ARTICLE III: BILL OF RIGHTS

Memory Aid
Kelvin Jaluag Culajara

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

1. What is the significance of Bill of Rights?

 Government is powerful. When unlimited, it becomes tyrannical. The Bill of Rights is a
guarantee that there are certain areas of a person’s life, liberty, and property which
governmental power may not touch.

2. What are the powers of the government?

 Eminent domain
 Taxation
 Police power

3. Why are these powers considered inherent powers?

 Because no government may exist without any of the said powers, and that said powers are
automatically possessed by the government and are not constitutional grants. A constitution
may only limit or suppress these powers.

4. Differentiate Article II Bill of Rights from Article XIII Social Justice

 The Bill of Rights focuses on civil and political rights, while the Social Justice focuses on
social and economic rights.
 The Bill of Rights is self-implementing and may be appealed to even in the absence of
implementing legislation, while the Social Justice generally require implementing legislation.

5. What is police power?

 Police power has been defined as that “inherent and plenary power in the State which
enables to prohibit all that is hurtful to the comfort, safety, and welfare of society.”

6. What is the scope of police power?

 It rests upon public necessity and upon the right of the State and of the public to self-
protection. Hence, its scope expands and contracts with changing needs.

7. Who exercises police power?

 The national government, through the legislative department exercises police power. It may
also be delegated to local governments.

Notes:
 Only political subdivisions, like cities and municipalities, may exercise police power. Hence,
MMDA which is a metropolitan development authority, has no power to execute the same.
 Franchises are subject to police power and regulation.

Protected rights
 8. What rights are protected by the Bill of Rights?
 The right to life, liberty, and property.

9. What is the right to life?

 It is not only about the right to be alive or the security of one’s limb against physical harm.
The right to life is the right to a good life. The emphasis on quality of living is found in Article
II where Section 6 commands the State to promote a life of “dignity” and where Section 7
guarantees “a decent standard of living”. Note: The unborn has a constitutional right to
life. Section 12 of Article II mandates the protection of the life of the mother and the
unborn.

10. What does “property” include?

 All kinds of property found in the Civil Code.
 Vested rights such as a perfected mining claim, or a perfected homestead, or a final
judgment.
 The right to work and the right to earn a living.
 One’s employment, profession , or trade.
 A mere privilege if it has been enjoyed for so long, has been the subject of substantial
investment, and has become the source of employment for thousands.

Note: generally, privileges are withdrawable if the public interest requires its withdrawal.
However, it has been enjoyed for so long, has been the subject of substantial investment, and
has become the source of employment for thousands, then it may evolve into some form of
property right.

11. Do life and property enjoy identical protection from the Constitution?
 No. The primacy of human rights over property rights is recognized.

12. How does the state manifest the primacy of human rights over property rights?
 The fact that a mere reasonable or rational relation between the means employed by the
law and its object or purpose – that the law is neither arbitrary nor discriminatory nor
oppressive – would suffice to validate a law which restricts or impairs property rights. On
the other hand, a constitutional or valid infringement of human rights requires a more
stringent criterion, namely existence of a grave and immediate danger of a substantive evil
which the State has the right to prevent.

Due process

13. What are the two aspects of due process?

 Procedural due process – relates chiefly to the mode of procedure which the government
agencies must follow in the enforcement and application of laws. It is a guarantee of
procedural fairness where the law hears before it condemns.
 Substantive due process – relates chiefly to the prohibition of arbitrary laws.

14. What are the essential requirements of procedural due process in courts in non-criminal cases?
 There must be a court or tribunal clothed with judicial power to hear and determine the
matter before it;
  Jurisdiction must be lawfully acquired over the person of the defendant or over the property
which is the subject of the proceedings;
 The defendant must be given an opportunity to be heard;
 Judgment must be rendered upon lawful hearing.

15. When is a law considered “so vague” as not to satisfy the due process need for notice?
 It is considered so vague when men it lacks comprehensible standards that men of common
intelligence must guess as to its meaning and differ as to its application.
 It is repugnant to the Constitution in two (2) respects:
o It violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and
o It leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.

16. What are the requisites of procedural due process before administrative agencies?
 The right to actual or constructive notice of the institution of proceedings which may affect
a respondent’s legal rights;
 A real opportunity to be heard personally or with the assistance of counsel, to present
witnesses and evidence in one’s favor, and to defend one’s rights;
 A tribunal vested with competent jurisdiction and so constituted as to afford a person
charged administratively a reasonable guarantee of honesty as well as impartiality; and
 A finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained the records of made known to the parties
affected.

Note: A publication for the effectivity of laws is a requirement of due process. Moreover, a
respondent in an administrative case is not entitled to be informed of the findings and
recommendations of an investigating committee created to inquire into the charges filed. He
is only entitled to the administrative decision based on substantial evidence made of record,
and a reasonable opportunity to meet the charges and the evidence presented against him
during the hearing of the investigation committee.

17. What quantum of proof is needed in administrative proceedings?

 Only substantive evidence. Substantive evidence means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.

18. Are notice and hearing always required in administrative proceedings?

 In quasi-judicial proceedings, yes. In the performance of executive or legislative functions
(such as issuing internal rules and regulations), no.

19. When do laws interfere with life, liberty, or property satisfy substantive due process?
 It must appear:
o That the interests of the public generally, as distinguished from those of a particular
class, require such interference; and
o That the means are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.
Equal protection

20. What is the meaning of “equal protection of the law?”

 It means legal equality, or the equality of all persons before the law. Under it, each
individual is dealt with as an equal person in the law, which does not treat the person
differently because of who he is or what he is or what he possesses.

21. What are exceptions to the equal protection of the law?

 Classifications, generally, are not permissible. However, to be reasonable they:
o Must rest on substantial distinctions;
o Must be germane to the purpose of the law;
o Must not be limited to existing conditions only; and
o Must apply equally to all members of the same class.

22. What are the standards of judicial review?

 Rational basis test – described as adopting a “deferential” attitude towards legislative
classification. It applies to legislative classifications in general, such as those pertaining to
economic or social legislation.
 Strict scrutiny test – a legislative classification which impermissibly interferes with the
exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class is
presumed unconstitutional, and the burden is upon government to prove that the
classification is necessary to achieve a compelling state interest and that it is the least
restrictive means to protect such interest. This is used on issues of speech, gender, and race.
 Immediate scrutiny test – government must show that the challenged classification serves
an important state interest and that the classification is at least substantially related to
serving that interest.

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

23. What is the purpose of Section 2?

 To protect the privacy and sanctity of the person and of his house and other possessions
against unreasonable and arbitrary intrusions by State officers. Section 2 only shields against
unreasonable searches and seizures, and not to valid forms of searches and seizures. Note:
The constitutional proscription against unlawful searches and seizures applies as a
restraint directed only against the government and its agencies tasked with law
enforcement. It cannot be applied to searches and seizures perpetrated by private
individuals.

24. When are searches and seizures unreasonable?

 They are generally unreasonable unless authorized by a validly issued search warrant or
warrant of arrest.

25. What are the essential requisites of a valid warrant?

  It must be issued upon probable cause
 Probable cause must be determined personally by a judge
 Such judge must examine under oath or affirmation the complainant and the witnesses he
may produce; and
 The warrant must particularly describe the place to be searched and the persons or things to
be seized.

Probable cause

26. What is probable cause?

These are facts and circumstances antecedent to the issuance of a warrant that are in
themselves sufficient to induce a cautious man to rely upon them. Note: The prosecution need
not present proof beyond reasonable doubt, but mere probability. Furthermore, the warrant
of arrest must point to specific offender. Meanwhile, a search warrant need not point out to a
specific offender. It needs to particularly describe the place to be searched and the things to
be seized.

Note:
o Probable cause for issuance of warrant of arrest – such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested.
o Probable cause for issuance of search warrant – 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.

27. Who may determine probable cause?

 For the purpose of filing an information – the prosecution;
 For the purpose of issuing a warrant – only a judge.

Note: A Commissioner on Immigration may order the arrest of an alien for the purpose of
carrying out a deportation order that has already become final. However, since he is not a
judge, he may not issue warrants of arrest in aid merely of his investigatory power.

Personal examination

28. What is the meaning of “personally” in the search and seizure clause?
 It is the exclusive and personal responsibility of the issuing judge to satisfy himself of the
existence of probable cause. He is not required to personally examine the complainant and
his witnesses. He may, therefore, rely on the fiscal’s report or on the supporting affidavits of
witnesses to determine the existence of probable cause. Hence, what it contemplates is
personal determination and not personal examination.

29. What are the procedures the judge may follow to determine probable cause?
 The judge must examine the complainant and his witnesses under oath or affirmation. This
has been interpreted as requiring a personal and not merely delegated examination by the
judge or by the proper officer, because the purpose of the examination is to convince the
 judge or officer himself and not any other individual. Note: in this case, the examining
judge has to take depositions in writing of the complainant and the witnesses he may
produce and to attach them on record. This is necessary in order that the judge may be
able to properly determine the existence or non-existence of the probable cause, to hold
liable for perjury the person giving it if it will be found later that his declarations are false.
 Personally evaluate the report and supporting documents submitted by the prosecutor
regarding the existence of probable cause, and on the basis thereof, he may already make a
personal determination of the existence of probable cause;
 If the judge is not satisfied that probable cause exists, he may disregard the prosecutor’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.

Particularity of description

30. What is the meaning of particularity of description?

 A search warrant may be said to particularly describe the things to be seized when the
description therein is as specific as the circumstances will ordinarily allow and by which the
warrant officer may be guided in making the search and seizure. Note: the purpose of
particularity is to prevent abuse by the officer enforcing the warrant by leaving to him no
discretion as to who or what to search or seize. A search warrant does not contemplate
technical precision. A John Doe warrant may satisfy particularity provided that it contains
description such as will enable the officer to identify the accused.

31. May bank deposits be freely examined (based on R.A. No. 1405 Secrecy of Bank Deposits Law)
 Generally, no, unless under any of the following circumstances:
o Where the depositor consents in writing;
o In impeachment cases;
o By court order in bribery or dereliction of duty cases against public officials;
o Deposit is subject of litigation.

32. What is the ruling on the constitutionality of RA No. 9165 (Comprehensive Dangerous Drugs Act
of 2002) which required mandatory drug testing?
 As to candidates for national public office – it is unconstitutional because it adds
qualifications for such offices prescribed by the Constitution;
 As to students – it is constitutional under the following reasonings:
o Schools and administrators stand in loco parentis with respect to their students;
o Minor students have contextually fewer rights than an adult, and are subject to
custody and supervision of their parents, guardians, and schools;
o Schools, acting in loco parentis, have a duty to safeguard the health and well-being
of their students and may adopt measures to discharge such duty; and
o Schools have the right to impose conditions on applicants for admission that are
fair, just, and non-discriminatory.
 As to employees – constitutional.
 As to candidates for local office – it was deemed unreasonable and oppressive to privacy.
 As to those charged before the prosecutor’s office – unconstitutional.
 33. What is the consequence of a search or seizure without a warrant or by authority of an invalid
warrant (exclusionary rule)?
 Any evidence obtained shall be inadmissible. Note: the defense of unreasonable search or
seizure is a personal defense and cannot be availed of by third parties.

Allowable searches and seizures

34. What are the instances of allowable warrantless searches?

 Warrantless search incidental to a lawful arrest, provided:
o The item to be searched was within the arrestee’s custody or area of immediate
control;
o The search was contemporaneous with the arrest.
 Seizure of evidence in plain view, provided:
o A prior valid intrusion to a place;
o The evidence was inadvertently discovered by the police who had the right to be
where they are;
o The illegality of the evidence must be immediately apparent; and
o Is noticed without further search.
 Searching of a moving vehicle, provided:
o That there is high reasonable suspicion amounting to probable cause that the
occupant committed a criminal activity.
 Consented warrantless search, provided:
o It must appear that the right exists;
o That the person involved had knowledge, either actual or constructive, of the
existence of such right;
o That said person had actual intention to relinquish the right.
 Customs search or seizure of goods concealed to avoid duties
 Stop and frisk
 Exigent emergency circumstances

35. What is the stop and frisk rule?

 Where a police officer observes unusual conduct which leads him reasonable to conclude in
light of his experience that criminal activity may be afoot and that the person with whom he
is dealing may be armed and presently dangerous, where in the course of investigation of
this behavior he identifies himself as a policeman and makes reasonable inquiries, and
where nothing in the initial stages of the encounter serves to dispel his reasonable fear for
his own or other’s safety, he is entitled for the protection of himself and of others to
conduct a carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him.

36. What are instances of allowable warrantless arrests?

 When, in the presence of a peace officer or a private person, the person to be arrested
committed, is actually committing, or attempting to commit an offense;
 When an offense has in fact been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed to it; and
  When the person to be arrested is a prisoner who has escaped from a penal establishment
or place where he is serving final judgment or temporarily confined while his case is
pending, or has escaped while being transferred from one confinement to another.

Note: it is not enough that there is reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact or actually have been committed first.
Any objection involving a warrant of arrest must be made before he enters his plea, otherwise
his objection is deemed waived.

Section 3. (1) The privacy of communication and correspondence shall be inviolable, except upon lawful
order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

37. What forms of correspondence and communication are covered by this provision?
 It covers letters, messages, telephone calls, telegrams, and the like.

38. When is intrusion into the privacy of communication and correspondence allowed?
 Upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.

39. Upon what grounds may a court allow intrusion?

 Upon probable cause.

40. What is required on the communication or correspondence sought to be seized?

 The identity of the person/s whose communication is to be intercepted, and the identity of
the offense/s sought to be prevented, and he period of the authorization given can be
specified.

41. What are the requisites when intrusion is made without judicial order?
 When public safety or order requires so as prescribed by law.

42. Discuss the Anti-Wiretapping Law (R.A. 4200).

 It is an implementing statute of Section 3. It provides penalties for specific violations of
private communication. It allows, however, court-authorized taps under specific conditions
for treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the
high seas, rebellion, conspiracy and proposal to commit rebellion, inciting rebellion,
sedition, conspiracy to commit sedition, inciting to sedition, and kidnapping.
 Said law prohibits the overhearing, intercepting, or recording of private communications.
Thus, a tape recording of an altercation or verbal exchange between a policeman and a
radio reporter at a police station is admissible in evidence.

43. What is the Writ of Habeas Data

 This is the remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official or employee, or of
 a private individual or entity engaged in the gathering, collecting, or storing of data or
information regarding the person, family, home and correspondence of the aggrieved party.

44. What is the effect of violation of Sections 2 and 3(1)?

 Any evidence obtained in violation of said provisions are inadmissible for any purpose in any
proceeding. Note: In the absence of governmental interference, the constitutional right
against unreasonable search and seizure cannot be invoked against the state. The
protection against unreasonable search and seizure cannot be extended to acts
committed by private individuals so as to bring it within the ambit of alleged unlawful
intrusion by the government.

Note: An application for bail or the admission to bail by an accused is not considered a waiver
of his right to assail the warrant issued for his arrest or the legalities or irregularities thereof.

45. Discuss the main points of the Cybercrime Law (R.A. 10175).
 The State recognizes the vital role of information and communications industries such as
content production, telecommunications, broadcasting electronic commerce, and data
processing, in the nation’s overall social and economic development.
 The State also recognizes the importance of providing an environment conducive to the
development, acceleration, and rational application and exploitation of information and
communications technology to attain free, easy, and intelligible access to exchange and/or
delivery of information;
 The State also recognizes the need to protect and safeguard the integrity of computer,
computer and communications systems, networks, and databases, and the confidentiality,
integrity, and availability of information and data stored therein, from all forms of misuse,
abuse, and illegal access by making punishable under the law such conduct or conducts.
 In this light, the State shall adopt sufficient powers to effectively prevent and combat such
offenses by facilitating their detection, investigation, and prosecution at both the domestic
and international levels, and by providing arrangements for fast and reliable international
cooperation.

46. What are the factors to determine violation of the right to privacy?
 A court must determine whether a person has exhibited a reasonable expectation of
privacy; and if so
 Whether that expectation has been violated by unreasonable government intrusion.

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

47. What do “speech”, “expression”, and “press” include?

 They include every form whether oral, written, tape or disc recorded. It also includes movies
as well as what is referred to as symbolic speech such as the wearing of an armband as a
symbol of protest. Peaceful picketing has also been included within the meaning of speech.

No prior restraint

48. What does prior restraint mean?

  Prior restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Its most blatant form is a
system of licensing administered by an executive order, or an unjunction against
publication.

49. Is the prohibition of “prior restraint” absolute?

 No. There are exceptions to the rule, such as:
o When a nation is at war, many things that might be said in time of peace are such a
hindrance to its effort that the utterance will not be endured so long as men fight
and that no court could regard them as protected by any constitutional right. The
scope and coverage of restraint might be on information regarding its recruiting
service or the publication of sailing dates of transports, or the number and location
of troops;
o When the primary requirement of decency would require restraint;
o When the security of community life requires so, that it may be protected against
incitements to acts of violence and the overthrow by force of an orderly
government.

50. What are the different types of considerations in regulation contemplated in Section 4?
 Content-based regulation – the restraint is aimed at the message or idea of the expression.
Apply the Strict Scrutiny Test and the challenged act must overcome the clear and present
danger rule.
 Content-neutral regulation – restraint is aimed to regulate the time, place or manner of the
expression in public place without any restraint on the content of the expression. Apply the
Intermediate Approach Test wherein a regulation is justified if it is within the constitutional
power of government, furthers an important or substantial government interest,
government interest is unrelated to the suppression of free expression, and the incident
restriction on the alleged freedom of speech and expression is no greater than is essential to
the furtherance of that interest. Here, it only requires substantial government interest for
validity.
 Facial challenge concept – it is an exception to the rule that only persons who are directly
affected by a statute have legal standing to assail the same. This is only applicable to
statutes involving free speech, impeached on the grounds of overbreadth or vagueness.
Here, the litigants are permitted to challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction or assumption that the statute’s
very existence may cause others not before the court to refrain from constitutionally
protected speech or expression.

Note: Imbong vs. Ochoa: While this Court has withheld the application of facial challenges
to strictly penal statutes, it has expanded its scope to cover statutes not only regulating free
speech, but also those involving religious freedom, and other fundamental rights. The
underlying reason for this modification is simple. For unlike its counterpart in the U.S., this
Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to
settle actual controversies involving rights which are legally demandable and enforceable,
but also to determine whether or not there has been grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
 Note: The Overbreadth Doctrine is a ground to declare a statute void when it offends the
constitutional principle that a government purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.

51. Since movie censorship is a form of prior restraint, how can it escape unconstitutionality
according to Freedman vs. Maryland?
 It avoids constitutional infirmity only if it takes place under procedural safeguards:
o First, the burden of proving that the film is unprotected expression must rest on the
censor;
o Second, only a procedure requiring judicial determination suffices to impose a valid
final restraint;
o Third, the procedure must also assure a prompt judicial decision to minimize the
effect of an interim and possibly erroneous denial of a license.

Note: We do not entirely adopt the ruling in Freedman vs. Maryland because prior restraint and
censorship are not ruled entirely by the Court. The MTRCB, an administrative body, was granted
quasi-judicial power to preview and classify TV programs and enforce its decision subject to
review by our Courts. Hence, the second procedure in Freedman does not apply to us.

52. What are some forms of protected speech?

 Speech which communicates political, social or religious ideas. Note: Commercial speech is
not among the protected speeches. Note: The protection afforded to the said speeches are
not absolute. This is introduced by the concept of “Heckler’s Veto” where it involves
situations in which the government attempts to ban protected speech because it might
provoke a violent response.

53. What are the tests for valid government interference to freedom of expression?
 Clear and present danger test – the words must be of such a nature that by uttering them
there is a danger of a public uprising and that such danger should be both clear and
imminent. The danger sought to be apprehended must be clear and imminent, something
that the State has the right to prevent, and would probably result to the injury of the State.
 Dangerous tendency test – if the words tend to create a danger of public uprising.
 Balancing of interest test – the Courts should balance the public interest served by
legislation on one hand and the freedom of speech (or any other constitutional right) on the
other. The Courts will then decide where the greater weight should be placed.

54. What are some forms of state regulation of different types of media?
 Broadcast and radio media – it must first procure a legislative franchise to operate, and it
must register and be subject to regulations set by the National Telecommunications
Commission (NTC);
 Print media

55. What are some forms of valid prior restraint (or unprotected speech)?
 Movies, television, and radio broadcast censorship in view of its access to numerous people;
 Pornography
 False or misleading commercial statement
  Advocacy of imminent lawless action
 Danger to national security

Commercial speech

56. What is the meaning of commercial speech?

 A communication which proposes a commercial transaction.

57. In order for government to curtail commercial speech, what must be shown?
 That the government has substantial interest to protect
 The regulation directly advances that interest
 It is not more extensive than is necessary to protect that speech

Note: To enjoy protection, commercial speech must not be false or misleading and should not
propose and illegal transaction.

Subsequent punishment

58. What is the second basic prohibition of the free speech and press clause?
 It also prohibits systems of subsequent punishment which have the effect of unduly
curtailing expression.

59. What are the standards for allowable subsequent punishment of expression?
 Clear and present danger test – the words must be of such a nature that by uttering them
there is a danger of a public uprising and that such danger should be both clear and
imminent. The danger sought to be apprehended must be clear and imminent, something
that the State has the right to prevent, and would probably result to the injury of the State.
 Dangerous tendency test – if the words tend to create a danger of public uprising.
 Balancing of interest test – the Courts should balance the public interest served by
legislation on one hand and the freedom of speech (or any other constitutional right) on the
other. The Courts will then decide where the greater weight should be placed.

Symbolic speech

60. When is a government regulation justified?

 When it is within the constitutional powers of the government;
 When regulation furthers an important or substantial government interest unrelated to the
suppression of free expression;
 When the incidental restriction on alleged freedom is no greater than is essential to that
interest.

Libel

61. What is libel?

 Libel is a public and malicious imputation of a crime, or of a vice or a defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the
 dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory
of one who is dead.

62. What are the elements of libel?

 The allegation of a discreditable act or condition concerning another;
 Publication of the charge; Note: It means making the defamatory matter, after it has been
written, known to someone other than the person to whom it has been written.
 Identity of the person defamed;
 Existence of malice. Note: There is malice when the author of the imputation is prompted
by ill-will or spite and speaks not in response to duty but merely to injure the reputation of
the person who claims to have been defamed.

63. State the rule on privileged communication in Article 354 in the Revised Penal Code
 Every defamatory imputation is presumed to be malicious, even if it be true if no good
intention and justifiable motive for making it is shown, except in the following cases:
o A private communication made by any person to another in the performance of any
legal, moral, or social duty; and
o A fair and true report, made in good faith, without any comments or remarks, of any
juridical, legislative, or other official proceedings which are not of confidential
nature, or of any statement, report, or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of their functions.

64. List some instances of privileged communication

 Parties, counsel, and witnesses are exempted from liability in libel or slander for words
otherwise defamatory published in the course of judicial proceedings, provided the
statements are relevant to the case.
 Fair commentaries on matters of public interest are privileged and constitute a valid defense
in an action for libel or slander.
 Publication of complaint filed with the Securities and Exchange Commission before any
judicial action is taken thereon.

Libel of public officials and public figures

65. What is the rule of libel against public officials?

 Public officials are prohibited from recovering damages for a defamatory falsehood relating
to his official conduct unless he proves that the statement was made with actual malice.
Note: This does not presuppose that public figures are not protected. If the utterances are
false, malicious or unrelated to public officer’s performance of his duties or irrelevant to
matters of public interest involving public figures, the same may give rise to criminal and
civil liability.

Obscenity and indecency

66. What is the test for obscenity?

 Whether the average person, applying contemporary community standards would find that
work, taken as a while, appeals to prurient interest;
  Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law;
 And whether the work taken as a whole lacks literary, artistic, political, or scientific value.

Assembly and petition

67. What is the right of assembly and petition?

 It is the right of the people peaceably to assemble and petition the government for fredress
of grievances.

68. What is the extent of authority of the state to regulate public assemblies?
 The State has 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.
 To justify limitations on freedom of assembly, there must be proof of sufficient weight to
satisfy the “clear and present danger” test.
 Demonstrations are not allowed in the vicinity of courts, specifically within a radius of 200
meters from, the outer boundary of the Supreme Court Building and any Hall of Justice, and
any other building that houses at least one (1) court sala.

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

69. What is the non-establishment clause?

 No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. Note: This clause prohibits the establishment of any religion.

70. What is the free exercise clause?

 The free exercise and enjoyment of religious profession or worship, without discrimination
or preference, shall forever be allowed. Note: This clause guarantees the free exercise of
religion.

71. What are the other constitutional provisions relating to the non-establishment clause?
 No public money or property shall be appropriated, applied, paid or employed, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, or other religious
teacher or dignitary as such, except when such priest, preacher minister, or dignitary is
assigned to the Armed Forces, or to any penal institution, or government orphanage or
leprosarium. Article VI, Section 29.
 The separation of Church and State shall be inviolable. Article II, Section 6.
 Religious denominations and sects shall not be registered. Article IX, Section 2 (5).

72. What is the purpose of non-establishment clause?

 Voluntarism and insulation of political process from interfaith dissention.
 73. What is voluntarism?
 Voluntarism as a value is both personal and social. As a personal value, it is nothing more
than the inviolability of the human conscience which is also protected by the free exercise
clause. As a social value, it means that the growth of a religious sect as a social force must
come from the voluntary support of its members because of the belief that both spiritual
and secular society will benefit if religions are allowed to compete on their own intrinsic
merit without benefit of official patronage.

Non-establishment of religion

74. When can the State be allowed to provide aid which might redound to the benefit of religion?
 The government aid must have a secular legislative purpose;
 It must have a primary effect that neither advances nor inhibits religion;
 It must not require excessive entanglement with recipient institutions.

75. What is an ecclesiastical affair?

 It is one that concerns doctrine, creed or form of worship of the church, or the adoption and
enforcement within a religious association of needful laws and regulations for the
government of the membership, and the power of excluding from such associations those
deemed unworthy of membership. Note: In matters purely ecclesiastical, the decisions of
the proper church tribunals are conclusive upon the civil tribunals. A church member who is
excommunicated is without remedy in civil courts.

76. Are there constitutionally created exceptions to the non-establishment clause?

 Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques,
and 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. Article VI, Section 28 (3).
 No public money or property shall ever be appropriated, applied, paid, or employed, directly
or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, or other religious
teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is
assigned to the Armed Forces, or to any penal institution, or government orphanage or
leprosarium. Article VI, Section 1 (2).
 At the option expressed in writing by the parents or guardians, religion shall be allowed to
be taught to their children or wards in public elementary and high schools within the regular
class hours by instructors designated or approved by the religious authorities of the religion
to which the children or wards belong, without additional cost to the Government. Article
XIV, Section 3 (3).

Free exercise of religion

77. What is the meaning of free exercise of religion?

 It forestalls compulsion by law of the acceptance of any creed or the practice of any form of
worship.
 Freedom of conscience and freedom to adhere to such religious organization or form of
worship as the individual may choose cannot be restricted by law.
  It safeguards the exercise of the chosen form of religion. Note: Freedom to believe and
freedom to act are protected by the free exercise of religion, the former being absolute,
while the latter otherwise.

78. Explain the concept of freedom to believe and freedom to act.

 Freedom to believe – the government cannot inquire into a person’s religious pretensions,
because men may believe what they cannot prove. They may not be put to the proof of
their religious doctrines or beliefs.
 Freedom to act – the moment the belief flows into action, it can now be under
government’s regulation.

79. What are the tests for valid government regulation on religious freedom?
 Clear and present danger test – when words are used in such circumstance and of such
nature as to create a clear and present danger that will bring about the substantive evil that
the State has a right to prevent.
 Compelling state interest test – when a law of general application infringes religious
exercise, albeit incidentally, the state interest sought to be promoted must be so paramount
and compelling as to override the free exercise claim. Note: This has a three step test: (1)
Has the statute or government action created a burden on the free exercise of religion? (2)
Is there a sufficiently compelling state interest to justify this infringement of religious
liberty? (3) Has the state in achieving its legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?
 Conscientious objector test – persons who are conscientiously opposed to participation in
war in any form by reason of religious training and belief may be exempted from the combat
training and service in the armed forces. Religious training and belief means an individual’s
belief in relation to a Supreme Being involving duties superior to those arising from any
human relation, but does not include essentially political, sociological, or philosophical views
or merely personal code.

Prohibition of religious test

80. What is the purpose of prohibition of religious test?

 To render the government powerless to restore the historically and constitutionally
discredited policy of probing religious beliefs by test oaths or limiting public offices to
persons who have, or perhaps more properly, profess to have a belief in some particular
kind of religious concept.

Section 6. The liberty of abode or 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.

Notes:

Article 13 of the Universal Declaration of Human Rights provides:

(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 12 of the Covenant on Civil and Political Rights provides:
(1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
(2) Everyone shall be free to leave any country, including his own.
(3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (ordre public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
(4) No one shall be arbitrarily deprived of the right to enter his own country.

Human Security Act, Section 26: In cases where evidence of guilt is not strong, and the person charged
with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same,
the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the
municipality or city where he resides or where the case is pending, in the interest of national security
and public safety. Travel outside said municipality or city without the authorization of the court, shall be
deemed a violation of the terms and conditions of his bail, which shall then be forfeited under the Rules
of Court.

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

81. What are the rights guaranteed by Section 7?

 The right to information on matters of public concern, and
 The corollary right of access to official records and documents.

Note: These are political rights available to citizens only.

82. What are the limits on these rights?

 They are subject to such limitations as may be provided by law;
 The standards that have been developed for the regulation of speech and press and of
assembly and petition and of association are applicable to the right of access to information.

83. What are important highlights under this section?

 Public concern embraces a spectrum of subjects which the public may want to know, either
because those directly affect their lives or simply because such matters arouse the interest
of an ordinary citizen.
 It is incumbent upon government to disclose sufficient public information on any proposed
settlement they have decided to take, as long as such information must pertain to definite
propositions of the government and not necessarily to intra-agency or inter-agency
recommendations or communications during the stage when common assertions are still in
the process of being formulated or are in exploratory stage.

84. Are court records covered by the right to information?

  Decisions and opinions are matters of public concern and interest, hence they are covered.
However, pleadings and other documents filed by parties are not matters of public concern.

85. What are some of the recognized limitations to the exercise of the right to information and state
policy of public disclosure?
 National security matters
 Trade secrets and banking transactions
 Criminal matters or classified law enforcement matters
 Diplomatic correspondence
 Closed door cabinet meetings
 Executive sessions of either Houses of Congress
 Internal deliberations of the Supreme Court

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

Section 9. Private property shall not be taken for public use without just compensation

86. What is the power of eminent domain?

 It is the power of the state to take private property for public use upon payment of just
compensation. It is possessed by the State and is exercised by the national government.

87. What are constitutional provisions on eminent domain?

 Article III, Section 9 (see the aforestated provision)
 Article XII, Section 18 (public utilities)
 Article XIII, Section 4 (land reform)
 Article XVIII, Section 22 (idle or abandoned agricultural lands)

88. What is the scope of the power of eminent domain?

 It is plenary.

89. What are the elements of eminent domain?

 There is taking or private property;
 The taking must be for needed public use;
 There must be just compensation

Taking

90. What circumstances constitute taking?

 The expropriator must enter upon the private property;
 The entrance must not be for a momentary period, that is, the entrance must be
permanent;
 The entry must be under warrant or color of legal authority;
 The property must be devoted to public use or otherwise informally appropriated or
injuriously affected;
 The utilization of the property must be in such a way as to oust the owner and deprive him
of all beneficial enjoyment of the property.
 Note: Generally a right of way or mere installation of transmission lines is not tantamount to
taking. But if they would result to the imposition of limitation against the use of the land for an
indefinite period, there is compensable taking.

Note: Franchises are subject to police power, and the mandatory regulation by the government
is not a form of taking but a form of police power regulation.

Note: There is no compensable taking when the thing seized or taken is injurious private
property.

Public use

91. What is public use?

 It is use by the public, or something that is equivalent to what benefits public welfare.

Just compensation

92. What is just compensation?

 It is the just and complex equivalent of the loss which the owner of the thing expropriated
has to suffer by reason of expropriation. It includes not only the correct market value to be
paid to the land owner but also the payment for the land within a reasonable time from its
taking.

Judicial review

93. Is the exercise of the powers of eminent domain subject to judicial review?
 Yes, under the following issues:
o The adequacy of the compensation
o The necessity of the taking
o The public use character of the purpose of the taking

94. What are the essential requisites for a local government unit to validly exercise eminent
domain?
 An ordinance must authorize it. Thus, a local government may not expropriate on the
strength of a sanggunian resolution alone.

95. What are the other limitations on the eminent domain powers of local governments?
 There are mandatory limits with respect to (1) the order of priority in acquiring land for
socialized housing, and (2) the resort to expropriation proceedings as a means to acquiring
it.
 Private lands rank last in the order of priority for purposes of socialized housing.
 Expropriation proceedings may be resorted to only after the other modes of acquisition are
exhausted.

Section 10. No law impairing the obligation of contracts shall be passed.

 96. When may a law be said to have impaired the obligation of contracts?
 A law which changes the term of a legal contract between parties, either in the time or
mode of performance, or imposes new conditions, or dispenses with those expressed, or
authorizes for its satisfaction something different from that provided in its terms, is a law
which impairs the obligation of a contract and is null and void. Note: This rule is not
absolute. A valid exercise of police power is superior to obligation of contracts.

Note: Franchises are public contracts and protected by Section 10. However they are subject to
the modifications by the State in its valid exercise of police power. Licenses, on the other hand,
are not contracts but are mere privileges to which the constitutional proscription against
impairment of the obligation of contracts may not extend. Licenses are always revocable by the
State, and they do not constitute any form of property to the grantee.

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

Notes:

 Free access to the courts shall not be denied to any person by reason of poverty. This
constitutional provision is the basis for the provision of Section 17, Rule 5 of the New Rules
of Court allowing litigation in forma pauperis. Those protected include low paid employees,
domestic servants, and laborers. They need not to be persons so poor that they must be
supported at public expense. It suffices that plaintiff is indigent.
 The difference between paupers and indigent persons is that the latter are ‘persons who
have no property or sources of income sufficient for their support aside from their own
labor though self-supporting when able to work and in employment”.
 An indigent party is one who is authorized by the court to prosecute his action or defense as
an indigent upon an ex parte application and hearing showing that he has no money or
property sufficient and available for food, shelter and basic necessities for himself and his
family.
Legal provisions on free access

 RA 6035 – stenographers are required to give free transcript of stenographic notes to

indigent and low-income litigants.
 Rules of Court, Rule 3, Section 21 - An indigent party is one who is authorized by the court to
prosecute his action or defense as an indigent upon an ex parte application and hearing
showing that he has no money or property sufficient and available for food, shelter and
basic necessities for himself and his family.
 Article III, Section 12 of the 1987 Constitution – the court appoints a counsel de officio for
an accused who cannot afford to engage the service of a counsel de parte.
 Rule on the Writ of Amparo, Section 4 – no docket or other lawful fees shall be required for
the filing of the petition.
 Rule on the Write of Habeas Data, Section 4 – no docket and other lawful fees are required
from the indigent petitioner.
Section 12. (1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to be silent and to have competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation or any other means which vitiates the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

97. What rights are made available to a person under investigation?

 The right to remain silent;
 The right to competent and independent counsel preferably of his own choice;
 The right to be informed of such rights.

98. What is the reason for making the rule applicable to investigations?
 It is but recognition of the fact that the psychological, if not physical atmosphere of
custodial investigations, in the absence of proper safeguards, is inherently coercive.
 The right to counsel is intended to preclude the slightest coercion as would lead the accused
to admit something false. The lawyer, however, should never prevent an accused from
freely and voluntarily telling the truth.
 This constitutional right extends only to testimonial compulsion and not when the body of
the accused is proposed to be examined. Hence, an accused cannot assail violation of his
rights when he was subjected to paraffin test without the presence of his lawyer.

99. When did these guarantees in favor of a person under investigation take effect?
 It took effect upon the effectivity of the 1973 Constitution on January 17, 1973. The
Supreme Court ruled that the provision has no retroactive effect.

100. What is the immediate jurisprudential antecedent of this provision?

 In Miranda vs. Arizona, 384 U.S. 346 (1966), the American Supreme Court said that the
following constitutional requirements must be observed in custodial investigations:
o The person in custody must be informed at the outset in clear and unequivocal
terms that he has a right to remain silent.
o After being so informed, he must be told that anything he says can and will be used
against him in court.
o He must be clearly informed that he has the right to consult with a lawyer and to
have the lawyer with him during the interrogation. He does not have to ask for a
lawyer. The investigators should tell him that he has the right to counsel at that
point.
o He should be warned that not only has he the right to consult with a lawyer but also
that if he is indigent, a lawyer will be appointed to represent him.
 o Even if the person consents to answer the questions without the assistance of
counsel, the moment he asks for a lawyer at any point in the investigation, the
interrogation must cease until an attorney is present.
o If the foregoing protections and warnings are not demonstrated during the trial to
have been observed by the prosecution, no evidence obtained as a result of the
interrogation can be used against him.

When and in what circumstances the rights are available

101. When do the above rights begin to be available?

 The investigation is no longer a general inquiry into an unsolved crime but has begun to
focus on a particular suspect, the suspect has been taken into police custody, the police
carry out a process of interrogation that lends itself to eliciting incriminating statements.
 After a person has been taken into custody or otherwise deprived of his freedom of action in
any significant way.
 A person under custodial investigation.
 Where an individual has not been formally arrested but has merely been “invited” for
questioning (R.A. No. 7348).
 In cases of reenactment of a crime.

Note: The rights above are not available before police investigators become involved. Thus, the
protection is not available to:
 Persons undergoing audit because an audit examiner is not a law enforcement officer.
Navallo vs. Sandiganbayan, 234 SCRA 175 (1994)
 Where a person, not being under investigation, presents himself to the police and in the
process makes his admissions, People vs. Tayaran, 108 SCRA 373, 378-9 (1981)

102. What is a custodial investigation?

 It involves any questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant way. It is
only after the investigation ceases to be a general inquiry into an unsolved crime and begins
to focus on a particular suspect, the suspect is taken into custody, and the police carries out
a process of interrogations that lends itself to eliciting incriminating statements that the rule
begins to operate.

Circumstances not covered

103. What are some circumstances not covered by Section 12?

 A person in a police line-up of no questions are asked. Note: The moment where there is a
move or even an urge of investigators to elicit admissions or confessions or even plain
information which may appear innocent or innocuous at the time, he should be assisted by
counsel unless waived in writing.
 A person who presents himself to the police to surrender since a surrenderee can be hardly
said to have already been under investigation.

Note: An investigation by an administrative body is not covered by Section 12 because such

inquiries are conducted merely to determine whether there are facts that merit disciplinary
 measures against erring public officers and employees, with the purpose of maintaining the
dignity of government service.

Note: The statement of a person who verbally, spontaneously and accidentally admitted his
guilt and pointed out the mastermind of the robbery is admissible in evidence. The
constitutional procedures on custodial investigations do not apply to a spontaneous statement,
not elicited through questioning by the authorities, but given in an ordinary manner whereby
the accused orally admitted having committed the crime.

Right to be informed of his rights

Note: The right of the person under investigation to be “informed” implies a correlative obligation on
the part of the police officer to explain, and contemplates an effective communication that results in
understanding what is conveyed. There is denial of the right if the person/accused has not been truly
informed of his rights.

Right to competent and independent counsel

104. When is a lawyer provided by the investigators deemed engaged by the accused?
 When the accused never raised any objection against the lawyer’s appointment during the
course of the investigation and the accused thereafter subscribes to the veracity of his
statement before the swearing officer.

105. What does the phrase “preferably of his own choice” mean?
 That while the police investigators may choose a lawyer in cases where the person under
custodial interrogation cannot afford the services of the counsel, or where the preferred
lawyer is not available, the person may reject the counsel chosen for him and ask for
another one.

106. Who are not deemed independent counsel?

 Special counsel, private or public prosecutor, counsel of the police, or a municipal attorney
whose interest is adverse to that of the accused.
 Mayor
 Barangay captain
 Any other whose interest may be adverse to that of the accused.

Confessions and admissions

107. What are confessions and admissions?

 Admission is the “act, declaration or omission of a party as to a relevant fact”, whereas
confession is the declaration of an accused acknowledging his guilt of the offense charged,
or of any offense necessarily included therein. Note: Both confessions and admissions are
covered by the law.

108. What are the fundamental requisites for an extrajudicial confession to be admissible in
evidence?
 The confession must be voluntary;
  The confession must be made with the assistance of competent and independent counsel;
 The confession must be express;
 The confession must be in writing;
 The confession must be signed, or if the confessant does not know how to read and write,
thumbmarked by him.

Note: A confession not compliant with the said requisites are inadmissible as evidence.

109. What are the phases involved in the criminal process?

 Filing of charges
 Preliminary examination and investigation after filing of charges
 Period of trial

Note: The protection afforded by Section 12 does not apply to processes or phases outside the
above-mentioned processes.

110. What other rights are guaranteed in Section 12?

 No torture, force, violence, threat, intimidation or any other means which vitiates the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
 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.

111. Why are torture, force, etc., prohibited?

 Because they vitiate the truth and they assault on the dignity of the person.