a bloodstained knife is found as a consequence of an uncounselled extra-judicial confession, the knife may not be admitted as evidence because it’s the fruit of a constitutionally infirmed interrogation. (Aballe v. People,1990) • But see People v. Malimit: Infractions of the so called “Miranda Rights” render inadmissible only the extrajudicial confession or admission made during custodial investigation. The admissibility of other evidence , provided they are relevant to the issue and is not otherwise excluded by law or rules, is not affected even if obtained or taken in the course of custodial investigation.” (1996)

•

Re-enactment of the crime. Not being clear from the record that before the re-enactment was staged by the accused, he had been informed of his constitutional rights, and that he had validly waived such rights before proceeding with the determination, the Supreme Court declined to uphold the admissibility of evidence relating to re-enactment (People v. Luvendino)

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Res Gestae. The declaration of the accused acknowledging guilt made to the police desk officer after the crime was committed may be given in evidence against him by the police officer to whom the admission was made, as part of the res gestae. (People v. Dy)

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Urine Sample. Urine sample is admissible. What the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material. In fact, an accused may validly be compelled to be photographed or measured, or his garments or shoes removed or replaced, or move his body to enable the

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foregoing things to be done, without running afoul of the proscription against testimonial compulsion. (Gutang v. People)

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ARIS S. MANGUERA specific question which tends to incriminate him for some crime other than that for which he is being prosecuted. Section 12(4)

Waiver of the exclusionary rule. For failure of the accused to object to the offer in evidence, the uncounselled confession was admitted in evidence. (People v. Samus, 2002)

Fundamental requisites for an extrajudicial confessions to be admissible in evidence: (1) Confession must be voluntary (2) Confession must be made with assistance of competent and independent counsel (3) Confession must be express (4) Confession must be in writing (5) Confession must be signed, or if the confessant does not know how to read and write, thumbmarked by him.

Penal and Civil Sanctions • Penal sanctions are meant to be deterrent against violations. • Civil sanction in form of damages is strictly speaking, already covered by the Civil Code provision on actionable violations of constitutional rights. (Bernas, Green Book, p. 469) • Under RA 7309, victims of unjust imprisonment, arbitrary or illegal detention, or of violent crimes may file a claim for damages with the Board of Claims under the Dept. of Justice. (Cruz) Compensation and Rehabilitation • These are social welfare measures.

In fine, a person suspected of having committed a crime and subsequently charged with its commission has the following rights in the matter of his testifying or producing evidence: (1) Before the case is filed in court [or with public prosecutor, for preliminary investigation], but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police; the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat intimidation and other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected and inadmissible. (2) After the case is filed in court: to refuse to be a witness; not to have any prejudice whatsoever result to him by such refusal; to testify on his own behalf, subject to crossexamination; and while testifying, to refuse to answer a

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Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. Section 13 Right to Bail

Non-impairment of Right to bail by the suspension of the privilege of the writ of habeas corpus

Right against excessive bail

Right to Bail Bail • Bail is the security given for release of a person in custody of law, furnished by him or a bondsman, to guarantee his appearance before any court as may be required. (Rule 114, Section 1) • Bail is a mode short of confinement which would, with reasonable certainty, insure the attendance of the accused. (De la Camara v. Enage) • Purpose: The purpose of the bail is to insure the attendance of the accused. It has neither punitive nor revenue raising purpose. (Almeda v. Villaluz) • Bail may be given in the form of corporate surety, property bond12, cash deposit or recognizance13. (Rule 114, Section 1) 12

A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. (Rule 114, Section 11) 13 Recognizance is an obligation of record entered into before a court guaranteeing the appearance of the accused for trial. It is in the nature of a

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Ratio: (1) To honor the presumption of innocence until his guilt is proven beyond reasonable doubt; (2) To enable him to prepare his defense without being subject to punishment prior to conviction. (Cortes v. Catral) • As suggested by the word “conviction”, the constitutional provision on bail applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. (Gov’t of US v. Purganan) Implicit limitations on the right to bail (1) The person claiming the right must be in actual detention or custody of law; (2) The constitutional right is available only in criminal cases. o As suggested by the word “conviction”, the constitutional provision on bail applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts doe not render judgments of conviction or acquittal. (Gov’t of US v. Purganan): The following are exceptions to this rule: (1) applicant is not flight risk (2) there exists a special humanitarian reason. When may be invoked; by whom • Any person under detention even if no formal charges have yet been filed can invoke the right bail. (Tehankee v. Rovira) contract between the surety and the State. (People v. Abner)

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It would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed. (Cortes v. Judge Catral)

Who are not entitled to bail: (1) Persons charged with offenses punishable by Reclusion Perpetua, life imprisonment or death when evidence of guilt is strong. (Section 13 of Article III, Section 7, Rule 114) (2) Persons charged with a crime punishable by reclusion perpetua and is convicted by the trial court and sentenced to suffer such penalty. (People v. Fortes) (3) Persons who are members of the AFP facing court martial (Comendador v. De Villa) (4) People v. Reyes: Where a person has been convicted by the trial court and sentenced to the penalty of imprisonment of 22 years, the penalty imposed is classified as reclusion perpetua, and while the case is on appeal, bail shall be denied because the offense is punishable by reclusion perpetua and the evidence of guilt is strong. (5) Obosa v. CA: The principle denying bail to an accused charged with a capital offense where evidence of guilt is strong, applies with equal force to the appellant who, though convicted of an offense not punishable by death, reclusion perpetua or life imprisonment, was nevertheless originally charged with a capital offense. Reason: o The accused on appeal may still be convicted of the original capital offense charged and that thus the risk attendant to jumping bail still subsists. o The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction, it would generally speaking, be absurd to admit to bail.

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ARIS S. MANGUERA o Probability of ultimate punishment is so enhanced by the conviction, that the accused is much more likely to attempt to escape if liberated on bail than before conviction. (Justice Fransisco) Reason for denial of bail for capital offenses when the evidence of guilt is strong • There is nothing unreasonable in denying this right to one charged with a capital offense, when the evidence of guilt is strong, as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence, an everpresent threat, temptation to flee the jurisdiction would be too great to be resisted. (Justice Fernando, Camara v. Enage) Bail Bail as a matter of right (1) Persons in custody before or after conviction by MTC, MeTC and MCTC of an offense not punishable by death, reclusion perpetua or life imprisonment

Bail, when discretionary (1) Persons convicted by RTC of an offense not punishable by death, reclusion perpetua or life imprisonment (Sec. 5, Rule 114)

When bail shall be denied (1) Persons not entitled to bail [See enumeration above]

(2) Persons in custody before conviction by RTC of an offense not punishable by death, reclusion perpetua or life imprisonment

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(Sec 4, Rule 114) Duties of the judge in case an application for bail is filed by an accused charged with a capital offense: (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114) (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion. (Section 7 and 8, Rule 114) (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution. (Baylon v. Sison) (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, Rule 114) Otherwise, petition should be denied. (Basco v. Rapatalo) Strong Evidence of guilt for purposes of denying bail • This means “proof evident” or “presumption great.” • “Evident proof” or “proof evident” means clear, strong evidence which leads a well-guarded dispassionate judgment to the conclusion that the offense has been committed as charged, the accused is the guilty agent, and that he will probably be punished capitally if the law is administered. • “Presumption great” exists when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excludes all reasonable probability of any other conclusion.

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ARIS S. MANGUERA

•

In other words, the test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or great presumption of guilt.

Hearing • Whether the motion is resolved in summary proceedings or in the course of regular trial, the prosecution must be given an opportunity to present all the evidence that it may wish to introduce on the probable guilt of the accused before the court resolves the motion for bail. • Even if the prosecution refuses to adduce evidence, or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing, or ask searching and clarificatory questions from which it may infer the strength of the evidence of guilt, or lack of it, against the accused (Baylon v. Judge Sison) Factors/Guidelines to be considered in fixing amount of bail: (1) Financial ability of the accused to give bail; (2) Nature and circumstances of the offense; (3) Penalty for the offense charged; (4) Character and reputation of the accused; (5) Age and health of the accused; (6) Weight of the evidence against the accused; (7) Probability of the accused appearing at the trial; (8) Forfeiture of other bail; (9) Fact that the accused was a fugitive from justice when arrested; (10)Pendency of other cases where the accused is on bail •

Q: May a judge require strictly that a cash bond and disallow petitioner’s attempt to post a surety bond for his provisional liberty? • A: No. Such a requirement is abhorrent to the nature of bail. The sole purpose of bail is to insure attendance of the

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accused. It has neither punitive or revenue purpose. (Almeda v. Villaluz) • The criterion whether the offense charged is capital is the penalty provided by the law regardless of the attendant circumstances. (People v. IAC) • Court order. The court’s order granting or refusing bail must contain a summary of the evidence for the prosecution (People v. Judge Cabral) • A court, as a necessary consequence of the nature of a bailbond, may prevent a person admitted to bail from leaving the country. A bail is intended to make a person available any time he is needed by the court. (Manotoc v. CA) Waiver of the right to bail (1) Appellant escapes from prison or confinement (2) Appellant jumps bail (3) Appellant flees to another country during the pendency of the appeal. (4) Failure of the accused to call the attention of the trial court to the unresolved petition for bail is deemed a waiver of the right to bail. Furthermore, the conviction of the accused renders the petition for bail moot and academic. (People v. Manes, 1999) Right against excessive bail • Having an excessive bail amounts to a denial of bail.

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Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. Section 14 Section 14(1) Right to Process

Section 14(2) Due

(1)Presumption of innocence (2) Right to be heard (3) Right to counsel (4) Right to be informed of the nature and cause of the accusation (5) Right to speedy, impartial and public trial (6) Right to meet witness face to face (7) Right to compulsory process

Section 14(2) Trial in Absencia

Section 14(1) Due process in criminal cases • This means that the procedure established by law must be followed. (Bernas Primer)

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Ingredients (Found in Nachura Outline) (1) The accused has been heard in court of competent jurisdiction; (2) The accused is proceeded against under the orderly processes of law; (3) The accused has been given notice and the opportunity to be heard; and (4) The judgment rendered was within the authority of a constitutional law. (Mejia v. Pamaran) Delay • Failure of the Ombudsman to resolve a complaint that had been pending for six years clearly violates the constitutional command for the Ombudsman to act promptly on complaints and the right of the petitioner to due process of law and to speedy trial. In such event, the aggrieved party is entitled to the dismissal of the complaint. (Roque v. Ombudsman) • Unreasonable delay in the termination of the preliminary investigation by the Tanodbayan violated the due process clause. (Tatad v. Sandiganbayan) • However, where the delay is caused by the complexity of the issues involved (Santiago v. Garchitorena) or caused by the acts of petitioner himself, there is no violation of due process of law. (Socrates v. Sandiganbayan)

•

Administrative agencies may not impose criminal penalties since these agencies are not bound to follow rules of criminal procedure. (Scotty’s Department Store v. Micaller)

•

Military Tribunals. A military commission or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned. (Olaguer v. Military Commission)

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Where proceedings in a military court are commenced while respondent is a member of the military, the military court does not lose jurisdiction when the subject is dropped from the rolls of the military. Jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated. (Abadilla v. Ramos)

Impartial Judge • A critical competent of due process of law is hearing before an impartial and disinterested tribunal. (Webb v. People) • A judge who replaces another judge may validly render a decision although he has only partly heard the testimony of the witnesses. This rule is rooted in practical considerations. It is sufficient in such circumstances that the judge, in deciding the case, must base it completely on the cold record before him. (People v. Narajos) • The idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. (People v. Teehankee) • Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. (People v. Teehankee)

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Right to a hearing. It was held that the re-opening of a case without giving the accused the opportunity to introduce controverting evidence is an error and a denial of due process of law. (Defensor-Santiago v. Sandiganbayan)

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Plea of guilt to a capital offense. Standards implied by the due process clause whenever the accused pleads guilty to a capital offense: (1) The trial court must conduct a searching inquiry into the voluntariness of the plea and the full comprehension of the consequences thereof; (2) The prosecution shall be required to present evidence to prove the guilt of the accused and the precise degree of his culpability; and

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ARIS S. MANGUERA (3) The accused must be asked if he desires to present evidence on his behalf and allow him to do so, if he so desires. (People v. Sta. Rosa, 2001) • It was held that the petitioner (mother of the victim in a rape with homicide case) was denied due process when the public prosecutor, who was under legal obligation to pursue the action on her behalf, reneged on the obligation and refused to perform his sworn duty. (Merciales v. CA, 2002) Section 14(2) Presumption of Innocence • Every circumstance favoring the innocence of the accused must be taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment (People v. Austria) • Principal Effect of presumption: Its effect is that no person shall be convicted unless the prosecution has proved him guilty beyond reasonable doubt. • No inference of guilt may be drawn against an accused for his failure to make a statement of any sort. • The provision of an election statute which disqualifies from running for public office any person who has committed any act of disloyalty to the State “provided that the filing of charges for the commission of such crimes before a civil court or military tribunal shall be prima facie evidence of such fact,” was declared unconstitutional for being violative of the presumption of innocence clause. (Although filing of charges is only prima facie evidence and may be rebutted, the proximity of elections and consequent risk of not having time to rebut the prima facie evidence already in effect make him suffer as though guilty even before trial.) (Dumalao v. Comelec)

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• •

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Against another presumption. The constitutional presumption may be overcome by contrary presumptions based on the experience of human conduct. The legislature may provide prima facie evidence of guilt and shift the burden of proof provided that there be a rational connection between the facts provided and the ultimate fact presumed so that inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience. (Banares v. CA citing People v. Mingoa) However, it was held that the prima facie presumption of accountability does not shatter the presumption of innocence. (Agullo v. Sandiganbayan, 2001) The presumption that the possessor of a forged or falsified document is the author of the forgery or falsification will not prevail over the presumption of innocence. (Monteverde v. People, 2002)

•

Preventive Suspension pendente lite does not violate the right to be presumed innocent because preventive suspension is not a penalty. (Gonzaga v. Sandiganbayan)

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Equipoise Rule. The equipoise rule invoked by the petitioner is applicable only where the evidence adduced by the parties are evenly balanced, in which case the constitutional presumption of innocence should tilt the scales in favor of the accused. (Corpus v. People) Who may invoke. The right to presumption of innocence can be invoked only by an individual accused of a criminal offense; a corporate entity has no personality to invoke the same. (Feeder International Line v. CA)

•

Right to be Heard • This right is already implicit in due process. Elements of right to be heard:

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ARIS S. MANGUERA (1) The right to be present at the trial (2) The right to counsel (3) The right to an impartial judge (4) The right of confrontation (5) The right to compulsory process

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Scope: From arraignment to promulgation of sentence. BUT after arraingment, trial may proceed even in the absence of the accused IF failure to appear is unjustifiable and he has been duly notified.

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Waiver. The right may be waived provided that after arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or if he unqualifiedly admits in open court after his arraignment that he is the person named as the defendant in the case on trial. • When the accused waives his appearance in further proceedings and says “he may be identified by witnesses even in his absence”, he may still be compelled to appear for purposes of identification. In order for him to be excused completely from appearance it is not enough that he allows himself to be identified by the witnesses in his absence. He must further unqualifiedly admit that every time a witness mentions his name by which he is known, the witness is to be understood as referring to him. (Carredo v. People) Trial in Absencia Requisites for trial in absentia: (1) The accused has already been arraigned (2) He has been duly notified of the trial (3) His failure to appear is unjustifiable. • Reason: To speed up the disposition of cases. (People v. Salas) • The text of the Constitution makes arraignment a prerequisite for trial in absentia. The reason for this is that it is

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during arraignment that the accused is informed of the nature and cause of the accusation against him. (Borja v. Mendoza) • The provision on trial in absentia does not preclude forfeiture of bail bond under the Rules of Court for one who jumps bail. (People v. Judge Prieto) • Presumption. Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. (People v. Jara) Right to Counsel • Right to counsel means an efficient and truly decisive legal assistance, and not simply a perfunctory representation. (People v. Bernas) • Right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned. • PAO lawyer is an independent counsel. (Estrada v. Badoy, 2003) • Ratio: Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. (CJ Moran in People v. Holgado) • According to Nachura reviewer “Right to counsel during the trial is not subject to waiver.” (Flores v. Ruiz, 90 SCRA 428). But, I think this is wrong. The Green Book of Bernas says “Like any other rights, the right to counsel may be waived.” (page 503 citing US v. Go-Leng, US v. Kilayko and People v. Sim Ben) Also the same case of People v. Sim Ben (98 Phil 138 (1955)) was assigned by Atty Jack Jimenez. • Right to counsel may be waived. It need not be in writing. Waiver may be oral. Waiver may be made even without the presence of counsel. (People v. Sim Ben)

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ARIS S. MANGUERA

•

•

•

•

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Failure of the record to disclose affirmatively that the trial court advised the accused of his right to counsel is not sufficient ground to reverse conviction. The trial court must be presumed to have complied with the procedure prescribed by law for the hearing and the trial cases, and such presumption can be overcome only by an affirmative showing to the contrary. (People v. Agbayani, 1998) However, the Court admonished all trial courts to have their compliance with their pre-arraignment duties put on record. The decision of conviction was set aside where it appeared that there was merely a pro forma appointment of a counsel de officio who did not exert his best efforts for the protection of the accused. (People v. Magsi) Where the accused manifested that he had lost confidence in his counsel de officio and wanted to retain a counsel de parte, but the court still appointed the same lawyer as counsel de officio, and proceeded with the trial, there was deemed a denial of this constitutional guarantee (People v. Manlusing) There is no denial of the right to counsel where the counsel de oficio was appointed during the absence of the accused’s counsel de parte pursuant to the court’s desire to finish the case as early as possible under the continuous trial system. (Amion v. Judge Chiogson) Where after conviction, accused discovers that the “lawyer” who defended her was not a member of the bar, she may be granted a new trial. (People v. Santocildes) A promise to recommend a specific penalty such as the fine does not render the sentence void if the Court ignores the recommendation and metes out to the defendant a penalty which is provided by law. (People v. Sim Ben) Even in times of emergency, a person may not be denied the right to confer with counsel. (Diokno v. Enrile) A client is bound by the mistakes of his lawyer (Andrada v. People) except when the negligence or incompetence of

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counsel is deemed so gross as to have prejudiced the constitutional right of the accused to be heard. An examination of related provisions in the Constitution concerning the right to counsel, will show that the “preference in the choice of counsel” pertains more aptly and specifically to a person under investigation rather than one who is the accused in a criminal prosecution. (Amion v. Judge Chiongson)

Pre-arraignment duties of a trial judge: (1) To inform the accused that he has the right to have his own counsel before being arraigned; (2) To ask accused whether he desires the aid of counsel; (3) If he so desires to procure the services of counsel, the court must grant him reasonable time to do so; (4) If he desires to have counsel but is unable to employ one, the court must assign counsel de oficio to defend him. (People v. Agbayani, Rule 116, Section 6) Right to be informed Purpose and Scope of the right to be informed: (1) To furnish the accused with such a description of the charge against him as will enable him to make his defense; (2) To avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; (3) To inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. In order that that this requirement may be satisfied, facts must be stated, not conclusions of law. Complaint must contain specific allegation of every fact and circumstance necessary to constitute the crime charged. (US v. Karelsen) Contents of a criminal information: (1) Name of the accused

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ARIS S. MANGUERA (2) Designation given to the offense by the statute; (3) Statement of the acts or omissions so complained of as constituting the offense; (4) Name of the offended party; (5) Approximate time and date of the commission of the offense; and (6) Place where the offense had been committed. (Rule 110)

•

The real nature of the crime is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated but from the recital of facts. (Matilde v. Jobson) The right is not violated where the allegations in the information clearly sets the essential elements in the crime charged. (Abaca v. CA) • The information need not allege the precise time of the commission of an offense, unless time is an essential element of the crime charged. (People v. Bugayong) • An accused cannot be convicted of rape where the evidence shows that the rape was committed on some other date different from the date indicated in the information. (People v. Cruz) • Section 11, rule 110 of the Rules of Court requires that the time of the commission of the offense must be alleged as near to the actual date as the information or complaint will permit. Otherwise, his right to be informed would be violated. However, the accused must raise the issue of defective information in a motion to quash or in a motion for a bill of particulars. (People v. Razonable, 2000) • Qualifying circumstances must be alleged. • Void for vagueness. The accused is also denied the right to be informed of the charge against him, and to due process as well, where the statue itself is couched in such indefinite language that it is not possible for men of ordinary

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intelligence to determine therefrom what acts or omissions are punished. (See Estrada v. Sandiganbayan)

ARIS S. MANGUERA

•

Right to Speedy Trial

The delay contemplated by the Constitution is unreasonable delay. One begins to count the delay of the trial only after filing of the information. (Martin v. Ver) (But note that the new Constitution guarantees not just “speedy trial” but “speedy disposition of cases” a broader concept than “speedy trial.”

Speedy Trial • A trial free from vexatious, capricious and oppressive delays (Flores v. People) is intended to relieve the accused of needless anxieties and inconveniences before sentence is pronounced upon him. • This is consonant with Section 16 of the Bill of Rights providing that “all persons shall have the right to a speedy disposition of cases before all judicial, quasi-judicial or administrative bodies.”

Objectives: • It is intended to relieve the accused of needless anxieties and inconveniences before sentence is pronounced upon him. • Justice and fairness, not speed, are the objectives. (See Amberti v. CA, Acevedo v. Sarmiento, Martin v. Ver)

•

Concept is relative. The concept of speedy trial is necessarily relative and determination of whether the right has been violated must be based on the balancing of various factors. Length of delay is certainly a factor to consider; but other factors must also be considered such as the reason for the delay, the effort of the defendant to assert his right, and the prejudice caused the defendant.

•

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What offends the right. In determining the right of the accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of scheduled hearings of the case. What offends the right are unjustified postponements which prolong trial for an unreasonable length of time. (People v. Tampal) The rifht to speedy trial is violated only when the proceeding is attended by vexatious, capricious and oppressive delays or when without cause or justifiable motive, a long period of time is allowed to elapse without the party having the case tried. (Dela Rosa v. CA)

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•

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Dismissal. Accused is entitled to dismissal, equivalent to acquittal, if trial is unreasonably delayed. Where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restriained of his liberty, by habeas corpus to obtain freedom. (Conde v. Rivera) Effect of dismissal. Dismissal for violation of the right to speedy trial is equivalent to acquittal and is a bar to another prosecution for the same offense.

RA 8493 • The Speedy Trial Act provides, among others, that the arraignment of an accused shall be held within 30 days from filing of the information, or from the date the accused appeared before the justice, judge or court in which the charge is pending whichever date last occurs. Thereafter, where a plea of not guilty is entered, the accused shall have at least 15 days to prepare for trial. Trial shall commence within 30 days from arraignment as fixed by the court. In no

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case shall the entire trial period exceed 180 days form the first day of trial, except as otherwise authorized by the Chief Justice of the Supreme Court. Right to an impartial trial • The original constitution required the trial of the accused to be only public and speedy. The new Bill of Rights provides that it also be impartial as an added guaranty of due process of law (Cruz) • It has been remarked that this requirement will call for no less that “the cold neutrality of an impartial judge,” to insure that justice is done to the defendant. (Gutierrez v. Santos) Part of the rule that the judge must not only be impartial but must appear to be impartial. (Fernandez v. Presbitero) • Examination of Witnesses. It is not only the right but oftduty of a trial judge to examine witnesses when it appears necessary for the elucidation of the record. (People v. Manalo) Right to a public trial • A trial is public when attendance is open to all irrespective of relationship to defendants. However, when the evidence to be presented may be characterized as “offensive to decency or public morals,” the proceeding may be limited to friends, relatives, and counsel. (Garcia v. Domingo) • Exceptions (1) Sensitive Rape cases (2) Military Secrets (3) National Security Issues • Justice Black: The requirement is satisfied if the accused could “have his friends, relatives and counsel present no matter with what offense ha may be charged.” (In re Oliver mentioned in Garcia v. Domingo)

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ARIS S. MANGUERA

•

Purpose: To safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. (Garcia v. Domingo) • A public trial is not synonymous with a publicized trial; it only implies that the court doors must be open to those who wish to come, sit in available seats, conduct themselves with decorum and observe the trial process. (Re: Request for Live TV Coverage of the Trial of Estrada, 2001) Right to meet witness face to face • Ratio: To prevent conviction of the accused upon deposition or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination.(US v. Javier) Normally, there is less propensity to lie on the part of the witness when actually confronted by the accused that when the testimony is given behind his back. Testimony in open court under oath, thus deterring lying because of threat of perjury. • Purpose: (1) To afford the accused an opportunity to test the testimony of the witness by cross-examination; and (2) To allow the judge to observe the deportation of the witness. (People v. Ortiz-Miyake) • When available: It is a right available during trial which begins only upon arraignment. (Dequito v. Arellano) • Note: From Rule 112, it is clear that unlike in the preliminary investigation proper, an accused is not entitled as a matter of right to be present during the preliminary examination nor to cross-examine the witness presented against him before his arrest, the purpose of said examination being merely to determine whether there is sufficient reason to issue a warrant of arrest. The provision commanding the

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determination of probable cause prior to the issuance of a warrant of arrest, requires no notice to an accused. A preliminary examination is generally a proceeding ex parte in which the person charged has no right to participate or to be present. (Marinas v. Siochi, 1981) • Rule: The testimony of a witness who has not submitted himself to cross-examination is not admissible in evidence. The affidavits of witnesses who are not presented during the trial—and thus are not subjected to cross-examination—are inadmissible because they are hearsay. (People v. Quidato, 1998) • Exceptions: (1) Admissibility of Dying declarations (2) Trial in Absentia (3) With respect to child testimony • Note also that that the right to cross-examine may be waived. • Also, where it is impossible to produce a witness who has already testified in a previous proceeding, his previous testimony is made admissible as a distinct piece of evidence. (See People v. Ortiz-Miyake) Dying Declarations • Rationale: When a person is at the point of death, every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth, and therefore, the statements under such circumstances deserve weight. (People v. Bacunawa) • Elements: (1) That the declaration is one made by a dying person; (2) That the declaration was made by said dying person under a consciousness of his imminent death; (3) That the declaration refers to the cause and circumstances surrounding the death of the declarant and not of anyone else;

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ARIS S. MANGUERA (4) That the declaration is offered in a case where the declarant’s death is subject of inquiry. People v. Matito, 2004; Rule 130, Sec. 37) •

Incomplete Cross-examination (1) Where the right to cross-examination is lost wholly or in part through the fault of cross-examiner, then the testimony on direct may be recognized. (2) When the cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness then the uncompleted testimony becomes incompetent and inadmissible. (3) The direct testimony of the witness who dies before the completion of the cross-examination can thus be stricken only insofar as not covered by the cross-examination. (People v. Seneris)

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No Cross. Where death prevent cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or witness, it seems harsh measure to strike out all that has obtained in the direct examination. The prudent alternative should have been to admit the direct examination so far as the loss of cross-examination could have been shown to be not in that instance a material loss. And more compelling so, in the case where it has become evident that the adverse party was afforded a reasonable chance for cross-examination but through his own fault to cross-examine the witness. (People v. Narca)

Right to Compulsory Process • The 1935 version speaks of the right to compulsory process “to secure the attendance of witness in his behalf”, whereas, the 1973 and 1987 versions add the right “to have compulsory process to secure… the production of evidence in his behalf.

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The accused is entitled to the issuance of subpoena and subpoena duces tecum for the purpose of compelling the attendance of witnesses and the production of evidence that he may need for his defense. (Cruz) • He is also entitled to employ the various methods of discovery allowed under the Rules of Court, like letters rogatory and written interrogatories. (Cruz) • Failure to obey the process is punishable as contempt of court; if necessary, the witness may even be arrested so he can give the needed evidence. (See People v. Bardaje) • Since a preliminary investigation can result in arrest and therefore in a deprivation of liberty, the accused should not be denied access to evidence favorable to him, in this case an earlier version of an affidavit made by witness for the prosecution. (People v. de Leon) • Subpoena. It is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted under the laws of the Philippines, or for the taking of his deposition. (Caamic v. Galapon) •

Requisites for the attendance of witnesses and the production of evidence: (1) The evidence is really material; (2) Accused is not guilty of neglect in previously obtaining the production of such evidence; (3) The evidence will be available at the time desired; (4) No similar evidence can be obtained. (People v. Chua, 2001) • The right to compulsory process must be invoked during the trial. Failure to do so constitutes a waiver that cannot be rectified or undone on appeal. (US v. Garcia)

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Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when public safety requires it. Habeas corpus

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Writ of Habeas Corpus. It is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention; to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf. (Hence, an essential requisite for the availability of the writ is actual deprivation of personal liberty.)

•

Other instances where writ is applicable: (1) Where as a consequence of judicial proceeding, there has been deprivation of a constitutional right resulting in the restraint of the person; (2) Where the court has no jurisdiction to impose the sentence; (3) Where an excessive penalty has been imposed, since such sentence is void as to the excess. (Feria v. CA, 2000) (4) It may also extend to cases by which rightful custody of any person is withheld from the person entitled thereto. (Tijing v. CA, 2001) (5) The writ may issue on the ground that moral restraint was being exerted by the employer to prevent the housemaid from leaving. (Caunca v. Salazar) (6) A person detained during the Japanese occupation for an offense of political complexion could demand his release after the legitimate government was restored. (Alcantara v. Dir. Of Prisons)

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•

Privilege. The right to have an immediate determination of the legality of the deprivation of physical liberty. • Suspension. The writ is never suspended. It always issues as a matter of course. What is suspended is the privilege of the writ, i.e., once the officer making the return shows the court that the person detained is being detained for an offense covered by the suspension, the court may not enquire any further. • It is the President who may suspend the privilege. • Suspension of the privilege does not suspend the right to bail. • “Release” renders a petition moot and academic. Such release must be one which is free form involuntary restraints. (Moncupa v. Enrile) •

Requisites for Suspension: (1) The existence of actual invasion or rebellion; (2) Public safety requires the suspension.

•

Limitations of Power to Suspend: Article III, Section 18

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Non-compliance. There is need to comply with the writ; disobedience thereof constitutes contempt of court. (Contado v. Tan) Q: What is writ of amparo? A: “Amparo” comes from Spanish verb “amparar” meaning to protect. Justice Azcuna defines it as “a special constitutional writ to protect or enforce a constitutional right (other than physical liberty).” Q: Does writ of amparo have a place in our legal firmament? A: Yes, when the Constitution allowed the SC to promulgate rules to protect constitutional rights. (Article VIII, Section 5(5))

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Q: How does it work in the context of disappearances? A: Panganiban explained that the writ of amparo would compel the state agents to look for the missing person. And if the court were to find the officials did not exert enough effort in finding the person, it could hold them liable.

•

The Court has already issued writ of amparo to several persons. The first writ was issued for UP students Sherlyn Cadapan and Karen Empeno and farmer Manuel Merino. The second was issued for farmer brothers Raymond and Reynaldo Manalo, who sought the Court’s protective custody and to stop their arrest.

•

The writ of amparo, has been described by Chief Justice Puno as “the greatest legal weapon to protect the constitutional rights of our people.” The Rule, which took effect last October 24, is the most potent remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission by public officials or employees and by private individuals or entities. The Rule was promulgated pursuant to the recommendations from the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances called last July by the Chief Justice. (Min. Res., GR No. 180054, Rubrico v. President Arroyo, October 31, 2007)

Rubrico v. President Arroyo, 180054October 31, 2007.14 14

Min.

Res.,

GR

The Supreme Court, upon the authority of Chief Justice Reynato S. Puno on October 31, issued a writ of amparo to protect the 63-year old urban poor leader who had been allegedly abducted, illegally detained, and subsequently released by military agents last April. In a three-page resolution, the Court En Banc ordered the respondents, including President Arroyo, to make a return of the writ before the Court of Appeals by November 9. It also directed the CA to hear the petition of Ugnayan ng Maralita Para sa Gawa at Adhikain (UMAGA) Federation Chairperson Lourdes D. Rubrico, et al. on November 13, 2007 at 2 p.m. and decide the case within 10 days after its submission for decision. “You, respondents President Gloria Macapagal-Arroyo, (Armed Forces of the Philippines Chief of Staff) Gen. Hermogenes Esperon, (Philippine National Police Director) Gen. Avelino Razon, Major Darwin Sy a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Cap. Angelo P. Cuaresma, a certain Jonathan, Police Supt. Edgar B. Roquero, and Police Senior Insp. Arsenio C. Gomez are hereby required to make a return of the writ before the Court of Appeals Ninth Division on or before 4:00 p.m. of November 9, 2007,” the Court said.

No.

In her complaint, Rubrico said that she was abducted in Dasmariñas, Cavite on April 3 this year by armed men belonging to the 301st Air Intelligence and Security Squadron and later illegally detained at the Philippine Air Force Field Station, Fernando Air Base, Lipa City, Batangas. She claimed that she was detained until last April 10, when her abductors had released her after having signed a statement that she would become their asset.

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•

Rubrico said that since her release, she and her two daughters and co-petitioners Jean Rubrico Apruebo and Mary Joy Rubrico Carbonel have been harassed by motorcycle-riding men wearing bonnets or ski masks, adding that they were subsequently forced to leave their house in Bagong Bayan, Dasmariñas, Cavite, fearing for their lives. (Supreme Court Website)

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Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. Speedy Disposition of Cases • Speedy trial in Section 14 covers only the trial phases of criminal cases, whereas section 16 covers all phases of any judicial, quasi-judicial or administrative proceedings. • Concept: It is a relative term and must be a flexible concept. CASES: PEOPLE vs. SESBRENO The 90 day period applies only after the case is submitted for decision, not from the start of the trial. BINAY vs. SANDIGANBAYAN The right is deemed violated only when the proceedings is attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. GONZALES vs. SANDIGANBAYAN Equally applicable is the balancing test used to determine whether a defendant has been denied his right to a speedy trial, or a speedy disposition of a case for that matter, in which the conduct of both the prosecution and the defendant are weighed and factors as length of the delay, reason for the delay, the defendant’s assertion or non-assertion of his right, and prejudice to the defendant resulting from the delay, are considered.

ARIS S. MANGUERA TY-DAZO vs. SANDIGANBAYAN In the determination of whether or not that right has been violated, the factors that may be considered and balanced are: The length of the delay, the reasons for the delay, the assertion or failure to assert such right by the accused, and the prejudiced caused by the delay. Mere Mathematical reckoning of the time involved would not be sufficient. Certain fact and circumstances peculiar to each cases must also be taken into consideration. DOMINGO vs. SANDIGANBAYAN If the delay, if any, was actually more beneficial, rather than prejudicial, to petitioner in that it was intended to afford him the opportunity to refute the charges made against him, there is no violation of right. CASTILLO vs. SANDIGANBAYAN While petitioners certainly have the right to a speedy disposition of their case, the structural reorganization of the prosecutorial agencies, the procedural changes brought about by the Zaldivar case as well as the Sandiganbayan's heavy caseload certainly are valid reasons for the delay in the disposition of petitioners' case. For those reasons, the delay certainly cannot be considered as vexatious, capricious and oppressive. LOPEZ vs. OFFICE OF THE OMBUDSMAN The constitutional right to speedy trial is not limited to accused in criminal proceedings but extends to all parties in all cases including civil and administrative cases and all proceeding including judicial and quasi judicial. PEOPLE vs. MONJE To order the remand of the criminal case to the court to enable the prosecution to prevent additional evidence would violate the constitutional right to speedy determination of case.

CERVANTES vs. SANDIGANBAYAN Long delay (three years) in the termination of the preliminary investigation by the Tanodbayan" was violative of the Constitutional right of "speedy disposition" of cases because "political motivations played a vital role in activating and propelling the prosecutorial process in this case.

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Section 17. No person shall be compelled to be a witness against himself. Right against self-incrimination Purpose: The guarantee is established in the grounds of: (1) Public Policy (2) Humanity Of public policy, because, if the party were required to testify, it would place the witness under the strongest temptation to commit perjury. Of humanity, because it would prevent the extorting of confession by duress. (US v. Navarro) Scope. (1) Testimonial Compulsion (2) Application of intelligence and Attention (Handwriting) (3) Private Books of Private individuals • The kernel of the privilege was the prohibition of “testimonial15 compulsion.” (Alih v. Castro) • Handwriting. A person may not be compelled to produce a sample of his handwriting to be used as evidence against him. Writing is something more than moving the body, or the hand, or the fingers; writing is not a purely mechanical act, because it requires the application of the intelligence and attention. For the purpose of the constitutional privilege, there is a similarity between one who is compelled to produce a document, and one who is compelled to furnish a specimen

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TWO TYPES OF EVIDENCES Real Evidence – Evidence furnished by things themselves on view or inspection as distinguished from a description of them by the mouth of the witness Testimonial evidence – any form of communication which requires the application of intelligence elicited from a witness, it may be oral or written.

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of his handwriting, for in both cases, the witness is required to furnish evidence against himself. (Beltran v. Samson) Private Books of Private Individuals. Compulsory production of private books and papers of the owner is compelling him to be a witness against himself. (Boyd v. US) Exception: The privilege which exists as to private papers cannot be maintained in relation to “records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. (Shapiro v. US)

Not Covered by the guaranty (1) Inclusion of body in evidence (2) Object Evidence (3) Records required by law

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What is prohibited by the constitutional guarantee is the use of physical and moral compulsion to extort communication from the witness, not an inclusion of his body in evidence, when it may be material. o A person may be compelled to submit to fingerprinting, photographing and paraffin testing, as there is no testimonial compulsion involved. o Substance emitting from the body of the defendant was received as evidence in a prosecution for acts of lasciviousness (US v. Tan-Teng) o Morphine forced out of the mouth of the accused was received. (US v. Ong Siu Hong) o An order by the judge for the witness to put on a pair of pants for size was allowed. (People v. Otadora) o Taking of pictures of an accused even without the assistance of counsel, being purely mechanical act, is not a violation of his constitutional right against selfincrimination. (People v. Gallarde, 2000)

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o Hair samples taken from the accused may be o o

admitted in evidence. (People v. Rondero, 1999) DNA. Evidence involving DNA is likewise admissible. (People v. Yatar, 2004) Voice. (Jack)

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The guaranty does not apply to a case where evidence sought to be excluded is not an incriminating statement but an object evidence. (People v. Malimit)

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When is question incriminating. A question would have tendency to incriminate, even if it tends to elicit only one of the elements of a crime. The right thus includes a right to refuse to testify to a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by a witness. (Isabela Sugar Co. v. Macadaeg)

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Who are protected. Only natural persons are protected. Thus, a corporation may be compelled to submit to the visitorial powers of the State even if this will result in disclosure of criminal acts of the corporation. (Hale v. Henkel)

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When may be asserted: Accused in a criminal case: May assert the right from the moment he is asked to testify Respondent in administrative proceeding where the respondent may be subjected to sanctions of a penal character: May assert the right from the moment he is asked to testify. (Cabal v. Kapunan) Witness who is not an accused: May assert the right when the incriminating question is asked. Respondent in a civil case: May assert the right when the incriminating question is asked.

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Where may be asserted. In any judicial or administrative or in any official government inquiry. (Bernas) Including legislative investigations. (Nachura)

Exceptions: (1) Waiver (2) Immunity (3) Amnesty

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Waiver. The right against self-incrimination may be waived either directly or by failure to invoke it, provided that waiver is certain and unequivocal and intelligently made. Thus, the accused who takes the witness stand voluntarily and offers testimony in his behalf may be cross-examined and asked incriminating questions on any matter he testified to on direct examination.

Immunity (1) Transactional Immunity o Such as that which may be granted by the CHR to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority, which makes the witness immune from criminal prosecution for an offense to which his compelled testimony relates. (Article XIII, Section 18(8)) (2) Use and fruit Immunity o Prohibits the use of the witness’ compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. (Galman v. Pamaran)

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Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted. Section 18(1) Right against detention solely by reason of his political beliefs and aspirations

(6) Return to work order in industries affected with public interest. (See Manggagawa sa Kahoy v. Gotamco Sawmills) (7) Compelling the stenographer to transcribe his court stenographic notes in the exercise of judicial power. (See Aclaracion v. Gatmaitan)

Section 18(2) Right against involuntary Servitude

Involuntary Servitude • It is every condition of enforced or compulsory service of one another no matter under what form such servitude may be disguised. (Rubi v. Provincial Board) • The concept includes slavery, which is defined as the “civil relation in which one man has absolute power over the life, fortune and liberty of another.” (Blacks Law Dictionary) • The concept includes peonage or “a condition of enforced servitude by which the servitor is retrained of his liberty and compelled to labor in liquidation of some debt or obligation, real or pretended, against his will.” (Peonage Case) • See Art. 272 of the RPC Exceptions to Involuntary Servitude: (1) Punishment for a crime whereof the party shall have been duly convicted. (Article III, Section 18(2)) (2) In the interest of national defense, all citizens may be compelled by law to render personal military or civil service. (Article II, Section 4) (3) Naval (merchant marine) enlistment (See Robertson v. Baldwin) (4) Posse Comitatus [Power of the County] (See US v. Pompeya) (5) Patria Potestas [Parental Authority] (Art. 209 FC)

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Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted, neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) Employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. Section 19 (1) Right against imposition of excessive fines Right against infliction of cruel, degrading or inhuman punishment Abolition of death penalty***

Section 19(2) Right against physical, psychological, or degrading punishment. Right against the use of substandard or inadequate penal facilities under subhuman conditions.

Section 19 (1) Excessive fines • A fine is excessive when under the circumstance it is disproportionate to the offense. Cruel, Degrading, Inhuman • Mere fines and imprisonment are not violative of the provision. • The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. (People v. Dionisio) • The death penalty per se is not a cruel or unusual punishment (Harden v. Director of Prisons) It is an exercise of the State’s power to security against the threatened and

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actual evil. (People v. Echegaray) However, the circumstances under which a specific law may allow the death penalty may make it cruel and unsual under such law. (See Furman v. Georgia) • To be violative of the provision, the punishment must be flagrantly and plainly oppressive; wholly disproportionate to the nature of the offense as to shock the moral sense of the community. (People v. Estoista) o However, it has been held that a penalty not normally proportionate to the offense may be imposed in some instances without violation of the Constitution. This would be allowed, for example, where the offense has become so rampant as to require the adoption of more effective deterrent, like the punishment of the stealing of jeeps or coconuts in the RPC as qualified theft. Cruel • Cruelty must be inherent in the penalty, as whipping the post. • Torture is a cruel punishment because it involves a deliberate design to increase the suffering of the prisoner in a manner so flagrant and oppressive as to revolt the moral sense of the community. • But where an unforeseeable accident adds to the suffering of the convict, a penalty otherwise valid does not become cruel or unusual. (Louisiana v. Resweber) Degrading and Inhuman • Where a prostitute is required to go naked in public in expiation for her crime or a thief to wear a stigmatizing emblem of his calling, the punishment is certainly degrading and inhuman. PEOPLE vs. PUDA Guidelines in determining if a punishment is cruel and unusual:

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1) punishment must no be so severe as to be degrading to the dignity of human beings 2) It must not be applied arbitrarily 3) It must not be unacceptable to contemporary society 4) It must not be excessive e.g. it must serve a penal purpose more effectively than a less severe punishment would. Factors to consider if a penalty is “cruel” 1) the nature of the penalty 2) the nature of the penalty as against penalties of other crimes of the same nature 3) the act itself.

Death Penalty • The 1987 Constitution abolished the death penalty. However, it does not prohibit the legislature from from restoring it for “compelling reasons involving heinous crimes.” Conversely, Congress may also abolish the death penalty even after it has reimposed it. • The power of the Congress to reimpose the death penalty is not subsumed under its plenary legislative power because it is subject to clear showing of compelling reasons involving heinous crimes. (People v. Echegaray, 1997) • Nothing in Article III, Section 19(1) imposes a requirement that for a death penalty bill to be valid, a positive manifestation in the form of higher incidence of crime should first be perceived and statistically proven following the suspension of the death penalty. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society. (People v. Echegaray) • Plea of guilt in capital offenses. When accused pleads guilty to a capital offense, the stringent constitutional standards of the due process clause require that the trial court must conduct a searching inquiry to the voluntariness of the plea, and the accused’s full comprehension of the consequences thereof. It shall also require the prosecution to

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present evidence to prove the guilt of the accused and the precise degree of culpability. The accused must also be asked if he desires to present evidence, and in the affirmative, allow him to do so. Automatic review in death penalty cases shall proceed even in the absence of the accused. Reasons why the Constitution abolished the death penalty: (1) It inflicts traumatic pain not just on the convict but also on the family, even if the penalty is not carried out; (2) There is no convincing evidence that it acts effectively as a deterrent of serious crime; (3) Penology favors reformative rather than vindictive penalties; (4) Life is too precious a gift to be placed at the discretion of human judge; (5) The law itself, by imposing so many safeguards before a death penalty is carried out, manifests a reluctance to impose the death penalty.

The constitutional exercise of the Congress’ limited power to reimpose the death penalty entails: (1) That Congress define or describe what is meant by heinous crimes; (2) That Congress specify and penalize death, only crimes that qualify as heinous in accordance with the definition or description set in the death penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case, death can only be imposed upon the attendance or circumstances duly proven in court that characterize the crime to be heinous in accordance with the definition or description set in the death penalty bill; and

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(3) That Congress, in enacting this death penalty bill be singularly motivated by “compelling reasons involving heinous crimes.” (People v. Echegaray)

A: Father B opines that it does not. He submits that the mandatory character of the death penalty for heinous crimes prescribed and defined in RA 7659 notwithstanding, the courts are not precluded, given mitigating factors or conditions duly established in evidence, (a) from declaring the crime charged to be in fact, non-heinous in character, or (b) from concluding that no compelling reasons exist to warrant the imposition of the death penalty. (page 176 of 2006 Bernas Primer; See People v. Purazo (2003))

Heinous Crimes • RA 7659 (Death Penalty Law, 1993) provides that crimes are heinous “for being grievous, odious, and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.” Q: Does the death penalty violate international law under ICCPR? A: Article 6 of the Covenant enshrines the individual’s right to life. Nevertheless, Article 6(2) of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation that it be imposed for the “most serious crimes.”

Section 19 (2)

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As worded, the provision already embodies the constitutional authorization for the Commission on Human Rights to take action in accordance with Article XIII, Section 18. Moreover, and parallel with Article III, Section 12(4), there is a command addressed to Congress to pass whatever civil or penal legislation might be required for the subject. (Bernas, Green Book p 561)

Q: Does the death penalty violate equal protection since it is most often used against the poor? A: This statement is too sweeping to merit further serious consideration. Anyone regardless of his economic status in life, may commit a crime. While there may be perceived imbalances in the imposition of penalties, there are adequate safeguards in the Constitution, the law, and procedural rules to ensure due process and equal protection of the law. (People v. Mercado, 2000) Q: If a court finds a punishment attached to a law cruel, degrading or inhuman, or a fine excessive, may a person be convicted under such law? A: No. Without a valid penalty, the law is not a penal law. Q: When Congress characterizes a crime “heinous” is sich characterization conclusive on the court?

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Section 20. No person shall be imprisoned for debt or nonpayment of a poll tax. Non-imprisonment for debt • The provision means that “No persons may be imprisoned for debt in virtue of an order in a civil proceeding, either as a substitute for satisfaction of a debt or a means of compelling satisfaction; but a person may be imprisoned as a penalty for crime arising from a contractual debt and imposed in a proper criminal proceeding.”

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History: The constitutional prohibition against imprisonment for debt is a safeguard that evolved gradually during the early part of the nineteenth century which permitted creditors to cause the incarceration of debtors who could not pay their debts. (The Roman Law, for all its durable justice and wisdom, allowed brutal quartering of the body of delinquent debtor by his creditors, in proportion to their claims. This barbaric treatment was refined somewhat in the Middle Ages, when the debtor was not killed for his defaults but merely imprisoned until he was able to pay his just obligation)

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Debt. It means any liability to pay money growing out of a contract, express or implied. (Bernas Primer) A person may be imprisoned for fraudulent debt only if: (1) the fraudulent debt constitutes a crime (e.g. estafa) and (2) the debtor has been duly convicted. Conversion of the monetary indemnity, imposed as part of a criminal penalty, into subsidiary imprisonment does not violate the prohibition of imprisonment for debt. The obligation to indemnify was not ex contractu but ex delicto. (Alejo v. Judge Inserto)

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BP 22. The gravamen of the offense in BP 22 is not the nonpayment of a debt but the putting into circulation of a worthless check. (Lozano v. Martinez)

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Poll tax. A poll tax can be understood as the cedula tax or residence tax. The Constitution does not prohibit the cedula tax but it prohibits imprisonment for non-payment of the cedula or residence tax. A poll tax may also be understood as a tax, the payment of which is made a requirement for the exercise of the right of suffrage. The imposition of a poll tax in that sense is prohibited by Article V, Section which disallows “literacy, property, or other substantive requirement” for the exercise of suffrage.

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Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Jeopardy • Jeopardy means “danger.” [