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.
Discussion:
You take note of the rights recognized there (life, liberty and property). If you have
noticed, the right to security is not included there. As the subject of the Writ of Amparo,
property is not included, but only life, liberty and security. Insofar as section 1 is
concerned, guaranteed of protection under due process of law, equal protection of laws,
and non-impairment of obligations and contracts, you have three general rights – the
right to life, liberty and property. The safeguards are due process, equal protection and
the non-impairment of obligations and contracts. Again, the authority of the state is
represented by the inherent powers namely: POLICE POWER, POWER OF EMINENT
DOMAIN, and POWER OF TAXATION.
Of course, you already know the definition of the three general rights. Of the three
general rights, you have the most recent case decided by the SC involving the oil depot
in Pandacan which is SOCIAL JUSTICE SOCIETY, et. al. vs. ATIENZA. Until now, it is still
pending with the SC because of an MR. Apparently, an ordinance was passed under the
administration of Lim allowing the Pandacan oil depot to stay and they are now asking
for the nullification of that ordinance as being unconstitutional. Now, you take note of
this case for purposes of multiple choice. This was decided on February 13, 2008. This
is a conflict between the right of life of the people in Pandacan, which is being taken by
the presence of the depot, anytime if that one gets involved in a fire, the lives of the
people there will definitely be in danger. On the other hand, there is the right to property
of the owner of the depot, because to transfer the depot to another place would entail
billions of expenditure. But the SC said that based on the hierarchy of constitutionallyprotected rights, the right to life enjoys precedence over the right to property. The
reason is obvious. Life is irreplaceable, while property is replaceable. When the state or
laws of government or the LGU’s exercise of police power clashes with few individuals’
right to property, the former would always prevail. Now, you also take note of other
cases relating to the right to property like CARLOS SUPERDRUG CO. vs. SWD. Remember
this is with reference to the grant of discount to senior citizens, as regards to medicines
up to even the extent of 20% discount. Of course, the drug companies are complaining
because that means less income for them, and thereby depriving them of the right of
property which consists of income. As against police power of the state, that is for the
promotion of the welfare of the senior citizens, between these two rights, the SC said
that when conditions so demand, as determined by the legislature, property rights must
bow to the primacy of police power, because property rights though sheltered by the due
process clause, must yield to the general welfare. Then there is (sic) vs. PAL, this is
under 565 SCRA 467. Take note that insofar as the right to property is concerned, the
protection under this particular provision is against the powers of the state interfering
with private rights, not against the powers of private individuals. In the absence of
governmental interference, the liberties guaranteed by the Constitution cannot be
invoked. The Bill of Rights is not meant to be invoked against acts of private individuals.
This is only against the exercise of the powers of the state particularly POLICE POWER,
EMINENT DOMAIN, and TAXATION. Remember the case of Serrano. So this is more a
limitation against the state as regards the enjoyment of individual rights as mentioned in
the Bill of Rights.
As I have said, in the case of Serrano, the SC said that the due process clause of the
Constitution is a limitation on governmental powers. It does not apply to the exercise of
private powers such as the termination of employment under the Labor Code. For the
matter of requirement of hearing, that cannot be demanded by an employee who was
notified by his termination of employment because after all, you cannot assert this
against a private company exercising its discretion. But the moment when a case is
filed in court on any governmental agency when there is an issue relating to labor
practices, then you have to observe due process because now it involves a power of
government as against the right that you are asserting before that governmental agency.
In other words, for example, you have been notified that your employment is terminated,
Bill of Rights
1
can you invoke denial of due process because there was no hearing before you were
issued with a notice of termination of employment? The answer is no, you cannot assert
this due process of law against a private power. However, when you file now the case,
because you are now complaining against that company, in the governmental agency
like the NLRC, or DOLE or the regular courts, then due process has to be observed
because this is now between that governmental office exercising its powers and against
the right you are asserting against that governmental agency. Similarly, that was
emphasized in the case of PAL. If there is no governmental agency or exercise of
governmental power involved, you do not apply the guarantees of due process, equal
protection of laws or the non-impairment of obligations and contracts.
Defining these matters of property rights, liberty and the right to life, you know what is
covered by the right to life. It does not only include mere animal existence but anything
that deprives you of the complete use and enjoyment of your body. The deprivation is
not limited to killing you. Insofar as the right to property, you take note of the cases of
CHAVEZ vs. ROMULO or MMDA vs. BUGARIN (April 15, 2005) or MERCURY DRUG vs.
SERRANO (March 10, 2006). In the case of Chavez, this has reference to the revocation
of the license to carry firearm which was done without individually notifying the license
holder. There was just a pronouncement, a declaration made by the Chief of the PNP
that all those licenses or permits granted to these holders of firearms are revoked, and
Chavez complained that there is deprivation of property without due process. But the
SC said that the license to carry firearm is neither property nor a property right, neither
does it create a vested right and therefore a permit to carry a firearm outside of one’s
residence may be revoked at anytime. This is a privilege granted by the state which the
state anytime can revoke in the exercise of police power. Then there is MMDA. This is in
reference to the license to operate a motor vehicle. Bugarin is a lawyer whose license
was confiscated by a traffick enforcer of the MMDA, and he said that he was deprived of
his property without due process of law. The SC said, it is not a property right but a
privilege granted by the state which may be suspended or revoked by the state in the
exercise of police power. In the case of MERCURY DRUG, this has reference to the
invocation of the protection of the due process of law, where the SC said, in dismissing
the employee, the employer has to serve two notices, first to inform the EE of the
particular acts or omissions for which the ER seeks his dismissal and the second, to
inform the EE of the ER’s decision to terminate him. The first notice must state that the
ER seeks the dismissal for the acts and omissions charged against the EE, otherwise the
notice does not comply with the rules. This is in observance of due process of law, which
requires notice. Here, what was required was mere notice, not actual hearing because
the SC said that due process cannot be invoked insofar as the exercise of private power
is concerned.
Now, the thing that you should take note on due process of law is the essence of due
process – notice and opportunity of hearing. It does not require actual hearing. As long
as the parties, particularly the defendant in a civil case or the accused in a criminal case,
was given opportunity of hearing, even when there may not have been an actual hearing
conducted, there may not be a violation of due process, if his right to life, liberty and
property is limited by government, and there was no actual hearing conducted, but he
was given opportunity, there is no violation there. Also, the observance of due process
in civil cases – BANCO ESPANOL vs. PALANCA – the minimum requirements for procedural
due process in civil cases – first, that the court must have acquired jurisdiction over the
person of the defendant, second, that it must be competent and impartial to hear the
case, third, that the defendant is given the opportunity of hearing and that any judgment
rendered must be after hearing or based on evidence on record. Take not that in certain
cases, hearing may not be required at all and if there is any regulation or denial of any
constitutional right, there may not be necessarily a violation of due process. The
exceptions to the requirement of hearing, insofar as the administrative agencies are
exercising their quasi-legislative functions like promulgating rules and regulations.
Administrative agencies can promulgate R&R’s that are supplementary or contingent and
interpretative. You do not need a hearing if it is in exercise of quasi-legislative function.
But if it an exercise of quasi-judicial function, any judgment rendered by an
administrative body must be after hearing or based on the evidence on records.
Meaning, observing administrative due process of law as enunciated in the case of ANG
TIBAY vs. CIR. For example, in the matter of fixing rates by an administrative body
Bill of Rights
2
exercising both quasi-legislative and quasi-judicial function, if only for the purpose of
fixing the rates, a hearing is not required. But the moment it is increased of decreased,
a hearing is required because there are already vested rights affected by the changes.
Next exception is when it is for the abatement of nuisance per se. If the nuisance is only
per accidens, there has to be a hearing before the right of a person to property or liberty
shall be regulated if not limited. However if it is a nuisance per se, no need for a
hearing, you can abate it outright because of the emergency of the nuisance. Then you
have the granting of the courts of provisional remedy. Here, it may be issued by the
court ex parte, meaning even before defendant files an answer that can be granted by
the court. But in the implementation of the writ, it has to be made after the court has
acquired jurisdiction over the defendant. So, a complaint is filed and they ask for a writ
of preliminary attachment for the purpose of assuring that in the event that judgment is
rendered in favor of the plaintiff, at least there are still properties of the defendant to
satisfy such judgment. So, the court can issue an order for the issuance of the writ ex
parte, because if you inform the defendant, he might have the opportunity to dispose of
said property subject of attachment. But, that writ cannot be enforced against the
defendant without the court acquiring jurisdiction over the person of the defendant, in
compliance with due process of law, by service of summons either personal, substituted
or through publication. So the writ will be served simultaneous to the service of the
summons to the defendant. Here, there is no need for hearing before such provisional
remedy is granted by the courts. Next, is on preventive suspension by administrative
bodies against erring public respondents. There is no need to inform defendant that a
complaint is filed against him before he can be placed on preventive suspension. That is
already settled in the case of (sic) vs. BARBERS. So, even before the respondent is
informed that a complaint is filed against him, he can already be placed on preventive
suspension. The justification is that it is not yet a penalty but a precautionary measure
that the investigation of the case will not be hampered and that evidence will not be
tampered or lost because the respondent is still in office, who has control over these.
Then there is removal of temporary employees in government service, because they do
not enjoy security of tenure. With or without just cause, they can be removed from office
without need of hearing. Another is the issuance of warrant of distraint and levy by the
BIR Commissioner, because previous to that you have already been notified of your tax
deficiency, so the next thing you know, your properties are already being levied by the
sheriff of the BIR or the court so as to sell them by public auction to pay for your tax
deficiency. Notice is not needed of the foreclosure in payment; it is sufficient that you
were notified previous to that of your tax deficiency. Another is the cancellation of your
passport, charged with a crime. The reason is obvious – how can you be notified when
you cannot even be found. Maybe they will just send notice to his last known address.
Take note, he has to have a criminal case pending in court. Next, there is the issuance of
sequestration orders by the PCGG. There is no need for hearing for ill-gotten wealth.
They can be confiscated pending determination if they are ill-gotten wealth. Another, is
judicial order preventing an accused from traveling abroad (hold-departure order).
Usually, this is issued ex-parte, especially when the accused is not yet arrested to make
sure that the adminstration of justice will not be rendered inutile. But when the accused
has already been under the jurisdiction of the courts, like the accused has already posted
a bond, or that the court has already acquired jurisdiction over his person, we usually
hold a hearing to see if a hold-departure is in order. The issuance of the order ex parte is
only when the accused has not been arrested yet and there is a danger that he would
abscond and go abroad, and thus beyond the reach of the courts. Another is the
suspension of bank operations by the Monetary Board, upon a prima facie evidence of
liquidity problems with the bank. So for example, the problem with Legacy. That can be
ordered by the Banco Central Ng Pilipinas, to be under bank holiday. They would close it
to protect the investors or depositors from bank run, as long as there is prima facie
evidence of liquidity in that bank. The problem with that Legacy thing, when the Banko
Central did that, a TRO was issued by the Court of Appeals. But as I said, that can be
done by the BSP without notifying the bank because if the bank will be notified, then the
owners of the bank will abscond with the money. Another is extradition proceedings in
the evaluation stage. Extradition proceedings, remember the case of JIMENEZ, where he
demanded that he be notified of the proceedings against him, why he is being made the
subject of an extradition. The SC said that he need not be notified. The next thing he
knows, he is being arrested in order to be extradited to the requesting country wherein
the Philippines has an extradition treaty. But the moment he contests that in the courts,
Bill of Rights
3
then he will be entitled to notice as required by law in observance of due process of law.
Finally, in the reinvestigation of criminal cases. The accused need not be notified of the
recommendation of the fiscal after reinvestigation of the cases conducted. He need not
be informed of the recommendation of the fiscal. So for example, the accused asks for
the reinvestigation of the case, and so the court remanded it to the fiscal’s office for the
conduct of reinvestigation, to review the case, and then the fiscal stood fast on the
recommendation. They do not need to inform the accused of their findings. But the
moment it reaches the court, he is entitled to due process, being now the accused in that
case.
Due process is not always judicial, but may be administrative (ANG TIBAY vs. CIR) or in a
school disciplinary action, wherein the basic requirements of a student being made the
subject of disciplinary action are – the student must be informed in writing of the charges
against him, that he must also be given the right to answer the charges, and the right to
be informed of the evidence against him, and the assistance of counsel and etc. So,
usually what is asked in the bar exam is on the matter of property rights in relation to
due process and police power, and eminent domain.
Now, to equal protection of laws, the basic principle is only legal equality before the eyes
of the law and not absolute equality. For as long as persons and things that are situated
under the same circumstances are treated alike by the law in terms of obligations
imposed and rights conferred. But what is important are the exceptions where there is a
valid classification, and the requisites, which are: there has to be a substantial
distinction, the distinction is relevant to the purpose of the law, and it applies not only to
existing conditions and it applies to all persons and things situated under the same
circumstances. The cases are TRILLANES vs. PIMENTEL, June 27, 2008. He asked that
he be allowed to post bail, which was denied. Reiterating the decisions of the SC on
JALOSJOS (he was already convicted and that was already affirmed by the SC. The SC
said that there was no distinction between a high-ranking official criminal and an
ordinary criminal. Insofar as the law is concerned, they are both criminals and the law
should be applied uniformly among these persons situated under the same
cirumstances) and PURUNGGANAN (it involved Congressman Jimenez, when he was the
subject of an extradition, and he wanted to post bail. Remember that extradition is not a
criminal proceeding, so as a general rule, bail is not available). Trillanes said that he has
the presumption of innocence because he has not been convicted yet, but the SC said
that election to Congress is not a reasonable classification in criminal law enforcement as
the functions and duties of such office are not substantial distinctions which lift one from
the (sic) of prisoners interrupted in the freedom and restricted in liberty of movement.
Same reasoning adopted in the case of JALOSJOS. Remember that they are charged with
offenses punishable with more than six years imprisonment. Remember parliamentary
immunity form arrest, that the charge should not be more than six years of
imprisonment. Take not also of FARINAS vs. ES and QUINTO vs. COMELEC, with reference
to appointive officials filing their COC. In FARINAS, the moment an appointive official
files his COC, he is considered ipso facto resigned. But in QUINTO, that was reversed,
because there is no substantial distinction between an elective and an appointive official.
If an elective official is not considered automatically resigned, why should an appointive
official be considered as automatically resigned. Because the reason why we have this
law is to avoid the influence of this official in the outcome of the election. So they are
saying that there is no distinction insofar as influence is concerned between an elective
and appointive. The SC said that even if you are an appointive official, you are not
considered automatically resigned, when you file a COC. An MR was filed, though, and
the SC reverted back to the FARINAS doctrine. An elective is for a definite term, owes his
office to the people who elected him for a definite term, and these people expect the
official to serve them for the entire term. That is precisely why they are not considered
resigned when they file their COC. That is why when they lose the election, they can still
go back to their former office before their filing of the COC. But appointive, the one who
has the discretion of his appointment is the appointing authority. Then you have the
LEAGUE OF CITIES OF THE PHILIPPINES, as between municipalities who filed their
application for conversion into a city, the reckoning period is the filing, before or after,
the enactment of that amendment to the LGU increasing the requisites for conversion
into a city. So, they are saying that at the time they filed their application for conversion
into a city, that bill was already pending, and it should not be applied to them. So it was
Bill of Rights
4
based on a substantial distinction. One of the arguments is on equal protection, that the
law should not be applied to them because their application was filed earlier before that
law was passed, and thus they should retain the requirements. There are other cases
like INTERNATIONAL TEACHERS, and (sic).
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
COMPAINANT AND THE WITNESSES HE MAY PRODUCE, AND
PARTICULALRLY DESCRIBING THE PLACE TO BE SEARCHED AND THE
PERSONS OR THINGS TO BE SEIZED.
Discussion:
While Section 1 covers the right to life, liberty and property, the right to security is
actually covered by unreasonable searches and seizures. The right to privacy, actually,
in general. Case in point – SECRETARY OF NATIONAL DEFENSE vs. MANALO, October 7,
2008. The SC said that the right to security of a person is a guarantee of protection of
one’s right by the government. In the context of the writ of Amparo, this right is built
into the guarantees of life, liberty under Article III, Section 1 and the right of security of
persons and freedom from threats and guarantee of bodily and psychological integrity
under Article III, Section 2. If you are asked, where is the right of security covered under
the Bill of Rights – under Section 1 and Section 2. Under liberty, Section 1 of Article III,
particularly on the protection of life and liberty, and under Article III, Section 2, on the
right of persons’ security from threats and guarantee of bodily and psychological
integrity. What is covered here on the right of security or privacy against unreasonable
searches and seizures, relating to the matter of searches and seizures, that you cannot
be searched or seized without a warrant, that you cannot be apprehended without a
warrant. Minimum requirements as provided by the Constitution relating to the issuance
of the application of a warrant – first, that there has to be probable cause (SEARCH
WARRANT: facts and circumstances that would lead a prudent and cautious man to
believe that the things to be searched and seized are found in the place where you are
applying for a search and seizure; WARRANT OF ARREST: facts and circumstances that a
crime was committed and the person to be arrested must have probably committed the
crime).
For purposes of investigation and prosecution, only a judge can issue a search warrant or
a warrant of arrest. But if for the purpose of carrying out a final finding of a violation of
law, an administrative body can issue a search warrant or a warrant of arrest. For
example, Bureau of Customs. The Commissioner of Customs, after finding that the
goods are smuggled or concealed to avoid the payment of taxes, they will be declared to
be smuggled and forfeited in favor of government. There is no need for a court order
there, when it has become final that the goods are smuggled, the next thing, they will go
to forfeiture proceedings. Commissioner of Immigration. The moment an alien is
declared undesirable, there is no need for investigation or prosecution.
The
Commissioner can issue the order of arrest for purposes of deportation. But if for the
purpose of investigation and prosecution, only a judge can issue the warrant. In the
determination of probable cause, for purposes of applying for a search and seizure
warrant, the judge has to conduct a searching Q&A, and it must be recorded and the
record of the proceedings must be attached to the records of the case. In the warrant of
arrest, no need for searching Q&A. But there has to be a case filed in court, unlike in the
search warrant, because precisely you apply for a search warrant to have evidence to
establish the commission of the crime against certain individuals. Remember what are
the subjects of a search warrant, when the things are the subject of the crime, or used as
means in the commission of the crime, or etc. Before the case reaches the court, there
is a PI conducted by the fiscal or the determination of PC by the fiscal. If the fiscal finds
PC for the filing of the information in court, then the information is prepared and the case
Bill of Rights
5
is filed in court. The judge determines PC for the purpose of the issuance of warrant of
arrest. In substantial compliance, it is enough that the judge has personally examined
the records of the case of the PI, and the judge may even adapt the finding of PC of the
fiscal, provided that he made his own independent examination of the records of the PI,
or he may call witnesses to substantiate if he is not satisfied of the finding of PC of the
fiscal. If the judge does not agree, he can dismiss the case outright. No need for
searching Q&A here.
The moment the court decides to issue the search warrant, you need to state the offense
charged. So there is no fishing expedition. And the specific thing that are to be seized
and the place to be searched. There must be a particular description, otherwise the
warrant is general and therefore invalid. One offense, one search warrant. In a warrant
of arrest, how is the particular description requisite complied with? Describing the
particular offense charged against the accused. The accused is not described, but only
by the address and his name. JOHN DOE is sufficient for as long as he can be identified
from the rest of the human race. As long as he can be identified by witnesses that he is
the culprit of the crime, that is sufficient. Another point to take note is the avoidance of
a scattershot warrant, when the accused is charged with several offenses in one warrant.
That would be a general warrant, and not allowed. Take note of the case of VALLEJO vs.
CA, with reference to the place to be searched. The SC said that the Constitution does
not require that the thing to be seized must be described in precise and minute detail as
to leave no room for doubt in the part of the searching authorities. Technical description
is not required. It is only necessary that there be reasonable certainty or particularity as
to the identity of the property to be searched and seized so that the warrant shall not be
a mere roving commission. The TEST: As to what is to be taken, nothing is left to the
discretion of the officer executing the warrant.
As a general rule, warrantless searches and seizures are unconstitutional. So, every
search has to be with a warrant, but not all searches without a warrant is invalid. There
are exceptions – first, on waiver or consent. Where this is present, no problem. But take
note, the mere acquiescence to the search because he was intimidated by the searching
officer or arresting officer, is not considered a valid waiver. The requisites are, that the
right exists at the time he was searched without a warrant, and that the person must
know that he has that right, either actual or impliedly, and that he has relinquished or
had the intention of doing so. Another is search incidental to a lawful arrest, as
compared to a stop and frisk search. They are different. The former, there has first to be
a lawful arrest before a search can be conducted, or search can be conducted
simultaneous or immediately after a lawful arrest. If arrest is unlawful, so is the search
and seizure, and any evidence obtained is inadmissible as being fruits of the poisonous
tree. This refers to the exclusionary rule. The stop-and-frisk, what happens here is that
you are stopped and searched. The search is only protection search, limited only to
outer clothing of the subject of the search to protect the safety of the arresting officer or
the searching officer. In the even contraband is found on the person of the accused,
then he can now be arrested, and this time Rule 113 is applicable, where the person is
arrested because he is committing a crime in the presence of the arresting officer. See
the difference between incidental to a lawful arrest and the stop-and-frisk search (TERRY
CASE). In the former, arrest first then search. In the latter, search first then make arrest
if in possession of a contraband or illegal or prohibited item. For example, they were
conducting a roving in the cemetery, and they saw this guy who was walking crookedly
and with red eyes, and he was clenching something in his hand, and he was asked to
open his hand, where they found packets of shabu. Question is are these admissible,
considering that they are seized without a warrant. Which do you apply, consent? If
consent, the mere acquiscience is not considered a valid waiver. Or should you apply
stop-and-frisk, he was stopped and frisked and found in his possession are the packets of
shabu. They are admissible and what applies is the stop-and-frisk, not the issue on
consented search and seizure. Again, this applies only to law enforcers, not against
private individuals conducting search upon your person. Who are law enforcers? They
are the police, the NBI, tanod, barangay captain, but not the AFP unless they are
delegated with that authority. Another thing to take note, on the matter on searches
incidental to lawful arrest, simultaneous and that the search is conducted within the
premises under the control of the subject of the search and seizure. The lawful arrest
could be because he was arrested with a warrant, or because he was arrested it falls
Bill of Rights
6
under the exceptions under Rule 113, like in flagrante delicto, hot pursuit or (sic). To
determine the validity of the search, whether or not the arrest is lawful, because it must
precede the search, because if the arrest is unlawful, it cannot be a valid search. Next,
you have evidence in plain view. The requisites are, that the evidence must be found by
the law enforcers or the searching party in the place where they have the legitimate
right to be present in the premises. If in the first place, they have no legitimate right to
intrude into the privacy of that house or of that building, they cannot use it as evidence.
If it is a contraband or prohibited good, it can be seized without a warrant but cannot be
used against the accused. For example, a police officer was told that the perpetrator of
the crime was Juan. They didn’t know from facts and circumstances, but just informed
by an informer. So they went to Juan’s house, wherein they found a gun on the table. If
the gun was without a license, they can seize it, but it cannot be used against Juan,
because their presence in the house is not legitimate because they don’t have a warrant.
They are not arresting yet Juan, such as in a hot pursuit. The requisites, as enunciated in
DEL ROSARIO vs. PEOPLE, are first, there has to be a prior valid intrusion, either based
on a valid warrantless arrest where the police are legally present in the pursuit of their
official duties, or with a search warrant. Then, by accident, the evidence is inadvertently
discovered by the police who had a right to be where they are. Next, the evidence must
be immediately apparent, and (sic) to justify the seizure without further search
conducted. For example, where the arresting officers are armed with a search warrant to
find unlicensed firearms, and in the course thereof, they found shabu in the teacup. It
can be seized, but it cannot be used as evidence against the accused because the
finding is not by accident. Or another example, someone told the police that someone
was planting marijuana in the area where Juan was living. On the basis of that
information, the police went and found marijuana 25 meters from the house of the
accused. They can be seized but not admissible in evidence. First, they don’t have a
search warrant. Next, they are not arresting Juan, under the warrantless arrest searches
and seizures. They are not in hot pursuit nor do they have personal knowledge of facts
indicating that Juan was committing a crime until they found the marijuana plants. They
are not evidence in plain view because they are located 25 meters away from the house
of Juan.
Related to this is the moving vehicle, the checkpoint and the airport. In the moving
vehicle and checkpoint, you can do a search and seizure without a warrant, but with the
checkpoint it has to be an established checkpoint, and there is a specific purpose for the
checkpoint so the conduct of the search is limited only for the purpose why the
checkpoint was established, otherwise it would be an invalid search. It can be justified
under moving vehicles, but not under checkpoints. The search is limited to visual
search. You cannot conduct a comprehensive search inside a moving vehicle. Another
point to take note is the case of (sic) vs. FERNANDEZ, if the vehicle is parked, hence it is
not a moving vehicle. In this case, they seized a motorcycle parked near a nipa hut
because according to them it was used by the assassin to get away from the crime
scene. The SC said that it does not fall under the exception of moving vehicle because it
was not moving, hence there is not urgency. You must apply for a search warrant. The
reason why searches and seizure are allowed in moving vehicles is that it is mobile, so it
can escape from further search or from being investigated in relation to the crime. Then
of course, routine airport security procedures, you have the case of PEOPLE vs. SUZUKI,
PEOPLE vs. JOHNSON, the SC said that it is allowed for purposes of security reasons.
Another is when there is an armed conflict, because there is no time. Or in cases of
saturation (sic) or it becomes an area target zone where there is a coup d’etat going, you
can conduct a search even without a warrant. Take not also of the case of PEOPLE vs.
GO, in seizure of plain view, remember the raid of an office that was (sic), kaning chinese
visa, mga bright man mga Pilipino, we can issue fake visa to go to China. What
happened was they raided an office. Specific man ila warrant, to search the things used
in the commission of the crime in faking the visas issued supposedly by the Chinese
Embassy. They included in the seizure katong silyo that was used and the rubber stamp.
The justification of the arresting officers was that the seal and the stamp were used in
the commission of the crime and on the table, thus evidence in plain view. The SC said
no, because when they seized the things, at the time, they were not sure that they were
used in the commission of the crime until they were confirmed by the Chinese Embassy
and the DFA that indeed they were counterfeit. In other words, they are illegal or used in
Bill of Rights
7
the commission of the crime until they were confirmed but only after the search and
seizure.
Under warrantless arrests, not all arrests without a warrant are invalid. You have Rule
113, providing for the exception. They are in flagrante delicto, where one is caught in
the act of committing a crime, has committed a crime, or is committing a crime, or is
about to commit a crime in the presence of the arresting officer, one can make an arrest.
In fact, one can also make a citizen’s arrest, but you need to observe Rule 125 of the RPC
on Arbitrary Detention. As a general rule, “in the presence of the arresting officer”
means that the arresting officer saw the commission of the crime, but it could also mean
hearing distance. Another note is continuing offenses like Rebellion, even if you are not
present in the actual commission of the crime, because the nature of the offense is
continuing, wherever the accused is found, and whoever finds him, it would be as if the
accused is committing a crime in the presence of the arresting officer and he can be
arrested even without a warrant. Take note of the cases of LADLAD BELTRAN, et. al. vs.
GONZALES VELASO, June 1, 2007, remember they were charged with Rebellion. He was
arrested without a warrant, immediately after an inquest was conducted. After, an
Information for Rebellion was filed against him. They said that the arrest was invalid.
The SC said that there was nothing in the affidavit of the officer that the accused was
committing Rebellion. Inasmuch as there was no showing that the crime was committed
by the Rebellion, then the arrest was invalid, and the inquest was invalid as well.
Further, there cannot be a valid information filed in court, thus quashable, and case was
dismissed. Next is hot pursuit. Here, the arresting officer is not a witness to the crime,
but the crime was in fact committed. All that the arresting officer has is the personal
knowledge of facts that the person to be arrested must have committed the crime. Take
note that it must be based on personal knowledge of facts of the arresting officer
indicating that the person to be arrested must have committed the crime. Thus, there
must be immediacy between from the time of commission of crime to the actual
apprehension of the accused. There has to be no interruption, no interval of time,
between the time the crime was committed to the time the accused was arrested. No
supervening event that breaks the continuity of the chase. What is important is the
element of personal knowledge of facts on the part of the arresting officer that he
acquired preceding the arrest of the accused. If it is based on an investigation report,
that is not PK of facts. If based on tips of an informer, however reliable that is not PK of
facts. Hence, making an arrest following these are not covered under hot pursuit
because the arresting officer did not have PK of facts indicating that the person must
have committed the crime. The person must commit an overt act establishing the
commission of a crime before he can be arrested. Also, take note of the rule on the
poisonous tree.
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.
Discussion:
It includes all sorts of communications like electronic communications, text messages, emails. Now you have FB, Twitter. Is there privacy of communication? To a certain
extent, yes, if it is still covered by your privacy. Insofar as this is concerned, all forms of
communication and correspondence are protected by the State and private individuals.
Remember that case of husband and wife, where the wife suspected that the husband
was having an affair so she ransacked the office of the husband and found love letters.
The SC said that it is inadmissible as evidence against the husband because it violated
the right to privacy of communication on the part of the husband. You remember the
ZULUETA vs. CA case, and then there is the case of WATEROUS DRUGS. These two are
Bill of Rights
8
always compared with each other. In the WATEROUS DRUGS, it involves an EE, who was
working for a company and at the same time working for another company that was a
rival. He was receiving commission from a rival company. The commission in the form of
check was sent to the EE to the office and it was opened by the company clerk whose
function it was to open letters addressed to EEs of the company. It was used as evidence
against him as basis for dismissal.
The EE said that his right to privacy of
communication and correspondence was violated. The SC said that it was admissible
since it was not intentional to violate said right, and it was part of the function of the
clerk to open letters for as long as it was addressed to that office. Then you have the
more recent decision of the SC concerning prisoners. He wrote a diary consenting to
having committed the crime, and placed it under the pillow. In the course of cleaning
the room, it was found by the jail guard and used as evidence against him. Now you
have the case of ALEJANO, et. al. vs. CABUAY. These were the soldiers involved in the
Oakwood Mutiny. They were sending letters to their friends and countrymen outside of
jail, using their lawyer as courier. Before these letters are brought out of the jail, they
must first be read by the jail guards. They complained and invoked their right to privacy
and a violation of their lawyer-client privilege. The SC said no privilege attaches because
the letters are not addressed to the lawyers, they are mere postmen. There is no
transfer of communication from a client to a lawyer. Hence, communication between the
detainees and their lawyers, the officials of the detention center could read the letters. If
the letters are marked confidential communication between the detainees and their
lawyers, then the detention officials should not read the letters but only open the
envelope for inspection in the presence of the detainees. That a law is required before
an officer could intrude on a citizen’s privacy right is available only to the public at large
but not available to persons who are detained or imprisoned. The right to privacy of
those detained is subject to Section 4 of RA 7438 as well as to the limitation inherent in
lawful detention or imprisonment. By the very fact of their detention, pre-trial detainees
and convicted prisoners have a diminished expectation of privacy rights. Then there is
ROXAS vs. ZUZURUEGE, June 12, 2007, where a lawyer wrote a letter addressed to the
justices of the SC, castigating them as incompetent and corrupt. It was used as evidence
against the lawyer for disbarment, because the letter no longer remained private when it
was mailed to them. It formed part of the public record. The SC said that free
expression should not be used as a vehicle to demean, ridicule, degrade and even
destroy the Court and its majesty. Another case to take note of is the case of CAMILLO
SABIO, the Chairman of PCGG, where he was asked to bring certain documents before a
Senate hearing, and he refused by saying that under the law creating them, they were
immune from any kind of investigation. The SC said that in evaluating the claim of
violation of the right to privacy, the court must determine whether the person has
exhibited a reasonable expectation of privacy, and if so, whether that expectation has
been violated by unreasonable intrusion. The SC denied their assertion. Here what was
emphasized was the right of people to information of public concerns, and they are not
immune even from investigation of Congress because this office was created by law, and
in fact, Congress can abolish it. Then there is (sic) vs. DANGEROUS DRUGS and PDEA,
still on the right to privacy.
However not necessarily on communication and
correspondence. Communication and correspondence is part of your right to privacy,
and unreasonable search and seizure is also included. In this case, there was a law
passed by Congress requiring that all political candidates running for national offices
must undergo a drug test. As a pre-requisite to filing of the COC, the results of the drug
test must be submitted. Then there was the law relating to the matter of criminal
prosecution. Any offense, kung ikaw accusado, you have to submit to drug testing,
you’re charged with estafa. What does that have to do with drug addiction? All accused,
that was mandatory. So it was questioned, because it violated the right to privacy.
Finally, on November 3, 2008, the SC declared unconstitutional the provisions of RA.
9165 requiring mandatory drug testing of candidates for public office and persons
accused of crimes. It cannot be compulsory. How about the requirement by DECS, or
the Department of Education, or by the CSC or certain Government offices, EEs
undergoing drug tests because they are suspected of being drug users. In fact, there
was this demand that secondary students must undergo drug tests because of the
proliferation of drug addiction in high schools, and also the allegation that there are EEs
in the government who are abusing the use of drugs. The SC upheld the constitutionality
of the said RA insofar as random (not mandatory) drug testing for secondary and tertiary
school students as well as for officials and EEs of public and private offices is concerned.
Bill of Rights
9
The need for drug testing to at least minimize illegal drug use is substantial enough to
override the individual’s privacy interest under the premises. This is not a violation to
the right of self-incrimination because it is random and justified by police power.
You have to relate also the right of privacy of communication and correspondence to the
Anti-Wiretapping Act (RA 4200) and the Human Security Act (RA 9372). Insofar as the
relationship between the privacy of communication and the Anti-Wiretapping Act. What
is punished under RA 4200 is the unauthorized taping of private conversation, and the
possession of such tapes with the knowledge of their nature as illegal wiretapes, and the
replaying of the tapes to any person and to communicate the contents thereof either
verbally or in writing such as the provision of a transcript. There is an exception to
privacy of communication and correspondence where it can be intruded into
notwithstanding RA 4200, but you apply for a search warrant with the RTC. You have to
go to court, and the court conducts a searching Q&A to determine whether there is PC to
bug or tape a private conversation. The problem here is the particular description of the
conversation to be bugged or taped. How can you give a particular description of this?
You estimate and you must describe in the application. Another exception is for reasons
of public safety and national security, determined by the President of the Republic,
delegated to the AFP or the PNP, through the alter egos of the President – the Secretary
of the Department of National Defense and the Secretary of the DILG, and they have to
follow the rules as provided in RA 4200. Case in point, in the application of RA 4200,
remember the case of RAMIREZ, two women quarreling with each other, and without the
knowledge of the other, one of them taped the quarrel and sued the other one for
libeling or slander, using the tape against the party. The SC said that this is inadmissible,
because when you tape something, you should tell the other party that you are taping it.
The other person needs to be aware. It is a violation of the right of communication and
correspondence and RA 4200. The next question is that can you use it as evidence
against the violator, the SC said yes. Then you have RA 9372, on Anti-terrorism. It is
allowed to bug conversation between terrorists. Now, assuming that they are terrorists
but they are actually conversing sweet nothings, not talking about planning or bombing
a place. And now you are intruding on their conversation, can you use it as evidence
against them? Yes you can. The provisions of RA 4200 to the contrary notwithstanding,
a police or law enforcement official and members of his team may upon a written order
of the Court of Appeals, listen to, intercept and record with the use of any mode, form
kind or type of electronic or other surveillance equipment or intercepting and tracking
devices or with the use or any other suitable ways or means for that purpose any
communication, message, conversation, discussion, or spoken or written words between
members of a judicially declared and outlawed terrorist organization, association or
group of persons or any person charged with or suspected of terrorism or conspiracy to
commit terrorism, provided that surveillance, interception and recording of
communication between lawyers and clients, doctors and patients, journalists and their
sources and confidential business correspondence shall not be authorized. This is an
exception to RA 4200.
Section 4. NO LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF
SPEECH, OF EXPRESSION, OR OF THE PRESS, OR THE RIGHT OF THE
PEOPLE PEACABLY TO ASSEMBLE AND PETITION THE GOVERNMENT
FOR REDRESS OF GRIEVANCES.
Discussion:
What are those covered under freedom of expression? The freedom of speech, press,
the freedom to assembly and petition the government for redress of grievances. The
freedom of speech does not only include oral utterances, but also to acts that would
convey a message to the public such as picketing. To picket does not require an EE-ER
relationship between the picketors and the establishment against which these picketors
are picketing. To picket means to bring a placard and walk to and fro conveying a
message to the public whatever sentiments you have. This is part of the freedom of
speech. Also take note that included in the freedom of expression are the corollary
rights to freedom of speech – freedom of prior restraint or censorship and subsequent
liability. And the determination of liability, you have three tests: the clear and present
Bill of Rights 10
danger rule, the balancing of interests, and the dangerous tendency rule. Not protected
speeches and thus can be the subject of censorship and subsequent liability are libelous
speeches, obscene, subversive.
On the freedom of press, it is not limited to written publication but also broadcast. Any
forms of mass media communication including TV and movies and films. Guaranteed of
freedom from prior restraint and censorship and subsequent liability. The role of MTRCB,
is this a form of prior restraint or censorship? We have the cases of MTRCB vs. ABS-CBN
and SORIANO vs. MTRCB (April 29, 2009). No, it is not. It is only for the purpose of
screening, reviewing and examining all TV programs. When the law says all TV
programs, it covers all programs whether religious, public affairs, documentary and etc.
The principle assumes the legislative body made no qualification in the use of the
general word. What is the extent of its classification and supervision and review of all
programs?
In the case of SORIANO, Dating-Daan, he made some statements
(demonyito) which can be understood by a child, so he was suspended by the MTRCB.
He appealed the decision, saying that it does not have jurisdiction over him. The SC said
that his statement can be treated as obscene, at least with regards an average child and
thus his utterances cannot be considered as protected speech. The Dating Daan has
already been given a G rating for general viewership as a classification, as the role of the
MTRCB. The suspension was limited only to the show, however, and not to Soriano. The
MTRCB may not suspend TV personalities, as it would be beyond their jurisdiction. So it
is self-regulation on the part of the TV programs because of the guarantee of the
freedom of prior restraint and censorship. It has control over the program and not the TV
personality. The extent of the authority of MTRCB is only on the program for purposes of
classification for viewership, but they do not have control or supervision over the TV
talent or personality.
Take note also, going back on the speeches, relating to the determination whether it
should be restrained or not, on the matter of content-based (the subject of the speech
and utterance is sought to be regulated) and content-neutral (conduct associated with
the speech such as the time, place and manner) regulation. This was used in the case of
CHAVEZ vs. GONZALEZ, February 15, 2008, relating to the Garci tape. This was
continued to be played in the radio stations, and TV stations. So eventually, the DOJ
Secretary including the NTC Commissioner, warned these broadcasting companies, that
if they continue to play it, they will revoke their licenses. Is this not a prior restraint or
censorship, that even before you play them, you are already banned from doing that for
fear of losing your license? So this was questioned in the SC. Take note that the
prohibition was very specific, the playing of that particular Hello Garci tape, the content
that it should not be played over and over again. The SC said that the act of warning
were content-based restrictions and should be subjected to the clear-and-present danger
test. You are practically banning the content itself. You are regulating or censoring. That
can only be justified if there is a clear-and-present-danger that the state has the
obligation to prevent, like against national security. Content-based can only be regulated
by government if there is a clear and present danger. For this regulation to be exercised,
the government must show that it has a compelling or overriding interest in the subject
regulation. In other words, the justification for the regulation is that the government has
a compelling or overriding interest such as national security, public safety. On the other,
content-neutral regulation will not intrude into the subject of the speech but you may not
be allowed to say it in public at a particular time or place. For this to take place, the
government need only to show an important government interest, as long as it leaves
open alternative channels of communication.
Take note also, in relation to speeches, commercial speech, like billboards. It can be
regulated. On commercial speech, communication with no more than purposes of a
commercial transaction. To enjoy protection, the commercial speech must not be false
or misleading or must not propose an illegal transaction. The government must have
substantial interest to protect. The regulation must directly advance the substantial
interest and must not be more extensive than necessary to protect that interest. Take
note of the case of BORJAL vs. CA on libel. Remember in libel, there is presumption of
malice, especially when the subject is a private individual. But if he is a public official,
the justification is US vs. BUSTOS, that government officials should not be onion-skinned,
because public office is a public trust, and government officials must always be
Bill of Rights 11
accountable to the people. Take note of the exceptions, for as long as the report is faircomment, honest and truthful, then the presumption of malice is overcome. Then we
have the matter of obscenity. Remember the KATIGBAK case, obscene is when the
average person, applying contemporary community standards, would find that the work
taken as a whole appeals to the prurient interest (baser instinct, animal instinct). It
depicts a patently offensive way or sexual conduct defined by law or whether the work
taken as a whole lacks serious literary, artistic, political or scientific value. Its only
purpose is to arouse the baser animal instinct in you.
On the freedom of press, there are corollary rights, going back, there is freedom to
information on matters of public concern. But this is a political right and not availed of
by foreign journalists, though they have the freedom of press. Corollary to this right is
not to disclose the source of the information (SOTTO LAW). In other words, when asked
to disclose, you can always invoke the freedom of press. Another corollary right is the
freedom of circulation. Then we have the freedom from prior restraint and censorship.
Again, this includes movies and films. Take note of some relevant cases like (sic)
BROADCASTING NEW YORK INC, et. al. vs. DY, et. al., April 2, 2009. This is the immediate
implication of the application of the strict scrutiny test, that the burden falls upon the
government, to prove that their actions do not infringe upon petitioner’s constitutional
right. What is used here is content-regulation cannot be done in the absence of
compelling reason to infringe upon the right of freedom of expression. Also, ABS-CBN vs.
COMELEC, with reference to the publication or broadcast of surveys, before the election
and even during the election period. It was objected to because it established some kind
of trending because of popularity. The SC said that to restrain that would be the violation
of the freedom of expression, particularly the freedom of press.
As to the freedom of assembly, this includes the freedom of prior restraint and
censorship, in the guise of asking for permits to hold rallies. You have to understand this
provision in relation to BP 880, as discussed in BAYAN vs. ERMITA, April 25, 2006, based
on the landmark case of REYES vs. BAGATSING. You remember that as part of freedom
of prior restraint and censorship, a permit is not required to hold a rally and
demonstrations because to require such would be prior restraint and censorship, but BP
880 requires that if you use a public place, if only to regulate the time and place in the
use of a public place, then you need to ask for a permit. Its validity was sustained in the
case of REYES and ERMITA.
However, the law provides for an exceptions wherein a
permit is not required: freedom park (all LGUs are required to declare a freedom park), a
private place, state-owned university campus or college campus (but need to ask permit
of administrator). The tests of LGU to determine whether it should be regulated or
denied are: purpose test (what is the purpose, who organizes the rally and etc.) and
auspices test. And ultimately you determine liability by clear and present danger rule,
dangerous tendency rule and the balancing of interests test. In this jurisdiction where
there is no problem of peace and order, we follow the clear and present danger rule.
Take note though of a more recent decision relating to the grant of permits – IBP vs.
ATIENZA, February 24, 2010. They asked for a permit from Mayor Atienza to hold a rally.
They were granted however not informed of the transfer of the venue of the rally. The
SC said that the Mayor gravely abused his discretion when he did not immediately inform
the IBP, which should have been heard first of his perceived imminent and grave danger
of a substantive evil to warrant the change of venue under BP 880. The Mayor failed to
indicate how he arrived as modifying the terms of the permit against the standard of a
clear and present danger test, which is an indispensable condition to such modification
of the venue. Nothing in the permit adverts to an imminent and grave danger of a
substantive evil which blunt denial or modification would when granted imprimatur as
the appellate court would have it rendered illusory any judicial scrutiny thereto. Another
point is on the issue of the TPR. What is now the prevailing principle in the conduct of
regulation of the assemblies, rallies and demonstration? This is maximum tolerance.
The Calibrated Pre-emptive Response has already been declared unconstitutional. It’s
more on allowing the freedom of assembly.
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
Bill of Rights 12
PROFESSION AND WORSHIP, WITHOUT DISCRIMINATION OR
PREFENCE, SHALL FOREVER BE ALLOWED.
NO RELIGIUS TEST
SHALL BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL
RIGHTS.
Discussion:
There are three things to consider. This is an offshoot of the separation of the church
and state: the non-establishment of religion, freedom of religion and that no religious
test shall be required in the exercise of civil and political rights.
On the nonestablishment of religion, the accommodation by the state to religion as an exception
should be taken note of. Exceptions are: tax exemption on properties that are ADE used
for religious purpose exempt from property taxes, then optional religious instruction of
public schools, with the requirements that there must be a written consent of the parents
of guardian of the child, taught within school hours by an accredited religious intstructors
and without additional cost to the government, and the use of public funds for a priest,
minister and other ecclesiastical ministers working for the military, AFP, or with the penal
institutions or with an orphanage or leprosarium. Another exception relating to the
ownership of educational institutions. Remember the requirements for ownership – if
individual, it must be a citizen, if a corporation, it must be a qualified Filipino corporation.
But as an accommodation to religion, even if the school is owned by foreigners solely,
however they belong to a religious board or mission board, that is allowed.
On the freedom of religion, which has two aspects – the freedom to believe, and the
freedom to exercise such belief. The former is absolute, the latter is limited by the state.
You are fee to exercise so long as it is not contrary to law, public morals, established
institutions. The prevailing principle is benevolent-neutrality accommodation. Case in
point is ESTRADA vs. ESCRITOR, where the state will not regulate freedom of religion so
long as there is no compelling state interest involved, like public health, public morals,
national security, or public convenience. Even morality is based on religion. IBRALINAG
case, the saluting of the Philippine flag is no longer compulsory. We have the ISLAMIC
COUNCIL CASE, where the government should not interfere with the determination of
what food the muslims should eat. Then we have the case of IGLESIA NI CRISTO vs. CA,
where it kept on lambasting the Catholic church and thus it was classified as X rated and
practically banning the showing of the program. They appealed and the SC said that the
exercise of religious freedom can be regulated when it will bring about clear and present
danger of a substantive evil that the state has the right to prevent, however criticism of
catholic tenets and dogma does not constitute clear and present danger. The state is
more tolerant so long as there is no compelling state interest involved.
On no religious test, read the case of PAMIL vs. TELERON. As regards to the prohibition
on priests from running for local elective office (except national office), father Gonzaga
won in that case, but the provision on the Revised Administrative Code was not declared
unconstitutional because back then, under the 1973 Constitution, you need 10 votes of
the justices to declare a law unconstitutional, he had only 8. Now, you need only 5
votes, or a quorum of 8. But this is only addressed against the state. But if a private
entity requires religion as part of their curriculum, that would not be a violation of your
freedom to religion or the no-religious test. Related to this is the intramurals of religion,
conflict inside, the state should not interfere. Ex-communication, for example, the state
should not interfere because of the non-establishment religion (TARUC vs. BISHOP DELA
CRUZ, March 10, 2005). The SC said that the ex-communication of members of a church
is a matter best left to the discretion of the officials and the laws and canons of said
institution and organization. But if it would involve property rights or civil right, then the
state can interfere. This has nothing to do with religious matters.
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
Bill of Rights 13
NATIONAL SECURITY, PUBLIC SAFETY OR PUBLIC HEALTH AS MAY BE
PROVIDED BY LAW.
Discussion:
On liberty of abode is the right to choose where to live. The limitation is the lawful order
of the court. Then you have the right to travel. The interest is in the interest of national
security, public health and public safety as may be provided by law.
On the liberty of abode, there’s the case of CUENCA. After being given the advanced
salary, she wants to go home, and the ER does not want her to go. There is a violation,
not only against involuntary servitude, but also the right to choose where she wants to
live. The case of LUKBAN vs. VILLAVICENCIO, the ill-repute women who were deported to
Davao by the Mayor. The SC said that they had the right to choose where they want to
live, and the right to change their residence within the limits provided by law. Is the right
to return to the country implied in the provision? The answer is no. It only covers the
liberty of abode and the right to travel. But then again take note of Article XIII, Section
2, (Universal Declaration on Human Rights) and Article XII Section 4 (Covenant on Civil
and Political Rights). Now then the question on the right to liberty of abode insofar as
the MARCOS vs. SANDIGANBAYAN case. The SC said that under the incorporation clause,
these are generally accepted principles of international law, that everyone has the right
to live in a country including his own and to return to his own country, and that no one
shall be arbitrarily deprived of the right to enter his own country. Being generally
accepted principles of international law, under the incorporation clause, they are
automatically adapted as part of the legal system.
On the right to travel, as to the limitation, only on the interests of national security,
public safety or public health. The administrative bodies limit your right to travel, as
may be provided by law. For example, the DFA can limit the right to travel. No order of
the court is required. A quarantine can also be justified, with proper guidelines so as not
to be abused by these bodies. How about the court ordering that you are not allowed to
go abroad.
Remember the case of SANTIAGO vs. VASQUEZ, MARCOS vs.
SANDIGANBAYAN, MANUTUC vs. CA, where they were prohibited from going abroad
because of a hold-departure order issued by the court because their cases are pending.
We said that no court order is necessary. Why is it present in these cases? Take note
that they posted bail, and under such, they made an undertaking that whenever required
by the court, they shall make themselves available. How can you do so if you go
abroad? The right to travel is not absolute.
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
GOVERNEMENT RESEARCH DATA USED AS BASIS FOR POLICY
DEVELOPMENT, SHALL BE AFFORDED THE CITIZEN, SUBJECT TO
SUCH LIMITATIONS AS MAY BE PROVIDED BY LAW.
Discussion:
(first part was not recorded)
In other words, as part of the custodian of the records of the case, their duty is
ministerial, so they can be compelled to disclose the information if it is not covered by
the exception by mandamus. This is insofar as the right to information and it is a
political right, so thus it is only enjoyed by the citizens of this country. Access to these
information, it is subject to such limitations as may be provided by law, thus it is not
absolute. Limitations as to time and place, like some preservation fees or payment of
copies. What is important is also the exceptions, like the information that cannot be
made available to the citizens at any time. For example, information that pertains to
national security. Definitely that is confidential. It may affect national interest but it is
Bill of Rights 14
not accessible to the public to ensure national security. Then you have intelligence
reports of law enforcers while still in the stage of investigation. That should not be
prematurely disclosed. Then you have the executive privilege.
But this has to be
balanced with the power of inquiry of Congress for purposes of legislation, insofar as for
purposes of prosecution or courts adjudicating rights under existing laws, it has to be
balanced with the power of the courts in settling disputes, and balanced with the right of
the people to matters of public concern. And also, that emphasized in the case of NERI
vs. SENATE COMMITTEE, that this executive privilege cannot be invoked to cover up the
commission of the crime. Take note of these cases – AKBAYAN vs. AQUINO, this was
when Congress wanted a copy of the JPEPA, while it was still being negotiatied with the
representatives of the Japanese government and the DFA and DTI. It was refused
because it was still in the process of negotiation as part of diplomatic negotiation. But
actually, this is covered by the executive privilege of the President because he has the
sole discretion to negotiate treaties and agreements and ratify the same. So aside from
executive privilege, the other one is diplomatic negotiation by history and tradition had
always been confidential and cannot be disclosed while still in the stage of negotiation.
Bu the SC said that it must be balanced to other equally important interests of the state
like the prerogative of Congress to conduct legislative inquiry for legislation purposes,
power of courts to settle disputes, and right of people to information of public concern.
In the matter of the AKBAYAN case you have to distinguish it with the CHAVEZ case, with
reference to the disclosure of an ongoing negotiation relating to a contract that
government was then entering into, the sale of the reclaimed properties, and they were
suspecting that the government was selling it to those who are not qualified, especially
to foreign corporations. The SC said that the constitutional right to information includes
official information on ongoing negotiation before a final contract is consummated,
provided that it must constitute information relating to definite proposition by
government and should not cover recognized exceptions like privileged information,
military and diplomatic secrets and other matters affecting the national security and
public order. It does not include diplomatic negotiation, even if it is still ongoing, as long
as there is a definite proposition, that should be disclosed to the public. Then you have
LEGASPI vs. CSC, insofar as qualifications of government employees, it is the right of the
people to know whether or not they are qualified, even if they are not interested in the
position, or applying for such position. Then you have VALMONTE vs. BELMONTE, with
reference to the accounts of the GSIS, including those applying for loans or had already
applied for loans whether paid or not, that is information on matters of public concern.
Then we have the case of BARA vs. COMELEC, with reference to the certified list, under
the Constitution the nominees’ names should not be disclosed except in a certified list, it
has to be at the polling place, otherwise it should not be disclosed. Here, they wanted to
know who are the nominees of the party list, and the COMELEC said that this is
confidential. The SC said that it is not covered because the prohibition is only against
disclosure of the (sic) in the certified list. In other words, if you disclose it in a
newspaper, there is no violation because it is the right of the people because it is a
matter of public concern. So it is only a prohibition of the disclosure of the names of the
nominees, but not of the names of the party-list organizations or the political parties.
Then you have the matter of court records, wherein one judge refused to disclose them
at anytime. The judicial records are public records, thus it is not confidential. However
getting access to information is subject to the discretion of the custodian in terms of time
and place in making them accessible to the public. We also have deliberations, sessions
of the cabinet meetings. They are also confidential. You also have closed-door sessions,
or executive sessions in Congress where the media is excluded.
Then the SC
deliberations. Also trade secrets cannot be disclosed. Banking transactions because of
the secrecy law. The exception is when there is already a pending case in court and the
information pertaining to the account is relevant or subject of the litigation.
Section 8.
THE RIGHT OF THE PEOPLE, INCLUDING THOSE
EMPLOYED IN THE PUBLIC AND PRIVATE SECTORS TO FORM UNIONS,
ASSOCIATIONS OR SOCIETIES FOR PURPOSES NOT CONTRARY TO
LAW SHALL NOT BE ABRIDGED.
Discussion:
Bill of Rights 15
Take note that part of the right of association includes the right not to be compelled. The
right to assemble or to engage in concerted activities is not an essential part of the
freedom of association. You have this case where government employees have the right
to form unions or join unions, but that does not mean that they can also engage in
concerted activities. The right to strike is not prohibited by the Constitution unless there
is a law that prohibits it. As far as government employees are concerned, there is a law,
a CSC circular, an executive order, prohibiting government employees form engaging in
concerted activities because after all, the terms and conditions of the employment are
not negotiable, they are not subject to CBA, but are already determined by law. Insofar
as the right to association is concerned, it does not also include (sic) legal personality.
Thus, if the SEC denies your application for recognition as a juridical entity, you cannot
invoke your right of association, because it does not form an essential or integral part of
the right to association. You can always have an association without being recognized as
a juridical entity or having a legal personality. Then the right does not include the right
to own a property. You can always have your association without acquiring property.
Then, on the matter of homeowner’s association, where practically the residents of the
subdivision are made members of the homeowner’s association, in fact it is annotated in
the title that should you buy the property, you automatically become a member of the
association. The SC said that there is no compulsion because in the first place, you were
never compelled to buy the land. The moment you bought it, you conceded to the rules
annotated in the acquisition of the property. Additionally, it is not the government who
imposed the condition, but the owner or developer of the subdivision, which is private.
In the case of IN RE EDILLON case, there is compulsion to membership in the IBP due to
police power. In certain instances, there are employees in the private sector that are not
allowed to form associations or unions like supervisors of a company, who are not
allowed to join a union of the general assembly or employees of the company because of
conflict of interest. You are supposed to represent the management. And if you join the
union, you must have to put first the interest of the employees even if not in conflict with
the interests of the company. Another, the security guards are not allowed to form
unions because there would be too many of them who are armed, they can easily win
any collective bargaining agreement. Another point is one relating to political parties.
The purpose is to participate in electoral processes or activities. However, there is one
instance where they are not allowed to enter into political processes in the election of
barangay officials, because barangay elections are supposed to be non-partisan. Political
parties are prohibited from participating, so there will always be equal footing. This is
not a violation of the right to association because this is in the exercise of the police
power of the state, the purpose of which is to level the field insofar as getting a position
in the barangay so as not to politicize the barangay elections.
Section 9. PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC
USE WITHOUT JUST COMPENSATION.
Discussion:
What are the requisites of the eminent domain? First there has to be entry into the
property. The entry must be under color of title or warrant of authority. The purpose is
not for just a momentary period but more or less permanent, and there must be taking in
the constitutional sense. Another is that it must be for a public purpose or use, and that
the owner is deprived of his property or the beneficial use of the property or the purpose
for which it was intended before it was taken. Take note that under color of title, entry
into the property, so that if it was under the mistaken belief that the property entered by
government belongs to public domain, it is not considered as entry of property under
color of title or warrant of authority. In the case of NAPOCOR, they entered the property
in 1978, under the belief that it belongs to the public domain and they later realized that
it belongs to a private individual. So they filed an expropriation case against the owner
because he refused to sell the property to NAPOCOR. There was a question on what
would be the point of reference in the payment of just compensation. The entry in 1978,
or in 2008. If you go by REPUBLIC vs. CASTILVE, insofar as the taking is concerned,
under color of title or warrant of authority or more or less permanent and not for a
momentary period. So if you entered the property believing it belonged to the
government, the entry was permanent but it was without the color of title or warrant of
Bill of Rights 16
authority, so it cannot be 1978 but only at the time an expropriation case was filed
against the owner. Take note also that it not only includes private property but also
services, tangible or intangible, except money or choses in action. Municipal properties
or properties of local government or municipal corporations can be made subjects of
expropriation if they are owned in their proprietary capacity which we call patrimonial
property and the taking is compensable. Then we talk about the taking of the property
for public use. It has been defined in many terms. It is not the traditional understanding
of what public use is, that it is used by the public, but also as for the general welfare,
such as for purposes of tourism, or for purposes of relocating. Anything that redounds to
the greater majority is considered now as public use. Can government take private
property then dispose of it for another purpose? Is that considered as public use? ASIA’S
EMERGING DRAGON CO. vs. DOTC says that the state through expropriation proceedings
may take private property even if admittedly it will transfer the property again to another
private party as long as there is public purpose to the taking. You remember also the
taking of property by NHA, then after sell it to qualified beneficiaries for lawful housing,
that is still public use if it redounds to the public. Can you take a property already
devoted to public use for another public use? Insofar as national government is
concerned, yes it can because that power is plenary. But a delegate, like LGUs, they
cannot because their authority insofar as expropriating property is limited by their
authority, so they can only expropriate it for a specific purpose, not for another public
purpose unless there is a delegation, special authority to do so, a law authorizing them
to do so.
On just compensation, this is basic. The matter of determination of just compensation is
a judicial prerogative, it is a judicial function. Any law passed by Congress allowing
certain government agencies to determine JC, that is only initial determination subject to
the final action of the court. Like DARAB, for purposes of taking lands for distribution to
the landless tenants. The DARAB can adjudicate, and negotiate as to how much to be
paid to the landowners. If one of the parties do not agree to it, that determination of JC
for the property can still be appealed to the courts, and ultimately it is the court who
decides how much JC will be paid. There are two instances where the courts determine
JC – initial determination of JC and the final determination of JC. Remember Rule 67 and
RA 8974. There is a process under the ROC relating to expropriation proceedings. There
are two stages – the first is the determination whether or not there is justification for
expropriation, the complaint must be valid, the taking must be for a public purpose, and
there must be payment of JC, for purposes of the court which is ministerial in issuing a
writ of possession so that the government can enter the property and start with any
project that they are undertaking. At the initial stage of determination of JC, that can be
determined by law. Rule 67 states, generally in expropriation, there has to be a deposit
of 10% of the assets, value of the property by the municipal assessor for taxation
purposes for the court to issue a writ of possession pending the final determination of JC.
But the purpose for expropriation by the national government in infrastructure projects,
RA 8974 governs, amending Rule 67 therefore. The basis of JC for purposes of
determining the amount to be deposited with the depositary bank so that the court can
issue the writ of possession is 100% based on zonal valuation by the BIR for purposes of
taxation. In REPUBLIC vs. JINGOYON, December 19, 2005, the SC says that Rule 67
outlines the procedure in which eminent domain can be exercised by the government,
but by no means does it serve at present as the solitary guideline through which the
state may expropriate private property. For example, section 19 of the LGC governs as
to the exercise of the LGU of the power of eminent domain through an enabling
ordinance. Then there is RA 8974 which covers proceedings intended for national
government infrastructure projects. RA 8964, which provides for procedure, is more
favorable to the property owner than Rule 67 and this inescapably applies in instances
when the national government expropriates property for national government
infrastructure projects. This is just initial and without prejudice to the final determination
of JC by the courts, which is the second stage of the proceedings. In this case, there is
now a need to present evidence, unlike the first stage which is determined by law, either
under Rule 67 or section 19 of the LGC (15%) or RA 8974. The courts do not have
discretion in the initial determination of JC for purposes of issuing a writ of possession.
For the second stage, wherein evidence will be presented, there will be appointment of
commissioners to receive the evidence as to the value of the property. Going back, JC is
the sole prerogative of the courts to determine and the commissioners can only
Bill of Rights 17
recommend but it is not binding. This is in accordance with due process of law.
REPUBLIC vs. HOLY TRINITY REALTY DEVELOPMENT CO., the SC said that there are at
least two crucial differences between RA 8974 and Rule 67. With RA 8974, the
government is required to make immediate payment to the property owner upon the
filing of the complaint to be entitled to a writ of possession whereas Rule 67 requires
only an initial deposit with an authorized government depositary and Rule 67 prescribes
that the initial deposit be equivalent to the assessed value of the property for purpose of
taxation unlike RA 8974 which provides that as the relevant standard for initial
compensation, the market value of the property as stated in the tax declaration or the
current relevant zonal value of the BIR, whichever is higher. So, market value per tax
declaration or BIR zonal value, whichever is higher. The value of the improvements and
structures using the Replacement Cost Method are also considered. So on JC, the factors
considered by the court in determining JC should also be remembered. In the case of
REPUBLIC vs. LIM, payment is not enough, but it must also be made promptly otherwise
there will be a violation of one’s right to property tantamount to depriving him of his
property without due process of law. The reasonable period of time is five years from the
finality of the decision in the expropriation case. The consequence on non-payment of JC
is recovery of possession of the property. The general rule is that once the property is
expropriated, it is practically like selling it to the government in fee simple, no conditions
whatsoever, and therefore the property owner cannot recover anymore his property. The
non-payment of JC is not a ground to recover the property, as a general rule, although
this has already been qualified in the case of REPUBLIC vs. LIM. This is one exception.
Another exception is when the expropriation has certain conditions, and they were not
fulfilled. The owner may recover. You have the case of ATO vs. TUNGOY, where the SC
said the right of the previous owners who were able to prove the commitment of the
government to allow them to repurchase their land, they can recover the property.
Another point, in the payment of JC, this includes the prayer for interest. This must be
prayed for, this must be included in the complaint. How much is allowed? 6% per
annum. What about reimbursement for property taxes? Remember until there is full
payment of JC, the property will not be transferred in the name of the Republic, it will
remain in the name of the owner. In which case, he will still have to pay for property tax.
But he needs to allege it in the complaint, else it will be deemed waived. Also,
expropriation does not only involve lands. It may be tangible or intangible, including
services. The exception is sum of money and choses in action. So the discounts given to
senior citizens, that belongs to the private companies. That is loss of income. So, it is
considered as expropriation. We have the case of CIR vs. CENTRAL LUZON DRUG Co,,
June 26, 2006 and CIR vs. BECOLANDIA DRUG Co., July 1, 2006, the SC says that it is
considered as expropriation. The general rule is payment must be in money. The only
exception is when it is taken by the government to implement land reform program,
because it is by nature revolutionary, where payment can be made partly in cash or land
bank bonds, otherwise it should always be money. How about tax credits? This can be a
form of payment of JC. In these two cases, the tax credit given to commercial
establishments for the discounts involved by senior citizens pursuant to RA 7432 is a
form of JC for private property taken by the state for public use since the privilege
enjoyed by senior citizens does not come directly from the state but from private
establishments concerned. Another case decided by the SC, OSG vs. AYALA LAND INC.,
September 18, 2009, about the parking toll fees demanded from the clients xxx, there
was a question whether mall owners can collect parking fees when it is their
responsibility to provide for parking space. The SC sustained mall owners to impose
parking fees because otherwise that would amount to expropriating the property without
JC. The SC said that the total prohibition against the collection by respondents of parking
fees from persons who use the parking mall facilities has no basis in the National
Building Code, or its implementing R&R’s. The state cannot impose the same prohibition
by generally invoking police power since said prohibition amounts to a taking without
payment of JC. There was one question requiring private schools to grant scholarships to
poor and deserving students. This is compensable. It is an exercise of eminent domain,
not of police power. It is taking an income because that would be loss of income. In
which case, there has to be payment of JC, which could be in the form of tax credit.
Remember, the nature of the property that can be subject of police power’s regulation
and eminent domain. For the former, the property could be harmful to the general
welfare and noxious. For the latter, it is always used by the public, for the general
Bill of Rights 18
welfare and for the public. In that case, it is compensable, by money, cash, land bank
notes or tax credits.
In the exercise of the power by LGU, take not of section 19 of the LGC. You have
guidelines there what properties can be the subject of expropriation by LGUs. There is an
order of priority, like first you have to take government lands, or alienable lands of the
public domain, or unregistered or abandoned lands. Private lands are the last lands that
can be the subject of expropriation. This is the subject of the case of CITY OF
MADALUYONG vs. AGUILAR. The requirements by the taking by LGU are there has to be
an ordinance, not a resolution, authorizing the local chief executive expropriating the
land. Then there must be an offer that is definite and valid in money to the property
owner. Then there is refusal by the owner. Then you can file the case. For noncompliance, the case is dismissible, not for lack of jurisdiction but for being premature or
lack of cause of action. Additionally, is dismissal of the expropriation case res judicata
judgment? It depends on the reason for dismissal. But generally, it is not bound by the
principle of res judicata.
On public utilities, like water districts, they are allowed to exercise expropriation power.
The law creating them are allowed. This is now a decided case. This is MCWD vs. JAY
KING & SONS CO., INC., April 16, 2009. The requirements for MCWD to exercise its power
of eminent domain, its BOD must pass a resolution authorizing its expropriation, and the
exercise of the power is subject to review and approval by the LWUA – Local Water Utility
Administration.
Section 10. NO LAW IMPAIRING THE OBLIGATION OF CONTRACTS
SHALL BE PASSED.
Discussion:
Anything that changes, modifies the terms and conditions of the agreement affecting the
rights and obligations of the parties with respect to the contract, that is an impairment,
and no law shall be passed to this effect. The law referred to is not limited to those
passed by Congress, but also ordinances by LGUs, and administrative R&Rs. For
example, a marriage contract. This is not the kind of contract subject to the nonimpairment clause, because marriage is not an ordinary contract but it is a social
contract, inviolable social institution where public interest is involved. Term of public
office is not a contract, it is not a property but perhaps only for the purpose of recovery
(quo warranto proceedings) otherwise, it is not a property. So, if you are elected for a
definite term, that is your contract with your constituents. If you are dismissed before
the term expires, you cannot say there is impairment of the contract because it is not the
kind of agreement subject to the clause. Licenses are not covered as well. Pensions are
not covered, concessions like for logging for example, are also not applicable because
these are privileges granted by the state and not considered as contracts guaranteed
under the clause.
The exceptions to the clause are police power. Anytime the contract can be impaired for
as long as it is for the promotion of the general welfare. Next is eminent domain. So
even if you have a contract of lease, and the government decides to take the land
subject to the lease, you cannot invoke the clause. However the lessee whose right may
be affected by the exercise of the power can always demand the payment of JC. Next is
taxation. Can the state pass laws increasing taxes and applying it retroactively to
contracts entered into before the tax law was passed. Yes, because they are the
lifeblood of the government. There is no limit to this. On the matter of revocation of the
tax exemption. Can the state grant a tax exemption that was previously granted by law,
but then a subsequent law was passed revoking and thereby changing the agreement
that you supposedly have with government? It depends. Whether the grant of tax
exemption is with valuable consideration or gratuitous. If latter, that can be impaired
anytime. If the former, the law granting the exemption partakes the nature of a contract
and thus cannot be impaired by a subsequent law. Another exception is when the
parties waive the clause, which is stated in the contract. There is the case ELIZALDE, as
against between the non-impairment clause and the freedom of religion. Usually in
Bill of Rights 19
recovery, to protect the interest of the union, they will enter into a CBA with the
company, stating that those who will enjoy the agreement will be the legitimate
members of the union recognized by the company. This is a closed-shop agreement, and
is allowed for purposes of protecting the union members to ensure membership in the
union. But there are some religious sectors like the INK that do not allow the members
to be union members. So there is a conflict. Now, here is a law passed exempting the
members of Iglesia ni Kristo from being members of the union under the closed-shop
agreements but they still enjoy the benefits. Is this a violation of the closed-shop
agreement? The SC said that there is no violation of the closed-shop agreement because
as between freedom of religion, and the non-impairment clause, freedom of religion
prevails.
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.
Discussion:
You have article 272 of RPC implementing. There is no involuntary servitude in any form
that hall exist except when you are convicted of a crime by final judgment and part of
the penalty is to render forced labor. Another exception is service in defense of the
state. Naval enlistment. Able- bodied citizens may be required to render services for the
community. Return-to-work order. Patria potestas insofar as moneyed children, as part
of the discipline may be compelled to render household chores. In the case of CUENCA
vs. SALAZAR, referring to a helper who wanted to go home but was refused by the
employer, cannot be compelled, even if there is an existing contract.
Section 20. NO PERSON SHALL BE IMPRISONED FOR DEBT OR NONPAYMENT OF A POLL TAX.
Discussion:
The debt must arise from a contract not from the commission of the crime. Take note
that if you go to a hotel, and you do not pay, that is estafa and you can be put to jail. If
you rent a house and you cannot pay, you cannot be imprisoned. VERGARA vs.
GUIDORIO, SC said that debt refers to civil debt or one not arising from a criminal
offense. The non-payment of rentals is covered by the constitutional guarantee of nonimprisonment of debt.
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 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 PREFERRABLY OF HIS
OWN CHOICE. IF THE PERSON CANNOT AFFORD THE SERVICES OF
COUNSEL, HE MUST BE PROVIDED WITH ONE.
THESE RIGHTS
CANNOT BE WAIVED EXCEPT IN WRITING AND IN THE PRESENCE OF
COUNSEL.
(2) NO TORTURE, FORCE, VIOLENCE, THREAT,
INTIMIDATION, OR ANY OTHER MEANS WHICH VITIATE THE FREE
Bill of Rights 20
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.
Discussion:
Rights of the accused before a criminal prosecution and during the criminal prosecution.
The moment he is arrested he is entitled to rights like the custodial right, right to bail,
even before the filing of the case that is his right for as long as he is deprived of physical
liberty even if no case yet is filed in court.
On custodial rights, there is procedural due process of law. You cannot be arrested for
any act or omission not punishable by law, no matter how immoral. If arrested for a
crime, the rights are the right to remain silent, to be assisted by competent and
independent counsel preferably of his own choice. He shall not be placed in solitary
confinement, and no confession or admission shall be extracted using force, intimidation
or any means that would vitiate his free will. Anyone who violates these rights shall be
subject to criminal, civil and administrative investigation for determination of the liability,
he is also entitled to rehabilitation and compensation. On the matter of custodial right,
let us first define custodial investigation, because these rights are only enjoyed when
there is custodial investigation. Custodial investigation is when one is arrested and there
is an investigation conducted after the arrest, or when he is deprived of his physical of
liberty or freedom of action in any significant way. It’s an investigation conducted by a
law enforcer, NBI, policeman, and must be done after arrest or in any way the accused is
deprived of his freedom of action including invitation of a suspect to a police station.
Confessions made to a media man are admitted as an extrajudicial confession because a
media man is not a police officer. As regards to the conduct of investigation of a COA
Auditor, for example, the municipal treasurer was found to be short of sums of money,
and the treasurer admitted to have used the money for personal benefit. Is this
admissible in evidence, not having been informed of her rights and assisted by counsel.
Yes, because there was no custodial investigation. First, she was not arrested. Second,
the investigation was conducted by a law enforcer. The inquiry should focus on the
person as a suspect in the commission of the crime, because if it is only a general
inquiry, it is not included. A police line-up is not included because this is only part of the
usual police procedure in the investigation but not focusing on the person as the suspect,
unless the line-up is only an affirmation, then he is entitled to custodial rights, like the
right to remain silent and the right to be assisted by counsel including the right to be
informed that he has these rights. The right to be informed of his rights cannot be
waived. The right to remain silent, he cannot be made to answer questions that would
implicate him to the crime. This is not limited to oral utterances but also includes acts
that are communicative in nature, save for mechanical acts, like re-enactment of the
crime. Another is being made to sign an inventory receipt after the search was
conducted, attesting to the fact that these are the things seized and searched, including
shabu, without assistance of counsel, right after the arrest. Then you have giving a
sample of handwriting, it is not a mechanical act because you use an intelligence and
free-will in order to write something, so you cannot be compelled. But if you are
confronted with a document and asked – IS THIS YOUR HANDWRITING - and you answer
– NO, THAT IS NOT MY HANDWRITING – then you are considered to have waived your
right to invoke your right against self-incrimination, You should not deny, but instead
invoke the right of self-incrimination. The right to remain silent refers only to questions
Bill of Rights 21
that will implicate you, and not to factual matters. There was this one Sandiganbayan
case wherein a postman was arrested and right there and then, he was made to put
initials on the envelopes recovered from him without the assistance of counsel. The
initials are not admissible.
Mechanical acts. Can you be compelled to go through paraffin tests, DNA test,
fluorescent blue powder test, pregnancy test. In the case of PEOPLE vs. YATAR, the SC
said that the admissibility and probative value of DNA evidence, courts should consider
the following factors: how they were collected, how they were handled, the possibility of
contamination, the procedure followed in analyzing the samples, whether the proper
standards and procedures were followed, and the qualification of the analyst. The kernel
of the right is not against all compulsion but only against testimonial compulsion. It is
against the legal process of extracting from the lips of the accused an admission of guilt
and does not apply where the evidence sought to be excluded is not an incrimination but
as part of object evidence. PEOPLE vs. RONDERO, SC said that although accused
contends that the hair samples were forcibly taken from him and submitted to the NBI for
forensic examination, it may be admitted because what is proscribed is the use of
testimonial compulsion or any evidence communicative in nature acquired from the
accused under duress. Hence, a person may be compelled to submit to finger-printing,
photographing, paraffin, blood and DNA as there is no testimonial compulsion involved.
On the right to be assisted by competent and independent counsel, this is absolute in a
custodial investigation as compared to the right of counsel during a criminal prosecution.
In fact, this cannot be waived, except in writing and in the presence of counsel in fact.
Competent means for as long as he is a member of the bar, he is presumed to be
competent. The test is whether he was vigilant in protecting the interests of his client.
As to independent counsel, there should not be any conflict of interest between the client
and another client that he is representing. The choice of independent and competent
counsel is not exclusive to the accused, though it may be a right. This is different from
the right of the accused in a criminal prosecution. The only important thing in the
assistance of counsel which the court has the responsibility to provide to the accused is
during the arraignment. In fact, if the accused will manifest that he cannot afford the
services of counsel during the arraignment, it is the duty of the court to provide for
counsel de officio to assist the accused, otherwise that could be the subject of
administrative sanction against the judge.
In assistance of counsel, if there is a waiver, it must be in writing and with the assistance
of counsel. If there is no other lawyer in the place, you must bring him to the place
where there are lawyers who can attest that he waived his right to be assisted.
Confession and admission must be done in writing in the presence of counsel, and other
authorities that need to be present. Just go over RA 7438 on custodial investigation and
relevant provisions on criminal procedure relating to this.
There are some cases that I researched on – AMPONG vs. CSC, a party in an
administrative inquiry may or may not be assisted by counsel. It is not a constitutional
right in an administrative case.
PEREZ vs. PEOPLE, while investigations by an
administrative body may at times be akin to a criminal proceeding, a party in an
administrative inquiry may or may not be assisted by counsel irrespective of the nature
of the charges and of respondent’s capacity to represent himself, and no duty rests on
such body to furnish the person being investigated with counsel. Like investigations
conducted by the Ombudsman. You should make a difference, criminal = custodial
investigation; administrative = administrative adjudication. In criminal investigation,
there has to be a lawyer; in administrative, it is not mandatory.
Section 13.
ALL PERSONS, EXCEPT THOSE CHARGED WITH
OFFENSES PUNISHABLE BY RECLUSION PERPETUA WHEN EVIDENCE
Bill of Rights 22
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 PF THE WRIT OF HABEAS CORPUS IS
SUSPENDED. EXCESSIVE BAIL SHALL NOT BE REQUIRED.
Discussion:
Right to bail is only available in criminal proceedings only, not in deportation and
extradition because these are administrative in nature, at least generally. When is it a
matter of right, discretionary on the court, and when should it be denied? Let’s
differentiate. Cases filed in the first level courts, and cases filed in the second level
courts, before and after conviction. Before conviction, before the first level court, the
right to bail is a matter of right. The guiding principle is except when the accused is
charged with an offense punishable by reclusion perpetua (RPC) or life imprisonment
(special law) or death. In other words, capital offense. Definitely, offenses before the
first level courts are not capital, so before conviction, bail is a matter of right, regardless
of the number of times the accused jumped bail. The court can only increase the risk by
increasing the amount of bail, but it cannot be denied. If convicted, and the judgment is
appealed to the RTC, is it a matter of right of the accused to continue enjoying his
provisional liberty under the same bail bond? Take note of the exceptions which must
concur – capital offense and evidence of guilt is strong. It is not a capital offense though
the evidence of guilt is strong. Therefore, it is still a matter of right.
RTC. Before conviction, if the offense charged is reclusion temporal or less, it is a matter
of right. But if it is not the civilian court but a military tribunal, bail is not available
regardless of the offense charged. If convicted less than reclusion perpetua or life
imprisonment, and he is now appealing the judgment to the CA. It is discretionary on the
court but take note of the rules on Criminal Procedure relating to those convicted and the
penalty is more than 6 years of imprisonment attended by recidivism, habitual
delinquency, record of him having jumped bail, evaded sentence, violated his probation,
then it should be denied by the trial court but without prejudice to applying for bail in the
appellate court, which is discretionary to the appealte court, otherwise if it is not
attended by those circumstances, it is discretionary on the trial court for as long as the
penalty is less than Life Imprisonment or Reclusion Perpetua.
The moment the
circumstances are present, the discretion will be removed and bail should be denied. So,
MTC – before and after conviction, it is a matter of right. At RTC, before conviction, for
offenses that are less than LI or RP, it is a matter of right but once convicted, it is
discretionary as a general rule, unless the circumstances are present.
When the accused is now charged with an offense charged with RP, LI or death. What
will happen here is that in the information, there is a recommendation of no bail. It is the
court that fixes the bail, and the fiscal can only recommend. If you are the accused and
you do not apply for bail, you will have waived your right to bail. The court is not obliged
to initiate a hearing on whether or not you are entitled to bail if you do not apply, where
there is no recommendation for bail. So, if you apply for bail, two questions – should the
court deny it outright because he is charged with a capital offense without hearing, when
there is a manifestation of the fiscal of no objection. The hearing is mandatory, whether
or not the fiscal agrees to the application for bail by the accused because ultimately it is
the court that decides because the court needs to determine the evidence. Thus, it is
discretionary in that sense. This is not the same as proof of guilt beyond reasonable
doubt. This is higher than probable cause and lower than proof of guilt beyond
reasonable doubt. The moment the court finds that the evidence of guilt is strong,
regardless of health reasons, the court must deny it outright. The discretion is removed
by law. Two requisites must concur again – capital offense, and the evidence of guilt is
strong. Assuming that bail is denied, convicted however for a lesser offense, murder to
homicide only, the accused cannot apply for bail and demand it as a matter of right. It is
also not discretionary because the reckoning period for determining the two requisites is
the time of the filing of the case. The basis is the original charge, not the charge which
he is convicted of. The original charge was murder, definitely that is a capital offense.
The fact that he is convicted is more than the evidence of guilt being strong. It should be
Bill of Rights 23
denied because the appellate court can always reinstate the original charge to murder.
So apply it to the appellate court, not with the trial court.
This right is not available in extradition and deportation proceedings. But take note of
GOVERNMENT OF USA vs. PURUNGANAN, which was reiterated in the case of
GOVERNMENT OF HK vs. JUDGE OLALIA, JR, April 19, 2007, the exception is that it may
be granted it there is a clear and convincing evidence that the person is not a flight risk
and the person will abide with all the orders and processes of the extradition court. The
SC said that the bail is not a matter of right in theses cases, but it may be granted if it
can be shown that granted bail, the applicant will not be a flight risk or a danger to the
community, and there exists special humanitarian and compelling reasons. Same with
deportation proceedings. Another point, if a minor is charged with an offense that is
capital in nature, you need to consider the privileged mitigating circumstances of two
degrees lower, thus it is always a matter of right even if evidence of guilt is strong and
charged of a capital offense.
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.
Discussion:
During a criminal prosecution, these rights are presumption of innocence, right to be
heard, to public trial, speedy trial, impartial tribunal, face to face confrontation of
witnesses, compulsory processes, against self-incrimination, against ex-post facto law,
against bill of attainder, against double jeopardy, against cruel and excessive and
unusual punishment.
Presumption of innocence. It is not for the accused to prove he is innocent. The burden
of proof lies with the prosecution to prove that he is guilty beyond reasonable doubt.
Even if the accused has no evidence, but if the evidence of the prosecution is equally
barren, then the accused should be acquitted. If the evidence of the accused and the
prosecution is equal in weight, under the equipoise rule, the accused should be acquitted
because he has in his favor the presumption of innocence. Take note of some conflicts
with presumption of innocence like presumption of laws that would presume guilt on the
part of the accused like possession of stolen property, that is not a violation of the
presumption of innocence because there is a natural connection between the facts
presumed and the facts ultimately proved, for as long as they are directly connected.
Another right is the right to be informed of the nature and cause of the accusation
against him. The basis is the information. The prosecution should not be allowed to
introduce evidence that would prove the elements of the crime not alleged in the
information. During the trial, the accused is found guilty of another offense, like the
charge is homicide but it is found that he is guilty of murder, he cannot be convicted as it
would violate such right. But in the case where he is charged of frustrated murder, but
the elements have not been proved by the prosecution because the injury was not fatal,
can he just be convicted of frustrated homicide or physical injuries? Yes, he can because
Bill of Rights 24
they are included in the crime of murder as alleged in the information. Because he was
informed but only that all the elements have not been proved to qualify the crime as
frustrated murder, but the essential elements of the offenses included in the crime are
still alleged in the information. This is done during the arraignment thus that is why his
presence in the arraignment is indispensable, and no trial in absentia can proceed
without the accused first being arraigned in compliance with due process of law and
assisted with counsel.
Then there is the right to be heard by himself and counsel, that he has the right to be
present in every stage of the trial, from arraignment to the promulgation. However it
cannot be waived. The thing that cannot be waived is arraignment and when he is
needed to be identified by prosecution witness. During the trial, every time he is
assisted with counsel but not as strict as the requirement of custodial investigation. So
for as long as he was notified and his lawyer was also notified and his lawyer does not
appear, he may have waived his right to present evidence or to cross-examine the
witnesses of the prosecution. During the trial, he can waive his right to be present. He
has first to inform the court. If the court finds it reasonable then he may be allowed to
be absent. When there is a need to identify him, because identity of the accused is
crucial to the prosecution of the case, he needs to be present and the prosecution can
demand his presence and should he fail that could be a ground to cancel a bailbond and
issue a warrant of arrest against him. The exception to the exception is when he has
waived his right to identity, he admits that he is the accused in the case. Otherwise, he
needs to be present. Can the court proceed in the absence of the accused? Can the
trial proceed without the accused? Yes. The requisites of trial in absentia are that he has
already been arraigned, that he was notified of the time, date and place of trial, and that
his absence is unjustified like when he jumps bail, or escapes from bail. Thus, if he is
absent only on a certain date of his hearing, he is only considered to have waived
whatever right he has on that day, not on the subsequent hearings. But if his absence is
unjustified, then subsequent hearings are also considered to have been waived.
In promulgation of judgment, the presence of the accused is indispensable. But he can
waive that right. If the offense charged is light, it is enough that his lawyer is around. It
can be promulgated even in his absence. So what would happen here? Usually, for
grave offenses, they will ask for a postponement, if the court grants it most likely the
judgment is conviction. If it is acquittal, whether or not grave or less grave, it can be
promulgated in the absence of the accused. When the accused jumps bail or escapes
from bail, it can be promulgated in absentia or ex-parte promulgation.
The right to a public, speedy and impartial trial. In the case of the SECRETARY OF
JUSTICE vs. ESTRADA, where it is said that a public trial is not synonymous with
publicized trial like broadcasting the proceedings. It only implies that court doors must
be open to those who wish to come, sit in the available seats, and conduct themselves
with decorum and observe trial. While open to the public is still within the control of the
court. Speedy trial. For as long as it is free from any whimsical or capricious delay, that
is okay. Postponement may be consistent with speedy trial as long as they are
reasonable and not whimsical. But if the delay is whimsical, and speedy trial is invoked
and case is dismissed, it is tantamount to acquittal and thus the re-filing or
reinstatement will amount to double jeopardy.
On face to face confrontation. The right to cross-examine the witnesses of the
prosecution by the accused. As a general rule, any witness not cross-examined by the
accused is not admissible. If the failure to cross-examine the witness is attributable to
the accused, then the testimony is admissible. There are exceptions though – hearsay,
like dying declarations, where the witness has gone abroad or become insane, or already
dead, then the affidavit or deposition can be given. Another exception is a child witness.
But you can still ask questions through a child witness through video but not face to face
confrontation.
On the right to compulsory processes, so that if no one is interested to testify on behalf
of the accused or refuses to produce the evidence needed by the accused to defend
himself, he can be compelled by subpoena – duces tecum (produce evidence and testify)
and ad testificandum (compelled to testify).
If the witness’ testimony is selfBill of Rights 25
incriminating, he cannot refuse to take the witness stand. The subpeona says under the
penalty of law. He can only invoke this right when asked incriminating questions at trial
but he cannot refuse to take the witness stand. He can testify on mattes that may
incriminate him if he is given immunity – transactional (witness protection; granted to a
person who is made as a state witness) and the use and fruit immunity (his compelled
testimony cannot be used against him). But he can be prosecuted by the compelled
testimony but cannot be used against him. On transactional immunity, his compelled
testimony cannot be used against him and he cannot be prosecuted related to his
compelled testimony. With evidence, if the evidence will incriminate the witness, the
cannot refuse to take the witness stand but it may not be used against him (use and fruit
immunity) and he may not also be prosecuted using that compelled evidence against
him (transactional immunity). Being compelled to testify in behalf of the accused, there
is a limit to that like residence some distance away from the court and etc.
The right to speedy disposition of cases. This sets in when the case is already submitted
for decision. The trial courts are given a period of three months, 12 months for the
appellate court and 24 months for the SC. This is directory in the sense that judgment
rendered beyond the period of time is still valid, but mandatory in the sense that the
judge can be sanctioned for violating this provision. Read the case of TATAD vs.
SANDIGABAYAN, where there is a delay of three years in the preliminary investigation, so
the SC said that where the case for the violation of the Anti-Graft law pending for a
preliminary investigation with the Tanodbayan for three years, it is indicated that the
case is of simple nature and prosecuted for political reasons, it is held that there was a
violation of the right of the accused to speedy disposition of the case. The right extends
to preliminary investigation.
Section 17. NO PERSON SHALL BE COMPELLED TO BE A WITNESS
AGAINST HIMSELF.
Discussion:
The kernel of this right is that he cannot be compelled to testify against himself. As to
the matter of using him as a witness, in civil cases, you cannot refuse to take the witness
stand but you can invoke the right against self-incrimination when you are asked a selfincriminating question. In criminal cases, if he is only one accused, you cannot make
him as a witness of the prosecution. The moment he is called to the witness stand he
can already invoke this right and thus he cannot be compelled to testify. In an
administrative case, the same because an administrative proceeding is the same as a
criminal proceeding as stated in the case of STANDARD CHARTERED BANK vs. SENATE
COMMITTEE ON BANKS, where the SC said the right against self-incrimination is extended
to an administrative investigation that partake of the nature of or are analogous to
criminal proceedings. The privilege has consistently been held to all proceedings
sanctioned by law and all cases where punishment is sought to be visited to a witness
whether a party or not. This is also in the case of PASCUAL vs. MEDICAL EXAMINERS,
where the SC said that this is applicable to proceedings which could possibly result to
loss of a privilege to practice medical profession. The right against self-incrimination is
available to administrative hearings when the nature of the penalty is penal in nature like
forfeiture of property or dismissal from employment, and the hearing partakes of the
nature of a criminal proceeding. So, in civil cases, the defendant can be made an
adverse witness of the plaintiff. He can only invoke the right the moment he is asked an
incriminating question. In criminal and administrative proceedings, the accused cannot
be used as a witness, he can refuse to take the witness stand. In a criminal case, where
there are several accused, can the testimony of one accused be used against a coaccused. Remember, that if there are several accused it is on the basis of conspiracy,
and the theory is that the act of one is the act of all. If the testimony of one accused
practically admits to the commission of the crime, on the theory of conspiracy, it is also
an admission of the rest of the accused to the commission of the crime. Hence you
cannot use the testimony of the one accused against the others. What you can do is
make him a state witness, because he is already considered acquitted when he is a state
witness. Another is when he is already convicted, then the other accused are arrested
and is now prosecuted, or acquitted. You can now use the testimony of the accused. Or
Bill of Rights 26
in a separate trial. You can use one’s testimony against the co-accused. This right also
applies in legislative inquiries, in fact it’s one of the limitations.
RIGHTS OF THE ACCUSED
The last topic that we talked about was the rights of the accused during criminal
prosecution. Briefly, you have the presumption of innocence, you have the right to be
informedof the nature and the cause of accusation against the accused, and you have
the right to be present in every stage of the trial of the case, you have the right to be
assisted by a counsel, you have the right to a public, speedy and impartial trial, you have
the right to have a face to face confrontation of the witnesses, you have the right to due
process and you have the right against self-incrimination. You also have trial in absencia.
Right to have a Face to Face Confrontation of the Witnesses (CROSSS
EXAMINATION)
Just to go back to the right to have a face to face confrontation of witnesses, you take
note of the exceptions. General Rule the accused has the right to cross examine the
witnesses of the prosecution to test the veracity of their testimony and at the same time
for the judge to observe the deportment of the prosecution’s witnesses. Take note that in
compliance of the due process, what is granted to the accuse is the opportunity of cross
examination. Not actual cross examination. For as long as the accused he is given that
opportunity however he did not avail of the opportunity. If he fails to cross examine the
witness of the prosecution whose fault is attributable to the accuse then forever he
would lose the right to a face to face confrontation of the witnesses. So for example
when it was his time to cross examine the witness but however his lawyer asked for a
continuance or a postponement of the cross examination of the witness and thereafter
the witness died or he became insane or he went abroad, should the testimony of the
witness be expunge form the records of the case for failure of the accused to cross
examine the witness? No, he had the opportunity but he did not avail of the opportunity.
Exception: CROSS EXAMINATION
Take note, however if the failure to cross examine the witness was for reasons not
attributable to the accused then the testimony of the witness which has not been cross
examined by the accused then it can’t be used as evidence against him and it can be
expunge from the records of the case. The only exception to that is the DYING
DECLARATION as an exception to the hearsay rule. You also have when the
WITNESS HAS BECOME INSANE OR WHEN THE OWNER HAS DIED OR GONE
ABROAD ALREADY, the case where he is no longer available as a witnessthen his
testimony might stay part of the records of the case. You also have as an exception
relating to a CHILD WITNESS, where there might be no face to face or physical
confrontation between the child witness and the accused because of the provision on the
Rules relating to the examination of child witness to protect the child.
Right against Self Incrimination
And then you have the right against self-incrimination. What is prohibited is testimonial
compulsion and this applies to judicial proceedings and quasi-judicial proceedings and
even in legislative investigation as one of the limitations of the power of Congress to
inquire matters to any witness, he has the protection against self-incrimination. Take
note, that this is only available to a natural persona and this is not available to a juridical
person. Also take note of Mechanical acts which are considered as object evidence which
will not include intelligence and free will. Even if they are self-incriminating, they are still
admissible in evidence.
Again you take note of the case of Vallejo and the Yatar case.
Another point relating to the compulsory process on subpoena, for as long as the records
are public in nature, even if the production of which would incriminate the custodian, he
cannot refuse to bring and produce those documents and testify thereon on a subpoena
duces techum. That is if they are public records.
Bill of Rights 27
Other rights of the accused.
Let’s go to the other rights of the accused. I think what we are supposed to discuss this
evening is only on ex post facto law, the bill of attainder, and the double jeopardy.
Ex post facto law
What is ex post facto law? Very basic, it is a law that punishes an act when committed it
was not yet a crime. Or when it was already considered a crime, it aggravates the crime
by changing the punishment and inflicting stiffer penalty on the perpetrator or on the
person. Or when it changes the rules of evidence that would remove or deprive the
accused of certain rights. Take for instance, on the matter of the quantum of evidence
that is required in order to convict the accused, instead of guilt beyond reasonable
doubt, you will have mere preponderance of evidence or substantial evidence in order to
convict the accused. Such is not allowed if it is applied retroactively.
What makes it an ex post facto law, aside from the fact that it involves penal laws that
imposes penal burden or it makes an act a crime, is that when it is applied retroactively.
There is a retrospective application of the penal law on the person, and it is always to the
disadvantage of the accused. So that even if it is a penal law, however if applied
retroactively it is beneficial to the accused, then in which case it is not considered as an
ex post fact law, and that it can be applied retroactively.
Ex post post facto law is not limited to laws passed by Congress.
The only thing that you should take note is that this concept of ex post facto law is not
limited to laws passed by Congress. The clause ex post facto laws likewise apply to
judicial decisions. Jurisprudence that is a precedence, that is established by the SC,
cannot be applied to cases that were filed and decided by the courts prior to the
rendition of that decision by the SC. EX post facto law can still be invoked if applied
retroactively to the disadvantage of the accused. As well as to the local laws. As long as
the three requisites are present: it involves criminal matter, it is imposed retroactively,
and to the disadvantage of the accused.
Bill of Attainder
And then you have the Bill of Attainder, it is also prohibited. When a person is punished
to death without judicial trial, it is what we called bill of attainder. This includes bill of
pains and penalties where the penalty is less than death. It is still part of bill of
attainder, but in particular, we describe it as bill of pains and penalties, both prohibited
for those passed by Congress and even through local legislation – that is prohibited.
Take note the requisites. It is a law that inflicts punishment without judicial trial. It is a
penalty - it is a penal burden against the person. It could be deprivation of a right – like
to the practice of your profession, for example. So it is not limited to imprisonment.
Like the law requiring that you should be loyal to the republic and if you should fail to
show your loyalty to the republic, you will be disqualified for appointment. Here, there is
the presumption that you are guilty already of a crime of disloyalty to the republic like
subversion. There is already that presumption, and you are already judged by that fact
and you are penalized under that law without judicial trial. What is the penalty there?
The penalty is the disqualification for appointment. Or let as say if you are disloyal to the
republic, you cannot practice your profession as a lawyer. Here, without any proceeding
or trial, you are already found guilty and you are punished accordingly by the law. That is
prohibited.
The thing that you must take note is that the requirement here that it has to be
addressed to a particular individual, it may not point to a specific person but it could be
to a class or group of individuals. For as long as their identity are ascertainable or
identifiable, and the consequence of which it imposes or inflicts penal burden on them
without judicial trial, then that is considered as a bill of attainder.
The problem is the confusion between an ex post facto law and the bill of attainder. You
would know easily the difference because in ex post facto law, there is the retroactive
Bill of Rights 28
application, while in bill of attainder, it can be applied either retroactively of
prospectively. And both are prohibited.
Before I go to double jeopardy, go over Section 22 under R.A. 8249. This was asked one
time in the bar exam. This is relating to procedure. Do you recall the case of Lacson –
that is about Kuratong Baleleng? He was charged before RTC, and then the law on
jurisdiction, the Sandiganbayan was amended wherein high-ranking officials regardless
of the crime filed against them have to be tried before Sandiganbayan. Because of the
amendment, the case was transferred from RTC to the Sandiganbayan, and then later it
went back to the RTC and then finally it was dismissed because apparently double
jeopardy set in because there was a provisional dismissal and the period of time like two
years had already lapsed and there was no reinstatement of the case, and so it was
down to double jeopardy.
At any rate, the SC said, in so far as jurisdiction of the court is concerned, it is merely
procedural. In fact there was a case before that – Nunez vs. Sandiganbayan. While it
may involve prosecution of crimes, but it is not at all that defines what a rime is or that
involves punishment for the crime. It is simply a substantive law defining what
jurisdiction is and therefore, it is not considered an ex post fact law and it can be applied
retroactively.
Sinco Notes: RA 8249. An act which further defines the jurisdiction of the Sandiganbayan,
is not a penal law but a substantive law on jurisdiction whose retroactive application is
constitutional (Lacson vs. Executive Secretary, 301 SCRA 298).
And then you have the case of Nasi-Villar vs. People (571 SCRA 202). It says: A law can
never be considered ex-post facto law as long as it operates prospectively since its
stricture would only cover offenses committed after and not before its enactment. So
even if it is to the disadvantage of the accused, however it is applied only at the time the
crime was committed, there will be no violation of the ex post facto law.
In the case of Peple vs. Jabinal (55 SCRA 602). It says: The prohibition of the ex post facto
laws and bill of attainder applies to court doctrines pursuant to the maxim “legis
interpretatio legis vim obtinet” – the interpretation placed upon the written law by a
competent court has the force of law.
That is why I said earlier that even decisions of the SC if there are criminal matters and if
applied retroactively it would be to the disadvantage to the accused, it cannot be applied
because it can also be considered as an ex post facto law.
Another one, People vs. Patoc (398 SCRA 62): the law making the use of an unlicensed
firearm a qualifying circumstance in murder cannot apply retroactively.
It considered as one single crime. Before it used to be separate offenses: illegal
possession of an unlicensed firearm and the crime murder. Because of the decision of the
SC, SC said it is only a qualifying circumstance. And not as a separate offense. This is a
different story. The first case is when the unlicensed firearm is used as a qualifying
circumstance, and in another case, two separate offenses. But he SC says that the
unlicensed firearm case will now be a qualifying circumstance to a case of murder. It is
absorbed in other words in the crime murder.
The SC says in the case of People vs. Patoc, it cannot be applied retroactively because it
would be to the disadvantage of the accused for it would aggravate the crime. From
simple homicide, it becomes murder because of the use of unlicensed firearm.
Now in the law making the use unlicensed firearm, there is no other offense charged.
What do you think if the unlicensed firearm is used as a qualifying circumstance to a
murder case.
Which is more advantageous? Being charged with 2 different offenses or a complex
crime? I suppose the single offense is more advantageous. Read the case of PATOC.
Double Jeopardy
Bill of Rights 29
You have Section 21. If you can memorize it, the better. You have two types. Number one
is when you are charged with the same offense. So “same offense principle.” You are
charged with a particular offense, and after the termination of the proceedings of that
charge, you are charged again by the same offense. That is what we meant by the same
offense.
The second kind of double jeopardy is when you are charged with violation either of the
law or an ordinance. Conviction or acquittal under either is a bar to another prosecution
for the same law or ordinance. So here, it is the law and the ordinance for which you are
being charged.
Requisites in Double Jeopardy
Basically, let’s have these requisites before we go further.
Let's go now to double jeopardy. On double jeopardy, to master it, take note of the
requisites: 1) there has to be the 1st jeopardy. The 1st jeopardy is premised on a valid
complaint or information. 2) the accused was arraigned and entered a valid plea. 3) the
court has authority to hear and try the case. Three requisites: valid complaint; arraigned;
and the court has authority to hear and try the case.
For example: in a case where the accused is charged with an offense where the elements
of the crime were not alleged in the information. Upon motion of the accused, they move
for the quashal of the information. And the information of the case was dismissed. After
the information was amended it was refiled.
QUESTION: will there be double jeopardy by the refiling?
If no offense was charged on the basis of the allegations in the first information, then
there can never be a 1st jeopardy because one of the requirements to constitute a 1 st
jeopardy, there has to be a valid complaint or information filed against the accused. Then
the court has competence, it's competent to hear and try the case. So, in the case, for
example, of murder, is filed with the MTC, and the MTC dismisses the case. The case is
filed with the RTC.
Will there be double jeopardy of the filing of the case with RTC?
The answer is NO because in the first place, there was never a 1 st jeopardy because the
court did not have jurisdiction over the case. It would be as if the case was filed for the
first time with RTC.
Then you have the accused after having been arraigned pleaded guilty. Thereafter,
usually, the court will allow the accused to present evidence to mitigate the penalty by
allowing him to present mitigating circumstances. What if later, instead of presenting
mitigating circumstances evidence, he was able to establish (in a case, for example, of
homicide) complete self-defense and the court believed in the accused and so the court,
when a decision was made, acquitted the accused.
QUESTION: can the prosecution appeal the decision of acquittal in this case?
Remember that as a general rule the prosecution precisely cannot appeal a judgment of
acquittal because such would constitute double jeopardy. Remember once a case is
appealed, it has to go through a new trial, this time before the appellate court. In the
circumstances that I have given to you, where the accused was acquitted after allowing
the accused to present mitigating evidence, instead he presented complete self-defense
evidence and was acquitted.
Can the prosecution, in this case, appeal the judgment of acquittal without running afoul
against the principle of double jeopardy?
The answer is YES. Why? Because while the accused was arraigned, he entered an
invalid plea or if not, he _____ plea entered that led to the acquittal. How was that?
Remember that he pleaded guilty as charged. The moment he presented a complete selfdefense evidence, he is deemed to have withdrawn his original plea of guilty to the
charge. In as much as no other plea was entered thereafter, as if then the accused has
never entered a plea. In which case, what happens now, in as much as there was no
Bill of Rights 30
valid plea entered, then there has never been a termination of the 1 st jeopardy. In other
words, there was never a 1st jeopardy to speak of. In which case, the prosecution can
appeal the judgment of acquittal because in this case the acquittal was invalid for failing
to give the prosecution due process of law without the opportunity to rebut the selfdefense evidence. What should have been done in this case after the accused has
presented complete self-defense, the accused will be ask to, again, make a plea so as to
give the prosecution a chance to rebut the self-defense evidence. And nahitabo lang,
nag-una na ang accused pag-present ug evidence. Usually, in a self-defense evidence,
mag-una ug present ang accused thereafter ang prosecution. So, ang nahitabo unta ani,
while the accused presented self-defense after pleading guilty, is for the prosecution to
rebut. Before rebutting, what would the court do is to require the accused to enter a new
plea, substitute the original plea of guilty to not guilty.
In this case since it was not done, then it would be as if the accused did not enter a plea.
The plea bargaining under the Rules of Criminal Procedure has to be with the approval of
the complainant and the public prosecutor except when after the complainant was
notified he/she did not appear and his/her disappearance is unjustified, then it is enough
that the public prosecutor conformed to the plea bargaining otherwise, in the absence of
these requisites, the plea bargaining is invalid. If for example, the complainant is against
the plea bargaining but the public prosecutor conformed to the plea bargaining for the
accused to plead guilty to a lesser offense and the court thereafter imposed a penalty as
pleaded by the accused for a lesser offense.
QUESTION: can the complainant appeal the judgment of conviction in this case to a
lesser offense?
The answer is YES because in the first place there was no valid plea entered. This 1 st
jeopardy must be terminated. How do you terminate the 1 st jeopardy? Either conviction,
acquittal or dismissal without the consent of the accused. You know what conviction is,
when the guilt of the accused is proved beyond reasonable doubt. As to acquittal, when
the guilt of the accused is not proved beyond reasonable doubt on the basis of
sufficiency of evidence. Another thing that you should take note on acquittal that might
constitute double jeopardy is that discharge of the accused as a state witness, that is
tantamount to acquittal.
So, when the accused is discharged as a state witness, and he/she does not cooperate,
can he/she be reinstated as an accused?
Answer is YES. Double jeopardy will not lie if he/she does not cooperate, however, after
testifying, the prosecution decided to reinstate his being an accused when they found
out that he/she is the most guilty of all the accused, can that be done? Answer is NO
because that would amount to double jeopardy.
The favorite of the BAR exam, not so much on the conviction or acquittal, it's more on
the dismissal without the consent of the accused. How do you know then that it is a
dismissal with the consent of the accused?
You would know because it is usually the accused who initiates dismissal of the case by
filing a motion to dismiss. If the case is dismissed upon motion of the accused, that is
generally considered as dismissal with the consent of the accused. Sometimes the term
use is demurrer to evidence or the quashal of the information.
Quashal that led to the dismissal of the case is a dismissal with the consent except when
one of the grounds is double jeopardy or the term has already prescribed, then in which
case, you cannot reinstate that anymore. Remember that there are several grounds on
the quashal of the information so, you also have to analyze what was the ground for the
quashal. Although it was initiated by the accused, it may not be necessarily constitute
double jeopardy.
Or if it's demurrer to evidence, you have to take note when was the demurrer to
evidence filed. This is a motion to dismiss for reasons of insufficiency of evidence.
If the demurrer to evidence is filed before the prosecution has rested and the case is
dismissed, can the case be refiled if dismissed?
Bill of Rights 31
Answer is YES because the motion to dismiss, the way to demurrer to evidence , was
upon the instance of the accused so the dismissal was with the consent of the accused.
Remember before the prosecution has rested. How can you be sure that the evidence
indeed is insufficient before the prosecution has completed its evidence, they filed a
motion to dismiss?
If the prosecution has not yet completed, it may not be dismissed and the proceedings
may continue. In other words, if it is granted, it is dismissed, can it be appealed? It can
be appealed because you cannot be certain yet if indeed the evidence of the prosecution
is sufficient because the prosecution has not rested its case.
If the demurrer to evidence is filed after the prosecution has rested its case and the court
dismissed the case because the evidence of the prosecution has not proven the guilt of
the accused beyond reasonable doubt that's tantamount to acquittal. Then in which
case, the reinstatement, the appeal of the dismissal or the reinstatement of the case
would amount to double jeopardy.
So you take note of the facts of the case. When was the motion to dismiss filed, before or
after the prosecution has rested its case.
Another ground for a motion to dismiss, when the ground for dismissal is the right to
speedy trial. If the ground is speedy trial and the case is dismissed because the right to
speedy trial of the accused is violated, can it be appealed or reinstated?
Answer is NO, that would amount to double jeopardy because dismissal is tantamount to
acquittal for failing on the part of the prosecution to prove the guilt of the accused
beyond reasonable doubt. Remember these two grounds: insufficiency of evidence and
the right to speedy trial. Because any dismissal, dismissal even if initiated by the
accused is tantamount to acquittal. So that the appeal or the refiling of the same case
would amount to double jeopardy which is prohibited.
When a case is dismissed, even with the consent of the accused (take note ha) like
in a provisional dismissal, depending on the penalty- if more than 6 yrs of impirsonment,
the prosecution has within a period of 2 yrs within which to reinstate the case. After
2yrs., DJ will set in where the prosecution is barred from reinstating the case. If the
penalty is 6 yrs or less- within 1 yr, failure to reinstate the case within 1 yr, DJ sets in.
That's Sec 8 Rule 117 of the Rules of Court. A provisional dismissal of a case becomes
permanent after the lapes of 1 yr for offenses punishable by imprisonment of not
exceeding 6 yrs or the lapse of 2 yrs for offenses punishable by imprisonment of more
than 6 yrs. For this rule to bar the subsequent filing of a similar case against the
accused, the following must be established: (1) there was a provisional dismissal which
had the express consent of the accused; (2) the provisional dismissal was ordered by the
court after notice to the offended party; (3) the 1 or 2 yr period to revive had lapsed; (4)
there is no justification to file a subsequent case beyond the period of 1 or 2 yrs. Case in
point, Pp vs. Lacson May 28, 2002.
Another point you should take note, after termination of the 1 st jeopardy, then you have
the filing of the same offense or for violation of the same law or ordinance. On the same
offense, you have one offense identical with the other offense, so that homicide and
murder they are identical and they differ only with the attendant of a qualifying
circumstance, so after homicide you're charge with murder of after murder you're
charged with homicide (same feeling), that already constitutes DJ with the assumption
that it's the same facts and circumstances or same victim.
It would be different if there are different victims, time and place of the commission of
the crime. When one offense is just a frustration or an attempt of the other case, then in
which case that would constitute already DJ. When one offense necessarily includes the
other offense or is necessarily included in the other offfense, take note of the test: take
note that they are identical or necessarily includes the other when you use the same
evidence, the evidence you presented in the first case is the same evidence that you
need to prove the second offense, in which case DJ sets in.
Supervening event principle
Bill of Rights 32
You just take note of the supervening event principle. When the offense developed into a
more serious offense like at the beginning he was charged only with serious physical
injuries and there is a supervening event which is the death of the victim, after the
accused was convicted with serious physical injuries, can he now be charged with
murder?
YES without DJ although serious physical injuries is necessarily included in the crime of
murder or murder necessarily includes the crime of serious physical injuries.
The rule is that the death must come after the filing of the case and conviction or
acquittal of the accused because if no amendment was made to the information
notwithstanding the occurrence of the death of the victim before the accused was
convicted then in which case you can not charge him anymore, DJ would set in.
For example: while a case was pending for serious physical injuries namatay ang biktima
pending pa lang, the prosecution- notwithstanding knowing that the victim died did not
amend the information, proceeded with the trial and finally the accused was convicted
for serious physical injuries, he CAN NOT be charged with MURDER this time. There is no
more supervening event, that is if the prosecution knew that the victim died while the
case was still pending.
If they came to know of the death only after the conviction of the accused, although it
happened during the pending of the case, would the supervening event principle apply?
YES. It is important therefore, knowledge of the prosecution of the supervening eventwhen before or after the case was terminated.
One time it was very hot (topic) relating to the matter of the second kind of DJ- when one
is charged for violation of the law and the ordinance punishing the same act or omission.
For example: Jaywalking is punished by law, meaning law passed by Congress, and an
ordinance by LGU. He was charged under violation of the law not the ordinance.
The only way to constitute DJ, there has to either be conviction or acquittal to bar
another prosecution for the same act punished by law or ordinance. So he gets convicted
for violation of the law, jaywalking, can he again be prosecuted for violating the
ordinance? NO, that would amount to DJ.
What if he was acquitted for violation of the ordinance, can he be charged for violation of
the law? NO, that would still constitute DJ.
What if there would be a dismissal of the case, it's neither acquittal nor conviction? Klaro
ang provision sa law, it's either conviction or acquittal is a bar to prosecution.
Remember what would also constitute acquittal- insufficiency of evidence where there
are no more witnesses appearing case was dismissed on insufficiency of evidence and
when the accused invokes speedy trial. So when the case is dismissed because the
accused invokes the right to speedy trial for violation of an ordinance, he can no longer
be charged for vioaltion of the law punishing the same act although it (the law) says
conviction or acquittal. Here dismissal is tantamount to acquittal.
The difficulty only of DJ is on the matter of offenses. You have to master the elements of
offenses because you can say that this (offense) is identical. Your guiding principle there:
Was the evidence presented proving the first offense is exactly the same evidence that is
needed to prove the second offense? In which case that would constitute DJ.
Bill of Rights 33