Constitutional Law II
 
 
Bill of Rights
I.  THE DUE PROCESS, EQUAL PROTECTION AND
CONTRACT CLAUSES AS LIMITATIONS ON POLICE
POWER, EMINENT DOMAIN AND TAXATION
                          Art. III, Sec. 1.  No person  shall  be
deprived of life, liberty, or property  without due  Administrative Due Process
process  of law,  nor shall  any person  be denied 
the  equal protection  of the  laws.
        
                          Art.  III, Sec. 10.  No law impairing the
obligation of contracts shall be passed.   justiciable  cases before administrative tribunals:
  
LIMITATIONS OF SOVEREIGNTY
 
                      Inherent in sovereignty, and therefore not
even required to be conferred by the  Constitution,
are the police, eminent domain, and  taxation
powers.  The Bill of Rights,  notably the  due
process, equal protection and non-impairment
clauses, is a means of limiting the exercise of these
powers by imposing on the State the obligation to
protect individual rights.  The Bill of Rights is
addressed to the State, notably the government,
telling  it what it cannot  do to the individual.
 
 
            A.  Due process - Procedural and Substantive
 
Civil Procedural Due Process
 
                          In civil cases,  the SC laid down  its
elements in the case of Banco Espanol Filipino v.
Palanca:
 
                          a.  Court  with  jurisdiction    over  the 
subject matter.
              b.  Court with jurisdiction over the party-
defendant
 
              c.  Judgement rendered according to law.
 
              d.  Defendant given the oppotunity to be
heard (requirement on notice and hearing)
 
Criminal Due Process
 
              In criminal cases, the  elements were laid
down in Vera v. People:
 
                          a.    Accused is informed why he is
proceeded against, and what charge he must answer.
 
                          b.  Judgment of  conviction is  based on  least 7 yrs. old if male and 11 yrs old if female upon
evidence that is not tainted by falsity, and after the
defendant was heard.
 
                                    If  the prosecution  produces the  not see, however, how the prohibition of the
conviction based   on untrue  evidence, then  it is  interprovincial transport of carabaos can prevent
guilty of depriving the accused of  due process.  Thus
false testimony  can    be  questioned  by    the 
accused regardless of the time that lapsed.
              c.   Judgment according to law
 
              d.   Tribunal with jurisdiction
 
 
                          In administrative  proceedings, the 
elements were laid down in the case of Ang Tibay v.
CIR as the "seven cardinal  primary rights"  in
                          a.  There  must be  a hearing,  where a 
party may present evidence in support of his case.
              b.  The tribunal must consider the evidence
presented by a party.
              c.  While the tribunal has no duty to decide
the case correctly,  its  decision must  be  supported 
by evidence.
              d.  The evidence supporting  the decision 
must be substantial.  Substantial evidence is such
relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
                          e.  The  evidence must have been 
presented at the hearing or at  least contained in the 
record and known to the parties affected.
                          f.  The  tribunal must rely on  its own
independent consideration  of    evidence,  and  not 
rely on the recommendation of a subordinate.
            g.  The decision must state the facts and the
law in such a  way that  the parties  can know the
issues involved and the reasons for the decision.
 
Substantive Due Process
 
Ynot vs. IAC, 148 SCRA 659 (1987) 
F:            Petitioners' 6 carabaos were confiscated by
the police for having been transported from Masbate
to Iloilo in violation of EO 626-A.  He brought an
action for replevin, challenging the consitutionality
of the EO.  The trial court sustained the confiscation
of the animals and declined to rule on the validity of
the law on the ground that it lacked authority to do
so.  Its decision was affirmed by the IAC.  Hence this
petition for review.
HELD:  (1)  Under the provision granting the SC
jurisdiction to "review, revise, reverse, modify or
affirm on appeal or certiorari, as the law or rules of
court may provide final judgments of lower courts" in
all cases involving the constitutionality of certain
measures, lower courts can pass upon the validity of
a statute in the first instance.
                      (2)  There is no doubt that by banning the
slaughter of these animals (except where there at
the issuance of the necessary permit) the EO will be
conserving those still fit for farm work or breeding
and preventing their improvident depletion.  We do
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their indiscriminate slaughter, considering that they
can be killed any where, w/ no less difficulty in on
province than in another.  Obviously, retaining the
carabao in one province will not prevent their
slaughter there, any more than moving them to
another province will make it easier to kill them
there.  As for the carabeef, the prohibition is made to
apply to it as otherwise, so says the EO, it could be
easily circumsbcribed by simply killing the animal.  is unavoidable.  As underlying the questions of fact
Perhaps so.  However, if the movement of the live
animals for the purpose of preventing their slaughter
cannot be prohibited, it should follow that there is no
reason either to prohibit their transfer as, not to be
flippant, dead meat.  it is an apporpriate response to a problem.
                      (3)  In the instant case, the carabaos were
arbitrarily confiscated by the police station
commander, were returned to the petitioner only
after he had filed a complaint for recovery and given
a supersedeas bond w/c was ordered confiscated
upon his failure to produce the carabaos when
ordered by the trial court.  The EO defined the
prohibition, convicted the petitioner and
immediately imposed punishment, w/c was carried
out forthright.  The measures struck him at once and
pounced upon the petitioner w/o giving him a chance
to be heard, thus denying him elementary fair play. 
                      (4)  It is there authorized that the seized
prop. shall "be distributed to charitable institutions
and other similar institutions as the Chairman of the
National Meat Inspection Commission may see fit, in
the case of carabeef, and to deserving farmers
through dispersal as the Director of Animal Industry
may see fit in the case of carabaos."  The phrase may
see fit is an extremely generous and dangerous
condition, if condition it is.  It is laden w/ perilous
opportunities for partiality and abuse, and even
corruption.  One searches in vain for the usual
standard and the reasonable guidelines, or better
still, the limitations that the said officers must
observe when they make their distribution.  HELD:  The SC has been most liberal in sustaining
VV.           ordinances based on general welfare clause.  VV.
 
         B.  Due Process and Police Power
 
 
Bautista v. Juinio, 127 SCRA 329 (1984)
 
Ban on Use of Heavy Cars on Week-ends and Holiday s
Valid.
 
F:         LOI 689 banned the use of vehicles w/ A and
EH plates on week-ends and holidays in view of the
energy crisis.  It excepted, however, those classified
as S (Service), T (Truck), DPL (Diplomatic), CC
(Consular Corps), and TC (Tourist Cars).  The resps.,
Min. of Public Works, Transportation, issued memo.
providing penalties for viol. of the LOI, namely, fine,
confiscation of vehicles, and cancellation of
registration.  The petitioners brought suit questioning
the validity of the LOI on the ground that it was
discriminatory and a denial of due process.  The
resps. denied the petitioner's allegations and argued
that the suit amounted to a request for advisory
opinion.   municipalities remains that of regulation, not
 
HELD: (1)  Petitioners are owners of an 8 cylinder
1969 Buick and of a 6 cylinder Willy's Kaiser Jeep. 
The enforcement of the LOI to them would deprive
them of prop.  They, therefore, have standing to
challenge the validity of the LOI.
            (2)  But the LOI cannot be declared void on
its face.  It has behind it the presumption of validity. 
The necessity for evidence to rebut such presumption
may condition the constitutionality of legislation the
presumption of validity must prevail in the absence of
some factual foundation of record overthrowing the
statute.   The LOI is an energy conservation measure;
 
            (3)  Nor does the LOI deny equal protection
to the petitioners.  W/in the class to w/c the
petitioner belongs the LOI operate equally and
uniformly.  That the LOI does not include others does
not render it invalid.  The govt is not required to
adhere to a policy of "all or none."
                      (4)  To the extent that the Land Transpo.
Code does not authorize the impounding of vehicles
as a penalty, to that extent the memo. of the resps.
would be ultra vires.  VV.
 
 
 
Velasco v. Villegas, 120 SCRA (1983)
 
Ordinance Prohibiting Barbershops from Rendering
Massage Services Valid.
 
F:                The ordinance was enacted for a two-fold
purpose:  (1)  To enable the City of Mla. to collect a
fee for operating massage clinics separately from
those operating barber ships and (2)  To prevent
immorality w/c might probably arise from the
construction of separate rooms.
 
       
Cruz v. Paras, 123 SCRA 569 (1983)
 
F:            The petitioners are operators or nightclubs
in Bocaue, Bulacan.  they filed prohibition suits to
stop the Mun. of Bocaue from enforcing an ordinance
prohibiting the operation of nightclubs, cabarets, and
dance h alls in that mun. or the renewal of licenses
to operate them.  The CFI upheld the validity of the
ordinance and dismissed the petition.  Hence, this
petition for certiorari.
 
HELD:  A mun. corp. cannot prohibit the operation of
nightclubs.  Nightclubs may be regulated but not
prevented from carrying on their business. RA 938, as
orginally enacted, granted municipalities the power
to regulate the establishment, maintenance and
operation of nightclubs and the like.  While it is true
that on 5/21/54, the law was amended by RA 979 w/c
purported to give municipalities the power not only
to regulate but likewise to prohibit the operation of
nightclubs, the fact is that the title of the law
remained the same so that the power granted to
prohibition.  To construe the amendatory act as
granting mun. corporations the power to prohibit the
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operation of nightclubs would be to construe it in a
way that it violates the constitutional provision that
"every bill shall embrace only one subject which shall
be expressed in the title thereof."  Moreover, the
recentyly-enacted LGC (BP 337) speaks simply of the
power to regulate the establishment, and operation
of billiard pools, theatrical performances, circuses
and other forms of entertainment.  Certiorari
granted.  VV.
 
 
            C.  Due Process and Eminent Domain
 
            The taking by the State of  private property
in an expropriation proceeding  must be:  (1) for  be expropriated are the petitioners' lands. They
public  use,  (2)  with just compensation, and  (3)  brought this suit in the SC challenging the
upon observance of due process.
            Article III, Sec. 9. Private property shall not
be take for public use without just compensation.
 
            Article XII, Sec. 18.  The State may, in the
interest of national welfare or defense, establish
and operate vital industries and, upon payment of
just compensation, transfer to public ownership
utilities and other private enterprises to be
operated by the government.
 
 
                        1.  Taking either for public use or
public purpose.
 
Public Use
 
            Public use is equivalent to public purpose.  It
is not confined merely to use by the public at large
(e.g. roads).  It is enough that  it serves a public
purpose, even if it benefit a large group of people
short of the public in general (e.g.  expropriating
property for the relocation of squatters).
 
Heirs of Juancho Ardona v. Reyes  123 SCRA 220
 
F:              The Philippine Tourism Authority sought the
expropriation of 282 Ha of land in Barangay Malubog
and Babag in Cebu City. upon deposit of an amount
equivalent to 10% of the value of the property, the
CFI authorized the PTA to take immediate possession
of the property. The charter of the PTA authorizes it
to acquire through condemnation proceedings lands
for tourist zone development of a sports complex.
The petitioners who are occupants of the lands, filed
a petition for certiorari in the SC. They contended
that (1) the taking was not for public use; (2) the
land was covered by the land reform program; and
(3) expropriation would impair the obligation of
contracts.
 
HELD:  The concept of public use is not limited to
traditional purposes for the construction of roads,
bridges, and the like. The idea that "public use"
means "use by the public" has been discarded. As long
as the purpose of the taking is public, then the power
of eminent domain comes into play. It is accurate to
state then that at present whatever may be
beneficially employed for the general welfare
satisfies the requirement of public use.  The
petititioners have not shown that the area being
developed is land reform area and that the affected
persons have been given emancipation patents and
certificates of land transfer. The contract clause has
never been regarded as a barrier to the exercise of
the police power and likewise eminent domain.  VV.
 
Sumulong v. Guerrero  154 SCRA 461 (1987)
 
F:         On December 5, 1977, the National Housing
Authority filed a complaint for the expropriation of
25 hectares of land in Antipolo, Rizal pursuant to PD
1224 authorizing the expropriation of private lands
for socialized housing. Among those lands sought to
constitutionality of PD 1224.
HELD:  Petitioners contend that socialized housing for
the purpose of condemnation proceedings is not
public use since it will benefit only a handful of
people. The "public use" requirement is an evolving
concept influences by changing conditions. Urban
renewal or redevelopment and the construction of
low-cost housing is recognized as a public purpose,
not only because of the expanded concept of public
use but also because of specific provisions in the
Constitution. Shortage in housing is a matter of state
concern since it directly and significantly affects
public health, safety, the environment and, in sum,
the general welfare. Petitioners claim that there are
vast areas of lands in Rizal hundreds of hectares of
which are owned by a few landowners only. Why
should the NHA pick their small lots? Expropriation is
not confined to landed estates. The test to be
applied for a valid expropriation of private lands was
the area of the land and not the number of people
who stood to be benefitted. The State acting through
the NHA is vested with broad discretion to designate
the property. The property owner may not interpose
objections merely because in their judgment some
other property would have been more suitable. The
provisions on just compensation found in PD 1224,
1259, and 1313 are the same provisions which were
declared unconstitutional in EPZA v. Dulay (1987) for
being encroachments on judicial prerogatives.  VV.
 
 
                                              2.  Just compensation must be
judicially determined
 
Just Compensation
 
            Just compensation is the fair and reasonable
equivalent of the loss sustained by the owner of the
property due to the taking; it  is  the fair  market
value of the property measured at  the time of  the
taking, no matter how long ago it was taken (e.g. the
time of the taking was in the 1920's,  the time of
payment was in the 1960's, in the Ministerio and
Amigable cases, supra), and  using the conversion
rates at the time of  taking  (because  according to 
those cases, Art. 1250 of  the Civil Code applied only
to contractual obligations).
 
 
EPZA v. Dulay  149 SCRA 305 (1987)
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F:               The San Antonio Development Corporation
was the owner of a piece of land in Lapu-Lapu City
which the EPZA expropriated in 1979. The
commissioners appointed by the trial court
recommended that the San Antonio Development
Corp. be paid P15.00 per square meter. EPZA filed a
petition for certiorari, arguing that under PD 1533
the compensation should be the fair and current
market value declared by the owner or the market
value determined by the assessor, whichever is lower.
 
HELD:  The method of ascertaining just compensation
under PD 1533 constitutes impermissible
encroachment on judicial prerogatives.  Although the
court technically would still have the power to
determine the just compensation for the property,
following the decree, its task would be relegated to
simply stating the lower value of the property as
declared either by the owner or the assessor. Just
compensation means the value of the property at the
time of the taking. It means a fair and full equivalent
for the loss sustained. All the facts as to the
condition of the property and its surroundings, its
improvements and capabilities should be considered.
In this case, the tax declarations used as basis for the
just compensation were made long before the
declaration of martial law when the land was much
cheaper. To peg the value of the lots on the basis of
those documents which are outdated would be
arbitrary and confiscatory.  VV.
 
 
Manotok v. NHA  150 SCRA 89 (1987)
 
F:               Petitioners are the owners of two large
estates known as the Tambunting Estate and Sunog-
Apog in Tondo, Manila, both of which were declared
expropriated in two decrees issued by President
Marcos, PD 1669 and PD 1670. The petitioners
contend that the decrees violate their constitutional
right to due process and equal protection since by
their mere passage their properties were
automatically expropriated and they were
immediately deprived of the ownership and
possession thereof without being given the chance to
oppose such expropriation. The government on the
other hand contends that the power of eminent
domain is inherent in the State and when the
legislature or the President through his law-making
powers exercises this power, the public use and
public necessity of the expropriation and the fixing of
the just compensation become political in nature and
the courts must respect the decision.
HELD:  The challenged decrees are unfair in the
procedures adopted and the powers given to the
NHA. The Tambunting subdivision is summarily
proclaimed a blighted area and directly expropriated
by decree without the slightest semblance of a
hearing or any proceeding whatsoever. The
expropriation is instant and automatic to take effect
immediately upon the signing of the decree. No
deposit before the taking is required. There is not
provision for any interest to be paid upon unpaid
installments. Not only are the owners given
absolutely no opportunity to contest the
expropriation, or question the amount of payments
fixed by the decree, but the decision of the NHA are
expressly declared beyond judicial review. PD 1669
and 1670 are declared unconstitutional.
 
Teehankee, CJ, concurring: The judgment at bar now
learly overturns the majority ruling in JM Tuason v.
LTA that the power of Congress to designate the
particular property to be taken adn how much may
be condemned thereof must be duly recognized,
leaving only as a judicial question whether in the
exercise of such competence, the party adversely
affected is the victim of partiality and prejudice. The
SC now rules that such singling out of properties does
not foreclose judicial scrutiny as to whether such
expropriation by legislative act transgresses the due
process and equal protection and just compensation
guarantees of the Constitution.  VV.
 
 
                        3.  Due process must be observed
 
De Knecht v. Bautista  100 SCRA 660 (1980)
 
F:         The plan to extend EDSA to Roxas Boulevard
to be ultimately linked to the Cavite Coastal Road
Project, originally called for the expropriation of
properties along Cuneta Avenue in Pasay City. Later
on, however, the Ministry of Public Highways decided
to make the proposed extension pass through
Fernando Rein and Del Pan Streets. Because of the
protests of residents of the latter, the Commission on
Human Settlements recommended the reversion to
the original plan, but the Ministry argued the new
route withh save the government P2 million. The
government filed expropriation proceedings against
the owners of Fernando Rein and Del Pan streets,
among whom was petitioner.
 
HELD:  The choice of Fernando Rein and Del Pan
streets is arbitrayr and should not receive judicial
aprpoval. The Human Settlements Commission
concluded that the cost factor is so minimal that it
can be disregarded in making a choice between the
two lines. The factor of functionality strongly
militates against the choice of Fernando Rein and Del
Pan streets, while the  factor of social and economic
impact bears grievously on the residents of Cuneta
Avenue. While the issue would seem to boil down to a
choice between people, on one hand, and progress
and development, on the other, it is to be
remembered that progress and development are
carried out for the benefit of the people.  VV.
 
Republic v. De Knecht, 182 SCRA 142 (1990)
 
F:         De Knecht was one of the owners of several
properties along the Fernando Rein-Del Pan streets
which the Government sought to expropriate to give
way to the extension of EDSA and the construction of
drainage facilities. De Knecht filed a case to restrain
the Government from proceeding with the
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expropriation. Her prayer was denied by the lower
court but upon certiorari, the SC reversed the lower
court decision and granted the relief asked for by De
Knecht ruling that the expropriation was arbitrary.
The case was remanded to the lower court.
                No further action was taken despite the SC
decision until two years later, in 1983, when the
Government moved for the dismissal of the case on
the ground that the Legislature has since enacted BP
340 expropriating the same properties for the same
purpose. The lower court denied tthe motion. Appeal.
 
RULING: While it is true that said final judgment of
this Curt on the subject becomes the law of the case
between the parties, it is equally true that the right
of petitioner to take private properties for public use
upon payment of just compensation is so provided in
the Constitution and the laws. Such expropriation
proceeding may be undertaken by the petitioner not
only by voluntary negotiation with the land owners
but also by taking appropriate court action or by
legislation.
            When BP 340 was passed, it appears that it
was based on supervening events that occured after
the 1980 decision of the SC on the De Knecht case
was rendered. The social impact factor which
persuaded the Court to consider this extension to be
arbitrary had disappeared.
            Moreover, the said decision is no obstacle to
the legislative arm of the Government in thereafter
making its own independent assessment of the
circumstances then pravailing as to the propriety of
undertaking the expropriation of properties in
question and thereafter by enacting the
corresponding legislation as it did in this case. The
Court agrees in the wisdom and necessity of enacting
BP 340. Thus the anterior decision of the Court must
yield to the subsequent legislative fiat.  Charo.
 
NAPOCOR v. Gutierrez, 193 SCRA 1 (1991)
 
F:               For the construction of its 230 KV Mexico-
Limay transmission lines, Napocor's lines have to pass
the lands belonging to respondents. Unsuccessful with
its negotiations for the acquisition of the right of way
easements, Napocor was constrained to file eminent
domain proceedings.
 
ISSUE: W/N petitoner should be made to pay simple
easement fee or full compensation for the land
traversed by its transmissin lines.
 
RULING: In RP v. PLDT, the SC ruled that "Normally,
the power of eminent domain results in the taking or
appropriation of the title to, and possession of, the
expropriated property, but no cogent reason appears
why said power may not be availed of to impose only
a burrden upon the owner of the condemned
property, without loss of title or possession. It is
unquestionable that real property may, through
expropriation, be subjected to an easement of right
of way." In this case, the easement is definitely a
taking under the power of eminent domain.
Considering the nature and effect of the installation
of the transmission lines, the limitations imposed by
the NPC against the use of the land (that no plant
higher than 3 meters is allowed below the lines)  for
an indefinite period deprives private respondents of
ts ordinary use.
            For these reasons, the owner of the property
expropriated is entitled to a just compensation which
should neither be more nor less, whenever it is
possible to make the assessment, than the money
equivalent of said property. Just equiivalent has
always been understood to be the just and complete
equivalent of the loss which the owner of the thing
expropriated has to suffer by reason of the
expropriation. The price or value of the land and its
character at the time of taking by the Govt. are the
criteria for determining just cmpensation.  Charo.
 
 
            D.  Equal Protection
 
            Art. III, Sec. 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.  
 
                      Art. XIII, Sec. 1.  The Congress shall give
highest priority to the enactment of measure that
protect and enhance the right of all the people to
human dignity, reduce social, economic, and
political inequalities and remove cultural inequities
by equitably diffusing wealth and political power
for the common good. 
                      To this end, the State shall regulate the
acquisition, ownership, use, and disposition of
property and its increments.
 
                        1.  Economic equality
                      Art. XIII, Sec. 2.  The promotion of social
justice shall include the commitment to create
economic opportunities based on freedom of
initiative and self-reliance. 
 
            Art. XIII, Sec. 3.  The State shall afford full
protection to labor, local and overseas, organized
and unorganized, and promote full employment
and equality of employment opportunities for all.
            It shall guarantee the rights of all workers
to self-organization, collective bargaining and
negotiations, and peaceful concerted activities,
including the right to strike in accordance with
law.  They shall be entitle to security of tenure,
humane conditions of work, and living wage.  They
shall also participate in policy and decision-making
process affecting the rights and benefits as may be
provided by law.
                      The State shall promote the principle of
shared responsibility between workers and
employers and the preferential use of voluntary
modes in settling disputes including conciliation,
and shall enforce their mutual compliance
therewith to foster industrial peace. 
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                      The State shall regulate the relations
between workers and employers, recognizing the
right of labor to its just share in the fruits of
production and the right of enterprises to
reasonable returns on investments, and to
expansion and growth.
 
            Art. XII, Sec. 10.  The Congress shall, upon
recommendation of the economic and planning
agency, when the national interest dictates,
reserve to citizens of the Philippines or to
corporations or associations at least sixty per
centum of whose capital is owned by such citizens,
or such higher percentage as Congress may
prescribe, certain areas of investments.  The
Congress shall enact measures that will encourage
the formation and operation enterprises whose
capital is wholly owned by Filipinos.
                      In the grant of rights, privileges and
concessions covering the national economy and
patrimony, the State shall give preference to
qualified Filipinos.
                      The State shall regulate and exercise
authority over foreign investments within its
national jurisdiction and in accordance with its
national goals and priorities.
 
            Id., Sec. 2.  xxx
            The State shall protect the nation's marine
wealth in its archipelagic waters, territorial sea,
and exclusive economic zone, and reserve its use
and enjoyment exclusively to Filipino citizens.
 
            Art. III, Sec. 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.  of discretion by the Mayor. Finally, the ordinance
 
            Art. VIII, Sec. 5.  The Supreme Court shall
have the following powers:
            xxx
                      (5)  Promulgate rules concerning the
protection and enforcement of constitutional
rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the
underprivileged.  Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish,
increase, or modify substantive rights.  Rights of
procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by
the Supreme Court.
 
           
            There are areas of economic activity which
can be limited to Filipinos.  The Constitution itself
acknowledges this in various places - exploitation of
marine wealth (Art. XII, Sec. 2 par. 2), certain areas
of investment (Art. XII, Sec. 10), to name a few.
 
            In Ichong v. Hernandez, 201 Phil. 1155 (1937),
the SC upheld the validity of the law which
nationalized the retail trade.  For the protection of
the law can be observed by the national interest.
 
Ichong v. Hernandez, 201 Phil. 1155 (1937)
            But there are areas where aliens cannot be
kept away for the simple reason that they cannot be
deprived of a common means of livelihood, especially
when they are admitted to the country as
immigrants.
 
            In Villegas v. Hiu Chiong Isai Po Ho, 86 SCRA
270 (1978), the SC invalidated a city ordinance
imposing a P500 permit fee for aliens who wish to
engage in the pursuit of an occupation.  The SC noted
that this violated the uniformity of taxation, and
deprived aliens of the right to earn a common
livelihood.
 
Villegas v. Hiu Chiung Tsai Pao Ho  86 SCRA 270 (1978)
 
F:         An ordinance of the City of Manila prohibited
the employment of aliens in any occupation or
business unless they first secured a permit from the
Mayor of Manila and paid a fee of P500. Respondent,
an alien, employed in Manila, brought suit and
obtained judgment from the CFI declaring the
ordinance null and void.
 
HELD:  The ordinance is a tax measure. In imposing a
flat rate of P500, it failed to consider substantial
differences in situations among aliens and for that
reason violates the rule on uniformity of taxation. It
also lays down no guide for granting/denying the
permit and therefore permits the arbitrary exercise
denies aliens due process and the equal protection of
the laws. VV.
 
            In Vera v. Cuevas, 90 SCRA 379 (1979), Sec.
169 of the NIRC requiring manufacturers of skimmed
milk (non-fat) to put on its label the warning that the
milk is harmful for infants, was struck down as
unconstitutional on the ground that it did not require
the same labeling in the case of filled milk (coco-fat
added)
 
            At that time of the decision thought, the law
was already inoperative.
 
Vera v. Cuevas  90 SCRA 379 (1979)
 
F:         Respondents are engaged in the manufacture
and sale of filled milk products. They brought an
action in the CFI for a declaration of their rights in
respect of section 169 of the Tax Code. This provision
required that "all condensed skimmed milk in
whatever form, from which the fatty part has been
removed totally or in part or put on sale in the
Philippines shall be clearly and legibly marked on its
immediate containers with the words: This milk is not
suitable for nourishment for infants less than one
year of age.
 
Constitutional Law II
HELD:  Sec. 169 of the Tax Code has been repealed by
RA 344. At any rate, Sec. 169 applied only to skimmed
milk and not to filled milk. Sec. 169 is being enforced
only against respondent manufacturers of filled milk
but not against manufacturers of skimmed milk, thus
denying them the equal protection of the laws.  VV.
 
 
                        2.  Political equality
 
 
                      Art. III, Sec. 18. (1)      No person shall be
detained solely by reason of his political beliefs and
aspirations.
 
            Art. IX, C, Sec. 10.  Bona fide candidates to
public office shall be free from any form of
harassment and discrimination.                        Art. XIII, Sec. 1.  The Congress shall give
 
 
                      In Dumlao v. Comelec, 95 SCRA 392 (1980),
the SC upheld the validity of sec. 4 of Batas Blg. 52
disqualifying retired elective local officials who have
received retirement benefits and would have been 65
years old at the start of the term.  It does not violate
equal protection, for it gives younger blood the
opportunity to run the local government.
 
Dumlao v. Comelec, 95 SCRA 392 (1980)
F:              Sec. 4 of BP 52 provides in part that "any
retired elective provincial, city ot municipal official
who has received payment of the retirement benefits
to which he is entitled under the law and who shall
have been 65 years of age at the commencement of
the term of office to which he seeks to be elected,
shall not be qualified to run for the same elective
local office from which he has retired." Petitioner,
Governor of Nueva Vizcaya, sued for prohibition to
enjoin enforcement of the law on the ground that it
was contrary to the equal protection and due process
guarantee of the Constitution.
 
HELD:  Dumlao has not been injured by the
application of the provision. No petition seeking his
disqualification has been filed against him. His
petition is a mere request for advisory opinion.
Nevertheless, because of public interest, the
question should be resolved. The purpose of the law
is to allow the emergence of younger blood in local
governments and therefore, not invalid. The retired
employee in effect declares himself tired and
unavailable for the same government work. VV.
 
                      In Igot v. Comelec, 95 SCRA 392 (1980),
however, the disqualification of candidates convicted
or simply charged with national security offenses was
struck down as unconstitutional, for violating the
presumption of innocence and thus ultimately the
equal political protection.
 
Igot c. Comelec  95 SCRA 392 (1980)
 
F:         Romeo Igot, as taxpayer, voter and member
of the bar, and Alfredo Salapantan Jr., as taxpayer
and voter, sued for prohibition to enjoin enforcement
of BP 52, sec. 4 of which provides for the
disqualification as candidate of any person convicted
of subversion, insurrection or rebellion or similar
offenses.
 
HELD:  Neither petitioner has been convicted nor
charged with acts of disloyalty nor disqualified from
being candidates for local elective positions. They
have no personal or substantial interest at stake and
therefore no locus standi. Neither can they sue as
taxpayers because the statute does not involve
disbursement of public funds. VV.
 
 
                        3.  Social equality
                       
 
highest priority to the enactment of measure that
protect and enhance the right of all the people to
human dignity, reduce social, economic, and
political inequalities and remove cultural inequities
by equitably diffusing wealth and political power
for the common good. 
                      To this end, the State shall regulate the
acquisition, ownership, use, and disposition of
property and its increments.
. 
 
II.  REQUIREMENTS OF FAIR PROCEDURE
 
 
            A.  Arrests, Searches and Seizures
 
            Art. III, Sec. 2.  The right of the people to
be secure in their persons, houses, papers and
effects against unreasonable searches and seizures
of whatever nature and for any purpose, shall be
inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the person or things to be seized. 
 
            Sec. 3.  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.
           Any evidence obtained in violation of this or
the preceding  section, shall be inadmissible for
any purpose in any proceeding.
 
                        1.  Requirements for Search Warrants
 
 
Yee Sue Kuy v. Almeda, 70 Phil. 141 (1940)
 
F:         By virtue of the sworn application of Almeda,
the Chief agent of the Anti-Usury Board, a SW was
issued to search the store and premises of the
petitioner, accused of violating the Anti-Usury Law.
Receipt books, PNs and other articles were seized and
retained in the possession of the Anti-Usury Board.
Constitutional Law II
 
ISSUE: W/n the requirements for the issuance of valid
SW were complied with.
 
RULING: YES. The applicant, Almeda, in his
application, swore that  "he made his own personal
investigation and ascertained that petitioner is
lending money without a license, charging usurious
rates." The witness he presentted testified before the
judge and swore that he knew that YEE was lending
without a license because he personally investigated
the victims who secured loans from the petitioner.
Their affidavits were sufficient for, thereunder, they
could be held liable for perjury. The existence of
probable cause has been determined by the justice of
the peace before issuing the warrant complained of,
as shown in the warrant itself.  Charo.
 
Pasion vda. de Garcia v. Locsin, 65 Phil. 689, (1938)
 
F:         This is a petition for mandamus presented to
secure the annulment of a search warrant (SW) & 2
orders of the resp. judge, & the restoration of certain
documents alleged to have been illegally seized by an
agent of the Anti-Usury Board.
                Almeda, an agent of the Anti-Usury Board,
obtained from the justice of the peace of Tarlac,
Tarlac, a SW, commanding any officer of the law "to
search the person, house or store of the petitioner
for certain books, lists, chits, receipts, documents &
other papers relating to her activities as userer."
                On the same date, Almeda, accompanied
by a captain of the PC, went to the office of the
petitioner, and after showing the SW to the
petitioner's bookeeper, Salas, & w/o the presence of
the petitioner, who was ill and confined at that time,
proceeded w/ the execution thereof.  Two packages
of records & a locked filing cabinet containing several
papers and documents were seized by Almeda and a
receipt thereof issued by him to Salas.  Separate
criminal cases were filed against petitioner. 
Petitioner demanded the return of the documents
seized.  Bu motion, pet. challenged the legality of
the SW and the devolution of the documents
demanded.  By resolution, the resp. judge of CFI
denied the petitioner's motion for the reason that
though the SW was illegal, there was a waiver on the
part of the petitioner.    the We Forum were search and printing machines,
                The resolution of 10/5/37 & the order of
1/3/38 are sought, together w/ the SW, to be
nullified in these proceedings.
 
HELD:  Freedom from unreasonable searches and
seizures is declared a popular right and for a SW to
be valid, (1) it must be issued upon probable cause;
(2)  the probable cause must be determined by the
judge himself and not by the applicant or another;
(3)  in the determination of probable cause, the
judge must examine, under oath or affirmation, the
complainant and such witnesses as the latter may
produce; & (4)  the warrant issued must particularly
describe the place to be searched and persons or
things to be seized.
            In the instant case, the existence of probable
cause was determined not by the judge himself but
by the applicant.  All that the judge did was to
accept as true the affidavit made by agent Almeda. 
It does not appear that he examined the applicant
and his witnesses, if any.  Even accepting the
description of the prop. to be seized to be sufficient
and on the assumption that the receipt issued is
sufficiently detailed w/in the meaning of the law, the
prop. seized were not delivered to the court w/c
issued the warrant, as required by law.  Instead, they
were turned over to the resp. provincial fiscal & used
by him in building up cases against petitioner. 
Considering that at the time the warrant was issued,
there was no case pending against the petitioner, the
averment that the warrant was issued primarily for
exploration purposes is not w/o basis.             
           
            IS THERE A WAIVER?  No express waiver. 
            IS THERE AN IMPLIED WAIVER?  None.
            To constitute a waiver of constitutional right,
it must appear first that (1)  the right exists; (2)  that
the person involved had knowledge, actual or
constructive, of the existence of such right; (3)  that
said person had an actual intention to relinquish the
right.
            It is true that the petitioner did not object to
the legality of the search when it was made.  She 
could not have objected bec. she was sick & was not
present when the warrant was served upon Salas. 
Certainly, the constitutional immunity from
unreasonable searches and seizures, being a personal
one, cannot be waived by anyone except by the
person whose rights are invaded or one who is
expressly authorized to do so in his or her behalf. 
The failure on the part of the petitioner and her
bookkeeper to resist or object to the execution of the
warrant does not constitute an implied waiver of the
consti. right.  It is but a submission to the authority
of the law.  The delay in making the demand for the
return of the documents seized is not such as to
result im implied. waiver.  RAM.    
 
 
Burgos v. Chief of Staff  133 SCRA 800 (1984)
 
Illegal search of newspaper offices and press freedom
 
F:              On the basis of two warrants issued by the
RTC of QC, the offices of the Metropolitan Mail and
paraphernalia, motor vehicles and other articles used
in the printing, publication and distribution of the
newspapers as well as papers and other literature
seized on the ground that they were used in the
commission of the crime of subversion. Petitioners
brought and action to annul the warrants and compel
the return of the things seized.
 
HELD:  Petitioners' thesis is impressed with merit.
Probable cause for a search is defined as such facts
and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense
has been committed and that the objects sought in
connection  with the offense are in the place sought
to be searched. When addressed to a newspaper
publisher or editor, the application for a warrant 
must contain a specification stating with particularity
the alleged subversive materials he has published or
Constitutional Law II
intending to publish.  Broad statement in the
application is a mere conclusion of law and does not
satisfy the requirement of probable cause. Another
factor that makes the search warrants
constitutionally objectionable is that they are in the
nature of general warrants. In Stanford v. State of
Texas, the US SC declared this type of warrant void.
VV.
 
 
Corro v. Lising  137 SCRA 341 (1985)
 
F:         Respondent Judge issued a search warrant for
the seizure of articles allegedly used by petitioner in
committing the crime of sedition. Seized were
printed copies of the Philippine Times, newspaper
dummies, typewriters, mimeographing machines and
tape recorders, video machines and tapes. The
petitioner moved to quash the warrant but his motion
was denied.
 
HELD:  The statements made in the affidavits are
mere conclusions of law and do not satisfy the
requirement of probable cause. The language used is
all embracing as to include all conceivable words and
equipment of petitioner regardless of whether they
are legal or illegal. The search warrant under
consideration was in the nature of a general warrant
which is objectionable. VV.
 
 
Bache & Co. (Phil.) v. Ruiz, 37 SCRA 823 (1971)
 
F:               The Com. of Internal Revenue through Rev.
Examiner de Leon filed an application for a SW
against Bache & Co. and its pres., Seggerman for
violation of the provisons of the NIRC. As Judge Ruiz
was then conducting a hearing, the deposition of de
Leon and his witness, Logronio, was taken by the
Dep. Clerk of Court. The deposition was later read to
the judge who asked the witness to take an oath as to
the truth of his statements. The judge then signed
the SW and accordingly issued the same.
 
ISSUE: W/n the requirements for the issuance of valid
SW were complied with.
 
RULING: NO. The judge did not personally examine
the complainant and his witnesses. The judge did not
have the opportunity to  observe tthe demeanor of
the deponents and to propound initial and follow-up
questions which his judicial mind, on account of his
training, was in the best position to conceive. This is
important in arriving at a sound inference on the all-
importatnt question of w/n there was probable
cause.  Charo.
 
Prudente v. Dayrit, 180 SCRA 69 (1990)
 
F:               Judge Dayrit, upon applicatin of P/Maj.
Dimagmaliw, supported by a "Deposition of Witness,"
executed by P/Lt. Angeles, issued a search warrant
for the search and seizure of arms, ammunitions and
explosives in the premises of the PUP which were
supposed to be in possession of Dr. Prudente. In
enforcing the warrant, 3 fragmentation grenades
were found in the bathroom of the office of Dr.
Prudente.
 
ISSUE:  W/n the searrch warrant was valid.
 
RULING: NO.
            (1) The warant was not issued on the basis of
personal knowledge of the applicant and his witness.
The probable cause required under the Constitution
for the issuance of a search warrant must be in
connection with one specific offense, and the judge
must, before issuing the warrant, personally examine
in the form of searching questions and answers, in
writing and under oath, the  complainant and any
witnesses he may produce, on facts personally known
to them and attach to the record their sworn
statements together with any affidavit submitted.
However, in the case at bar, Dimagmaliw merely
stated in his application that his knowledge was
based "on gathered infrmation from verified sources."
The same holds true for the affidavit of Angeles.
            Moreover, the judge did not examine Angeles
in the form of searching questions and  answers.
What appears on the record are leading questions
answereable by yes or no.
 
                      (2) As to the claim that the SW failed to
particularly describe the place to be searched, the SC
ruled that the description of the place to be searched
is sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the place
intended to be searched. Here, the SW described the
place as PUP, with its address and specifically
mentioned the offices of the "Dept. of Military
Science and Tactics on the ground floor  and the
Office of the President at the 2nd floor and the other
rooms in that floor." This is deemed sufficient.
 
            (3) There was also an issue as to w/n the SW
was issued for one specific offense. The warrrant was
issued for violation of PD 1866 which punishes several
offenses. While there was failure to state the
particular provision of the law violated, the warrant
itself qualified the description of the offense as
"illegal possession of firearms, etc." This suffices to
cure the defect.
            The fact that the word "etc." was added to
refer to ammunitions and explosives did not violate
the rule on single offense, for notwithstanding that
possession of firearms, explosives and ammunitions
are punished in different sections of the PD, they are
treated as belonging to a single specie. An exception
to the rule that a warant shall be issued for a single
offense is when existing laws prescribe a single
punishment for various offenses.  Charo.
 
Olaes v. People, 155 SCRA 486 (1987)
 
F:         Petitioners  claim that the SW issued by resp.
judge  was invalid. They also question the
extrajudicial confession taken from them without
according them the right to assistance of a counsel.
The articles seized by virtue of the SW consisting of
dried marijuana were admitted as evidence for
violation of RA 6425 or Dangerous Drugs Act.
 
Constitutional Law II
RULING: While it is true that the caption of the SW
states that it is in connection with "the violation of
RA 6425," it is clearly recited in the text thereof that
"there is probable cause to believe that Olaes of
Olongapo City has in his possession and control,
marijuana dried stalks which are suject of the
offense stated above." Although the specific section
of the law is not stated, there is no question at all
that the specific offense alleged to have been
committed as  basis for determining probable  cause
is alleged. Furthermore, the SW  specifically
described the place to be searched and the things to
be seized.
 
                    As to the extrajudicial confessions of the
accused, the same are deemed inadmissible against
them. In People V. Galit, the Court declared that: " At
the time the person is arrested, it shall be the duty
of the arresting officer to inform him of the reason
for the arrrest and he must be shown the warrant of
arrest, if any; he shall be informed of his
constitutional rights to remain silent and to counsel,
and that any statement he might make could be used
against him. The person arrested shall have the right
to communicate with his lawyer, a relative, or anyone
he chooses by the most expedient means - by
telephone if possible - or by letter or messenger. It
shall be the responsibility of the arresting officer to
see to it that this is accomplished. No custodial
investigation shall be conducted unless it be in the
presence of counsel engaged by the person arrested,
by any person on his behalf, or appointed by the
court upon petition either of the detainee himself or
by anyone on his behalf. The right to counsel may be
waived but the wiaver shall not be valid unless made
with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in whole
or in part, shall be inadmissible in evidence."
 
            These requirements were even made stricter
under the 1987 Constitution which provides that the
rights of a person under custodial investigation
cannot be waived except when made in writing and in
the presence of counsel.  Charo.
 
 
Presidential Anti-Dollar Salting Task Force v. CA, 171
SCRA 348 (1989)
 
F:         The PASTF was created by virtue of PD 1936
to serve as the President's arm called upon to combat
the vice of dollar salting or the blackmarketing and
salting of foreign exchange.
 
ISSUE: W/N the PASTF is "such other officer as may be
authorized by law" to issue warrants under the 1973
Constitition.
RULING: NO. The Court, in reviewing the powers of
the PASTF under its enabling law, sees nothing that
will reveal a legislative intendement to confer upon
the body, quasi-judicial responsiibilities relative to
offenses punishable by PD 1883. Its undertaking is
simply to determine w/n probable cause exists to
warrant the filing of charges with the proper court,
meaning to say, to conduct an inquiry preliminary to
a judicial recourse, and to recommend action of
appropriate authorities.
            The Court agrees that PASTF exercises, or was
meant to exercise, prosecutorial powers, and on that
ground, it cannot be said to be a neutral and
detached judge to determine the existence of
probable cause for purposes of arrest or search.
Unlike a magistrate, a prosecutor is naturally
interested in the success of his case. Although his
office "is to see to it that justice if done and not
necessarily to secure the conviction of the accused,"
he stands invariably, as the accused's adversary and
his accuser. To permit him to issue warrrants and
indeed, warrants of arrest, is to make him both judge
and jury in his own right, when he is neither. This
makes to our mind and to that extent, PD 1636 as
amended by PD 2002, unconstitutional.
                    The "responsible officer" referred to under
the Cosntitution is one not only possessing the
necessary skills and competence but more
significantly, the neutrality and independence
comparable to the impartiality presumed of a judicial
officer. 
 
 
Salazar v. Achacoso, 183 SCRA 145
 
F:                Pursuant to the powers vested by PD 1920
and EO 1022, POEA Administrator Achacoso ordered
the closure of the recruitment agency of Horty
Salazar, having verified that she had no license to
operate a recruitment agency.  He further ordered
the seizure of the documents and paraphernalias,
being used or intended to be used as  the means of
commiting illegal recruitment.  This order was
enforced  on 26 January 1988.  Petitioner filed this
suit  for prohibition.
 
Issue:  May the POEA (or the Sec. of Labor) validly
issue warrants of serach and seizure (or arrest ) under
Art. 38 of the Labor Code?                
 
HELD:  NO.
            The provisions of PD 1920 and EO 1022, now
embodied in Art. 38 of the Labor Code, are the dying
vestiges of authoritarian rule in its twilights
moments.  Under Art. III, Sec 2 of the 1987
Constitution, it is only judges and no other, who may
issue warrants of arrest and search.  The exception is
in cases of deportation of illegal and undesirable
aliens, whom the President of the Commissioner of
Immigration may order arrested, following a final
order of deportation, for the purpose of deportation. 
The Sec. of Labor , not being a judge. may no longer
issue search or arrest warrants.  Hence, the
authorities must go through the judicial process.  To
that extent, we declare Art. 38, par. C of the Labor
Code, unconstitutional and of no force and effect. 
  
  a.  Existence of probable cause.
 
                      Probable cause is such facts and circum-
stances as would reasonably make a prudent man
believe that a crime have been committed and that
the documents or things sought to be searched and
seized are in the possession of the person against
Constitutional Law II
whom the warrant is sought.  Without probable
cause, there can be no valid search warrant.
 
                        In Stonehill v. Diokno, 20 SCRA 385
(1967), 42 search warrants were issued for alleged
violation of Central Bank Laws, the Tariff and
Customs Code, the NIRC, and the Revised Penal Code.
The SC voided the warrants on the ground that it was
impossible for the judge to have found probable
cause in view of the number of laws alleged to have
been violated by the petitioner.  How could he even
know what particular provision of each law had been
violated?  If he did not know this, how could it be
determined if the person against whom the warrant
was issued was probably guilty thereof?  In truth, this
was a fishing expedition, which violated the sanctity
of domicile and privacy of communications.  To
establish the requirement of probable cause, the rule
is: One crime, one warrant.
 
    b.  As determined by a judge
 
            Under the 1987 Constitution, only a judge can
issue a warrant; the offensive and much abused
phrase "and other responsible officer as may be
authorized by law" in the 1973 Constitution has been
removed
 
  c.  After personally examining under oath or
affirmation the complainant and his witness.
 
                      The examination conducted by the judge
takes the form of searching questions.
 
                      The requirement that the judge must
personally examine the complainant and his witnesses
means that the actual examination cannot be
delegated to someone else, like the clerk of court.
 
            So said the Court in Bache and Co. (Phil) v.
Ruiz, 37 SCRA 823 (1971).  In this case, when the BIR
agent and his witnesses arrived in court in the middle
of a hearing, the judge suspended the hearing and
directed the branch clerk to examine and take the
testimony of the witnesses in his chambers.  After he
was through with the hearing, he went back to his
chambers and finding that the examination was
finished, asked the BIR agent and his witnesses if
they affirmed what they what they testified to, after
which he issued the search warrant in question.
d.  On the basis of their personal knowledge of the
facts that they are testifying to.
 
            The determination of the reasonableness of
the judicial warrant must be based on the affidavit of
one who has personal knowledge of the facts to
which he testifies.  The testimony cannot be based on
mere belief.  Neither can it be based on a report.  specifically authorized to search and seize vehicles
Otherwise, the warrant is void.
                      Thus, in Burgos v. Chief of Staff, 133 SCRA
800 (1984), reiterating the 1937 case of Rodriguez v.
Villamiel, the testimony based on a military report
that the newspaper We Forum was used for
subversive were held to be not a personal knowledge
and so was inadmissible.
 
                      Likewise, in Corro v. Lising, 137 SCRA 541
(1985), the testimony based on investigation reports
that certain items in the Philippine Times were
subversive were held to be not personal knowledge,
and thus the search warrant issued was not valid.
 
 e.  The search warrant must describe particularly
describe the place to be searched and the things to
be seized.
 
            Failure to state with particularity the place
to be searched and items to be seized makes the
warrant used for fishing evidence (a general warrant)
which is void.
 
                      In Burgos v. Chief of Staff, the description
which read "subversive documents, leaflets, papers to
promote the objective of the Movement for a Free
Philippines, the Light a Fire Movement, and the April
6 Movement" were held not to be particular
descriptions, thus making the warrant a general
warrant.
 
            In Corro v. Lising, the search and seizure of
"printed copies and dummies of Philippine Times,
subversive documents, articles, printed matters,
handbills, leaflets, banners, and typewriters, tape
recorders, etc." was again invalidated for the
description was not at all particular or specific, thus
making the warrants general warrants.
 
                        When it comes to printed matters, the
offensive material need not be set out in full.  It is
enough if it specifies the issues and the title of the
articles.  The instruction to seize "subversive
materials" is not valid because the determination of
whether a material is subversive or not is not for the
police officer to decide; no unfettered discretion
must be granted to him.
 
                      The matter is different if goods were
searched and seized because of their intrinsic quality
(as when they are stolen or smuggled), than if the
goods were searched for the ideas they contain (as
when a "subversive newspaper is sought).  In the
latter case, a more detailed description of the
physical features of the item is required to avoid
delegating the appreciation of ideas, and thus
threaten free expression. 
  2.  When Search May Be Made without a Warrant
 
  (a)  When search is made of moving vehicles 
 
            The reason is the person may escape easily if
a warrant has to be applied for the mean time.  In
the Tariff and Customs Code, customs agents are
even without a warrant.
                      Checkpoints are valid in some instances
depending on the purpose (e.g. apprehend a
suspected criminal) and the circumstances (e.g.
probable cause that the criminal is inside the car). 
There is no question that when a child has been
reported kidnapped in a community, the police can
Constitutional Law II
stop all cars and check if the detained child is in any
one of them.
 
  (b)  When search is an an incident to a valid
arrest.
 
                      Rule 126, Sec. 12.  Search incident to
lawful arrest.--  A person lawfully arrested may be
searched for dangerous weapons or anything which
may be used as proof of the commission of an
offense, without a search warrant.  (Rules of
Court.)    
 
                      A person arrested may be searched for
dangerous weapons or anything that proves the
commission of the offense.  It follows that the search
can only be made within the area of control of the
arrested person, and within the time of the arrest.
 
            In Nolasco v. Cruz Pano, 139 SCRA 152 (1985);
Milagros Roque and Cynthia Nolasco were arrested at
the intersection of Mayon and Margal Streets in QC at
11:30 a.m., having been wanted as high officers of
the CPP.  At 12:00 noon, Roque's apartment located 2
blocks away, was searched and some documents
seized.  The SC at first held that the search was valid
even if the warrant issued was void for failing to
describe with particularity the things to be seized,
because it was an incident of a valid arrest.
                      But after the EDSA revolution, the
reconstituted SC granted the motion for
reconsideration and held that just because there was
a valid arrest did not mean that the search was
likewise valid.  To be valid, the search must be
"incidental" to the arrest, that is, not separated by
time or place from the arrest.  If the basis for
allowing incidental searches is looked into, one can
see that this situation is not one involving a valid
incidental search.
 
            The law allows the arresting officer to search
a person validly arrested (by frisking him for
instance) because (a) a weapon held by the arrested
person may be turned against his captor and (b) he
may destroy the proof of the crime, if the arrested
officer has to first apply for a search warrant from a
judge.
 
                      If, in the Nolasco case, the search was
conducted 30 minutes after the arrest, there is no
longer any danger that the captured may turn against
the captor; and if the documents in the apartment
were 2 blocks away, the search would no longer be
justified since there is no way for Roque to go back to
the apartment and destroy the documents, having
been arrested already.
 
 
Nolasco v. Cruz Paño  139 SCRA 152 (1985)
 
F:         Milagros Aguilar-Roque was arrested together
with Cynthia Nolasco by the Constabulary Security
Group. Milagrso had been wanted as a high ranking
officer of the CPP. The arrest took place at 11:30
a.m. of August 6, 1984. At noon of the same day, her
premises were searched and 428 documents, a
portable typewriter and 2 boxes were seized. Earlier
that day, Judge Cruz Paño issued a search warrant for
rebellion against Milagros. On the basis of the
documents seized, charges of subversion and
rebellion were filed but the fiscal's office merely
charged her and Nolasco with illegal possession of
subversive materials. Milagros asked for suppression
of the evidence on the ground that it was illegally
obtained. The search warrant described the things to
be seized as "Documents, papers and other records of
the CPP, NPA and NDF, xxx".
 
HELD:  The search warrant is void because it fails to
describe with particularity the things to be seized. It
does not specify what the subversive books and
instructions are and what the manuals not otherwise
available to the public contain to make them
subversive. There is absent a definite guideline as to
what items might lawfully be seized, thus giving the
officers discretion regarding what articles they should
seize. It is thus in the nature of a general warrant.
But the seizure of the articles could be justified as an
incident of a valid arrest. It is a general rule that, as
an incident of an arrest, the place of premises where
the arrest was made can also be searched without a
search warrant.
  
 (c)  When things seized are within plain view of a
searching party
 Roan v. Gonzales, 145 SCRA 687 (1986)
 
F:              The challenged SW was issued by the resp.
judge on 5/10/84.  The petitioner's house was
searched 2 days later but none of the articles listed
in the warrant was discovered.  The officers
conducting the search found 1 colt Magnum revolver
& 18 live bullets w/c they confiscated.  They are now
the bases of the charge against the petitioner.
 
RULING:  Search warrant issued by resp. judge is
hereby declared null and void and accordingly set
aside.
 
                      The petitioner claims that no depositions
were taken by the resp. judge in accordance w/ Rule
126, Sec. 4 of the ROC, but this is not entirely true. 
Depositions were taken of the complainant's 2
witnesses in addition to the affidavit executed by
them.  It is correct to say, however, that the
complainant himself was not subjected to a similar
interrogation.
            By his own accounts, all that resp. judge did
was question Capt. Quillosa on the contents of his
affidavit only "to ascertain among others, if he knew
and understood the same," and only bec. "the
application was not yet subscribed and sworn to." 
The suggestion is that he would not have asked any
questions at all if the affidavit had already been
completed when it was submitted to him.  In any
case, he did not ask his own searching questions.  He
limited himself to the contents of the affidavit.  He
did not take the applicant's deposition in writing and
attach them to the record, together w/ the affidavit
presented to him.  Such written deposition is
necessary in order that the Judge may be able to
properly determine the existence or non-existence of
Constitutional Law II
the probable cause, to hold liable for perjury the
person giving it if it will be found later that his
declarations are false.  (Mata v. Bayona.)
            The applicant was asking for the issuance of
the SW on the basis of mere hearsay and not of info.
personally known to him.  His application, standing
alone, was insufficient to justify the issuance of the
warrant sought.  It was, therefore, necessary for the
witnesses themselves, by their own personal info., to
establish the applicant's claims.
            Even assuming then that it would have suffied
to take the deposition only of the witnesses and not
of the applicant himself, there is still the question of
the sufficiency of their depositions.
                      A study of the deposition taken from
witnesess Esmael Morada and Jesus Tohilida, who
both claimed to be "intelligence informers," shows
that they were in the main a mere restatement of
their allegations in their affidavits, except that they
were made in the form of answers to the questions
put to them by the resp. judge.
            One may well wonder why it did not occur to
the resp. judge to ask how the witness could be so
certain even as to the caliber of the guns, or how far
he was from the window, or whether it was on the
first floor or second floor, or why his presence was
not noticed at all, or if the acts related were really
done openly, in the full view of the witnesses,
considering that these acts were against the law.              The authorities must apply for the issuance of
These would have been judicious questions but they
were injudiciously omitted.  Instead, the declaration
of the witnesses were readily accepted and the
warrant sought was issued forthwith.
 
SOL-GEN ARGUES THAT THE PETITIONER WAIVED
W H AT E V E R D E F E C T W H E N T H E P E T I T I O N E R
VOLUNTARILY SUBMITTED TO THE SEARCH AND
MANIFESTED HIS CONFORMITY IN WRITING.
 
                      We do not agree.  What we see here is
pressure exerted by the military authorities, who
practically coerced the petitioner to sign the
supposed waiver as guaranty against a possible
challenge later to the validity of the search they
were conducting.
 
            Malum Prohibitum.--  It does not follow that
bec. an offense is malum prohibitum, the subject
thereof is necessarily illegal per se.  Motive is
immaterial in mala prohibita, but the subjects of this
kind of offense may not be summarily seized simply
bec. they are prohibited.  A SW is still necessary.
 
            Motion to Quash.--  Petitioner should have,
before coming to the SC, filed a motion to quash the
search warrant by the resp. judge.  But as we said
and did in Burgos, "this procedural flaw
notwithstanding, we take cognizance of this petition
in view of the seriousness and urgency of the
consitutional issues raised."  RAM.
 
 
Pita v. CA, 178 SCRA 362 (1989)
 
F:         Pursuant to the Anti-Smut Campaign of Mayor
Ramon Bagatsng, policemen seized and confiscated  decision in toto.
from dealers, distributors, newsstand owners and
peddlers along Manila sidewalks, magazines,
publications and other reading materials believed to
be obscene, pornographic, and indecent and later
burned the seized materials in public.      Among the
publications seized and later burned was "Pinoy
Playboy" magazines published and co-edited by
plaintiff Leo Pita.  After his injunctive relief was
dismissed by the RTC and his appeal rejected by CA,
he seeks review with SC, invoking the guaranty
against unreasonable searches and seizure.
 
Issue:  W/N the search and seizure was illegal       
 
HELD:  YES.
            It is basic that searches and seizure may be
done only through a judicial warrant , otherwise,
they become unreasonable  and subject to
challenge.  In Burgos v Chief of Staff (133 SCRA 800) ,
the SC countermanded the orders of the RTC 
authorizing the serach  of the premises WE Forum and
Metropolitan Mail, two Metro Manila Dailies, by
reason of a defective warrant.  There is a greater
reason in this case to reprobate the questioned raid,
in the complete absence of a warrant, valid or
invalid.  The fact that the instant case involves an
obscenity rap makes it no different from Burgos, a
political case, because speech is speech, whether
political or "obscene".
the a search warrant from the judge , if in their
opinion, an obscenity rap is in order.  They must
convince the court that the materials sought to be
seized are "obscene" and pose a clear and present
danger of an evil substantive enough to warrant State
interference and action.  The judge must determine
WON the same are indeed "obscene": the question is
to be resolved on a case-to-case basis and on the
judge's sound discretion.  If probable cause exist, a
search warrant will issue. 
 
 
  (d)  Stop and Frisk
 
Posadas v. CA, 188 SCRA 288 (1990)
 
F:         Patrolmans Ungab and Umpar, both members
of the INP of the Davao Metrodiscom assigned w/ the
Intelligence Task Force, were conducting a
surveillance along Magallanes, St., Davao City.  While
they were w/in the premises of the Rizal Memorial
Colleges, they spotted petitioner carrying a "buri" bag
& they noticed him to be acting suspiciously.  They
approached the petitioner and identified themselves
as members of the INP.  Petitioner attempted to flee
but was stopped by the 2.  They then checked the
"buri" bag of the petitioner where they found 1
caliber .38 Smith & Wesson revolver, w/ 2 rounds of
live ammunition for a .38 cal. gun, a smoke grenade,
& 2 live ammunition for a .22 cal. gun.  Petitioner
was brought to the police station for further
investigation.  He was prosecuted for illegal
possession of firearms and ammunitions in the RTC of
Davao City wherein after a plea of not guilty, and
trial on the merits, a decision was rendered finding
petitioner guilty.  The CA affirmed the appealed
                              
Constitutional Law II
                Hence, the petition for review, the main
thrust of w/c is that there being no lawful arrest or
search and seizure, the items w/c were confiscated
from the possession of the petitioner are inadmissible
in evidence against him.
                The Sol-Gen argues that under Sec. 12, R
136 of ROC, a person lawfully arrested may be
searched for dangerous weapons or anything (w/c
may be) used as proof of a commission of an offense,
w/o a SW.
HELD:  From Sec. 5, R 113, ROC, it is clear that an
arrest w/o a warrant may be effected by a peace
officer or private person, among others, when in his
presence the person to be arrested has committed, is
actually committing, or is attempting to commit an
offense, or when an offense has in fact, just been
committed, & he has personal knowledge of the facts
indicating that the person arrested has committed it.
                      At the time the peace officers identified
themselves and apprehended the petitioner as he
attempted to flee, they did not know that he had
committed, or was actually committing, the offense. 
They just suspected that he was hiding something in
the buri bag.  They did not know what its contents
were.  The said circumstances did not justify an
arrest w/o a warrant.
            However, there are many instances where a
warrant & seizure can be effected w/o necessarily
being preceded by an arrest, foremost of w/c is the
'stop & search' w/o a SW at military or police
checkpoints, the constitutionality of w/c has been
upheld by this Court in Valmonte v. de Villa.
            As bet. a warrantless search and seizure (S &
S) conducted at military or police checkpoints and
the search thereof in the case at bar, there is no
question that, indeed, the latter is more reasonable
considering that, unlike in the former, it was effected
on the basis of a probable cause.  The probable cause
is that when the petitioner acted suspiciously and
attempted to flee w/ the buri bag, there was a
probable cause that he was concealing something
illegal in the bag and it was the right and duty of the
police officers to inspect the same.
                      It is too much indeed to require the police
officers to search the bag in the possession of the
petitioner only after they shall have obtained a SW
for the purpose.  Such an exercise may prove to be
useless, futile and much too late.
            As the Sol-Gen said:
 
                "The assailed S & S may
still be justified as akin to a 'stop and
frisk' situation whose object is either
to determine the identity of
suspicious individuals or to maintain
the status quo momentarily while the
police officers seeks to obtain more
info. ...  The US SC held in Terry v.
Ohio that "a police officer may in
appropriate circumstances & in an
appropriate manner approach a
person for the purpose of
investigating possible criminal
behaviour even though there is no
probable cause to make an arrest."  person of the arrestee and the immediate vicinity
In such a situation, it is reasonable
for an officer rather than simply to
shrug his shoulder and allow a crime
to occur, to stop a suspicious
individual briefly in order to
determine his identity or maintaing
the status quo while obtaining more
info." 
 
PETITION DENIED.  RAM.
 
  (e)  When there is a valid express waiver made
voluntarily and intelligently.
 
            Waiver cannot be implied from the fact that
the person consented or did not object to the search,
for it many happen that he did so only out of respect
for the authorities.  The waiver must be expressly
made.
 
People v. De lara
 
F:              After a surveillance conducted, a buy-bust
operation was conducted by the police, as a
consequence of which, accused was arrested.  The
accused already pocketed the marked money and
handed two foils to the police when he sensed the
presence of police operatives.  He tried to retrieve
the two foils but he was prevented from doing so.  He
tried to escape by running inside his house.  The
police pursued him and were able to subdue him. 
The accused admitted that he kept prohibited drugs
in his house.  He even showed the arresting officers a
blue plastic bag containing prohibited drugs.  The
team, together with the accused, proceeded to WPD
headquarters for investigation.  During the
investigation, accused was apprised of his
constitutional rights to remain silent and to have the
assistance of counsel.  When appellant was asked to
give a written statement, he refused to do so pending
arrival of his lawyer.  Accused contends that his arrest
and the seizure of the bag containing prohibited
drugs was null and void.  He also contends that he
was not assisted by counsel during custodial
investigation, where he was forced to sign the
photocopy of the marked money,  the Receipt of
Property Seized, and the Booking and Information
Sheet.
 
ISSUE:  Whether or not the arrest of the accused and
the seizure of the plastic bag were valid.
 
RULING:  YES.  The accused was caught in flagrante
as a result of a buy-bust operation.  There was no
need for a warrant.  The policemen were not only
authorized but were also under obligation to
apprehend the drug pusher even without a warrant. 
The policemen’s entry into the house of the accused
without a search warrant was in hot-pursuit of a
person caught committing an offense in flagrante. 
The arrest that followed the hot-pursuit was valid. 
The seizure of the plastic bag was the result of the
a c c u s e d ’s a r r e s t i n s i d e t h e h o u s e .  A
contemporaneous search may be conducted upon the
where the arrest was made.
Constitutional Law II
 
ISSUE:  Whether the documents signed by the accused
during the investigation were admissible in evidence.
 
RULING:  NO.  There was no showing that accused
was then assisted by counsel nor his waiver thereto
put into writing.  (The rejection of these evidence
would not affect the conviction of the accused in
view of the abundance of other evidence establishing
his guilt.)  Bam.
 
 
People v. de Gracia, 233 SCRA 716  (July  6, 1994)
 
F:         The incidents involved in this case took place
at the height of the coup d'etat staged in December,
1989.  Accused-appellant Rolando de Gracia was
charged in two separate informations for illegal
possession of ammunition and explosives in
furtherance of rebellion, and for attempted
homicide. Appellant was convicted for illegal
possession of firearms in furtherance of rebellion, but
was acquitted of attempted homicide.
                              Surveillance was undertaken by the
military along EDSA because of intelligence
reports                           about a coup.  Members of  from murder, homicide, arson, or other offenses,
the team were engaged  by rebels in gunfire killing
one member of the team.    A searching team raided
the Eurocar Sales Office. They were able to find and
confiscate six cartons of M-16 ammunition, five
bundles of C-4 dynamites, M-shells of different
calibers, and "molotov" bombs inside one of the
rooms belonging to a certain Col. Matillano. De
Gracia was seen inside the office of Col. Matillano,
holding a C-4 and suspiciously peeping through a
door. The team arrested appellant. They were then
made to sign an inventory, written in Tagalog, of the
explosives and ammunition confiscated by the raiding
team. No search warrant was secured by the raiding
team.  Accused was found guilty of  illegal possession
of  firearms.
                              That judgment of conviction is now
challenged before us in this appeal.
 
Issue:  Whether or not there was a valid search and
seizure in this case.
 
Ruling: YES
                      It is admitted that the military operatives
who raided the Eurocar Sales Office were not armed
with a search warrant at that time.  The raid was
actually precipitated by intelligence reports that said
office was being used as headquarters by the RAM.  court, albeit with an erroneous recommendation in
Prior to the raid, there was a surveillance conducted
on the premises wherein the surveillance team was
fired at by a group of men coming from the Eurocar
building. When the military operatives raided the
place, the occupants thereof refused to open the
door despite requests for them to do so, thereby
compelling the former to break into the office.  The
Eurocar Sales Office is obviously not a gun store and
it is definitely not an armory or arsenal which are the
usual depositories for explosives and ammunition. It
is primarily and solely engaged in the sale of
automobiles. The presence of an unusual quantity of
high-powered firearms and explosives could not be
justifiably or even colorably explained. In addition,
there was general chaos and disorder at that time
because of simultaneous and intense firing within the
vicinity of the office and in the nearby Camp
Aguinaldo which was under attack by rebel forces. 
The courts in the surrounding areas were obviously
closed and, for that matter, the building and houses
therein were deserted.
 
            Under the foregoing circumstances, it is our
considered opinion that the instant case falls under
one of the exceptions to the prohibition against a
warrantless search. In the first place, the military
operatives, taking into account the facts obtaining in
this case, had reasonable ground to believe that a
crime was being committed. There was consequently
more than sufficient probable cause to warrant their
action. Furthermore, under the situation then
prevailing, the raiding team had no opportunity to
apply for and secure a search warrant from the
courts. Under such urgency and exigency of the
moment, a search warrant could lawfully be
dispensed with.
                      There are two separate statutes penalizing
different offenses with discrete penalties. The
Revised Penal Code treats rebellion as a crime apart
such as illegal possession of firearms, that might
conceivably be committed in the course of a
rebellion. Presidential Decree No. 1866 defines and
punishes, as a specific offense, the crime of illegal
possession of firearms committed in the course or as
part of a rebellion.
                      Subject to the presence of the requisite
elements in each case, unlawful possession of an
unlicensed firearm in furtherance of rebellion may
give rise to separate prosecutions for a violation of
Section 1 of Presidential Decree No. 1866, and also a
violation of Articles 134 and 135 of the Revised Penal
Code on rebellion. Double jeopardy in this case
cannot be invoked because the first is an offense
punished by a special law while the second is a felony
punished by the Revised Penal Code, 24 with variant
elements.
                      Presidential Decree No. 1866 imposes the
death penalty where the illegal possession of firearms
and ammunition is committed in furtherance of
rebellion. At the time the offense charged in this case
was committed under the governance of that law, the
imposition of the death penalty was proscribed by the
Constitution. Consequently, appellant De Gracia could
only be sentenced to serve the penalty of reclusion
perpetua which was correctly meted out by the trial
connection therewith. 
 
  3.  Constitutionality of checkpoints and "areal
target zonings."
 
Valmonte v. De Villa, 170 SCRA 256 (1989)
 
F:            On 1/20/87, the NCRDC was activated w/
the mission of conducting security operations w/in its
area or responsibility and peripheral areas, for the
purpose of establishing an effective territorial
defense, maintaining peace and order, and providing
an atmosphere conducive to the social, economic and
political dev't of the NCR.  As part of its duty to
Constitutional Law II
maitain peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela and MM.
                              Petitioners aver that, bec. of the
institution of said checkpoints, the Valenzuela
residents are worried of being harassed and of their
safety being placed at the arbitrary, capricious and
whimsical disposition of the military manning the
checkpoints, considering that their cars and vehicles
are being subjected to regular searches and check-
ups, especially at night or at dawn, w/o a SW and/ or
court order.  Their alleged fear for their safety
increased when Benjamin Parpon, was gaunned down
allegedly in cold blood by members of the NCRDC for
ignoring and/ or continuing to speed off inspite of
warning shots fired in the air.  forces to prevent or suppress lawless violence,
 
HELD:  Petitioner's concern for their safety and
apprehension at being harassed by the military
manning the checkpoints are not sufficient grounds to
declare the checkpoints per se, illegal.  No proof has
been presented before the Court to show that, in the
course of their routine checks, the military, indeed,
committed specific violations of petitioners' rights
against unlawful search and seizure of other rights.
            The constitutional right against unreasonable
searches and seizures is a personal right invocable
only by those whose rights have been infringed, or
threatened to be infringed.
            Not all searches and seizures are prohibited.  necesary as long as the rights of the people are
Those w/c are reasonable are not forbidden.
            The setting up of the questioned checkpoints
may be considered as a security measure to enable
the NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace
and order for the benfit of the public.  Checkpoints
may not also be regarded as measures to thwart plots
to destabilize the govt, in the interest of public
security.
                      Between the inherent right of the state to
protect its existence and promote public welfare and
an individual's right against a warrantless search w/c
is, however, reasonably conducted, the former should
prevail.
                      True, the manning of checkpoints by the
military is susceptible of abuse by the military in the
same manner that all governmental power is
susceptible of abuse.  But, at the cost of occasional
inconveninece, discomfort and even irritation to the
citizen, the checkpoints during these abnormal times,
when conducted w/in reasonable limits, are part of
the price we pay for an orderly society and a
peaceful community.  warranted.
 
 
Guazon v. De Villa, 181 SCRA 623 (1990)
 
F:         This is a petition for prohibition w/ prel. inj.
to prohibit the military and police officers
represented by public respondents from conducting
"areal target zonings" or "saturation drives" in MM.
                The 41 petitioners state that they are all
of legal age, bona fide residents of MM and Taxpayers
and leaders in their respective communities.
                Accdg. to the petitioners, the "areal target
zonings" or "saturation drives" are in critical areas
pinpointed by the military and police as places where
the subversives are hiding.  Petitioners claim that the
saturation drives follow a common pattern of human
rights abuses.
                              Respondents stress 2 points.  First, the
resps. have legal authority to conduct saturation
drives.  And, second, they allege that the accusations
of the petitioners about a deliberate disregard for
human rights, are total lies.
                              Resps. cite Art. VII, Sec. 17 of the
Const.:"The Pres. shall have control of all the
executive departments, bureaus and offices.  He
shall ensure that the laws are faithfully executed."
                They also cite sec. 18.:"The Pres. shall be
the Commander-in-chief of all AFP and whenever it
becomes necessary, he may call out such armed
invasion or rebellion. xxx
                    
HELD:  The Court believes it is highly probable that
some violations were actually committed.  This is so
inspite of the alleged pleas of barangay officials for
the thousands of residents"to submit themselves
voluntarily for character and personal verification." 
However, the remedy is not to stop all police actions,
including the essential  and legitimate ones.  We see
nothing wrong in police making their presence visibly
felt in troubled areas.  Police cannot respond to riots
or violent demonstration if they do not move in
sufficient numbers.  A show of force is sometimes
protected and not violated.  A blanket prohibition
such as that sought by the petitioners would limit all
police actions to one on one confrontation where
search warrants and warrants of arrest against
specific individuals are easily procured.  Anarchy may
reign if the military and the police decide to sit down
in their offices bec. all concerted drives where a
show of force is present are totally prohibited.
                      The remedy is not an original action for
prohibition brought through a TP's suit.  Where not
one victim complains, and not one violator is properly
charged, the problem is not initially for the SC.  It is
basically one for the executive departments and for
the trial courts.  
                      Under the circumstances of this TP's suit,
there is no erring soldier or policeman whom we can
order prosecuted.  In the absence of clear facts
ascertained through an orderly procedure, no
permanent relief can be given at this time.  Further
investigation of the petitioners' charges and a hard
look by admin. officials at the policy implications of
the prayed for blanket prohibition are also
            In the meantime, and in the face of a prima
facie showing that some abuses were probably
committed and could be committed during future
police actions, we have to temporarily restrain the
alleged baning on walls, the kicking in of doors, the
herding of half-naked men to assembly areas for
examination of tattoo marks, the violation of
residences even if these are humble shanties of
squatters, and other alleged acts w/c are shocking to
the conscience. 
 
 
 4.  Wire Tapping
 
 
Constitutional Law II
Gaanan v. IAC, 145 SCRA 112 (1986)
F:                Complainant Atty. Pintor and Montebon
offered to withdraw the complaint for direct assault
they  filed against Laconico after demanding P8,000
from him.  This demand  was heard by Atty. Gaanan
through a telephone extension as requested by
Laconico so as to personally hear the proposed
conditions for the settlement.  Atty. Pintor was
subsequently arrested in an entrapment operation
upon receipt of the money.  Since Atty. Gaanan
listened to the telephone conversation without
complainant's consent, complainant charged Gaanan
and Laconico with violation of the Anti- Wiretapping
Act (RA 4200).
 
ISSUE:  W/N an extension telephone is among the
prohibited devices in Sec. 1 of RA 4200 such that iuts
use to overhear a private conversation would
constitute an unlawful interception of communication
between 2 parties using a telephone line.
 
HELD:  NO
                      An extension tel. cannot be placed in the
same category as a dictaphone, dictagraph, or other
devices enumerated in Sec. 1 of the law as the use
thereof cannot be considered as "tapping" the wire or
cable of a telephone line.  This section refers to
instruments whose installation or presence cannot be
presumed by the party or parties being overheard
because, by their very nature, they are not of
common usage and their purpose is precisely for
tapping, intercepting, or recording a tel.
conversation. The tel. extension in this case was not
installed for that purpose.  It just happened to be
there for ordinary office use.   seized is the only effective means of ensuring the
            Furthermore, it is a general rule that penal
statutes must be construed strictly in favor of the
accused.  Thus in the case of doubt as in this case, on
WON an extension tel. is included in the phrase
"device or arrangement" the penal statute must be
construed as not including an extension tel.
            A perusal of the Senate Congressional Record
shows that our lawmakers intended to discourage,
through punishment, persons suchj as government
authorities or representatives  of organized groups
from installing devices in order to gather evidence for
use in court or to intimidate, blackmail or gain some
unwarranted advantage over the tel. users.  returned, and only its suppression can be asked for.
Consequently, the mere act of listening , in order to
be punishable must stricly be with the use of the
enumerated devices in RA 4200 or others of similar
nature. 
 
 5.  What may be seized
 
            Rule 126, sec. 2.  Personal property to be
seized.--  A search warrant may be issued for the
search and seizure of the following personal
property:
            (a)  Subject matter of the offense;
                      (b)  Stolen or embezzled and other
proceeds or fruits of the offense; and
            (c)  Used or intended to be used as a means
of committing an offense.  (Rules of Court.)
 
 
6.  Exclusionary Rule
            Art. III, Sec. 3.  xxx
            (2)  Any evidence obtained in violation of
this (privacy of communication and
correspondence) or the preceding section
(unreasonable searches and seizures)  shall be
inadmissible for any purpose in any proceeding.
 
                      One of the remedies of one who was
victimized by an illegal search is to ask for the
suppression of the things seized and the evidence
illegally taken.
 
            The exclusionary rule prohibits the use of any
evidence obtained in violation of secs. 2 and 3 (1) of
Art. III for "any purpose" and in "any proceeding".  The
evidence is absolutely useless.  This has not always
been the case.
 
            In Moncado v. People's Court (1948), the SC,
following the U.S. case of Wolf V. Colorado, rules that
evidence illegally obtained is not necessarily
excluded if is otherwise admissible under the rules of
evidence.  In such case, the evidence admitted,
without prejudice to any criminal, civil or
administrative liability of the officer who illegally
seized it.  In other words, the admissibility of the
evidence is not effected by the illegality of the
means by which it was acquired.
 
            It was in Stonehill v. Diokno, supra, following
the U.S. case of Maop v. Ohio 1969, when the
exclusionary rule was first adopted in the Philippines,
the SC noting that the total suppression of the thing
constitutional right which it seeks to preserve.  The
Court noted, the insufficiency of the other remedies
(e.g. action for damages, criminal punishment,
resistance), especially in the Philippines where
violations were committed by those in power and
were thus equipped with the pardoning power to
water down the gravity of the other penalties
imposed to violators of those constitutional rights.
 
            The victim may or may not get back the thing
seized, depending on whether it is contraband or
not.  It the thing is contraband, it would not be
 
But if the thing is legal, the party can ask for its
return, even if no criminal prosecution has yet been
filed, as in the Stonehill case.
 
Stonehill v. Diokno, 20 SCRA 383 (1967)
 
F:                Upon application of the officers of the govt
(resp. prosecutors), several judges (resp. judges)
issued a total of 42 search warrants against
petitioners &/ or the corporations of w/c they were
officers, directed to any peace officer, to search the
perons named and/ or the premises of their offices,
warehouses, and/ or residences, and to seize several
personal prop. as the "subject of the offense; stolen
or embezelled or the fruits of the offense," or "used
or intended to be used as the means of committing
the offense" as violation of CB Laws, Tariff and
Customs Laws (TCC), NIRC and the RPC."
Constitutional Law II
                Alleging that the aforementioned search
warrants are null & void, said petitioners filed w/ the
SC this orig. action for certiorari, prohibition,
mandamus & injunction.  The writ was partially lifted
or dissolved, insofar as the papers, documents, and
things seized from the officers of the corporations;
but the injunction was maintained as regards those
found & seized in the residences of petitioners.
 
ISSUES:      (1)  With respect to those found & seized
in the offices of the corporations, w/n petitioners
have cause of action to assail the validity of the
contested warrants.
                              (2)  In connection w/ those found &
seized in the residences of petitioners, w/n the
search warrants in question and the searches and
seizures made under the authority thereof are valid.
                  (3)  If the answer in no. 2 is no, w/n said
documents, papers and things may be used in
evidence against petitioners.
           
HELD: (1)  No.  Petitioners have no cause of action to
assail the legality of the contested warrants and the
seizure made in pursuance thereof bec. said
corporations have their respective personalities,
separate and distinct from the personality of
petitioners.  The legality of a seizure can be
contested only by the party whose rights have been
impaired thereby and that the objection to an
unlawful search and seizure is purely personal and
cannot be avalied of by 3rd parties.
           
                      (2)  No.  Two points must be stressed in
connection w/ Art. III, Sec. 2 of the Consti:  (a)  that
no warrant shall issue but upon probable cause to be
determined by the judge in the manner set forth
therein; & (b)  that the warrant shall particularly
describe the things to be seized.  against appellant for violation of RA 6425.
                      None of these requirements has been
complied w/.  It was stated that the natural and
juridical persons has committed a violation of CB
laws, TCC, NIRC & RPC.  No specific offense had been
alleged in said applications.  The averments thereof
w/ respect to the offense committed were abstract.  argues that the same should be held inadmissible in
As a consequence, it was impossible for the judges
who issued the warrants to have found the existence
of a probable cause, for the same presupposes the
introduction of competent proof that the party
against whom it is sought has performed particular
acts, or committed specific omissions, violating a
given provision of our criminal laws.
            General search warrants are outlawed bec.
they place the sanctity of the domicile and the
privacy of communication and correspondence at the
mercy of the whims, caprice or passion of peace
officers.
                      The warrants sanctioned the seizure of all
records of the petitioners and the aforementioned
corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of
Rights--  that the things to be seized be particularly
described-- as well as tending to defeat its major
objective:  the elimination of general warrants.                        The contraband in the case at bar having
RAM.
 
 7.  Civil Action for Damages
                      A civil case for damages can also be filed
pursuant to Article 32 of the Civil Code.
 
            In Aberca v. Ver, the SC held that even if the
privilege of the writ is suspended, the court can
nevertheless entertain an action not only against the
task force but even against the top ranking officials
who ordered the seizure, to recover damages for the
illegal searches and seizures made in a despotic
manner.  By so doing, one can indirectly inquire into
the validity of the suspension of the privilege.
 
 
8.  Search and Seizure by Private Persons 
 
People v. Marti, 193 SCRA 57 (1991)
 
F:                Before delivery of appellant's box to the
Bureau of Customs and/ or Bureau of Posts, Mr. Job
Reyes (proprietor) & husband of Anita Reyes,
following standard operating procedure, opened the
boxes for final inspection.  When he opened
appellant's box, a peculiar order emitted therefrom. 
His curiosity aroused, he squeezed one of the bundles
allegedly containing gloves and felt dried leaves
inside.  Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of
one of the gloves.  He made an opening on one of the
cellophane wrappers and took several grams of the
contents thereof.
                Job Reyes reported the incident to the NBI
and requested a laboratory examination of the
samples he extracted from the cellophane wrapper.
                It turned out that the dried leaves were
marijuana flowering tops as certified by the forensic
chemist of the Narcotics Section of the NBI.
                              Thereafter, an information was filed
 
APPELANT CONTENDS that the evidence subject of
the imputed offense had been obtained in violation of
his consti. rights against unreasonable searches and
seizures and privacy of communication and therefore
evidence.
 
                              The case at bar assumes a peculiar
character since the evidence sought to be excluded
was primarily discovered and obtained by a private
person, acting in a private capacity and w/o the
intervention and participation of state authorities.
               
ISSUE:  May an act of a private individual, allegedly in
violation of appellant's constitutional rights, be
invoked against the state?
 
HELD:  We hold in the negative.  In the absence of
governmental interference, the liberties guaranteed
by the Consti. cannot be invoked against the State. 
This constitutional right refers to the immunity of
one's person, whether citizen or alien, from
interference by govt. xxx  (Villanueva v. Querubin.)
come into possession of the govt w/o the latter
transgressing appellant's rights against unreasonable
searches and seizures (S & S), the Court sees no
Constitutional Law II
cogent reason why the same should not be admitted
against him.
            Appellant, however, would like this Court to
believe that NBI agents made an illegal search and
seizure of the evidence later on used in prosecuting
the case.  The arguments of appellant stands to fall
on its own weight, or the lack of it.
            First, the factual considerations of the case
at bar readily foreclose the proposition that NBI
agents conducted an illegal S & S of the prohibited
merchandise.  Records of the case clearly indicate
that it was Mr. Job Reyes, the proprietor of the
forwarding agency, who made the search/
inspection.  Such inspection was reasonable and a
SOP on the part of Mr. Reyes as a precautionary
measure bef. delivery of packages to the Bureau of
Customs or Bureau of Posts.
            Second, the mere presence of the NBI agents
did not convert the reasonable search effected by
Reyes into a warrantless S & S proscribed by the
Consti.  Merely to observe and look at that w/c is
plain sight is not search.    Having observed that w/c
is open, where no trespass has been committed in aid
thereof, is not search.
                      That the Bill of Rights embodied in the
Consti. is not meant to be invoked against acts of
private individuals finds support in the deliberations
of the Con Com.:  " xxx The Bill of Rights governs the
relationship between the individual and the state.  Its
concern is not the relation between individuals,
between a private individual and other individuals.
xxx"  (Sponsorship speech of Commissioner Bernas.)
                      The constitutional proscription against
unlawful S & S therefore applies as a restraint
directed only against the govt and its agencies tasked
w/ the enforcement of the law.  Thus, it could only
be invoked against the State to whom the restraint
against arbitrary and unreasonable exercise of power
is imposed.
                      It the search is made at the behest or
inititiation of the proprietor of a private
establishment for its own and private purposes, as in
the case at bar, and w/o the intervention of police
authorities, the right against unreasonable S & S
cannot be invoked for only the act of private
individuals, not law enforcers, is involved.  In sum,
the protection against unreasonable S & S cannot be
extended to acts committed by private individuals so
as to bring it w/in the ambit of alleged unlawful
intrusion by the govt.  returned the records to Judge Samulde on the ground
  
  9.  In the issuance of warrants of ARREST, as
distinguished from SEARCH warrants, the judge
may rely simply on fiscal's certification as to
probable cause
 
Compare Rule 112, Sec. 6 (on warrants of arrest)
with Rule 126, Sec. 4 (on search warrants.)
            Rule 112, Sec. 6.  When warrant of arrest
may issue.--  (a)  By the Regional Trial Court.--  fiscal had not shown that he has a clear, legal right to
Upon the filing of an information, the Regional Trial
Court may issue a warrant for the arrest of the
accused.
            (b)  By the Municipal Trial Court.--  If the
municipal trial judge conducting the preliminary
investigation is satisfied after an examination in
writing and under oath of the complainant and his
witnesses in the form of searching questions and
answers, that a probable cause exists and that
there is a necessity of placing the respondent
under immediate custody in order not to frustrate
the ends of justice, he shall issue a warrant of
arrest.  (Rules of Court.)
 
 
                      Rule 126, Sec. 4.  Examination of
complainant; record.--  The judge must, before
issuing the warrant, personally examine in the form
of searching questions and answers, in writing and
under oath the complainant and any witnesses he
may produce on facts personally known to them
and attach to the records their sworn statements
together with any affidavits submitted.
 The requirement in the case of warrants of arrest is
relaxed in that the judge can rely on the certification
of the fiscal that the latter has conducted the
preliminary investigation and has found probable
cause on the part of the accused.  The judge can
issue the warrant on the basis of the information filed
by the fiscal and the certification of probable cause.
 
            The SC has allowed this practice in Amarga v.
Abbas, 98 Phil. 739 (1956), noting that it has been
practice long settled and that a judge can issue an
order to arrest on the basis of the certificate.
 
                      Of course, if the judge is in doubt, he can
always ask the fiscal to submit the records of the
preliminary investigation, so he could determine for
himself if, on the basis of the affidavits, there exists
probable cause.  It he is satisfied with the affidavits,
he need not summon the affiants.
 
Amarga v. Abbas, 98 Phil. 739 (1956)
 
F:                Municipal Judge Samulde conducted a
preliminary investigation (PI) of Arangale upon a
complaint for robbery filed by complainant
Magbanua, alleging that Arangale harvested palay
from a portion of her land directly adjoining
Arangale’s land.  After the PI, Samulde transmitted
the records of the case to Provincial Fiscal Salvani
with his finding that “there is prima facie evidence of
robbery as charged in the complaint”.  Fiscal Salvani
that the transmittal of the records was “premature”
because Judge Samulde failed to include the warrant
of arrest (WA) against the accused.  Judge Samulde
sent the records back to Fiscal Salvani stating that
although he found that a probable cause existed, he
did not believe that Arangale should be arrested.
                              Fiscal Salvani filed a mandamus case
against Judge Samulde to compel him to issue a WA. 
RTC dismissed the petition on the ground that the
the performance of the act to be required of the
judge and that the latter had an imperative duty to
perform it.  Neverhteless, Judge Samulde was
ordered to issue a WA in accordance with Sec. 5, Rule
112 of the 1985 Rules of Court.
Constitutional Law II
 
ISSUE:  Whether it is mandatory for the investigating
judge to issue a WA of the accused in view of his
finding, after conducting a PI, that there exists prima
facie evidence that the accused commited the crime
charged.
 
H E L D :  T H E P U R P O S E O F A P R E L I M I N A RY
INVESTIGATION DOES NOT CONTEMPLATE THE
ISSUANCE OF A WA BY THE INVESTIGATING JUDGE OR
OFFICER.
 
                      Under Rule 112 of the 1985 ROC, a PI is
conducted on the basis of affidavits to determine
whether or not there is sufficient ground to hold the
accused for trial. To determine whether a WA should
issue, the investigating judge must have examined in
writing and under oath the complainant and his
wirtnesses by searching questions and answers; he
must be satisfied that a probable cause exists; and
there must be a need to place the accused under
immediate custody in order not to frustrate the ends
of justice.  It is not obligatory, but merely
discretionary, upon the investigating judge to issue a
WA, for the determination of whether it is necessary
to arrest the accused in order not to frustrate the
ends of justice, is left to his sound judgment or
discretion.
                      The fiscal should, instead, have filed an
information immediately so that the RTC may issue a
warrant for the arrest of the accused.  Bam.
 
 
Beltran v. Makasiar, 167 SCRA 393 (1988)
 
F:            The Pres. of the Phils. filed a complaint for
libel against the petitioners, who were publisher and
columnist of the Philippine Star, based on the
following statement in Beltran's column of Oct. 12,
1987 entitled "The Nervous Officials of the Aquino
Administration:"  "If you will recall, during the Aug.
29 coup attempt, the Pres. hid under her bed, while
the firing was going on-- perhaps the first
Commander-in-Chief of the AFP to have to do so."
                Instead of submitting his counter-affidavit,
Beltran moved to dismiss the complaint.  The fiscal
deniend his motion after finding a prima facie case
against the petitioners and filed the case in court w/
c thereafter issued warrants of arrest against the
petitioners.  The petitioners filed a petition for
certiorari and prohibition.
 
HELD:  The addition of the word "personally" after the
word "determined" (Art. III, Sec. 2) and the deletion
of the grant of authority by the 1973 Consti. to issue
warrants to "other responsible officer as may be
authorized by law," has apparently convinced
petitioner Beltran that the Consti. now requires the
judge to personally examine the complainant and his
witnesses in his determination of probable cause for
the issuance of warrants of arrest.  This is not an
accurate interpretation.  What the Consti.
u n d e rsc or e s i s t h e e x c l u si ve a n d p e r s on a l
responsibility of the issuing judge to satisfy himself of
the existence of probable cause.  In satisfying himself
of the existence of probable cause for the issuance of
a warrant of arrest, the judge is not required to
personally examine the complainant and his
witnesses.  Following established doctrine and
procedure, he shall:  (1)  personally evaluate the
report and the supporting documents submitted by
the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest;
or (2)   if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to
the existence of probable cause.  Sound policy
dictates this procedure, otherwise judges would be
unduly laden w/ the preliminary examination and
investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed
before their courts. 
            xxx
 
 10.  When arrest may be made without a warrant
 
            Rule 113, Sec. 5.  Arrest without warrant;
when lawful.--  A peace officer or a private person
may, without a warrant, arrest a person:
            (a)  When, in his presence, the person to be
arrested has committed, is actually committing, or
is attempting to commit an offense;
            (b)  When an offense, has in fact just been
committed, and he has personal knowledge of facts
indicating that the person to be arrested has
committed it;
                      (c)  When the person to be arrested is a
prisoner who has escaped from a penal
establishment of place where he is serving final
judgment or temporarily confined while his case is
pending, or has escaped while being transferred
from one confinement to another.
            In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant shall
be forthwith delivered to the nearest police station
or jail, and he shall be proceeded against in
accordance with Rule 112, Section. 7.  (Rules of
Court.)
 
 
                      Rule 113, sec. 5 talks of "citizen arrests",
cases where an arrest can be made either by the
peace officer or a private person without need of a
warrant. 
            The key element in the first case is that the
offense was committed "in his presence".  The key
element in the second case is that he has "personal
knowledge".
 
            Thus, in People v. Burgos, 144 SCRA 1 (1986),
the arrest made by the constabulary without a
warrant of a farmer on the basis of information that
he was a subversive was held unconstitutional, since
there was no personal knowledge of the offense
itself.
 
            The gun and subversive documents found by
the officer and admitted by the former to be his were
likewise held inadmissible because the admission
violated the Miranda rule.
Constitutional Law II
 
 a.  Strict enforcement of rule
 
People v. Burgos, 144 SCRA 1 (1986)
 
F:                On the basis of info. given by Cesar
Masamlok, the appellant was arrested while plowing
his farm in Tiguman, Davao del Sur, on May 13, 1982,
on charges of illegal possession of firearm in
furtherance of subversion.  A .38 caliber revolver was
found buried under his house.  Subversive documents
were also seized from a place near his house.  Two
arresting officers testified that the appellant had
readily admitted ownership of the gun and the
documents.  The appellant was found guilty of the
charge and sentenced to 20 years of reclusion
temporal, as minimum, to reclusion perpetua, as
maximum, and the gun and documents were ordered
confiscated.  requirements for a warrantless arrest were not
 
HELD:  (1)  Under R 113, Sec. 5 (a), the arresting
officer must have personal knowledge that the crime
has been committed, is being committed, or is about
to be committed, in order to justify an arrest w/o a
warrant.  The offense must also be committed in his
presence or w/in his view.  There is no such personal
knowledge in this case.  Hence the arrest of the
appellant was illegal.
            (2)  Consequently, the incidental search and
seizure were likewise illegal and the firearm and
document are inadmissible in evidence.
                      (3)  The prosecution argues that the
appellant admitted ownership of the gun and claims
that it was he who pointed to the place where the
subversive documents were hidden.  However, as the
appellant was not informed of his constitutional
rights at that time, his admission is inadmissible
under [Art. III, Sec. 12 (1).]   It is true that 6 days
later he executed a confession before the fiscal w/
the assistance of counsel, but it was then already too
late.
                      (4)  As the remaining evidence against the
appellant is the testimony of Cesar M. and it is
uncorroborated and unreliable, the appellant should
be acquitted, but the gun and the subversive
documents must be confiscated.  circumstances taking place before their eyes led the
   
People v. Rodriguez, 232 SCRA 498  (April 25, 1989)
F:                Pat. Marvin Pajilan received a phone call
from the desk officer of Sub-Station I, namely,
Michael Orbeta, who informed him that a person
named 'Alyas Allan' was selling marijuana at No. 8199
Constancia St., Makati, Metro Manila and requested
that said person be apprehended. Acting on this
phone call of desk officer Michael Orbeta, a team of
policemen posted themselves about 10 to 15 meters
from the house located at 8199 Constancia St.,
Makati. They saw a tricycle with 3 persons on board,
a driver and 2 passengers, stop in front of the house
at 8199 Constancia  St. They also saw a male person
come out of the said house and approach and talk to
the driver of the tricycle. After a while they saw the
male person go back to the house and a little later
come back and hand to the tricycle driver 'a
suspicious stuff of a cigarette, a marijuana cigarette',
they further saw the tricycle driver in turn give
something to the male person. Pat. Pajilan together
with his companions approached the male person and
the tricycle driver and after introducing themselves
as police officers, they asked the male person, the
tricycle driver and his 2 passengers to bring out the
contents of their pockets, which the male person, the
driver and the passengers of the tricycle did. The
male person brought out from his pockets 2 small
plastic bags containing suspected marijuana leaves.
The tricycle driver brought out from his right front
pocket 3 sticks of suspected marijuana cigarettes.
Nothing illegal was found in the pockets of the 2
passengers of the tricycle.
                              The appellant contends that the police
officers had no personal knowledge that he was
indeed handing marijuana to Enrico Bacod as they
were 10-15 meters away from the alleged sale
transaction. The arrest therefore was not valid as the
complied with.
 
Issue: Was the warantless arrest valid?
 
Ruling:  YES.
                      The warrantless arrest made by the law
enforcers was valid since it falls under the provisions
of Rule 113, Sec. 5(a) of the Rules of Court which
provides:
            Sec. 5. Arrest without warrant; when lawful.
A peace officer or a private person may, without a
warrant, arrest a person:
            (a)  When, in his presence, the person to be
arrested has committed, is actually committing, or is
attempting to commit an offense;
           
            Having caught the appellant in flagrante as a
result of the buy-bust operation, the policemen were
not only authorized but were also under obligation to
apprehend the drug pusher even without a warrant of
arrest. The police officers were tipped off by an
informer about the illegal trade of the accused. The
exact location where this trading in drugs was taking
place was given to them. The 'suspicious stuff' taken
from the accused were confirmed to be marijuana
after tests were conducted on them. The attendant
police officers to reasonably conclude that an offense
was actually being committed. 
 
  b.  Exceptions to strict enforcement
 
      (1)  "Continuous" crimes of subversion
 
Umil v. Ramos, 187 SCRA 311 (1990)
  
            These are 8 petitions for habeas corpus (HC)
filed bef. the Court.  The Court finds that the persons
detained have not been illegally arrested nor
arbitrarily deprived of their constitutional right to
liberty and that the circumstances attending these
cases do not warrant their release on HC.
            An arrest w/o a warrant, under Sec. 5, pars.
(a) and (b) of Rule 113, ROC, as amended is justified
when the person arrested is caught in flagrante
delicto, viz., in the act of committing an offense; or
when an offense has just been committed and the
Constitutional Law II
person making the arrest has personal knowledge of
the facts indicating that the person arrested has
committed it.
            The persons in whose behalf these petitions
for HC have been filed had freshly committed or were
actually committing an offense, when apprehended,
so that their arrests, w/o warrant were clearly
justified, and that they are, further detained by
virtue of valid informations filed against them in
court.
 
I antennae, speaker and subversive documents.
 
                      In Umil v. Ramos, RIOU-CAPCOM received
confidential info. about a member of the NPA-
Sparrow unit being treated for a gunshot wound at
the St. Agnes Hospital in Roosevelt Ave., Q.C.  It was
found that the wounded person, who was listed in the
hospital records as Ronnie Javelon, is actually
Rolando Dural, a member of the NPA liquidation
squad, responsible for the killing of 2 CAPCOM
soldiers the day before.  Dural was then transferred
to the Regional Medical Services of the CAPCOM.
                      Upon positive identification by an
eyewitness, Dural was referred to the Caloocan City
Fiscal who conducted an inquest and thereafter filed
w/ the RTC-Caloocan City an info. charging Dural w/
the crime of "Double Murder w/ Assault upon agents
of persons in authority."
                      The petition for HC, insofar as Umil &
Villanueva are concerned, is now moot and academic
and is accordingly dismissed, since the writ does not
lie in favor of an accused in a crim. case, who has
been released on bail.
            As to Dural, he was not arrested while in the
act of shooting the 2 soldiers.  Nor was he arrested
after the commission of said offense for his arrest
came a day after the shooting incident.  However,
Dural was arrested for being a member of the NPA, an
outlawed subversive organization.  Subversion being a
continuing offense, the arrest of Dural w/o warrant is
justified as it can be said that he was committing an
offense when arrested.
                      The arrest of persons involved in rebellion
whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of
rebellion, is more an act of capturing them in the
course of an armed conflict, to quell the rebellion,
than for the purpose of immediately prosecuting
them in court for a statutory offense.  The arrest,
therefore, need not follow the usual procedure in the
prosecution of offenses w/c requires the
determination by a judge of the existence of
probable cause bef. the issuance of a judicial warrant
and the granting of bail if the offense is bailable.              Anonuevo v. Ramos.
Obviously, the absence of a judicial warrant is no
legal impediment to arresting or capturing persons
committing overt acts of violence against govt forces,
or any other milder acts but equally in pursuance of
the rebellious movement. xxx (Garcia-Padilla v.
Enrile.)
            Dural was found guilty of the charge and is
now serving the sentence imposed upon him by the
trial court.  Thus, the writ of HC is no longer
available
 
II
 
                      The arrest of Amelia Roque and Wilfredo
Buenaobra, w/o warrant is also justified.
           
                      In view of the revelations made by Rogelio
Ramos, a former NPA, the Constantino house in
Marikina Heights was placed under military
surveillance and on 8/12/88, pursuant to a search
warrant , a search of the house was conducted at 5
PM by CISC-NCD & CSG.  In the course of the search
were found several firearms, regular power supply,
            When confronted, R. Constantino (RC) could
not produce any permit or authority to possess the
firearms, ammunition, radio, etc.  He was brought to
CIS HQ for investigation.  When questioned, he
refused to give a written statement, although he
admitted that he was a staff member of the
executive of the NUFC and a ranking member of the
International Dept. of the CPP.
            At about 8 PM, same day, Buenaobra arrived
at RC's house.  When arrested, he readily submitted
to the military agents that he is a regular member of
the CPP/ NPA and that he went to the place to
deliver letters to "Ka Mong," referring to RC and other
members of the rebel group.  Also found in
Buenaobra's possession was a piece of paper
containing the jumbled tel. no. of Florida Roque,
sister of Amelia Roque, aka. "Ka Nelia."  They went to
the address on 8/13/88 and arrived at the place
about 11 AM.  After identifying themselves as military
agents and after seeking permission to search the
place, w/c was granted, the military agents
conducted a search in the presence of the occupants
of the house and the barangay captain of the place.
            The military found the place to be another
safehouse of the NUFC/ CPP.  They found firearms,
subversive documents, ledgers, journals, vouchers,
among others.  Amelia admitted ownership of the
documents seized.
                      Roque was brought to the Caloocan City
Fiscal for inquest after w/c an info. charging her w/
viol. of PD 1866 was filed.  Another info. for viol. of
the Anti-Subversion Act was filed against Roque and
also to Buenaobra.
            A petition for HC was filed bef. this Court on
behalf of Roque and Buenaobra.  At the hearing,
Buenaobra manifested his desire to stay in the PC-INP
stockade at Camp Crame, Q.C.  Accordingly, the
petition for HC on his behalf is now moot and
academic.
 
III
 
 
 
                      The arrest of Domingo Anonuevo (A) and
Ramon Casiple (C) w/o warrant is justified.
            At about 7:30 PM on 8/13/88, A and C arrived
at the house of RC w/c was still under surveillance. 
The military noticed bulging objects on their waist
lines.  When frisked, the agents found them to be
loaded guns.  They were asked to show their permit
or license to possess or carry firearms and
ammunitions but they could not produce any.  Hence,
they were brought to PC HQ for investigation.
Constitutional Law II
            At the PC stockade, A was identified as "Ka
Ted," and C as "Ka Totoy" of the CPP by their former
comrades.
            On 8/15/88, an info. charging them w/ viol.
of PD 1866 was filed bef. RTC-Pasig.  On 8/24/88, a
petition for HC was filed bef. this Court.
 
HELD:  The petitioner's claim that they were
unlawfully arrested bec. there was no previous
warrant, is w/o merit.  The records show that they
were carrying unlicensed firearms and ammunitions
in their person when apprehended.
            There is also no merit in the contention that
the info. filed against them are null and void for want
of prel. inv.  The filing of an info., w/o a prel. inv.,
having been first conducted, is sanctioned by Rule
112, Sec. 7, ROC.
                      Petitioners refused to sign a waiver of the
provisions of Art. 125, RPC.  Nor did petitioners ask
for prel. inv. after the informations had been filed
against them in court.
 
IV
 
            Ocaya v. Aguirre.
 
                      On 5/12/88, agents of the PC Intelligence
and Investigation Division of Rizal PC-INP Command,
armed w/ a search warrant, conducted a search of a
house located at Marikina Green Heights, believed to
be occupied by Benito Tiamson, head of the CPP-
NPA.   In the course of the search, Ocaya arrived in a
car driven by Danny Rivera.  Subversive documents
and several rounds of ammunitions for a .45 cal.
pistol were found in Vicky Ocaya's car.  They were
brought to the PC HQ for investigation, when O.
could not produce any permit or authorization to
possess the ammunition, an info. charging her w/
viol. of PD 1866 was filed w/ RTC-Pasig.  Rivera was
released from custody.
                      On 5/17/88, a petition for HC was filed on
behalf of these 2.
 
HELD:  Vicky O. was arrested in flagrante delicto so
that her arrest w/o warrant is justified.  No. prel.
inv. was conducted bec. she was arrested w/o a
warrant and she refused to waive the provisions of
Art. 125 of the RPC, pursuant to R112, Sec. 7, ROC.
 
V             xxx
 
            The petitioners Ocaya, Anonuevo, Casiple and
Roque claim that the firearms, ammunitions and
subversive documents alleged to have been found in
their possession, when arrested, did not belong to
them, but were planted by the military to justify
their illegal arrest.
                      The petitioners, however, have not
introduced any evidence to support their claim.  On
the other hand, no evil motive or ill will on the part
of the arresting officers that could cause the said
officers in these cases to accuse the petitioners
falsely, has been shown.
            As pointed out by the Sol-Gen, the arrest of
the petitioners is not a product of a witch hunt or a
fishing expedition, but the result of an in-depth
surveillance of NPA safehouses pointed no less than by
former comrades of the petitioners.
VI
 
            Espiritu v. Lim.
 
                      Deogracias Espititu is the Gen. Sec. of
PISTON.  Petitioner claims that at about 5 AM of
11/23/88, while he was sleeping in his home located
at Sta. Mesa, Mla., he was awakened by his sister who
told him that a group of persons wanted to hire his
jeepney.   When he went down to talk to them, he
was immediately put under arrest.  When he asked
for the warrant, the men bodily lifted him and placed
him in their owner type jeepney.  He demanded that
his sister be allowed to accompany him, but the men
did not accede to his request.
                      An info. charging him w/ viol. of Art. 142,
RPC (Inciting to sedition) was filed against him.
            In the afternoon of 11/22/88, during a press-
con at the NPC "Deogracias E. through tri-media was
heard urging all drivers and operators to go on
nationwide strike on 11/23/88 xxx."
            Policemen waited for petitioners outside the
NPC in order to investigate him, but he gave the
lawmen his slip.  He was next seen at about 5 PM at a
gathering of drivers and sympathizers, where he was
heard as saying,
            "Bukas tuloy and welga natin ... hanggang sa
magkagulo na."
                      Since the arrest of the petitioner w/o
warrant was in accordance w/ the provisions of R
113, Sec. 5 (b), ROC, and the petitioner is detained
by virtue of a valid info. filed w/ the competent
court, he may not be released on HC.             

    
VII
 
            Nazareno v. Station Commander.
 
                      At about 8:30 AM of 12/14/88, one Romulo
Bunye II was killed by a group of men in Alabang,
Muntinglupa, MM.  One of the suspects in the killing
was Ramil Regala who was arrested by the police on
12/28/88.  Upon questioning, Regala pointed to
Nazareno as one of his companions in the killing of
Bunye II.  In view thereof, the officers, w/o warrant,
picked up Nazareno and brought him to the police HQ
for questioning.
            On 2/1/89, the presiding judge of the RTC-
Binan, Laguna, issued a resolution denying the
petition for HC, it appearing that said Narciso
Nazareno is in the custody of the respondents by
reason of an info. filed against him w/ the RTC-Mkti.,
MM.
 
HELD:  The arrest of Nazareno was effected by the
police w/o warrant pursuant to Sec. 5 (b), R 113,
ROC, after he was positively implicated by his co-
accused; and after investigation by the police.
                      The obligation of an agent of authority to
make an arrest by reason of a crime, does not
presuppose as a necessary requisite for the
fulfillment thereof, the indubitable existence of a
crime.  For the detention to be perfectly legal, it is
sufficient that the agent or person in authority
Constitutional Law II
making the arrest has reasonably sufficient grounds
to believe the existence of an act having the
characteristic of a crime and that the same grounds
exist to beleive that the person sought to be detained
participated therein."  (Peo. v. Ancheta.)
 
VIII
 
            In all the petitions here considered, criminal
charges have been filed in the proper courts against
the petitioners.  The rule is that if a person alleged
to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge, and
that the court or judge had jurisdiction to issue the
process or make the order, or if such person is
charged before any court, the writ of HC will not be
allowed.  (Sec. 4, R 102, ROC.)
 
            On the Ilagan Doctrine.
 
                      As the Court sees it, re-examination or re-
appraisal, w/ a view to its abandonment, of the
Ilagan case doctrine is not the answer.  The answer
and the better practice would be, not to limit the
function of HC to a mere inquiry as to w/n the court
w/c issued the process, judgement or order of
commitment, or bef. whom the detained person is
charged, had jurisdiction or not to issue the process,
judgment or order or to take cognizance of the case,
but rahter, as the court itself stated in Morales, Jr. v.
Enrile, in all petitions for HC, the court must inquire
into every phase and aspect of petitioner's
detention-- "from the moment petitioner was taken
into custody up to the moment the court passes upon
the merits of the petition;" and "only after such a
scrutiny can the court satisfy itself that the due
process clause of our Constitution in fact has been
satisfied."  Caloocan City by 5 "sparrows" including Dural; (2)  a
 
 
Umil v. Ramos, 202 SCRA 251
 
P E T I T I O N S E E K I N G S E PA R AT E M O T I O N S F O R
RECONSIDERATION FROM THE COURT'S DECISION
PROMULGATED ON 9 JULY 1990
 
                      The decision (on July 9, 1990) did not rule
that mere suspicion that one is a CPP or NPA is a valid
ground for his arrest w/o warrant.
 
                      We find no merit in the motions for
reconsideration.
 
            Rolando Dural.--  His arrest w/o warrant is
justified as it can be said that, w/in the
contemplation of Sec. 5 (a), R 113, ROC, he was
committing an offense, when arrested, bec. Dural
was arrested for being a member of the NPA, an
outlawed org., where membership is penalized, and
for subversion w/c, like rebellion is, under Garcia v.
Padilla, a continuing crime.
            Dural did not cease to be, or become less of a
subversive, FOR PURPOSES OF ARREST, simply bec. he
was, at the time of arrest, confined in the St. Agnes
Hospital.  Dural was identified as one of several
persons who, the day before his arrest, w/o warrant,
had shot 2 CAPCOM policemen in their patrol car. 
Dural, given another opportunity, would have shot or
would shoot other policemen, anywhere as agents or
representative of an organized govt.  It is in this
sense that subversion and rebellion are anchored on
an ideological base w/c compels the repetition of the
same acts of lawlessness and violence until the
overriding objective of overthrowing organized govt is
attained.
            His arrest was based on "probable cause."
            Sec. 5, R 113, ROC, requires 2 conditions for
a valid arrest w/o warrant:  (1)  the person to be
arrested has just committed an offense and (2)  the
person arresting has personal knowledge of facts
indicating that the person to be arrested is the one
who committed the offense.
            It has been ruled that personal knowledge
of facts in arrests w/o warrant must be based upon
probable cause, w/c means on actual belief or
reasonable grounds of suspicion. 
                      The grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested
is probably guilty of committing the offense, is based
on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. 
A reasonable suspicion therefore must be founded on
probable cause, coupled w/ good faith on the part of
the peace officers making the arrest.    
                      Said confidential info. received by the
arresting officers, to the effect that an NPA was being
treated for a gunshot wound was based on actual
facts and supported by circumstances sufficiently to
engender a belief that an NPA member was truly in
said hospital.  The actual facts supported by
circumstances are:  (1)  the day bef., or on 1/31/88,
2 CAPCOM soldiers were actually killed in Bagong Bo.,
wounded person listed in the hospital records as
"Ronnie Javelon" was actually then being treated in
said hospital for for a gunshot wound; (3)  "Ronnie
Javelon" and his address entered in the hospital
records were fictitious and the wounded man was in
reality Dural.
 
                      On good faith.--  The peace officers who
arrested Dural are deemed to have conducted the
same in good faith, considering that law enforcers
are presumed to regularly perform their official
duties.
                      A few days after Dural's arrest, an info.
charging him w/ Double murder w/ assault against
agents of persons in authority was filed in RTC-
Caloocan City.  He was placed under judicial custody. 
On 8/31/88, he was convicted and sentenced to
reclusion perpetua.
 
            As to A. Roque., W. Buenaobra, D. Anonuevo,
R.. Casiple & V. Ocaya, their arrests, w/o warrant,
are also justified.  They were searched pursuant to a
warrant issued by a court of law and were found w/
unlicensed firearms, explosives and/ or ammunitions
on their persons.  They were, therefore, caught in
flagrante delicto w/c justified their outright arrest
Constitutional Law II
w/o warrant under Sec. 5 (a), R113, ROC.  A few days
after their arrests, informations were filed in court
against said petitioners placing them w/in judicial
custody and disposition.  Buenaobra's petition is moot
bec. he had chosen to remain in detention.
                      The reason which compelled the military
agents to make the arrests w/o warrant was the info.
given to the military that 2 safehouses (one occupied
by RC and the other by Benito Tiamson) were being
used by the CPP/ NPA for their operations, w/ info. as
to their exact location and the names of RC and BT as
residents and occupants thereof.                        Nazareno has since been convicted by the
                      And at the time of the actual arrests, the
following circumstances surrounded said arrests (of
Roque, Buenaobra, Anonuevo and Casiple), w/c
confirmed the belief of the military that the info.
they had received was true and the persons to be
arrested were probably guilty of the commission of
certain crimes:  first, the search warrant was duly
issued to effect the search of the Constantino
safehouse; second, found in the safehouse was a
person named RC, who admitted that he was a
ranking member of the CPP, and found in his
possession were unlicensed firearms and communist
equipment; third, at the time of their arrests, in
their possession were unlicensed firearms,
ammunitions, and/ or subversive documents, and
they admitted ownership thereof as well as their
membership in the CPP/ NPA.  And then shortyly after
their arrests, they were positively identified by their
former comrades as CPP/ NPA members.
            An arrest is in the nature of an administrative
measure.  The power to arrest w/o warrant is w/o
limitation as long as the requirements of Sec. 5, R
113 are met.  This rule is founded on an
overwhelming public interest in peace and order in
our community.
            "xxx  The legality of the detention does not
depend upon the fact of the crime, but xxx upon the
nature of the deed, wherefrom such characterization
may reasonably be inferred by the officer or
functionary to whom the law at the moment leaves
the decision for the urgent purpose of suspending the
liberty of the citizen."  (US v. Sanchez.)
            ESPIRITU was arrested w/o warrant, not for
subversive or any "continuing offense," but for
uttering the words "Bukas tuloy ang welga natin xxx
hanggang sa magkagulo na" w/c in the perception of
the arresting officers, was inciting to sedition.
 
            Many persons differ as to the validity of such
perception and regard the language as falling w/in
free speech guaranteed by the Consti.  But, the
authority of the peace officers to make the arrest,
w/o warrant, at the time the words were uttered, or
soon thereafter, is still another thing.  In the
balancing of authority and freedom, w/o obviously
becomes difficult at times, the court, has in this
case, tilted the scale in favor of authority but only
for purposes of the arrest (not conviction.)
 
            Supervening events made this case moot and
academic.  for E. had bef. arraignment asked the
court a quo for re-investigation, the peace officers
did not appear.  Case against E. has been
provisionally dismissed and his bail cancelled.
 
            NAZARENO'S ARREST.--  Although the killing of
Bunye II occured on 12/14/88, while Nazareno's
arrest w/o warrant was made only on 12/28/88 or 14
days later, teh arrest falls under Sec. 5 (b), R113,
since it was only on 12/28/88 that the police
authorities came to know that Nazareno was probably
one of those guilty in the killing of Bunye II and the
arrest had to be made promptly, even w/o a warrant
(after the police were alerted) and despite the lapse
of 14 days to prevent possible flight.
court a quo for murder and sentenced to reclusion
perpetua.
 
ADMISSIBLITY OF EXTRA-JUDICIAL ADMISSION.
 
                      These admissions strengthen the Court's
perception that truly the grounds upon w/c the
arresting officers based their arrests w/o warrant,
are supported by probable cause, i.e., that the
persons arrested were probably guilty of the
commission of certain offenses, in compliance w/
Sec. 5, R 113, ROC.  To note these admissions, on the
other hand, is not to rule that the persons arrested
are already guilty of the offenses upon w/c their
warrantless arrests were predicated.  The task of
determining the guilt or innocence of persons
arrested w/o warrant is not proper in a petition for
HC.  It pertains to the trial of the case on the merits.
 
 
  (2)  Illegal Possession of guns or drugs
 
 
People v. Linsangan, 195 SCRA 784
 
F:         Accused Linsangan was arrested after a “buy-
bust” operation.  The two marked ten-peso bill were
retrieved from him.  He was asked to sign his name
on the two marked bills.  The ten handrolled
cigarette sticks confiscated from the accused were
submitted for examination.  After finding these
positive for marijuana, a case was filed for violation
of the Dangerous Drugs Law.  Linsangan denied the
charge.  The trial court found Linsangan guilty.  Upon
appeal, one of the assertions of Linsangan was that
the trial court erred in not holding that when the
policemen required him to initial the marked bills,
they violated his constitutional right to counsel, to
remain silent, and not to incriminate himself while
under custodial investigation.
 
ISSUE:  WHETHER OR NOT THERE WAS A VIOLATION OF
THE ACCUSED’S CONSTITUTIONAL RIGHTS WHEN HE
WAS MADE TO SIGN THE MARKED BILLS.
 
HELD:  Although the accused was not assisted by
counsel when he initialed the P10-bills that the police
found tucked in his waist, his right against self-
incrimination was not violated for his possession of
the marked bills did not constitute a crime; the
subject of the prosecution was his act of selling
marijuana cigarettes.  His conviction was not based
Constitutional Law II
on the presence of his initials on the marked bills,
but on the fact that the trial court believed the
testimony of the policemen that they arrested him
while he was actually engaged in the selling
marijuana cigarettes to a member of the arresting
party. The trial court gave more credence to their
categorical declarations than to the appellant’s
denials.  That is as it should be for as law enforcers,
they are presumed to have performed their official
duties in a regular manner.  Their task of
apprehending persons engaged in the deadly drug
trade is difficult enough without legal and procedural
technicalities to make it doubly so. 
 
 
                                              11.  Immunity from arrest of
members of Congress
 
                      Art. VI, Sec. 11.  A Senator or Member of
the House shall, in all offenses punishable by not
more than six (6) years imprisonment (prision
correcional), be privileged from arrest while
Congress is in session.  xxx
 
                      B.  Rights of Persons under custodial
interrogation
 
                      Art. III, Sec. 12.  (1)  Any person under
custodial investigation for the commission of an
offense, shall have the right to be informed of his
right to remain silent and to have competent and
independent counsel preferably of his own choice.  state.
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.  defend himself alone.
                      (2)  No torture, force, violence, threat,
intimidation, or any other means which vitiate the
free will shall be used against him.  Secret
detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.  indispensable even if the person arrested is a
            (3)  Any confession or admission obtained in
violation of this or sec. 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.              The reading of these rights is required during
 
Source:  Miranda v. Arizona, 384 U.S. 436 (1966)
                      According to Chief Justice Warren, when a
defendant is thrust into an unfamiliar atmosphere
and run through menacing police interrogation
procedures, where compulsion is forcefully potential
and his will is likely to be subjugated, the officers
must undertake to afford proper safeguards by the
reading of the "Miranda rights" at the outset of the
investigation to ensure that the statements made are
truly the product of free choice.
 
                      Any person under custodial or police
investigation has the right to be informed of the
following rights:
 
1.  Right to remain silent
 
            a)  To make him aware of it.
            b)  To overcome the inherent pressure of the
interrogating atmosphere
                      c)  To show the individual that his
interrogators are prepared to recognize his privilege
should he choose to invoke his right.
 
2.  Right to be reminded that if he waives his right to
remain silent, anything he says can and will be used
against him.
 
                      a)  To warn him of the consequences of
waiving his right to remain silent.
                      b)    To make him aware that this is an
adversary system, and that the police are not acting
in his interest.
 
3.  Right to counsel before and during the
interrogation
 
                      a)  To mitigate the dangers of
untrustworthiness in his testimony, since the inherent
pressures initially overcome by the right to remain
silent may again run unless coupled with the right to
counsel.
            b)  To lessen the possibility of coercion by the
police.
 
4.  Right to be reminded that if he cannot afford
counsel, then one will be provided for him by the
 
                      a) To inform him that if he does not have
counsel or cannot afford one, he does not have to
                      b)  To inform him that his poverty is no
reason why he should lose his right to counsel.
 
                      (The reading of these rights is no less
prominent Constitutional lawyer.  Although he may
already know these rights, the purpose is not so much
to inform him, as to assure him that his interrogators
are willing to respect his rights amidst the pressure of
custodial investigation.)
 
"custodial investigation".
A police investigation consists of 2 stages:
                      1)  "General exploratory investigation" - 
when the investigation consists merely of general
questions to find out who might be the culprit, but
without being directed at anyone's guilt in particular. 
At this stage, the Miranda rule is not yet applicable;
otherwise, people who could otherwise explain their
innocence would be arrested.
 
                      2)  "Custodial investigation"  -  when the
investigation now focuses on the guilt of a person
such that he is no longer allowed to leave the
premise.  It is at this stage that the Miranda ruling is
necessary, since the purpose of the interrogation is to
Constitutional Law II
evince evidence that can be used to prosecute the
person.
 
                      For instance, when A, a policeman, sees X
running with a stained knife away from an apparently
dead man, he can rung after X and having grabbed
him, ask him for an explanation as to what he saw
without reading his Miranda rights.  But once A arrests
X and starts interrogating him in the police precinct,
then his rights must now be read, for there can only
be one purpose to the questioning, and that is to
elicit evidence to be used to prosecute him.
 
Mendoza, The Right to Counsel During Custodial
Investigations, 2 Law Rev. No. 10, 2 (1988); 61 Phil.
LJ 409
 
I.  RIGHT TO COUNSEL WAS DEVELOPED AS PART OF
PROTECTION AGAINST INVOLUNTARY CONFESSIONS.
 
                      Since the introduction of the American
accusatorial system of criminal procedure in the
Phils., the rule has been that involuntary confessions
are inadmissible in evidence against the accused.
            The question is on whom the burden of proof
is placed.  The early rule placed the burden of
proving that the confession was voluntary and,
t h e re fore , a d m i ssi b le i n e vi d e n c e , on t h e
prosecution.  (Sec. 4, Act No. 619.)  It was held that a
confession not shown to have been voluntarily given
could be objected to at any stage of the proceedings,
even for the first time on appeal in the SC.
            Act No. 619 was later repealed by the Admin.
code of 1916, w/c placed the burden of proof on the
accused to show that his confession was involuntary.  custody may be interrogated, w/c have been adopted
Under the new rule, it was sufficient that the
confession was given under conditions w/c accredit
prima facie its admissibility.
                      In 1953, a further change took place when
the SC held in Peo. v. de los Santos that "A confession,
to be repudiated, must not only be proved to have
been obtained by force and violence, but also that it
is false or untrue, for the law rejects the confession
when, by force or violence or intimidation, the
accused is compelled against his will to tell a
falsehood, not even when such force and violence he
is compelled to tell the truth.  In the later case of
Peo. v. Villanueva, the Court stated "the admissibility
of that kind of evidence depends not on the supposed
illegal manner in w/c it is obtained but on the truth
or falsity of the facts or admission contained therein.
            The illegality of the means used in obtaining
evidence does not affect its admissibility (Moncado v.
People's Court.)
 
THE EFFECT OF THE EXCLUSIONARY RULE IN SEARCH
AND SEIZURE CASES
 
            The adoption in 1967 of the exclusionary rule
in search and seizure cases (Stonehill v. Diokno)
worked a parallel in the law of confession.  W/o
expressly overruling its decision in de los Santos and
Villanueva, the Court, in Peo. v. Urro, went back to
the former rule that involuntary or coerced
confessions, regardless of their truth, are null and
void.  xxx  Involuntary or coerced confessions
obtained by law, w/c proscribes the use of such cruel
and inhuman methods to secure confessions.  xxx
                      Indeed, in the US, it is said that an
"unconstitutional coercion will render inadmissible
even the most unquestionably true inculpatory
statements."  xxx  This is not bec. such confessions
are unlikely to be true but bec. the methods used to
extract them offend an underlying principle in the
enforcement of our criminal law:  that ours is an
accusatorial and not an inquisitorial system --  a
system in w/c the State must establish guilt by
evidence independently and freely secured and not
by coercion prove its charge against an accused out
of his own mouth xxx."  (Rogers v. Richmond, J.
Frankfurter.)
 
THE MIRANDA RULE
 
                      The prosecution may not use statements,
whether exculpatory or inculpatory, stemming from
custodial interrogation of the def. unless it
demonstrates the use of procedural safeguards
effective to secure the privilege against self-
incrimination.  By custodial interrogation, we mean
questioning initiated by law enforcement officers
after a person has been taken to custody or
otherwise deprived of his freedom of action in any
significant way. xxx
 
II.  IN TURN, MIRANDA WARNINGS WERE DEVISED AS
MEANS OF SECURING THE RIGHT TO COUNSEL.
 
            Miranda v. Arizona requires certain warnings
to be given by police interrogators bef. a person in
by the Phil. SC:
            1.  The person in custody must be informed in
clear and unequivocal terms that he has a right to
remain silent.  The purpose is to apprise him of his
privilege not to be compelled to incriminate himself,
to overcome the inherent pressures of the
interrogation atmosphere, and to assure the
individual that his interrogators are prepared to
recognize his privilege, should he choose to exercise
it.
                      2.  The person in custody must be warned
that anything he will say can and wilol be used
against him.  This warning is intended to make him
aware not only of the privilege but also of the
consequences of foregoing it.
            3.  Since the circumstances surrounding in-
custody interrogation can operate very quickly to
overbear the will of one merely made aware of his
privilege by his interrogators,  it is indispensable that
he has the assistance of counsel.
 
 
THE CUSTODIAL PHASE OF INTERROGATION
 
                      At what stage of the police interrogation
must the warnings be given?  The Consti. does not
state at what stage of the interrogation process they
must be made.  but in Miranda, the court specified
that it is only at the custodial phase of the
interrogation that its ruling applied.  As the Court
indicated in Escobedo v. Illinois, it is only after the
investigation ceases to be a general inquiry into an
Constitutional Law II
unsolved crime and begins to focus on a particular
suspect, the suspect is taken into custody, and the
police carries out a process of interrogation that
leads itself to eliciting incriminating statements that
the rule begins to operate.
 
            In Gamboa v. Cruz, the accused was arrested,
w/o a warrant, for vagrancy.  He was taken to police
precint no. 2 in Mla.  The next day, he was included
in a police line-up of 5 detainees and was pointed to
by the complainant as a complanion of the main
suspect on the basis of w/c the accused was ordered
to stay and sit in front of the complainant, while the
latter was interrogated.  The accused was then
charged w/ robbery.  The accused moved to dismiss
the case against him on the ground that he had been
denied the assistance of counsel during the line-up.  prosecution, in fact, statements merely intended to
His motion was denied.  Hence, this petition for
certiorari.   impeach his testimony at trial or to demonstrate
 
HELD:  The right to counsel attaches only upon the
start of an interrogation, when the police officer
starts to ask questions designed to elicit info. and/ or
confessions or admissions from the accused.  As the
police line-up in this case was not part of the
custodial inquest, the petitioner was not entitled to
counsel xxx.
 
 
III.  WAIVER OF RIGHTS.
 
            It is important to distinguish bet. the waiver
of rights and the waiver of warnings.  The first can be
made provided that the waiver is "voluntary, knowing
and intelligent" but the second cannot.  As the
warnings are the means of insuring that the suspect is
apprised of his rights so that any subsequent waiver
of his rights can be "voluntary, knowing and
intelligent," it is obvious that there can be no valid
waiver of the warnings.  A waiver of rights will not be
presumed.
 
            1.  With respect to confessions obtained bef.
Jan. 17, 1973, the rule that the suspect must be
warned that he has a right to remain silent and to
have the assistance of counsel does not apply. such
confessions, even though presented in evidence in a
trial after the effectivity of the 1973 Consti., are
admissible, provided they are voluntary, using the
traditional test of voluntariness.
           
            2.  With respect to confessions obtained after
Jan. 17, 1973, but before March 20, 1985, when the
decision of Peo. v. Galit was handed down, the rule is
that the voluntariness of a waiver of the rights to
silence and to counsel must be determined on a case-
to-case basis, taking into account the circumstances
under w/c the waiver was made.
 
            3.  With regard to confessions obtained after
March 20, 1985 but before Feb. 2, 1987, when the
present Consti. took effect, the rule is that a waiver
of the rights to remain silent and to the assistance of
counsel, to be valid, must be made w/ the assistance
of counsel.
 
                      4.  With regard to confessions given after
Feb. 2, 1987, the present Consti. requires that the
waiver to be valid, must be in writing and w/ the
assistance of counsel.
 
IX.  THE EXLUSIONARY RULE.
 
                      Any confession or admission obtained in
violation of this or Sec. 17 hereof shall be
inadmissible in evidence against him, the Consti.
says.  No distinction is made bet. confession or
admission.  Although the previous Consti. spoke of
confessions only, I have argued that it was not so
limited but that it also embraced uncounselled
statements.  For "if a statement made wore in fact
exculpatory, it could ... never be used by the
be exculpatory by the defendant are often used to
untruths in the statement given under interrogation
and thus to prove guilt by implication."
 
EXCEPTIONS TO THE EXCLUSIONARY RULE
 
                      The phrase "for any purpose in any
proceeding" conveys the idea that the rule excluding
evidence illegally obtained is absolute.  No similar
phraseology is used in the exclusionary rule
implementing the Miranda rule.  Does this mean there
can be instances, where uncounselled statements
may nevertheless be admissible in evidence, albeit,
for a limited purpose?
 
                      In Harris v. US, it was held that although a
confession obtained w/o complying w/ the Miranda
rule was inadmissible for the purpose of establishing
in chief the confessor's guilt, it may nevertheless be
presented in evidence to impeach his credit. 
Petitioner, as a def., in a prosecution for selling
heroin, claimed that what he had sold to a police
officer was baking powder, as part of the scheme to
defraud the purchaser xxx  The shield provided by
Miranda cannot be perverted into a license to use
perjury by way of a defense, free from the risk of
confrontation w/ prior inconsistent utterance
 
                      In New York v. Quarles, the SC created a
"public safety" exception to the Miranda rule. xxx. 
"There is public safety exception to the requirement
that Miranda warnings be given before a suspect's
answers may be admitted in evidence."  It held that
the warnings were not themselves Constitutional
rights but merely "prophylactic" measures to insure
the right against self-incrimination.  The Court noted
the cost imposed on the public by the rule, namely,
that the giving of warnings might deter suspects from
answering questions and this might lead in turn to
fewer convictions.  It then ruled that the social cost
is higher when the giving of warnings might deter
suspects from answering questions than are necessary
to avert an immediate threat to public safety.  When
answers are not actually coerced, this social cost
outweights the need for Miranda safeguards.  In such
exigent circumstances, police officers must not be
made to choose bet. giving the warnings at the risk
that public safety will be endangered and withholding
Constitutional Law II
the warnings at the risk that probative evidence will
be excluded.
 
 
People v. Bolanos, 211 SCRA 262
 
F:                Bolanos was convicted for Murder.  The
victim, Pagdalian was found dead, sustaining stab
wounds.  When the policemen inquired about the
circumstances of the incident, they were informed
that the deceased was with two companions, on the
previous night. The accused was apprehended.  In the
vehicle where the accused boarded, on his way to the
Police Station, Bolanos allegedly admitted that he
killed Pagdalian because he was abusive.
 
ISSUE:  Whether or not the admission in the jeep was
admissible in evidence.
 
HELD:  The trial court, in admitting the extra-judicial
confession of the accused in evidence, violated his
Constitutional right to be informed, to remain silent
and to have a counsel of his choice, while already in
police custody.  Since the extra-judicial confession
was the only basis for the conviction of the accused,
the trial coust’s judgment was reversed.  Bam.
 
People v. Bandula, 232 SCRA 566
 
F:         After he and his wife were individually
hogtied and their house ransacked, Atty. Garay
was found dead with 3 gunshot wounds .  For
his death and the loss of their things  on the
occasion thereof,  Bandula, Sidigo, Dionanao,
and Ejan were charged in court for robbery
with homicide.  On the basis of the
extrajudicial confessions (EJC) allegedly made
by Bandula and Dionanao during their custodial
investigation which the court found to "have all
the qualities and have complied with all the
requirements of an admissible confession, it
appearing from the confession that acussed
were informed of their rights under the law
regarding custodial investigation and were duly
represented by Counsel (Atty. Zerna)", it
disregarded the defenses interposed by the
accused and convicted Bandula.  The 3 other  which is a verbatim reproduction of Section 18,
accused were acquitted for "insufficiency of
evidence".
 
Issue:      W/N the extrajudicial confession of
Bandula conformed with the constitutional
requisites for its validity, hence admissible in
evidence. 
 
HELD:  NO
                      From the records, it can be gleaned
that when accused Bandula and Dionanao were
investigated immediately after their arrest,
they had no counsel present.  If at all, counsel
came in only a day after the custodial
investigation with respect to Dionanao, and 2
weeks later with respect to Bandula.  And
counsel who supposedly assisted both accused
was Atty. Zerna, the Municipal Attorney of
Tanjay, whose interest is admittedly adverse to
the accused and who is not an independent
counsel.  On top of this, there are telltale signs
that violence was used against the accused. 
Certainly, these are blatant violations of of
Sec. 12, Art III of the 1987 Constitution which
protects the rights of the accused during
custodial investigation.  Suzette.
  1.  Miranda rule not applicable to confessions
executed before January 17, 1973
 
 
 2.  Not applicable to res gestae statements
 
People v. Dy, 158 SCRA 111 (1988)
Res gestae (a Latin phrase meaning "things done") is
an exception to the rule against Hearsay evidence.
Res gestae is based on the belief that because certain
statements are made naturally, spontaneously and
without deliberation during the course of an event,
they leave little room for misunderstanding/
misinterpretation upon hearing by someone else( i.e.
by the witness who will later repeat the statement to
the court) and thus the courts believe that such
statements carry a high degree of credibility.
Evidence which can be admitted into evidence as Res
gestae fall into three headings:
Words or phrases which either form part of, or
explain a physical act,
Exclamations which are so spontaneous as to belie
concoction, and
Statements which are evidence as to someone's state
of mind.
 
  3.  Not applicable to statements given in
administrative investigations
 
People v. Ayson, 175 SCRA 216 (1989)
 
                      It should at once be apparent that
there are two (2) rights, or sets of rights, dealt
with in the section, namely:
 
            1) the right against self-incrimination  i.e.,
the right of a person not to be compelled to be a
witness against himself  set out in the first sentence,
Article III of the 1935 Constitution, and is similar to
that accorded by the Fifth Amendment of the
American Constitution,  and
                      2) the right of a person in custodial
interrogation, i.e., the rights of every suspect "under
investigation for the commission of an offense."
 
                      Parenthetically, the 1987 Constitution
indicates much more clearly the individuality and
disparateness of these rights. It has placed the rights
in separate sections. The right against self-
incrimination, "No person shall be compelled to be a
witness against himself," is now embodied in Section
17, Article III of the 1987 Constitution. The rights of a
person in custodial interrogation, which have been
made more explicit, are now contained in Section 12
of the same Article III. 
Constitutional Law II
 
Right Against Self-Incrimination
 
                      The first right, against self-incrimination,
mentioned in Section 20, Article IV of the 1973
Constitution, is accorded to every person who gives
evidence, whether voluntarily or under compulsion of
subpoena, in any civil, criminal, or administrative
proceeding.   The right is NOT to "be compelled to be
a witness against himself."  It prescribes an "option of
refusal to answer incriminating questions and not a
prohibition of inquiry."  It simply secures to a witness,
whether he be a party or not, the right to refuse to
answer any particular incriminatory question, i.e.,
one the answer to which has a tendency to
incriminate him for some crime.  However, the right
can be claimed only when the specific question,
incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time. It
does not give a witness the right to disregard a
subpoena, to decline to appear before the court at
the time appointed.
 
                      The right against self-incrimination is not
self-executing or automatically operational. It must
be claimed.  It follows that the right may be waived,
expressly, or impliedly, as by a failure to claim it at
the appropriate time.
 
Rights in Custodial Interrogation
 
            Section 20, Article IV of the 1973 Constitution
also treats of a second right, or better said, group of
rights. These rights apply to persons "under
investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities;
and this is what makes these rights different from
that embodied in the first sentence, that against self-
incrimination which, as aforestated, indiscriminately
applies to any person testifying in any proceeding,
civil, criminal, or administrative.
 
                      This provision granting explicit rights to
persons under investigation for an offense was not in
the 1935 Constitution. It is avowedly derived from
the decision of the U.S. Supreme Court in Miranda v.
Arizona,  a decision described as an "earthquake in
the world of law enforcement."              2)         AFTER THE CASE IS FILED IN COURT
            Section 20 states that whenever any person is
"under investigation for the commission of an
offense"--
 
                      1)  he shall have the right to remain silent
and to counsel, and to be informed of such right,  prosecution;
            2)  no force, violence, threat, intimidation,
or any other means which vitiates the free will shall
be used against him;  and
                      3)  any confession obtained in violation of
these rights shall be inadmissible in evidence. 
 
Miranda rights
 
            He must be warned prior to any questioning
that he has the right to remain silent, that anything
he says can be used against him in a court of law,
that he has the right to the presence of an attorney,
and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so
desires. Opportunity to exercise those rights must be
afforded to him throughout the interrogation. After
such warnings have been given, such opportunity
afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer
or make a statement. But unless and until such
warnings and waiver are demonstrated by the
prosecution at the trial, no evidence obtained as a
result of interrogation can be used against him.
 
            The objective is to prohibit "incommunicado
interrogation of individuals in a police-dominated
atmosphere, resulting in self- incriminating
statement without full warnings of constitutional
rights." 
 
            The rights above specified, to repeat, exist
only in "custodial interrogations," or "in-custody
interrogation of accused persons."  And, as this Court
has already stated, by custodial interrogation is
meant "questioning initiated by law enforcement
officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any
significant way."   
 
Rights of Defendant in Criminal Case As Regards
Giving of Testimony
 
                      In fine, a person suspected of having
committed a crime and subsequently charged with its
commission in court, has the following rights in the
matter of his testifying or producing evidence, to wit:
 
            1)  BEFORE THE CASE IS FILED IN COURT (or
with the public prosecutor, for preliminary
investigation), but after having been taken into
custody or otherwise deprived of his liberty in some
significant way, and on being interrogated by the
police: the continuing   right to remain silent and to
counsel, and to be informed thereof, not to be
subjected to force, violence, threat, intimidation or
any other means which vitiates the free will; and to
have evidence obtained in violation of these rights
rejected; and
 
  
            a)  to refuse to be a witness;
                      b)  not to have any prejudice
whatsoever result to him by such refusal;
                      c)  to testify in his own behalf,
subject to cross-examination by the
            d)  WHILE TESTIFYING, to refuse to
answer a specific question which tends to
incriminate him for some crime other than
that for which he is then prosecuted.
 
            It is clear from the undisputed facts of this
case that Felipe Ramos was not in any sense under
custodial interrogation, as the term should be
properly understood, prior to and during the
administrative inquiry into the discovered
irregularities in ticket sales in which he appeared to
have had a hand. The constitutional rights of a person
Constitutional Law II
under custodial interrogation under Section 20,
Article IV of the 1973 Constitution did not therefore
come into play, were of no relevance to the inquiry.  of the right to remain silent and to counsel. When
 
4.  Custodial Phase of Investigation
 
Police Lineups
 
Gamboa v. Cruz  June 27, 1988
Police line-up not part of custodial inquest
 
F:                Petitioner was arrested for vagrancy in
Manila. The following day, he was included in a police
line-up and was identified as one of the suspects in a
robbery case. He was later charged with robbery and
charged. He moved to dismiss the case on the ground
that the conduct of the line-up, without the
assistance of counsel, was unconstitutional.
 
HELD:  The police line-up was not part of the
custodial inquest, hence, petitioner was not yet
entitled, at such stage, to counsel. VV.
 
 
US v. Wade, 388 US 218 (1967)
  
People v. Hatton, 210 SCRA 1
 
F:               Algrame was stabbed at the back while
walking with several companions including Ongue who
vaguely recognized  the assailant, describing the
latter as a "mestizo." Two days later, Ongue was
invited  by the police to identify the suspect in a
police line- up. Hatton was pointed by Ongue as the
assailant. Hatton alleges that at the time that he was
made to stand in the police line-up, he was not
assisted by counsel. Hence, his identification therein
by Ongue is inadmissble.
 
RULING: When the suspect was brought to the police
station for indentification, technically, he was not yet
under custodial investigation. Thus, the right to
counsel does not yet apply.
            However, there is every reason to doubt the
regularity of the identification of the suspect by the
witness. During the proceedings in the police station,
Ongue identified Hatton  not because he was certain
that Hatton was really the assailant but because he
was the only mestizo in the station and because he
was pointed by the police as the suspect. This cannot
be considered as positive identification of the
accused by the witness.
 
 5.  Tests of Validity of Waiver of Miranda Rights
 
 
No valid waiver.
 
People v. Caguioa  95 SCRA 2 (1980)
 
Right to counsel may be waived provided the waiver
is voluntary, knowing and intelligent
 
F:                Respondent Paquito Yupo was accused of
murder in the CFI of Bulacan. The prosecution
presented Corporal Conrado Roca of the Meycauayan
Police who identified a statement of the accused
during a police interrogation and his alleged waiver
Roca was questioned on the incriminating answers in
the statement, the defense objected, contending
that Yupo's statement was given without the
assistance of counsel. Respondent Judge sustained
the objection on the ground that the right to counsel
cannot be waived.
HELD:  The right to counsel during custodial
interrogation may be waived provided the waiver is
made intelligently and voluntarily, with full
understanding of its consequences. In this case, the
statement made only a perfunctory opening question,
after informing the suspect that he was under
investigation, that he had a right to counsel and that
anything he said could be used for or against him and
after asking whether he was willing to answer
questions and he answered "yes." The statement was
in Tagalog which the defendant, a native of Samar,
had not been shown to be fully acquainted with. The
date of execution of the statement before the
municipal court was not indicated. The separate
statement signed by the defendant stating he was
made to read the opening statement containing the
Miranda warnings and that they were explained to
him all the more engenders doubt as to whether the
defendant was properly informed of his right.
  
People v. Tampus  96 SCRA 624 (1980)
 
Public trial; waiver of right to counsel
 
F:         Jose Tampus and Rodolfo Avila were prisoners
at the National Penitentiary in Muntinlupa, Rizal. On
June 14, 1976, they attacked and killed Celso
Saminado, another prisoner. Afterwards, they
surrendered to the prison guard, saying "surrender po
kami. Gumanti lang po kami." Two days later, they
gave extrajudicial confessions admitting the killing.
They were accused of murder and pleaded guilty.
They took the witness stand and affirmed their
confessions. Tampus was sentenced to death while
Avila to reclusion temporal. Trial took place at the
Penitentiary. On review, it was contended that
Tampus was denied the right to a public trial and to
counsel.
 
HELD:  The record does not show that the public was
actually excluded from the place where the trial was
held or that the accused was prejudiced by the
holding of the trial there. Anyway, the right to public
trial may be waived. In another case where Avila was
also a defendant, the SC directed that, for security
reasons, Avila's trial be held in the National
Penitentiary. The accused was warned in Tagalog that
he had a right to remain silent and to counsel but
despite this, he was willing to answer questions of
the police. There is no doubt that the confession was
voluntarily made. The truth is that shortly after the
killing, Tampus and Avila admitted their guilt. That
spontaneous statement, elicited without
interrogation, was part of the res gestae and at the
same time was a voluntary confession of guilt. By
means of that statement given freely on the spur of
the moment without any urging or suggestion, the
Constitutional Law II
two waived their right to remain silent and to
counsel.
 
People v. Poyos  143 SCRA 543 (1986)
 
No valid waiver of right to counsel and to silence
 
F:                Poyos was convicted of the murder of a 77-
year-old woman and sentence to death. His
conviction was based solely on his extrajudicial
confession which he disowned in court. The
confession was given to the police and subscribed
before the clerk of court and contains a waiver.
HELD:  It is doubtful, given the tenor of the question
whether there was a definite waiver by the suspect of
his right to counsel. His answer was categorical
enough, to be sure, but the question itself was not
since it spoke of a waiver only "for the moment." As
worded, the question suggested a tentativeness that
belied the suspect's supposed permanent foregoing of
his right to counsel, if indeed there was any waiver at
all. Moreover, he was told that he could hire a lawyer
but not that one could be provided for him for free.
VV.
 
            Since Royo's conviction for murder was based
on a written confession showing that he was apprised
of his right not only by the police but also by the
fiscal, but that he waived these rights, then the
waiver found to be voluntary, knowing and intelligent
and thus admissible.
 
 
    b.  The Galit Rule (March 20, 1985 to Feb. 2,
1987)
 
                      It is not enough that the confession is
voluntary, knowing and intelligent.  The waiver must
be made in the presence of counsel.  Waiver of the
right to counsel must be made with the assistance of
counsel.  This rule applied from March 20, 1985 to
February 2, 1987.
 
            In People v. Galit, 135 SCRA 485 (1985), the
SC, reiterating a dictum in Morales v. Enrile, 121 SCRA
538 (1983), ruled that no custodial investigation
should be conducted unless it be in the presence of
counsel, and that although the right to counsel may
be waived, the waiver should not be valid unless
made with the assistance of counsel.
 
            In the Galit case, however, the adoption of
the Morales obiter was also an obiter.  The confession
in this case was traditionally involuntary, and so the
SC did not need the Morales obiter in order to
disallow the confession.
 
                      Under the facts of the case, the accused
Galit was convicted of robbery with homicide on the
basis of his confession, which was obtained through
torture.  The NBI investigators covered Galit's face
with a rag and then pushed it into a toilet bowl full of
human waste.  It was only after they had broken his
will that he signed the confession and posed for
pictures for re-enactment as directed by the
investigators.
 
 
People v. Galit  135 SCRA 465 (1985)
 
F:                Defendant was convicted of robbery with
homicide by the Circuit Criminal Court. The principal
prosecution witness testified that he heard the
defendant and his wife, who was the mother of the
witness' wife, quarrelling the morning after the
crime. He said the defendant wanted to leave their
house because he and his companions had robbed
"Aling Nene." The prosecution also presented the
extrajudicial confession of the defendant.
HELD:  The confession of the defendant is
inadmissible because it was obtained through torture.
The NBI investigators covered the defendant's face
with a rag and then pushed in into a toilet bowl full
of human waste. It was only after they had broken his
will that the defendant signed the confession and
posed for pictures for reenactment as directed by the
investigators. The defendant is from Samar and there
is no showing that he understood Tagalog. It was two
weeks after he executed the salaysay that his
relatives were permitted to visit him. His statement
does not contain any waiver or right to counsel and
yet during the investigation he was not assisted by
one. These constitute gross violations of his right.
The SC cited the case of Morales v. Ponce Enrile
where it laid the procedure in custodial
investigations: No custodial investigation shall be
conducted unless it be in the precense of counsel
engaged by the person arrested, or by any person on
his behalf, or appointed by the court upon petition
either of the detainee himself or of anyone on his
behalf. The right to counsel may be waived but the
waiver shall not be valid unless made with the
assistance of counsel. Any statement obtained in
violation of this, whether exculpatory or inculpatory,
in whole or in part, shall be inadmissible in evidence.
 
 
            Whatever doubt as to the validity of the Galit
rule, however, was laid to rest by the SC in People v.
Sison, 142 SCRA 219 (1986).  The Court held that in
People v. Galit, which was decided en banc and
concurred in by all the Justices except one who took
no part, the Court was out to rest all doubts
regarding the ruling in Morales v. Enrile, and
embraced its ruling.
 
            In this case, the prosecution sought to prove
its charge of subversion against Asis by means of her
confession given in the hospital, in which she
admitted through a leading question, that she was a
member of the NPA and that she was wounded in the
encounter.  The SC upheld the trial court's decision
excluding the confession on the ground that the
waiver of the Miranda rights was made without the
assistance of counsel.
 
 
People v. Sison  142 SCRA 219 (1986)
 
F:         Jocelyn de Asis was accused of subversion. At
the trial, the Fiscal offered as evidence an
extrajudicial confession given by her in the hospital.
Constitutional Law II
In that confession, she admitted, through a leading
question that she was a member of the NPA. The trial
court excluded the confession on the ground that the
waiver of Miranda rights was made without the
assistance of counsel. The prosecution contends that
the ruling in Morales v. Ponce Enrile that the right to
counsel may be waived only with the assistance of
counsel, was only a dictum.
HELD:  In the case of People v. Galit, which was
decided en banc and concurred in by all Justices
except one who took no part, the SC put to rest all
doubts regarding the ruling in Morales v. Ponce Enrile
and Moncupa v. Enrile.
 
 
 
People v. Lim, 196 SCRA 809 (1991)
 
            In People v. Nabaluna, 142 SCRA 446 (1986),
Nabaluna et. al. were convicted of robbery with
homicide on the basis, among others, of extrajudicial
confessions taken in 1977.  The confessions and the
special counsel before whom the confessions were
signed prove that the Miranda warnings were given,
but these were not made in the presence of counsel.  voluntarily submitted his confession, and knowingly
The SC, in allowing the confession, ruled that the
GAlit ruling could not have a retroactive effect,
especially since in this case the trial court decision
was already rendered before the SC pronouncement.
 
People v. Lasac  148 SCRA 624 (1987)
 
F:               Appellant was convicted of parricide on the
basis of a confession and circumstantial evidence
which the trial court found substantial to establish
guilt.
 
HELD:  The waiver by the appellant of his right to
counsel was made without the assistance of a
counsel. The SC has held in Morales v. Ponce Enrile,
People v. Galit and People v. Sison (1986) that this
requirement is mandatory. Any statement obtained in
violation of this procedure shall be inadmissible in
evidence. VV.
 
 c.  New rule on waiver (Feb. 2, 1987)
 
Art. III, Sec. 12 (1):  Waiver must be in writing and
made in the presence of counsel
 
                      Art. III, Sec. 12. (1)  Any person under
investigation for the commission of an offense shall
have the right to be informed of his right to remain
silent and to have competent and independent
counsel preferably of his 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.
             
 
            Under the new Constitution, any waiver must
now be made (1) in writing, and (2) in the presence
of counsel.
6.  The burden of proving voluntariness of waivers
is on the prosecution
 
            The burden to prove that there was a valid
waiver of the Miranda warning devolves upon the one
seeking to present the confession, that is, on the
prosecution.  This rule applies whether in the pre-
Galit, Galit, or 1987 rule.
            In People v. Jara, 144 SCRA 516 (1986), the SC
noted that the stereotype "advice" appearing in
practically all extrajudicial confessions which are
later repudiated has assumed the nature of a legal
form.  Investigators automatically type it together
with "opo" as the answer, or ask the accused to sign it
or even copy it in their handwriting.  Its tired
punctilious, fixed and artificially stately style does
not create an impression of voluntariness or even
understanding on the part of the accused.
 
                    Whenever a Constitutional protection is
waived by one entitled to that protection, the
presumption is always against the waiver.  Thus, the
prosecution must prove with strongly convincing
evidence that indeed the accused willingly and
and deliberately manifested that he was not
interested in having a lawyer assist him during the
taking of that confession.
 
People v. Jara, 144 SCRA 516 (1986)
F:         Appellants were found guilty of robbery with
homicide for the killing and robbery of Ampara vda.
de Bantigue on June 9, 1978. In another case, two of
the appellants were found guilty of homicide for the
killing on the same date of Luisa Jara while Felicisimo
Jara, the husband of the deceased, was found guilty
of parricide. Two of the appellants, Raymundo
Vergara and Bernardo Bernadas, made extrajudicial
confessions implicating Jara as the mastermind. The
confessions were taken while the two were held
incommunicado in the presence of five policemen and
after two weeks of detention.
 
HELD:  The stereotyped "advice" of the Miranda rights
appearing in practically all extrajudicial confessions
which are later repudiated assumed the nature of a
legal form or model. Its tired, punctilious, fixed and
artificial style does not create an impression of
voluntariness or even understanding on the part of
the accused. The showing of a spontaneous, free and
unconstrained giving up of a right is missing.
Whenever a protection given by the Constitution is
waived by the person entitled to that protection, the
presumption is always against the waiver.
Consequently,  the prosecution must prove with
strong, convincing evidence that indeed the accused
willingly and voluntarily submitted his confession and
knowingly and deliberately manifested that he was
not interested in having a lawyer assist him during
the taking of that confession. That proof is missing in
this case.
 
Constitutional Law II
  7.  What may be waived:  The right to remain
silent and to counsel, but not the right to be given
"Miranda warnings"
 
                    The right to remain silent and to counsel,
which are the effectuations of the Miranda rights, can
be waived.
            What cannot be waived are:
 
                    1.  The right to be given the Miranda
warnings.  (For how can one waive what one does not
know?)
                    2.  The right to counsel when making the
waiver of the right to remain silent or to counsel.
 
                        8.  Exclusionary rule
 
            Art. III, Sec. 12. xxx
            (3)  Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
 
 
                    Note than under [Art. III, Sec. 3(2)] the
exclusionary rule reads: (any evidence obtained in
violation of this or the preceding section shall be
inadmissible "for any purpose in any proceeding."
            There are two exceptions to the exclusionary
rule.  One, to impeach the credibility of the
accused.  Two, public safety.
 
Impeach the credibility
 
            The unwarned or uncounselled confession is
not totally without use.  While it is not admissible to
prove the guilt of the accused, it may be used against
him to impeach his credibility by showing that he is
lying in court, so ruled the U.S. Supreme Court in
Harris v. New York, 401 U.S. 222 (1971).
 
Harris v. New York, 401 U.S. 222 (1971)
 
                    In this case, Harris was arrested for twice
selling heroin to an undercover police agent.  He
confessed to the crime during the police
interrogation, but the confession was uncounselled,
and so it was held as inadmissible in evidence.  But
when Harris took the witness stand, he testified that
what he sold was baking powder in order to defraud
the police agent.  The SC allowed the prosecution to
introduce the uncounselled statment to show that he
was lying.
 
            In justifying the admission of the testimony,
Justice Burger  said  that it is one thing to say that
the government cannot  make an affirmative use of
the evidence unlawfully obtained, and quite another
to say that the defendant can turn the illegal method
by which the evidence in the possession    of the
government was obtained to his own advantage,
providing himself with a shield against perjury and
the contradiction of his untruths.
 
            The reason, continued the  Court is that the
shield provided by the Miranda rights cannot be
perverted into a license to use perjury by way of a
defense, free from the risk of confrontation with
prior inconsistent utterances.
 
Public Safety
            Public Safety may justify the police in taking
confessions without prior warning.  Thus ruled the
U.S. Supreme Court in New York v. Quarles, 104 S. Ct.
2626 (1984).
 
 
New York v. Quarles, 104 S. Ct. 2626 (1984).
            In the case, the Court excused the giving of
the Miranda warning because the public safety
required that the weapon had to be located before it
could be used by the accused against those in the
supermarket.
 
            The criticism hurled against this ruling is that
while the police may be justified in forcing the
assailant to say where the weapon is located, he is
not justified to present this in evidence in the
subsequent criminal prosecution.
 
 
C.  Right to bail
 
            Art. III, Sec. 13.  All persons, except those
charged with offenses punishable by reclusion
perpetua when the evidence of guilt is strong,
shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be
provided by law.  the right to bail shall not be
impaired even when the privilege of the writ of
habeas corpus is suspended.  Excessive bail shall
not be required.
 
 1.  When right may be invoked
                    The right to bail is available from the very
moment of arrest  (which may be before or after the
filing of formal charges in court) up to the time of
conviction by final judgement (which means after
appeal).
 
            No charge need be filed formally before one
can file for bail, so long as one is under arrest.  So
ruled the SC in Heras Teehankee v. Rovica.  75 Phil.
634 (1945).
 
                    The case was unique in that after the war,
the People's Court Act amended Art. 125 of the RPC
to allow for a longer time to detain persons because
of the impossibility of filing charges within the
reglementary period due to the number of indictees.
 
Bail and Habeas Corpus
 
                    In the case  of bail, there is an implicit
recognition that the arrest and detention, are valid,
or that even if they were initially illegal, such
illegality was cured by the subsequent filing of a case
Constitutional Law II
in court.  Thus, the prayer in bail is that one be
released temporarily from such valid detention, and
this can be made anytime after arrest.
 
            In habeas corpus,  the assumption is precisely
that the arrest and detention are illegal, so that the
prayer is to be released permanently from such
illegal detention.  When the privilege of the writ is
suspended, the arrest and detention remain illegal,
but the remedy afforded by law to the victim is not
available.  Under the 1987 Constitution, though the
effect of the suspension  has been considerably
lessened to the need to file a case within 72 hours
from the illegal arrest, otherwise the detainee is to
be released.
 
                    The Constitution now provides, overruling
Morales v. Enrile, that the suspension of the privilege
of the writ does not carry with it the suspension of
the right to bail.  Habeas Corpus refers to illegal
detention, while bail refers to legal detention, or
even detention that started as illegal but was cured
by the filing of a case in court.
 
  2.  When bail is a matter of right, when it is a
matter of discretion
 
                    Bail is a matter of right in all cases not
punishable by reclusion perpetua.
                    It is a matter of discretion in case the
evidence of guilt is strong.  In such a case, according
to People v. San Diego, 26 SCRA 522 (1966), the
court's discretion to grant bail must be exercised in
the light of a summary of the evidence presented by
the prosecution.  Thus, the order granting or refusing
bail must contain a summary of the evidence for the
prosecution followed by the conclusion on whether or
not the evidence of guilt is strong.
 
            The only time bail may be denied is when (a)
the offense is punishable by reclusion perpetua, and
(b) the evidence of guilt is strong.
 
            With the abolition of the death penalty (III,
20), and the automatic commutation of a death
sentence to reclusion perpetua, it is contended that
when the 1987 Constitution denies the right to bail in
offenses punishable by reclusion perpetua, it is
meant to apply only to those crimes which were once
punishable by death.  For if it includeds even those
crimes which before and now are really punishable by
reclusion perpetua, it would go against the very spirit
of the Constitution.
 
People v. Donato, 196 SCRA 130 (1991)
 
3.  Bail in courts-martial
 
Commendador v. De Villa, 200 SCRA 80 (1991)
  
 4.  Standards for fixing bail
 
                      Rule 114, Sec. 6.  Amount of bail;
guidelines.--  The judge who issed the warrant or
granted the application shall fix a reasonable
amount of bail considering primarily, but not
limited to the following guidelines:
            (a)  Financial ability of the accused to give
bail;
                      (b)  Nature and circumstances of the
offense;
            (c)  Penalty of the offense charged;
                      (d)  Character and reputation of the
accused;
            (e)  Age and health of the accused;
            (f)  The weight of the evidence against the
accused;
            (g)  Probability of the accused appearing in
trial;
            (h)  Forfeiture of other bonds;
                      (i)  The fact that accused was a fugitive
from justice when arrested; and
            (j)  The pendency of other cases in which
the accused is under bond.
            Excessive bail shall not be required.
 
 
            Where the right to bail exists, it should not
be rendered nugatory be requiring a sum that is
excessive, otherwise, it becomes "a promise to the
ear to be broken to the hope, a teasing illusion like a
munificent bequest in a pauper's will" (Jackson). 
Thus, said the SC in De la Camara v. Enage, 41 SCRA 1
(1971).
            In this case, a bail of P1.195 million imposed
against Mayor Camara for charges of 12 murders and
12 frustrated murder was found excessive.
 
            The SC laid down the following guidelines in
fixing the amount of bail in Villasenor v. Abano, 21
SCRA 312 (1967), later contained in sec. 6 of Rule
114.
 
            1.  Ability of the accused to give the bail.
            2.  Nature of the offense.
            3.  Penalty for the offense charged.
            4.  Character and reputation of the accused
            5.  Health of the accused.
            6.  Character and strength of the evidence.
            7. Probability of the accused appearing in
trial.
            8.  Forfeiture of other bonds.
            9. Whether the accused was a fugitive from
justice when arrested.
                      10. If the accused is under bond for
appearance at trial in other cases.
 
                    Even when the accused has previously
jumped bail, still he cannot be denied bail.  the
remedy in this case is to increase the  amount of the
bail (Siquiam v. Amparo).
 
 5.   Right to bail and right to travel abroad
 
            Art. III, Sec. 6.  The liberty of abode and of
changing the same within the limits prescribed by
law shall not be impaired except upon lawful order
of the court.  Neither shall the right to travel be
impaired except in the interest of national
security, public safety, or public health, as may be
provided by law.
Constitutional Law II
 
 
            In Manotoc v. Court of Appeals, 142 SCRA 149
(1986), the SC disallowed a person released on bail to
travel abroad for a business trip.  The Court gave 2
reasons why bail operates only within the country.
            One, the accused may be placed beyond the
jurisdiction of the court if he were allowed to leave
the Philippines without sufficient reason, thus
affecting one of the conditions in the grant of bail,
namely to have the accused available whenever the
court requires his presence.
 
                    Two, implicit in the bail is the agreement
between the State and the surety that the State will
do nothing to make it difficult for the surety to arrest
the defendant upon order of the court.  If the court
thus allows his to leave, then the State loses its right
to order the forfeiture of the bond because it itself
has breached its obligation to the surety.
            The case leaves the question of allowing an
accused under bail to go abroad for humanitarian
reasons open-ended.  This reason was not foreclosed
by the Court, which hinted that the accused could be
allowed to leave if he had "sufficient reason".  What
the Court found insufficient was the business trip.
 
 
Manotoc v. CA, 142 SCRA 149 (1986)  presumption of innocence which places the burden
 
F:                Petitioner is a principal stockholder of two
corporations, in one of which he was the president.
The firms were placed under a management
committee by the SEC and petitioner was placed "on
hold" by the Commission of Immigration. Petitioner
was charged with estafa. He later asked for
permission to leave the country for business reasons,
but his request was denied by the courts. He filed a
petition for certiorari but his petition was also
dismissed for lack of merit. He appealed to the SC.
 
HELD:  The condition imposed by Rule 114, sec. 1
upon the accused to make himself available
whenever the court requires his presence, operates
as a valid restriction on his right to travel. The
constitutional right to travel is not absolute, but is
subject to lawful orders of the court.  VV.
 
 
  6.  Waiver of the Right to Bail
 
People v. Donato, 198 SCRA 130 (1991)  man  and brought him towards the direction of
 
D.  Rights during trial
 
                      Art. III, Sec. 14.  (1)  No person shall be
held to answer for a criminal offense without due
process of law.
                      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. 
 
                        1.  Presumption of innocence
 
            In People v. Dramayo, 42 SCRA 69 (1971), the
SC noted that the requirement of proof beyond
reasonable doubt is a necessary corollary of the
constitutional right to be presumed innocent.
 
 
            In Igot v. Comelec, 95 SCRA 392 (1980), a law
disqualifying candidates charged with national
security offences was struck down as
unconstitutional, for violating the presumption
against innocence.
 
            In Alejandro v. Pepito, 96 SCRA 322 (1980), a
judge who allowed the accused to present his
evidence ahead of the prosecution, over the
objection of the prosecution, after the acused
admitted the killing but invoked self-defense, was
reversed by the SC on the ground that this change in
the order of trial violated the constitutional
proof on the prosecution.
 
            This ruling was modified by Rule 119, sec. 3
(e) of the 1985 Rules of Criminal Procedure which
now reverses the order of trial when the defendant
admits the act but invokes a justifying or exempting
circumstance.
 
 
People v. de Guzman, 231 SCRA 739
 
F:                De Guzman, Castro and Catap were
charged with murder for the killing of an
unidentified person on Nov. 16, 1994.  Only De
Guzman and Castro were arrested and both
pleaded not guilty.  They were convicted by
the court mainly on the basis of the testimony
of Adelia Angeles.  She positively identified the
2 accused as the persons who were with Catap
who maltreated an unidentified person whom
they had tied to an ipil-ipil tree and upon
seeing her, she testified that they untied the
the Pasig river which was only 3 houses away. 
This was further strengthened by the
extrajudicial confession (EJC) of accused
Castro to Police Corporal Dominador Cunanan
that it was Catap who killed the victim and
that he and de Guzman acted only as look-
outs.
 
Issue:    W/N the constitutional presumption of
innocenec of the accused has been overcome.
 
HELD:  YES
Constitutional Law II
            Though there is no direct evidence to
link the 3 accused to the killing of the
unknown  victim, the circumstantial evidence
presented satisfied  Sec. 4, Rule 133 ROC
namely: (1) there is more than one
circumstance; (2) the facts from which the
inferences are derived are proven; and (3) the
combination of all the circumstances is such as
to produce conviction beyond resonable doubt.
            With regard to the EJC of Accused Castro to
Police Cpl. Cunanan,  there is no evidence that
Cunanan had any motive to falsely testify against
accused.  While it is true that accused's EJC was
made without the advice and assistance of counsel,
hence inadmissible as evidence, it could be treated
as a verbal admission of the accused  established
through the testimonies of persons who heard it or
who conducted the investigatiuon  of the accused
(Peo v Molas 218 SCRA 473).  Moreover in Peo  v
Alvarez,  the court ruled that an extrajudicial
confession is admissible against a co-accused when it
is used as a circumstantial evidence to show the
probability of the participation  of said co-accused in
the crime committed.  counsel, he may be convicted not because he is guilty
 
2.  Right to be heard personally or by counsel
 
            Adequate legal assistance shall not be denied
to any person by reason of poverty (Art. III, Sec. 11.)  deemed so important that it has become a
No matter how educated one may be, he may not
know how to establsih his innocence for the simple
reason that he does not know the rules of evidence
said the SC in People v. Holgado, 85 Phil 752 (1952).
 
 
People v. Holgado, 85 Phil 752 (1952)
 
F:         Appellant Frisco Holgado was charged in the
court of First Instance of Romblon with slight illegal
detention because he did "feloniously and without
justifiable motive, kidnap and detain one Artemia
Fabreag in the house of Antero Holgado for about
eight hours thereby depriving said Artemia Fabreag of
her personal liberty." Accused, unaided by counsel,
pleaded guilty and said that he was instructed by Mr.
Ocampo to do so.
                              Accused was convicted of a capital
offense.
                Since the accused-appellant pleaded guilty
and no evidence appears to have been presented by
either party, the trial judge must have deduced the
capital offense from the facts pleaded in the
information.
Ruling:  Under the circumstances, particularly the
qualified plea given by the accused who was unaided
by counsel, it was not prudent, to say the least, for
the trial court to render such a serious judgment
finding the accused guilty of a capital offense, and
imposing upon him such a heavy penalty as ten years
and one day of prision mayor to twenty years,
without absolute any evidence to determine and
clarify the true facts of the case.
                      The proceedings in the trial court are
irregular from the beginning. It is expressly provided
in our rules of Court, Rule 112, section 3 (now Rule
116, Sec. 6), that:
 
                If the defendant appears without attorney,
he must be informed by the court that it is his right
to have attorney before being arraigned., and must
be asked if he desires the aid of attorney, the Court
must assign attorney de oficio to defend him. A
reasonable time must be allowed for procuring
attorney.
 
            Not one of these duties had been complied
with by the trial court.
                      One of the great principles of justice
guaranteed by our Constitution is that "no person
shall be held to answer for a criminal offense without
due process of law", and that all accused "shall enjoy
the right to be heard by himself and counsel." In
criminal cases there can be no fair hearing unless the
accused be given the opportunity to be heard by
counsel. The right to be heard would be of little avail
if it does not include the right to be heard by
counsel. Even the most intelligent or educated man
may have no skill in the science of the law,
particularly in the rules of procedure, and, without
but because he does not know how to establish his
innocence. And this can happen more easily to
persons who are ignorant or uneducated. It is for this
reason that the right to be assisted by counsel is
constitutional right and it is so implemented that
under our rules of procedure it is not enough for the
Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he
desires the aid of an attorney, but it is essential that
the court should assign one de oficio if he so desires
and he is poor grant him a reasonable time to procure
an attorney of his own. 
 
 
                      Q:  What happens if the accused files a
demurrer to the evidence of the prosecution (on the
ground that the prosecution failed to tender a case)
and this motion is denied -- could the defense still
present its own evidence?
 
            In Abriol v. Homeres, 84 Phil 525, (1949), the
SC ruled in the affirmative, contending that the right
of the accused to present his evidence is a
constitutional right which cannot be defeated by the
dismissal of the motion of demurrer.
 
Filing of demurrer to evidence is a WAIVER of right
to be heard  (Rule 119, Sec. 15.)
Abriol v. Homeres, 84 Phil 525, (1949)
 
F:         Fidel Abriol, together with six other persons,
was accused of illegal possession of firearms and
ammunition. After the prosecution had presented its
evidence and rested its case, counsel for the defense
moved to dismiss the case on the ground of
insufficiency of the evidence to prove the guilt of the
accused. After hearing the arguments for and against
the motion for dismissal, the court held the proofs
sufficient to convict and denied said motion,
whereupon counsel for the defense offered to
present evidence for the accused. The provincial
Constitutional Law II
fiscal opposed the presentation of evidence by the
defense, contending that the present procedural
practice and laws precluded the defense in criminal
cases from presenting any evidence after it had
presented a motion for dismissal with or without
reservation and after said motion had been denied,
and citing as authority the case of United States vs.
De la Cruz, 28 Phil., 279. His Honor Judge S. C.
Moscoso sustained the opposition of the provincial
fiscal and, without allowing the accused to present
evidence in their defense, convicted all of them and
sentenced the herein petitioner to suffer seven years
of imprisonment and to pay a fine of P2,000.
 
Issue:    Whether the accused should be allowed to
present evidence after the denial of their motion to
dismiss on the ground of insufficiency of evidence of
the prosecution
Ruling:  The accused should be allowed to present
evidence.
            1.  The refusal of Judge Moscoso to allow the
accused-petitioner to present proofs in his defense
after the denial of his motion for dismissal was a
palpable error which resulted in denying to the said
accused the due process of law guaranteed in the Bill
of Rights embodied in the Constitution, it being
provided in Article II, section 1 (17), of the
Constitution that in all criminal prosecutions the
accused shall enjoy the right to be heard by himself
and counsel and to have compulsory process to
secure the attendance of witnesses in his behalf.
There is no law nor "procedural practice" under which
the accused may ever be denied the right to be heard
before being sentenced.
            Now that the Government cannot appeal in
criminal cases if the defendant would be placed
thereby in double jeopardy (sec. 2, Rule 118), the
dismissal of the case for insufficiency of the evidence
after the prosecution has rested terminates the case
then and there. But if the motion for dismissal is
denied, the court should proceed to hear the
evidence for the defense before entering judgment
regardless of whether or not the defense had
reserved its right to present evidence in the event its
motion for dismissal be denied. The reason is that it
is the constitutional right of the accused to be heard
in his defense before sentence is pronounced on him.
Of course if the accused has no evidence to present
or expressly waives the right to present it, the court
has no alternative but to decide the case upon the
evidence presented by the prosecution alone.
 
                      2. The main question to decide is whether
the writ of habeas corpus lies in a case like the
present.  prosecution.  (Rules of Court.)
            We have already shown that there is no law
or precedent which could be invoked to place in
doubt the right of the accused to be heard or to
present evidence in his defense before being
sentenced. On the contrary, the provisions of the
Constitution hereinabove cited expressly and clearly
guarantee to him that right. Such constitutional right
is inviolate. No court of justice under our system of
government has the power to deprive him of that
right. If the accused does not waive his right to be
heard but on the contrary  as in the instant case 
invokes that rough, and the court denies it to him,
that court no longer has jurisdiction to proceed; it
has no power to sentence the accused without
hearing him in his defense; and the sentence thus
pronounced is void and may be collaterally attacked
in a habeas corpus proceeding.
            Although the sentence against the petitioner
is void for the reasons hereinabove stated, he may be
held under the custody of the law by being detained
or admitted to bail until the case against him is
finally and lawfully decided. The process against him
in criminal case No. 1472 may stand should be
resumed from the stage at which it was vitiated by
the trial court's denial of his constitutional right to be
heard. Up to the point when the prosecution rested,
the proceedings were valid and should be resumed
from there. 
 
People v. Donesa, 49 SCRA 281 (1973)
Grant of demurrer is equivalent to an acquittal
 
F:         After prosecution presented its witnesses, the
defense moved for dismissal of the case on the
ground of insufficiency of evidence.  The judge
granted the motion.
 
Issue:  Did such dismissal operate as an acquittal of
the accused?
 
Ruling: YES
            A dismissal ordered after the termination of
the presentation of the evidence for the prosecution
has the force and effect of an acquittal. Since there
is a failure to prove the guilt of the accused, the case
must be dismissed,  and it will be a bar to another
prosecution for the same offense even though it was
ordered by the Court upon motion or with the express
consent of the defendant, in exactly the same way as
a judgment of acquittal.            
Rule 119, Sec. 15.  Demurrer to evidence.--  After
the prosecution has rested its case, the court may
dismiss the case on the ground of insufficiency of
evidence:  (1)  ont its own intitiative after givint
the prosecution an opportunity to be heard; or (2) 
on motion of the accused filed with proper leave of
court.
            If the court denies the motion for dismissal,
the accused may adduce evidence in his defense. 
When the accused files such motion to dismiss
without express leave of court, he waives the right
to present evidence and submits the case for
judgment on the basis of the evidence for the
  
 
3.  Right to free legal assistance
 
            Art. III, Sec. 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.
 
 
People v. Rio, 201 SCRA 702 (1991)
Constitutional Law II
 
F:         On 29 December 1989, the accused-appellant
Ricardo Rio, in two (2) letters dated 14 December
1989, addressed to Division Clerk of Court Fermin J.
Garma and to Assistant Clerk of Court Tomasita M.
Dris, manifested his intention to withdraw the appeal
due to his poverty.
 
            Paraphrasing Mr. Justice Malcolm, "Two (2) of
the basic privileges of the accused in a criminal
prosecution are the right to the assistance of counsel
and the right to a preliminary examination. President
Mckinley made the first a part of the Organic Law in
his Instructions to the Commission by imposing the
inviolable rule that in all criminal prosecutions the
accused 'shall enjoy the right ... to have assistance of
counsel for the defense' ". Today said right is
enshrined in the 1987 Constitution for, as Judge
Cooley says, this is "perhaps the privilege most
important to the person accused of crime."  knowledge of the undersigned Wilma Phua against her
            "In criminal cases there can be no fair hearing
unless the accused be given an opportunity to be
heard by counsel. The right to be heard would be of
little meaning if it does not include the right to be
heard by counsel. Even the most intelligent or edu-
cated man may have no skill in the science of the
law, particularly in the rules of procedure, and,
without counsel, he may be convicted not because he
is guilty but because he does not know how to
establish his innocence. And this can happen more
easily to persons who are ignorant or uneducated.  It
is for this reason that the right to be assisted by
counsel is deemed so important that it has become a
constitutional right and it is so implemented that
under our rules of procedure it is not enough for the
Court to apprise an accused of his right to have an
attorney, it is not enough to ask him whether he
desires the aid of an attorney, but it is essential that
the court should assign one de oficio for him if he so
desires and he is poor, or grant him a reasonable time
to procure an attorney of his own."
                      This right to a counsel de oficio does not
cease upon the conviction of an accused by a trial
court.  It continues, even during appeal, such that
the duty of the court to assign a counsel de oficio
persists where an accused interposes an intent to
appeal. Even in a case, such as the one at bar, where
the accused had signified his intent to withdraw his
appeal, the court is required to inquire into the
reason for the withdrawal. Where it finds the sole
reason for the withdrawal to be poverty, as in this
case, the court must assign a counsel de oficio, for
despite such withdrawal, the duty to protect the
rights of the accused subsists and perhaps, with
greater reason. After all, "those who have less in life
must have more in law." Justice should never be
limited to those who have the means. It is for
everyone, whether rich or poor. Its scales should
always be balanced and should never equivocate or
cogitate in order to favor one party over another.
            It is with this thought in mind that we charge
clerks of court of trial courts to be more circumspect
with the duty imposed on them by law (Section 13,
Rule 122 of the Rules of Court) so that courts will be
above reproach and that never (if possible) will an
innocent person be sentenced for a crime he has not
committed nor the guilty allowed to go scot-free.
                      In this spirit, the Court ordered the
appointment of a counsel de oficio for the accused-
appellant and for said counsel and the Solicitor
General to file their respective briefs, upon submis-
sion of which the case would be deemed submitted
for decision.
 
                              From the records of the case, it is
established that the accused- appellant was charged
with the crime of rape in a verified complaint filed by
complainant Wilma Phua Rio, duly subscribed before
3rd Assistant Fiscal Rodolfo M. Alejandro of the
province of Rizal, which reads as follows:
                That on or about the 24th day of March,
1984, in the Municipality of Muntinlupa, Metro
Manila, Philippines, a place within the jurisdiction of
this Honorable Court, the above-named accused, by
means of force and intimidation did then and there
wilfully, unlawfully and feloniously have carnal
will.
                On 26 June 1985, at the arraignment, the
accused-appellant, assisted by Atty. Leonido Manalo
of the Makati CLAO office, as counsel de oficio,
entered a plea of not guilty to the offense charged. 
                xxx
                              The trial court found the accused-
appellant guilty of the crime of rape.
 
                The theory of the defense at the trial level
was grounded on alibi. The accused claimed that at
the time of the alleged commission of the crime of
rape he was in Romblon. This claim was corroborated
by the accused's brother, Amado Rio. However, this
claim was, as aforestated, rebutted by the
prosecution's submission of the voter's affidavit
executed by the accused in Muntinlupa, Metro Manila
on 31 March 1984 when appellant claimed he was in
Romblon.
               
HELD:    On appeal, appellant's counsel de oficio
changed the theory of the defense. The new theory
presented by counsel de oficio is that Wilma Phua
consented when accused-appellant had sexual
intercourse with her on 24 March 1984. It was
stressed by counsel de oficio that the rape occurred
on 24 March 1984 and that, allegedly, it was the
fourth time accused had abused complainant. This
allegation as well as the fact that complainant failed
to lock the door to the bathroom could only have
been due to the fact that there was consent. The
charge was filed, according to defense counsel de
oficio, only because the complainant's mother caught
them.
                      This theory of the defense on appeal that
there had been consent from the complainant, fails
to generate doubt as to the accused's guilt, for it
would be an incredulous situation indeed to believe
that one, so young and as yet uninitiated to the ways
of the world, would permit the occurrence of an
incestuous relationship with an uncle, a brother of
her very own mother.  The Court notes the sudden
swift in the theory of the defense from one of total
denial of the incident in question, by way of alibi, to
one of participation, that is, with the alleged consent
of the complainant. This new version could only be
attributed by the Court to the fact that counsel on
Constitutional Law II
appeal is different from the counsel in the trial court.
Although the Solicitor General has suggested that this
sudden shift be interpreted as an afterthought by the
accused or a desperate effort to get himself
acquitted, the Court deems it more likely that this
shift was caused by counsel de oficio's preparation of
the appellant's brief without examining the entire
records of the case. If the appointed counsel for the
accused, on appeal, had read the records and
transcripts of the case thoroughly, he would not have
changed the theory of the defense for such a shift
can never speak well of the credibility of the
defense. Moreover, the rule in civil procedure, which
applies equally in criminal cases, is that a party may
not shift his theory on appeal. If the counsel de oficio
had been more conscientious, he would have known
that the sudden shift would be violative of
aforementioned procedural rule and detrimental to
the cause of the accused-appellant (his client).
                      The Court hereby admonishes members of
the Bar to be more conscious of their duties as
advocates of their clients' causes, whether acting de
parte or de oficio, for "public interest requires that
an attorney exert his best efforts and ability in the
prosecution or defense of his client's cause." Lawyers
are an indispensable part of the whole system of
administering justice in this jurisdiction. And a
lawyer who performs that duty with diligence and
candor not only protects the interests of his client;
he also serves the ends of justice, does honor to the
Bar and helps maintain the respect of the community
to the legal profession. This is so because the
entrusted privilege to practice law carries with it
correlative duties not only to the client but also to
the court, to the bar and to the public.
            While a lawyer is not supposed to know all
the laws, he is expected to take such reasonable
precaution in the discharge of his duty to his client
and for his professional guidance as will not make
him, who is sworn to uphold the law, a transgressor
of its precepts.
                      The fact that he merely volunteered his
services or the circumstance that he was a counsel de
oficio neither diminishes nor alters the degree of
professional responsibility owed to his client. The
ethics of the profession require that counsel display
warm zeal and great dedication to duty irrespective
of the client's capacity to pay him his fees. Any
attempted presentation of a case without adequate
preparation distracts the administration of justice
and discredits the Bar.
 
4.  Right to be informed of nature and cause of
accusation
 
                    The arraignment in criminal prosecution is
precisely intended to comply with the right of the
accused to be informed of the nature and cause of
the accusation against him.  As noted in Vera v.
People, procedural due process requires that the
accused must be informed why he is being prosecuted
and what charge  he must meet.
 
Borja v. Mendoza, 77 SCRA 422 (1977)
    
No valid trial in absentia without arraignment
 
F:                Petitioner was accused of slight physical
injuries in the City Court of Cebu. After one
postponement due to petitioner's failure to appear,
the case was reset. Again, petitioner failed to appear,
despite notice to his bondsman. The court then
allowed the prosecution to present evidence despite
the fact that petitioner had not been arraigned. After
the offended party had testified and presented
documentary evidence, the court found petitioner
guilty. The CFI affirmed the decision. Hence, this
petition for certiorari.
 
HELD:  Respondent Judge committed a grave abuse of
discretion and his decision is void. Because petitioner
was not arraigned, he was not informed of the nature
and cause of accusation against him. Arraignment is
an indispensable requirement in any criminal
proceeding. 
 
5.  Right to speedy, impartial and public trial
 
(1)  Speedy Trial
 
            The right to a speedy trial means one that is
free from vexatious and oppressive delays.  Its
objective is to free the innocent person from anxiety
and expense of a court litigation, or otherwise, to
have his guilt determined within the shortest possible
time, compatible with the presentation and
consideration of whatever legitimate defense the
accused may interpose.
 
                    While reasonable delay may be allowed as
determined on a case to case basis, an unreasonable
delay on the part of the prosecution to present its
case, thereby causing the threat of penal liability to
remain hanging over the head of the accused for an
extended period of time, violates the right of the
accused to a speedy trial.
 
                    The remedy of the accused in this case is
habeas corpus if he has been restrained of his liberty,
or certiorari, prohibition or mandamus for the final
dismissal of the case; and dismissal based on the
denial of the right to speedy trial amounts to an
acquittal.
 
                    So said the SC in Acevedo v. Sarmiento, 36
SCRA 247 (1970), a case involving the prosecution for
damage to property through reckless imprudence
which had been pending for 6 years, the last step
taken being the start of the cross-examination of the
complaining witness, who did not appear thereafter. 
The SC ordered the case dismissed with prejudice,
thus acquitting the accused.
(2)  Public Trial
   
            A public trial does not require that the entire
public can witness the trial.  It is enough if it is
conducted at a place where one's relatives and
friends can be accommodated and the public may
know what is going on.
 
                    The right is not absolute.  The court can
order the public out of the trial room in the interest
of morality and order.
Constitutional Law II
 
            In Garcia v. Domingo, 52 SCRA 143 (1970), the
SC dismissed the contention of one party that the
trial was conducted inside the chamber of the judge
on the ground that the objection came too late (the
party only complained after the 14th hearing) and
that the place was agreed upon by the parties for
their mutual convenience (the judge's room was air
conditioned).
 
Garcia v. Domingo, 52 SCRA 143 (1970)
 
The pivotal question in this petition for certiorari and
prohibition, one which thus far has remained
unresolved, is the meaning to be accorded the
constitutional right to public trial.
 
Issue: Is the holding of trial in the chambers of the
judge violative of the right to a public trial?
 
Ruling:  NO
            The defendants in this case agreed that the
hearings be held in the chambers.  On fourteen
separate occasions this was the case and there was
no objection on their part.  There was no evidence to
substantiate the claim that any other person was
excluded from the chambers.   It is thus evident that
what took place in the chambers of the city court
judge was devoid of haste or intentional secrecy.
                      The trial must be public. It possesses that
character when anyone interested in observing the
manner a judge conducts the proceedings in his
courtroom may do so. There is to be no ban on such
attendance. His being a stranger to the litigants is of
no moment. No relationship to the parties need be
shown. The thought that lies behind this safeguard is
the belief that thereby the accused is afforded
further protection, that his trial is likely to be
conducted with regularity and not tainted with any
impropriety. It is not amiss to recall that Delegate
Laurel in his terse summation the importance of this
right singled out its being a deterrence to
arbitrariness. It is thus understandable why such a
right is deemed embraced in procedural due process.
Where a trial takes place, as is quite usual, in the
courtroom and a calendar of what cases are to be
heard is posted, no problem arises. It the usual
course of events that individuals desirous of being
present are free to do so. There is the well
recognized exception though that warrants the
exclusion of the public where the evidence may be
characterized as "offensive to decency or public
morals."
            What did occasion difficulty in this suit was
that for the convenience of the parties, and of the
city court Judge, it was in the latter's air-conditioned
chambers that the trial was held. Did that suffice to
investigate the proceedings as violative of this right?
The answer must be in the negative. There is no
showing that the public was thereby excluded. It is to
be admitted that the size of the room allotted the
Judge would reduce the number of those who could
be  present. Such a fact though is not indicative of
any transgression of this right. Courtrooms are not of
uniform dimensions. Some are smaller than others.
Moreover, as admitted by Justice Black in his masterly
In re Oliver opinion, it suffices to satisfy the
requirement of a trial being public if the accused
could "have his friends, relatives and counsel present,
no matter with what offense he may be charged."
                      Then, too, reference may also be made to
the undisputed fact at least fourteen hearings had
been held in chambers of the city court Judge,
without objection on the part of respondent
policemen.  xxx 
(3)  Impartial trial
 
            One aspect of an impartial trial is a neutral
magistrate who exercises cold impartiality.
 
            In Tumey v. Ohio, 273 U.S. 510 (1927), it was
held that a town mayor who was paid on the basis of
the fine he imposes for every conviction for violation
of the drinking laws, could not be an impartial
judge.  Under such a situation, he would be
interested in convicting those he tries so he would
earn more.
  
                    Another aspect of an impartial trial is an
impartial tribunal bound by the Bill of Rights and the
strict rules of evidence and procedure.
 
            In Olaguer v. Military Commission, 150 SCRA
144 (1987), the SC held that a civilian cannot be tried
by a military court (in connection with the Light a
Fire Movement) so long as the civil courts are open
and operating, even during Martial Law.
 
 6.  Right to confront witness
 
                    The purpose of this right is to enable the
accused to test the credibility of the witness.  The
best means of confrontation is the process of cross-
examination.
 
7.  Right to secure attendance of witnesses (and
the production of evidence in his behalf)
 
                    There are various means available to the
parties to compel the attendance of witnesses and
the production of documents and things needed in
the prosecution or defense of a case in an adversarial
manner: subpoena and subpoena duces tecum: 
depositions and other modes of discovery;
perpetuation of testimonies.
    
  8.  Trial in Absentia
 
                    Although the right to be present is not
explicit in the provision, it is inferrable from the
phrase "trial may proceed notwithstanding the
absence of the accused"
 
                    This right to be present may, however, be
waived by the accused.  Rule 115, sec, 1(c), talks of 3
ways that the waiver may take place:  (a)  express
waiver pursuant to the stipulations set forth in his
bail bond, unless his presence is specifically ordered
by the court for purposes of identification;  (b) 
implied waiver when the accused without any
justifiable cause is absent at the trial on a particular
date of which he had notice; and (c) implied waiver
Constitutional Law II
when the accused under custody who had been
notified of the date of trial escapes.
            In cases in which there have been a waiver of
the right to be present, whether expressed or
implied, the trial may be held "in absentia".  The
requisites of a valid trial in absentia are:  (i)  the
accused has been arraigned; (ii)  he was duly notified
of the hearing; and (iii)  his failure to attend the trial
is unjustified.
 
            There can be no valid trial in absentia unless
the accused has been arraigned, ruled the SC in Boria
v. Mendoza, 77 SCRA 422 (1977), a case involving a
charge for slight physical injuries where the accused
failed to appear and so the trial court allowed the
prosecution to present its evidence even if the
accused has not yet been arraigned.  Arraignment is
crucial because it informs the accued of the nature
and cause of the accusation against him.  Conviction
without arraignment violates due process and ousts
the court of its jurisdiction.
Boria v. Mendoza, 77 SCRA 422 (1977), supra.
 
HELD:  The subsequent trial in absentia deprived
petitioner of his right to be heard by himself and
counsel. The indispensable requirement for trial in
absentia is that it should come after arraignment.              In People v. Prieto, 84 SCRA 198 (1978), the
VV.
 
 
            Waiver of the right to be present implies also
waiver of the right to present evidence.  Thus, if the
accused fails to attend trial (which presupposes
arraignment), without any justifiable cause, the
prosecution can proceed with the presentation of the
evidence, and thereupon, the court may consider the
case submitted for decision.    The court will decide
the case on the basis only of the prosecution's
evidence.  This does not violate the constitutional
presumption of innocence because it does not mean
that the judgment of the trial court will result in
conviction.
 
            So ruled the SC in People v. Salas, 143 SCRA
163 (1986), which further ruled that trial in absentia
applies even to capital cases.
 
 
People v. Salas  143 SCRA 163 (1986)
 
Trial in absentia applies even to capital cases
F:                Mario Abong was originally charged with
homicide in the CFI Cebu but before he could be
arraigned, the case was reinvestigated on motion of
the prosecution. As a result of the reinvestigation, an
amended information was filed, with no bail
recommended, to which he pleaded not guilty. Trial
commenced but while it was in progress, the prisoner
took advantage of the first information filed and
succeeded in deceiving the city court of Cebu into
granting him bail and ordering his release. The
respondent Judge, learning of the trickery, cancelled
the illegal bail bond and ordered Abong's re-arrest.
But he was gone. Nonetheless, the prosecution moved
that the hearing continue in accordance with the
constitutional provision authorizing trial in absentia.
The respondent Judge denied the motion and
suspended all proceedings until the return of the
accused. Hence, this petition.
 
HELD:  The doctrine laid down in People v. Avanceña
has been modified by Art. IV, sec. 19 [now Art. III,
sec. 14(2) of the 1987 Constitution] which allows trial
in absentia. The prisoner cannot by simply escaping
thwart his continued prosecution and possible
eventual conviction provided only that (a) he has
been arraigned; (b) he has been duly notified of the
trial; and (c) his failure to appear is unjustified. The
right to be present at one's trial may now be waived
except only at that stage where the prosecution
intends to present witnesses who will identify the
accused. The defendant's escape will be considered a
waiver of this right and the inability of the court to
notify him of the subsequent hearings will not
prevent it from continuing with his trial.  VV.
 
            Trial in absentia was introduced only in the
1973 Constitution to remedy a situation in which
criminal prosecution could not move because the
accused has either escaped or jumped bail.
 
SC ruled that trial in absentia does not justify the
accused to jump bail.  Just because th Constitution
allows trial in absentia does not mean that the
accused is now free to waive his right to be present
during the trial.  If he does, he runds the risk of
having his bail bond forfeited.
  
Provision for trial in absentia not a justification for
jumping bail
 
F:                For repeated failure of the accused Dario
Gamayon to appear, respondent Judge declared the
bail bond forfeited and required the bondsmen to
produce the accused within thirty days and to show
cause why no judgment should be rendered against
them. However, on motion of defense counsel, who
invoked the last sentence of Art. IV, section 19 [now
Art. III, sec. 14(2)] on trial in absentia, respondent
Judge reconsidered his order. He argued that "if trial
could be conducted after the accused has been
arraigned and identified, the conclusion is
inescapable that issuing an order of forfeiture of the
bail bond is premature." The prosecution filed a
petition for certiorari.
HELD:  The innovation introduced by the present
Constitution goes no further than to enable a judge
to continue with the trial even if the accused is not
present under the conditions therein specified. It
does not give the accused the right to jump bail. VV.
 
Gimenez v. Nazareno, 160 SCRA 1 (1988)
 
In trial in absentia accused waives the right to
present evidence and confront witnesses
 
F:                Teodoro dela Vega Jr., together with five
others, was charged with murder. After arraignment,
during which he pleaded not guilty, the case was set
Constitutional Law II
for hearing on Sept. 18, 1973 but he escaped. He was
tried in absentia. The trial court rendered judgment
dismissing the case against his co-accused but it held
in abeyance the proceedings against him in order to
give him the chance to cross examine the witnesses
against him and present evidence. Hence, this
petition for certiorari.
 
HELD:  Was the jurisdiction lost when the accused
escaped from the custody of the law and failed to
appear during the trial? No. As we have consistently
ruled, jurisdiction once acquired is not lost upon the
instance of parties but continues until the case is
terminated. The lower court was correct in
proceeding with the reception of evidence but it
erred when is suspended the proceedings as to the
respondent. The court need not wait for the time
until the accused finally decides to appear. To allow
this delay is to render ineffective the constitutional
provision on trial in absentia. 
 
9.  When presence of the accused is a DUTY
 
                      In People v. Avancena, 32 O.G. 713, the SC
held that (a) the accused has the right to be present
during trial;  (b) if he is in the custody of the law,
presence in all stage is likewise a duty during (i)
arraignment, (ii) entering a plea, and (iii)
promulgation of judgment.  This rule however has
been modified.
 
As things stand, the following are the rules:
 
            1.  Generally, the accused has the right to be
present at all stages the trial (from arraignment to
rendition of judgment).
 
            2.  If the accused is in the custody of the law,
his presence during the trial is a duty only if the
court orders his presence to enable the prosecution
witnesses to identify him.  (People v. Salas, infra.
reiterating Aquino v. Military Commiission, infra.
modifying People v. Avancena, infra.)
 
            3.  Although the accused is not in the custody
of the law (and more so if he is in the custody of the
law), his presence is required in the following cases:
 
                    a)  Arraignment, regardless of the
offense;
 
                    b) Entering a plea, regardless of
whether the plea is guilty or not guilty.
 
            c)  Promulgation of judgment, except
that when the judgment is for a light offense,
he may be represented by his counsel or a
personal emissary.
 
 
 
                                    a.  Arraignment and plea,
whether of innocence or of guilt  portion of the substance emitting from the body of
 
            Rule 116, Sec. 1.  Arraignment and plea;
how made.--
            xxx
                      (b)  The accused must be present at the
arraignment and must personally enter his plea. 
Both arraignment and plea shall be made of record,
but a failure to enter of record shall not affect the
validity  of the proceedings.
 
 
b.  During trial, for identification
  
People v. Salas, 143 SCRA 163 (1986), supra.
 
HELD: The right to be present at one's trial may
now be waived except only at that stage where
the prosecution intends to present witnesses
who will identify the accused. 
 
c.  Promulgation of sentence, unless it is for a light
offense, in which case accused may appear by
counsel, or a representative (Rule 120, Sec. 6.)      
E.  Priviledge against self incrimination
 
                    Art. III, Sec. 17.  No person shall be
compelled to be a witness against himself.
 
                    Any confession or admission obtained in
violation of section 17 hereof shall be inadmissible in
evidence against him.  [Art. III, Sec. 12 (3)]
 
                        1.  Scope of privilege:  Compulsory
Testimonial self-incrimination
 
                    The privilege covers only testimonial
incrimination obtained compulsorily.  It refers
therefore to the use of the mental process and the
communicative faculties, and not to a merely
physical activity.  If the act is physical or mechanical,
the accused can be compelled to allow or perform
the act, and the result can be used in evidence
against him.
 
            Thus the accused can be required to allow a
sample of a substance taken from his body (U.S. v.
Tan Teng. 23, Phil. 145 (1912)).
  
F:            This defendant was charged with the crime
of rape. He was found guilty of the charge.  He
appeals the decision on the ground  that the lower
court erred in admitting the testimony of the
physicians about having taken a certain substance
from the body of the accused while he was confined
in jail and regarding the chemical analysis made of
the substance to demonstrate the physical condition
of the accused with reference to a venereal disease.
It was discovered that the rape victim was infected
by venereal disease so that the finding of venereal
disease in the accused was material to his conviction.
                Upon this information the defendant was
arrested and taken to the police station and stripped
of his clothing and examined. The policeman who
examined the defendant swore from the venereal
disease known as gonorrhea. The policeman took a
the defendant and turned it over to the Bureau of
Science for the purpose of having a scientific analysis
made of the same. The result of the examination
Constitutional Law II
showed that the defendant was suffering from
gonorrhea.
 
Issue: Whether or not the information that the
accused has gonorrhea may be used against him
 
Ruling:  YES.  The accused was not compelled to
make any admissions or answer any questions, and
the mere fact that an object found on his person was
examined: seems no more to infringe the rule
invoked, than would the introduction in evidence of
stolen property taken from the person of a thief.
                      The substance was taken from the body of
the defendant without his objection, the examination
was made by competent medical authority and the
result showed that the defendant was suffering from
said disease. As was suggested by Judge Lobingier,
had the defendant been found with stolen property
upon his person, there certainly could have been no
question had the stolen property been taken for the
purpose of using the same as evidence against him.
So also if the clothing which he wore, by reason of
blood stains or otherwise, had furnished evidence of
the commission of a crime, there certainly could have
been no objection to taking such for the purpose of
using the same as proof. No one would think of even
suggesting that stolen property and the clothing in
the case indicated, taken from the defendant, could
not be used against him as evidence, without
violating the rule that a person shall not be required
to give testimony against himself.
            But the prohibition of compelling a man in a
criminal court to be a witness against himself, is a
prohibition of the use of physical or moral
compulsion, to extort communications from him, not
an exclusion of his body as evidence, when it may be
material. The objection, in principle, would forbid a
jury (court) to look at a person and compare his
features with a photograph in proof. Moreover we are
not considering how far a court would go in
compelling a man to exhibit himself, for when he is
exhibited, whether voluntarily or by order, even if
the order goes too far, the evidence if material, is
competent.
            The prohibition contained in section 5 of the
Philippine Bill that a person shall not be compelled to
be a witness against himself, is simply a prohibition
against legal process to extract from the defendant's
own lips, against his will, an admission of his guilt.
                      Mr. Wigmore, in his valuable work on
evidence, in discussing the question before us, said:
                      If, in other words, it (the rule) created
inviolability not only for his [physical control] in
whatever form exercised, then it would be possible
for a guilty person to shut himself up in his house,
with all the tools and indicia of his crime, and defy
the authority of the law to employ in evidence
anything that might be obtained by forcibly
overthrowing his possession and compelling the
surrender of the evidential articles  a clear reductio
ad absurdum. In other words, it is not merely
compulsion that is the kernel of the privilege, . . .
but testimonial compulsion. (4 Wigmore, sec. 2263.)
                      The main purpose of the provision of the
Philippine Bill is to prohibit compulsory oral
examination of prisoners before trial. or upon trial,
for the purpose of extorting unwilling confessions or
declarations implicating them in the commission of a
crime. (People vs. Gardner, 144 N. Y., 119.)
                      The doctrine contended for by appellant
would prohibit courts from looking at the fact of a
defendant even, for the purpose of disclosing his
identity. Such an application of the prohibition under
discussion certainly could not be permitted. Such an
inspection of the bodily features by the court or by
witnesses, can not violate the privilege granted under
the Philippine Bill, because it does not call upon the
accused as a witness  it does not call upon the
defendant for his testimonial responsibility. Mr.
Wigmore says that evidence obtained in this way from
the accused, is not testimony but his body his body
itself. 
 
 
                    The accused can be ordered to expel the
morphine from his mouth (U.S. v. Ong Sio Hong 36
Phil 735, (1917)).
 
U.S. v. Ong Sio Hong 36 Phil 735, (1917)
 
                      Counsel for appellant raises the
constitutional question that the accused was
compelled to be a witness against himself. The
contention is that this was the result of forcing the
accused to discharge the morphine from his mouth. 
To force a prohibited drug from the person of an
accused is along the same line as requiring him to
exhibit himself before the court; or putting in
evidence papers and other articles taken from the
room of an accused in his absence; or, as in the Tan
Teng case, taking a substance from the body of the
accused to be used in proving his guilt. It would be a
forced construction of the paragraph of the Philippine
Bill of Rights in question to hold that any article,
substance, or thing taken from a person accused of
crime could not be given in evidence. The main
purpose of this constitutional provision is to prohibit
testimonial compulsion by oral examination in order
to extort unwilling confessions from prisoners
implicating them in the commission of a crime.
(Harris vs. Coats [1885], 75 Ga., 415.)
 
 
                    The accused can be made to take off her
garments and shoes and be photographed.  (People v.
Otadura, 96 Phil 244 (1950)).
 
                    A woman accused of adultery can be
compelled to show her body for physical investigation
to see if she is pregnant (Villaflor v. Summers, 41
Phil. 62 (1920)).  Viewed against present standards,
however, it is possible that this method of
determining pregnancy would violate due process as
being too barbaric.
 
Villaflor v. Summers, 41 Phil. 62 (1920)
 
F:         The facts are not dispute. In a criminal case
pending before the Court of First Instance of the city
of Manila, Emeteria Villaflor and Florentino Souingco
are charged with the crime of adultery. The court
ordered the defendant Emeteria Villaflor, to submit
her body to the examination of one or two competent
Constitutional Law II
doctors to determine if she was pregnant or not. The
accused refused to obey the order on the ground that
such examination of her person was a violation of the
constitutional provision relating to self-incrimination.
Thereupon she was found in contempt of court and
was ordered to be committed to Bilibid Prison until
she should permit the medical examination required
by the court.
 
Issue:  Whether the compelling of a woman to permit
her body to be examined by physicians to determine
if she is pregnant, violates that portion of the
Philippine Bill of Rights
 
Ruling:  The constitutional guaranty, that no person
shall be compelled in any criminal case to be a
witness against himself, is limited to a prohibition
against compulsory testimonial self-incrimination.
The corollary to the proposition is that, an ocular
inspection of the body of the accused is permissible.
The proviso is that torture of force shall be avoided.
Whether facts fall within or without the rule with its
corollary and proviso must, of course, be decided as
cases arise.
                      It is a reasonable presumption that in an
examination by reputable and disinterested
physicians due care will be taken not to use violence
and not to embarass the patient any more than is
absolutely necessary. Indeed, no objection to the
physical examination being made by the family
doctor of the accused or by doctor of the same sex
can be seen.                        Also requiring  the accused to reenact the
 
                    The taking of footprint sample to see if it
matches the ones found in the scene of the crime is
allowed (People v. Salas and People v. Sara).
 
            However, making the accused take dictation
to get a specimen of her handwriting is not allowed,
for this involves the use of the mental process.
[Bermudez v. Castillo, 64 Phil. 485 (1937).]
 
Bermudez v. Castillo, 64 Phil. 485 (1937)          basis of the extrajudicial confessions executed by
 
F:         In connection with this administrative case,
said respondent filed, six letters which, for purposes
of identification, were marked as Exhibits 32, 34, 35,
36 and 37. He contends that said six letters are the
complainant's, but the latter denied it while she was
testifying as a witness in rebuttal.
                Respondent required complainant to copy
the letters in her own handwriting in the presence of
the investigator. The complainant, refused invoking
her right not to incriminate herself. The investigator,
upholding the complainant, did not compel her to
submit to the trial required, thereby denying the
respondent's petition.
 
Issue: Whether or not the complainant may be forced
to make a copy of the letters in her own handwriting
 
Ruling:  No.  It would violate her right against self-
incrimination.
            The constitution provides: "No person shall be
compelled to be a witness against himself." It should
be noted that before it was attempted to require the
complainant to copy the six documents above-stated,
she had sworn to tell the truth before the
investigator authorized to receive statements under
oath, and under said oath she asserted that the
documents in question had not been written by her.
Were she compelled to write and were it proven by
means of what she might write later that said
documents had really been written by her, it would
be impossible for her to evade prosecution for
perjury.
            The reason for the privilege appears evident.
The purpose thereof is positively to avoid and
prohibit thereby the repetition and recurrence of the
certainly inhuman procedure of compelling a person,
in a criminal or any other case, to furnish the missing
evidence necessary for his conviction. If such is its
purpose, then the evidence must be sought
elsewhere; and if it is desired to discover evidence in
the person himself, then he must be promised and
assured at least absolute immunity by one authorized
to do so legally, or he should be asked, one for all, to
furnish such evidence voluntarily without any
condition. This court is of the opinion that in order
that the constitutional provision under consideration
may prove to be a real protection and not a dead
letter, it must be given a liberal and broad
interpretation favorable to the person invoking it.
                      In view of the foregoing consideration and
holding, as it is hereby held, that the complainant is
perfectly entitled to the privilege invoked by her, the
respondent's petition is denied.
 
crime is not allowed, for this also involves the mental
process.
 
 
People v. Olvis, 154 SCRA 525
 
F:         Villarojo, Cademas and Sorela were convicted
in the lower court of murder for the death of Bagon.
Olvis, the alleged principal by inducement, was
acquitted. The three accused were convicted on the
them in the presence of a counsel summoned by the
NBI to handle appellants' case, and the reenactment
done by them of the circumstances surrounding the
killing.
 
RULING: The extrajudicial confessions are
inadmissible. They were made in the presence of a
counsel summoned by the NBI and not of appellants'
own choice. He cannot therefore be said to have
been acting on behalf of the accused when he lent his
presence at the confession proceedings.
                    But the accused were denied their right to
counsel not once but twice when they were forced to
re-enact the crime. Forced re-enactments like
uncounselled and coerced confessions come within
the ban against self-incrimination. This constitutional
privilege has been defined as a protection against
testimonial compulsion but this has since been
extended to any evidence communicative in nature
acquired under circumstances of duress. Essentially,
the right is meant to avoid and prohibit positively the
repetition and recurrence of the certainly inhuman
procedure of compelling a person, in a criminal or
Constitutional Law II
any other case, to furnish the missing evidence
necessary for his conviction.  on February 1, 1965 with the Court of First Instance
 
People v. Go, 237 SCRA 73
 
F:              After a buy-bust operation accused were
arrested by the police.  Upon the presentation of a
search warrant, the house of the accused was
searched, and several prohibited drugs were seized.  first witness herein petitioner- appellee, who was the
They were charged with and convicted of violation of
the Dangerous Drugs law.  They contended that they
had not been shown a search warrant.  In concluding
that a search warrant had been presented to the
accused prior to the search, the trial court relied on
a document entitiled “Certificate of Re-conduct of
Search”, signed by the accused.
 
ISSUE:  Whether or not such document is admissible
in evidence.
 
RULING:  IT CANNOT BE ADMITTED IN ITS ENTIRETY.
                      The second paragraph of the Certification
amounts to an implied admission that shabu, the
marked money, and shabu papaphernalia had been
found by the police authorities at the residence of
the Go spouses and therefore, subject to the control
and custody of the accused (the spouses) and
necessarily in their possession.  To this extent, the
“Certification” is a declaration against the interest
and tacit admission of the crime charged.  The
second paragraph of the Certification is a self-
incriminatory statment made at a time when the
spouses were not assisted by counsel and under
circumstances (in the course of or immediately after
the search of the residence and seizure of quantities
of shabu) which render intelligent waiver of their
right against self-incrimination open to serious doubt.
            The Court considers that there is nothing to
prevent admission of the “Certification” to
substantiate the fact that a search warrant issued by
a judge had been brought to the attention of the
spouses in the course of the raid or buy-bust
operation carried out at their residence and that in
the course thereof, no force or intimidation had been
exercised upon the spouses.
                      Notwithstanding such, the accused were
convicted of the crime charged against them.  Amendment in its Self-Incrimination clause enables
 
 2.  In what proceedings available
 
            The privilege is available in any proceedings,
even outside the court, for they may eventually lead
to a criminal prosecution.
 
            In Pascual v. Board of Medical Examiners, 28
SCRA 344 (1969), the SC held that the privilege
against self-incrimination extends to administrative
proceedings which possess a criminal or penal
aspect.  In this case, it was held that a doctor who
was being investigated by a medical board for alleged
malpractice and would lose his license if found guilty,
could not be compelled to take the witness stand
without his consent.
 
Pascual v. Board of Medical Examiners, 28 SCRA 344
(1969)
F:         Arsenio Pascual, Jr., petitioner-appellee, filed
of Manila an action for prohibition with prayer for
preliminary injunction against the Board of Medical
Examiners, now respondent-appellant. It was alleged
therein that at the initial hearing of an administrative
case  for alleged immorality, counsel for
complainants announced that he would present as his
respondent in such malpractice charge. Thereupon,
petitioner-appellee, through counsel, made of record
his objection, relying on the constitutional right to be
exempt from being a witness against himself.
Respondent-appellant, the Board of Examiners, took
note of such a plea, at the same time stating that at
the next scheduled hearing, on February 12, 1965,
petitioner-appellee would be called upon to testify as
such witness, unless in the meantime he could secure
a restraining order from a competent authority.
                A decision was rendered by the lower court
on August 2, 1965, finding the claim of petitioner-
appellee to be well-founded and prohibiting
respondent Board "from compelling the petitioner to
act and testify as a witness for the complainant in
said investigation without his consent and against
himself."
 
HELD:  Petitioner could suffer the revocation of his
license as a medical practitioner, for some an even
greater deprivation.
                      Why it should be thus is not difficult to
discern. The constitutional guarantee, along with
other rights granted an accused, stands for a belief
that while crime should not go unpunished and that
the truth must be revealed, such desirable objectives
should not be accomplished according to means or
methods offensive to the high sense of respect
accorded the human personality. More and more in
line with the democratic creed, the deference
accorded an individual even those suspected of the
most heinous crimes is given due weight. To quote
from Chief Justice Warren, "the constitutional
foundation underlying the privilege is the respect a
government ... must accord to the dignity and
integrity of its citizens."
            Thus according to Justice Douglas: "The Fifth
the citizen to create a zone of privacy which
government may not force to surrender to his
detriment."  So also with the observation of the late
Judge Frank who spoke of "a right to a private
enclave where he may lead a private life. That right
is the hallmark of our democracy."  In the light of the
above, it could thus clearly appear that no possible
objection could be legitimately raised against the
correctness of the decision now on appeal. We hold
that in an administrative hearing against a medical
practitioner for alleged malpractice, respondent
Board of Medical Examiners cannot, consistently with
the self-incrimination clause, compel the person
proceeded against to take the witness stand without
his consent. 
 
                    In Galman v. Pamaran, infra, the privilege
was held to extend to fact-finding investigation by an
adhoc body.
Constitutional Law II
 
Galman v. Pamaran, 138 SCRA 274 (1985)
A person can be compelled to testify provided he is
given immunity co-extensive with the privilege
against self- incrimination
 
F:                The respondents led by General Fabian Ver
and Major General Prospero Olivas testified before
the Agrava Board looking into the killing of former
Senator Benigno Aquino. They were subsequently
accused of murder in two cases for the killing of Sen.
Aquino and Rolando Galman. They were charged as
accessories in both. The prosecution offered in
evidence the testimony of Ver and Olivas before the
Agrava Board, but on the latter's objections, the
Sandiganbayan excluded the testimony. The private
and public prosecutions filed petitions for certiorari.
 
HELD:  The persons summoned to testify before the
Agrava Board were "under investigation for the
commission of the offense" within the meaning of Art.
III, sec. 12. It is to be noted that the framers of the
Constitution did not adopt the Miranda reference to
"custodial investigation." The subject matter dealt
with and the questioning before the Agrava Board
indubitably evinced purposes other than merely
determining the surrounding facts and circumstances
of the assassination. The respondents were called to
determine their probable involvement in the crime.
Yet they were not informed or at the very least
warned of their right to remain silent and that any
statement given by them may be used against them.                      Thus, Congress in 1893 passed the
The first portion of Sec. 5 of PD 1886 denied them
the right to remain silent, and gave power to the
Board to punish refusal to testify. The SC said it is not
satisfied that when they testified they waived their
constitutional right not be compelled to be a witness
against themselves, much less their right to remain
silent. The SC also said it cannot be contended that
the privilege against self- incrimination applies only
to criminal prosecutions. Art. III, sec. 17 of the Const.
provides that "No person shall be compelled to be a
witness against himself."  and fruit immunity".
 
 
Compare People v. Ayson, 175 SCRA 216 (1989), supra.
 
3.  "Use and Fruit Immunity" v. "Transactional
Immunity"
 
                    When the State requires testimony to be
made before a board or body, it has to grant
immunity by means of law to the persons testifying,
so as not to violate their right against self-
incriminatrion.  This is the only way to reconcile two
conflicting values; public interest to get certain
relevant information, say, to legislation, that can only
be supplied by the testimony of certain persons and
the highly primed constitutional right not to make a
person a witness against himself.
 
                    Through an immunity statute, the state in
effect exchanges immunity for the testimony of a
witness.  The problem concerns the extent of
immunity that the State must grant in order to
protect the privilege against self-incrimination.
Transactional Immunity
 
            In a transactional immunity, a person is given
immunity from prosecution of the crime in
connection with which he gave his testimony.  The
immunity is from the prosecution, not merely from
the use of the testimony.  Thus, even if the guilt of
the person testifying can be proven by independent
means, he can not be prosecuted anymore.
 
Use and Fruit Immunity
 
                    In a use and fruit immunity, a person is
exempted from the use of his testimony as well as
the leads (fruits) that the testimony opened up in a
criminal prosecution arising from what he testified
on.  The immunity in this case is from the testimony
given.  Thus, if the state can procure evidence,
independent of the testimony and its fruits, it can
prosecute the person testifying nevertheless.
 
 
History in the United States
 
                    In Councilman v. Hitchcock (1892), the SC
ruled that the only way to respect the right against
self-incrimination is to give transactional immunity;
anything less violates the constitutional right.
 
Compulsory Testimony Act, providing for transactional
immunity.
 
            In 1964, the U.S. SC in Murphy v. Waterfront
Commission of New York hinted that it was not really
necessary to give transactional immunity in order to
protect the right against self incrimination.
 
            This gave the U.S. Congress the cue to revise
the Compulsory Testimony Act and provide for a "use
            With the validity of this limited immunity was
raised, the SC in Castigas v. U.S. and Zicarelli v. U.S.
ruled that the right is amply protected by the use and
fruit immunity.
 
 
In the Philippines
 
                    There is no fixed rule in the Philippines. 
"Transactional immunity" can be found in the
following:
 
                    Art. XIII, Sec. 18.  The Commission on
Human Rights shall have the following powers and
functions
            xxx
                      (8)  Grant immunity from prosecution to
any person whose testimony or possession of
documents or other evidence is necessary or
convenient to determine the truth in any
investigation conducted by it or under its authority.
Constitutional Law II
 Use and Fruit Immunity
 
            On the other hand, "use and fruit immunity
can be found in P.D. 1886, which created the Agrava
Fact Finding Board, and which was the subject-
matter of Galman v. Pamaran, 138 SCRA 274 (1985).
 
            In this case, Ver and other high-ranking AFP
officials were made to testify before the Agrava
Board investigating the double murder of Sen. Aquino
and Galman.  Under P.D.1886, every person
summoned by the Board has to appear and testify on
pain of being held in contempt. Any  testimony made,
in turn, was exempted from being "used" in a criminal
prosecution.  Despite this however, a case was file
against Ver in the Sandiganbayan, and one of the
evidence presented was the testimony he made
before the Board.  When objected to, the
Sandiganbayan sustained the objection.  And so the
matter was raised to the SC on certiorari.
 
            The SC held that the testimony could not be
used in a subsequent proceeding.  it hinted that were
it not for the provision in the decree conmpelling
attendance and testimony on pain of being held in
contempt, the accused could have invoked the right
against self-incrimination.  But since the state
needed the testimony, it gave them immunity and so
now, the State must honor its obligation and disallow
the use of the testimony in the criminal prosecution.
 
Galman v. Pamaran, 138 SCRA 274 (1985), supra.
 
HELD:  Immunity statutes may be generally classified
into two: one, which grants "use immunity" and the
other, which grants what is known as "transactional
immunity." The distinction between the two is: "Use
immunity" prohibits use of a witness' compelled
testimony and its fruits in any manner in connection
with the criminal prosecution of the witness. On the
other hand, "transactional immunity" grants immunity
to the witness from prosecution for an offense to
which his compelled testimony relates. PD 1886, sec.
5 grants merely immunity from use of any statement
given before the Board, but not immunity from
prosecution by reason or on the basis thereof.  VV
 
 
4.  Exclusionary rule
 
            Art. III, Sec. 12.  xxx
            (3)  Any confession or admission obtained in
violationof this or Section 17 hereof shall be
inadmissible in evidence against him.                         Therefore, the court may not extract from a
 
                      The paradigmatic application of the
exclusionary rule is a traditionally coerced
confession, and not so much on uncounselled
statement.  A fortiori, testimony forced out of a
person cannot be used in evidence against that
person.
 
 5.  Effect of denial of the privilege by court
 
            When the privilege against self-incrimination
is violated outside of court, say, by the police, then
the testimony, as already noted, is not admissible
under the exclusionary rule. 
 
                    When the privilege is violated by the court
itself, that is, by the judge, the court is ousted of its
jurisdiction, all its proceedings are null and void, and
it is as if no judgment has been rendered.  A classic
case is Chavez v. Court of Appeals, 34 SCRA 663
(1968).
Chavez v. Court of Appeals, 34 SCRA 663 (1968)
 
F:                The thrust of petitioner's case presented in
his original and supplementary petitions invoking
jurisdiction of this Court is that he is entitled, on
habeas corpus, to be freed from imprisonment upon
the ground that in the trial which resulted in his
conviction  he was denied his constitutional right not
to be compelled to testify against himself. There is
his prayer, too, that, should he fail in this, he be
granted the alternative remedies of certiorari to
strike down the two resolutions of the Court of
Appeals dismissing his appeal for failure to file brief,
and of mandamus to direct the said court to forward
his appeal to this Court for the reason that he was
raising purely questions of law.
                Accused Chavez was made to testify as a
witness for the prosecution without him being
considered a state witness inspite of objections by his
counsel.
                Roger Chavez was found guilty. The court
had this to say: "Roger Chavez does not offer any
defense. As a matter of fact, his testimony as witness
for the prosecution establishes his guilt beyond
reasonable doubt."  The trial court branded him "a
self- confessed culprit".
 
Issue: Whether or not  Chavez right against self-
incrimination was violated
 
Ruling:  YES
                      The right agianst self-incrimination is "not
merely a formal technical rule the enforcement of
which is left to the discretion of the court"; it is
mandatory; it secures to a defendant a valuable and
substantive right;  it is fundamental to our scheme of
justice.
                      The constitutional proscription was
established on broad grounds of public policy and
humanity; of policy because it would place the
witness against the strongest temptation to commit
perjury, and of humanity because it would be to
extort a confession of truth by a kind of duress every
species and degree of which the law abhors. 
defendant's own lips and against his will an admission
of his guilt. Nor may a court as much as resort to
compulsory disclosure, directly or indirectly, of facts
usable against him as a confession of the crime or the
tendency of which is to prove the commission of a
crime. Because, it is his right to forego testimony, to
remain silent, unless he chooses to take the witness
stand  with undiluted, unfettered exercise of his own
free, genuine will.
            Compulsion as it is understood here does not
necessarily connote the use of violence; it may be
the product of unintentional statements. Pressure
which operates to overbear his will, disable him from
Constitutional Law II
making a free and rational choice, or impair his
capacity for rational judgment would in our opinion
be sufficient. So is moral coercion "tending to force
testimony from the unwilling lips of the defendant."
            Petitioner, as accused, occupies a different
tier of protection from an ordinary witness. Whereas
an ordinary witness may be compelled to take the
witness stand and claim the privilege as each
question requiring an incriminating answer is shot at
him,  and accused may altogether refuse to take the
witness stand and refuse to answer any and all
questions.  For, in reality, the purpose of calling an
accused as a witness for the People would be to
incriminate him.
           
            xxx  With all these, we have no hesitancy in
saying that petitioner was forced to testify to
incriminate himself, in full breach of his
constitutional right to remain silent. It cannot be said
now that he has waived his right. He did not
volunteer to take the stand and in his own defense;
he did not offer himself as a witness; on the contrary,
he claimed the right upon being called to testify. If
petitioner nevertheless answered the questions
inspite of his fear of being accused of perjury or
being put under contempt, this circumstance cannot
be counted against him. His testimony is not of his
own choice. To him it was a case of compelled
submission. He was a cowed participant in
proceedings before a judge who possessed the power
to put him under contempt had he chosen to remain
silent. Nor could he escape testifying. The court
made it abundantly clear that his testimony at least
on direct examination would be taken right then and
thereon the first day of the trial.
            The course which petitioner takes is correct.  devoid of any national security or political
Habeas corpus is a high prerogative writ.  It is
traditionally considered as an exceptional remedy to
release a person whose liberty is illegally restrained
such as when the accused's constitutional rights are
disregarded.  Such defect results in the absence or
loss of jurisdiction  and therefore invalidates the trial
and the consequent conviction of the accused whose
fundamental right was violated.  That void judgment
of conviction may be challenged by collateral attack,
which precisely is the function of habeas corpus.  captain belonging to the Judge Advocate General
Habeas corpus is proper to challenge a conviction
where the consitutional rights of the accused were
violated.
                      A court which denies the accused of his
constitutional rights is ousted of its jurisdiction.  The
judgment of conviction pronounced by a court
without jurisdiction is void, and one imprisoned
thereunder may obtain release of habeas corpus.  Administrative Code" in Relation to Section 2692 of
 
            Notes on the case:  In this case, the accused
Chavez was compelled by the judge with the threat
of being held in contempt to take the witness stand,
in spite of his objection that he had the right to
remain silent and not to be a witness against
himself.  And so he took the witness stand and was
convicted by qualified theft.  He appealed but the
lawyer failed to file the appellant's brief and so the
appeal was dismissed, the judgment became final
and executory, and he served his sentence.  Years
later, Chavez went to the SC on habeas corpus,
contending that his convictioin was void because it
was rendered on the basis of evidence obtained in
the violation of his right against self- incrimination. 
The SC granted the petition and released him.
            Habeas Corpus, as shown by this case, is an
extraordinary post-conviction, mid-sentence,
remedy.  The petition for habeas corpus is such that
it inquires into all questions of illegal detention. 
When the judge compelled the accused to take the
witness stand, he was ousted of his jurisdiction and
all subsequent proceedings became void.  Ultimately,
the judgment of conviction and even the sentence
were likewise void, thus making the detention of
Chavez illegal, and thus actionable by habeas corpus.
                    The case also illustrates the difference
between the ordinary witness and the accused.  A
witness can be conmpelled to take the stand; he can
only object to the questions as they come, invoking
his right against self-incrimination.
                    But in the case of the accused, he cannot
even be made to take the witness stand, for the only
purpose of such is to incriminate him.
            Of course, the moment the accused agrees to
take the stand, he is deemed to have waived his
right, and must now thus submit himself to cross-
examination.
 
E.  Right to an impartial tribunal and trial of
civilians by military courts
 
Animas v. Minister of National Defense, 146 SCRA 406
(1986)
 
F:            This petition challenges the jurisdiction of
a military tribunal to try twelve accused persons,
only one of whom is in the military, for the offense
complexion and committed long before the
proclamation of martial law,
                The petitioners were charged with murder
in connection with the alleged killing of Yanson, a
political leader,during the November 11 elections.
                The accused were arrested almost a year
later, on September 21, 1972 after martial law was
proclaimed. It was only in 1974 that a "summary
preliminary investigation" was conducted by a PC
Service. The petitioners were recommended for
prosecution before the Military Tribunal, considering
that one of them, petitioner Sgt. Rodolfo Animas is a
military personnel. Thereafter, the Judge Advocate
General filed the corresponding charge sheet, but he
modified the crime charged from "Murder" to
" V i o l a t i o n o f S e c t i o n 8 7 8 o f t h e Re v i s e d
the same Code and Presidential Decree No. 9, " Illegal
Possession of Firearms with Murder."
                              On February 16, 1978, the Minister of
National Defense referred the case to the Military
Tribunal's Branch of the Judge Advocate General's
Office (JAGO) which in turn assigned the same to
respondent Military Commission No. 27.
 
Issue: Whether or not Military Commission No. 27 is
without jurisdiction over the criminal case
 
Ruling: The military court is without jurisdiction.
Constitutional Law II
            We apply the rule in Rolando A. de Guzman v.
Hon. Alejandro R. Leopando, et al, (G.R. No. 62798,
December 22, 1983 and March 13, 1984) where the
lone military personnel was ordered tried together
with 19 civilians accused before a civil court. It is
also clear from the records that the acts for which
Sgt. Animas was charged had nothing to do with the
performance of official duty.
                      The crime for which the petitioners were
charged was committed on November 10, 1971 long
before the proclamation of martial law. There was no
question about the case being prosecuted by civilian
fiscals and tried by civil courts at the time. Now that
it is already late 1986, and martial law is a thing of
the past, hopefully never more to return, there is no
more reason why a murder committed in 1971 should
still be retained, at this time, by a military tribunal.
 
Olaguer v. Military Commission No. 34, 150 SCRA
144
 
Military trial of civilians void even under Martial Law
if the civil courts are open
 
F:         Petitioners were found guilty of subversion by
the respondent military commission and sentenced to
death. They filed a petition for habeas corpus,
certiorari, prohibition and mandamus before the SC,
questioning the jurisdiction of the military tribunal.
 
HELD: In Aquino v. Military Commission (1975), the SC
held that "Martial law creates and exception to the
general rules of exclusive jurisdiction, and renders
offenses against the laws of war as well as those of a
civil character, triable by military tribunals.xxx" Due
process, however demands that in all criminal cases
prosecutions, the accused shall be entitled to, among
others, a trial. As explained by Justice Teehankee in
his dissenting opinion in Aquino v. Military Commission
supra: "Judicial power is vested by the Constitution
exclusively in the SC and insuch inferior courts as are
established by law. Judicial power exists only in the
courts which have the exlcusive power to hear and
determine those matters which affect the life or
liberty or property of a citizen." Since we are not an
enemy occupied territory and even on the premise
that martial continues in force, the military tribunals
cannot try and exercise jurisdiction over civilians for
civil offenses committed by them which are properly
cognizable by the civil courts.  anticipates questions to arise as to the availability of
            xxx
            "The presiding officer at a court martial is not
a judge whose objectivity and independence are
protected by tenure and undiminshed salary and
nurtured by the judicial tradition, but is a military
officer.  Substantially different rules of evidence and
procedure apply in military trials.  Apart from these
differences, the suggestion of the possibility of
influence on the actions of the court-martial by the
officer who convenes it, selects its members and the
counsel on both sides, and who usually has direct
command and authority over its members is a
pervasive one in military laws, despite strenuous
efforts to eliminate the danger.  VV.    G.  Bills of attainder--  Legislative adjudication of
 
Cruz v. Ponce-Enrile, 160 SCRA 702 (1988)
 
F:         Habeas corpus proceedings were commenced
in this Court on October 1, 1986  to test the legality
of the continued detention of some 217 so-called
"political detainees  arrested in the nine-year span of
official martial rule and committed to the New Bilibid
Prisons in Muntinlupa. All had been made to stand
trial for common crimes  before various courts
martial;  if any of these offenses had any political
color, this had neither been pleaded nor proved.
                Of the 217 prisoners, 157 are civilians, and
only 26 confirmed as military personnel.
 
Issue: Whether or not military courts have jurisdiction
over civilians
Ruling:  No
            As held in Olaguer:  A military jurisdiction or
tribunal cannot try and exercise jurisdiction, even
during the period of martial law, over civilians for
offenses allegedly committed by them as long as the
civil courts are open and functioning, and that any
judgment rendered by such body relating to a civilian
is null and void for lack of jurisdiction on the part of
the military tribunal concerned
                      The fact cannot be ignored, however, that
crimes appear to have been committed, and there
are accusations against herein petitioners for those
offenses. Olaguer cannot and does not operate to
absolve the petitioners of these charges, or establish
that the same are baseless, so as to entitle them to
immediate release from detention. It is not to be
forgotten that the victims in offenses ascribed to the
petitioners have as much interest as the State has to
prosecute the alleged authors of the misdeeds.
Justice will be better served if the detention of such
of the petitioners as are not hereby ordered released
or excepted, is continued until their cases are
transferred to the ordinary courts having jurisdiction,
and the necessary informations have been filed
against them therein, as has already been done in the
case of petitioners Imperial D. Usman and Samu
Gumal.  The State should be given a reasonable
period of time to accomplish this transfer, at which
time the petitioners may apply for bail for their
temporary release.
                      The Solicitor General not unreasonably
certain defenses to the petitioners upon their
prosecution before the civil courts. It seems evident,
however, that no breach of the constitutional
prohibition against twice putting an accused in
jeopardy of punishment for the same offense  would
result from the retrial of the petitioners" cases, for
the simple reason that the absence of jurisdiction of
the courts martial to try and convict the petitioners
prevented the first jeopardy from attaching.  Valid
previous proceedings are required in order that the
defense of double jeopardy can be raised by the
accused in the second prosecution. 
 
guilt
Constitutional Law II
Bill of Attainder
 
            A "bill of attainder" is a law which substitutes
the legislative determination of guilt for a judicial
determination.  Through a statute, the legislature
finds individuals or groups guilty, without the benefit
of being proven so in court.
 
            A bill of attainder is of two kinds:  (i) bill of
attainder proper (legislative imposition of the death
penalty) and (ii) bill of pains and penalties
(imposition of a lesser penalty).
            In People v. Ferrer, 48 SCRA 382 (1972), the
Anti-Subversion Law (RA 1700) which declared the
Communist Party of the Philippines a clear and
present danger to Philippine security, and thus
prohibited membership in such organization, was
contended to be a bill of attainder.  The SC, however,
dismissed the contention, holding that although the
law mentions the CPP in particular, its purpose is not
to define a crime but only to lay a basis or to justify
the legislative determination that membership in
such organization is a crime because of the clear and
present danger to national security.
 
People v. Ferrer, 48 SCRA 382 (1972)
 
F:                Posed in issue in these two cases is the
constitutionality of the Anti-Subversion Act, which
outlaws the Communist Party and other "subversive
associations", and punishes any person who
"knowingly,  willfully and by overt acts affiliates
himself, with, becomes or remains a member," of the
Party and of any other similar "subversive"
organization.
 
ISSUE: W/N this law is a bill of attainder. 
 
HELD:  NO
            A bill of attainder is a legislative act which
inflicts punishment without trial.  Its essence is the
substitution of a legislative for a judicial
determination of guilt.  The constitutional ban
against bill of attainder  serves to implement the
principle of separation of powers by confining
legislatures to rule-making and thereby forestalling
legislative usurpation of the judicial function.
                      When the Act is viewed  in its actual
operation, it will be seen that it does not specify the
Communist Party of the Phils (CPP) of the members
thereof for the purpose of punishment.  What it does
is simply to declare the Party to an organized
conspiracy  for the overthrow of the Government for
the purposes of the prohibition against membersip in
the outlawed organization.    The term "CPP" is used
solely for definition purposes.  In fact the Act applies
not only to the CPP but to "any other organizatuiion                      Thus, in Lozano v. Martinez, 146 SCRA 123
having the same purposes and their successors".  Its
focus is not on individuals but on conduct.
            Indeed, were the Anti-Subversion Act a bill of
attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more
would suffice to secure their punishement.  But the
undeniable fact is that their guilt still has to be
judicially established.  The Government has yet to
prove at the trial that the accused joined the Party
knowingly, willfully and by overt acts, and that they
joined with the specific intent to further its basic
objectives. 
 
H.  Right to a speedy disposition of cases
 
            Art. III, Sec. 16.  All persons shall have the
right  to a speedy disposition of their cases before
all judicial, quasi-judicial, or administrative
bodies. 
 
 
                      The right to a speedy disposition of cases
complements the right to a speedy trial.  After the
case has been submitted for decision, so that
technically the trial stage is terminated, the
Constitution mandates that the judicial, quasi-
judicial or administrative body or tribunal must
decide the case consistent with the right of the
accused to a speedy disposition of his case.
 
            To carry out this mandate, the Constitution in
several other places provides periods for deciding a
case:
            The Supreme Court has to decide cases within
24 months from the date of submission of the case for
decision which is the date of filing of the last
pleading [Art. VIII, Sec. 15 (1).]
III.  SUBSTANTIVE RIGHTS UNDER THE DUE PROCESS
CLAUSE
 
 
            A.  What acts cannot be criminalized
 
                        1.  Mere beliefs and aspirations
 
                      Art. III, Sec. 18.  (1)  No person shall be
detained solely by reason of his political beliefs and
aspirations.
 
                       
                        2.  Debts and civil obligations
 
                      Art. III. Sec. 20.  No person shall be
imprisoned for debt or non-payment of a poll tax.
 
 
                    What the law prohibits is imprisonment for
non-payment of a contractual obligation.
 
            When one is convicted of estafa and sent to
prison, the imprisonment is not for the non- payment
of debt but for the deceit or abuse of confidence
employed by the convict.
 
(1986), the SC again upheld Batas Blg. 22 (Bouncing
Checks Law) as not unconsitutional for being violative
of the rule against non- imprisonment for debt.  It is
true that under this law deceit is not necessary.  It is,
however, a valid exercise of the State of its power to
determine what acts constitute a crime.
 
Constitutional Law II
                    What the Consitution further prohibits is
imprisonment for  non-payment of poll tax, which is a
tax imposed on certain persons regardless of their
property or business.  The prohibition does not apply
to non-payment of property taxes and taxes on
privilege.
 
Lozano v. Martinez, 146 SCRA 323 (1986)
 
F:         BP 22 punishes any person "who makes
or draws and issues any check on account or
for value, knowing at the time of issue that he
does not have sufficient funds in or credit with
the drawee bank for the payment of said check
in full upon presentment, which check is
subsequently dishonored by the drawee bank
for insufficiency of funds xxx" Petitioners
challenged the constitutionality of BP 22 on the
following grounds: 1) It offends the
constitutional provision prohibiting
imprisonment for debt; 2) it impairs freedom
of contract; 3) it contravenes the equal
protection clause; 4) it unduly delegates
legislative and executive powers; and 5) its
enactment is flawed because the Interim
Batasan prohibited amendment of the bill on
3rd reading.
 
HELD:  The gravamen of the offense punished
in BP 22 is the act of making and issuing a
worthless check or a check that is dishonored
upon its presentation for payment. It is not the
non- payment of an obligation which the  law
punishes. The law punishes the act not as an
offense against property but as an offense
against public order. Recent statistics show
that one third of the entire money supply of
the country consists of currency in circulation.
These demand deposits in the banks constitute
the funds against which commercial papers are
drawn. The amount concerned justifies the
legitimate concern of the state in preserving
the integrity of the banking system.
 
3.  Acts which when done were innocent
 
            Art. III, Sec. 22.  No ex post facto law or
bill of attainder shall be enacted.
 
Ex Post Facto Law
                  An "ex post facto law" is a law that seeks to
punish an act which, when committed, was not yet a
crime or was not as heavily punished.  It is a law that
retroacts to the day of the act so as to cause
prejudice to the person performing the act.  Its
unfairness consists in the fact that the person could
not have known the act was criminal, and thus could
not have avoided the crime.  When a law is more
favorable to the accused, however, it is allowed to
retroact.
In re Kay Villegas Kami, Inc., 35 SCRA 428
F:         This petition for declaratory was filed by Kay
Villegas Kami Inc., claiming to be a duly  recognized
non-stock and non-profit corporation created under
the laws of the land, and praying for the
detremination of the validity of Sec. 8, RA 6132 and a
declaration of petitioner's right s and duties
thereunder. Petitioner claims that the challenged
provision constitutes an ex post facto law.
ISSUE:  W/N it is an ex post facto law.
 
HELD:  NO
            An ex post facto law is one which:
                      1.  Makes criminal an act done before the
passage of the law which was innocent when done,
and punishes such an act;
            2.  Aggravates a crime , or makes it greater
than it was, when committed;
                      3.  Changes the punishment and inflicts a
greater punishment than the law annexed to the
crime when committed;
                      4.  Alters the legal rules of evidence, and
authorizes conviction upon less or different testimony
than the law required at the time of the commission
of the offense;
                      5.  Assuming to regulate civil rights and
remedies only, in  effect imposes penalty or
deprivation of a right for something which when done
was lawful; and
            6.  Deprives a person accused of a crime of
some lawful protection to which he has become
entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty.
[Quoting Mekin v. Wolfe, 2 Phil. 74 (1902)] 
            This constitutional prohibition refers  only to
criminal laws which are given retroactive effect.
                      While it is true that Sec. 18 penalizes  a
violation of any provisin of  RA 6132 including Sec.
8(a)  thereof, the penalty is imposed only for acts
committed after the approval of the law and not
those perpetrated prior thereto.  There is nothing in
the law that remotely insinuates that its  provisions 
shall apply to acts carried out prior to its approval. 
 
 B.  What punishments cannot be imposed
 
                        1.  Involuntary servitude
 
                      Art. III, Sec. 18 (2)  No involuntary
sevitudes in any form shall exist, except as a
punishment for a crime whereof the party shall
have been convicted. 
 
                        2.  Excessive fines
 
            Art. III, Sec. 19.  (1)  Excessive fines shall
not be imposed. nor cruel, degrading or inhuman
punishment inflicted.  Neither shall the death
penalty be imposed, unless for compelling reasons
involving heinous crimes, the Congress hereafter
provides for it.  Any death penalty already imposed
shall be reduced to reclusion perpetua. 
 
3.  Cruel, degrading and inhuman punishments
            Art. III, Sec. 19.  (1)  Excessive fines shall
not be imposed. nor cruel, degrading or inhuman
Constitutional Law II
punishment inflicted.  Neither shall the death
penalty be imposed, unless for compelling reasons
involving heinous crimes, the Congress hereafter
provides for it.  Any death penalty already imposed
shall be reduced to reclusion perpetua.  of Art. III, sec. 19 which provides that "Neither shall
            Id., Sec. 12.  xxx
                      (2)  No torture, force, violence, threat,
intimidation, or any other means which vitiate the
free will shall be used against him.  Secret
detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
           
 
            Assuming that judgment has been rendered
and the accused has been convicted the Constitution
now further prescribes certain standards as to the
punishment that can be meted out.  After all, due
process prohibits barbaric and disproportionate
penalties.
            The employment of physical, psychological or
degrading punishment against any prisoner or
detainee, or the use of substandard or inadequate
penal facilities under subhuman conditions, shall be
dealt with by law.  [Art. III, Sec. 19 (2).]
 
                    In 1935, the prohibition was against "cruel
and unusual"  penalty, in 1973; it was against "cruel or
unusual " penalty; in 1987, the prohibition is against
"cruel, degrading or inhuman" punishment.  The
purpose in changing the phraseology is to allow for
experimentation, and not to fix the concept of what
is cruel to the standards of the present civilization,
or those of antiquity.  This notion is supposed to
expand and grow, so that what today is considered as
acceptable may in the next generation be deemed as
cruel penalty.
 
            Whether the cruelty of a punishment depends
on its form or whether it depends on its severity has
been ambivalently answered by the SC:
 
            In People v. dela Cruz, 92 Phil. 900 (1953) the
SC ruled that it was the form of punishment as fixed
in antiquity (pillory desembowelment, etc.) and not
its severity, that constituted "cruel and unusual"
penalty under the 1935 Constitution.  Thus a
disproportionate penalty (10 years imprisonment for
theft) is not cruel or unusual because it is only a
matter of severity of an acceptable form of
punishment (imprisonment).
 
            The SC spoke in a different way in People v.
Borja  91 SCRA 340 (1979), Borja was sentenced and
he served at the national penitentiary for 20 years
before the case came to the SC.  The Court said that
Borja had been living in the shadow of death.  who actually hacked the victim.  From her version,
Although the sentence was initially valid, it had
become cruel by the lapse of time.  And yet, this was
a form of penalty that was neither cruel nor unusual.
 
 
People v. Munoz, 170 SCRA 107 (1989)
 
F:         The accused are four of the 11 bodyguards of
a mayor who killed three persons on suspicion that
they were cattle rustlers. They were found guilty of
murder. Three appealed to the SC which found them
equally liable for the killing. The penalty for murder
under the RPC is reclusion temporal to death. The
question concerns the penalty to be imposed in view
the death penalty be imposed, unless for compelling
reasons involving heinous crimes, Congress provides
for it. Any death penalty already imposed shall be
reduced to reclusion perpetua."
 
HELD:  Art. III, section 19 does not change the periods
of the penalty prescribed by Art. 248 of the RPC
except insofar as it prohibits the imposition of the
death penalty adn reduces it to reclusion perpetua.
The range of medium and minimum penalties remain
the same. VV.
 
 
People v. Lubreo, 200 SCRA 11 (1991)
F:         A complaint for homicide was filed with MTC
of Del Carmen, Surigao del Norte, charging Remelito
Lubreo along with crime of Homicide in connection
with the killing of Mamerto Sanico.  Judge Gorgolon
of said court conducted both the preliminary
investigation and preliminary examination.
Thereafter, he forwarded  the records of the case to
the Office of Provincial Fiscal.  The fiscal conducted
his own PI and on the basis thereof, he filed an
information for murder not only against remelito but
also against Lucresio Lubreo. Trial Court find them
guilty of the crime charged.
 
ISSUE:  W/N the constituional presumption of
innocence in favor of Lucrecio has been overturned
by the prosecution 
 
HELD:  NO. 
                      An accused is presumed innocent until the
contrary is proved.  The burden of proof is upon the
prosecution  and until such burden is sufficiently
discharged , the accused continues to enjoy the
presumption of innocence.  In the instant case, the
lower court convicted  Lucrecio on the basis of its
conclusion that he was positively identified by
witnesses Nenita Monter and Epifanio Pangatungan as
one of the assailants, and that therefore, his defense
of alibi  would not prosper. Unfortunately, the
testimonies of the abovementioned witnesses did not
categorically stated or proved that Lucrecio took part
in hacking the victim. 
                      Though Monter categorically stated  in her
direct examination that she saw the accused Lucresio
hacking the victim, in the "re-enactmment", she
however candidly informed the court Lucresio was
just standing by and she could not remmenber as to
the participation of Lucrecio is at one enveloped
inserious doubt.  It is worse in the case of
Pangatungan.  While he stated that "Lucrecio abetted
in hacking as if they will come one after the other in 
hacking his mind (sic) and the neck", he never
elaborated as to what "abetted in hacking " means. 
He could not even specify the part of the body  of
Mamerto which was hit by Lucrecio. 
                      There is evidently insufficient evidence to
show the actual participation of Lucresio in teh
Constitutional Law II
crime.  There being no evidence of conspiracy, he
cannot be held for the acts of his co- appellant.  the SC allowed the amnedment of the information
 
4 .  S e c r e t d e t e n t i o n p l a c e s , s o l i t a r y,
incommunicado and other forms of detention and
the use of substandard or inadequate penal
facilities
 
 
            Art. III, Sec. 12.  xxx
                      (2)  No torture, force, violence, threat,
intimidation, or any other means which vitiate the
free will shall be used against him.  Secret
detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
 
            Id., Sec. 19.  xxx
                      (2)  The employment of physical,
psychological, or degrading punishment against any
prisoner or detainee or the use of substandard or
inadequate penal facilities under subhuman
conditions shall be dealt with by law.      
 
5.  Indefinite Imprisonments
 
People v. Dacuycuy, 173 SCRA 90 (1989), supra.
 
C.  The protection against double jeopardy
 
            Art. III, Sec. 21.  No person shall be twice
put in jeopardy of punishment for the same
offense.  If an act is punished by a law and an
ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for
the same act.
 
 
Elements of double jeopardy, (Rule 117, Sec 7; People
v. Obsania, 23 SCRA 249 (1968):
 
            (1)  Court of competent jurisdiction;
            (2)  A Complaint or Information sufficient in
form and substance to sustain a conviction;
            (3)  Arraignment and plea  by the Accused;
            (4)  Conviction, acquittal, or dismissal of the
c a s e w i t h o u t t h e e x p r e s s c o n s e n t , o f t h e   punished by an ordinance, flowed from the same
accused.
 
Subsequent prosecution is barred for the following:
 
            (1)  Same offense
            (2)  Attempt of the same offense
            (3)  Frustration of the same offense
                    (4) Offense necessarily included in the 1st
offense (All the elements of the 2nd          constitute
some of the elements of the 1st offense)
            (5) Offense that necessarily includes the 1st
offense (All the elements of the 1st          constitute
some of the elements of the 2nd offense)
 
Exceptions to no. 5:
 
                    (1)  The graver offense developed die to
"supervening facts" arising from the same act or
omission constituting the former charged.
 
            Thus, in Melo v. People, 85 Phils. 766 (1950),
from its original cahrge of frustrated homicide,
because after the filing of the information, the victim
died.
 
            (2)  The facts constituting the graver charge
became known or were discovered only after the
filing of the former complaint or information.
 
            This overrules People v. Yorac, where the SC
disallowed the amendment of the information from
slight physical injuries to frustrated murder after the
prosecution subjected the victim to another medical
examination and found a wound, that it was the fault
of the prosecution if they had an incompetent
medical examination.
 
            (3)  The plea of guilty to the lesser offense
was made without the consent of the fiscal and the
offended party.
 
Identity of offenses and identity of act
 
            When an act gives rise to two or more offense
which are punished by the same authority, and an
individual is convicted, acquitted, or the case
dismissed without his consent, of one of these
offense (Crime A), there is no double jeopardy if he is
charged of another offfense (Crime B) flowing from
the same act.  Double jeopardy arises only when he is
again charged of that same offense (Crime A).  Thus,
this is called double jeopardy by "identity of
offenses".
 
                    But when an act which give rise to two or
more offenses is punished by two different
authorities (a law and an ordinance), then if an
individual is convicted, acquitted, or the case
dismissed without his consent, of any of these
offenses punished by one authority (Crime A by law),
even if he is charged of another offense which is
punished by the other auhtority (Crime B by
ordinance), there is double jeopardy, because both
offenses, one punished by a law and the other
act.  Thus, this is called double jeopardy by "identity
of act."
 
                    Sum:  If only a law in involved, there is
double jeopardy only when there is an identity of
offenses.  But is a law and an ordinance are involved,
there is double jeopardy when there is an identity of
act.
 
Identity of Offenses:
 
            If a married  man maintains as concubine a
married woman not his wife, the man is guilty of both
concubinage and adultery.  From the same act
(cohabiting with the married woman), two offenses
arise.  And yet he can be prosecuted for both
because, the two offenses coming from the same
authority, there is no identity of offenses.
 
Identity of Act:
Constitutional Law II
            People v. Relova, 48 SCRA 292 (1987), Relova
was prosecuted under an ordinance of Batangas City
for the use of wiring to tap electricity without
permission from the local authorities, but the case
was dismissed because the crime has prescribed.  So
the fiscal filed a case for theft of electricity under
the RPC.  The SC ruled there was double jeopardy
already, and so the second case could no longer be
filed.  For although the offenses were different, both
flowed from the same act.  And in this case, the act
was punished by a law and an ordinance.
 
Loss of Jurisdiction:  No double jeopardy
 
            If the court has no jurisdiction, or was ousted
of its jurisdiction beccause it violated the right to
due process of the parties, the decision is null and
void, the accused may again be charged.
 
            In People v. Bocar, 138 SCRA 166 (1985), the
SC, held that the move by the trial court of
summarily dismissing a criminal case for theft on the
ground that it merely involved a question of
ownership deprived the prosecution of due process by
denying it the chance to introduce its evidence.  This
ousted the court of its juridsiction.
                    In Galman v. Sandiganbayan, 144 SCRA 43
(1986), the SC declared the criminal prosecution of
the 26 accused in the Aquino-Galman double murder
case a "mistrial" after the SC commission found that
the Sandiganbayan justices and the Tanodbayan
prosecutors had been summoned by the President and
instructed on how to conduct the trial.  Due process
is a right not only of the accused but also of the
State.  Once the court deprives either party, which in
this case is the State, of a fighting chance, then it is
ousted from its jurisdiction, and double jeopardy
would not apply.  Thus, the accused were ordered
retried.
 
1.  Two situations contemplated
 
People v. Relova 148 SCRA 292 (1987)
 
F:         Manuel Opulencia was charged wiht violation
of Ordinance No. 1 series of 1974 of Batangas City
prohibiting the installation of electric wiring devices
without authority from the city government. He
admitted installing the electric wiring devices found
by the police in order to decrease the readings of
electric current. The case was however dismissed on
the ground that the offense had prescribed. Fourteen
days later, the City Fiscal filed another case for theft
against him. The court also dismissed this case on the
ground of double jeopardy. The prosecution appealed
contending the offense was different.
 
HELD:  The contention has no merit. The first
sentence of Art. III, sec. 21 states the general rule:
the constitutional protection against double jeopardy
is not available where the second prosecution is for
an offense that is different from the offense charged
in the first or prior prosecution, although both may
be based from the same facts. The second sentence
provides an exception: that the protection against
double jeopardy is available although the prior
offense charged under an ordinance be different from
the offense charged subsequently under the national
statute such as the RPC provided that both offenses
spring from the same act or set of acts.  VV.
 
 
People v. City Court of Manila, Branch VI, 154 SCRA
175 (1987)
 
F:                Agapito Gonzales, together with Roberto
Pangilinan, was accused of violating Sec.7, in relation
to Sec. 11 RA 3060 and Art. 201(3) of the RPC, in two
separate informations filed with  the City Court of
Manila.  Upon arraignment, accused Gonzales
pleaded not guilty to both charges.  The other
accused, Pangilinan, was not arraigned as he is still at
large.  Gonzales filed a motion to quash the
informations in the 2 cases on the ground that said
informations did not charge an offense.  Motion
denied.  Later, he again moved to quash the
information in one of the Criminal case on the ground
of duble jeopardy, as there was according to him,
also pending aginst him another criminal case, where
the informatin allegedly contain the same allegations
as the information in the first criminal case.  Court
granted the motion.
ISSUE:  W/N there is double jeopardy.
 
HELD:  NO
            It is a settled rule that to raise the defense of
double jeopardy, 3 requisites must be present:  (1) a
first jeopardy must have attached prior to the
second; (2) the first jeopardy must have been validly
terminated; and (3) the second jeopardy must be for
teh same offense, or the second offense includes or is
necessarily included in the offense charged in the
first information, or is an attempt to commit the
same or a frustration thereof.  All these requisites do
not exist in this case,
                      The 2 informations with which the accused
was charged , do not make only one offense, contrary
to private repondent's allegation.  In other words, the
offense defined in  Sec. 7 of the RA 3060 punishing
the exhibition  of motion pictures not duly passed by
the Board of Censors for Motion Pictures does not
include or is not included inthe offense  defined in
Art 201 (3) of the RPC punishing the exhibition of
indecent and immoral motin pictures. 
                      The elements of the 2 offenses are
different.    The gravamen  of the offense defined in
RA 3060 is the public exhibition of any motion
pictures which has not been previously passed by the
Board of Censors for Motion Pictures.  The motion
picture may be indecent or immoral but if it has not
been previously approved by the Board, its public
showing constitutes a crimnal offense.  On the other
hand, the offense punished in Art 201(3) of the RPC is
the public showing os indecent or immoral plays,
scenes, acts, or shows, not just motion pictures. 
            The nature of both offenses also differs.  The
crime punished in RA 3060 is malum prohibitum in wh
criminal intent need not ber proved because it is
presumed, while the offense punished in Art. 201(3)
of the RPC is malum in se, which criminal intent is an
indispensable ingredient.  Suzette.
 
Constitutional Law II
 
2.  Rules of Court provisions
 
                      Rule 117, Sec. 7.  Former conviction of
acquittal; double jeopardy.--  When an accused
has been convicted or acquitted, or the case
against him dismissed or otherwise terminated
without his express consent by a court of
compentent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in
form and substance to sustain a conviction and
after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof,
or for any offense which necessarily includes or is
necessarily included in the offense in the former
complaint of information.
                      However, the conviction of the accused
shall not be a bar to another prosecution for an
offense which necessarily includes the offense
charged in the former complaint or information
under any of the following instances:
                      (a)  the graver offense developed due to
supervening facts arising from the same act or
omission consituting the former charge;
            (b)  the facts constituting the graver charge
became known or were discovered only after the
filing of the former complaint or information; or
            (c)  the plea of guilty to the lesser offense
was made without the consent of the fiscal and of
the offended party.
                      In any of the foregoing cases, where the
accused satisfied or serves in whole or in part the
judgement, he shall be credited with the same in
the event of conviction for the graver offense.
 
 
Melo v. People, 85 P 776 (1950)
 
F:                Conrado Melo was charged in the CFI, Rizal  serious physical injuries thru reckless imprudence and
with frustrated homicide , for having allegedly
inflicted upon Obillo, with a kitchen knife and with
intent to kill, several serious wounds on different
parts of the body, requiring medical attendance for a
period of more than 30 days, and incapacitating him
from performing his habitual labor for the same
period of time.  On Dec. 29, 1949, at 8 am, accused
pleaded not guilty to the offense chargde.  At 10:15
am of the same day, Obillo died from his wounds.  An
amended information was filed charging accused with
consummated homicide.  Accused filed  a motion to
quash the amended information alleging double
jeopardy.  Motion denied.
 
ISSUE: W/N there is double jeopardy.  convicted for an offense that was inexistent.
 
HELD:  NO
            Double jeopardy means that when  a person
is charged with an offense and the case is terminated
either by acquittal or conviction or in any other
manner without the consent of the accused, the
latter cannot again be charged with the same or
identical offense.  The phrase "the same offense" has
always been construed to mean not only that the
second offense charged is exactly the same as the
one alleged in the first information, but also that the
two offenses are identical.  There is identity between
the two offenses when the evidence to support a
conviction for one offense would be sufficient to
warrant a conviction for the other. 
            This rule of identity however does not apply,
however, when the second offense was not in
existence at the time of the first prosecution, for the
simple reason that  in such case there is no possibility
for the accused, during the first prosecution, to be
convicted for an offense that was then inesistent. 
Thus, where the accused was charged with physical
injuries and after conviction the accused dies, the 
charge for homicide against the same accused does
not put him twice in jeopardy.
                      Accordingly, an offense may be said to
necessarily include or to be necessarily included in
another offense, for the purpose of detremining the
existence of double jeopardy, when both offenses
were in existence during the pendency of the first
prosecution, for otherwise, if the second offense was
then inexistent, no jeopardy could attach therefor
during the first prosecution, and consequently a
subsequent charge for the same cannot constitute a
second jeopardy.  Suzette.
 
 
People v. City Court of Manila, Branch XI, 121 SCRA
637 (1983)
 
F:         This is a petition to review the order of the
City Court of Manila Branch XI, dismissing the
information for homicide thru reckless imprudence
filed against Gapay, in a criminal case on the ground
of double jeopardy.  Respondent court  held that the
accused having been previously tried and convicted
of serious physical injuries  thru reckless imprudence
for the resulting death of the victim would place the
accused in double jeopardy.
 
ISSUE:  W/N a person who has been prosecuted for
convicted thereof may be prosecuted subsequently
for homicide thru reckless imprudence if the
offended party dies as a result of the same injuries. 
 
HELD:  YES
                      Well settled is the rule that one who has
been charged with an offense cannot be charged
again with the same or identical offense though the
latter be lesser or greater than the former.  However
as held in the  MELO case, the rule of identity does
not apply when the second offense was not in
existence at the time of teh first prosecution , for
the reason that in such case there is no possibility for
the accused during the first prosecution, to be
            The victim Diolito de la Cruz died on the day
the information was filed , and the accused was
arraigned 2 days after or on October 20, 1972 .  When
the information for homicide thru reckless
imprudence was, therefore, filed on October 24,
1972, the accused was already in doubly jeopardy. 
Suzette.
 
 
People v. Yorac, 42 SCRA 230 (1971)
Constitutional Law II
 
F:                Accused Yorac was charged with slight
physical injuries before the City Court of Bacolod, the
offended party being Lam
Hock who, according to the medical cerificate issued
by Dr. Rogelio Zulueta, was confined since April 8
1968 up to the present time for head  injury in
Occidental Negros Provincial Hspital.  Accused
pleaded guilty on April 16, 1968  resulting in his being
penalized  to suffer 10 days for arresto menor.  On
April 18, 1968, the provincial fiscal filed an
information charging the same defendant with  very same violation of municipal ordinance charged in
frustrated murder arising from the same act  against
the aforesaid victim Lam Hock for upon further
diagnosis, the healing period for the injuries caused
to accused was found to be longer.    A motion to
quash was filed by the accused  on the ground of
double jeopardy. 
 
ISSUE:  W/N the defendant, who had already been
convicted of slight physical injuries for injuries
inflicted on Lam Hock , and had served sentence
therefor, may be prosecuted anew for frustrated
murder for the same act committed against the same
person   of the petitioners and the sovereign people of the
 
HELD:  NO.
                      In order not to violate the constitutional
prohibition on double jeopardy, there is the
indispensable requirement of the existence of a new
fact which supervenes for which the defendant is
responsible changing the character of the crime
imputed to him and together with the facts existing
previously constituting a new and distinct offense.
                      In this case, there is no supervening fact
which occurred to justify the non-existence of double
jeopardy.  The wound causing the delay in the healing
of the injuries caused to the victim  was already in
existence at the time of the first examination of the
doctor.  Said delay was caused by the very superficial
and inconclusive examination then made resulting to
a later finding of fracture.    Suzette.
 
Barlongay:  When defense of double jeopardy
available.--  (1)  Dismissal based on isufficiency of
evidence;  (2)  dismissal bec. of denial of accused's
right  to speedy trial; (3)  accused is discharged to be
a state witness.
 
When defense of double jeopardy not available.--  The criminal collusion as to the handling and
When the case is dismissed other than on the merits
upon motion of the accused personally, or through
counsel, such dismissal is regarded as w/ express
consent of the accused, who is therefore deemed to
have waived the right to plea double jeopardy.
Yap v. Lutero, April 30, 1959
 
F:               Yap was charged with reckless driving in
violation of a city ordinance. Later he was charged
again in another criminal case in the same court with
serious physical injuries through reckless imprudence.
Yap moved to quash the latter information.
Meanwhile, petitioner was acquitted in the first case.
 
ISSUE: W/N there was double jeopardy.
 
RULING: YES. From the viewpoint of Criminal Law, as
distinguished from Constitutional or Political Law -
the offenses with which petitioner was charged
constitute, strictly different offenses, although,
under certain conditions, one offense may include
the other, and accordingly, once placed in jeopardy
for one, the plea of double jeopardy may be in order
as regards the other.
            Thus, if the injuries mentioned in the second
information were not established by the evidence,
petitioner could be convicted in the first case of the
the first case, unless he pleaded double jeopardy. 
Charo.
 
 
Galman v. Sandiganbayan, 144 SCRA 43
 
F:         The petitioners filed an action to nullify the
proceedings on the trial of the Aquino-Galman duble
murder case alleging that respondents Tanodbayan
and Sandiganbayan committed serious irregularities
constituting mistrial and resulting in miscarriage of
justice and gross violation of the constitutional rights
Philippines to due process of law. The SC dismissed.
Meanwhile, the Sandiganbayan rendered its decision
acquitting all the accused of the crime charged.
Respondents submitted that in view of the SB
decision, the case has become moot and academic. 
Petitioners filed a motion for reconsideration of the
SC ruling. The SC created the Vasquez Commisssion to
look into petitioners' allegations.
 
RULING: The report of the Commission revealed that
Pres. Marcos used the overwhelming resources of the
Government and his authoritarian powers to corrupt
and make a mockery of the judicial process in this
case. The unwholly scenario for the acquittal of the
accused after the rigged trial would accomplish the
two principal objectives of satisfying the public
clamor for the suspected killers to be charged in
court and of giviing them, through their acquittal,
the legal shield of double jepardy.
                    However, double jeopardy does not attach
where a criminal trial was a sham. A dictated,
coerced and scripted verdict of acquittal such as in
this case is a void judgment. In legal contemplation,
it is no judgment. It neither binds nor bars anyone.
treatment of the cases by public respondents
completely disqualified them and voided ab initio the
SB verdict. DJ cannot be invoked where the
prosecution, which represents the sovereign people
in crimnal cases is denied due process. 
 
People v. Obsania, 23 SCRA 249
 
F:               The  information filed by the fiscal alleged
that through violence and intimidation, Obsania had
carnal knowledge of one  Erlinda Dollente against the
latter's will. Later, the fiscal amended the complaint
to allege therein that the offense was committed
with lewd designs. The accused after pleading not
guilty moved for the dismissal of the case on the
ground that the first information was fatally
Constitutional Law II
defective for failing to allege "lewd desiigns," and
that the amended information did not cure the
jurisdictional infirmity. The motion of the defense
was sustained by the judge. Hence this appeal by the
fiscal.
RULING: The failure of the prosecution to allege
"lewd designs" in the first information does not affect
the sufficiency in substance of the information,  for
unchaste motives are deemed inherent in the very
act of rape itself. In any case, the lower court erred
in dismissing the case by failing to distinguish
between the concept of jurisdiction and insufficiency
in substance of an indictment.
                    As to the question of double jeopardy, the
following requisites must have been obtained to
invoke the constitutional protection against it:
            (1) a valid complaint or information;
            (2) a court of competent jurisdiction;
            (3) the defendant had pleaded to the charge;
and
                      (4) the defendant was acquitted, or
convicted, or the case against him was dismissed or
otherwise terminated without his express consent.
 
            The only remaining and decisive issue in this
case seems to be as to whether or not the case was
dismissed without the prior consent of the accused.
            The SC ruled that as a general rule, when the
case is dismissed, other than on the merits, upon
motion of the accused, such dismissal is to be
ragarded as with the express consent of the accused
and consequently he is deemed to have waived his
right to plead double jeopardy and/or he is estopped
from claiming such defense on appeal by the
Government or in another indictment for the same
offense.
            The exception to this is where the dismissal is
sought by the accused on the ground that they were
denied their right to a speedy trial and that the
government failed to prosecute; in which case double
jeopardy will set in. The case of herein accused falls
under the general rule.              Habeas corpus is available not only for those
 
D.  The privilege of the writ of habeas corpus
 
            Art.  III, Sec. 15.  The privilege of the writ
of habeas corpus shall not be suspended except in
cases of invasion or rebellion, when the public
safety requires it.  interviewed by media, and had to report to the
 
                    In case of invasion or rebellion, when the
public safety requires it, the President may, for a
period not exceeding 60 days, suspend the privilege
of the writ of habeas corpus...
                    The suspension of the privilege of the writ
shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly
connected with invasion.
 
            During the suspension of the privilege of the
writ, any person thus arrested or detained shall be
judicially charged within 3 days, otherwise he shall
be released.  (Art. VII, Sec. 18.)
            A "writ of heabeas corpus" is a writ directed
to the person detaining another, commanding him to
produce the body of the detainee at a designated
time and place, and to show cause why he should
continue to be detained.
            The "privilege of the writ" is the right to have
the immediate determination of the legality of the
deprivation of physical liberty.
 
            What is suspended is the privilege of the writ,
and not the writ itself.  The writ will always issue as
a matter of course.  But when the privilege of the
writ is suspended, all the detaining office needs to do
when he receives the writ of habeas corpus is to show
to the court that the detainee is being detained for
an offense covered by the suspension, and the court
cannot inquire any further to find out if the detention
is legal.  Under the Conmstitution, this is so only for 3
days.  After 3 days, the Court can now require the
detaining officer to produce the body of the
detainees and show cause why he should not be
released.
 
                    The suspension of the privilege of the writ
applied only to crimes related to invasion or
rebellion.  An extensive discussion was made under
the Commander-in- Chief clause of the President,
supra.  This rest of the section will be confined to
habeas corpus as a remedy in all other offenses.
 
                    In general as already noted above, the
privilege of the writ is an extraordinary remedy to
question the illegality of the arrest or detention, or
any other restraint to liberty.  When all else is lost, it
is the last recourse to get someone out of his illegal
detention.
1.  Functions of the writ
 
Villavicencio v. Lukban, 39 P 778 (1919)
who are in actual detention but even for those whose
liberty is merely restrained.  Thus, in Moncupa v.
Enrile, 141 SCRA 233 (1986), the SC granted habeas
corpus to petitioner who, though temporarily
released, could not travel outside Metro Manila,
could not change his residence, could not be
military.
 
2.  The writ of habeas corpus as a post-conviction
remedy
 
            In Chavez v. Court of Appeals, supra, habeas
corpus was the remedy of one whose confinement
was the result of a void judgnment of conviction
arrived at after the judge violated due process by
compelling him to take the stand and testify against
himself.
 
Chavez v. Court of Appeals, 24 SCRA 633 (1986),
supra.
Constitutional Law II
 
            In Gumabon v. Director of Prison, 37 SCRA 420
(1971), some persons who were charged with the
complex crime of rebellion with homicide, rape, or
other common crimes, did not appeal their conviction
and so were sentenced accordingly.  The other
accused, however, appealed their conviction,
resulting in a new ruling in People v. Hernandez to
the effect that there can be no complex crim of
rebellion with homicide, rape, etc., for these
common crimes are absorbed by rebellion.  As a
result, while those who appealed were now free,
those  who did not remained in jail.  The SC ruled
that those who conrtinued to languish in jail could
avail of habeas corpus to question the legality of
their continued detention pursuant to the ruling in
People v. Hernandez.
 
3.  Suspension of the privilege
 
            Art. VII, Sec. 18.
 Lansang v. Garcia, 42 SCRA 488 (1971)    speak their minds out and compete in the free
 
 E.  Affirmative rights
 
1.  Free access to the courts
 
            Art. III, Sec. 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.
2.  Protection and enforcement of constitutional
rights
 
            Art. III, Sec. 12.  xxx
                      (4)  The law shall provide for penal and
civil sanctionsfor violations of this section as well
as compensation to and rehabilitation of victims of
torture or similar practices, and their families.
 
3.  Compensation to, and rehabilitation of, victims of
tortures
 
            Art. III, Sec. 12.  xxx
                      (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.
 
IV.  FREEDOM OF EXPRESSION
 
 
                      Art. III, Sec. 4.  No law shall be passed
abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably
to assemble and petition the Government for
redress of grievance. 
 
                      Id., Sec. 18.  (1)  No person shall be
detained solely by reason of  his political beliefs
and aspirations.
            xxx
 
A.  Philosophical Basis of Guarantees
 
Free Market Place of Ideas
 
1.  For the discovery of political truth
 
            When men have realized that time has upset
many fighting faiths, they may come to believe even
more than they believe the very foundations of their
own conduct that the ultimate good desired is better
reached by free trade in ideas-- that the best test of
truth is the power of the thought to get itself
accepted in the competition of the market, and the
truth is the only ground upon which their wishes
safely can be carried out.   (Justice Holmes,  Abrams
v. United States, 250 U.S. 616.  (1919)
 
            The theory behind freedom of expression is
the principle that ours is a democratic society, and so
the only way to rule ultimately is by, means of public
opinion, which is possible only when everyone can
market place of ideas.
 
2.  For self government
 
United States v. Bustos, 37 P 731 (1918)
 
 
Burgos v. Chief of Staff, 133 SCRA 800 (1984),
supra
HELD:  As a consequence of the search and seizure,
the premises of the "Metropolitan Mail" and "We
Forum" were padlocked and sealed, with the further
result that the printing and publication of said
newspapers were discontinued. Such closure is in the
nature of previous restraint or censorship abhorrent
to the freedom of the press guaranteed under the
fundamental law and constitutes a virtual denial of
petitioner's freedom to express themselves in print.
This state of being is patenly anathematic to a
democratic framework where a free, alert and even
militant press is essential for the political
enlightenment and growth of the citizenry. 
 
New York Times v. Sullivan, 380 US 51 (1964)
 
  3.  For individual protection
B.  Prior Restraints
                    Thus any system of prior restraints of 
expression comes to the Court bearing a heavy
presumption against its constitutionality, giving the
government a heavy burden to show justification for
the imposition of such restraint.  (New York v. United
States (1971); also in New York Times v. Pentagon and
Bantam Books v. Publication of Pentagon Papers).
 
 
Sanidad v. COMELEC, 181 SCRA 529 (1990)
 
Subsequent Punishment
 
            And even subsequent punishment is tempered
by the greater interest of promoting free public
Constitutional Law II
opinion.  The most significant expression is the law
on libel.
 
            We consider this case against the background
of a profound national commitment to debate on
public issues being uninhibited, robust and wide-
open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on
government and public officials.  The falsity of some
of the factual statements and alleged defamations do
not qualify the role.  And just as factual error
afforded no warrant for repressing speech that would
otherwise be free, the same is true of injury to
official reputation.  (New York Times v. Sullivan, 380
U.S. 51 (1964)
 
            The interest of society and good government
demands a full discussion of public affairs.  Whether
the law is wisely or badly enforced is a fit subject for
proper comment.  Public policy, welfare of society,
and the orderly administration of government have
demanded protection for public opinion.  The
inevitable and incontestable result has been the
development and adoption of the doctrine of
privilege.  [Justice Malcom, United States v. Bustos,
731 (1918).]
 
                    While, uncer the Revised Penal Code, any
defamatory statement is presumed to be malicious
(malice-in-law), when the defense proves that the
communication is privileged, such a presumption of
malice does not arise because of the greater public
interest involved.
 
            If the communication is absolutely privileged
(as in parliamentary freedom of speech), the
prosecution cannot even prove malice-in-fact.
 
                    If the communication is only qualifiedly
privileged (Art. 354 enumerates the 2 instances:  fair
and true reporting of an official proceeding; legal
moral or social duty), the burden is shifted on the
prosecution to prove malice-in-fact, which the
defense can overcome by proving the truth of the
defamatory statement (which in the case of public
officials may or may not constitute a crime, so long
as related to the conduct of his office) and good
motive.
 
            C.  Content-Based Restrictions
 
                    1.  Test of validity of content-based
restrictions
 
            The U.S. Supreme Court and, by haphazard
imitation, the Philippine Supreme Court, have
evolved certain tests to regulate the contents of
speech.
 
                    Dangerous Tendency Test:  When the
legislative body has determined generally, in the
exercise of its discretion, that utterances of a certain
kind involve such danger of a substantive evil that
they may be punished, the question whether any
specific utterance coming within the prohibited class
is likely, in and itself, to bring the substantive evils,
is not open to consideration.  In such cases, the
general provision of the statute may be
constitutionally applied to the specific utterance if
its natural and probable effect was to bring about the
substantive evil which the legislative body might
prohibit.  [Gitlow v. New York, 268 US 652 (1925).]
 
                    Example:  Art. 142.  Inciting to sedition. 
When the legislature has decided that one who
advocates a certain conduct is guilty of a crime, the
court cannot intrude.  As it evolved, this test was
supposed to apply when there is a statute, in contrast
to the clear and present danger rule which applies
when the speech is not prohibited by statute.
 
            Clear and Present Danger Test:  The question
in every case is whether the words used are used in
such circumstances and are of such a nature as to
create a clear and present danger that they will bring
about the substantive evils that Congress has a right
to prevent.  It is a question of proximity and degree. 
[Schenck v. United States, 249 US 47 (1919).]
 
            The emphasis of the test is the nature of the
circumstances under which it is uttered.  The speech
itself may not be dangerous.  As Holmes said:  "Many
things that might be said in time of peace are such a
hindrance to its effort that their utterance will not
be endured so long as men fight."  Or saying "Fire" in
a crowded movie house.
 
            Grave-but-improbable danger:  Whether the
gravity of the evil, discounted by its improbability,
justifies such an invasion of free speech as is
necessary to avoid the danger. [Dennis v. United
States, 341 US 494 (1951), quoting Judge Learned
Hand.]
 
            This test was meant to supplant the clear and
present danger.  They both emphasize the
circumstances of the speech, but this latter test
consider the weighing of values.
 
                    Direct Incitement Test:  The consitutional
guarantees of free speech and press do not permit a
State to forbid or proscribe advocacy of the use of
force or of law violation, except where such advocacy
or peech is directed to inciting or producing
imminent lawless action, and is likely to incite or
produce such action.  [Brandenburg v. Ohio, 395 U.S.
444 (1969), cited in Salonga v. Cruz Pano, 134 SCRA
438 (1985).]
 
            The test emphasizes the very words uttered: 
(a)  What words did he utter?  (b)  What is the likely
result of such utterance?  It criticizes the clear and
present danger test for being top dependent on the
circumstances.  Speaker may, when tested show no
incitement but you know the speaker is inciting to
sedition.
 
            Balancing of Interest Test:  The court must
undertake the delicate and difficult task of weighing
the circumstances and appraising the substantiality of
the reasons advanced in support of the regulation of
the free enjoyment of rights.  [American
Communication Ass'n v. Douds, 339 US 383 cited in
Gonzales v. COMELEC, 27 SCRA 835 (1969A)]
Constitutional Law II
 
            The test applied when two legitimate values
not involving national secuirty crimes compete. 
Involves an appoint of the competing interest. 
(Gonzales v. Comelec)
 
            In Aver v. Capulong and Enrile, for instance, it
is a question of balancing the freedom of expression
of the producer and the right to privacy of Enrile.
 
(not in VV's revised outline)
            Balancing of Factors Test:  The truth is theat
the clear-and-present danger test is over- simplified
judgement unless it takes into account also a number
of other factors:  (1)  the relative seriousness of the
danger in comparison with the value of the occasion
for speech or political activity, (2)  the availability of
more moderate controls than those the State has
imposed, and perhaps (3) the specific intent with
which the speech is launched.  (Freund, quoted in
Dennis v. United States in the concurring opinion of
Justice Frankfurter).
 
 
 2.  Applications of tests in various contexts
 
a.  Freedom of expression and national security
 
Babst v. National Intelligence Board  132 SCRA
316 (1984)
 
F:         Petitioners are journalists and columnists. On
different dates in July 1980, they were summoned by
military authorities for interrogation regarding their
work, feelings, sentiments, beliefs, associations and
even private lives. In addition, one of them was
charged with libel by a General who sought to
recover P10 million in damages. They brought an
action for prohibition to stop the NIB from
questioning them and from filing libel suits on
matters that had been the subject of inquiry by the
NIB.
 
HELD:  The petition has become moot and academic.
Be that as it may, it is not idle to note that, while
ordinarily, an invitation to attend a hearing and
answer some questions is not illegal or
constitutionally objectionable, under certain
circumstances, however, such an invitation can easily
assume a different appearance as when it comes from
a powerful group composed predominantly of ranking
military officers and the designate interrogation site
is a military camp.
 
  b.  Freedom of expression and criticism of official
conduct:  The Test of "Actual Malice"
 
                      Read Revised Penal Code, Articles 353-354
and 361-362
  
Freedom of expression and libel
 
                    Freedom of speech versus right to
reputation.  Libel is the most common form of
subsequent punishment.  Although one cannot be
prevented from saying something before he actually
says it, one can be held liable for what one has said if
it causes damage to the rights of others.
 
 
Soliven v. Makasiar; Beltran v. Makasiar, 167 SCRA 393
(1988)
 
F:                The President of the Philippines filed a
complaint for libel against the petitioners, who were
the publisher and columnist of the Philippine Star,
based on the following statement in Beltran's column
of Oct. 12, 1987 totle "The Nervous Officials of the
Aquino Administration": "If you recall, during the
August 29 coup attempt, the President hid under her
bed while the firing was going on - perhaps the first
Commander-in-Chief to do so." Beltran did not submit
a counter affidavit and instead, moved to dismiss the
complaint. The fiscal denied his motion. Thus, this
petition for certiorari.
 
HELD:  xxx
            (3)  As regards the contention of petitioner
Beltran that he could not be held liable for libel bec.
of the privileged character of the publication, the
Court reiterates that it is not a trier of facts and that
such a defense is best left to the trial court to
appreciate after receiving the evidence of the
parties.  As to petitioner Beltran's claim that to allow
the libel case to proceed would produce a "chilling
effect" on the press freedom, the Court finds no basis
at this stage to rule on the point.  VV.
 
Manuel v. Cruz-Pano, 172 SCRA 225 (1989)
 
Libel suits based on official criticisms should be
dismissed outright unless made in bad faith
 
F:                Petitioner wrote the Chairman of the Anti-
Smuggling Action Center denouncing abuses allegedly
committed by ASAC agents against petitioner's
clients. Petitioner said the agents subjected Ng Woo
Hay to indignities and took her necklace and bracelet
and her son's wristwatch plus HK$ 70. But the agents
were exonerated so petitioner filed criminal charges
o f r o b b e r y. Pe t i t i o n e r f o u n d p r o s e c u t o r s
unsympathetic so he filed a civil action for damages
against the agents. Later, the Bulletin Today
published a news item based on petitioner's letter to
ASAC. This became the basis of an action for libel
brought against petitioner and his clients. Petitioner
moved to quash the case but his motion was denied.
 
HELD:  From the viewpoint of procedural and
substantive law, the charge is defective. The letter
constitutes privileged communication. It was sent by
petitioner in his capacity as lawyer in the discharge
of his legal duty to his clients. He could also invke his
civic duty as a private individual to expose anomalies
in the public service. The complaint was addressed to
the official who had authority over them and could
impose proper disciplinary sanctions. As an index of
good faith, the letter was sent privately, directly to
the addressee without any funfare nor publicity. As
for the news report, it is difficult to believe that the
petitioner, an ordinary citizen without known ties to
newspaper, could have by himself caused the
publication. It does not appear either that the report
Constitutional Law II
was paid for like an advertisement. At any rate, the
news item is a true and fair report of a judicial
proceeding, made in good faith and without
comments or remarks.  VV.
 
Newsweek Inc. v. IAC  142 SCRA 171 (1986)
 
F:                Petitioner was sued for libel in connection
with the publication in the Feb. 23, 1981 issue of
Newsweek of the article "An Island of Fear." The
plaintiffs, sugar planters of Bacolod, complained that
the article portrayed them as exploiters of sugar
workers. Petitioner moved to dismiss the complaint
on the ground that the article was not libelous since
it did not single any particular individual. The trial
court denied the motion and petitioner filed a
petition for certiorari in the IAC which was dismissed.
Thus, this appeal to the SC.
 
HELD:  Where the defamation is alleged to have been
directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as to
apply to every individual in that group or class, or
sufficiently specific so that each individual in the
class or group can prove that the defamatory
statement specifically pointed to him, so that he can
bring the action separately if need be. The disputed
portion which refers to plaintiff Sola never singled
out Sola. The news report merely stated that the
victim had been arrested by members of a special
police unit brought into the area by Sola, the mayor.
Hence, the report referring as it does to an official
act is within the realm of privileged and is protected
by the constitutional guarantees of free speech and
press.  VV.
            Notes:  Since the Newsweek artciles "Island of
fear in the Visayas" did not specify any individual, it
cannot be libelous.  An article must be sufficiently,
specific or at least sweeping as to apply to all
members of a group, in order to be deemed libelous.
 
Lopez v. Court of Appeals, 34 SCRA 116 (1970)
 
                    The pictures of a former mayor was
inadvertently published and mistaken for another
man who was a sanitary inspector and fooled the
authorities about the Babuyan Islands, claiming of
murders there, so they could go and he could be
rescued.   An erratum was published by the This Week
magazine.  The SC, quoting Quisumbing v. Lopez,
however, found for plaintiff, but with reduced
damages, since the error in in this case could have
been checked consideringing that this was a weekly
magazine and not a daily.
 
Quisumbing v. Fernando, 96 Phil 510 (1955)
 
                    Newspapers should be given leeway and
tolerance to enable them to courageously and
effectively perform their important role in our
democracy.  In the preparation of stories, press
reporters and editors usually have to race to their
deadlines; and consistently with good faith and
reasonable care, they should not be held to account,
to a point of suppression, for honest mistakes or
imperfection in the choice of words.
.
 
Mercado v. CFI of Rizal  116 SCRA 93 (1982)
F:         Petitioner was accused of libel on the basis of
a telegram which he sent to the Secretary of Public
Works requesting investigation of Mrs. Virginia
Mercado of the Public Service Commission "as we
have reason to believe that she has enriched herself
thru corrupt practices xxx." He filed a motion to
dismiss on the ground that his communication was
privileged, but his motion was denied. He filed
another motion which was also denied. Thus, this
petition for certiorari, mandamus and prohibition in
the SC.
 
HELD:  US v. Bustos is a landmark decision antedating
by forty years a similar decision of the US Supreme
Court to the effect that a libel prosecution must
survive the test of whether or not the offending
publication is within the guarantees of free speech
and free press. However, Justice Malcolm in US v.
Bustos was careful to point out that qualified
privilege and this is one instance may be "lost by
proof of malice." What casts doubt on the good faith
of petitioner is his conduct, vis-à-vis private
respondent. The tenacity with which petitioner had
pursued a course of conduct on its face would seem
to indicate that a doubt could reasonably be
entertained as the bona fides of petitioner. The
prosecution should be given a chance to prove
malice. 
 
c.  Freedom of expression and the right to privacy
Lagunzad v. Gonzales, 92 SCRA 476 (1979)
   
F:                      Lagunzad filmed the Moises Padilla story
based on a book written by Rodriguez.  xxx  Nelly
Amane who was a half-sister of Padilla objected to
the movie on the ground that it contained a portrayal
of Padilla's private and family life, including scenes
about his mother, Maria Soto vda. de Gonzales, and a
certain "Auring" as Padilla's girl friend.  Subsequently,
Nelly Amante, together w/ her sister and mother,
agreed to allow petitioner to "exploit, use and
develope the life story of Moises Padilla for purposes
of producing the pictures," in consideration of
P20,000.  Petitioner paid P5,000 but as he failed to
pay the balance agreed upon, he was sued. 
Judgement was rendered against him by the trial
court, w/c was affirmed by the CA.  Petitioner
appealed to the SC contending that he was forced to
enter into the agreement only to avoid financial loss
caused by delay in the showing of the movie and the
relatives of Padilla did not have a property right in
the life of M. Padilla since Padilla was a public
figure.  
 
HELD:  Petitioner's averment is not well taken.  Being
a public figure does not automatically destroy in toto
a person's right to privacy.  The right to invade a
person's privacy to disseminate public information
does not extend to fictional or novelized
representation of a person, no matter how a public
Constitutional Law II
figure he or she may be.  In the case at bar, while it
is true that petitioner exerted efforts to present the
true-to-life story of Moises Padilla, petitioner admits
that he included a little romance in the film bec. w/o
it, it would be a drab story of torture and brutality.
                      Freedom of expression, indeed, occupies a
preferred position in the hierarchy of civil liberties.  long as only his public life is dwelled only.  But in
It is not,  however, w/o limitations.  In the particular
circumstances presented and considering the
obligations assumed by petitioner under the
agreement, the validity of such agreement will have
to be upheld particular bec. the limits of freedom of
expression are reached when expression touches upon
matters of private concern.  [In the agreement signed
by him, petitioner admitted that in the picture
produced, he had "exploited the life story of Moises
Padilla for pecuniary gain, and other profit motives,
and (had) encroached upon the privacy of Moises
Padilla's immediate family, and (had) in fact included,
in the PICTURE's case, persons portraying some of
MOISES PADILLA's kin..."]                      A contempt imposed by the court on the
 
 
Ayer Productions Pty. Ltd. v. Capulong April 29, 1988
 
F:         Pivate respondent Juan Ponce Enrile filed an
action in the RTC of Makati to enjoin the petitioners
from producing the movie "The Four Day Revolution,"
a documentary of the EDSA Revolution in 1986 on the
ground that it violated his right to privacy. Petitioners
contended that the movie would not involve his
private life not that of his family. But the trial court
issued a writ of preliminary injunction and ordered
petitioners to desist from making the movie making
reference whatsoever to Ponce Enrile. This, this
action for certiorari.
 
HELD:  Freedom of speech and expression includes
freedom to produce motion pictures and to exhibit
them. What is involved is a prior restraint by the
Judge upon the exercise of speech and of expression
by petitioners. Because of the preferred character of
speech and of expression, a weighty presumption of
invalidity vitiates measures of prior restraint. The
Judge should have stayed his hand considering that
the movie was yet uncompleted and therefore there
was no "clear and present danger." The subject
matter of the movie does not relate to the private
life of Ponce Enrile. The intrusion is no more than
necessary to keep the film a truthful historical
account.  He is, after all, a public figure. The line of
equilibrium in the specific context of the instant case
between freedom of speech and of expression and
the right of privacy may be marked out in terms of a
requirement that the proposed motion picture must
be fairly truthful and historical in its presentation of
facts. There must be no showing of a reckless
disregard of truth.
 
                      Notes:  Ayer sought to produce a movie on
the 4-day revolution.  Enrile, who had previously
been asked for the use of his character in the movie
and had refused the offer, sued to enjoin the filming
because he did not want any mention of his and his
family's name.  The SC lifted the injunction issued by
the lower court on the ground that it amounted to
prior restraint, which is no better if imposed by the
courts than if imposed by administrative bodies or by
ecclesiatical officials.
 
            In Ayer, the reference to Enrile is unavoidable
because his name is part of history and this cannot be
changed or altered; thus his name can be used so
Lagunzad, although Moises Padilla was also a public
figure, the movie dealth with both the public and
private lives of Moises Padilla.
 
  d. Freedom of expression and administration of
justice (contempt of court)
  
In re Ramon Tulfo, AM NO. 90-4-1545-0, April 17. 1990
 
 Zaldivar v. Sandiganbayan, 170 SCRA 1 (1989)
 
 Cabansag v. Fernandez, 102 Phil 152 (1957)
 
party who sent a letter to the Presidential Action
Committee complaining about the delay in the
disposition of the agrarian case, was lifted by the SC. 
It held that although such a letter should have been
sent to the SC and not the PAC, it was nevertheless a
valid exercise of speech which did not significantly
destroy, the orderly administration of justice.
 
People v. Alarcon, 60 Phil 265 (1939)
 
                    A person can be held liable for making
comments on a pending case (sub judice) which have
the tendency to impair or obstruct the orderly
administration of justistice.  But if the case is not
pending, such comment is a valid exercise of the
freedom of expression.
 
 e.  Symbolic Expression--  The Flag-burning case
 
  Flag burning when done to express dissent is
protected speech.
 
F:                      Respondent Johnson participated in a
political demonstration where he burned an American
flag while protesters chanted.  No one was physically
injured or threatened with injury, although several
witnesses were seriously offended by the flag
burning.  Johnson was convicted of desecration of a
venerated object in violation of a Texas statute which
(1) prohibited the desecration of, among other
things, a state or national flag, and (2) defined
desecration as the physical mistreatment of such
objects in a way which the actor knows will seriously
offend one or more persons likely to observe or
discover the act.  A state court of appeals affirmed. 
The Court of Criminal Appeals of Texas reversed,
holding that the desecration statute as applied
violated the defendant's right to freedom of speech
under the Federal Constitution's First Amendment,
because the statute (1) was too broad for First
Amendment purposes as it related to breaches of the
peace, and (2) was not adequately supported by the
state's purported interest in preserving a symbol of
unity.
 
Constitutional Law II
ISSUE:  Whether the flag desecration statute is
unconstitutional
 
HELD:  YES. Decision Affirmed.
                    Johnson's conviction was inconsistent with
the First Amendment under the particular
circumstances because (1) Johnson's conduct was
sufficiently imbued with elements of communication
to implicate the First Amendment, given that this flag
burning was the culmination of a political
demonstration and that the state conceded  that the
protester's conduct was expressive; (2) the state's
interest in preventing breaches of the peace was not
implicated on the record in this case, since (a) no
disturbance of the peace actually occurred or
threatened to occur because of the flag burning, (b)
it cannot be presumed that an audience which takes
serious offense at a particular expression is
necessarily likely to disturb the peace, and (c) the
flag burning does not fall within the small class of
"fighting words" that are likely to provoke the
average person to retaliation and thereby cause a
breach of the peace; and (3) the state's asserted
interest in preserving the flag as a symbol of
nationhood and national unity does not justify the
conviction, since (a) the attempted restriction on
expression is content-based, and thus subject to the
most exacting scrutiny, given that the flag
desecration statute is aimed not at protecting the
physical integrity of the flag in all circumstances, but
only against impairments that would cause serious
offenses to others and is aimed at protecting
onlookers from being offended by the ideas expressed
by the prohibited activity, and (b) although the state
has a legitimate interest in encouraging proper
treatment of the flag, it may not foster its own view
of the flag by prohibiting expressive conduct relating
to it and by criminally punishing a person for burning
the flag as a means of political protest.  entertaining a narrow view of obscenity, but it lacked
 
f.  Movies Censorship
 
                    While prior restraint is the general rule,
censorship in the movies is tolerated because by the
nature of the medium, it has a greater impact on the
audience and produces instant reaction for the ideas
it presents, unlike newspapers which are read by
people separated by walls.
 
 
Gonzales v. Katigbak, 137 SCRA 356 (1985)
 
F:              Petitioner was the producer of the movie
Kapit sa Patalim which the Board of Review for
Motion Pictures and Televisions allowed on condition
that certain deletions were made and that it was
shown on adults only. The petitioner brought an
action, claiming violation of their freedom of
expression.
 
HELD:  Motion pictures are important both as a
method for the communication of ideas and the
expression of the artistic impulse. The power of the
Board is limited to the classification of films. For
freedom of expression is the rule and restrictions the
exception. The power to impose prior restraint is not
to be presumed, rather the presumption is against its
validity. Censorship is allowable only under the
clearest proof of a clear and present danger of a
substantive evil to public safety, public morals, public
health or any other legitimate public interest. The
Board committed an abuse of discretion in subjecting
petitioner to difficulty and travail before the movie
was classified as "For adults only" without deletion.
However there is not enough votes to consider the
abuse of discretion grave as it explained that there
were reasons for its action because of the scenes
showing women erotically dancing naked and kissing
and caressing each other like lesbians.  VV.
 
 
            Notes:  The movie involved in this case was
"Kapit sa Patalim" which the censors wanted to cut in
some part and to label "For Adults".  The SC rules that
movies are within the constitutional protection of
freedom of expression, so that censorship is
presumed to be valid as constituting prior restraint. 
The only case whe the Board of Censors can order a
deletion is when there is a clear and present danger
of a substantive evil against national security or
public morals or other public interest.  In all other
cases, the Board can only classify.    
 
            But a different standard must be followed in
television because of the pervasive and intrusive
influence of the medium on people who watch its
programs without having to pay anything.
 
                    On the issue of obscenity, the SC held that
sex along is not necessarily obscenity, the test being
whether, using contemporary community standards,
the dominant appeal us to the prurient interest.
(Miller v. California).  Thus on this score, it found
abuse of discretion of the part of the Board for
subjecting the producer to difficulty and for
the votes to rules that the abuse was grave.
 
Tests of obscenity:
                      (1)  Whether the average person, applying
contemporary community standards, would find that
the work, taken as a whole, appeals to the prurient
interest.
            (2)  Whether the work depicts or describes, in
a patently offensive way, sexual conduct specifically
defined by the applicable law.
                      (3)  Whether the work, taken as a whole,
lacks serious literary, artistic, political or scientific
value.  (Miller v. California, 37 L. Ed. 2d 419.)
 
g.  Radio Broadcast
 
In Eastern Broadcasting Corp. v. Dans, 137 SCRA 647,
the SC held that radio broadcast also enjoys the
protection of the freedom of expression.  If closed
down, the owners enjoy the rights to due process
according to the standards set in Ang Tibay v. CIR.
 
                    But radio deserves greater regulation than
newspapers because it could invade the privacy of
everyone for no fee, and it is such that one is likely
to listen to what is being said.
 
 
Constitutional Law II
Eastern Broadcasting Corp. (DYRE) V. Dans, 137 SCRA
647 (1985)
 
F:              The petitioners filed this action to compel
respondent government officials to allow the
reopening of Radio Station DYRE after it had been
closed for allegedly having been used to incite the
people to sedition. The petitioner contended that it
was denied due process because no hearing was held
and no proof was submitted to establish a factual
basis for the closure. However, before the Court
could promulgate its decision the petitioner filed a
motion to withdraw its action on the ground that it
had sold the radio station to Manuel Pastrana and
that the National Telecommunications Commission
had expressed its willingness to grant the requisite
license.
HELD:  The case has been moot and academic.
However, for the guidance of the inferior courts and
administrative bodies, the following guidelines must
be observed: 1) The cardinal primary requirements in
administrative proceedings as laid down in Ang Tibay
v. CIR should be followed before a broadcast station
may be closed; 2) All forms of communication are
entitled to the broad protection of the freedom of
expression clause. Necessarily, the freedom of
television and radio broadcasting is somewhat lesser
in scope than the freedom accorded to newspapers
and print media. This limitation derives from the fact
the broadcast media have a uniquely pervasive
presence in the lives of all Filipinos; 3) The
government has a right to be protected against
broadcasts which incite listeners to violently
overthrow it; and 4) Broadcast stations deserve the
special protection given to all forms of media by the
due process and freedom of expression clauses of the
Constitution.
 
h.  Freedom of Information
            Art. III, Sec. 7.  The right of the people to
information on matters of public concern shall be
recognized.  Access to official records, and to
documents and papers pertaining to, official acts,
transactions, or decisions, as well as to government
research data used as basis for policy development,
shall be afforded the citizen, subject to such
limitations as may be provided by law.  posting areas.
 Baldoza v. Dimaano, 71 SCRA 14 (1976)
            Access of official records (the docket book)
for any lawful purpose (to look into the criminal cases
for a report on the peace and order situation of the
municipality) is guaranteed.  But it is subject to
reasonable conditions by the custodian of the
records.
 
 
Garcia v. BOI, 177 SCRA 374 (1989)
 
 
            D.  Content-Neutral Restrictions
 
                      O'brien test: A government regulation is
sufficiently justified if it is within the constitutional
power of the government; if it furthers an important
or substantial governmental interest; if the
governmental interest is unrelated to the suppression
of free expression; and if the incidental restriction on
alleged freedom of expression is no greater than is
essential to the furtherance of that interest.  [US v.
O'brien, 391 US 367 (1968), adopted in Adiong v.
COMELEC, 207 SCRA 712 (1992)]   
 
 1.  Regulation of political campaign
 
National Press Club v. COMELEC, 207 SCRA 1 (1992)
 
F:               Petitioners herein were representatives of
mass media which were prevented from selling and
donating space or air time for political
advertisements under RA 6646.
ISSUE: Whether or not RA 6646 constitutes a violation
of the constitutional right to freedom of expression.
 
RULING: NO. The Comelec has been expressly
authorized by the Constitution to supervise or
regulate the enjoyment or utilization of the
franchises or permits for the operation f media of
communication and information. The fundamental
purposes of such power are to ensure "equal
opportunity, time, and space, and the right to reply,"
as well as uniform and reasonable rates of charges for
the use of such media facilities, in connection with
"public information campaigns and forums among
candidates."
                    Of course, the law limits the right of free
speech and of access to mass media of the candidates
themselves. The limitation however, bears a clear
and reasonable connection with the objective set out
in the Constitution. For it is precisely in the unlimited
purchase of print space and radio and television time
that the resources of the financially affluent
candidates are likely to make a crucial difference. 
Adiong v. COMELEC, 207 SCRA 712 (1992)
 
F:               Petitoner, Adiong, a  1992 senatorial
candidate, assails Comelec Resolution No. 2347
insofar as it prohibits the posting of decals and
stickers on mobile places, public or private, and
limits their location or publication to authorized
ISSUE: Whether or not the resolution is constitutional.
RULING: NO. The prohibition unduly infringes on the
citizen's fundamental right of free speech. There is
no public interest substantial enough to warrant the
kind of restriction involved in this case. The posting
of decals amd stickers in mobile places does not
endanger any substantial government or public
interest. Under the clear and present danger rule,
not only must  the danger be patently clear and
pressingly present but the evil sought to be avoided,
must be so substantive as to justify a clamp over
one's mouth or a writing instrument to be stilled.
                    Significantly, the freedom of expression
curtailed by the prohibition is not so much that of the
candidate  or the political party. The regulation
strikes at the freedoom of an individual to express his
Constitutional Law II
preference  and, by displaying it on his car, to
convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner
agrees to have it placed on his private  vehichle, the
expression becomes a statement by the owner,
primarily his own and not of anybody else.
                    Morever, The restriction is so broad that it
encompasses even the citizen's private property,
which in this case is a privately owned vehicle. In
consequence of this prohibition, another cardinal
right guaranteed under the Constitution is violated
which is that no person shall be deprived of his
property without due proocess of law. 
 
 2.  Freedom of Assembly
 
Public Assembly Act of 1985 (Batas Blg. 580)
            A permit to hold a rally must be filed with the
Office of the Mayor at least, five working days before
the day of the rally.
 
            But no permit from the mayor is required in
case the rally is going to be held in (i) freedom parks,
(ii) inside a private property (provide with consent of
the owner), and (iii) campuses of state universities
(which are left to university authorities)
 
            The application must be in writing and must
include: (1) names of the organizers and leaders, (2)
date and time, place and street, (3) size (4)manner
of the use of the street, (5) sound system to be used
(6)purpose.  It must also have a statement of the
duties of the rallyists.
 
                    The written application is filed with the
Office of the Mayor.  Acknowledgemet is given of its
receipt.  If the Mayor refuses to accept the
application, then it is enough for filing purposes if a
copy is posted in the premises.
 
            The Mayor has 2 working days to act on the
application.  If he does not act, it is deemed granted.
 
            But if he thinks that the rally creates a "clear
and present danger" to public peace, order, health,
etc., and he has proof of this, he should not deny the
application right away.  He should hold a hearing
during which the applicant can be heard.  If after
hearing he is still not satisfied that no danger exists,
then he can deny the application.
 
            The applicant can then go to any court other
than the Supreme Court for the review of the
decision of denial of the mayor.  The courts have 24
hours to act on the petition.  If the judgment is a
reversal of the denial, or in any case if the applicant
is satisfied with the decision, the  judgment becomes
final and executory immediately, and no appeal can
be taken by the local authorities anymore.
 
            But if the decision is not satisfactory  to the
applicant, then he has 48 hours from receipt to
appeal to the SC.
 
            During the rally, the police must be limited to
maintaining peace and order and so must stay away
by 100 meters from the rallyists.  They must be in full
uniform, with their names visibly written.  They can
carry no firearm except a nighstick, but they are
allowed protective devices.
 
                    If they anticipate trouble, the police must
call the attention of the leader of the rallyists.  When
trouble actually erupts, the police must not disperse
the crowd right away but first give a warning.  If
violence persists, they must give a second warning.  If
still violence continues, only then can they fight
back.
 
            If a rally does not have a permit, the police
can disperse the crowd, but they cannot use
violence.  Penalty is imposed only on the leaders and
organizers.
            Among the duties of the rallyists are: (a) to
inform the members of their duty under the law, (b)
to police their own rank, and (c) to cooperate with
local authorities in maintaining peace and order.
 
 
            Notes:  The freedom to use public places to
peaceably assemble is best expressed thus: 
"Wherever the title or steets and parks may rest, they
have immemorially been held in trust for the use of
the public and, time out of time have been used for
purposes of assembly, communicating thought betwee
citizens, and discussing public questions." (Justice
Roberts.  Hague v. CIO)
 
            Although under a "permit system", before one
can use a public place, one must first obtain prior
permit from the proper authorities, the principle has
always been that one has the right to a permit,
subject only to reasonable regulation.  The validity of
the permit system has been upheld by the Court,
provided, (a) it is concered only with the time, place
and manner of assembly ad (b) it does not vest on the
licensing authority unfettered discretion in choosing
the groups which could use the public place and
discriminate others.
 
            As held by the SC in Primicias vs Fugoso, 80
Phil. 71, the City Ordinance of Manila giving authority
to the Mayor to issue permits for parades should be
construed to be limited to the time, place, and
manner of the parades socially to secure public order,
convenience and welfare.  Thus, denying the
Nacionalista Party a permit to hold a rally at the
Plaza Miranda on the ground that passions raised by
the recent national election were still high and a rally
to protest election anomalies could only exacerbate
the matter, was overturned by the court.
 
 
Primicias vs Fugoso, 80 Phil. 71
 
F:         This is an action for mandamus instituted by
petitioner Primicias, campaign manager of the
Coalesced Minority Parties, to compel Mayor Fugoso
of the City of Manila to issue a permit for the holding
of a peaceful public meeting at Plaza Miranda for the
purpose of petitioning the government for redress of
grievances. The Mayor denied the application on the
Constitutional Law II
ground that passions still run high due to the recent
election, and a rally to protest election anomalies
might threaten breaches of the peace and disruption
of public order.
ISSUE: W/n the Mayor can refuse to grant the permit.
 
RULING: NO. The police power granted to the Mayor
under the Ordinance enacted by the Municipal Board
pursuant to its authority under the Revised
Administrative Code  which pertains to the use of
streets and public places, can be construed only to
mean the power  to regulate, which means and
includes the power to control, govern, and to restrain
but cannot be construed as synonymous with
"suppress" or "prohibit."
            The Court quoted with approval  the decision
in the American case Cox v. State of New Hampshire,
" a statute requiring persons using public streets for a
parade or procession to procure a special license
therefor from the local authorities is not an
unconstitutional abridgement of the rights of
assembly or of freedom of speech and press, where,
as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time,
place, and manner of the parade or procession, with
a view to conserving the public convenience and of
affording an opportunity to provide proper policing,
and are not invested with arbitrary discretion to issue
or refuse license..."
                    But under the same ordinance, the SC, in
Navarro v. Villegas, 31 SCRA 730 (1970), upheld the
mayor's refusal to grant permit to a group during
weekdays, on a finding that everytime there was an
announced rally, stores closed and business was
gravely affected because of violent incidents.  It
found the policy of the mayor to allow rallies only
during weekends to be reasonable.
Navarro v. Villegas, 31 SCRA 730 (1970)
 
F:              The petitioner, acting in behalf of the
Movement for a Democratic Philippines (MDP), an
association of students, workers and peasants,
applied for a permit from the Mayor of Manila to hold
a rally at Plaza Miranda. Respondent Mayor denied
the application  to hold the rally on the date and
time specified  by petitioners in view of the events
that transpired during the last demonstration held by
them which  ended in the destruction of public and
private property, loss of a few lives, injuries to a
score of other persons and the closing down of 
schools, offices and many stores. The Mayor
suggested that the MDP utilize the Sunken Gardens
near Intramuros for its rally and that the rally be held
during weekends and  earlier during the day so that it
may end before dark.
                            Petitioner challenged the action of the
Mayor on the ground that the same constitutes a
violation of their right to freedom of assembly.
Petitioner contended that the right of the people to
peaceful assembly and to petition the government for
redress of grievances may be exercised without the
prior necessity of securing a permit from the
government and that such right cannot be fully
enjoyed without the corresponding right to use public
places for that purpose. 
ISSUE:  Whether or not the Mayor`s denial to issue a
permit amounted to a violation of petitioner`s right
to freedom of assembly.
 
HELD: NO.
                    The respondent Mayor has not denied nor
absolutely refused the permit sought by petitioner.
He has expressed willingness to grant the permit for
the peaceful assembly during certain days and time,
and at a place when they would not disrupt the
normal activities of the community.
                    The respondent mayor possesses reasonable
discretion to determine or specify the streets or
public places to be used for the assembly in order to
secure convenient use thereof by others and provide
adequate and proper policing to minimize the risks of
disorder and maintain public safety and order.
            Petitioner has failed to show a clear specific
legal duty on the part of respondent Mayor to grant
their application for a permit unconditionally. 
Experience in connection with present assemblies and
demonstrations have shown that they pose a clear
and imminent danger of public disorders, breaches of
the peace, criminal acts, and even bloodshed as an
aftermath of such assemblies, which,  petitioner has
manifested, it has no means of preventing.  Charo.
                    In Ignacio v. Ela, 99 Phil. 346 (1956), the
majority upheld the mayor's denial of permit to
members of the Jehovah's Witnesses sect for the use
of a klosk within the town plaza in order to avoid any
untoward incident with members of the Roman
Catholic Church, whose tenets are opposed to those
of the petitioners, and whose church is very near the
klosk.
 
Ignacio v. Ela, 99 Phil. 346 (1956)
 
F:         The Mayor denied a permit to the members of
the Jehovah's Witnesses to use the kiosk in the town
plaza for the purpose of holding a public lecture on
the ground that the permit,  if granted, may give rise
to disturbance of the religious ceremonies being
performed by the Catholic Church which was said to
be within hearing distance from the kiosk and which
might lead to any  untoward incident with members
of the rival denomination.
 
ISSUE: W/N the denial is valid.
                    In J.B.L. Reyes v. Bagatsing, 125 SCRA 553
(1983), the SC found no basis for the denial of permit
to the Anti-Bases Coalition to hold a march from
Luneta to the street fronting the U.S. Embassy.  It
affirmed the general rule that the use of streets is
free to all.  It found the fear entertained by city
authorities that the rallyists might be agirated by
provocateurs to be unfounded, given the report of
Constitutional Law II
the NPD that adequate security measures were
provided by the police.
 
            The Court did not rule on the validity of the
ordinance of Manila prohibiting any rally within 200
meters from any foreign embassy as a means of
complying with the Geneva Convention that requires
the host country to protect the premises and
personnel of the embassy.
 
                    Then it gave guidelines for the issuance of
permits (now in BP 9801 (i) any group which applies
must do so within a sufficient time so the authority
can have time to act: (ii) if a disagreement arises
over a denial of a permit, the applicant can question
the denial in the lower court, which can try questions
of fact and law, and (iii) appeal can be made to the
SC on an expedited procedure.
 
J.B.L. Reyes v. Bagatsing, 125 SCRA 553 (1983)
 
F:              Retired Justice JBL Reyes, on behalf of the
Anti-Bases Coalition, sought a permit from the City of
Manila to hold a peaceful march and rally on Oct. 26,
1983 starting 2 p.m. from Luneta to the gates of the
US Embassy. He filed this petition because as of Oct.
20, there was yet no action on his request to hold a
rally.
HELD:  Free speech, like free press, may be identified
with the liberty to discuss publicly and truthfully any
matter of public concern without censorship or
punishment. There is to be no previous retraint
whether in the form of libel suits, prosecution for
damages, or contempt proceedings unless there is a
"clear and present danger of a substantive evil that
the State has a right to prevent." There can be no
legal objection, absent the existence of a clear and
present danger of a substantive evil to the holding of
a peaceful rally at Luneta. Neither can there be
objection to the use of the streets up to gates of the
US Embassy. A statute requiring persons to secure a
special license to use public streets for a procession
is not unconstitutional. The licensing of authorities
are strictly limited to the consideration of the time,
place and manner and the authorities are not
invested with arbitrary discretion to issue or refuse a
permit.
            In German v. Barangan, 135 SCRA 514 (1985),
the SC upheld the power of the city authorities to
close JP Laurel Street fronting Malacanang from all
rallies as a form of "area restriction", in order to
protect the President and his family, based on the
incident in the early 70s when the gates of the palace
were almost stormed.  The rallyists in this case
purported to merely worship at St. Jude's.
 
            In case a rally is held in a private place, no
permit from the mayor is required.  However, the
consent of the owner of the place must be acquired.
 
German v. Barangan  35 SCRA 514 (1985)
 
F:              On Oct. 2, 1984 the petitioners who were
businessmen, students and employees, met on JP
Laurel Street in Manila for the ostensible purpose of
hearing mass at the St. Jude Chapel which adjoins
the Malacañang grounds. They wore yellow T-shirts
and, with clenched fists, marched on the street and
shouted anti-government invectives. They were
stopped from proceeding to the chapel by the
Presidential Security Command. They brought an
action for mandamus.
 
HELD:  The yellow T-shirts worn by some of the
marchers, their fists clenched and chants of anti-
government investives support the government's
claim that the petitioners purpose was not really to
worship at the chapel but to hold an anti-government
demonstration close to the residence of the
President. The restricted use of JP Laurel Street is
justified. The need to secure the safety of heads of
states cannot be overemphasized. The threat to their
lives is constant and felt throughout the world. The
petitioners were not restrained in their freedom of
religion but only in the manner by which they had
attempted to translate the same into action. 
                      In Malabanan v. Ramento, 129 SCRA 359
(1984) and Arreza v. GAUP, 13 SCRA 94 (1985), the SC
upheld the right to expression of students who held a
rally in a private university.  But since they held it
beyond the time granted in a place other than the
one allowed by the administration, their suspension
was condoned.
Malabanan v. Ramento, 129 SCRA 359 (1984)
 
F:              Petitioners were officers of the Supreme
Student Council of the Gregorio Araneta University
Foundation. They were granted a permit to hold a
meeting to protest the merger of two units of the
university. On the scheduled date, the students
continued their meeting beyond the scheduled time
and held it in a different place from that indicated in
the permit. They expressed in a vehement language
their opposition to the merger and as a result, classes
and office work was disturbed. Petitioners were
placed under preventive suspension. On appeal, they
were found guilt of holding an illegal assembly and
oral defamation. They were suspended for one
academic year. They filed a petition for certiorari in
the SC.
 
HELD:  The petititon may be considered moot and
academic considering that the TRO issued by the SC
allowed the students to enroll. But there is a need to
pass squarely on the constitutional question. Respect
for the constitutional rights of peaceable assembly
and free speech calls for the setting aside of the
order of suspension. Suspending them for one year is
out of proportion considering that the vigorous
presentation of views was expected. The excitement
of the occasion, the propensity of speakers to
exaggerate and the exuberance of the youth should
be taken into consideration.
 
 
Arreza v. GAUP, 13 SCRA 94 (1985)
 
F:         Petitioners were officers and members of the
Student Council of the Gregorio Araneta University
Foundation. They were refused enrollment for having
led a rally on Sept. 28, 1982.
Constitutional Law II
 
HELD:   As held in Malabanan v. Ramento: "If in the
course of such demonstration, with an enthusiastic
audience goading them on, utterances, extremely
critical, at times even vitriolic, were let loose, that is
quite understandable. They would be ineffective if
during the rally they speak in the guarded and
judicious language of the academe. At any rate, even
a sympathetic audience is not disposed to accord full
credence to their fiery exhortations. They take into
account the excitement of the occasion, the
propensity of speakers to exaggerate, the exuberance
of youth. xxx" The refusal of the university to enroll
the students is a highly disproportionate penalty.
            Notes:  Note that while the permit system is
not allowed in the case of publication, it is allowed in
the case of assembly.  In publication, censorship is
presumptively unconstitutional.  There is very little
possibility or justification for the regulation of news.  Labor-Management Council ordered the strikers to
The remedy in this case is prosecution or subsequent
punishment.
            But in assembly regulation is allowed because
it is needed by the very nature of the expression,
when people use streets, they may deprive other
groups which want to use the streets too.  So as long
as only the incidents of speech are regulated, the
measure is constitutionally acceptable.
 
 
Nestle Phils. Inc. v. Sanchez  154 SCRA 541 (1987)
F:              While these cases were pending in the SC,
the labor unions involved intensified the pickets they
had been conducting in front of the Padre Faura gate
of the Court and set up picket quarters, at times
obstructing access to and egress from the Court's
premises. When required to show cause why they
should not be held in contempt of court, their lawyer
apologized and assured that the above incident would
not be repeated.
 
HELD:  The Court will not hesitate in future similar
situations to apply the full force of the law and
punish for contempt those who attempt to pressure
the Court into acting one way or the other in any
case pending before it. Grievances must be
ventilated in the proper channels, i.e. through
appropriate petitions or pleadings in keeping with the
respect due the courts as impartial administrators of
justice. Moreover, "parties have a constitutional right
to have the causes tried fairly in court by an
impartial tribunal, uninfluenced by publication or
public clamor xxx" The acts of respondents are not
only an affront to the dignity of this Court but equally
a violation of the above-stated right of the adverse
parties and the citizenry at large.  private sector to secure concessions
3.  Freedom of Association and the right to strike in
the public sector
 
                      Art. III, Sec. 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.
  
            The inclusion of the right to unionize in this
article is ill-advised because while the right to
unionize is an economic and labor right, the right to
association in general is a civil- political right.
                    Discussed elsewhere is the argument why
public employees cannot engage in collective
bargaining and strike.
 
 
SSS Employees Assn vs CA, 175 SCRA 686 (1989)
 
F:  SSS filed w/ the RTC-QC a complaint for damages
w/ a prayer for a writ of prel inj. against petitioners
SSSEA, alleging that the officers and members of the
latter staged an illegal strike and barricaded the
entrances to the SSS building preventing non-striking
employees from reporting to work and SSS members
from transacting business w/ SSS.  The Public Sector
return to work but the strikers refused to do so.  The
SSSEA went on strike bec. SSS failed to act on the
union's demands.
                Petitioners filed a motion to dismiss the
complaint for lack of jurisdiction, w/c motion was
denied.  The restraining order w/c was previously
issued was converted into an injunction after finding
the strike illegal.  Petitioners appealed the case to
the CA.  The latter held that since the employees of
SSS are govt employees, they are not allowed to
strike.   
HELD:  Employees in the Civil Service may not resort
to strikes, walkouts and other temporary work
stoppages, like workers in the private sector, in order
to pressure the Govt. to accede to their demands.  As
now provided under Sec. 4, Rule III of the Rules and
Regulations to Govern the Exercise of the Right of
Govt. EEs to Self-Organization which took effect after
the initial dispute arose, the terms and conditions of
employment in the Govt, including any political
subdivision or instrumentality thereof and govt.
owned and controlled corporations with original
charters, are governed by law and employees therein
shall  not strike for the purpose of securing changes
thereof.
                      The statement of the court in Alliance of
Govt Workers v. Minister of Labor and Employment
(124 SCRA 1) is relevant as it furnishes the rationale
for distinguishing bet. workers in the private sector
and govt employees w/ regard to the right to strike?
 
Since the terms and conditions of
govt. employment are fixed by law,
govt. workers cannot use the same
weapons employed by workers in the
from their employers.  The principle
behind labor unionism in private
industry is that industrial peace
cannot be secured through
compulsion of law.  Relations bet.
private employers and their
employees rest on an essentially
voluntary basis.  Subject to the
minimum requirements of wage laws
and other labor and welfare
legislation, the terms and conditions
Constitutional Law II
of employment in the unionized
private sector are settled through the
process of collective bargaining.  In
govt employment, however, it is the
legislature and, where properly given
delegated power, the administrative
heads of govt w/c fix the terms and
conditions of employment.  And this
is effected through statutes or
administrative circulars, rules, and
regulations, not through CBA's
E.  Academic Freedom
Garcia v. Faculty of Admission, 68 SCRA 277 (1975)
 
F:               The FAC of the  Loyola School of Theology
refused to readmit petitioner, Garcia, in its M.A.
program because they felt that "her frequent
questions and difficulties were not always pertinent
and had the effect of slowing down the progress of
the class;" that it would be "to the best interest (of
the petitioner) to work with a faculty that is more
compatible with her orientation. Garcia assailled her
expulsion for being unreasonable; that the reasons
given therefor were invalid for nowhere did it appear
that her conduct constituted a violation of the
school's regulations and grave misconduct.
 
ISSUE: Whether or not the FAC can be compelled by
mandamus to readmit petitioner.
 
RULING: NO. The Constitution recognizes the
enjoyment by institutions of higher learning of the
right to academic freedom. The school decides for
itself its aims and objectives and how best to attain
them. It is free from outside coercion or interference
save possibly when the overriding public welfare calls
for some restraint. It has a wide sphere of autonomy
certainly extending to the choice of the students.
            The collective liberty of an organization is by
no means the same thing as the freedom of the
individual members within it. In considering the
problems of academic freedom, one must distinguish
between autonomy of the university, as a corporate
body, and the freedom of the individual university
teacher.
            The personal aspect of the freedom consists
of the right of each university teacher to seek and
express the truth as he personally sees it, both in his
academic work and in his capacity as a private
citizen. This status of the individual teacher is as
important as the status of the institution to which he
belongs and through which he disseminates learning.
                    On other hand, the internal conditions for
academic freedom in a university are that the
academic staff should have de facto control of the
following functions: (a) admission and examination of
students; (b) curricula for courses of study; (c)
appointment and tenure of office of academic staff;
and (d) allocation of income among the different
categories of expenditure. It is the business of a
university to proviide that atmosphere which is most
conducive to speculation, experiment and creation. It
is an atmosphere  in which the four essential
freedoms of a university prevail - to determine for
itself who may teach, what may be taught, how it
shall be taught, and who may be admitted to study.
                    For the above reason, mandamus is  not
available for the petitioner. There is no duty on the
part of the  School to admit her to study since the
School clearly has the discretion to turn down even
qualified applicants due to limitations of space,
facilities, professors and optimum classroom size and
component considerations. There are standards to
meet and policies to pursue. What a student
possesses is a privilege rather than a right. 
UP v. Ayson, 176 SCRA 647 (1989)
F:               In 1972, the UP BOR approved the
establishment of the UPCB Highshool to serve, among
others, "as a laboratory and demonstration school for
prospective teachers - provided that UPCBHS must be
self-supporting." However, the Dept of Professional
Education in Baguio was never organized. So, the BOR
decided to phase out UPCBHS for failing to attain the
conditions for its creation. The UPCBHS Foundation
Inc. sought to restrain the University from phasing
out the UPCBHS.
 
ISSUE: Is secondary public education demandable in
an institution of higher learning such as the UP?
 
RULING: NO. UP invokes its exercise of academic
freedom. Private respondent invokes the right to
quality education and to free secondary education.
            The rights invoked by private respondent may
be asserted only as against the Government through
the DECS.  UP was created under its charter to
provide advanced tertiary education. An institute of
higher learning cannot be compelled to provide for
secondary education.
            It is beyond cavil that UP as an institution of
higher learning enjoys academic freedom. UPCBHS
was established subject to a number of
conditionalities. Failing on such conditions, UP can
order its abolition on academic grounds.  Charo.
 
 
UP v. CA, Feb. 9, 1993
 
F:         Former PANAMIN Minister Manuel Elizalde and
the Tasaday representative filed a complaint for
damages and declaratory  relief against UP Professors
Jerome Bailen and Zeus Salazar who disputed the
authenticity of the Tasaday find and made a
proposition in various conferences attended by them
that  Elizalde merely fabricated the discovery of the
Tasadays.
                            UP intervened, aaserting its duty to
protect the respondents as faculty members for acts
and utterances made in the exercise of academic
freedom. The lower court denied UP's motion to
dismiss for failure to state a cause of action. Hence
this petition.
 
RULING: With respect to the prayer of the complaint
for "judgment declaring the Tasadays to be a distinct
ethnic community, the lower court is cautioned that
the same is akin to a prayer for a judicial declaration
of Philippine citizenship which may not be granted in
Constitutional Law II
a petition for declaratory relief. The complaint was
filed mainly to vindicate plaintiff's dignity and honor.
            Indeed, it is beyond the province of the court
to make pronouncements on matters beyond its ken
and expertise. To be sure, in resolving the complaint
for damages, the court may find congruence in what
is justiciable and what falls within the field of the
sciences. Still, it is best to keep in mind that its
proper role and function is the determination of legal
issues.  3.  Anti-evolution laws
V.  FREEDOM OF RELIGION
 
                      Art. III, Sec. 5.  No law shall be made
respecting an establishment of religion; or
prohibiting the free exercise thereof.  The free
exercise and enjoyment of religious profession and
worship, without discrimination or preference,
shall forever be allowed.  No religious test shall be
required for the exercise of civil or political rights.
 
            A.  Non-Establishment Clause
                      The clause prohibits excessive government
entanglement with, endorsement or disapproval of
religion [Vicoriano v. Elizalde Rope Workers Union, 59
SCRA 54 (1974); Lynch v. Donnelly, 465 US 668 (1984)
(O'Connor, J., concurring); Allegheny County v.
Greater Pittsburg ACLU, 492 US 574 (1989).]
 
                    The clause prohibits the State from
establishing a religion.  In assessing the validity of the
law, the questions to be asked are:
            a.   Is the purpose of the law religious, or is it
secular?
            b.   Does it or does it not inhibit or advance
religion?
                    c.    Is its effect to promote or to avoid an
excessive entaglement between the State and
religious matters in religion?
    
                    The Non-Establishment clause is violated
when the State gives any manifest support to any one
religion, even if nothing is done against the
individual.
 
            It is likewise violated if the State favors all
religions, for there may be atheists who are not so
favored.
1.  Operation of sectarian schools
 
                    While the ownership, creation and
management of educational institutions must be in
the hands of Filipinos or 60% Filipino-owned
corporations, sectarian schools and those run by
religious groups and missions board are exempted
from these requirements, provided the administration
is in the hands of Filipinos, who could be sectarian.
[Art. XIV, Sec. 4(2).]
 
2.  Religious instruction in public schools
 
 
            Provided it is upon the written petition of the
parents and it is at no cost to the State (although this
is not entirely possible, because the use of
classrooms and electricity are costs in the State), 
religious instruction in public elementary and
secondary schools during class hours, by one
approved by the authorities of the religion of the
child or ward is allowed.  [Art. XIV, Sec. 3(3).] 
Religion can even be integrated in the school
curriculum. [Civ. Code, 359 (1).]
 
            In Epperson v. Arkansas, 393 U.S. 97 (1968),
the SC held that the teaching of the Darwinian theory
of evolution cannot be prohibited from public shools
by parents whose religions finds the theory offensive.
 
4.  Prayer and Bible-reading in public schools
 
            In Engel v. Vitale, 370 U.S. 421 (1967), the SC
disallowed the conducting of an interdenominational
prayer before the start of classes in public schools as,
violative of the Non- Establishment clause.
Engel v. Vitale, 370 U.S. 421 (1967)
 
F:         The respondent Board of Education upon the
recommendation of the State Board of Regents, 
directed the School's District principal to cause the
r e c i t a t i o n i n p u b l i c  schools of a brief,
denominationally neutral prayer. Its observance on
the part of the students was voluntary.
 
RULING: The Court ruled that the State of New York,
by using its public school system to encourage the
recitation of the Regent's prayer has adopted a
practice wholly inconsistent with the Establishment
Clause. The prayer was composed by govt officials  as
part of a governmental program to further religious
beliefs. The constitutional prohibition against laws
respecting an establishment of religion means at
least that it is not part of the business of the
government to compose official prayers for any group
to recite as part of a religious program carried on by
the govt.
                    The clauses of the 1st Amendment which
prohibit laws respecting an establishment of religion
and abridging the free exercise thereof, although
overlapping in certain instances, forbids two diff
kinds of governmental encroachment upon religious
freedom. The stablishment clause, unlike the free
exercise clause, does not depend upon any showing
of direct governmental compulsion and is violated by
the enactment of laws which establish an official
religion, whether or not those laws operate directly
to coerce non-observing individuals. It rests on the
belief that a union of govt and religion tends to
destroy govt and to degrade religion, and upon an
awareness of the historical fact that governmentally
established religion and religious persecutions go
hand in hand.  
                    In Abington School District v. Schemp, 374
U.S. 203 (1963), it likewise disallowed the reading of
a passage from the bible without comment in public
schools as contrary to the Non- Establishment clause.
 
Constitutional Law II
Abington School District v. Schemp, 374 U.S. 203
(1963)
 
The issue was whether the establishment clause was
violated by a Pennsylvania Statute or a rule of the
Board of Commissioners of Baltimore adopted
pursuant to statutory authority requiring the reading
without comment, at the opening of each school day,
of verses from the Bible and the recitation of the
Lord's prayer by the students in unison. The students
and parents may refuse to participate in the school
exercises. These exercises were prescribed as part of
the curricular activities of students who are required
by law to attend school and held in school buildings
under the supervision and participation of teachers
employed in those schools.
RULING: YES, the establishment clause was violated.  RULING: NO. The exemption in the payment of the
                    The establishment clause prohibits a state
from placing official support behind the tenets of one
or all orthodoxies and the free exercise clause
guarantees the right of every person to freely choose
his own course with reference to religious training,
teaching and observance, free from any compulsion
from the State.
            The test in determining whether a legislative
enactment violates the Establishment clause which
withdraws all legislative power respecting religious
belief or the expression thereof, is the PURPOSE and
the PRIMARY EFFECT of the enactment. If either is
the advancement or inhibition of religion, then the
enactment exceeds the scope of legislative power as
circumscribed by the First Amendment. To withstand
the strictures of the establishment clause, there must
be a secular legislative purpose and a primary effect
that neither advances nor inhibits religion.
                    The place of the Bible as an instrument of
religion cannot be gainsaid. This is particularly so
where the State's recognition of the pervading
religious character of the exercise is evident from the
rule's specific permission of the alternative use of the
Catholic Douay version of the Bible as well as from a
recent amendment permitting non-attendance at the
exercises, none of those factors being consistent with
the contention that the Bible is used either as an
instrument for non-religious moral inspiration or as a
reference for the teaching of secular subjects.  institution, government orphanage, or leprosarium.
 
5.  Tax exemption
 
            Art.  VI, Sec. 28.  xxx
                      (3)  Charitable institutions, churches,
parsonages or convents appurtenant thereto,  commemorate the 33rd International Eucharistic
mosques, non-profit cemeteries, and all lands,
buildings and improvements, actually, directly, and
exclusively used for religious, charitable or
educational purposes shall be exempt from
taxation.  gave the Catholic Church was only incidental.
                    The ruling in Bishop of Nueva Segovia v.
Provincial Board, 51 Phil. 352 (1927) is  modified to
the extent now that the property must be "actually,
directly and exclusively" used for religious purposes
to be exempt.
If not for religious purposes, educational purposes.
 
Bishop of Nueva Segovia v. Provincial Board, 51 Phil.
352 (1927)
 
F:               The plaintiff, the Roman Catholic Apostolic
Church, represented by the Bishop of Nueva Segovia,
is the owner and occupant of a parcel of land in San
Nicolas, Ilocos Norte. On the south siide is a part of
the church yard, the convent and an adjacent lot
used as vegetable garden. In the center is the
remainder of the churchyard and the church. On the
north side is an old cemetery and the base of what
was once a tower. The Prov. Board imposed a tax on
the whole land.
 
ISSUE: Whether or not the taxation is legal.
land tax mandated in the Constitution in favor of the
religious entities refers to the home of the priest who
presides over the church and who has to take care of
himself in order to discharge his duties. It therefore
must include not only the land actually occupied by
the church but also the adjacent ground destined for
the ordinary incidental uses of man.
                    Except in large cities where the density of
the population and the development of commerce
require the use of large tracts of land for buildings, a
vegetable garden belongs to a house and, in the case
of a convent, its use is limited to the necessities of
the priest. Therefore,  which comes under the tax
exemption.
                    As to the lot which was formerly the
cemetery, while it is no longer used as such, neither
is it used for commercial purposes and, accdg to the
evidence, is now being used as a lodging house by the
people who participate in religious festivities. The
same constitutes an incidental use in religious
functions. It also comes within the exemption. 
 
 6.  Public aid to religion
 
                    The payment or use of public money or
property for any religious institution or clergy is not
allowed; except in those cases provided in the
Constitution: priests assigned in the AFP, penal
 
[Art. VI, Sec. 29 (2)]
 
            But in Aglipay v. Ruiz, 64 Phil. 201 (1937), the
SC held that the stamp printed by the government
showing the map of the Philippines with a rosary to
Congress to be held in Manila did not violate the Non-
Establishment clause because its main purpose, was
to call the world's attention to Manila as the site of
an international congress, and whatever benefit it
Aglipay v. Ruiz, 64 Phil. 201 (1937)
 
F:               The petitioner, Mons. Aglipay, Head of the
Phil. Ind. Church, sought to restrain respondent
Director of Posts from issuing and selling postage
Constitutional Law II
stamps commemorative of the 33rd International
Eucharistic Congress. The Director issued the stamps
under the provisions of Act 4052 which appropriates
public funds for the cost of the plates and printing of
the stamps. Petitioner alleged that the issuance of
the stamps was done in violation of the Constitutional
provision that no public money or property shall be
appropriated for the use, benefit or support of any
sect or religion.
 
ISSUE: W/N petitioner's contention is tenable.
 
RULING: NO. Act 4052 contemplated no religious
purpose in view. What it gave the Director of Posts
was the discretionary power to determine when the
issuance of special postage stamps would be
advantageous to the government.
                    The purpose in issuing the stamps was to
advertise the Philippines and attract more tourists to
this country. The officials concerned merely took
advantage of an event considered of international
importance to give publicity to the country and its
people. The stamp contained a map of the Philippines
and the location of Manila, and an inscription as
follows: "Seat XXXIII International Eucharistic
Crusade." What was emphasized  was not the event
but Manila.
            It was obvious that while the stamps may be
said to be inseparably linked with an event of a
religious character, the resulting propaganda received
by the Roman Catholic Church was merely incidental
and was not the aim and purpose of the government.  limitation on the exercise of religious freedom is the
            In Ignacio v. Ela, supra, the dissenting opinion
of Justice Concepcion pointed out that the mayor
disapproved the application for a permit not so much
because he was afraid that breach of peace would
ensue but because he wrongly though the kiosk
should be used for public purposes only and not for
religious purposes.  When the Jehovah's Witness
members use the public squares, they are no
different from ordinary pedestrians or promenaders
who use the street:  that they are performing
religious acts is only incidental.  So long as the use of
public property is only incidentalally and temporarilly
for religious purposes and so long as the use is such as
to be reasonably compatible with the use to which
other members of the community are similarly
entitled, then the non-establishment clause is not
violated.  The tests then are (1)  Is the use of the
public facility compatible with general use?  (2)  Is
the resulting benefit to the religious group only
incidental.
 
B.  Free Exercise Clause
 1.  Flag Salute
 
Ebranilag v. Division Superindentent of Schools of
Cebu, 219 SCRA 256 (1993)
 
Conscientious Objectors cannot be compelled to
salute the flag.
 
F:                      All the ptetitioners in these cases were
expelled from their classes by the public school
authorities in Cebu for refusing to salute the flag,
since the national anthem and recite the patriotic
pledge as required by RA 1265 and by Dept. Order No.
8 dated July 21, 1955 of the DECS making the flag
ceremony compulsory in all educational institutions. 
 
ISSUE:  W/N school children who are members of a
religious sect known as Jehovah's Witnesses may be
expelled from school (both private and public), for
refusing, on account of their religious beliefs, to take
part in the flag ceremony which includes playing (by
a band) or singing the Phil. National Anthem, saluting
the Phil. flag and reciting the patriotic pledge.
 
HELD:   NO. 
            The idea that one may be compelled to salute
the flag, sing the national anthem, and recite the
patriotice pledge, during a flag ceremony on pain of
being dismissed from one's job or of being expelled
from school, is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill
of Rights w/c guarantees their rights to free speech
and the free exercise of religious profession and
worship.
            xxx
            xxx  Forcing a small religious group, through
the iron hand of the law, to participate in a ceremony
that violates their religious beliefs, will hardly be
conducive to love of country or respect for duly
constituted authorities.
            xxx
            The sole justification for a prior restraint or
existence of a grave and present danger of a
character both grave and imminent, of a serious evil
to public safety, moral, health or any other
legitimate public interest, that the state has a right
and duty to prevent.  Absent such a threat to public
safety, the expulsion of the pets. from the schools is
not justified.
            xxx
            Although petitioners do not participate in the
compulsory flag ceremony, they do not engage in
external acts or behavior that would offend their
countrymen who believe in exercising their love of
country through the observance of the flag
ceremony.  They quietly stand at attention during the
ceremony to show their respect for the right of those
who choose to participate in the solemn
proceedings.  As there is no disruption, expulsion is
unwarranted.  
            However, if they should commit breaches of
peace by action that offend the sensibilities, both
religious and patriotic, of other persons, the school
authorities have the power to discipline them. 
 
Compare West V. Board of Education v. Barnette, 319
US 624 (1943)
 
F:         The State Board required public school pupils
to salute the flag of the United States while reciting a
pledge of allegiance under penalty of expulsion
entailing liability of both pupil and parents to be
proceeded against for unlawful absence. Appellees,
members of the Jehovah's Witnesses, consider the
flag as a graven image which they are forbidden to
Constitutional Law II
salute under their religious beliefs. The State asserts
the power to condition access to public education.
 
ISSUE: W/N the compulsory flag salute is valid.
RULING: NO.
            In connection with pledges, the flag salute is
a form of utterance. It requires an affirmation of a
belief and an attitude of mind. It is now a
commonplace that censorship or suppression of
expression of opinion is tolerated by the Constitution  F:              Benjamin Victoriano is an employee of the
only when the expression presents a clear and
present danger of action of a kind the State is
empowered to prevent and punish. Here the power of
compulsion is invoked without any allegation that
remaining passive during a flag salute ritual creates a
clear and present danger that would justify an  effort
even to muffle expression.
            To sustain the compulsory flag salute, we are
required to say that a Bill of Rights which guards the
individual's right to speak his mind left it open to
public authorities to compel him to utter what is not
in his mind.
                    The Court applies the limitations of the
Constitution with no fear that freedom to be
intellectually and spiritually diverse or even contrary
will disintegrate the social organization. To believe
that patriotism will not flourish if patriotic
ceremonies are voluntary and spontaneous instead of
a compulsory routine is to make an unflattering
estimate of the appeal of our institutions to free
minds.  have a secular purpose and that purpose must not
 
2.  Freedom to propagate religious doctrines
 
American Bible Society v. City of Manila, 101 P 386
(1957)
 
F:               Plaintiff is engaged in the distribution and
sale of bibles and religious articles. The City
Treasurer of Manila informed the plaintiff that it was
conducting the business of general merchandise
without securing the necessary license and paying the
requisite fee in violation of the City ordinance.
Plaintiff protested against this requirement as
constituting a restraint upon the exercise  of religion.
It claimed that it is not engaged in business which
necessitates the securing of a license as it never
made any profit from the sale of its bibles.
 
ISSUE: Whether or not the ordinance as applied to
petitioner is unconstutional  for being in restraint of
petitioner's right to free exercise  of religion.
 
HELD: YES. The power to tax the exercise of the
privilege is the power to control or suppress its
enjoyment. Those who can tax the exercise of
religious practice can make its exercise so costly as
to deprive it of the resources necessary for its
maintenance. It is true that the price  asked for the
religious articles was in some instances a little bit
higher than the actual cost of the same, but this
cannot mean that plaintiff was engaged in the
business or occupation of selling said "merchandise"
for profit. The mark up can only be treated as
contributions by the faithfuls to the religious cause.
The Ordinance  CANNOT be applied to plaintiff
society, for in so doing, it would impair its free
exercise and enjoyment of its religious profession and
worship, as well as its right to disseminate religious
beliefs.
3.  Exemtion from union shop
 
Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54
(1974)
 
Elizalde Rope Factory. In 1962, he resigned from the
respondent labor union on the ground that the Iglesia
ni Kristo of which he is a member prohibits union
membership. As the union demanded his dismissal
from employment pursuant to a closed shop
agreement, Victoriano brought this action for
injunction. The CFI ruled in his favor exempting from
the closed-shop contracts members of religious sects
which prohibit affiliation of their members in any
labor organization. The union appealed.
 
HELD:  The statute does not violate the rights of
association. It does not impair the obligation of
contracts for not only are existing laws read into
contracts in order to fix the obligation of the parties
but the reservation of essential attributes of
sovereign power is also read into such contracts.
Neither does the law constitute an establishment of
religion. It has been held that in order to withstand
objections based on this ground, the statute musr
directly advance or diminish the interest of any
religion. Congress acted merely to relieve persons of
the burden imposed by union security agreements. 
 
4.  Disqualification from local government
office
 
Pamil v. Teleron  86 SCRA 413 (1978)
 
F:              In 1971, Fr. Margarito Gonzaga was elected
mayor of Albuquerque, Bohol. A petition was filed
against him on the basis of section 2175 of the
Revised Administrative Code providing that "in nocase
shall there be elected or appointed to a municipal
office ecclesiastics, soldiers in active service, persons
receiving salaries from provincial funds, or
contractors for public works." The CFI dismissed the
petition on the ground that the ineligibility has been
impliedly repealed by section 23 of the 1971 Election
Code.
 
HELD:  The voting of the SC was inconclusive. Seven
justices held that section 2175 is no longer operative.
Justice Fernando held that section 2175 imposed a
religious test on the exercise of the right to run for
public office contrary to Art. III of the 1935
Constitution. Justice Teehankee held that section
2175 had been repealed by the Election Code.  Five
justices held that section 2175 is constitutional. 
 
 
VI.  LIBERTY OF ABODE AND OF TRAVEL
 
            Art. III, Sec. 6.  The liberty of abode and of
changing the same within the limits prescribed by
Constitutional Law II

law shall not be impaired except upon lawful order considered in the light solely of the constitutional
of the court.  Neither shall the right to travel be provisions guaranteeing liberty of abode and the right
impaired except in the interest of national to travel. It must be treated as a matter that is
security, public safety, or public health, as may be appropriately addressed to those residual unstated
provided by law.  powers of the President which are implicit in and
  correlative to the paramount duty residing in that
  office to safeguard and protect general welfare. In
Salonga v. Hermoso  97 SCRA 121 (1980) that context, such request or demand should submit
  to the exercise of a broader discretion on the part of
Right to travel the President to determine whether it must be
  granted or not.
                    This is not the first time petitioner Jovito  
Salonga came to the SC by way of a mandamus
proceeding to compel the issuance to him of a
certificate of eligibility to travel. In the first case,
Salonga v. Madella, the case became moot and
academic. The present petition is likewise moot and
academic. In the motion to dismiss filed by the
Solicitor General, it was stated that the certificate of
eligibility to travel had been granted petitioner.
                      Nonetheless, in view of the likelihood that
this Court may be faced again with the same
situation, it is desirable that respondent Travel
Processing Center should exercise the utmost care to
avoid the impression that certain citizens desirous of
exercising their constitutional right to travel could be
subjected to inconvenience or annoyance. The
freedom to travel is one of the most cherished. xxx 
 
 
Marcos v. Manglapus, 177 SCRA 668 & 178 SCRA 760
(1989)
 
F:              This petition for mandamus and prohibition
asks the Court to order the respondents to issue
travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the
implementation of the President's decision to bar
their return to the Philippines. The case for
petitioners is founded on the assertion that the right
of the Marcoses to return to the Philippines is
guaranteed under the provisions of the Constitution
respecting one's  liberty of abode and right to travel.
Respondents argue the primacy of the right of the
State to national security over individual rights.
 
RULING: The right involved in this case is not the
right to travel from the Philippines to other countries
or within the Philippines. Essentially, the right
involved is the right to return to one's country, a
totally distinct right under international law,
independent from although related to the right to
travel.
                    The right to return to one's country is not
among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and
the right to travel, but it is the Court's well
considered view that the right to return may be
considered as a generally accepted principle of
international law, and under our Constitution, is part
of the law of the land. However, it is distinct and
separate from the right to travel and enjoys a
different protection under the Intl. Covenant of Civil
and Political Rights, i.e. against being arbitrarily
deprived thereof.
            The request or demand of the Marcoses to be
allowed to return to the Philippines cannot be