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CONSTITUTIONAL LAW 2 REVIEW

From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

INDIVIDUAL RIGHTS again the Bill of Rights is supposed to be a limitation on


the powers of the State.
marcos v I. DUE PROCESS AND EQUAL PROTECTINO AS LIMITATIONS ON
(2) To some extent, it has also been applied to schools
manlapus POLICE POWER, EMINENT DOMAIN AND TAXATION
disciplinary tribunals. When the school exercises its
ie art 7 sec 18 authority to impose the school’s rules on discipline in
A. Fundamental Principles on Constitutional Law and the Bill of
limit power the tertiary level, there have been so several cases
Rights
already stating that there is supposed to be procedural
due process to be observed and extended to the
The study of Constitutional Law primarily hinges on the Bill of
students in the tertiary level before these students can
Rights, and there are only a few provisions thereunder. So let’s
be sanctioned, much more if they are supposed to be
start with the Fundamental Powers of the State. There are three
expelled by reason of violation of the school’s
of them.
disciplinary tribunal. We have been made to
understand that with respect to academic rules, there’s
And by concept and application they are supposed to be
not much difficulty because the due process there is
INHERENT. It means that once the State comes into being,
always extended when there are examinations or
these can be exercised by the State. It does not need any
recitations given. You are given the opportunity to be
Constitutional or Statutory conferment for the State to
heard every time you are called for recitation or every
exercise them.
time there is an examination or a test administered on
the students.
And precisely as we understand the reason why specific
provisions in the Constitution apply to specific powers or
But with respect to the school’s rules on discipline,
inherent powers of the State is because they are more of
starting with the case of Ateneo de Manila, the
LIMITATIONS rather than grants. Largely the Bill of Rights are
Supreme Court has made a rule that students in the
limitations on the power of the State but there are still
tertiary level enjoy procedural due process. So, is that
specific provisions in the Constitution like Article III Section 9
an act of the State where due process is supposed to be
on Eminent Domain which is a specific provision affecting
imposed on the school before it is allowed to impose
Eminent Domain as an inherent power of the State.
sanctions? In the Constitutional context, it should not
be required because the school is not the State. But
Most of these powers are largely exercised THROUGH
because on the other hand, students have what we
LEGISLATION. And of course, by reason of legislation, their
know as academic freedom.
execution or implementation maybe extended or granted to
the Executive branch or other entities if there is allowable
There are three ____ in the scope of academic
delegation.
freedom, we have:
a) the schools,
B. Basic Principles on the Fundamental Powers of the State,
b) the members of the faculty and
their characteristics, similarities and distinctions, and their
c) that of the students.
Limitations
And so to that extent, due process is extended to the
students before they are supposed to be sanctioned.
The first of which, in our outline, would be the discussion on the
applicability of the Bill of Rights in the study of Constitutional
(3) Also by reason of law, not by the Constitution, the twin
Law. The basic principle is that the Bill of Rights is a LIMITATION
notice rule under the Labor Code, though clearly it has
ON STATE AUTHORITY. It does not apply strictly to conflict
been stated that it is not part of the Constitutional due
involving private rights.
process requirement, but because of the statutory rule
that employees, before they are sanctioned, employers
Perhaps the only exceptions based on your readings would be:
must have to extend to them what the law requires
(1) with respect to privacy of communication and
under the so called twin notice rule. Employers would be
correspondence that has been applied by the Supreme
considered the State when they impose sanctions. But
Court in the case of Zulueta, where the private matter
because the statute has required that they must have
involving the couple who had marital problems, where
to be informed before they are to be penalized or
the wife forcibly took documents, pictures to prove the
sanctioned, to that extent there is limited application of
extra marital affair of the husband, where these
the right in the due process clause generally in this
documentary evidence where presented in court, the
situation.
Supreme Court, in that lone case, which is still good law
today, applied the limitation under the Bill of Rights on
The case of Yrasuegi v. PAL, this is a 2008 case, you
privacy of communication and correspondence saying
have already read this, involving a labor case, the
that because of the violation of the private right of the
steward of an airline was eventually terminated for
husband, the evidence so obtained are considered
failing to meet the weight requirement. Supposedly
inadmissible. The application or the ruling of the
stewardesses and stewards have a maximum allowable
Supreme Court, well, it will largely be questionable, but
weight to be able to effectively function as attendant.
simply because it is still the decision of the Supreme
But because this petitioner has failed despite the grace
Court, it remains to be good law today. To that extent,
period for him to lose weight, he was terminated and
the Bill of Rights has been applied involving conflict of
filed a labor case. In the petition before the Supreme
private persons involving their private rights because
manila hotel - state action 1 public function
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Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista 4 Manresa Batch 2013-2014 | Page 1
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

Court, without any of those issues raised in the lower understand. So you talk about public health, public safety, public
tribunal, he questioned the policy of the airline morality, and all those public interest matters.
company as being violative of the Equal Protection; that
there is undue prejudice and disadvantage to the fat Lawfulness of the means
people, because they would only want to hire and
continue to engage those who are macho and sexy. The The discussion is mostly on whether the means are lawful. The
Supreme Court made it clear that this is an action by an rule being that the end, which is the intention to promote the
employer as against an employee, so the Equal interest of the general welfare, should not justify the means
Protection guarantee in the Constitution does not apply used. There must have to be reasonable necessity to the means
as this is not a State action where there is a violation of used to accomplish the desired end. So if the means imposed by
a private right by reason of the imposition of a State the law is reasonably necessary to accomplish the intention of
act. the law, then the means would be considered as lawful.
onlywhenthe
propertyownerisnotgoingtosellorthatthereisno
Due process is discussed in light with regulatory powers. In the POWER OF EMINENT DOMAIN agreementastothepricetothepropertylikeinan
light also of what is required under the due process clause. The ordinarysale,thatthereshouldbeeminentdomain.

due process clause would be considered as the most pervasive. It Section 9. Private property shall not be taken for public use
is the least limitable of all the powers, and so this normally comes without just compensation.
in the form of regulatory measures.
Eminent domain on the other hand is the highest and most exact
POLICE POWER idea of property right remaining in the State. This is a reflection
of the Regalian Doctrine that all property belongs to the State.
So when the State exercises its Police Power - the power to That if the State would want to get back its property, what it used
regulate liberty and property for the promotion of the general to own which was given up for private ownership, it would
welfare, it normally comes in a form of regulation. So when a exercise through eminent domain.
regulatory measure is enacted, there are basically two
considerations: But just like in the exercise of eminent domain by a local
government unit, the Local Government Code has provided for
(1) whether the law is in substance valid and some other CONDITIONS OR REQUIREMENTS. But generally, the
(2) whether the applicability of the law is equally applied to Constitution under Section 9 Article III, simply requires that there
everyone in that class or category. must have to be taking of private property for public use upon
payment of just compensation.
The regulatory functions or powers of the State can also be used
through its power to tax and or power of eminent domain. A The concepts of taking have not changed. Well, it has changed
good example with respect to eminent domain and regulatory from the old traditional understanding but it has changed
powers would be your Comprehensive Agrarian Reform Law. To somehow to include any substantial effect on the usual and
regulate property ownership in order to promote the welfare of reasonable uses of the property. Taking in eminent domain is not
the farm workers or tenants, property ownership has been physical dispossession alone. If there is substantial effect on the
limited. So outside of what we know as retention areas, the usual uses of the property by the property owner, then there may
remainder of the agricultural land are distributed. Now is this in be considered as taking. Also the concept of public use has
its strict sense a regulatory measure? The answer is no. And it is changed from the old traditional concept of direct benefit to the
not also in its strict sense the eminent domain exercise as many. It has changed to include now the indirect benefit to the
allowed in the Constitution. many. Even if those directly benefited are only a few, but if the
public is indirectly benefited as well, then there is also taking for
Now the usual test to determine a valid regulatory measure public use. not momentary
would be the LAWFULNESS OF THE SUBJECT and the
LAWFULNESS OF THE MEANS. The property to be taken must have to be private property. So
any kind of private property (?), of course except money, will
Regardless of the further discussions with respect to have to be exempted from the private property requirement. Just
ordinances, because in ordinances we have the case of compensation is usually made by giving money.
White Light Corp v. City of Manila which establishes certain cannot be appropriated: money, personal actions or personal optiond of an indiv
requirements for validity when it comes to ordinances; but Just compensation as a condition for a valid exercise of eminent
when it comes to general statutes, what we follow would be domain has not also changed. It still refers to the full and fair
the two test: the lawfulness of the subject test and the equivalence of the loss of the property owner. The value is based
lawfulness of the means. on the loss and not on the gain. For which reason if there is
consequential benefit or consequential damage, if not the entire
Lawfulness of the subject land is expropriated, the consequential benefit shall be deducted
from the value of the just compensation, while the consequential
There’s not much difficulty in understanding what a lawful damage shall be added to the value of the property for purposes
subject is because police power being in relation to general of computing the just compensation.
welfare, any public interest matter is always considered as a cannot enact as to maximum value
lawful subject for purposes of regulation. The only discussion valuations/tax declarations - not conslusive as to value for just compensation
here is whether regulation affords only protection to a few and
not the general welfare of the many. So it’s not so difficult to

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Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista 4 Manresa Batch 2013-2014 | Page 2
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

POWER OF TAXATION everybody. If you cannot present a what is purportedly a


validation government ID with your photograph, so you have
With respect to taxation, except for the provisions of the your drivers license, SSS cards, wala pa giud school cards,
Constitution regarding the uniformity in the rule of taxation and government issued identification cards lang giud, then do
equitable rule, the exemption from real property taxation for not serve that person any alcoholic beverage. Magkano ba
certain listed properties directly, exclusively and primarily used pera nung minors as compared to those adults na gustong
for religious and other educational purposes and also for tax uminon? Kaya siguro hindi niya pinirmahan.
exemption of income of non stock non profit educational
institutions as well as the tax credit for donations to these With respect to eminent domain, what is required under the
institutions, the rest of the specifics in your taxation laws, you will Local Government Code is that there must have to be an
have to take up in your taxation law review. ordinance.
In all eminent domain exercises, we must understand that
DELEGATION while the Constitution does not mention it, there is a
precondition for the exercise of eminent domain, and that is
In relation to delegation, police power and power of eminent the condition of necessity. Is it necessary for the State or the
domain may be delegated. But power of taxation can never be. public corporation or the LGU to exercise eminent domain?
Well, to some extent, it has been delegated to LGU’s with respect Because eminent domain again is exercised as a last resort if
to their taxation powers under the Local Government Code, but the State or the expropriator would want to get that
not to private entities unlike in eminent domain where private property. As it is required in the Local Government Code,
sec 18 lgc entities may be granted the power to expropriate. Normally, we there must have to be an offer made by the expropriator to
refer to public utility companies; they have power to expropriate. the property owner. Firm offer to buy the property. Of
Police power has also been delegated to the LGU’s. This is your course, if the firm offer is not accepted or is rejected, then
Section 16 of the Local Government Code, which refers to the the expropriator may opt to expropriate. Expropriation is
General Welfare clause. In that clause, the LGU’s have delegated not the first option, because again there is a precondition or
authority either direct or general. At any given time, Congress prerequisite not provided for in the Constitution but in
may enact a law delegating authority on police power to LGU’s. decisions of the Supreme Court that there is a necessity to
But there is a general grant under Section 16 as well that LGU’s exercise eminent domain.
can legislate on these matters.
So just like if you are Napocor, Napocor would not file a
The requirement for validity of regulatory powers for purposes petition for expropriation but would have to ask the
of the LGU’s. property owner how much would they be willing to part
with their property because Napocor would want to use it.
First, it must have to be passed within the corporate powers of In almost all cases though, the offer will not be accepted or
the LGU’s. is rejected because the offer actually is very very low. It’s not
the same as in the open market.
Second, it must be passed in accordance with the legal procedure
as provided in the Local Government Code, and it must satisfy six Just compensation in some cases has been described as the
substantive requirements as follows: amount of the property which a buyer, who is not willing to
buy a property, is willing to pay and the amount a seller,
LGC - 15% but (1) it must not contravene the Constitution or the law; who is not willing to sell a property, is willing to part with. So
sec 60 whole value. (2) it must not be unfair or oppressive; that’s the sole difficult to determine. That’s why there are
? (3) it must not be partial or discriminatory; factors to consider to determine just compensation. Even if
(4) it must not prohibit but merely regulate; you go through our Rules of Court on expropriation or
(5) it must be general and consistent with public policy; eminent domain, the court is even tasked to assign
and commissioners if there’s a problem with the issue of just
(6) it must not be unreasonable. compensation.

So in any regulatory measure, LGU, as a matter of law, cannot So firm offer first, it must have to be rejected and not
prohibit the conduct of what otherwise is a legitimate business. It accepted, before expropriation can be exercised. In the LGU,
can only regulate. The problem is: what should happen if the the Local Government Code requires that firm offer first, and
regulatory measure would amount to a prohibition. if not accepted or is rejected, then the local legislative
The expanded liquor ban. Drinking now can only be allowed council must have to pass an ordinance authorizing the
up to 1. I think the Mayor has not yet signed it because he mayor to exercise eminent domain. And the rest of the
has second thoughts whether it would pass the scrutiny of provisions in the Local Government Code is reflective of the
constitutionality. It has always been discussed among, well constitutional requirement that there must have to be
some lawyers are discussing, those lawyers are drunkards, payment of just compensation before there could be taking
but the argument is that: why should the Mayor want an in eminent domain.
ordinance which would prevent or prohibit law abiding
drinkers of legal age to drink? If the intention of the The only difference in the Local Government Code is that
legislation is to curb drinking among minors, why not ID up the Constitution provides for public purpose or public use. In
the minors? Let the adults, generally with money, to drink the Local Government Code, the public uses are specified.
until they die in the morning. Prevent the minors from So, housing, and some other specific public purposes. That’s
drinking by requiring the bar or club owners to ID up

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

the only difference with respect to public use in relation to enjoy the right to be heard by himself and counsel, to be
the Constitution and the Local Government Code. informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet
C. Due process the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of
Art III Section 1. No person shall be deprived of life, liberty, or evidence in his behalf. However, after arraignment, trial may
property without due process of law, nor shall any person be proceed notwithstanding the absence of the accused
denied the equal protection of the laws. provided that he has been duly notified and his failure to
appear is unjustifiable.
RELATIVITY OF DUE PROCESS
Why is that so is because due process is more, shall we say,
Still with due process. The Concept of Relativity of Due Process. necessary with respect to an accused in a criminal case
The relativity of due process as a concept simply means that because he is up against the entire machinery of the State in
while due process is required under Section 1 of Article III that no a criminal prosecution. In civil cases, no matter how big the
person shall be deprived of life, liberty or property without due claim is or how many hectares of land is involved, nobody’s
process of law, the requirement of due process is not strictly liberty is affected, nobody goes to jail in a civil case.
applied to all persons under all circumstances absolutely. In
different types of cases, the requirement of due process may be So, while it is so it does not mean that the parties do not
different. Although due process is really required, more so in have rights to due process, of course they have. But again, it
procedural due process, it is not the same as it is in all cases, in all is applied differently in different situations. But largely,
persons, in all parties. because the constitutional grant of due process or limitation
of due process is against State authority for which reason
A good example would be your due process in judicial that largely explains why the accused’s right to due process
proceedings and due process in administrative proceedings. is reemphasized in Section 14 of Article III.
While there may have been 4 in judicial procedural due process,
there are 7 in administrative procedural due process, your so In civil cases involving private rights, the State has nothing to
called 7 cardinal primary rights in administrative due process. do with it generally. But because we all understand in
judicial proceedings whether criminal or civil cases, parties
Administrative cases do not require the strict presentation must have a right to due process in relation to the actuations
of evidence, as it is required in the judicial proceedings. of a judge. You talk about jurisdiction. The impartiality of a
There are even situations where there is no right to cross judge. If these are violated, then there may be a violation of
examine because there is no presentation of witness. So the due process. Because here is a state agent, a judge,
question is how do you dispute the claims of the other party exercising authority over a case which he has no right to do
or the witnesses of the other party? By presenting you own so. So, if that civil case decided by a judge without
witnesses as well and more in documentary form. In the jurisdiction, has taken the property of another in favor of the
Rules of Evidence, generally applied in court cases, affidavits other party of the case, then there may be taking of his
are hearsay. They do not have any evidentiary value unless property without due process of law in that context.
they are generally testified to by the affiant or the one who Relativity of due process simply means that it is not absolute
executed them. That is in judicial proceedings. But if it is in in all the cases, it is not the same nor hard and fast
administrative proceedings, like in labor cases, affidavits are applicable to all in any and all circumstance. There is
good as testimonies. Because the quantum of proof required difference in application and it refers to certain cases and to
is different in judicial cases as it is in administrative cases. certain parties.

So, is there denial of due process if there is no right to cross SUBSTANTIVE DUE PROCESS
examine or if affidavits are accepted as testimonies of
witnesses to a case in administrative cases? The answer is (recording lacking)….Must not be oppressive or arbitrary. And in
no, again because the principle in due process is that due the case of Tanada v. Tuvera, there must have to publication
process though required is applied differently in different because even in the law is as a given, valid, if there is no
types of cases, in different situations of persons affected by publication, then that law even if valid will have to be invalidated
or in a particular case. for lack of publication.

Even if you go through the Bill of Rights, starting with PROCEDURAL DUE PROCESS
Section 14, the first paragraph reiterate the due process in
Section 1 with respect to an accused in a criminal case. And The other aspect of due process is procedural and as we have
there is a listing, in the second paragraph of Section 14, of all mentioned, PDP is relative in different situations, actions and
the rights of the accused, and there are no rights of the cases with respect to the parties of the case. We made special
private complainant. mention of the right of the accused because his right to due
process is emphasized in the present constitution.
Section 14. (1) No person shall be held to answer for a
criminal offense without due process of law. PDP in judicial proceedings require that there be an impartial
court of competent jurisdiction, that jurisdiction was lawfully
(2) In all criminal prosecutions, the accused shall be acquired, there must have to be opportunity to be heard
presumed innocent until the contrary is proved, and shall

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Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista 4 Manresa Batch 2013-2014 | Page 4
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

(essence of procedural due process), and that judgment must be of these conflicting rights will have to be preferred in a given
rendered by the court after hearing. case.

7 cardinal rules -In administrative cases, there must have to substantial In relation to human rights law, the hierarchy of rights in the
evidence—there is no necessity of presenting evidence strictly as constitution would be espoused: the arbitrary deprivation of life,
if you were in a judicial proceeding because for so long as the freedom from torture, cruel and inhuman punishments, freedom
evidence presented is known to the parties and form part of the of thought, conscience and religion. This would include political
records, then the evidence can be invalidated and can be beliefs and aspirations and no religious test for exercise of civil
considered by the tribunal. In some cases even, there is no need and political rights. The first 3 rights generally do not allow
for cross examination as it were in judicial proceedings. regulation by State legislation. Not that It does not really allow
but there is some prohibition for regulation on this. The other
We also made mention that due process in the Constitution is not rights in the constitution would be freedom from arrest, arbitrary
strictly applied if it were not against the actions of the state detention; this would include ex-post facto and bill of attainder
because of certain statutory grants of opportunity to be heard. In legislation, involuntary servitude, equal protection, rights of the
that extent, we have to consider that is also part of the due accused, privacy and privacy of communication, abode and travel,
process, required not by the constitution but by statutory grants. speech and assembly and information, and right to association.
But these rights can be derogated by reason of any public
Common example would be right to appeal, especially to emergency by reason of national interest and security. Even the
criminal cases. It is part of the right of the accused under free speech right is not absolute. If there is compelling state
rule 115, section 1(i) which is now included in section 14, interest, the free speech right can be derogated.
article 3 of the constitution. The opportunity to be heard on
the part of the accused with respect to his constitutional Now the rest of the rights in the constitution are granted only in
right to due process is already granted and observed when the Philippine constitution right to eminent domain, non-
his time is had with the trial court. For purposes of appeal, impairment clause, bail, suspension of habeas corpus, speedy
however, if the Rules of Court does not allow or there is no disposition of cases, use of substandard or inadequate penal
law allowing it, technically, there is no right to appeal. But facilities and non-imprisonment for debt. The non-imprisonment
because there is such right to appeal in the rules of court, for debt takes its roots from the slavery in the US. This is the most
there is observance of his right to due process not by the appropriate equivalent of that.
Constitution but by the Rules of court as granted to him.
JUDICAL STANDARD REVIEW
HIERARCHY OF RIGHTS
The judicial standard review of legislation involving substantive
In relation to the exercise of the state of its power relative to due due process were first used in equal protection questions or
process and deprivation of some liberties, the concept of issues.
hierarchy of rights in the constitution come into play. Meaning, is
there such as a thing as ‘preferred or preferential Constitutional The 3 tests used are:
rights as provided for in the constitution which the state may not 1. Strict scrutiny test or compelling state interest test
regulate easily or could not be derogated at all? Technically, 2. Intermediate scrutiny or intermediate review test
when the state regulates some of our rights, or mostly of our 3. Differential or rational review test
liberties, the question is the application of the limitations of the
powers of the state. But there are some situations where that  In the level of tests or which of these tests is used, The
conflict of rights involves conflict of Constitutional rights of STRICT SCRUTINY is the most stringent. What this requires is
individuals, in which case, court may also come into play because that the presumption of validity of the regulation has a
there may be some laws applicable that may regulate some narrow application. The state must show that there is a
rights. compelling state interest that must be protected. You
should justify that. Secondly, that that means is the least
For example, the freedom of expression or free speech restrictive of all measures or alternatives. to allow such
rights as against right to privacy of individual. As you can regulation in order to achieve the objective of such
see, ostensibly the conflict of rights is between 2 individuals. legislation
But the reason why the right to privacy is protected is
because there are certain laws which were legislated  INTERMEDIATE SCRUTINY TEST considers the substantiality
protecting this right to privacy. We all know that right to of government interest and the availability of less restrictive
privacy is NOT expressly granted in the constitution and the alternatives. As compared to compelling state interest,
school of thought is that it is not so expressed because it is which is more stringent because the state must be able to
admitted, in fact, the most common right to privacy show compelling state interest, and that must be protected
provision would be Sections 2-3 and there are other and that that means is the least restrictive of all measures or
provisions in law which are part of the Zones of privacy. In alternatives. In intermediate, there is no need to show that.
which case, if there is such violation of the right to privacy, There is only a need to show that the less restrictive
what ostensibly pertains to conflicting rights of individuals, alternatives have been considered and that the government
because of the application of state legislation, then the interest needed to be shown is merely substantial interest.
power of the state to prohibit or prevent such invasion to
right to privacy would also come into play and in which case,  The least stringent of all is the DIFFERENTIAL OR RATIONAL
the court is tasked to weigh and deliberately consider which REVIEW. The regulations are valid if it rationally furthers a

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Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista 4 Manresa Batch 2013-2014 | Page 5
CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

legitimate government interest without of course inquiring offenders if the statute is declared void on its face
into such interest and examining the alternatives. because it is vague. So this only applies when it involves
free speech rights or expression.
Generally, when judicial review is invoked for purposes of
questioning the validity of legislation under Substantive due  OVERBREADTH DOCTRINE is the reverse of facial
process: invalidation because Overbreadth would require that
the law is not really vague on its face. The law is clear as
The most common is GRAVE ABUSE OF DISCRETION as it is in to what acts are covered or penalized, although the law
judicial review. Meaning, if the legislation is fair, or whether also penalizes what is also supposed to be protected
legislation amounts to grave abuse of discretion, then they can be rights. So the law has been applied to cover acts even if
subjected to judicial review. But as to whether the court will hold these acts are protected. That’s why they use the term
that legislation invalid, these 3 tests are used to determine ‘Overbreadth’. Can the law be declared
whether this legislation can be allowed or should be nullified. unconstitutional because it tends to cover acts which
are supposed to be declared protected? Again, this is
In relation to judicial standards of review, the VOID FOR allowed if it involves free speech rights and free speech
VAGUENESS DOCTRINE comes into play. regulations. The reason for this is, even if the person is
This case of PEOPLE V. SITON, this is a 2010 case, the not charged before the courts in a case, but because it
question was WON the accused should be held liable in the affects protected rights, the court may actually declare
tax measure. If a statute is vague, it is void because it that law to be unconstitutional so that the protected
violates due process. First question: when does it become rights will not be impaired.
vague? A statute is considered vague if it lacks
comprehensible standards that men of common intelligence  AS APPLIED DOCTRINE is the limited case or petition to
must necessarily guess as to its meaning or differ as to its declare a law unconstitutional because it is vague if
application. It is not vague simply because the words or applied to a particular accused or defendant in the
phrases are ambiguous. If the statute can be saved by case. It may not be vague to everybody but if applied to
statutory construction or by saving clause, it is not him, it may be vague and the court may be allowed to
considered vague and there is not void. declare a law unconstitutional because it is vague if
applied to this particular individual. Just like this case of
It is considered as violative of due process because Siton, this would require payment of taxes for lessees,
(1) it fails to give fair notice to the person targeted and owners of fish pens and ponds and for non-failure of
(2) it gives state through its law enforcement agencies which, would subject these persons to certain criminal
unbridled discretion in the implementation or liability. The accused here was a fish pen manager and
execution of the law. so is he covered by the term ‘owner or lessee’ of the
farm or fish pen? Facial invalidation cannot be applied
So how vague it is means that the words or phrases must not because it does not involve free speech. Overbreadth
be capable of given meaning despite the application of doctrine could not also be applied because it is a tax
statutory rules of construction. There have been several legislation but if using ‘as applied’ to him doctrine, there
cases you have encountered by which SC has gone through is a possibility that the law can be declared as
congressional records to explain or give meaning to what the unconstitutional if applied to him only. The issue is
provision of the law should pertain to. If after use of these when applied to him, is he covered in the term ‘owner
rules and aids in guiding the court in interpreting the or lessee’ as covered by the enumerated terms in that
provision of the law as to what would be the legal meaning law? The SC said he is covered anyway .But just to show
and then it is considered as vague, and therefore void. But that ‘as applied’ doctrine can be used to declare a
again, if only a portion of that law is declared invalid, then criminal statue as unconstitutional as against a
the rest of the remainder would be given meaning, then that particular defendant and not only limited to free
part is not vague and not void. speech rights or regulations but it applies to any
criminal statute for that matter.
In relation to that void for vagueness doctrine, there are 3
usual traits which make the statute vague and therefore D. Equal Protection
void, have been used.
1. Facial invalidation We all understand that equal protection or equal protection
2. Overbreadth doctrine clause is included under the due process clause it is under section
3. As applied application 1 and we have been made to understand that its part of due
process but general question of arbitrariness is usually
 When a statute is vague and declared therefore to be questioned under the due process clause but specific instances of
void, most of the question on cases on this will be bias and partiality is usually questioned under the equal
placed as a form of FACIAL INVALIDATION. Meaning, protection clause.
the law which on its face is vague should be declared
unconstitutional. The facial invalidation theory to Equal protection simply requires that all persons or things should
declare the law as unconstitutional is generally allowed be treated alike both as to rights conferred and as to
when it refers to cases or laws free speech rights and responsibilities imposed. It does not require absolute equality but
not to criminal or penal statutes. The reason given is only substantive equality based on a valid classification. And for
that it will prevent the state from prosecuting lawful there to be a valid classification, Persons or things are similar in

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

some particulars of which they are not similar to the rest. It is not must have to compelling state interest as to why that law has
required that they are similar in all these particulars but only that been made and the intent of that legislation subject of
in some particulars, they are similar which in others do not hold classification is the less restrictive means of achieving that
any similarity. purpose of the legislation. With respect to intermediate scrutiny,
the classification must have to be substantially related to a
The requisites for valid classification would be: government interest. While on rational basis, there must have to
1. Classification must be based on a substantial distinction be a rational relationship of this classification to a legitimate
2. It must be germane to the purpose of the law government purpose.
3. must not be limited to existing or present conditions
4. it must be applied equally to all those who belong to In the constitution, there are equal protection that is imposed.
the same class We have
(1) Political Equality ,
The law does not require absolute equality to all provided there (2) Economic Equality and
must be absolute equality to all those who belong to the same (3) Social Equality.
class.
 With respect to POLITICAL EQUALITY, we have policy that
Substantial Distinction/ Germane to the purpose of the law our candidates must be free from harassment and
When we say substantial distinction, while substantial discrimination, reduction of political inequality by reducing
means it must not be superficial, the substantiality of wealth in political power, reduction of acquisition, use,
distinction is based on its reasonable connection to the ownership of property for purposes of political equality, and
intent of the law because classification must have to be also guarantees the power of the people’s initiative in
germane to the purpose of the law. government decision making. Then there is equal access to
government service, prohibition on political dynasties,
Age—may or may not be substantial depending on the sectoral representative in congress and LGUS.
objective/intent of the legislation. Gender—when used on
maternity or paternity laws, it would be substantial. But Art IXC, Sec 10 – Discrimination
when used for purposes of minimum wage, that should not Art XIII, Sec 1 – Social Justice
be substantial distinction because in labor law, we know that
is a fair day’s wage for a fair day’s labor. So it largely  With respect to ECONOMIC EQUALITY, fundamental
depends on the intent of the law to make the classification equality for the law, reduction of inequality by reducing
based on substantial distinctions. wealth in political power, nationalization, mining, land
ownership of public utilities, mass media, advertising and
Must not be limited to existing or present conditions preservation of marine wealth and protection to labor and
For so long as the matter or issue sought to be addressed by social justice provision.
the legislation where the classification is made is existing or
will continue to exist, that classification must continue to Art II Sec 14
exist. Art III, Sec 11 - Free access
Art VIII, Sec 5(5) – Legal Aid
It must be applied equally to all those who belong to the same Art XII, Sec 2 – Marine Resources
class Art XII, Sec 10 – Naturalization
Art XIII, Sec 1-2 – Social Justice
It cannot be made applicable to existing conditions only Art XIII, Sec 3 – Protection of Labor
because it will amount to CLASS LEGISLATION. Or anything
or Any person which is supposed to be covered by the  This is the same with SOCIAL EQUALITY provision except
legislation but because of the classification becoming that in addition to those, we have free access to courts and
applicable to present conditions only, it will be violative of legal aid.
equal protection of those who may be similarly situated in
the future who will no longer be covered by the legislation. Art XIII, Sec 1 – Social Justice

There is a question, yesterday there was an opinion in the


There must have to be symmetrical applicability of the newspaper because of the statement of Santiago as to WON
legislation based on the classification of all those falling in those members of congress who are accused of plunder be
the same class. Symmetrical because our common example placed in suspension under the Plunder law. Remember the case
there for easy reference is our income tax base whereby of Santiago v. Sandiganbayan, she used to be BID commissioner
classification in legislation--- there are several amounts of and she was charged for violation of RA 3019. Under that law,
money as your net income will belong to the same class, you when a valid info is filed in court, the public officer charged shall
may not earn the same amount but the law would put you in be placed under preventive suspension for 90 days or 6months.
the same category because that is the intent. They are Miriam Defensor became senator and SB issued an order
capable of paying the same tax worth. suspending her. Ang nakalagay sa law, ‘shall be suspended from
office’. There were 2 issues there as to whether (1) a sitting
The standards for judicial review of classification would still senator can be suspended by a court and not by his/her peers
follow the 3 tests—(1) The strict scrutiny, (2) intermediate and (3) under section 16 of article 6 that by vote of 2/3 of the members
rational basis test. This simply means that in strict scrutiny, there of the house, a member of congress may be suspended or

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

expelled and the (2) second issue is to what office should that Section 2. Court where application for search warrant shall be
public officer be suspended? The suspension ordered by the filed. — An application for search warrant shall be filed with the
court under RA 3019 is not the suspension under the constitution following:
which only the peers of the members of congress can impose. a) Any court within whose territorial jurisdiction a crime was
Preventive suspension is not a penalty while the suspension of committed.
the members of the congress is. Since the law merely mentions, b) For compelling reasons stated in the application, any court
‘office’, then in whatever office you are occupying now, you within the judicial region where the crime was committed if
should be suspended in that office. So senator Santiago should the place of the commission of the crime is known, or any
have been suspended but she was not suspended because she court within the judicial region where the warrant shall be
was already acquitted by the SC when it rendered its decision in enforced.
2001. But when she was still sitting then, she could have been However, if the criminal action has already been filed, the
suspended. Could this happen to those senators who are accused application shall only be made in the court where the criminal
of plunder now? Of course they should NOT be suspended yet action is pending. (n)
because there is no valid information yet filed in court. But the
plunder law says that once a valid information is filed in court, Section 3. Personal property to be seized. — A search warrant
they should be suspended until the case is terminated. Question: may be issued for the search and seizure of personal property:
what if hindi xa senator from 2016-2019 but next election, nanalo 1. Subject of the offense;
ulet and the case is still pending, can that senator be suspended? 2. Stolen or embezzled and other proceeds, or fruits of the
Is it going to be a perpetual preventive suspension? Nobody says offense; or
in the law yet but you see, if you go by the reason why the 3. Used or intended to be used as the means of committing an
suspension should not be more than 60 days, the traditional offense. (2a)
reason is that, you deny the constituents of legislative
representation that’s why its limited to 60 days. SC said that Section 4. Requisites for issuing search warrant. — A search
there is no problem for expulsion. Iba kasi pag expulsion. From warrant shall not issue except upon probable cause in connection
the time the member is expelled, the constituents are deprived of with one specific offense to be determined personally by the
representation but the constituents have a chance to have judge after examination under oath or affirmation of the
another representative because there may be a special election. complainant and the witnesses he may produce, and particularly
Unlike in a suspension, the position cannot be filled up because describing the place to be searched and the things to be seized
the representative is still there only that he is suspended. That’s which may be anywhere in the Philippines. (3a)
why the suspension is only limited to 60 days. Here comes
plunder law saying that officer is suspended until case is Section 5. Examination of complainant; record. — The judge must,
terminated. Alam mo naman sa pilipinas, dugay mahuman ang before issuing the warrant, personally examine in the form of
case. I doubt if they will still be covered by that preventive searching questions and answers, in writing and under oath, the
suspension. complainant and the witnesses he may produce on facts
personally known to them and attach to the record their sworn
statements, together with the affidavits submitted. (4a)
II. REQUIREMENTS OF FAIR PROCEDURE
Section 6. Issuance and form of search warrant. — If the judge is
satisfied of the existence of facts upon which the application is
A. Arrests, Searches and Seizures, Privacy of Communications
based or that there is probable cause to believe that they exist,
he shall issue the warrant, which must be substantially in the
Art III Section 2. The right of the people to be secure in their
form prescribed by these Rules. (5a)
persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose
Section 7. Right to break door or window to effect search. — The
shall be inviolable, and no search warrant or warrant of arrest
officer, if refused admittance to the place of directed search after
shall issue except upon probable cause to be determined
giving notice of his purpose and authority, may break open any
personally by the judge after examination under oath or
outer or inner door or window of a house or any part of a house
affirmation of the complainant and the witnesses he may
or anything therein to execute the warrant or liberate himself or
produce, and particularly describing the place to be searched and
any person lawfully aiding him when unlawfully detained therein.
the persons or things to be seized.
(6)
Section 3. (1) The privacy of communication and correspondence
Section 8. Search of house, room, or premise to be made in
shall be inviolable except upon lawful order of the court, or when
presence of two witnesses. — No search of a house, room, or any
public safety or order requires otherwise, as prescribed by law.
other premise shall be made except in the presence of the lawful
occupant thereof or any member of his family or in the absence
(2) Any evidence obtained in violation of this or the preceding
of the latter, two witnesses of sufficient age and discretion
section shall be inadmissible for any purpose in any proceeding.
residing in the same locality. (7a)
RULE 126 Search and Seizure
Section 9. Time of making search. — The warrant must direct that
Section 1. Search warrant defined. — A search warrant is an order
it be served in the day time, unless the affidavit asserts that the
in writing issued in the name of the People of the Philippines,
property is on the person or in the place ordered to be searched,
signed by a judge and directed to a peace officer, commanding
in which case a direction may be inserted that it be served at any
him to search for personal property described therein and bring it
time of the day or night. (8)
before the court. (1)

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

Section 10. Validity of search warrant. — A search warrant shall 2. Even if there is a warrant issued by the court, either a
be valid for ten (10) days from its date. Thereafter it shall be void. warrant is invalidly issued by the court (invalid
(9a) warrants) or warrant has been implemented illegally.

Section 11. Receipt for the property seized. — The officer seizing So in those two general situations the search and seizure is
property under the warrant must give a detailed receipt for the supposed to be considered as unreasonable.
same to the lawful occupant of the premises in whose presence
the search and seizure were made, or in the absence of such 1. Requirements for Search Warrants
occupant, must, in the presence of at least two witnesses of
sufficient age and discretion residing in the same locality, leave a Based on the Constitution and what is required under Rule 126 of
receipt in the place in which he found the seized property. (10a) your Rules of Court, the REQUIREMENTS FOR THE ISSUANCE OF
A VALID SEARCH WARRANT WILL BE AS FOLLOWS:
Section 12. Delivery of property and inventory thereof to court;
return and proceedings thereon. — (a) The officer must forthwith 1. There must be an application filed or petition by the
deliver the property seized to the judge who issued the warrant, applicant and/or his witnesses before a court of proper
together with a true inventory thereof duly verified under oath. jurisdiction;
2. It must have to be issued after the judge has determined the
(b) Ten (10) days after issuance of the search warrant, the issuing probable cause which is the requirement in the Constitution;
judge shall ascertain if the return has been made, and if none, 3. The determination of the probable cause by the judge must
shall summon the person to whom the warrant was issued and have to be personally done by him, it could not be delegated
require him to explain why no return was made. If the return has to any other; and
been made, the judge shall ascertain whether section 11 of this 4. The judge must have to satisfy himself as to the existence of
Rule has been complained with and shall require that the probable cause by asking searching questions based on the
property seized be delivered to him. The judge shall see to it that personal knowledge or based on responsive or answers of
subsection (a) hereof has been complied with. the applicant and/or his witnesses.

(c) The return on the search warrant shall be filed and kept by the Probable Cause- this refers to such amounts of facts and
custodian of the log book on search warrants who shall enter circumstances which would lead the judge to believe that a crime
therein the date of the return, the result, and other actions of the may have been committed and that the tools, effects and things
judge. that will be used in the commission of the offense are in the place
to be searched and therefore must have to be seized. So it
A violation of this section shall constitute contempt of court.(11a) depends on the determination by the judge as to what would
constitute as to satisfying the requirement of probable cause.
Section 13. Search incident to lawful arrest. — A person lawfully
arrested may be searched for dangerous weapons or anything With respect to these questions to be asked the Rules of Court
which may have been used or constitute proof in the commission requires based on the interpretation of the Supreme Court on
of an offense without a search warrant. (12a) what would constitute these questions, the standard rule made
by the SC is that they must have to ask searching questions.
Section 14. Motion to quash a search warrant or to suppress Searching in the sense that the judge must have to ask non-
evidence; where to file. — A motion to quash a search warrant leading questions and with these responses the judge will be able
and/or to suppress evidence obtained thereby may be filed in to satisfy himself of the existence of probable cause. Of course
and acted upon only by the court where the action has been the responses must have to be based on personal knowledge and
instituted. If no criminal action has been instituted, the motion as we have known in the Rules on Evidence, personal knowledge
may be filed in and resolved by the court that issued the search is the basic rule in what we know as matters which a person can
warrant. However, if such court failed to resolve the motion and testify on. If he has no personal knowledge on facts that would be
a criminal case is subsequent filed in another court, the motion beyond his competence to satisfy. It must have to be acquired by
shall be resolved by the latter court. (n) him through the use of any of his senses. If that fact would turn
out to be false later, he could be charged criminally for such false
SEARCH AND SEIZURE testimony or perjury testimony.

Now we go to search and seizure. The concept of search and The Rules of Court also requires that the application during the
seizure or the right against unreasonable search and seizure in taking of the testimonies of the applicant and/or his witnesses,
our Constitution is based on the general concept of Right to they must have to be in writing. What we normally would do is
Privacy. The right to be left and be let alone by the State, unless that there would be transcription of the testimonies of the
there is a compelling reason, the State cannot interfere with our applicant and/or his witnesses.
right to privacy in our houses, structures, buildings, persons,
documents and other rights. The prohibition or proscription in It also required that the warrant must have to be issued in
the Constitution is only against UNREASONABLE SEARCHES AND connection to one specific offense. The entire idea is to prohibit
SEIZURES. There are two situations contemplated: the issuance of what is known as SCATTER-SHOT WARRANT OR
1. When a search is conducted without any warrant validly GENERAL WARRANT. Since the application for a search warrant is
issued and the instances not fall under any of those precisely made in order for the State or his agents to seize and
valid warrantless searches and seizures then it is secure evidence which will be used against the person or persons
considered to be unreasonable; and to be charged later. Meaning there is no criminal case pending

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

yet as it is normally had in search warrant applications. The operating system it must have to be specified as having
problem is that the State would want to seize evidence to be been illegally obtained and/or illegally downloaded or
used later on in a criminal case or cases to be filed against the used in that particular computer, otherwise there
person subject of the warrant. That is why the warrant must would be no allowance for seizing a CPU simply because
specify as to what particular offense is the warrant to be issued it is a computer unit because possessing the computer
for. units is not illegal per se.

Then there must have to be particularity of description of the With respect to the other Rules of Court provisions we made
place to be searched and of the things to be seized. Of course, mention about the issuing court, the warrant now must have to
the particularity of the description of the place to be searched applied for and issued by the court which has territorial
also as required by the Rules of Court now, the applications for jurisdiction of the place where the crime has been committed,
search warrant must include a sketch in order to avoid any that is the general rule.
problems with respect to the variance in the place applied for and As an exception for compelling reasons any court of the
the place as indicated in the warrant. The problem being judicial region where the crime is committed or where the
compounded or brought about by the fact that in the country warrant is to be enforced if the court which has territorial
addresses are not too specific. If you say No. 5, there is even no jurisdiction over the place or the crime has been committed
number in our streets as common as it is. Streets are not even is not functioning.
th
identifiable by name. That’s the reason why the particularity in So Davao City is part of the 11 Judicial Region, this
the description of the place largely depends on how under the would include the other Davao provinces and I think
circumstances it could be particularized. Same way in the part of the General Santos if I am not mistaken. So if
particularity in the description of the thing or things to be seized. the warrant is supposed to be implemented in Davao
City, we could not ordinarily apply in the Davao
 For example in one case it would require, for example provinces court, it must have to be applied for and
the warrant is applied and issued for illegal possession issued by the Davao Court. Unless again for compelling
of firearms, if the application and search warrant would reasons you can apply in a court within the same
indicate even the serial numbers of the fire arm, then judicial region.
the SC said it would require an impossibility. Of course if there is already a case filed the application must
 Or if it would require to the prohibited drugs to be made and the warrant must be issued by the court where
particularize it in terms of correct amount or quantity the case is pending.
or volume that would require an impossibility, because
of the sheer difficulty in particularization simply The other exception there would be under special rules and
because these things or theses items would not that refer violation of intellectual property laws.
normally be sold under ordinary circumstances. There is Under your Intellectual Property Rights Act, the SC has
utmost secrecy in drugs or fire arms trade where it is issued a resolution allowing the executive judge of the
usually by surveillance determinable that there is an RTC of Manila and the executive judge of the RTC of
undetermined caliber of fire arms inside that place Quezon City to receive process and issue search
intended to be searched or with respect to the warrants to be implementable in any part of the
prohibited drugs as well. Philippines for violation of intellectual property rights.

For so long as there is particularization sufficient enough to grant Another requirement in the Rules of Court with respect to
authority to the implementing agents as to what items to seize validity in the implementation of the warrant you have your 10-
then that would be sufficient. day period. The search warrant is valid for 10 days only from the
date of issuance. Of course the question normally asked there is
Of course it would be different if the subject of the search whether or not the search can be conducted continuously or to
warrant are items which are ordinarily not illegal per se because be stopped let say 5 o’clock and then continued the following
by the manner that they have been used they have become day? It would largely depend on whether or not the nature of the
illegal and therefore subject of the search and seizure. search would require continuous search, because we have also to
contend with one rule that the rule in searches under a warrant is
 For example in gambling, normally gambling day time search. There could be no nighttime search unless there
paraphernalia and money. The money must have to be is a special application made and also a special order granted by
specified as having been used in relation to gambling the court that a nighttime search is allowed.
like bets, because if what is indicated there is money, The reason for that in one of a very old case is that in
possession of cash or bills is not illegal per se. nighttime normally there are more violations committed and
 Same thing with video piracy in old cases involving because to allow a search in the house or premises by
Columbia pictures and similar other motion pictures the reasonable search warrant is already a violation of one’s
possession and custody VCRs or video recording privacy, the intrusion must have to be minimal allow a
machines and other paraphernalia which are ordinarily nighttime search would be more that the minimal intrusion
found as items or equipment in a video store if they are allowable.
not specified as having been used in relation to illegal Again, is the search has to be made and it is required that it will
video piracy then they cannot be seized because there is not be completed in one day then it can be done the following
no specification that they are illegal. day if there is no nighttime search order granted. For so long as
 Same thing with this other intellectual property the search is done within the 10-day period then the search
violation, if say it is an illegal operating system or it is an would still be valid.

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

Of course it will not be the same if the subject of the search (7) Exigency
is a 20sq. meter residential unit, how long would it take a (8) Search and seizure by Private persons
police officer to search this place do not tell me that you (9) Airport Security
would have to continue the following day or next day. It is (10) Jail Safety
no longer reasonable; it will be a violation already, even if
the subsequent searches are conducted within the 10-day The common denominator in search without warrant which are
period. We have to consider the nature of the search to be valid is the so-called lack of sufficient opportunity to secure a
conducted. warrant. Because of the circumstances that would prevent the
state agents to secure a warrant first. While search warrants may
Finally with respect to witnesses, search of houses, roads any be issued even in a minutes application for so long as the judge is
premises there must have to be witnesses, either the lawful convinced that probable cause exists, still there is a delay caused
occupant, a family member or if they are strangers, 2 witnesses. if the warrant is still to be applied and secured from the court.
We follow the witness rule in searches that is required not only Lack of sufficient opportunity to secure a warrant then it might
because the Rules of Court under Rule 126 on searches requires it fall under valid warrantless search and seizure.
there is also a felony under the Revised Penal Code for searches
conducted without the presence of the witnesses. That is why in SEARCH OF MOVING VEHICLES
most searches conducted they would have 2 members of the
barangay to act as witnesses for them because of the Highly regulated by the government, the vehicle's inherent
requirement of 2-witness rule. mobility reduces expectation of privacy especially when its transit
in public thoroughfares furnishes a highly reasonable suspicion
In relation to the issuance of the warrants, you have this amounting to probable cause that the occupant committed a
2011 case of Pollo v. Constantino David, this involves the criminal activity. It is based on the nature of the vehicle which is
issuance of memorandum order by the CSC allowing searches movable it can be taken from the jurisdiction of the issuing court.
of files in government computers in the workplace to ensure Assuming it were to follow the procedure for securing a warrant,
that the computers are only used for official purposes. The by the time the warrant is issued the vehicle sought to be
validity of the memorandum of the CSC was questioned searched would no longer be there and the warrant could not be
because it is supposed to be an unwarranted search. The SC effective.
upheld the validity of the memorandum order saying that it
is an order issued for purposes of searching a government- Also while it is allowed to be conducted in a moving vehicle all
owned computer so the government owns the computer so if these cases would show that there is still a minimum
the government issues an order authorizing a search on its requirement that probable cause must have to be established
own property then that is not constitutionally infirmed. not by any applicant but by the searching officer meaning the
searching officer must have to determine at least the minimum
It must have to be distinguished from the 2008 case of Atty. that there is a need to stop the vehicle and cause the search on
Morales, clerk of court of MTC Manila. Atty. Morales was the vehicle. It is not correct to say that just because search of
charged administratively for engaging in private practice moving vehicles is a valid instance of warrantless search the
despite the fact of being clerk of court of MTC-Manila. One police officers can just flag down vehicles even if there is no
of the objects which was subject to a search was his reasonable suspicion that the crime is being committed, that the
personal computer which he has been using in his office. The effects, tools or objects or things to be used in the commission of
purpose of the search was to look into the files to determine the crime are inside the moving vehicle that is why it has to be
whether or not Atty. Morales was actually practicing law flagged down, stopped and it has to be searched. There must
with the presence of pleadings and other documents in his have to be that minimum determination to be made by the police
personal computer, it could be evidence to prove that he is officer. So the problem is it is not determined by the judge it is
engaged in the private practice. The SC did not allow the use determined by the police officer. Because of such determination
these files from the computer because it was an made by a non-judicial person who is a law enforcement agent,
unwarranted search. There was also no waiver on the part of what he is up to is always up to securing or seeking evidence for
Atty. Morales. The distinction must be made because the the purposes of filing cases against those persons. There is no
computer was a personal computer and so there must have concept of impartiality as it were if the warrant is to be issued or
to be a valid search without a warrant if no warrant was probable cause is to be determined by a judge because police
secured prior to the search. But for government issued officer is always interested in having evidence obtained in filing
computers, there is no need for a warrant because it is a criminal cases he being a law enforcement agent. But again that
government property. is still required as a minimum so that vehicles could be flagged
down and thereafter can be searched.
2. Valid Instances of Warrantless Searches and Seizure
 In relation to search of moving vehicles will be our Search in
(1) Search of Moving Vehicles Checkpoints that has been established in the case of Revilla
(2) Search incident to a Valid Arrest for a very long time, where in Metro Manila checkpoints
(3) When things seized are within plain view of a searching were established by the National Capital Police Command
party and the question was raised whether ot not the searches in
(4) Stop and Frisk these checkpoints are valid. But For most Davao City
(5) Express Waiver residence that is already a common occurrence so there is
(6) Search of Warehouse in Violation of Customs and Tariff not much issue, but in Metro Manila that is not something
Code or to enforce Customs Law that they see on a daily basis.

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

These rules were established: The same thing with the other purpose for allowing search
1. The checkpoints must not be movable; they must have incident to a valid arrest with respect to weapons. The real
to be stationery. reason a person can be searched bodily and also of his immediate
2. The locations of the checkpoints has to be determined vicinity where he has effect control is to ensure that the arresting
by the commanding officer in charge of that particular officers will remain in the entire duration until he is taken into
area of responsibility, it could not be determined by the custody because that person might have a concealed weapon
police officers manning the checkpoints. The idea being with him or there are weapons within the immediate vicinity for
that it is for the commanding officer to determine he could take control of them to use them to effect escape or to
which area would be the best area to do a checkpoint commit acts of violence. So limitation in time and limitation in
considering the limited resources in personnel and/or space.
manpower of the police command.
3. The police checkpoint must be manned by a police WHEN THINGS SEIZED ARE WITHIN PLAIN VIEW OF A
officer. You may have noticed during elections as SEARCHING PARTY (PLAIN VIEW DOCTRINE)
required under COMELEC Resolutions there must also be
the participation of an election officer for every This is a normal justification for seizure of items during a search
COMELEC established checkpoint that is during the by virtue of a warrant where the item is seized is not included in
conduct of the elections. the warrant. Meaning if there are items found during the conduct
4. Search is limited to a visual search. When you say visual of the search by virtue of a warrant and they are considered as
search, ideally occupants must not be detained in the evidence in plain view, they could be seized not because of the
checkpoint longer than what is necessary for a visual warrant (because they are not listed there) but because they fall
search. Also, they must not be required to open any under the so-called Plain View Doctrine.
compartment in their vehicle nor do they have to be
required to get off the vehicle. The elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest
However, as always as an Exception, if there is probable in which the police are legally present in the pursuit of their
cause for these police officers manning the checkpoint to official duties;
conduct a more extensive search then they can conduct a (b) the evidence was inadvertently discovered by the police who
more extensive search, just like on our discussion earlier on had the right to be where they are;
search of moving vehicle, the determination probable cause (c) the evidence must be immediately apparent[;] and;
is made by police officers and men manning the checkpoint (d) “plain view” justified mere seizure of evidence without
and so if there are facts and circumstances would permit further search.
them to conclude that there is a probability that there is an
ongoing criminal activity inside the moving vehicle and there For plain view doctrine to apply:
is a need to conduct a more extensive search they can 1. There must be justification for the prior intrusion E.g. a
conduct a more extensive search. In these situations the SC search warrant issued by the court so that justifies your
made clear that even if all of these are complied with, it intrusion. Why were you there? It is because there is a
doesn’t mean that searches in checkpoints are generally warrant issued by the court. Of course not all valid intrusions
valid, because there may be individual cases where there are are by virtue of a warrant. There are also intrusions where
violation of one’s rights to privacy or unreasonable searches you have the right to be there even if there is no warrant
and seizures and even if all these are complied with they can issued. You are trying to arrest a person and the person ran
still file cases for such individual violations. towards an enclosure, and so you got inside the enclosure to
effect the arrest of that person and while you are there you
SEARCH INCIDENT TO A VALID ARREST discovered this evidence that is under the law considered as
evidence under the plain view. First is the validity of the
There must have to be a valid arrest before a search incident intrusion or justification of the intrusion. Again the first
thereto could be valid. If the arrest is not valid there can be no would be the justification of the intrusion; the common
search incident to a lawful arrest. question asked is “Did the police officers have the right to be
there in the first place?” If they did not have any right to be
As to a subsequent or incidental search there are 2 there then they could not apply the plain view doctrine.
considerations to remember:
1. There is a limitation on space and 2. The evidence is inadvertently discovered. Meaning in the
2. There is a limitation on time. state of mind they are not actually looking for it because
they were just discovered when they were there then they
 Limitation on Space. Limitation on Space would require that are supposed to fall under the plain view doctrine.
the search be made on the person or body of the person
arrested 3. The evidence is open to the eye or hand of the police. So
 Limitation on Time. That it made within this his immediate ordinarily in plain view viewing it. But why is it in some cases
vicinity where he has effective control. So that even if that the SC has said open to the hands because the search by
person who is supposedly is arrested validly would say throw virtue of a warrant is conducted and a drawer is searched,
evidence like drugs or whatever those can still be seized and you have seen that in movies right , they search drawers and
can be used against him because he has effective control they don’t actually take everything out they just try to feel
over that immediate vicinity. what’s beneath or under those garments. When they feel

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

something like a gun then that would be seized because it is otherwise the presumption is, it is not permitted. When
open to the hand. it comes to magazines which are apparently
pornographic based on the determination of the police
4. The evidence of illegality is immediately apparent. That’s officers the problem is obscenity at least per
where most of the discussions are. The last is the evidence jurisprudence is based on contemporary community
of illegality is immediately apparent. standards. If the material taken as a whole would only
cater to the __ interest based on contemporary
In one case the SC did not apply the plain view doctrine community standards, whose community are we talking
because of the facts of the case: There was a buy-bust about? Whose standards? The illegality is not
made and the drug transaction was done in the living immediately clear because there has yet to be a
room of the house. When they announced the arrest, determination whether or not these materials are
they went to search the kitchen of the house. The appealing purely to the __ interest or is there any social
kitchen and the living room were divided, there was a redeeming value.
divider, and one cannot directly see the kitchen from
the living room where the buy-bust operation was STOP-AND-FRISK
actually done. When they went to the kitchen they
found a plastic bag which is not even transparent, it is The stop-and-frisk situation is based in the US case of Terry
opaque, meaning colored. It is hung by the nail tucked v. Ohio, a 1968 case. This was based on the discussion of the
in the wall and so they had to bring it down had to open SC in the US that in a stop-and frisk situation, there is
the plastic bag and they found something wrapped in a actually no intent to search a person, to seek evidence, other
newspaper and they had to open it and they found than to protect the safety of the police officer in an
bricks of dried marijuana leaves. So the question there appropriate circumstance while he’s investigating possible
is whether or not those marijuana leaves are admissible criminal activity. In this old case of Terry v. Ohio, a police
as evidence. The SC said they could not be because they officer was on duty and he had observed two persons upon
could not be seized under evidence in plain view. Why? the casing a store and he suspected that there might be a
because the evidence of illegality is not immediately robbery to be committed. So, he stopped these two persons
apparent just by looking at it. The SC seems to suggest and frisked them, one of the accused is John Terry, and
that you already know that it is illegal. So normally this where he bodily topped them, they were found to have
plain view doctrine would apply to items which are concealed weapons with them. So, they were charged with
open to the eye or the hand and that by nature they are concealment of a deadly weapon under Ohio statute and
illegal. they were convicted. On appeal to the US SC, the SC
affirmed conviction. The appeal was supposed to be on the
th th
That would refer to only two things: GUNS and DRUGS. violation of their 4 amendment right. The 4 amendment
We don’t have right to bear arms. Possession of right is similar to our search and seizure clause. The US SC
firearms does not enjoy the presumption of validity and affirmed the conviction by a majority saying that in that
the presumption is that it is not permitted. It is for the situation, in an appropriate circumstance, what was done
person who has control or in possession of the hand was actually to search, no not search, they actually avoided
gun to show that he is duly permitted by the State to the use of the word searching, but to frisk a person for
possess it. So the presumption is that it is not possible concealed deadly weapons to ensure the safety of
permitted. So the evidence of illegality is immediately police officer while investigating possible criminal activity.
apparent. So with prohibited drugs, perhaps with
regulated there may be some legal excuse because you So, this was applied in that Philippine case of Posadas v. CA
might have been allowed by the State to possess which originated here in Davao where the local court
regulated drugs. Like for your medication. Prohibited refused to exclude the evidence on the ground that it was
drugs are illegal per se so the evidence of illegality is not an instance of that search where the police officers have
immediately apparent. That would be the requirement already a personal knowledge that there’s a criminal activity
which is most discussed with respect to evidence in on going and that the search was done to secure and seize
plain view. evidence. What was applied in that Posadas ruling was the
stop-and-frisk situation under the Terry v. Ohio decision and
I would often refer or cross-reference this to the case of this was affirmed by the Philippine SC as well. What was to
CA vs. PITA, involving that seizure of “pornographic or be emphasized in stop-and-frisk situation was the lack of
obscene materials”, the Chief of Police of Manila intent on the part of the police officer or law enforcement
directed his police officers to seize all obscene or agent to seize evidence because he already had knowledge
pornographic materials being sold in the streets of that there’s an on-going criminal activity. What the decision
Manila. These police officers confiscated all the allows is for the police officer to stop that person in order for
magazines which are according to the pornographic and the police officer to frisk him for possible concealed deadly
obscene. The SC said the determination of what is weapon (not for evidence that can be used against him) but
obscene or what is pornographic is a matter of judicial to ensure his safety while he’s investigating possible criminal
discretion, simply because the evidence of illegality is activity. The appropriateness of the circumstance must have
not immediately apparent. Who could say that that is to be likened to a situation where like in the dead of the
pornographic or that is obscene, unlike the prohibited night, in the dark, in a secluded alley, there is a person acting
drugs or guns. There is no argument. Unless you are suspiciously, so the police officer has the right to conduct a
duly permitted to possess that then you can be excused stop-and frisk situation. In the Terry v. Ohio case, though it

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

was not in the dead of the night, but the main avenue where and frisk situation, again you go to the appropriateness of
the store was suspected to have been cased by these the circumstance, and assuming according to the SC that it
suspects was somewhat deserted. was appropriate for the police officer to frisk him. Frisking
according to the SC is to tap the person on his outer
In the Philippine case of People v. Mengote, this was also an garment. You could not tap a person like tap or frisk his
old case, the SC did not apply the stop-and-frisk situation pockets and everything, you could not ask that person to
because the circumstance was not appropriate. If you can empty his pockets because that is outside the ambit of what
remember this case, this case involved a police tip or the is allowed in stop-and-frisk. Frisking is actually to tap the
police station received an informant’s tip or call for person from his outer bodily clothing. I-fefeel lng kung may
assistance because apparently there was a person walking posibleng krimen. The prohibited drug was taken inside a tin
into-and-from in front of a store and there was something can, inside the pocket which the SC said was beyond the
bulging in his waist line and he was acting suspiciously. So, allowable frisk under the stop-and-frisk situation.
the police responded to the call and in fact saw this person
walking in front of a store and, true to the description, he fit EXPRESS WAIVER
the description, and so they arrested him and found in his
possession was a fan-knife and I think a local pistol. So he In express waiver, several considerations:
was charged accordingly. The SC did not affirm the 1. The waiver must declare, with full understanding, the
conviction because it was not appropriate. The SC noticed or consequences of the waiver. Of course it presupposes that
observed that based on the records in the trial court, the the person understands his rights (meaning his rights against
incident took place about 12 noon in the corner of two busy unreasonable search and seizure) and that he is willing to
streets or intersection and it was not actually ascertained waive such right knowing the full consequences of the waiver
and there were several people passing in that corner or (meaning that any evidence that is seized can be used
intersection. The person may have been acting suspiciously, against him in any court of law).
there might have been something bulging in his stomach, but
the SC said that that alone would not arouse suspicion where 2. The waiver must have been given by the person to whom it
the police officers would have the right to stop-and-frisk him pertains. A classic example would be in a hotel room where
in order to investigate possible criminal activity. So, the the police officers would want to search that room of a legal
appropriateness of the situation or circumstance has to be occupant of a hotel room, but when the police officers have
emphasized in order to allow a stop-and-frisk situation. knocked on the door and asked for permission or consent,
an unauthorized or unregistered occupant of the hotel room
In relation to plain view and stop-and-frisk, you have the was the one who answered that knock and eventually gave
2012 case of Ong v. People. Ong was driving a motorcycle them consent, is that a valid consent or waiver? If occupancy
and he was apprehended for not wearing a helmet. When he or possession of the room is to the authorized occupant,
was waiting for the TOP (temporary operator’s permit) to be then it is that person who has the right to give consent or
issued to him because he was apprehended, he was I think waiver.
acting suspiciously according to the apprehending officer for
which he was bodily searched and taken from him, actually It must have to be distinguished from what could be an
from the pocket of his jacket, several items, one of which IMPLIED WAIVER OR CONSENT. Normally, there are
was a tin can and when it was opened, because he was situations where people whose rights are to be affected
asked to open it, it contained a prohibited drug. So the would fail to object or protest to the intended search simply
question is whether these items are admissible against him because they are afraid to do so. The waiver must have to be
having been charged of violation of the Revised Dangerous express, meaning again there must have to be full
Drugs Act, the SC said that it could not be search incident to understanding of his rights and the consequences of his
a valid arrest validating the search and therefore making the waiver and it must not be based upon implication simply by
evidence admissible because there was no arrest to begin reason of one’s failure to protest or object to the intended
with. When you are actually apprehended by reason of a search.
traffic violation without any other resulting acts or damage,
for example, traffic violation nabunggo nimo ang poste In the case of Veroy, an old case also based in a Davao
human nahulugan ang tao patay may resulting damage yun, incident, the search by reason of a waiver or consent must
but ordinary traffic violation, nag beat ka ng red light have to be done consistent with the terms or conditions of
without a helmet, no other resulting violation, according to the waiver. In that case the waiver was to allow the police
the traffic manual, that is not supposed to be an arrest, you officers to search the house for presence of military soldiers
are just to be issued a temporary operator’s permit and your who were considered to be rebels and so the fact that there
driver’s license is taken, so if that is the situation as with Ong were some supposedly subversive materials which were
in this particular case, the SC said there was no arrest and found, discovered, and seized from places in the house where
therefore there could be no search incident to a valid arrest. no person where suspected to fit, where excluded by the SC
It could not also fall under evidence in plain view because the simply because the search has been done outside of the
facts would show that the prohibited drug was found inside a parameters of the waiver or allowance or consent. So, they
tin can which was taken from his pocket meaning just by must conduct the search in relation to waiver or permission
looking at the person or even by the tin can, the evidence of granted by the person to whom the right pertains.
th
illegality is not apparent which is the 4 condition of the
plain view doctrine to be applicable. It could not also fall
under the stop-and-frisk according to the SC because in stop-

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

SEARCH OF WAREHOUSE IN VIOLATION OF CUSTOMS AND device or arrangement, to secretly overhear, intercept, or record
TARIFF CODE OR TO ENFORCE CUSTOMS LAW such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or dictaphone or walkie-
The last would be under the Tariff and Customs Code. This is talkie or tape recorder, or however otherwise described:
search in violation of the tariff and customs code and limited to
It shall also be unlawful for any person, be he a participant or not
warehouses and modes of transport. This does not include
in the act or acts penalized in the next preceding sentence, to
dwelling houses or places use for residence. That is why the joke
knowingly possess any tape record, wire record, disc record, or
is that if you are a smuggler you’ll try to keep smuggled goods
any other such record, or copies thereof, of any communication
inside your house, don’t keep it inside a warehouse so that they
or spoken word secured either before or after the effective date
must have to secure a search warrant first before they would
of this Act in the manner prohibited by this law; or to replay the
seize it otherwise it will be an invalid instance of warrantless
same for any other person or persons; or to communicate the
search.
contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other
SEARCH AND SEIZURE BY PRIVATE PERSON
person: Provided, That the use of such record or any copies
thereof as evidence in any civil, criminal investigation or trial of
Now you have your Rule 27 Production and Inspection of
offenses mentioned in section 3 hereof, shall not be covered by
documents. The question is: Is this a species of warrantless
this prohibition.
search? Rule 27 allows upon a valid order issued by a court upon
application to allow the adverse party to inspect photographs, Section 2. Any person who willfully or knowingly does or who
documents, papers, books, accounts, objects, letters or tangible shall aid, permit, or cause to be done any of the acts declared to
things not privileged which constitute or contain evidence be unlawful in the preceding section or who violates the
material to any matter involved in the action, or order any party provisions of the following section or of any order issued
to permit entry upon designated land or other property in his thereunder, or aids, permits, or causes such violation shall, upon
possession or control. It is not a species of search when there is conviction thereof, be punished by imprisonment for not less
no warrant but there is court order. Well ostensibly looking at it, it than six months or more than six years and with the accessory
may be but technically is not. penalty of perpetual absolute disqualification from public office if
the offender be a public official at the time of the commission of
Production of Documents is a form of discovery. As we all know the offense, and, if the offender is an alien he shall be subject to
the rules of court as to discovery primarily would involve civil deportation proceedings.
cases although the same modes of discovery or some of the
modes of discovery are applicable to criminal cases. And these Section 3. Nothing contained in this Act, however, shall render it
involve private rights of private parties. It is not the state unlawful or punishable for any peace officer, who is authorized
imposing itself or its authority to seize or enter premises to by a written order of the Court, to execute any of the acts
inspect and seize “these” to form part of the evidence material to declared to be unlawful in the two preceding sections in cases
the case. involving the crimes of treason, espionage, provoking war and
disloyalty in case of war, piracy, mutiny in the high seas,
AIRPORT SECURITY rebellion, conspiracy and proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit sedition, inciting to
Has not been the subject of cases traditionally considered as valid sedition, kidnapping as defined by the Revised Penal Code, and
instance of warrantless arrest but by reason of all these acts of violations of Commonwealth Act No. 616, punishing espionage
terrorism they say airport security has been a subject of 3 or 4 and other offenses against national security: Provided, That such
cases of Philippine SC where searches conducted by airport written order shall only be issued or granted upon written
security personnel are considered as a valid instance of application and the examination under oath or affirmation of the
warrantless search and seizure. applicant and the witnesses he may produce and a showing: (1)
that there are reasonable grounds to believe that any of the
JAIL SAFETY crimes enumerated hereinabove has been committed or is being
committed or is about to be committed: Provided, however, That
Not traditionally considered as one of the valid instance of in cases involving the offenses of rebellion, conspiracy and
warrantless search and seizure but because of jurisprudence SC proposal to commit rebellion, inciting to rebellion, sedition,
has said that as part of jail security to maintain the security in the conspiracy to commit sedition, and inciting to sedition, such
jail premises, not only for the purposes of keeping the inmates in authority shall be granted only upon prior proof that a rebellion
but also for the protection of the jail guards and of the public or acts of sedition, as the case may be, have actually been or are
then searches and seizures by reason of jail security procedure is being committed; (2) that there are reasonable grounds to
also allowed even if there is no search warrant issued. believe that evidence will be obtained essential to the conviction
of any person for, or to the solution of, or to the prevention of,
3. Wire Tapping any of such crimes; and (3) that there are no other means readily
available for obtaining such evidence.
REPUBLIC ACT No. 4200 - AN ACT TO PROHIBIT AND PENALIZE
The order granted or issued shall specify: (1) the identity of the
WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE
person or persons whose communications, conversations,
PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.
discussions, or spoken words are to be overheard, intercepted, or
Section 1. It shall be unlawful for any person, not being recorded and, in the case of telegraphic or telephonic
authorized by all the parties to any private communication or communications, the telegraph line or the telephone number
spoken word, to tap any wire or cable, or by using any other involved and its location; (2) the identity of the peace officer

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

authorized to overhear, intercept, or record the communications, Art III Sec 3 (2) Any evidence obtained in violation of this or
conversations, discussions, or spoken words; (3) the offense or the preceding section shall be inadmissible for any purpose
offenses committed or sought to be prevented; and (4) the in any proceeding.
period of the authorization. The authorization shall be effective
for the period specified in the order which shall not exceed sixty The question is when do you have that excluded? For objects
(60) days from the date of issuance of the order, unless extended or things, you can have that excluded either you file a
or renewed by the court upon being satisfied that such extension motion to suppress evidence before you go to trial or you
or renewal is in the public interest. can also file a motion to quash the warrant if there is a
All recordings made under court authorization shall, within forty- warrant issued and items were seized under such warrant. If
eight hours after the expiration of the period fixed in the order, the motion to quash the warrant is granted, then
be deposited with the court in a sealed envelope or sealed automatically the evidence so obtained may be considered
package, and shall be accompanied by an affidavit of the peace as inadmissible.
officer granted such authority stating the number of recordings
made, the dates and times covered by each recording, the (2) CIVIL ACTION FOR DAMAGES. under Article 32 of Civil Code
number of tapes, discs, or records included in the deposit, and will also be one of the remedies and they are not exclusive
certifying that no duplicates or copies of the whole or any part of each other.
thereof have been made, or if made, that all such duplicates or
copies are included in the envelope or package deposited with Art. 32 NCC. Any public officer or employee, or any private
the court. The envelope or package so deposited shall not be individual, who directly or indirectly obstructs, defeats,
opened, or the recordings replayed, or used in evidence, or their violates or in any manner impedes or impairs any of the
contents revealed, except upon order of the court, which shall following rights and liberties of another person shall be
not be granted except upon motion, with due notice and liable to the latter for damages: xxx (9) The right to be
opportunity to be heard to the person or persons whose secure in one's person, house, papers, and effects against
conversation or communications have been recorded. unreasonable searches and seizures;

The court referred to in this section shall be understood to mean


(3) CRIMINAL CAUSES UNDER THE RPC. Articles 128, 129, and
the Court of First Instance within whose territorial jurisdiction the
130, RPC. These involve trespass to dwelling, searches
acts for which authority is applied for are to be executed.
without witnesses, and felony for illegally implementing a
Section 4. Any communication or spoken word, or the existence, search warrant.
contents, substance, purport, effect, or meaning of the same or
any part thereof, or any information therein contained obtained Section Two. — Violation of domicile
or secured by any person in violation of the preceding sections of Art. 128. Violation of domicile. — The penalty of prision
this Act shall not be admissible in evidence in any judicial, quasi- correccional in its minimum period shall be imposed upon
judicial, legislative or administrative hearing or investigation. any public officer or employee who, not being authorized by
judicial order, shall enter any dwelling against the will of the
Section 5. All laws inconsistent with the provisions of this Act are
owner thereof, search papers or other effects found therein
hereby repealed or accordingly amended.
without the previous consent of such owner, or having
Section 6. This Act shall take effect upon its approval. surreptitiously entered said dwelling, and being required to
leave the premises, shall refuse to do so.
4. What may be seized? If the offense be committed in the night-time, or if any
papers or effects not constituting evidence of a crime be not
Section 3. Personal property to be seized. — A search warrant returned immediately after the search made by the
may be issued for the search and seizure of personal property: offender, the penalty shall be prision correccional in its
(a) Subject of the offense; medium and maximum periods.
(b) Stolen or embezzled and other proceeds, or fruits of the
offense; or Art. 129. Search warrants maliciously obtained and abuse in
(c) Used or intended to be used as the means of committing an the service of those legally obtained. — In addition to the
offense. (2a) liability attaching to the offender for the commission of any
other offense, the penalty of arresto mayor in its maximum
Now what are the objects of search warrants under Rule 126? period to prision correccional in its minimum period and a
The objects of the search warrant would be your fruits or fine not exceeding P1,000 pesos shall be imposed upon any
proceeds of a crime or those which may be used for the public officer or employee who shall procure a search
commission of the offense. warrant without just cause, or, having legally procured the
same, shall exceed his authority or use unnecessary severity
5. Remedies in Cases of Violation in executing the same.

Violation of your rights against unreasonable search and seizure, Art. 130. Searching domicile without witnesses. — The
your remedies would be: penalty of arresto mayor in its medium and maximum
periods shall be imposed upon a public officer or employee
(1) THE EXCLUSIONARY RULE. The evidence obtained may be who, in cases where a search is proper, shall search the
excluded in evidence. domicile, papers or other belongings of any person, in the
absence of the latter, any member of his family, or in their

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

default, without the presence of two witnesses residing in determination of probable cause by a judge. However, the Rules
the same locality. of Court would require that the judge in determining probable
cause would have, based on SC decisions, would have to go over
Those are the remedies in case there are violations of rights personally all the records of the criminal indictment, meaning
against unreasonable search and seizures. from the affidavit complaint, the affidavit of witnesses, the
counter affidavit of the respondent now the accused and his
6. Requirements for Issuance of Warrants of Arrest witnesses if any, the resolution of the prosecution or the
investigating officer who filed the information, the information
Rule 112 Section 6. When warrant of arrest may issue. — (a) By and all other available records during the preliminary
the Regional Trial Court. — Within ten (10) days from the filing of examination or investigation for him to determine the existence
the complaint or information, the judge shall personally evaluate of probable cause. The judge is not required to take deposition or
the resolution of the prosecutor and its supporting evidence. He testimonies of applicants or witnesses unlike in search warrants
may immediately dismiss the case if the evidence on record because the difference lies in the fact that in search warrant
clearly fails to establish probable cause. If he finds probable applications there is no criminal case yet pending unlike in
cause, he shall issue a warrant of arrest, or a commitment order if issuances of warrant of arrest that there is already a criminal
the accused has already been arrested pursuant to a warrant indictment started with the investigation conducted by the
issued by the judge who conducted the preliminary investigation appropriate investigating office, what is before the court is the
or when the complaint or information was filed pursuant to entire records of the case ending with the information filed
section 7 of this Rule. In case of doubt on the existence of before it for him to determine that there is probable cause to
probable cause, the judge may order the prosecutor to present issue the warrant. Under the Rules of Court now, traditionally, it
additional evidence within five (5) days from notice and the issue is said that the determination of probable cause to file the case
must be resolved by the court within thirty (30) days from the is an executive function, while the determination of probable
filing of the complaint of information. cause to issue the warrant is a judicial function. So there seems
to be a difference between determination of probable cause by
(b) By the Municipal Trial Court. — When required pursuant to an investigating officer to file a case and determination of
the second paragraph of section 1 of this Rule, the preliminary probable cause to issue a warrant of arrest.
investigation of cases falling under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial Court in Cities, But under the Rules of Criminal Procedure now, the judge is
Municipal Trial Court, or Municipal Circuit Trial Court may be authorized to determine the existence of probable cause to
conducted by either the judge or the prosecutor. When continue with the indictment even if the investigating officer has
conducted by the prosecutor, the procedure for the issuance of a already found that there is probable cause, once the entire
warrant or arrest by the judge shall be governed by paragraph (a) record inclusive of the information is before the judge, the judge
of this section. When the investigation is conducted by the judge can go over it and determine whether or not there is probable
himself, he shall follow the procedure provided in section 3 of cause to continue with the case. So, the judge is given “the
this Rule. If the findings and recommendations are affirmed by authority to review the findings of the investigating officer”, in
the provincial or city prosecutor, or by the Ombudsman or his effect, the judge can nullify the finding of probable cause by the
deputy, and the corresponding information is filed, he shall issue investigating officer and order the dismissal of the case.
a warrant of arrest. However, without waiting for the conclusion
of the investigation, the judge may issue a warrant of arrest if he For example perhaps you have read in the news last week,
finds after an examination in writing and under oath of the those charged in the killing of a law student of San Beda by
complainant and his witnesses in the form of searching question the family name Marcus, they were charged with the anti-
and answers, that a probable cause exists and that there is a hazing law violation, several accused were dropped upon
necessity of placing the respondent under immediate custody in orders of the court because the judge found that there was
order not to frustrate the ends of justice. no probable cause against most of the accused, and
apparently De Lima who belongs to the same sorority and
(c) When warrant of arrest not necessary. — A warrant of arrest fraternity has ordered an investigation why it has
shall not issue if the accused is already under detention pursuant happened as if we are surprised why the charges against
to a warrant issued by the municipal trial court in accordance most of them were dismissed. If the judge finds that there
with paragraph (b) of this section, or if the complaint or is probable cause to continue with the indictment or does
information was filed pursuant to section 7 of this Rule or is for not find probable cause to continue with the indictment,
an offense penalized by fine only. The court shall then proceed in the judge may require the prosecution to submit additional
the exercise of its original jurisdiction. (6a) documentary evidence, and the judge must resolve
whether or not probable cause exists as to continue with
Rule 126 Section 4. Requisites for issuing search warrant. — A the indictment. If the judge finds to continue with the
search warrant shall not issue except upon probable cause in indictment, he will have to determine now whether there is
connection with one specific offense to be determined personally probable cause to issue a warrant of arrest.
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly Probable cause to charge a person would refer to such facts and
describing the place to be searched and the things to be seized circumstances which would convince the judge that the crime has
which may be anywhere in the Philippines. (3a) been committed and that the person charged must have to be or
the respondent must be charged in court. Probable cause to
Now with respect to WARRANTS OF ARRESTS, the same issue the warrant of arrest is such facts and circumstances which
would lead the judge to conclude that there is a need to place
constitution or provision of the constitution requires only a

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

this person under the custody, meaning to place them under allow now the judge to determine probable cause whether to
arrest. To charge them is technically different from the need to continue with the indictment, it has been a standard practice
place them under arrest or custody. So the judge can now do which you cannot find in rules of court that lawyers will file for
both, whereas before the judge can only do one because to the accused a motion to determine probable cause or motion for
charge is an executive function and to arrest is a judicial one. judicial determination of probable cause. Kasi iba yung
determination ng probable cause ng prosecution. Iba naman yung
There’s not much requirements with the issuance of the warrant determination ng probable cause ng judge based on that rules of
of arrest except that determination of probable cause based court provision. So judges now have also granted motions for
upon the entire records. judicial determination of probable cause and eventually order the
dismissal of cases because they think that there is no sufficient
In the old case of Lim v. RTC of Makati, the SC said that the judge evidence to continue with the indictment.
could not have determined the existence of probable cause to
issue the warrant of arrest because not the entire records are Other distinctions with search warrants
before him. This case originated in Masbate but the SC ordered
the transfer of venue to RTC of Makati, but what was before the In search with warrants, you have 10-day efficacy period, in
Makati judge was only the information and resolution, the entire warrant of arrest, there is none. The 10-day period
affidavits, counter affidavits, and affidavits of witnesses were mentioned in the rules of court refers to the reportorial
never forwarded to the RTC of Makati. So the SC said that the requirement if the warrant is not served or is served within
judge could not have determined probable cause based on an that 10-day period, there must have to be a return made
incomplete record of the case. informing the court that the warrant has not been
implemented or has been implemented and that the accused
How long or how short or how should the judge go over the has been arrested. If the accused has not been arrested
record of the case? Is there a hard and fast rule? This was raised within the 10-day period, the warrant continues to be valid
in the old case of Webb v. de Leon. We all know that Webb has but the serving party must inform the court by making a
been acquitted in the case of People v. who is his co-accused? return that the warrant is still outstanding. After awhile, the
well anyway, because of the personalities involved in the case warrant of arrest will become “stale” that’s why there is that
when it started, the DOJ has to create a committee for purposes motion for the issuance of ALIAS WARRANT. It does not
of conducting a preliminary investigation and because the father mean that the first warrant has lost its efficacy but since it
was a senator then, he would have expected a barrage of lawyers has been returned it is no longer in the possession of the
filing all the documents to (?) the investigating committee on the implementing officer. So there might be a need to seek
bullshit of what probable cause is. So eventually the probable another warrant of arrest.
cause was found and he (?) the court Judge De Leon and judge de
leon took only a couple of hours to issue a warrant of arrest Also in searches, we’ve made mention of the daytime
despite the fact that the records from the preliminary searches, in arrest there is no such thing as daytime arrest
investigation conducted by the DOJ panel was almost half truck so rule. The arrest can be made daytime or night time.
Webb said arguing that how could a judge have found probable
cause with such a short time when the judge is required to go Also, while technically search warrant can be implemented
over the entire records personally. Well the SC said that there is within the territorial jurisdiction of the issuing court because
no hard and fast rule on how the judge should go over the records under the rules you should apply search warrants in the
but what the constitution and the previous rulings of the SC would court which has territorial jurisdiction in the place intended
all require that the task is personally done by the judge and not to be searched or if there is no such judge in the court, you
delegated to another. How the judge would go over the entire have judicial region, unless or excepted is under the
record whether he will peruse over it carefully or peruse over it in intellectual property code. In warrant of arrest, there is no
a different manner is for the judge to determine, only that it must such thing, it can be issued in one court, it is technically valid
be consistent that he or the judge is convinced that there is a anywhere in the Philippines.
need to place the person of the accused under custody. So it does
not mean that if the record is a full thick that there must have to Also in searches, it is required that the search warrant be
be 3 hours that the judge should spend , but if the judge is not shown to the person who has control over the premises
voracious and fast reader, or what if the other judge would be (?). subject of the search in the search warrant. In arrest, there
is no need to present the warrant of arrest to the person
Actually in real terms if you are going to practice later, the object of the arrest, the arrest warrant is not even required
warrant is already prepared by the clerk and once the entire to be in the possession of the person effecting the arrest,
records would reach the court after the raffling, tanawon lang but under the rules, the warrant must be presented to the
mana ang information and this time the warrant of arrest and put person arrested within reasonable time after the arrest.
the bail recommendation from the information as prepared by
the investigating office. So from the prosecution, bail In the implementation of warrants there is a special rule in
recommended or no bail recommended. And it is now for the allowing the implementing person to break in an enclosure to
judge to sign it. Whether the judge would really issue or will (?) effect the arrest, if the person arrested is inside the enclosure
the records, it will be up to him whether he will review the and funny the same rules allow the same arresting person to
records or just sign it. break out of the enclosure, meaning if he is locked inside in the
place where he effected the arrest, he could also employ
That is why it has to be established as a practice not recently but necessary force in breaking himself out of the enclosure.
when the new rules of court of criminal procedure was revised to

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

7. When Arrest may be made without a warrant offense, is pursued immediately after its commission, has
escaped, flees or forcibly resists before the officer has
RULE 113 Arrest opportunity so to inform him, or when the giving of such
Section 1. Definition of arrest. — Arrest is the taking of a person information will imperil the arrest. (8a)
into custody in order that he may be bound to answer for the Section 9. Method of arrest by private person. — When making
commission of an offense. (1) an arrest, a private person shall inform the person to be arrested
Section 2. Arrest; how made. — An arrest is made by an actual of the intention to arrest him and cause of the arrest, unless the
restraint of a person to be arrested, or by his submission to the latter is either engaged in the commission of an offense, is
custody of the person making the arrest. pursued immediately after its commission, or has escaped, flees,
or forcibly resists before the person making the arrest has
No violence or unnecessary force shall be used in making an opportunity to so inform him, or when the giving of such
arrest. The person arrested shall not be subject to a greater information will imperil the arrest. (9a)
restraint than is necessary for his detention. (2a)
Section 10. Officer may summon assistance. — An officer making
Section 3. Duty of arresting officer. — It shall be the duty of the a lawful arrest may orally summon as many persons as he deems
officer executing the warrant to arrest the accused and to deliver necessary to assist him in effecting the arrest. Every person so
him to the nearest police station or jail without unnecessary summoned by an officer shall assist him in effecting the arrest
delay. (3a) when he can render such assistance without detriment to
Section 4. Execution of warrant. — The head of the office to himself. (10a)
whom the warrant of arrest was delivered for execution shall Section 11. Right of officer to break into building or enclosure. —
cause the warrant to be executed within ten (10) days from its An officer, in order to make an arrest either by virtue of a
receipt. Within ten (10) days after the expiration of the period, warrant, or without a warrant as provided in section 5, may break
the officer to whom it was assigned for execution shall make a into any building or enclosure where the person to be arrested is
report to the judge who issued the warrant. In case of his failure or is reasonably believed to be, if he is refused admittance
to execute the warrant, he shall state the reasons therefor. (4a) thereto, after announcing his authority and purpose. (11a)
Section 5. Arrest without warrant; when lawful. — A peace officer Section 12. Right to break out from building or enclosure. —
or a private person may, without a warrant, arrest a person: Whenever an officer has entered the building or enclosure in
(a) When, in his presence, the person to be arrested has accordance with the preceding section, he may break out
committed, is actually committing, or is attempting to commit an therefrom when necessary to liberate himself. (12a)
offense; Section 13. Arrest after escape or rescue. — If a person lawfully
(b) When an offense has just been committed, and he has arrested escapes or is rescued, any person may immediately
probable cause to believe based on personal knowledge of facts pursue or retake him without a warrant at any time and in any
or circumstances that the person to be arrested has committed it; place within the Philippines. (13)
and Section 14. Right of attorney or relative to visit person arrested.
(c) When the person to be arrested is a prisoner who has escaped — Any member of the Philippine Bar shall, at the request of the
from a penal establishment or place where he is serving final person arrested or of another acting in his behalf, have the right
judgment or is temporarily confined while his case is pending, or to visit and confer privately with such person in the jail or any
has escaped while being transferred from one confinement to other place of custody at any hour of the day or night. Subject to
another. reasonable regulations, a relative of the person arrested can also
exercise the same right. (14a)
In cases falling under paragraph (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the Valid instances of WARRANTLESSS ARREST there are also 6 in the
nearest police station or jail and shall be proceeded against in same rules of court.
accordance with section 7 of Rule 112. (5a)
 IN FLAGRANTE DELICTO CASES (a) When, in his presence,
Section 6. Time of making arrest. — An arrest may be made on the person to be arrested has committed, is actually
any day and at any time of the day or night. (6) committing, or is attempting to commit an offense;
Section 7. Method of arrest by officer by virtue of warrant. —  HOT PURSUIT CASES (b) When an offense has just been
When making an arrest by virtue of a warrant, the officer shall committed, and he has probable cause to believe based on
inform the person to be arrested of the cause of the arrest and of personal knowledge of facts or circumstances that the
the fact that a warrant has been issued for his arrest, except person to be arrested has committed it; and
when he flees or forcibly resists before the officer has
opportunity to so inform him, or when the giving of such  RE-ARREST OF ESCAPE PRISONER (c) When the person to be
information will imperil the arrest. The officer need not have the arrested is a prisoner who has escaped from a penal
warrant in his possession at the time of the arrest but after the establishment or place where he is serving final judgment or
arrest, if the person arrested so requires, the warrant shall be is temporarily confined while his case is pending, or has
shown to him as soon as practicable. (7a) escaped while being transferred from one confinement to
another.
Section 8. Method of arrest by officer without warrant. — When
making an arrest without a warrant, the officer shall inform the In case of re-arrest of person previously arrested, so if the
person to be arrested of his authority and the cause of the arrest, person is validly arrested with or without a warrant, and he
unless the latter is either engaged in the commission of an

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

has escaped or has been rescued, he could be rearrested Now personal knowledge of facts indicating the person to be
without a warrant of arrest; arrested has committed it would refer to the identity of the
person to be arrested. Of course, the arresting persons or officers
Arrest by a bondsperson when an accused is bonded , the were not there when the crime has been committed, they would
characterization is that the state is relieved of the obligation to not have actual personal knowledge on the identity of the person
detain him or put him in jail but his bondsperson becomes his to be arrested. But the identity of the person can be established
jailer, while he is not in actual detention the court does not lose based on two things:
jurisdiction over him and the bondsperson becomes his (1) one, the testimonies of witnesses in the area, and
custodian. And so, by the warranty undertaking of the (2) some other object evidence that they were able to
bondsperson, the bondsperson is allowed to effect the arrest of personally perceived in the area.
an accused under his undertaking to present that person in court If it is largely based on testimonies of the witnesses that would
when required without the necessity of a warrant, in order to not be sufficient to establish probable cause because again these
avoid liability on the bond put up by the bondsperson for the are based on testimonies therefore hearsay as to them but if the
temporary liberty of the accused. And finally, if an accused testimonies of the witnesses are coupled with object evidence or
attempts to depart from the country, the accused can be arrested documentary evidence that they may have found then personally
at any time without any warrant. This is to prevent the person to perceived in the scene of the crime then it would be sufficient to
escape from the applicability of our judicial system because our establish the identity of the person in the crime scene.
criminal justice system follows the principle of territoriality.
8. Administrative Arrests
Now most of the discussion of warrantless arrest would be on
section 5(b) when a person or when a crime has just been Art VI Section 11. A Senator or Member of the House of
committed and the person arresting has personal knowledge of Representatives shall, in all offenses punishable by not more than
facts indicating that the person to be arrested has committed it. six years imprisonment, be privileged from arrest while the
In in flagrante delicto cases, the personal knowledge is on the Congress is in session. No Member shall be questioned nor be
crime, not on the person arrested though it goes with it because held liable in any other place for any speech or debate in the
the crime is committed, is being committed or is about to be Congress or in any committee thereof.
committed in the presence of the person effecting the arrest. So
personal knowledge is on the crime. For the emphasis, personal From the term used, it refers to arrests ordered in relation to
knowledge is on the crime although it goes with it the identity of administrative (dili masabtan ang audio saba kayo ang door basta
the person who committed it. dli daw ni pareha atung gina issue sa regular courts after a strict
discussion on probable cause by reason of a criminal case filed
In section 5(b), that is where most of the cases are because there before regular courts) .
are two operative phrases there.
(1) First, the offense has just been committed. However, in relation to the power of the President over Foreign
(2) Second, on the personal knowledge of facts indicating affairs, specifically on undesirable aliens we have made mention
that the person to be arrested has committed it. that the President can direct the arrest of an undesirable alien
and order his immediate deportation. The authority of the
First, the offense has just been committed President is not based on making constitutional grants but it is
The phrase has just been committed has been interpreted based on the fact that as head of state, he is the one tasked with
to mean to cover a period of less than 24 hours, last count I foreign relations and in that specific instance, allowing an alien to
think is the case involving 18 hours but not longer than that. stay in the country.

Again, just like warrantless searches and seizures, the We even made mention that under our system, there is no need
common denominator is that there is no reasonable for any violation of law for a foreigner to be declared an
opportunity to secure a warrant of arrest. If the commission undesirable alien in the country. The declaration of
of the crime and the time of the arrest is separated by undesirability is based on national interest issue. Meaning, if the
reasonable time then there must have to be opportunity to foreigners’ stay in the country is affecting national interest, he
secure a warrant and in the police lingo they called it the could be or his stay could be declared as no longer allowable or
regular filing because you have to file it regularly and then undesirable. He could be ordered arrested by virtue of an
the court eventually issued a warrant of arrest. Excepted to Administrative Warrant issued by the President through the
this, in some cases, what is known as your situations Bureau of Immigration and Deportation and that is a known
involving your arrest by reason of hot pursuit. That would be exception for warrants issued outside of the parameters of
the only exception if there is really a hot pursuit operation. section 2 of Article 3 of the Const.
There is one old case when the arrest was made after 3
days, this was a carnapping case that started here and Also, in relation to the power of certain bodies or tribunals to
the arrest was eventually had in Surigao after 3 days issue orders citing a person in contempt, such tribunals can
but because it was a hot pursuit operation the SC said it order the arrest of a person having cited him for contempt for
would fall within the phrase that the crime has just purposes of arresting him and making him suffer the penalty.
been committed. That is also an exception to the requirement that such warrants
must have to be issued by a court on determination of probable
Second, on the personal knowledge of facts indicating that the cause.
person to be arrested has committed it.
In the US, there is also a practice there by reason of the
aftermath of the 9/11 incident. They have this new

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

regulations and laws regarding arrests and detention of 10. Right to Privacy
suspected terrorists. The US authorities could detain or
arrest a person even without warrant under suspicion of Art III Section 2. The right of the people to be secure in their
having committed acts of terrorism. Also, it is part of the persons, houses, papers, and effects against unreasonable
policy of the US but it has been somehow watered down in searches and seizures of whatever nature and for any purpose
the Obama administration what has been known as shall be inviolable, and no search warrant or warrant of arrest
Extraordinary Rendition. Because of the observance of shall issue except upon probable cause to be determined
human rights laws and regulations in the US, those persons personally by the judge after examination under oath or
suspected of committing acts of terrorism can be placed affirmation of the complainant and the witnesses he may
under extraordinary rendition. Rendition is the practice of produce, and particularly describing the place to be searched and
arresting and detaining persons suspected of committing the persons or things to be seized.
acts of terrorism but they are placed in another jurisdiction.
They could not be detained after arrest in the US territory If you remember that 1998 decision in the case of: Ople vs Torres
because of the observance of the human rights laws and The Supreme Court had the opportunity to discuss whether or
regulations. What they do is they arrest these persons, bring not the right to privacy is an express right granted by the
them to another jurisdiction outside of US territory and constitution. The factual background of the case is that they
there, these persons are supposed to be interrogated and wanted to, by administrative order, go with a national ID system
there is no limitation on the procedure of interrogation just where there were certain basic information is to be taken from
to get the necessary information. Extraordinary rendition each individual for purposes of a national identification system.
has not been denied by the US authorities that it has been So, the validity or constitutionality of that admin order was
considered as a practice although again, it has been watered questioned including the purpose of the national ID system in
down in the Obama administration. So those are examples relation to this right of privacy. The end result of that case was
of administrative arrests. that the admin order was struck down as violative of the
constitution on two grounds: (1) it was not within the authority of
9. Immunity from arrests of the members of Congress the President to issue by admin order the national ID system. The
SC said it must have to be a legislation. As we all know under the
After the complaint against Napoles implicating several admin code, the President has ordinance powers in relation to
senators and members of the lower house was filed with the the execution of the laws. He has the authority to issue executive
office of the ombudsman, many questions were asked orders, admin orders, etc which are all in line with his power to
whether they should be suspended or whether they should implement and execute the law. So if there is no law on the
be arrested. The question on whether they should be matter yet, there can be no ___ issued under his ordinance
arrested, the fact that matters is that there is no information powers. (2) It is violative of the right to privacy. There is no issue
yet filed. So there could be no warrant issued so there is no that the state can impose as part of police power some form of a
worry that they should be arrested. Of course, if the national ID system taking some valuable info from an individual
information is filed and the warrant is issued, plunder carries but the reason why the SC maintained that it was violative of
a penalty of more than 6 years imprisonment. one’s right to privacy was because there was no sufficient
safeguard to guarantee that there won’t be unnecessary release
The immunity from arrest covers only for felonies or offenses of info and there is also no appropriate penalty in case of
which carries a penalty of not more than six years imprisonment. unauthorized release of info. The language of the court it said as
If it is more than that, they can be arrested even when the an obiter “in no uncertain terms we underscore that the right to
congress is in session. privacy does not bar all incursions into individual privacy. The
right is not intended to (murag I hinder) scientific or technological
The 1986 constitution has changed in phraseology whereas from
advancements that enhance public service and the common
previous constitutions, the immunity from arrests will only or are
good. They require that the law be narrowly focused and that a
granted only “if they are going to or while in attendance in or is
compelling interest justifies such intrusion. Intrusions to the right
coming from the session”. In the 1986 constitution, the phrase
must be accompanied by proper safeguards and well designed
“while congress is in session” was used so for the entire duration
standards to prevent unconstitutional invasion.” There seems to
of the regular session of congress, or of the special session if
be a lack in that admin order as to how these info can be kept
there is, they are immune from arrest regardless of whether or
and in what instances are these info be allowed to be released
not they are actually going to, in attendance in or coming from a
and who shall be held responsible and what are the penalties for
session.
such unauthorized violations of one’s right to privacy if these info
are released without proper authorization. In the same case, the
With respect to suspension, we all know that in that old case
SC mentioned that there is NO express provision on the right to
of: Santiago vs Sandiganbayan. There was this issue of
privacy in the constitution. They said that perhaps the reason is
suspension as I may have mentioned here before, the
that it is inherent or included even if not there. What they said is
penalty of suspension imposable by congress for disorderly
that the right to privacy is recognized in several provisions of the
behavior is not that suspension that is imposed which is
Constitution and they cited:
preventive when a valid information is filed before the SB
under the plunder law or under RA 3019. So, they could be
1.) Section 1 of Article III
suspended if a valid information has been filed and it is
2.) Section 2 of article III
allowed not because the court is supreme over congress but
3.) Privacy of Communications in section 3
because of the penalty imposed for such disorderly
4.) Liberty of Abode and changing the same under section 6
behavior.

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

5.) The right of people to form associations in public and In relation to that, the discussion on the right to privacy in the
private sectors under section 8 Philippines has not been decided very early on simply because
6.) Privilege against self-incrimination under section 17. there were no cases filed involving this right to privacy. We have
somehow taken our decisions from American jurisprudence as to
Also, the SC noted that there is such a thing as Zones of Privacy how this right has developed.
which means that the state through the legislature have in
certain laws recognized that we have privacy rights in certain The right to privacy in the Philippines has been related to our
zones of privacy in day to day activities. basic human right that we have this right to be let alone and in
the context of the Constitution, if there is no express provision,
1. The civil code, under Article 26 provides that every this has included the right to prevent intrusion into certain
person shall respect the dignity, personality, PRIVACY, thoughts and activities which includes the freedom of speech, to
and peace of mind of his neighbors and provides form or join associations, aside of course form the obvious, the
penalties for such violations. right against unreasonable searches and seizures, and freedom
2. Under Article 32, one of the remedies in case of from self-incrimination. As applied in the US, it has been applied
violation of our right against unreasonable searches in many situations with respect to:
and seizure. This is technically the basis of our claim for
damages and these claims for damages are not only for  Right to privacy and education. In the 1923 decision,
actual damages, but also include claims for moral the SC in the US invalidated a local statute prohibiting
damages. the teaching in any school of any language other than
3. Under Article 723 of the Civil Code, it recognized the English. In the state of Nebraska, a local statute was
privacy of letters and other private communications. passed prohibiting in school the teaching of language
4. In the RPC under Article 229, it makes violation of other than English. The SC said that it is violative of the
secrets by an officer as a felony right to privacy because the right to privacy in the US
5. Under Article 290-292 of the RPC, revelation of trade includes the right to pursue their happiness (gusto ko
and industrial secrets is also a felony happy ka! More energy mas happy). It is part of their
6. Under Article 280 of the RPC, trespass to dwelling constitutional right. So if a school child is happy to be
taught in ilonggo, the he must be taught in ilonggo
Invasion to privacy is also an offense under other special laws. (how old are you nab a gid haw? Ooh very good ka gid
nga bata you ah lol). The Phils has adopted this. There
1. Anti-wiretapping Act. We all know that it has not been are allowable languages in the teaching of subjects in
amended despite the “hello Garci” scandal. This law the public elem schools. The problem there is that
prohibits the recording and subsequent introduction into there are certain subj which cannot really be taught in
evidence of such recorded conversation when the recording the local language.(Bisaya daw ang square root? Ahm
is made through an actual tap. In the Hello Garci incident, upat ka haliging ugat? Aw kanang ugat daw nga iskwer)
the recorded conversation was not through actual tap but by
some other form of devise where they could actually record  Right to privacy and marriage and in the family. In
conversations made through the use of cellular or mobile 1967, a statute prohibiting the possession of an adult
phones. That is not covered by the anti-wiretapping Act material otherwise considered as obscene was declared
because there is no actual wire tapping. unconstitutional. No law can be passed which would
regulate much more prohibit the right of a person to be
2. Secrecy of Bank deposits (RA 1405 yata). It prevents the let alone in his pursuit of happiness. If he’s happy to
unauthorized release of information on any bank account. watch adult films or read adult publications then so be
However, this must have to be modified accordingly by your it. It is different if it is done in public. Just like in the
Anti Money Laundering Act. Under the AMLA, the AMLC is Phils, is an adult movie prohibited? In the cases
authorized to look into all accounts in the banks and before involving the MTRCB, the SC had repeatedly said that
its amendment, the “Red flag” so to speak, that is allowed the MTRCB is not a censors board. It is simply a rating
for the AMLC to look into accounts if the deposit is 500,000 and classification Board. It cannot prevent the public
or more. So if there is a deposit of 500k made in a single exhibition of TV shows or motion pics which are adult
account, that is supposed to be a subject of scrutiny if there rated. The problem here is that there are no x-rated
is no justifiable basis or reason for that. Of course, if that movie houses here. That is why there can be no public
account is subject to that transaction on a daily basis, there exhibition allowed in the ordinary theaters. If there
is no need to flag it down as subject to any investigation. If were, then it cannot be prevented by the state if it
the account is not usually infused with that amount of complies with the existing regulations.
money, it must have to be considered for investigation. (so
499k ra daw ideposit para dili mahalata hehe kuyawa tlga ds With respect to marriage, in the 1967 decision of
guy). Loving vs Virginia, the right to marry is the choice of an
individual and should not be subjected to unjustified
3. RA 8294 (Intellectual Prop Code) - protects one’s right to be
interference by the state. If you remember just recently,
let alone in his intellectual property.
the US SC has made a ruling with respect to a federal
statute what is known as the Defense of marriage Act.
4. Privileged Communication under the rules of Court- where it
In 1996, the state of Massachusetts passed a law which
cannot be elicited via compulsion by reason of the nature of
prevented or denied benefits of certain rights of same
the privacy of these info.
sex couples. Now apparently, there was one woman

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who married another woman. When the wife died 11. Privacy of Communication
(puro man sila wife), the estate tax was at 363k US
dollars which the internal revenue service wanted to Art III Section 3. (1) The privacy of communication and
___ because they were not legally married kay same correspondence shall be inviolable except upon lawful order of
sex man daw. So that provision, the defense of the court, or when public safety or order requires otherwise, as
marriage Act was tested before the SC and in a vote of prescribed by law.
5-4, the majority said that the Defense of Marriage Act
is unconstitutional. When the law passed in 1996, same Going back to our Constitution, the right to privacy of
sex marriage was not yet recognized in the states. At Communications, we have made mention that section 3 the
present, there are 12 states in the US which recognized Privacy of Communication and Correspondence has been applied
same sex marriage. So is marriage as a social institution in the case of Zulueta vs CA in a limited sense between 2 private
beyond the protection by the state anymore because of individuals to some extent it is applicable therefore when it refers
the right to privacy of individuals to choose whom to to communication and correspondence.
marry regardless of the definition of what marriage
should be? So marriage now is not a union between a The Right to Privacy of Communication and
man and a woman. It includes a union between adam Correspondence was included for the 1 time in the
st

and steve lol. Philippines under the 1935 Constitution because the
applicable rule before as it was in the US was that we follow
 Right to reputation. I don’t know if you have noticed what is known as the “Tangibles Only Rule”. TANGIBLES
that there is a convenience store chain in Davao which ONLY RULE - The subject of a search and what to be seized
has this practice of posting pictures of persons they must have to be tangible objects only if you are to follow the
have caught shoplifting. In 1971 ruling in the US, the SC right against unreasonable searches under section 2. Non-
nullified the local ordinances distributing flyers tangibles like your communication and correspondence like
containing the names and matches of persons described in the context of the anti-wiretapping Act could not be
as criminally active in shoplifting. The SC said that there envisioned to be included under section 2. So, it has to be
must have to be notice as well as opportunity to be included by providing another provision which is your
heard before their pictures and match-ups be posted to section 3 of article III. This is an extension of the search and
safeguard the person’s right to privacy in relation to his seizure rule to cover even intangibles as part of protected
name, reputation, honor and integrity. privacy as the term communications is used in its general
sense. It does not covered by the Tangibles only rule under
 Use of contraceptives. In a hospital in Connecticut, by the section 2 of article III of our Constitution.
reason of a local ordinance or statute, the married
couples were given medical advice on how to prevent If you recall under RA 4200, how could you legally have a
contraception and providing an advice for the wife to tap and record through the tap the conversation made?
use on such procedure because the doctors were not You must have to apply for a warrant. It is not actually a
able to do so otherwise, doctor will be penalized (unsa search warrant per se, but the warrant issued by the court
dawwww??!). That statute was declared as still with the same requirement of probable cause that
unconstitutional because whatever the married couple there’s a need to make a tap and the recording shall be used
would do in the privacy of their homes is beyond state as evidence against any of those persons in the
regulation. Sterilization. In the 1947 decision of Bach vs conversation. The court must have to be convinced that
Bell, the SC affirmed a state law requiring sterilization there is probable cause to allow the tap and eventually use
of unfit people as proper use of police power to prevent the recorded conversation. If there is no warrant issued or if
transmission of insanity, imbecility, and kind. Right to such warrant is defective, the exclusionary rule applies as
Choose. With respect to the right to choose and to be well. Of course that is by statute but under art 3 sec 3 of the
left alone on your choice, probably the most common to constitution, any violation of sec. 3 and of sec 2 with respect
you would be the right to abortion. In the 1970 decision to items seized or with respect to communications recorded,
of Roe vs Wade, which is still good law today—this they are considered to be inadmissible as evidence.
allowable right of women to have abortion provided it
is done within the first 3 months of the pregnancy. First Another thing about privacy in relation to the case of SJS vs
3 months, no questions asked, no state regulation Dangerous Drugs Board, this case mentioned the validity of the
nd
allowable—it is a matter of choice. In the 2 trimester law which requires DRUG TESTING for certain class of individuals.
there may be some state regulation. It is not an
absolute right for a woman to have an abortion at this  The first of which refers to National Elective Officials
rd
stage. In 3 trimester, there would be more allowable requiring a certificate of drug testing as an additional
st
state regulation. It seems that in the 1 3 months, there qualification for office. The issue on the validity of drug
is no child yet to consider. But in the Phils, the RH bill testing has something to do with our right to privacy, that
has taken so long because there has been some debate we are supposed to be free from unwarranted intrusion or
whether there is a child even if it has not yet been exploitation into our private activities. Because most of the
delivered or if it should be delivered…(bla bla di qualifications are listed in the Constitution, there could be
msabtan basta ga debate daw sa RH bill ah). For the no law amending this provision requiring additional
strict catholics, the use of contraceptives is abortion. qualification. So that would be INVALID. There is only a
Well its up to the SC to determine if it is considered as minimal qualification. They would not have to be free from
part of the right.

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criminal case unlike if you take the bar exam, you have to because it is a suit between individuals and not against the state
inform any pending charges. imposing some penal sanctions. The problem will arise if it is a
state action against the individual liberties or right to privacy.
 Employees in the private sector. SC held that it is a VALID
regulation because when a person employs himself in a The final matter with respect to right to privacy is your WRIT OF
Company there should be an expectation of diminished right HABEAS DATA.
to privacy. An example would be the undertaking of an The difference between a writ of amparo, habeas data and
employee to comply with rules and policies which are habeas corpus. The WRIT OF HABEAS DATA is different
reasonable. To comply with drug testing is reasonable because here it does not pertain to life, liberty or security
provided of course that it follows the intent of the law. The but privacy in life liberty and security so it has to do
law is supposed to be RANDOM AND SUSPICIONLESS TEST. something with authorized or unauthorized gathering or
In fact, it does not provide for any sanction or obligation on recording of any data or information regarding a person, his
the part of the employer to report the result but it can be family, his home and correspondence. It intends to ensure
the basis for suspending if not, terminating the employee. that if there is a sanction in gathering and keeping, that it is
kept and not release without authority and if it is inaccurate,
 For any other official in the government whose the petitioner can have it corrected or if not legally gathered
appointment or election is not provided in the and kept, it is to be removed because this violates our right
Constitution. The drug test policy is VALID and reasonable to privacy.
as a qualification for continued employment because the
Supreme Court said that public employees are supposed to
be accountable at all times and they must serve with utmost III. FREEDOM OF EXPRESSION
responsibility and efficiency. Under the normal
understanding, incompetency may be brought about by Art III Section 4. No law shall be passed abridging the freedom of
addiction and so it can be the basis for termination. Further, speech, of expression, or of the press, or the right of the people
the SC held that there is no substantial distinction of peaceably to assemble and petition the government for redress
employees from the private sector and those from the public of grievances.
sector. Again, for those whose qualifications are not
provided by the Constitution. Section 18. (1) No person shall be detained solely by reason of his
political beliefs and aspirations.
 For students, in the primary, secondary or tertiary level for
as long as minors. The imposition of random and A. Philosophic Basis of Guarantee
suspicionless testing is VALID as well under the concept of
parens patriae where the state would exercise parental 1. For the discovery of political truth
authority through the school administration. The school also 2. For self-government
has the right to impose rules for the continued admission. 3. For individual perfection

Freedom of Expression is anchored on the theory that


 Accused in Criminal Cases. They cannot be subjected to drug
democratic society is ruled ultimately by freedom of thought.
testing unless if made under the Comprehensive Dangerous
That we are free to talk about state affairs and discussed them
Drugs Act (RA 9165). But you can only be tested if you are
and compete in what we know as the freedom market of ideas,
charged under the provision of the same. Because if it were
then the best idea will rule. And that would eventually be
for any other offense, it is INVALID because it will no longer
defining what our society should be. If we are not free to talk
be suspicionless.
therefore then the excesses of the government will not be known
and therefore the government will not be able to correct itself
How about ALCOHOL? We have a new law which provides for
and there would be more violations of our fundamental liberties.
violations and penalties for driving under the influence of alcohol
depending on the level of allowable alcohol content in the blood. Freedom of Expression is only limited to any matter involving
However, here we have no apparatus to test drivers with such public interest. There are cases defining the fine line with respect
alcohol content. They just subject the accused to SOBERIARITY to public persons on matters within the so called protective
TEST. Can this be used to prove liability in such instances? Yes speech. The scope of Freedom of Expression does not involve
because you have already been arrested for traffic violations and private matters because this situation of privacy is not sanctioned
there is no violation for right to privacy since there is already a by the Constitution.
reduced expectation of the right to privacy.
FREEDOM OF THE PRESS has 4 aspects.
BLOOD TEST. Generally if it were in relation to DNA for purposes
of a commission of an offense, the problem of our system is we 1. Freedom from prior restraint
do not have a data bank for DNA. In US, it is a standard practice 2. Freedom from subsequent punishment
that if they are charged with offense, DNA is taken. If we were 3. Freedom for access of information
going to take a look at the test of Torres vs Ople, the state has to 4. Freedom from state regulation/ freedom of the press
put a mechanism where there is responsibility imposed in the strictly
information taken then sanction imposed, if there is an
unauthorized release of information. For purposes of paternity
vis a vis child and parent, it has been accepted that DNA results
are admissible. Again, it is not because it is admissible per se but

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B. Prior Restraints/ Subsequent Punishment Some tests of validity of Content-Based Restrictions

1. Prior restraint – Censorship. The state regulates even 1. DANGEROUS TENDENCY. When the legislative body has
before it is published or delivered. Our discussion determined generally that utterances of a certain kind
before on the test on equal protection on due process. involve such danger or substantive evil that they may be
Remember the discussion on the compelling state punished, the question whether any specific utterance
interest test, the intermediate and rational review test coming within the prohibited class is likely, in and of
which in relation to the facial invalidation as applied. itself, to bring about the substantive evil is not open to
the main discussion is that they are mostly applicable in consideration. In such cases the general provision of the
free speech violation more so in censorship. The narrow statute may be constitutionally applied to specific
grant of presumption of Constitutionality is the rule utterance if its natural and probable effect was to bring
when it is censorship or prior restraint. Stated about the substantive evil that the legislative body
differently, if the state regulation is in the form of might prohibit. Gitlow vs New York.
censorship, there is no presumption of The legislative body has the right to determine what
Constitutionality, the presumption is that it is not evil the state prevents from happening. If the
constitutional because it is a violation of the first expression has the tendency to elicit or make the evil
amendment right in our context, Freedom of possible, that mere tendency is sufficient for it to be
Expression or Freedom of the Press. regulated in the form of subsequent punishment. This is
normally used when evil involves national security or
Censorship has never been allowed although
when the very existence of organized government is at
Censorship may come in different forms. There is that
stake. The most common is in your RPC, in inciting to
2009 case involving Bombo Radyo. This is in the
sedition. The mere incitement to commit sedition is
province of Isabela where Bombo Radyo was supposed
penalized.
to have anti political dynasty. The Bombo Radyo was
not issued a business permits for the year 2008 2. CLEAR AND PRESENT DANGER. The question in every
although it was issued in previous years. The basis was case is whether the words are used in such
that they were in a zone not classified for that type of circumstances and are of such nature as to create a
industry. While it is in the form of a licensing the SC clear and present danger that they will bring about the
considered it as Censorship as well. Although in ordinary substantive evil that the state has a right to prevent.
understanding, the requirement of securing a business Shenck vs US. Two operative words. Clear, there is a
permit before a media outfit can engage in the business causal connection between the acts prevented and the
of broadcasting is not Censorship because it is part of evil which the state has the right to present. Danger,
licensing. It is not preventing a person form exercising means the evil that would result is not only probable
his freedom. But because of the manner by which the but inevitable if not regulated. This is tested under the
provincial government imposes it, the SC considered it circumstances that it is made. That under the
as Censorship. circumstances, there is a clear and present danger that
the evil sought to be prevented will happen.
In the old case of American Bible Society, which
required permit and license before it can distribute 3. BALANCING OF INTEREST. The court must undertake
bibles for free. The SC considered it as a form of the delicate and difficult task of weighing the
Censorship because freedom of Religion is part of circumstances and appraising the substantiality of the
Freedom of expression. It could not be censored prior to reasons advanced in support of the regulation of the
publication. It would be different if it would be ordinary free enjoyment of rights. American Communication vs
business person selling religious items. They are Doubs. Normally involves conflict of rights among
engaged in business therefore they should pay individuals where there is Freedom of Expression in one
appropriate business fees and comply prior licensing as hand, and right of privacy on the other. Whose rights
these are not considered as prior restraint. should prevail? In the Hierarchy of Rights, the preferred
is freedom of thought which should include Freedom of
2. Freedom from subsequent punishment. The most
Expression. Nonetheless, right to privacy is also a
common form of state regulation comes in the form of
preferred right because it is preferred as against the
subsequent punishment. So the regulation comes after
state’s unauthorized intrusion into one’s right to
the violation so if the sanction is allowable because it
privacy. So if this should happen the court should have
passes any of the applicable test even if it is content-
to weigh based on the circumstances whose right
based then the regulation is allowable. Punishment is
should prevail. There is no hard and fast rule but the
not considered in violation of the component of
court must have to weigh the issues.
freedom of expression.
The nearest to this discussion would perhaps be one of
C. Content-Based Restriction
the older cases involving depiction of a public event of
Content based restrictions regulations are based on the a life of a public person in relation to a public event. Is
expressions withheld and in your outline there is a listing of the there a need for permission from that person if a part
test normally used to determine whether or not the content of his life is depicted in one’s film, artwork as part of
based restriction is allowable. Freedom of Expression? If it were to be a true to life
depiction of that person in a public event not private
life. The SC said it is allowable because his inclusion into
that depiction of public event is just incidental. It is not

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about them. If it were be a fictional depiction of public defamatory statement constitutes a crime, proof of the truth of
event or depiction of a life of a public or private person the act constituting a crime is a defense in libel.
which involves an aspect of private life, then there must
 If it is made against a private individual, then if you can
be licensing agreement because it is no longer part of
protected speech because it involves private life. prove the truth of that crime, it is a defense. If it is not a
crime and made against a private individual then it is not a
4. DIRECT INCITEMENT. The guarantees of free speech defense.
and free press do not permit a state to forbid or
prescribe the advocacy of the use of force or of law  But if it is made against a public officer in relation to his
violation except where such advocacy is directed to public life or private life which is embedded on his public
inciting or producing imminent lawless action and is life, even if it is not a crime, it will be a defense.
likely to incite or produce such action. Salonga vs Pano “You are a prostitute” if you tell that to a private person.
5. GRAVE-BUT-IMPROBABLE DANGER. Whether the Proof of truth of that, can you escape liability? Is it a crime?
gravity of the evil, discounted by its improbability, Is there a crime of prostitution? Different ang reaksyon sa
justifies such an invasion of speech as is necessary to lalake ug babae. Difference of opinion.
avoid the danger. Dennis vs US. f) Freedom of expression and the administration of justice
Application of tests in various context (Contempt of Court)

a) Freedom of expression and national security FAIR CRITICISM OF COURT DECISIONS

b) Freedom of expression and the right of privacy  If what is criticized is a LOWER COURT JUDGE, the SC applied
US vs Bustos, which is applicable to other public official. So
c) Symbolic Expression – The Flag-Burning case you should not take offense when people criticized actions.
d) Assembly and Petition  But if you criticized the SUPREME COURT, then SC applied
e) Freedom of expression and criticism of official conduct: THE the fair criticism rule. So it must be fair and this aspect of
TEST OF “ACTUAL MALICE” Subjudice Rule which must consider the difference in
treatment of a private person making remarks or offending
The most common form of subsequent punishment which is still actions and a lawyer who will also make criticisms.
valid as of today although there is a move to decriminalize it, is
LIBEL. It is still good law today. Any imputation of a vice or defect FAIR CRITICISM is allowed if made in good faith,
whether directed against the person or one committed to couched in respectful language, directed to the merits
blacken his memory is considered libelous and there is and must not downgrade or ridicule the Court.
presumption that any defamatory remarks is done with malice. Now, if it were to be made by a person who is not a lawyer,
Malice here is presumed because there is no other motive that there may be greater allowance for criticism but if a lawyer,
can be thought of in defamatory statements. because of the code of professional responsibility, that lawyers
are officers of court and should protect the integrity of the court,
 Malice is not presumed in what is known as
they must be the last person to criticise the court.
RELATIVELY PRIVILEGED STATEMENT. So you have this
private communication in legal or moral duty provided So if you take the case of Tulfo and the one in Manila
no unnecessarily publication. standard who is a lawyer. Tulfo said that the SC judges are
“sangaktutak na bobo”. He was cited for contempt. That
 The second one is known information in any proceeding
lawyer columnist did not say the same but he said that the
involving branches of government provided there is no
SC decided this way but the decision was not published yet,
unnecessary comment. ABSOLUTELY PRIVILEGED
he was cited for contempt an officer of the court so the
STATEMENT, even if defamatory, will not be the subject
processes of the SC are supposed to be respected.The
of libel whether criminal or civil.
Subjudice Rule has always been discussed in today’s papers.
Examples Secretary Delima said that she was asked for an order citing
Capunan for contempt by the subjudice rule because “the
 Freedom of the congress under the speech and Atty Capunan” publicly discussed the case in a TV show.
debate clause.
The SUBJUDICE RULE basically suggests that persons especially
 Statement or allegations in pleading in court or lawyers should not discuss the case publicly in order to sway the
any cases in quasi-judicial bodies which are decision of the court. There is intent to put pressure in the court
material and relevant to the case. If the allegations to rule one way and not the other. But the history of this rule
are no longer necessary or relevant it may now be tends to apply in trial by jury where the jury tends to decide the
considered libellous. cases. Jury is supposed to be cloistered. That is the concept of the
Now if the speech is privileged, malice is not presumed but Subjudice Rule. Where the case is under judicial litigation pending
actual malice has to be proven. So this is where discussions on decision, nothing should be said to sway the judgment on that
reckless disregard of truth or falsity of that item by media person case. But we have taken this too literally by not going to discuss
will come into play to prove there is actual malice. anything. Now is there something new that is not part of the
record that the person has discussed on the pending case that
Also in libel, you have the proof of truth as a defense. Generally, would sway the court. Contempt here is a form of indirect
in defamatory statement if published, if made with good contempt.
intentions or good faith, that is always a defense. However, if the

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TWO POLICIES as to the right to freely express opinion or because the entire objective is to protect lives and for
commentary on court decisions: avoidance the any property will be damaged.
 Open Justice Policy - The open justice policy, is the first Also you have your SC Circular No. 19-7-02-SC, this is the so-
principle. The open justice policy follows the general rule on called, 200-METER RADIUS RULE. That there should be no
criticisms of official conduct of public officers. The courts are public assembly to be held within the 200 meter radius from
not free from any criticisms, the public has the right to the court room, or a court house, or hall of justice because
criticize the judiciary, but not to affect public’s confident on the objective of the regulation is to prohibit any public
the judicial system. assembly, or any activities that will disrupt the workings or
processes of our judicial system.
 Judicial Independence - The second, the principle of judicial
independence, is actually the basis for the fair criticisms rule There is a provision there, which the SC stated that it
- that courts must be free from unjust criticisms. Though they guarantees freedom of expression, and the right to
may be criticized under the open justice policy, the criticisms peaceably assemble, but considering the need to deliver or
must have to be fair. administer justice through or judicial system, the public
assembly cannot be held within the 200 meter radius. The
The fair criticism rule involves two aspects: regulation does not differentiate on what kind of activity or
 first one would be institutional or the entire judiciary; and public assembly, for so long as it is conducted within the
200-meter radius. Persons violating this circular will be held
 the second one, would be individual. liable for direct contempt, or shall be penalized accordingly.
2) Regulation of political campaign/election activity
D. Content-Neutral Restrictions You also have your regulation of election activity, which is part of
The second restriction under the freedom from subsequent the provision of the Omnibus Election Code, where requirements
punishment is what is known as content neutral restrictions, for political advertisements before elections were prepared by
where the regulation is largely on the circumstances -- when the the COMELEC, of what was known then as COMELEC space and
expression shall be made, and not from what or how the COMELEC time. In order to give meaning to the Constitutional
expression was made. policy of equal opportunity and access to office, by trying to level
the playing field to those who can and cannot afford. Political ads
It generally follow, based on the 1968 US decision, the case of US can only be posted, pasted or published, and printed in what was
vs O’Brien. known as the COMELEC time and space.
O’BRIEN TEST – A government regulation is sufficiently But because of the Fair Elections Act of 2001, there has been
justified if: liberality in the grant of allowable medium by which these
political advertisements could be printed, posted, pasted,
a) it is within the constitutional power of the government;
published, or broadcasted. And so, while the right to sell your
b) if it furthers an important or substantial governmental selves during an election is not totally unregulated, there is much
interest; leeway now given under the Fair Elections Act of 2001.
c) if the governmental interest is unrelated to the You may have read in the newspapers early this week, or last
suppression of free expression; and week, that there has already been an officer, who is first
time in Philippine election history, been disqualified for over
d) if the incidental restriction on alleged freedom of
expression is no greater than is essential to the spending. Apparently, the COMELEC has imposed the rule,
furtherance of that interest. US vs O’Brien that based on the contracts of the broadcasting company
that have been submitted to the COMELEC to determine the
The restriction must be such that it must not be directed on the number or total amount of the advertisements, the
content, because there is the need for the State to protect an governor of Laguna (Asiong Salonga. Haha!) was declared
interest substantial, in the least restricted measures to further disqualified by COMELEC first division. Of course, you know
government interest. the whole process, before it even reach the SC, the last thing
you’ll know, it is already 2016 elections. (Korek!) But
Examples of content neutral restrictions in Philippine context:
because of the regulation of election-related political
1) Freedom of Assembly (Batas Pambansa 880, Public Assembly advertisements in relation to its allowable spending, the
Act of 1985) COMELEC has imposed those provisions and renders
decision.
There is a particular requirement that if a public assembly is
held outside of what is known as freedom park, there is a The problem with the provisions in the Omnibus Election Code, it
requirement of permit. This is not to violate the exercise of has been enacted before the present Congress has been
public assembly right, the issuance of permit is in order for reestablished under the 1987 Constitution. The 3.00 per
administration to make sure that the use of the public places registered voter in a political district where you wish to be voted
will be fairly allocated. Of course, if it will be in a private on, if you are with a party; 5.00 per registered voter, if you are
place, there is no need for such permit. If it is an established running without a party. The 3.00 in 1979 would be unreasonable
freedom park, there is also no permit required. for purposes of elections today. The problem with plain television
broadcast, the COMELEC computation, at least, on 2013, has
BP 880 also established the standard rules of engagement,
required the submission of the original copy or complete
dispersals of public assembly with or without permits
contracts. The candidates are not the only one that were

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required to submit, the outputs will also be submitted to the As we have mentioned yesterday, the three special
COMELEC. regulations are vested with Facial Invalidation. Can you
invalidate a regulation of free speech, based on the fact that
Regulation of election-related activity can also gone into
on its face it is valid? It is allowed, because it is a free speech
plebiscite, the SC has made a ruling that if it would be a
regulation. The entire speech, it is not only invalid as to the
plebiscite, the normal computation for time and space in an
particular person, to whom this regulation is applied, it
election should not be applicable because in a plebiscite and for a
should be applicable to everybody, because free speech is
referendum, we vote, not for candidates in public office, so there
supposed to be the discussion of matters of public interest.
must have to free or more avenues for commentaries,
Over-breadth, the same, and moreso if As Applied
advertisements for purposes of information dissemination so the
Challenge. When we say “as applied challenge” is limited to
public may know what the issues are it would have to voted on a
this regulations, if applied to any kind of criminal statutes,
plebiscite or a referendum.
which is applied to a particular defendant or accused in a
So, the rules are: particular case, it may be considered as unconstitutional. It
is allowed because it does not prevent the state from
1. the regulation must not be too general in giving the time, prosecuting other offenders based on the same law. The law
and scope allocation; does not become unconstitutional for everybody. It is only
2. it does not restrict one’s expression or belied in a candidate, considered as unconstitutional in a particular case, as
or opinion to its qualification; applied in a particular defendant.

3. it does not cut the flow of media reporting; and 4. Freedom of Association and the right to stike in the public
sector
4. it gives a clear and reasonable connection with the sanction
objective of the regulation. Art III Section 8. The right of the people, including those
employed in the public and private sectors, to form unions,
The objective of the regulation must be to give everybody equal associations, or societies for purposes not contrary to law shall
opportunity of selling themselves to the public. There must be not be abridged.
greater state regulation allowable if it were an election. But if it
were to be on election on issues, like a plebiscite or referendum, Art IX B Section 2 (5) The right to self-organization shall not be
the regulation in election should not be applicable in a plebiscite denied to government employees.
or referendum.
Art XIII Section 3. It shall guarantee the rights of all workers to
And if you notice, what most candidates are doing in the self-organization, collective bargaining and negotiations, and
elections because of these conditions, they will have to have peaceful concerted activities, including the right to strike in
themselves subject of news reporting because no matter accordance with law. They shall be entitled to security of tenure,
what despite the limitation on time and space news humane conditions of work, and a living wage. They shall also
reporting should not be restricted if it is considered as participate in policy and decision-making processes affecting their
legitimate news reporting. rights and benefits as may be provided by law.

In 2010, when Aquino ran for President, because of the debt 5. Movie Censorship
of gratitude of ABS to the Aquino family, when Martial Law
6. Radio Broadcast
was declared, the collateral damage was the closure of ABS-
CBN. When Cory came to power, she practically gave back As applied in different context on content-based restriction, lets
the entire network to the Lopez family. And so, when Cory go to media. There is a difference in print and broadcast media.
died, you may have noticed that all of the regular There is greater restriction in broadcast media than in print
programming was all suspended. media.

3) Anti-Photo and voyeurism In print, for one, there is a need for a person to at least have that
ability to read and because it is not interactive, there is still time
You also have your RA 9995, which is the Anti-Photo and for that person, reading the material, to process what is
Voyeurism Act of 2009. It penalizes certain acts of recording and expressed in print media and there is also time for him to react
publishing or making public photos and videos of sexual acts. and think of what its intent or analyse it. In broadcast where
Even if there is an expectation of privacy, actors to that videos, most of the listeners or viewers are normally listening to it and
the act of uploading or publishing is supposed to be penalized. they don’t have much thought on what is being said, that it
The entire text of the law has the similar allowable disclosure of cannot be taken back because it just passes. As between radio
these photos or videos may be a subject of the certain warrant. and television, there is greater restriction in television because
The applicant can apply for an order to court to refrain from there may be some audience to programs which are age
uploading, downloading or viewing of the said videos or photos. inappropriate.

Has it something to do with content-neutral? The law does not With respect to reach, there is greater restriction on radio, radio
penalize the act not because of the content itself, it is the act of is more accessible in many areas as compared to television. We
taking the photo or thereafter publishing it. The first form of have the MTRCB which is the regulatory board. In several cases
prohibited acts would be limited in applicability because it says involving MTRCB, the SC said that it is not a censors board but a
taking of photo or video. So, there must be a publication at the rating and classifications board. So it rates and classifies. It has no
very least. right to prevent the public exhibitions of any show or motion
pictures provided that it is publicly distributed in appropriate

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medium as well. Because we do not have appropriate medium for The access to information under Section 7 is largely limited to the
x rated films and shows. When you say PG 13 what does it mean? claim of Filipino citizens of any matters involving public interest.
But the freedom of information would, except those involving
In print media, there is also a difference in treatment in allowable
national security, still foreigners cannot ordinarily claim this right.
regulation or extent of protected speech if it is a leading news
title and if it were a features story. Because of the deadline that In relation to freedom of expression, the freedom of information
reporters have to meet there is much leeway in the leading news is a corollary right because the idea is how to be able to discuss
category. If it were a features story, since there is more time for matters of public interest, if they do not have access to this kind
writers to check or recheck they may be held liable or of information to begin with. Of course, the right to have access
accountable. does not mean the right is for free. There may be some
reasonable regulatory measures to be able to have access to
There is a difference between an act of inadvertent or honest
these documents. The need to have access must be based on a
omission from malicious assertion of falsehood. NEW York vs
_____ need. You don’t have the right to have access to ______.
Sullivan where the entire decision on what is allowable remark
against actions of public officers where the SC has said that there F. Academic Freedom
must have to be malice in the publication or reckless disregard of
In relation to that is your Academic Freedom. This is in relation to
ascertaining its truth or falsehood. So if you are media person
freedom of expression because the rights of academic freedom of
writing story and if there is no reason for you to question or
students in the tertiary level, the discussion is based on the cases
doubt the authenticity of the story then if the story becomes
involving imposition of sanctions to students of tertiary level by
false later then you should not be held accountable. This was the
reason of exercise of free speech rights. Some were suspended,
ruling in US vs Bustos. These cases have been off cited with
some were expelled based on school’s rules and policies.
respect to discussions on freedom of expression vsi a vis freedom
of press. Academic freedom has THREE ASPECTS:
Other matters with respect to freedom of expression, 1. for the institution;
commercial speech and government speech.
2. for the members of the faculty;
 Commercial speech is the one which proposes the
commercial transactions. Commercial speech does not enjoy 3. for the students
the state protection because it does not involve the For the institution, it is for them to determine, subject to very
expression on matters involving public interest, but more on limited state regulation:
the proprietary or business transactions. The liability there is
limited when the assertions in the advertisements are false. 1. what subjects to offer;

 Government speech, on the other hand, is generally subject 2. their objectives, mission in offering education;
to regulation. What’s a government speech? You may have 3. the regulation based on the provisions of Commission
seen that on tv, nung panahon ni Gloria uso ito. The on Higher Education
Secretary of DENR saying that these are our report, bumili
kami ng lupa, ganun ganun. Can that be subject of 4. whom to accept to be part of the administration,
regulation? Meaning, if what was said there were false, can including members of the faculty, as well as the
these people be held liable? Technically, government students to be accepted in their programs;
speeches are not subject to regulation as if it were in a 5. the school has the right to impose rules consistent with
commercial speech because government, following the old the Labor Code on the members of the faculty or its
principle that there can be no right against the state. It gives employees, and consistent in the Magna Carta of
the law on which the right depends. Students;
Like today, you have this DAP, also known as incentive, 6. reasonable regulation on admission and continued
bribe. Ano ba talaga? Can they be liable for that? If so, who enrollment
shall hold them accountable? The context of regulations
over government speeches. Members of the faculty, they have the academic freedom with
respect to:
E. Freedom of Information
1. the manner of teaching;
Art III Section 7. The right of the people to information on
matters of public concern shall be recognized. Access to official 2. pursue further studies and be held accountable for any
records, and to documents and papers pertaining to official acts, result of their further studies.
transactions, or decisions, as well as to government research data Students have the right to:
used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law. 1) be admitted if they have complied to the reasonable
requirement of admission
In your outline, there’s the Freedom of Information. That is the
only right in the Constitution which is supposed to be served Remember that old case of DECS vs San Diego. The
_______. In the context of the Bill of Rights, in the old case main question there is whether the state can regulate
of______, the SC made clear that the rights under the Bill of the entry of students in the medical schools in the
Rights are claimable by any person, regardless of the nationality country by requiring them to pass the NMAT? The
even if they are not residents, or merely sojourning here because reason behind the regulation, the SC said that state
they are limitations of government power. regulation is allowed where there is a public interest

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involved. And the link between the exercise of A. NON-ESTABLISHMENT CLAUSE


profession with public interest issue, the greater the
Non-establishment Clause – that there should be no “state
state regulation there can be. Justice Isagani Cruz made
imposed religion” or “no religion”, the idea there is that the state
mention that public health and public lives are a public
follows the Benevolent Neutrality or Accommodation Test. The
interest, thus, there must be more state regulation.
state must be an innocent by-stander as to religion or religious
The students may have the right to be admitted, but they practice of a religious sect. The entire idea is, the religion must
are subject to the reasonable rules of admission. While compete/convince people based on their own teaching or
under the Magna Carta of their right, they can compel convince the people to practice their teachings and that there is
readmission, until the completion of the degree or course no entanglement by the government to establish a religion or
that they are enrolled in, they are subject to the rules of promote a particular religion.
discipline, and they are also subject of school rules. And
The Non-establishment Clause prohibits:
from the cases decided by SC on rules of discipline, we made
mention that the unlimited sense is applied on issues a) Excessive governmental entanglement with religious
involving a school, university, and students’ private entity, institutions and
where the students are given procedural process for
sanctions or violation of school’s policies. b) Government endorsement or disapproval of religion

With respect to academic proficiency, again, examinations, 1) Operation of Sectarian Schools


there is due process already. Art XIV Section 4 (2) Educational institutions, other than those
established by religious groups and mission boards, shall be
owned solely by citizens of the Philippines or corporations or
IV. FREEDOM OF RELIGION associations at least sixty per centum of the capital of which is
pimentel v office of pres
owned by such citizens. The Congress may, however, require
Art III Section 5. No law shall be made respecting an increased Filipino equity participation in all educational
establishment of religion, or prohibiting the free exercise thereof. institutions.
The free exercise and enjoyment of religious profession and
The control and administration of educational institutions shall be
worship, without discrimination or preference, shall forever be
vested in citizens of the Philippines.
allowed. No religious test shall be required for the exercise of civil
or political rights. No educational institution shall be established exclusively for
aliens and no group of aliens shall comprise more than one-third
Any practice like worship, conduct, which ought to include _____ of the enrollment in any school. The provisions of this subsection
is considered a religion regardless of the existence belief of God shall not apply to schools established for foreign diplomatic
or Supreme Being. It also includes the right not to believe in the personnel and their dependents and, unless otherwise provided
existence of a God. by law, for other foreign temporary residents.
The Constitution provides for a separation of the church and
Again, our constitutions provide for non-discriminatory
state. As correctly understood, the principle of separation of
concession. In your outline it states the operation of sectarian
church and state prevents or prohibits the state from intruding
schools. The state allows operation of sectarian schools and this
into the religion, or church affair or matters. It does not work the
is exempted from Filipino capital requirement. The only
other way around. The church is not prohibited from intruding
requirement here of the constitution is that head of the school,
the state or political matters. That has been an acceptable
of which is run by foreign mission which could be a religious
practice that the church has always been vocal of its thought or
institution, must have to be a Filipino.
stand on certain political matters. The principle is that the state is
prohibited from intruding church matters. There are several 2) Religious Instructions in Public Schools
provisions in the constitution which allows what we call as “Non-
discriminatory Provisions” because of the non-establishment Art XIV Section 3 (3) At the option expressed in writing by the
clause. parents or guardians, religion shall be allowed to be taught to
their children or wards in public elementary and high schools
There are TWO ASPECTS OR SCOPE of prohibitions: within the regular class hours by instructors designated or
1. Non-establishment Clause approved by the religious authorities of the religion to which the
children or wards belong, without additional cost to the
2. Free Exercise Clause - The scope of the freedom follows Government.
what we call as Belief Action Test. The two aspects of
freedom which is the belief of religion or existence of a The religious instructions in public schools refers to primary and
religion, for as long as it remains in the thought or in secondary schools, there must have to be observance of certain
the minds, it is not supposed to be subject to any state rules, the rules can be stated in a manner that the parent of the
regulation. But if that belief is turned into action or students which belong to a particular religion must request and
what we call as Belief Action Test, then that action may there must be an allowed teaching during school hours without
be subject to regulation in which that the practice of additional expenses on the part of the government so that no
religion or religious belief converted into overt acts government funds be used in primary and secondary schools for
which maybe violative of the existing laws, any religious teachings. The teacher must come from a religious
regulation will not be considered as violative of the sector to which the majority of the students belong and there
freedom of religion. shall be no compulsion.
3. Tax Exemption

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Art VI Section 28 (3) Charitable institutions, churches and to our discussion if freedom of expression, there must be
parsonages or convents appurtenant thereto, mosques, non- compelling state interest that the state has the right to
profit cemeteries, and all lands, buildings, and improvements, protect. And in the case of this 2 individuals who marry
actually, directly, and exclusively used for religious, charitable, or another person without the annulling their respective
educational purposes shall be exempt from taxation. marriage, there was no compelling state interest outside of
the fact that they are having their union that constitute their
We also have tax exemption - real property tax (RPT) exemptions. actions as constituting as an act of immorality. The Supreme
There is also an income tax exemption for educational Court also held that the rule must not be narrow-tailored to
institutions. achieve the goal interest. Gross immorality based on a claim
4. Public Aid to Religion of invalid union out of a religious practice, the court must
look into whether or not the claim of religious rights is valid.
Art VI Section 29 (2) No public money or property shall be The SC made a discussion that of course not all claim of
appropriated, applied, paid, or employed, directly or indirectly, exemptions from liability on the ground of religious rites
for the use, benefit, or support of any sect, church, should be allowed. The practice must have an established
denomination, sectarian institution, or system of religion, or of practice although the court said that we should not look on
any priest, preacher, minister, other religious teacher, or the morality or legality of it but whether the practice is well
dignitary as such, except when such priest, preacher, minister, or established and that practice in the religious sect or religion
dignitary is assigned to the armed forces, or to any penal is not blindly made under existing laws.
institution, or government orphanage or leprosarium.
It must be emphasized in the case of Estrada vs. Escritur
The prohibition on public expense on religion, the only exemption that they were not charged with any criminal act for bigamy
there is under Article 6 section 29 (2). That is allowed, they are or concubinage or adultery. The charge was for an
paid not because they are religious persons but they are paid of administrative liability based on gross immorality. If it were a
government funds because they are employed by the charge for concubinage or adultery, I think the decision
government but only in those allowed categories. would have to be different because as against administrative
liability for religious rights, religious rights or freedom of
B. FREE EXERCISE CLAUSE religion must be preferred than an administrative liability.
Now, the Free Exercise Clause prohibits the government from But if were a criminal liability, one cannot invoke freedom
inhibiting of religious beliefs which is impositions of penalties for from religious rights against a penal law unless it would
religious beliefs and practices, so this is where the Belief Action really constitute violation of freedom of religion.
Test comes in, that when belief is converted to overt acts, the Based on the discussion of SC on compelling state interest,
actions will be subject to regulation which is an exercise of police the third one which is that the policy is the least restrictive
powers. The state may impose sanctions for any violation. of achieving the interest of the state, result in 3-step process
The requirement for this regulation to be valid regulations and question:
not violative of the exercise clause. The first test is 1. Has the statute / government action created a burden
1. Clear and present danger – this is like the clear and present of the free exercise of religion? We must look into
danger in your freedom of expression, if a religious act poses whether the state act or law has imposed a limitation
a clear and present danger that the evil sought to be avoided on free exercise of a religious right. The court must look
will inevitably happen to a religious practice will not be into the sincerity of the claim, it must not be claimed
prevented by a subsequent punishment then the state has for convenience or avoid liability.
the right to prevent that from happening. Conversely, if 2. Is there sufficient compelling state interest to justify the
there is no clear and present danger and the act is allowed infringement of religious liberty?
and the evil sought to be avoided by the state will inevitablly
happen is not considered as valid regulation. 3. As the state is achieving its ultimate purpose, use the
least intrusive means as possible? The state ought to
2. Compelling Interest of the State Test show that of all the regulations possible or feasible, this
The next case which is established in the case of Estrada vs. is the least intrusive of all.
Escritur, where a couple previously married to separate SC finally resolved that in applying compelling state interest
individuals and without knowing their respective marriages test will result to state accommodation:
had this cohabitation and their religious practice has this age
old practice that you sign a covenant with the other person 1. Mandatory accommodation – under the free exercise
regardless of any legal infirmities and that covenant is to be clause that the act must be accommodated otherwise It
witnessed by their God and such union is considered allowed will result to violation of freedom of religion
and blessed under their practice. They were charge with 2. Permissive accommodation – the state may or may not
gross immorality having been employed with the judiciary allow the act under religious rights or may regulate it.
and Chief Justice Puno wrote the majority decision saying
that they should not be held liable administratively for 3. Prohibited accommodation – the state cannot allow It
immorality because of their religious rites. The imposition of to happen otherwise it will result to violation of non-
penalty based Civil Service law for gross immorality if applied establishment clause. Meaning if one religion is
to them shall be considered as violation of the free exercise allowed, it will mean accommodating that particular
clause and the chief justice used Compelling Interest of the religion. State must be an innocent bystander with the
State Test. Applying Compelling Interest Test, we apply this

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clash of religion or religious sect in their exercise of That was the origin of conscientious objector test and according
freedom of religion. to SC that in some countries, Consent objector allowed to refuse
to perform military service on the grounds of freedom of thought,
Cases:
conscience or religion. Like Mohammad Ali as the famous
 Flag Salute case. The latest of which is to correct the conscience objector. While one may refuse military service, by his
decision 30 years earlier that flag salute was not violative of freedom of conscience or freedom of religion. They are required to
freedom of religion. In that old case, school children render civil service or in a non-combat position. Unlike in our
belonging to a particular religion were compelled to salute constitution, Article 2, in times of war all able bodied citizens may
the flag as discipline of school authorities based on DECS be compelled to render compulsory military or civil service.
Memo order. They question that as violative of freedom of Pwede ka tigluto ka sa army but it is still a government service.
religion because they are compelled to do an act in violation
ABODE – is one’s home or residence. So you choose where to live
of their religious rights which is not to salute or show and you can also change it. The only allowable state regulation or
reverence to the iconics symbols or god. In that case, SC said
prohibition is a lawful order of a court. Like the penalty of
that DECS memo is valid and does not violate freedom of destierro under the RPC. Unless upon a lawful order of a court
religion because it has nothing to do with your religious
that you cannot be forced to change your residence.
rights. A flag is not a symbol of any religious significance and
therefore to compel children to salute the flag will not make Right now it can be done by reason of national security, public
violate their religious beliefs rather it gives them sense of safety or public health but this does not mean that the courts
patriotism that they will show respect and reverence to the cannot impair your freedom to travel only pertaining to the act of
republic. Flag is supposed to be a symbol of the history of congress or act of executive especially that the right to travel
our country. cannot be impaired except by reason of this. An exception to this
is the Hold Departure Order because HDO is based on the rules
In the 1998 decision of Ebralinag case, SC totally reversed
promulgated by the SC. Secretary De Lima now refused to re-
the earlier ruling and said that the DECS order is considered implement this because this is a source of legal issues. The court’s
unconstitutional for violating religious rights. SC said that the
inherent power to make sure that the processes are effective and
reason not to compel school children to salute the flag will our criminal law follows the principle of territoriality. It falls
bring about a generation of unpatriotic school children has
under the exception of the right of the accused to travel although
not come to pass. They cannot establish patriotism simply by it is not constitutionally vested limitation. If an accused under
compelling them to salute the flag. How many of us salute
bond attempts to depart the country, he can be arrested without
the flag here? Do we salute the flag? SC said while they warrant to ensure that he can still be under the jurisdiction of the
cannot be compelled to salute flag on the basis of religious
Philippine laws and courts.
rights, the school children must not disrupt the flag
ceremony or flag retreat ceremony. Intercountry or intra country is what is contemplated in section 6,
it does not include the right to travel back to the country.
 Exemption from Union Shop, we all know that this can be
provided in the CBA to guarantee the right of the union. The As discussed in the old case of Marcos vs Manglapus, when
CLOSED SHOP is a problem on the persons who belong to a Marcos wanted to return to the country, the SC said, it is not
religious sect which do not allow to associate themselves to part of Section 6. The reason why it is part of other law or
others other than their own church member. The question is laws is that it is a generally accepted principle of
asked in the two case whether they can be compelled to join international law and subject to several conventions. We
the union or should their religious claim be upheld and shall have the declarations of human rights and internal
not be compelled to join though the Union Security clause is covenants on civil political rights, and under section 13 of
in the CBA? The SC upheld the freedom of religion, when the universal declaration of Human Rights, it includes the
there is a clash of rights and SC is called to balance, the court right to return to one’s country. Since we adhere to those
shall refer to the hierarchy of rights. Freedom or religion is a declarations being signatory thereto under the Doctrine of
preferred right over the rest and that while Union Security Incorporation in Article 2, the right to return to one’s
clause is a right granted to unions under our labor code, it is country is also part of the law of our land, so the right to
not a constitutionally granted right. travel back is a right though not included in section 6 but
under the doctrine of incorporation article 2.
right to travel - not travel back or reenter country once he left. onlly within
V. LIBERTY OF ABODE AND FREEDOM FOR MOVEMENT country or to oitside national safety, public safety public health
VI. RIGHT OF PERSON UNDER CUSTODIAL INVESTIGATION
Art III Section 6. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired except Art III Section 12. (1) Any person under investigation for the
upon lawful order of the court. Neither shall the right to travel be commission of an offense shall have the right to be informed of
impaired except in the interest of national security, public safety, his right to remain silent and to have competent and
or public health, as may be provided by law. independent counsel preferably of his own choice. If the person
CONSCIENTIOUS OBJECTOR TEST - A test which develop during cannot afford the services of counsel, he must be provided with
the draft in the US to the armed forces. In the World war up to one. These rights cannot be waived except in writing and in the
Vietnam war there was a mandatory drafting. The young persons presence of counsel.
or teenagers were drafted to the armed forces to render service (2) No torture, force, violence, threat, intimidation, or any other
during these wars. Can a person based on religious rights refuse means which vitiate the free will shall be used against him. Secret
the draft in the army because his conscience would not allow it?

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detention places, solitary, incommunicado, or other similar forms immediate family or by his counsel, or by any national non-
of detention are prohibited. governmental organization duly accredited by the Commission on
Human Rights of by any international non-governmental
(3) Any confession or admission obtained in violation of this or
organization duly accredited by the Office of the President. The
Section 17 hereof shall be inadmissible in evidence against him.
person's "immediate family" shall include his or her spouse,
(4) The law shall provide for penal and civil sanctions for fiancé or fiancée, parent or child, brother or sister, grandparent
violations of this section as well as compensation to and or grandchild, uncle or aunt, nephew or niece, and guardian or
rehabilitation of victims of torture or similar practices, and their ward.
families.
As used in this Act, "custodial investigation" shall include the
Republic Act No. 7438, April 27, 1992, AN ACT DEFINING CERTAIN practice of issuing an "invitation" to a person who is investigated
RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL in connection with an offense he is suspected to have committed,
INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, without prejudice to the liability of the "inviting" officer for any
DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING violation of law.
PENALTIES FOR VIOLATIONS THEREOF
Section 3. Assisting Counsel. – Assisting counsel is any lawyer,
Section 1. Statement of Policy. – It is the policy of the Senate to except those directly affected by the case, those charged with
value the dignity of every human being and guarantee full respect conducting preliminary investigation or those charged with the
for human rights. prosecution of crimes.

Section 2. Rights of Persons Arrested, Detained or Under Custodial The assisting counsel other than the government lawyers shall be
Investigation; Duties of Public Officers. – entitled to the following fees;

(a) Any person arrested detained or under custodial investigation (a) The amount of One hundred fifty pesos (P150.00) if the
shall at all times be assisted by counsel. suspected person is chargeable with light felonies;

(b) Any public officer or employee, or anyone acting under his (b) The amount of Two hundred fifty pesos (P250.00) if the
order or his place, who arrests, detains or investigates any person suspected person is chargeable with less grave or grave felonies;
for the commission of an offense shall inform the latter, in a
(c) The amount of Three hundred fifty pesos (P350.00) if the
language known to and understood by him, of his rights to
suspected person is chargeable with a capital offense.
remain silent and to have competent and independent counsel,
preferably of his own choice, who shall at all times be allowed to The fee for the assisting counsel shall be paid by the city or
confer privately with the person arrested, detained or under municipality where the custodial investigation is conducted,
custodial investigation. If such person cannot afford the services provided that if the municipality of city cannot pay such fee, the
of his own counsel, he must be provided with a competent and province comprising such municipality or city shall pay the fee:
independent counsel by the investigating officer. Provided, That the Municipal or City Treasurer must certify that
no funds are available to pay the fees of assisting counsel before
(c) The custodial investigation report shall be reduced to writing
the province pays said fees.
by the investigating officer, provided that before such report is
signed, or thumbmarked if the person arrested or detained does In the absence of any lawyer, no custodial investigation shall be
not know how to read and write, it shall be read and adequately conducted and the suspected person can only be detained by the
explained to him by his counsel or by the assisting counsel investigating officer in accordance with the provisions of Article
provided by the investigating officer in the language or dialect 125 of the Revised Penal Code.
known to such arrested or detained person, otherwise, such
Section 4. Penalty Clause. – (a) Any arresting public officer or
investigation report shall be null and void and of no effect
employee, or any investigating officer, who fails to inform any
whatsoever.
person arrested, detained or under custodial investigation of his
(d) Any extrajudicial confession made by a person arrested, right to remain silent and to have competent and independent
detained or under custodial investigation shall be in writing and counsel preferably of his own choice, shall suffer a fine of Six
signed by such person in the presence of his counsel or in the thousand pesos (P6,000.00) or a penalty of imprisonment of not
latter's absence, upon a valid waiver, and in the presence of any less than eight (8) years but not more than ten (10) years, or
of the parents, elder brothers and sisters, his spouse, the both. The penalty of perpetual absolute disqualification shall also
municipal mayor, the municipal judge, district school supervisor, be imposed upon the investigating officer who has been
or priest or minister of the gospel as chosen by him; otherwise, previously convicted of a similar offense.
such extrajudicial confession shall be inadmissible as evidence in
The same penalties shall be imposed upon a public officer or
any proceeding.
employee, or anyone acting upon orders of such investigating
(e) Any waiver by a person arrested or detained under the officer or in his place, who fails to provide a competent and
provisions of Article 125 of the Revised Penal Code, or under independent counsel to a person arrested, detained or under
custodial investigation, shall be in writing and signed by such custodial investigation for the commission of an offense if the
person in the presence of his counsel; otherwise the waiver shall latter cannot afford the services of his own counsel.
be null and void and of no effect.
(b) Any person who obstructs, prevents or prohibits any lawyer,
(f) Any person arrested or detained or under custodial any member of the immediate family of a person arrested,
investigation shall be allowed visits by or conferences with any detained or under custodial investigation, or any medical doctor
member of his immediate family, or any medical doctor or priest or priest or religious minister chosen by him or by any member of
or religious minister chosen by him or by any member of his his immediate family or by his counsel, from visiting and

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conferring privately with him, or from examining and treating Instances where a person not arrested but is question may not be
him, or from ministering to his spiritual needs, at any hour of the covered by custodial investigation or the some practices of police
day or, in urgent cases, of the night shall suffer the penalty of officers to take a certain person and on the way to police station
imprisonment of not less than four (4) years nor more than six (6) istorya istorya sila. So the time they reached the police station, he
years, and a fine of four thousand pesos (P4,000.00). has already confessed. Dal on siya sa basurahan or isalvage bah.
So to cover all kinds of questioning, we follow the old ruling of
The provisions of the above Section notwithstanding, any security
Escobedo vs. State of Illinois, where investigation is a kind of
officer with custodial responsibility over any detainee or prisoner line of
questioning where it ceases to be a general inquiry into the crime
may undertake such reasonable measures as may be necessary to question
under investigation but is now looking into the possible complicity ing
secure his safety and prevent his escape.
or the participation of person being questioned. If the question is if asks
Section 5. Repealing Clause. – Republic Act No. No. 857, as directed towards eliciting an answer to be able to establish a on w/r he
amended, is hereby repealed. Other laws, presidential decrees, person’s participation in the crime then that becomes an committ
executive orders or rules and regulations, or parts thereof investigation which the Miranda rights has to be afforded. To ed the
ensure the person’s right under the Miranda rights is being crime
inconsistent with the provisions of this Act are repealed or
even if
modified accordingly. afforded to him, there is a need for recitation of Miranda
he is not
warning. RA 7413 expanded it, the context of our constitution yet
Section 6. Effectivity. – This Act shall take effect fifteen (15) days that when a person is arrested, detained but not investigated the arrested,
following its publication in the Official Gazette or in any daily Miranda warnings cannot be given; the right need not be he is
newspapers of general circulation in the Philippines. afforded. RA 7413 expanded to include those arrested, detained consider
and investigated. Even if the person is not investigated but ed under
What’s the difference between inquest, preliminary investigxn
investigation and rights under investigation? Inquest involves arrested or has been detained the Miranda rights has to be given
preliminary investigation (PI), this is not PI under rule 112 and be afforded that is the expansion under RA 7413.
because the entire process is part of PI, person arrested without There must have to be a meaningful transmission of the rights
warrant he has to be charged in 12, 18 or 36 hours under RPC. which therefore requires the consideration of certain factors
The determination of the probable cause is called the inquest. If affecting such meaningful transmission. So the language spoken
you read the rules on inquest, the person arrested may even is understood, perhaps the capacity of the person to understand.
asked for a regular PI, provided he must a request within 5 days Age may be considered and all other facts to ascertain that the
from knowing of such case to be filed, and he must not waive his person has understood what his Miranda Rights are.
rights under rule 125. PI has also its rules (just check).
Of course the Miranda Rights would only refer to his continuing
So where’s the custodial investigation comes in? It comes when right to remain silent, his right to be assisted by counsel pending
there is an inquest or when he is arrested with warrant. Rights of any investigation, and if he cannot afford the assistance of
investigation presuppose that he is under investigation, this is counsel, the counsel may be afforded for him, and preferably of
under the old case of Miranda vs. the State of Arizona. his own choice.
Miranda vs. the State of Arizona. Miranda was arrested Now, despite the fact that the person arrested, detained or
because a woman was abducted and raped and a witness investigated may be knowledgeable in law, the requirement
saw a car with plate number and a woman was found dead. to apprise him of his Miranda Rights, through the Miranda
The eye witness saw the plate number and it was traced warnings is not dispensed with simply because he already
belonging to Ernest Miranda. He was arrested and detained. understands what those rights are. In that situation, what is
He was interrogated and after that there was a written important is for the person knowledgeable in law to know
statement and confession and Mr. Miranda was convicted. that those investigating him are willing to grant or afford
On appeal, they claimed that there was a violation for the him his Miranda rights.
right to counsel that was the main cause before SC. The only
evidence of his conviction was an extra judicial statement Now, when a person is informed of his right to remain silent, he
which he apparently signed. The SC reversed the conviction, must have to be informed also that anything he says can and will
directed trial court to conduct new hearing without using be used against him in a court of law to enable him to understand
the extra judicial confession. Luckily, Mr. Miranda was the consequences of a waiver of that right.
convicted again. The SC established the Miranda rule. When Right to Counsel
a person is brought into a police and investigated in the
police room, you cannot expect that they are in a similar Now with respect to the lawyer, before RA 7438, there were
position. The attending pressure on the part of the person a lot of cases involving the question or issue of who are
investigated because he is alone and there is a possibility allowed to be assisting as counsel during the taking of
that there is torture, that his confession will be coerced. The statements during the investigation. RA7438 now defined
only possible protection so that his confession is not taken by who an assisting counsel is. Simply put, an Assisting Counsel
force is to give him the right to counsel. That is the ruling is one who is not interested in the prosecution of offenses.
which places a requirement of allowing a person under So, in any capacity, if a person by his designation is
investigation to be assisted by counsel. interested in the implementation of the law, and is therefore
prosecuting offenders or law violators, that person cannot
It was introduced in the Philippines in 1970 and was expanded or be an assisting counsel.
modified to give more protection. We follow the same ruling that
if a person is investigated. Before, it was custodial interrogation. The phrase “preferably of his own choice” should be
Custodial interrogation means he is already arrested. understood literally. Meaning if there is such possible or
reasonable choice of the counsel, that must have to be
extended to him. Of course if the choice of counsel is not

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)
either appoint to him
a counsel or
reasonable—he prefers to be represented by Estrelito that person as the confession or admission was voluntarily
no investigation Mendoza, one of the most expensive lawyers in the country offered.
willbe made and he does not even know him, or Mendoza does not know
3) Miranda Rule is not applicable to statements made in
him, the choice is no longer reasonable. That should not be
Administrative Investigations.
left to the discretion of the person being investigated.
This is where most of the discussion in Sec. 17 and Sec. 12
Waiver of Miranda Rights
are made. Sec. 17 of Article 3 is the provision against self-
Now, what generally happens if there is no valid waiver of incrimination. They may be of the same or similar
the rights under the Miranda rights, this is not to say that characterization, but section 17 is exclusively applicable to
the prosecution of the accused could no longer proceed? persons investigated in relation to a criminal case or criminal
What it simply does is if there is no valid waiver is that the charge, it must therefore be a criminal case.
person could not be investigated. And even if there is a valid
waiver, for so long as the accused or the person investigated Art III Section 17. No person shall be compelled to be a
would reclaim his rights under the Miranda Rights, the witness against himself.
investigation should not continue. Even if there is a prior Section 12 (3) Any confession or admission obtained in
waiver, valid under the Constitution, the waiver does not violation of this or Section 17 hereof shall be inadmissible in
mean that he could not be taken back and that the evidence against him.
investigation will continue. Also, it does not mean that if
there is a waiver of any of these rights that automatically, Privilege against self-incrimination refers to the refusal or
there would be a confession or admission which is done avoidance of a person to incriminate himself by admitting to
extra-judicially. something which is incriminating. A person may refuse to
answer an incriminating question. An incriminating question
What the waiver does is simply to allow the person need not be asked or is not solely asked in a criminal case.
investigation to proceed and conduct such investigation. If You can ask it in any kind of proceeding. But Sec. 12,
the investigation results into an admission or confession, because of this right to counsel, the Miranda warnings does
then it would be good for the prosecution. But if it does not, not apply to administrative investigations no matter what
it does not make the investigation illegal because there was the imposable penalty is.
no confession or admission.
So for example it is an administrative investigation in
Now the constitution now requires that for there to be a valid relation to a violation of a company policy on theft, and
pp v galit waiver, there must have to be the assistance of counsel, and that
meaningful during the conduct of the investigation which mandated
there must have to be waiver in writing. And the waiver must also under the Labor Code, can the employee request that he be
transmission
be made under the general context of a valid waiver. That it must assisted with counsel? Or that if he is not assisted by counsel,
have to be made intelligently, voluntarily, knowing the full because his Miranda rights were not given, should his
consequences of the waiver. The requirement that the waiver admission there be excluded in evidence? With respect to the
must be valid, must be intelligent, voluntary and knowing the full right of counsel, it has nothing to do with the Miranda rights
consequences of the waiver presupposes that there was a prior, in that situation. But the employees can request that they be
meaningful transmission of his rights. Now while the right to be represented by a counsel or by any representative for that
assisted with counsel during the investigation may be waived, the matter. And it is his right, not because of the Miranda right,
requirement that the waiver must have to be made with the but because the Labor Code has granted it to put a balance
assistance of counsel can never be waived. All waivers must have between the power of the employer to impose sanctions,
to be with the assistance of counsel. And if there is a valid waiver, and the position of the employee as against the employer.
then the investigation can now be conducted without the So that if the testimony of the employee in an administrative
assistance of counsel. proceeding in the company level resulted in his admission
1) Miranda Rule not applicable to confessions executed before despite the fact that he was not apprised of his Miranda
January 17, 1973 rights, those admissions will still be considered as
admissible. So that is the distinction with respect to privilege
Okay, in your outline it’s not applicable to confessions prior against self-incrimination.
to January 7, 1973, again simply because the Miranda rights
were first incorporated in the 1973 constitution based on Thus, if an incriminating question is asked in that
the 1966 ruling in the case of Miranda vs Arizona. administrative hearing, the employee can refuse to answer.
The problem with section 17 and section 12 is that section
17 is claimable, meaning confession is inadmissible even if
2) Miranda Rule is not applicable to res gestae statements or there is no objection when the answers were given unlike in
spontaneous statements. section 17, once the incriminating question is answered
there is automatically a waiver of the right thereby making a
The entire reason for the Miranda ruling is that the person is confession or admission admissible.
forced or compelled to admit or to confess to the crime
under investigation. So you take that element away, the 4) Miranda rule is applicable to custodial phase of investigation
admission is voluntarily made or voluntarily offered, even - police lineups.
without questioning, the Miranda rights and the Miranda For the simple reason that there is no investigation
warnings are not claimable for the simple expediency that conducted, We said that investigation for purposes of the
there was no opportunity for the police to ask or investigate Miranda warnings before RA7438, requires the questioning
to illicit confessions or admissions on the crime under

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

investigation, the question ceases to be questions of general that a person who is sorry for what he has done would easily
inquiry. When a person is made to stand in a police lineup, admit to his culpability. So if there is a claim that the confession
there are no questions asked. was involuntarily made, then it is for the accused-confessant to
prove that the confession was taken from him involuntarily.
Now if you factor in RA7438, when the person is taken for
police lineups for identification, should he be informed of his But because the constitution has required certain preconditions
Miranda rights? The answer is yes because the person who is before the confession is to be taken, then the burden of proving
invited to the station to shed light on the investigation, the voluntariness of the waiver falls upon the state. The
under RA7438 it is covered. The law says “it shall include the prosecution must prove to the court that the waiver was validly
practice of issuing an invitation to a person who is made. There is no presumption as the regularity of the
investigated in connection to an offense which he is performance of duty with respect to this waiver of a
suspected to have committed”. So if a person is invited to constitutional right.
stand in a police lineup because he is a suspect, RA7438 is
What may be waived: The right to remain silent and the right to
applicable. He should be given his Miranda rights.
counsel, but not the right to be given “Miranda Warnings”
Now you ask the question, if he is identified in that police
Exclusionary Rule
lineup but was not previously apprised of his Miranda
rights, is the identification considered admissible? Of Art III Sec 12 (3) Any confession or admission obtained in
course it is admissible. There is nothing to be excluded there violation of this or Section 17 hereof shall be inadmissible in
simply because his Miranda rights were not given. What evidence against him.
RA7438 provides as part of the exclusionary rule in the
constitution, considering the intent of sec. 12 is with respect
only to the extra-judicial confession.
VII. RIGHT TO BAIL
Tests of validity of Waiver of Miranda Rights “To be informed”
a) Pre-Galit Rule (January 17, 1973 to March 20, 1985) Art III Section 13. All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is
b) The Galit Rule (March 20, 1985 to February 2, 1987) strong, shall, before conviction, be bailable by sufficient sureties,
Does the Galit rule have retroactive application? 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
In the outline, there has been a reference to the case of writ of habeas corpus is suspended. Excessive bail shall not be
People vs Galit. This was because the Supreme Court required.
interpreted the previous constitution that there is the
requirement of that right to counsel. While there was RULE 114 - BAIL
no express provision in the 73 constitution, starting Section 1. Bail defined. – Bail is the security given for the release
March 20, 1985 the Supreme Court said that all waivers of a person in custody of the law, furnished by him or a
must have to be with the assistance of counsel. That bondsman, to guarantee his appearance before any court as
was the prevailing law before the 1987 constitution. required under the conditions hereinafter specified. Bail may be
c) New rule on Waiver (February 2, 1987) given in the form of corporate surety, property bond, cash
deposit, or recognizance.
Art III Section 12. (1) xxx These rights cannot be waived
Sec. 2. Conditions of the bail; requirements. – All kinds of bail are
except in writing and in the presence of counsel.
subject to the following conditions:
RA7438 clarifies that there are documents that must be (a) The undertaking shall be effective upon approval, and unless
executed, signed, meaning interpreted, signed, and that he cancelled, shall remain in force at all stages of the case until
has understood them. This is the custodial investigation promulgation of the judgment of the Regional Trial Court,
report and the extra judicial confession. They are to be irrespective of whether the case was originally filed in or
signed after there is full understanding, if there is a need to appealed to it;
interpret these documents; they must have to be
interpreted before the confessant will sign it. If it is validly (b) The accused shall appear before the proper court whenever
signed, there must have to be the signature of the assisting required by the court of these Rules;
counsel if any. Or if there is a valid waiver of the right to
(c) The failure of the accused to appear at the trial without
counsel, then any of those persons listed must have to sign justification and despite due notice shall be deemed a waiver of
them as well. They are the parents, elder brothers and
his right to be present thereat. In such case, the trial may proceed
sisters, his spouse, the municipal mayor, the municipal in absentia; and
judge, district school supervisor or priest or minister of the
gospel as chosen by him. These persons will sign if there is a (d) The bondsman shall surrender the accused to the court for
valid waiver of the right to counsel. execution of the final judgment.
The burden of proving voluntariness of waivers is on the The original papers shall state the full name and address of the
prosecution accused, the amount of the undertaking and the conditions
required by this section. Photographs (passport size) taken within
Now the final item with respect to the extra judicial confession or
the last six (6) months showing the face, left and right profiles of
admission on Sec 12 will be proving voluntariness of the waiver
the accused must be attached to the bail.
and the voluntariness of the confession. The confession is
presumed to be voluntary because there is always that principle

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

Sec. 3. No release or transfer except on court order or bail. – No Sec. 13. Justification of sureties. – Every surety shall justify by
person under detention by legal process shall be released or affidavit taken before the judge that he possesses the
transferred except upon order of the court or when he is qualification prescribed in the preceding section. He shall
admitted to bail. describe the property given as security, stating the nature of his
title, its encumbrances, the number and amount of other bails
Sec. 6. Capital offense defined. – A capital offense is an offense entered into by him and still undischarged, and his other
which, under the law existing at the time of its commission and of liabilities. The court may examine the sureties upon oath
the application for admission to bail, may be punished with concerning their sufficiency in such manner as it may deem
death. proper. No bail shall be approved unless the surety is qualified.
Sec. 7. Capital offense or an offense punishable by reclusion Sec. 14. Deposit of cash as bail. – The accused or any person
perpetua or life imprisonment, not bailable. – No person charged acting in his behalf may deposit in cash with the nearest collector
with a capital offense, or an offense punishable by reclusion of internal revenue or provincial, city, or municipal treasurer the
perpetua or life imprisonment, shall be admitted to bail when amount of bail fixed by the court, or recommended by the
evidence of guilt is strong, regardless of the state of the criminal prosecutor who investigated or filed the case. Upon submission
prosecution. of a proper certificate of deposit and a written undertaking
Sec. 8. Burden of proof in bail application. – At the hearing of an showing compliance with the requirements of section 2 of this
application for bail filed by a person who is in custody for the Rule, the accused shall be discharged from custody. The money
commission of an offense punishable by death, reclusion deposited shall be considered as bail and applied to the payment
perpetua, or life imprisonment, the prosecution has the burden of fine and costs while the excess, if any, shall be returned to the
of showing that evidence of guilt is strong. The evidence accused or to whoever made the deposit.
presented during the bail hearing shall be considered Sec. 15. Recognizance. – Whenever allowed by law or these
automatically reproduced at the trial but, upon motion of either Rules, the court may release a person in custody on his own
party, the court may recall any witness for additional examination recognizance or that of a responsible person.
unless the latter is dead, outside the Philippines, or otherwise
unable to testify. Sec. 16. Bail, when not required; reduced bail or recognizance. –
No bail shall be required when the law or these Rules so provide.
Sec. 10. Corporate surety. – Any domestic or foreign
corporation, licensed as a surety in accordance with law and When a person has been in custody for a period equal to or
currently authorized to act as such, may provide bail by a bond more than the possible maximum imprisonment prescribed for
subscribed jointly by the accused and an officer of the the offense charged, he shall be released immediately, without
corporation duly authorized by its board of directors. prejudice to the continuation of the trial or the proceedings on
appeal. If the maximum penalty to which the accused may be
Sec. 11. Property bond, how posted. – A property bond is an sentenced is destierro, he shall be released after thirty (30) days
undertaking constituted as lien on the real property given as of preventive imprisonment.
security for the amount of the bail. Within ten (10) days after the
approval of the bond, the accused shall cause the annotation of A person in custody for a period equal to or more than the
the lien on the certificate of title on file with the Registry of minimum of the principal penalty prescribed for the offense
Deeds if the land is registered, or if unregistered, in the charged, without application of the Indeterminate Sentence Law
Registration Book on the space provided therefore, in the or any modifying circumstance, shall be released on a reduced
Registry of Deeds for the province or city where the land lies, and bail or on his own recognizance, at the discretion of the court.
on the corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned. Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may be
filed with the court where the case is pending, or in the absence
Within the same period, the accused shall submit to the court or unavailability of the judge thereof, with any regional trial
his compliance and his failure to do so shall be sufficient cause for judge, metropolitan trial judge, municipal trial judge, or municipal
the cancellation of the property bond and his re-arrest and circuit trial judge in the province, city or municipality. If the
detention. accused is arrested in a province, city, or municipality other than
where the case is pending, bail may also be filed with any
Sec. 12. Qualifications of sureties in property bond. – The regional trial court of said place, of if no judge thereof is
qualifications of sureties in a property bond shall be as follows: available, with any metropolitan trial judge, municipal trial judge,
(a) Each must be a resident owner of real estate within the or municipal circuit trial judge therein.
Philippines; (b) Where the grant of bail is a matter of discretion, or the
(b) Where there is only one surety, his real estate must be worth accused seeks to be released on recognizance, the application
at least the amount of undertaking; may only be filed in the court where the case is pending, whether
on preliminary investigation, trial, or appeal.
(c) If there are two or more sureties, each may justify in an
amount less than that expressed in the undertaking but the Any person in custody who is not yet charged in court may
aggregate of the justified sums must be equivalent to the whole apply for bail with any court in the province, city, or municipality
amount of the bail demanded. where he is held.

In all cases, every surety must be worth the amount specified in Sec. 18. Notice of application to prosecutor. – In the application
his own undertaking over and above all just debts, obligations for bail under section 8 of this Rule, the court must give
and properties exempt from execution. reasonable notice of the hearing to the prosecutor or require him
to submit his recommendation.

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

Sec. 19. Release on bail. – The accused must be discharged or the accused is incapable of filing one, the court may allow his
upon approval of the bail by the judge with whom it was filed in release on recognizance to the custody of a responsible member
accordance with section 17 of this Rule. of the community. In no case shall bail be allowed after the
accused has commenced to serve sentence.
When bail is filed with a court other than where the case is
pending, the judge who accepted the bail shall forward it, Sec. 25. Court supervision of detainees. – The court shall
together with the order of release and other supporting papers, exercise supervision over all persons in custody for the purpose
to the court where the case is pending, which may, for good of eliminating unnecessary detention. The executive judges of the
reason, require a different one to be filed. Regional Trial Courts shall conduct monthly personal inspections
of provincial, city, and municipal jails and the prisoners within
Sec. 20. Increase or reduction of bail. – After the accused is their respective jurisdictions. They shall ascertain the number of
admitted to bail, the court may, upon good cause, either increase detainees, inquire on their proper accommodation and health
or reduce its amount. When increased, the accused may be and examine the condition of the jail facilities. They shall order
committed to custody if he does not give bail in the increased the segregation of sexes and of minors from adults, ensure the
amount within a reasonable period. An accused held to answer a observance of the right of detainees to confer privately with
criminal charge, who is released without bail upon filing of the counsel, and strive to eliminate conditions inimical to the
complaint or information, may, at any subsequent stage of the detainees.
proceedings and whenever a strong showing of guilt appears to
the court, be required to give bail in the amount fixed, or in lieu In cities and municipalities to be specified by the Supreme
thereof, committed to custody. Court, the municipal trial judges or municipal circuit trial judges
shall conduct monthly personal inspections of the municipal jails
Sec. 21. Forfeiture of bail. – When the presence of the accused in their respective municipalities and submit a report to the
is required by the court or these Rules, his bondsmen shall be executive judge of the Regional Trial Court having jurisdiction
notified to produce him before the court on a given date and therein.
time. If the accused fails to appear in person as required, his bail
shall be declared forfeited and the bondsmen given thirty (30) A monthly report of such visitation shall be submitted by the
days within which to produce their principal and to show why no executive judges to the Court Administrator which shall state the
judgment should be rendered against them for the amount of total number of detainees, the names of those held for more
their bail. Within the said period, the bondsmen must: than thirty (30) days, the duration of detention, the crime
charged, the status of the case, the cause for detention, and
(a) produce the body of their principal or give the reason for his other pertinent information.
non-production; and
Sec. 26. Bail not a bar to objections on illegal arrest, lack of or
(b) explain why the accused did not appear before the court irregular preliminary investigation. – An application for or
when first required to do so. admission to bail shall not bar the accused from challenging the
Failing in these two requisites, a judgment shall be rendered validity of his arrest or the legality of the warrant issued
against the bondsmen, jointly and severally, for the amount of therefore, or from assailing the regularity or questioning the
the bail. The court shall not reduce or otherwise mitigate the absence of a preliminary investigation of the charge against him,
liability of the bondsmen, unless the accused has been provided that he raises them before entering his plea. The court
surrendered or is acquitted. shall resolve the matter as early as practicable but not later than
the start of the trial of the case.
Sec. 22. Cancellation of bail. – Upon application of the
bondsmen, with due notice to the prosecutor, the bail may be When right may be invoked
cancelled upon surrender of the accused or proof of his death.
If you look at the provision, a person is protected before he is
The bail shall be deemed automatically cancelled upon acquittal charged before the court, he has his rights against unreasonable
of the accused, dismissal of the case, or execution of the searches and seizure, warrantless arrests and now when arrested,
judgment of conviction. he has his rights while being investigated, this has been expanded
by RA 7438. Now he is charged before the court. The first of the
In all instances, the cancellation shall be without prejudice to rights which the accused can claim, after he is charged in court
any liability on the bail. after his arrest and/or investigation is his right to bail.
Sec. 23. Arrest of accused out on bail. – For the purpose of When is bail a matter of right and when is it a matter of
surrendering the accused, the bondsmen may arrest him or, upon discretion
written authority endorsed on a certified copy of the
undertaking, cause him to be arrested by a police officer or any Sec. 4. Bail, a matter of right; exception. – All persons in custody
other person of suitable age and discretion. shall be admitted to bail as a matter of right, with sufficient
sureties, or released on recognizance as prescribed by law or this
An accused released on bail may be re-arrested without the
Rule (a) before or after conviction by the Metropolitan Trial
necessity of a warrant if he attempts to depart from the
Court, Municipal Trial Court, Municipal Trial Court in Cities, or
Philippines without permission of the court where the case is
Municipal Circuit Trial Court, and (b) before conviction by the
pending.
Regional Trial court of an offense not punishable by death,
reclusion perpetua, or life imprisonment.
Sec. 24. No bail after final judgment; exception. – No bail shall
be allowed after a judgment of conviction has become final. If Sec. 5. Bail, when discretionary. – Upon conviction by the
before such finality, the accused applies for probation, he may be Regional Trial Court of an offense not punishable by death,
allowed temporary liberty under his bail. When no bail was filed reclusion perpetua, or life imprisonment, admission to bail is

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

discretionary. The application for bail may be filed and acted 4. he committed the crime under parole, probation,
upon by the trial court despite the filing of a notice of appeal, or conditional pardon;
provided it has not transmitted the original record to the
5. there is an increased flight risk;
appellate court. However, if the decision of the trial court
conviction the accused changed the nature of the offense from 6. there is an undue risk of committing a crime if
non-bailable to bailable, the application for bail can only be filed granted bail.
with and resolved by the appellate court.
When bail is a matter of right, the question is should there be a
Should the court grant the application, the accused may be HEARING CONDUCTED?
allowed to continue on provisional liberty during the pendency of
the appeal under the same bail subject to the consent of the  When bail is a matter of right and bail is posted in cash -
bondsman. there is no more need for a hearing

If the penalty imposed by the trial court is imprisonment  But if bail is a matter of right but the accused is asking for a
exceeding six (6) years, the accused shall be denied bail, or his reduction of bail, or the accused posts a property bond, or
bail shall be cancelled upon a showing by the prosecution, with posts a surety bond, there is a need for a hearing.
notice to the accuse, of the following or other similar In surety bond, hearing may be dispensed with but
circumstances: sometimes there is a need for a hearing because the
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, surety companies must have prior clearance from the
or has committed the crime aggravated by the circumstance of SC. It’s not in the Rules of Court but surety companies
reiteration; must have been issued clearances from the SC that they
are still allowed to post bonds for accused in criminal
(b) That he has previously escaped from legal confinement, cases.
evaded sentence, or violated the conditions of his bail without
valid justification; For property bond - for the court to determine whether
the property is sufficient to be posted as a bond. It’s
(c) That he committed the offense while under probation, parole, market value must have to be equal to or more than
or conditional pardon; the amount of bond required by the court over and
(d) That the circumstances of his case indicate the probability of above any liabilities on the property. Say the bail bond
flight if released on bail; or required is 200,000, the property is worth a million, but
it is also encumbered to the bank for another million so
(e) That there is undue risk that he may commit another crime it is no longer proper for that property to be put as a
during the pendency of the appeal. bond.
where
to file? The appellate court may, motu proprio or on motion of any  If bail is a matter of discretion, then hearing is mandatory. It
party, review the resolution of the Regional Trial Court after cannot be dispensed with.
right to notice to the adverse party in either case.
travel There was a 2012 case involving an RTC judge in
Now constitutionally, the threshold when bail is a matter of right General Santos who granted bail bond when bail is a
and when it is a matter of discretion is the penalty of reclusion matter of discretion without conducting a hearing. He
perpetua or higher. was charged and found liable administratively for gross
ignorance of the law.
 If the penalty for which the accused is charged is reclusion
perpetua or higher, bail is a matter of discretion. The reason why there is a need for a hearing is:
 Below that, bail is a matter of right.  If the reason for the bail to be discretionary is that the
imposable penalty is Reclusion Perpetua or higher - to
But in the provisions of the Rules of Court there have been some afford the judge the discretion to rule that either the
changes. The Rules now provide that:
evidence of guilt is strong.
 In all cases pending before the MTC before and after  If the reason for the bail to be discretionary is if it were to be
conviction. bail is a matter of right any of those 6 disabilities - to determine whether or not the
 In the RTC and BEFORE conviction if the penalty is NOT accused suffers any of those disabilities.
reclusion perpetua or higher. bail is a matter of right The prosecution must be given sufficient opportunity to present
 In the RTC and BEFORE conviction if the penalty is reclusion such evidence to prove that the evidence of guilt is strong or that
perpetua or higher, bail is a matter of discretion. the accused suffers from any of those disabilities. Any evidence
presented during the bail hearing are deemed to be part of the
 In the RTC AFTER conviction if the penalty is more than 6 hearing on the main case.
years and not more than 20 years and the accused-convict
suffers any of those disabilities listed bail is a matter of Bail in Military Courts
discretion: There is no such thing as bail in military courts. This must have to
1. he is a recidivist; be understood in the light of the fact that these are military
persons charged with the military courts or what we know as
2. habitual delinquent or it is committed under the court martial for violation of military laws. These are not military
circumstance of reiteracion; persons charged for common offenses charged with the regular
3. the accused has previously escaped, or ordinary courts. The reason why there is no need in court

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

martial proceeding is because they are charged normally with be heard by himself and counsel, to be informed of the nature
acts of disloyalty against the state. If for example, 1 brigade and cause of the accusation against him, to have a speedy,
committed mutiny against the republic and all of them are impartial, and public trial, to meet the witnesses face to face, and
charged, incarcerated or detained, if they will be granted bail, to have compulsory process to secure the attendance of
one will be sure that they will commit the same mutiny. And witnesses and the production of evidence in his behalf. However,
there is supposed to be a period of trial in a court martial after arraignment, trial may proceed notwithstanding the
proceeding which is more speedy that our speedy trial case. absence of the accused provided that he has been duly notified
and his failure to appear is unjustifiable.
Standards for fixing bail
RULE 115 - RIGHTS OF ACCUSED
Sec. 9. Amount of bail; guidelines. – The judge who issued the
warrant or granted the application shall fix a reasonable amount Section 1. Rights of accused at trial. – In all criminal
of bail considering primarily, but not limited to, the following prosecutions, the accused shall be entitled to the following rights:
factors: (a) To be presumed innocent until the contrary is proved beyond
(a) Financial liability of the accused to give bail; reasonable doubt.

(b) Nature and circumstance of the offense; (b) To be informed of the nature and cause of the accusation
against him.
(c) Penalty for the offense charged;
(c) To be present and defend in person and by counsel at every
(d) Character and reputation of the accused; stage of the proceedings, from arraignment to promulgation of
(e) Age and health of the accused; the judgment. The accused may, however, waive his presence at
the trial pursuant to the stipulations set forth in his bail, unless
(f) Weight of the evidence against the accused; his presence is specifically ordered by the court for purposes of
(g) Probability of the accused appearing at the trial; identification. The absence of the accused without justifiable
cause at the trial of which he had notice shall be considered a
(h) Forfeiture of other bail; waiver of his right to be present thereat. When an accused under
custody escapes, he shall be deemed to have waived his right to
(i) The fact that the accused was a fugitive from justice when
be present on all subsequent trial dates until custody over him is
arrested; and
regained. Upon motion, the accused may be allowed to defend
(j) Pendency of other cases where the accused is on bail. himself in person when it sufficiently appears to the court that he
can properly protect his rights without the assistance of counsel.
Excessive bail shall not be required.
(d) To testify as a witness in his own behalf but subject to cross-
These are just standards. The courts will not be compelled to examination on matters covered by direct examination. His
grant bail using only those standards. They may be used as guides silence shall not in any manner prejudice him.
and they may also be used as factors. But they are not the entire
list of factors that the court can use. (e) To be exempt from being compelled to be a witness against
himself.
Now, the recommendations of bail would come first from the
prosecution. If you have seen an information filed in court, in the (f) To confront and cross-examine the witnesses against him at
bottom of that paper there is “bail recommendation”. If bail is a the trial. Either party may utilize as part of its evidence the
matter of discretion, you find the words “no bail recommended”. testimony of a witness who is deceased, out of or can not with
But if bail is a matter of right, there is that amount due diligence be found in the Philippines, unavailable, or
recommended. Now the DOJ has placed it at P1,000 per year of otherwise unable to testify, given in another case or proceeding,
service for non-heinous offenses and P10,000 per year of service judicial or administrative, involving the same parties and subject
for heinous offenses. matter, the adverse party having the opportunity to cross-
examine him.
That is why it is always an example by analogy that if you slap a
minor, it should have been slight physical injuries or slander by (g) To have compulsory process issued to secure the attendance
deed. What is the penalty for slight physical injuries and slander of witnesses and production of other evidence in his behalf.
by deed? Answer: 30days imprisonment or fine or both. So the
(h) To have speedy, impartial and public trial.
recommended bail if it were at 1000 per year is a thousand at
most. But if the case falls under RA7610, or the child abuse act (i) To appeal in all cases allowed and in the manner prescribed by
then that will be prision mayor. Prision mayor is 6years and 1day law.
to 12years multiplied by 10,000. That is 120,000. So the next time
you are about to slap a child or person, ask his age. So now, after bail, you are now to be brought to trial. Section 14
of Article 3 provides the right of persons during trial. The rules of
court under Rule 115 provides for the same listing of rights
during trial. 2 differences are notable:
VIII. RIGHTS DURING TRIAL
 In section 14 or article 3 first paragraph reiterates the due
Art III Section 14. (1) No person shall be held to answer for a process clause. This is to put emphasis on the fact that when
criminal offense without due process of law. an accused is charged criminally, he is up against the entire
machinery of the state (People of the Philippines vs. the lone
(2) In all criminal prosecutions, the accused shall be presumed accused). The state has all the resources; the accused only
innocent until the contrary is proved, and shall enjoy the right to has his resources. So the reiteration of the due process

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

clause is not by accident, it is to put emphasis on the need of prosecution. The constitution however does not proscribe
due process more in a criminal case for or in favor of the Congress from legislating presumptions of liability or culpability.
accused. Under the second paragraph there is a listing of
Again, while there is a presumption of innocence, that is by
rights. But in Rule 115 there is the right to appeal which is
reason of the Constitution. Congress is not precluded from
not found in the constitution. As we mentioned before, the
legislating creating a presumption of liability provided that that
right to appeal is not a constitutional right. It is a statutory
presumption is also prima facie. not conclusive otherwise it becomes
right. But since it is given in certain cases, such violation will a BILL OF ATTAINDER
largely be questioned as a violation of due process if not  A good example of that would be your presumption of
afforded. Generally, there is no violation of due process liability in falsification, Art 172 in relation to Article 171 of
simply because there is no law or rule allowing appeal. But the RPC. A person who introduces a falsified document in
since, again, there is the right to appeal in criminal cases in any proceeding is presumed to be the author of the
the rules of court, all the way to the Supreme Court, to that falsification. Of course, that is a prima facie presumption.
extent it becomes a violation of due process rights if such
appeal has not been afforded.  Also in your Law on Anti-Fencing, there is a presumption
that if the thing bought outside of the allowed public auction
Right to free legal assistance or any legal means of sale or trading, the fact that the price
of the item sold is so disproportionate to its regular pricing,
Art III Section 11. Free access to the courts and quasi-judicial
there is a presumption that the person has known or should
bodies and adequate legal assistance shall not be denied to any
have known that the item was fenced and therefore, he
person by reason of poverty.
could be liable under anti-fencing. Of course, that is a prima
Under the provisions, no person shall be denied free legal facie presumption simply because the price of acquisition
assistance and free access to courts by reason of poverty. There is was disproportionately lower than that of the regular
no counterpart in the US Constitution with respect to these pricing.
rights. It is peculiar in the Philippines and indigent litigants are Right to be heard personally or by counsel
now to prosecute cases or file their claims under what we know
in the procedural rules as the ______.This has been improved If personally by himself, he has the right to present his evidence,
because the free access and free legal assistance is not limited to that’s why when you are going to be in litigation, in criminal
our regular courts but also includes quasi-judicial bodies. cases, that is always the dilemma on the part of the defense
You have gone through the entire Rules of Court provisions counsel. The person of the accused may want to testify. Two
respecting right to have free legal assistance which is also things come to mind. One, he has the continuing right to remain
protected with the right to counsel during trial. We have, first, silent so he may not testify. Secondly, he also has the right to
would be the appointment of the counsel de-officio, if a person testify because he has that right to be heard in person. What if he
appears in court without a lawyer. We also have provisions on knows that he is going to perjure himself in testifying? Will you
the Limited Law Student Practice Rule. A law student who has present him as a witness knowing that he will perjure himself or
NOT 3 years finished his third year in lawschool may engaged in the practice would you deny him his right to be heard in person because you
of law under the supervision of a lawyer. These are some of the don’t want to be a participant to a perjuring testimony. So that
provisions in the rules which would give meaning to the right to would be a moral dilemma. The problem is both are
have free legal assistance and free access. constitutional rights of the accused and therefore, he must have
to be presented.
Presumption of innocence
With the assistance of counsel, it is based on that old saying that
Art III Sec 14 (2) In all criminal prosecutions, the accused shall be a lay person who wants ____ in law may be convicted not
presumed innocent until the contrary is proved, xxx because he is guilty but because he does not know how to defend
nd
The first right of the accused under the 2 paragraph of Section his innocence. Even the most, perhaps knowledgeable lawyer, if
14 would be the presumption of innocence. Of course, this is only he is the person subject of the case, the accused for that matter,
the prima facie presumption, not conclusive because the State he may not be in the best objective position to defend himself
may, if it has met its burden of proving the guilt of the accused that’s why it is always suggested to get a counsel to represent
also by prima facie proof shifts the burden of proving the him. Again, because of the lack of objectivity that lawyer-accused
innocence or defending the innocence to the accused. The may not be able to defend his constitutional presumption of
prosecution has the primary obligation of proving the guilt of the innocence.
accused beyond reasonable doubt in order to overcome the
presumption. The duty of the court whenever an accused appears in court in
relation to his right to be heard and counsel is to inquire whether
As a matter of fact, in most disposition of criminal cases where he is represented by counsel. The Rules of Court requires the
the accused is acquitted, the disposition of the court does not judge to allow the person to secure the services of counsel if he
relate to the fact that the accused is not guilty but that because so wants. Of course if he does not want or he could not afford the
the presumption of innocence has not been overcome or that the services of a regular counsel, the court is obligated to appoint a
prosecution has failed to prove or overcome the presumption or counsel-de officio for him. The appointment of the counsel de
prove his guilt beyond reasonable doubt. The court is not in the officio is mandated in order for the accused to be protected of his
position to say that the accused did or did not commit it or that right or his right will be protected during the trial of that criminal
he is not guilty of the offense per se because it is largely case against him. In theory, the appointment of the counsel de
dependent upon the amount of evidence presented by the officio must depend largely on his experience, his field of
pp v pio? counsel de officio expertise as well as the complexity or nature of the case but in
appointment as counsel de officio continues in the logical proceedings (even until appeal)
until court revokes appointment
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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

practice or in reality, new lawyers would normally get appointed not speak the language or understand English, it must have to be
as counsel de officio because they are not too busy with any translated to him for him to understand what the nature of the
other litigation anyway and there is not much possibility of charges would be. Okay, if there is no valid arraignment there is
conflict of interest. A lawyer appointed as counsel de officio no valid proceeding thereafter. Based on your study or the review
cannot refuse the appointment unless for justified reasons. on criminal procedure, if the accused does not enter any plea; a
Anyway, the counsel de officio appointed by the court can seek plea of not guilty will be entered for him by the court, which was
payment for services rendered in the SC. The Rules of Court allow what was done by Miss Janet Lim Napoles. She refused to enter
counsel de officio to seek payment for his services. The court will any plea for the crime of serious illegal detention.
require you to submit a lot of documents and will pay you so less.
So might as well not claim from the SC. Right to Speedy, Impartial and Public Trial

The discussion with respect to right to counsel during trial and  IMPARTIAL TRIAL - When you say impartial trial, this goes to
right to counsel during preliminary investigation is the fact that the requirement of procedural due process. If you
during custodial investigation or during investigation under remember, one of the first conditions for procedural due
Section 12, the choice of counsel follows the phrase “ preferably process is that there must be an impartial court or tribunal
of the choice of that person investigated” which is not found clothed with jurisdiction over the subject matter and of the
under Section 14. The distinction is explained by the fact that persons, of the parties to the case. The impartiality requires
under Section 12 there is yet to be any court case. The accused that the court must not only be impartial but that also
has not yet been officially charged and the appointment of the appear to be impartial.
counsel is by the person investigating. The person investigating
must apprise the person investigated that he has the right to So you have your rules of disqualifications in the Rules of
counsel and that the right to counsel is preferably his own choice Court, disqualification of judges in cases, as well as the
and that if he could not afford a counsel then the state could voluntary grounds for inhibition. That the disqualifications
appoint one for him. That is to be apprised and to be extended by are mandatory grounds while inhibitions are voluntary
the person investigating. Under section 14, the appointment is ground. In order to avoid any semblance of partiality, you
made by a judge and that is already a court case or proceeding so know, some years ago, there was a big case in the SC where
that any counsel for that matter assisting the accused as counsel the Chief Justice was Narvasa and one of the lawyers of the
de officio will be performing his task under the supervision of the accused engaged was the son of the Chief Justice. So if a
court or of the judge. There is not much risk involve unlike in an party or a counsel is related within the fourth civil degree of
extra-judicial setting. affinity or consanguinity to the magistrate, that is a ground
for disqualification. So if you are not comfortable with this
Right to be informed of nature and cause of accusation judge, and you think there is that relationship, better hire a
lawyer who is related to the judge so that he or she will
The right to be informed, one of the more important rights of the disqualify himself.
rights of the accused because this would define the validity of the
proceedings taken thereafter in the criminal case. Generally, if The impartiality does not however prevent a judge from
there is no compliance of the right to be informed which is participating in the trial while ideally the judge must be an
complied during the arraignment of the accused in a criminal innocent by-stander to the parties to the case, the judge
case, no proceedings will be valid in the criminal case without must only rule on legal objections because the judge will
arraignment. Even a ____cannot be had if the accused has not eventually hear and decide the cases. The judge is not
trial in absentia been validly arraigned. The right to double jeopardy cannot be
prevented from participating in the sense that the judge is
claimed if the first jeopardy did not attach simply because the precluded from asking questions to clarify himself on certain
accused has not been arraigned in that previous or prior criminal matters. Sometimes in the eagerness perhaps to ascertain
case. also meaningful transmission the truth will try to illicit responses or answers which would
not have been elicited by the counsel. So , how are going to
The right of the accused to be informed is based on the need for go about it? can you object to the judge? For example, the
the accused to know what are the charges, or what is the nature prosecutor was asking questions, propounded on the
of the charges, which is basic. You have come across a lot of cases witness, on the elements of the crime. But the questions
where the person is arrested for one cause but is charged for were phrased and delivered that they were all objectionable,
another. Accused is arrested perhaps of traffic incident or the defense counsel successfully objected to them all, which
violation but is eventually charged in the court for illegal the judge sustained. So, nothing was elicited. And the end of
possession of firearms or prohibited drugs. So, the reason for the that, the judge would say, okay questions from the court,
arrest may not be the reason for the case. and the court starts asking questions, leading questions at
that. Can you object to the judge asking leading questions?
The accused must have to be informed of this because of the While the Rules of Court does not state, the Rules of
objectives. The court said, one, to furnish him of the charge in Evidence does not state that you can or you cannot.
order for him to prepare for his defense, two, for him to avail of Prudence would dictate that you should at least. It will
any conviction or acquittal from any further prosecution and appear on record that the matters were elicited not by the
third, to inform the court of the sufficiency of the information, if counsels to the case but by the judge, which may show that
it warrants a conviction. the judge may have been partial.

Now, just like in the recitation of the Miranda warnings in order  PUBLIC TRIAL - The right to public trial simply requires that
to grant him his Miranda rights, during arraignment there must the trial is open to the public so that the possibility of
have to be meaningful recitation as well. So if the accused does impropriety in the conduct of the proceedings would be

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

avoided. Of course, it does not require that everybody is have to be considered and the court must have to balance,
allowed to enter or observe, only so much as the court could that between the right of the accused and the right of the
accommodate. Of course, the right to be there to observe offended party.
would be subject to the certain rules of decorum in the
court. The first has something to do with the dress code, the Now the distinction or confusion with respect to, in relation
way you are supposed to conduct yourselves. In fact, the to right to speedy disposition of cases is when is this or are
publicity of the trial, the requirement of the public trial does these rights claimable. Correctly understood, right to speedy
not ordinarily allow it to be subject of, where pictures are trial will only be claimable by the accused in criminal cases.
taken, video recordings are made. It has to be by reason of a No other person can claim, not in any other proceeding. The
court-allowed taking of these photographs and video right to speedy disposition of cases however is claimable by
recording. What comes to mind perhaps was that trial of any party in any proceeding.
Estrada in the plunder case where he had to ask permission
from the SC, and the rule has been establish that there That was part of the ruling in the case of Cocofed vs.
should be no live screening of the proceeding because it will Republic, 2012 case, which involved a civil case.
violate the right of the accused, generally, to due process Cocofed claimed that for almost 20 years, the Republic
because it might sway the public opinion of his guilt or which filed a civil case for forfeiture of ill-gotten wealth
innocence. It can be recorded for purposes of keeping the has not presented its evidence because of some delay
recording as part of the legal history, but it cannot be brought about by certain petitions or actions taken
recorded and viewed publicly as it were in other proceedings after the main case was filed. SC said the right to
in other branches of government. speedy trial is not claimable in civil cases, it is only
claimable in criminal cases. It is only claimable by the
The publicity of the trial however allows the exclusion of accused and not by any other. The right that should
the public under your Rule 119 of the Rules of Court If the have been invoked is the right to speedy disposition of
nature of the testimony is delicate, or is offensive to decency cases because it can be claimed in any proceedings and
or public morals. The public can be excluded also in the it could be claimed by any party.
same provision, Section 21 of Rule 119, if the accused
requests that the public be excluded and the Rules of Court Also, the distinction lies in the fact that right to speedy trial
does not require any reason. Ayaw lang ng accused. Anyway is claimable because of the delay when the criminal case is
the publicity of the trial is his right. He does not want any filed up to the time the prosecution rests its case. So if there
public trial and so be it. the court can exclude the public. is that delay, the right to speedy trial can be claimed. Its not
even from the start of the filing of the criminal case up to
Section 21. Exclusion of the public. — The judge may, motu the time the defense rests because it is only up to the time
proprio, exclude the public from the courtroom if the the prosecution should have rested its case. Speedy
evidence to be produced during the trial is offensive to disposition of cases does not involve the time elapsed from
decency or public morals. He may also, on motion of the the filing to the submission of the case for decision in that
accused, exclude the public from the trial, except court same criminal case. If we were to make an example of that
personnel and the counsel of the parties. (13a) criminal case mentioned, the right to speedy disposition of
cases would refer to the period of time before the filing of
The last one there is when, in relation to child witnesses. the information in court, meaning the time the complaint is
Child witnesses are supposed to be protected from the filed and the time the information is filed upon the finding of
publicity of the trial because of its effect on them. Therefore, probable cause or from the time the defense rests up to the
the public may be excluded. There is even a Special Rule For time the court renders its decision.
Some Child Witnesses whenever they are not comfortable
testifying in the court. There is supposed to be a video  So in the spectrum of a criminal case, for example,
conferencing procedure. It used to be in one of our courts when the complainant files his case with the
here in Branch 12 which is a Family Court, but I don’t think investigating office up to the time that investigating
that the system is working. office finds probable cause or dismisses the case , right
to speedy disposition of cases can be claimed in that
 SPEEDY TRIAL - Now the last right there is the right to time span.
speedy trial. The right to speedy trial is characterized as one,
which is free from capricious, oppressive, or inordinate  When the information is filed eventually up to the time
delay. That is theory behind, or the characterization of what that criminal case is submitted for decision, right to
a delay is to constitute a violation of such right. speedy trial can be claimed, the right to speedy
disposition of cases cannot be claimed in that time
This right to speedy trial is often confused if not span.
distinguished from the right to speedy disposition of cases
because both follow what is known as the Four-fold test or  It can be claimed again when the case is now submitted
Four-fold factor. The reason for the delay, the length of the for decision up to the time the case is eventually
delay, the assertion or non-assertion of the right, meaning decided, right to speedy disposition of cases can be
the right to speedy trial or the right to speedy disposition of claimed.
cases, and the prejudice that it has caused and the delay has
caused on the party claiming it. It is not the length of time That’s why in some cases where the right to speedy
that is measured for purposes of determining whether there disposition of cases has been granted, perhaps one of
is violation of the right. This four-fold test or factors will the more familiar case with you would be the case of

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

Duterte vs. Sandiganbayan where the criminal 1) For the accused to be able to test the credibility not
complaint for the violation of R. A. 3019 was filed only of the story but also that of the witness
against them, it took the investigating office, the Office
of the Ombudsman sometime to find probable cause 2) For the judge to observe the demeanor of the witness,
against them. So that when the information was to assist or guide the judge in determining the
eventually filed, they have sought the dismissal of the credibility of the witness as well as that of the story.
case on the ground of violation of right to speedy
disposition of cases which the SC granted. Again, Of course, these are subject to certain exceptions. For example,
because the delay in the filing of the case in the court we all know that in the preliminary investigation stage of a
by the ombudsman has been characterized as criminal case, the right to cross-examine is not given. Even the
oppressive and or inordinate delay. The rationale investigating prosecutor would conduct clarificatory hearing, the
behind is simple. When a criminal complaint is filed with accused, at that time respondent, does not have the right to
the investigating office to find probable cause for the cross-examine the witness. During clarificatory hearing, if you are
filing of the information in the appropriate court, the the respondent, you have a question to the complainant, how do
investigating office does not preside the case to find you propound it? No, you cannot ask questions. No, you can, but
guilt beyond reasonable doubt. The task or job of the you have to course it to the investigating officer. You could not
office is just to determine whether there is a well- directly ask the complainant or the witnesses of the complainant
founded belief to engender the filing of the case in court because the right to cross-examine does not exist during the
or probable cause. So, why should it take them so long preliminary investigation stage of a criminal case.
to file the case in court against the accused. So if the
reason is because of the failure of that office to resolve Right to secure attendance of witnesses
it, then there is a violation of the right to speedy
disposition of cases. Okay, the next would be the right to compulsory process. The
right to secure attendance of witnesses or compulsory process is
For the time that the case is submitted for decision up granted to the accused because the state or the prosecution has
to the time the decision is rendered, while the right to no problem with respect to its witnesses or documentary
speedy disposition of cases may be claimed, it does not evidence. If the prosecution would want the police officer in the
necessarily operate to acquit the accused or will have fire and explosive division or unit before to testify on the
the case dismissed. There may be some delay, it may be examination made or the ballistic examination made, and even if
inordinate, there may be a violation of that right but he is coming from Camp Crame in Quezon City, the State has all
the liability rests upon the person or magistrate who is the money and resources to bring that person here to testify
tasked to issue the decision. It should not affect the ,even in Davao City. Same with certain experts in the NBI, you
rights of parties simply because there was delay in the have your QED or Question ___ Division. If you have some
promulgation of the decision. Know that both parties evidence to prove that the signature has been falsified, you just
have already presented their evidence in full, there is send the falsified signature in that document and other specimen
nothing much that they could have done except for the signature contemporaneous with that. The NBI QED will do the
court to render its ruling. So that there is a difference in examination for you and fee is not required to determine
the appreciation and grant of the right with respect to whether or not that question, signature in that document is
the effect if you were to view it at the period or time falsified or not falsified. And if you want that person to come for
elapsed or span before the criminal information is filed the prosecution, with all the State resources, those witnesses
and with that other time span in our spectrum when can.
the case has already been submitted for decision. If
there is nothing much that the parties can do because The problem is with the accused. The accused does not have, may
the case has already been submitted for decision, the not have all the resources to bring his witnesses in court. So the
right to speedy disposition of cases may not necessarily accused has the right to compel attendance of witnesses in his
be granted and even if granted, may not necessarily favor. However, that right will only allow him to ask a judge to
mean the acquittal of the accused or the dismissal of issue a subpoena to compel that person to testify. That right does
the criminal case. not grant him free access to these persons to testify for him. The
accused may have to pay for the expenses, which his right, under
Right to confront witnesses the constitution does not provide. That’s why it has always been
said that ordinarily, justice in the Philippines are for those who
Okay. The next right of the accused is the right to confrontation. could afford it. To some extent it is true, simply because even if
To meet the witnesses face to face this is usually satisfied when there is the right to compulsory process, his right is only up to the
the accused has cross-examined the witness. court issuing a subpoena.

There are two reasons why the witnesses must have to be cross- Rule 21 Subpoena Section 10.Exceptions. — The provisions of
examined not only in criminal cases, not only for the accused, but sections 8 and 9 of this Rule shall not apply to a witness who
generally in cross-examination of witnesses. One of the basic resides more than one hundred (100) kilometers from his
rules in _____of evidence is that evidence to be believable or residence to the place where he is to testify by the ordinary
credible must not only be credible by itself but must also come course of travel, or to a detention prisoner if no permission of the
from a credible witness. So the two basic reasons why court in which his case is pending was obtained. (9a, R23)
confrontation is required:
The subpoena efficacy in the Philippines follows the 100 km rule.
Before it followed the 50 km radius rule, now it is 100 km in the

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

ordinary course of travel. So, if the person or witness to be (1) First, there must be a valid arraignment.
presented by the accused is outside of that 100 km in the (2) Second, the accused must be notified.
ordinary course of travel, that person can refuse the lawful (3) Third, the accused is absent.
subpoena. Refusal of the subpoena without justifiable reason is (4) Fourth, the absence is not justified.
punishable by contempt. It is considered a contumacious
behavior to disobey a lawful subpoena. There are two situation contemplated.

Also, the rules may require you to advance the fees and expenses  One, after the arraignment and there is setting because
of the person to testify. If the accused does not have that money under our rules now there is schedule preliminary
say, for the fees and the expenses, the witness may refuse to conference where the dates of trial are already agreed upon
honor the subpoena. The right of the witness to honor the by the parties and in fact no further postponement are
subpoena is referred to as the Viatory Right of the witness. In one allowed unless justified. On the particular trial date, the
bar exam, that had been asked. What is the Viatory Right of a accused is absent. Can the prosecution proceed to present
Witness. evidence? If the conditions are present that because he was
notified and not justified, then the prosecutions may
Rule 119 Section 14. Bail to secure appearance of material proceed, for the trial date, trial in absentia.
witness. — When the court is satisfied, upon proof or oath, that a
material witness will not testify when required, it may, upon  The second situation contemplated, the accused jumps bail
motion of either party, order the witness to post bail in such sum or escape detention during trial in which case, trial in
as may be deemed proper. Upon refusal to post bail, the court absentia can be had because of those events or occurrences
shall commit him to prison until he complies or is legally and there is no need to prove the absence is unjustified nor
discharged after his testimony has been taken. (6a) that he has been duly notified because he has place himself
beyond the notification process or obligation of the court
There is Section 14 of Rule 119, if a witness whose testimony is simply because he has jump bail or escape detention. In that
material to the case refuses to testify, he can actually ask for a situation then the case can proceed for the entire duration
___ warrant meaning ask the court to issue a warrant to arrest provided the condition are met. Before that date, the
that person in order for that person to testify in a case. And Rule accused must be validly arraigned.
114 allows that person to post bail, if he has been arrested as a
material witness or if he cannot post bail he should be Now the next question asked is what would be the effect of trial
incarcerated until he testifies. My worry is that if you would in absentia or the absence of the accused of his rights during
follow this process, this person is not willing to testify for you, trial? Some commenters would says there should be no effect
you know that he is material to your defense, you had him even if there is in criminal law that flight is indicative of guilt and
arrested, and when he is incarcerated and then he testifies, my because the accused jumps bail that presumption of innocence is
worry is that he might not testify in your behalf. So that would be overcome.
the problem if you have a material witness arrested under Rule
114. You will never know what he is going to testify of. Even if What other rights? Rights to be heard personally that is waived
you were allowed to ask leading questions because that witness but the right to be heard with counsel is not affected. The
may be hostile already, you might not be able to elicit favorable counsel whether____ or ex-officio must have to perform this
responses for your defense simply because he does not want to obligation to defend the rights of the accused even if under the
help you.. trial in absentia, the lawyer cannot refuse to render this work or
perform his task for reason that his client is no longer here
Trial in absentia because he is obligated as an officer of the court. The right to be
informed has been done.
Rule 115 sec 1(c) To be present and defend in person and by
The right of speedy trial, perhaps it is not affected nor waived
counsel at every stage of the proceedings, from arraignment to
promulgation of the judgment. The accused may, however, waive even if he is absent or trial in absentia, the prosecution must have
present its evidence consistent with the right of speed trial.
his presence at the trial pursuant to the stipulations set forth in
his bail, unless his presence is specifically ordered by the court for Impartial trial of course there are not affected. The right to
confront witnesses, personally that is waived but with his counsel
purposes of identification. The absence of the accused without
justifiable cause at the trial of which he had notice shall be that is not waived because he can conduct cross- examination to
test the credibility of the witnesses. Right to secure the
considered a waiver of his right to be present thereat. When an
attendance of the witnesses that is not waived. Now, because we
accused under custody escapes, he shall be deemed to have
said that the right of appeal is not constitutional right, there has
waived his right to be present on all subsequent trial dates until
already been a decision the accused right of appeal is waived if he
custody over him is regained. Upon motion, the accused may be
allowed to defend himself in person when it sufficiently appears is in trial in absentia and the promulgation is in absentia and he
has failed to reappear or place himself under jurisdiction of court
to the court that he can properly protect his right without the
within 15 day period.
assistance of counsel.
When presence of the accused is a DUTY
In order to leave the disposition of criminal case, the presence
and absence of the accused and in order not to make mockery of (1) Arraignment and plea, whether of innocence or guilt (Rule
judicial system on the reason of absence of the accused, the rules 116 Sec 1b)
allow a possibility that the accused may be convicted provided (2) During trial, for identification
four conditions are complied:

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

(3) Promulgation of sentence, unless it is for a light offense, in the person cannot refuse to take the witness stand, it can only
which case accused may appear by counsel or a claim the privilege once incriminating is asked.
representative (Rule 120 Sec 6)
As also mentioned last night, this is waivable and does not need
any other special on waiver as it is under sec. 12 where waiver
IX. PRIVILEGE AGAINST SELF-INCRIMINATION must be in writing and with assistance of counsel. Here, once an
incriminating question is asked and answered then it is an
automatic waiver. There must be refusal to answer the question
Art III Section 17. No person shall be compelled to be a witness
if it is thought to be incriminating. In real practice when the
against himself.
person is testifying there is supposed to be a little time lag. You
always tell your witness do not answer immediately give some
The privilege against self-incrimination is based on two grounds:
time lag for a lawyer to interpose an objection.
 on the ground of public policy - Public policy is because if
Transactional Immunity vs Use Immunity
there was no right or privilege of self-incrimination, it would
place the person investigated to commit perjury There are some situation where a person may not be able to
 on the ground of humanity - humanity because this is refuse a subpoena testify particular matter under investigation
constitutional bar to prevent extortion of confession or and a person may be compelled to testify even the question is
admission. incriminating. In our system that is allowed provided there is a
legal excuse for the person for any liability even if he has
The scope of coverage – applies only to compulsory testimonial provided an answer and what we call as immunity provision. The
self-incrimination. This refers to use of physical or moral immunity provision is either transactional or use immunity.
composure to exact testimonial evidence. This is nothing to do
with any or other form of evidence which does not involve an oral  TRANSACTIONAL IMMUNITY - pertain to the immunity from
confession or admission. persecution as agreed between the one investigating and
the one investigated. And there is agreement that the
But because of jurisprudence, there has been inclusion of non- person will never be prosecuted despite the incriminating
verbal responses to be included under the privilege provided it
then he will not be prosecuted in relation to the crime being
would require the use of intelligence:
investigated.
 The most popular is the handwriting before the idea of
Art XIII Section 18. The Commission on Human Rights shall
handwriting is use for falsification of document is considered
have the following powers and functions: (8) Grant
as mechanical act. Requiring the person of his handwriting
immunity from prosecution to any person whose testimony
or signature for purposes comparison is not included in the
or whose possession of documents or other evidence is
privilege but subsequently the Supreme Court said it is
necessary or convenient to determine the truth in any
because when one person gives a specimen even a copy uses
investigation conducted by it or under its authority;
the intelligence to do so.
REPUBLIC ACT No. 1379 AN ACT DECLARING FORFEITURE IN
 The other is the re-enactment of a crime, when a crime is re-
FAVOR OF THE STATE ANY PROPERTY FOUND TO HAVE BEEN
enacted by the suspect supposedly covered by the privilege,
UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR
the person of the accused may refuse on the ground of self-
EMPLOYEE AND PROVIDING FOR THE PROCEEDINGS
incrimination.
THEREFOR.
Correctly understood the incriminating question or the right of
Section 8. Protection against self-incrimination. Neither the
privilege of self-incrimination is objectionable if the answer to the
respondent nor any other person shall be excused from
question is incriminating. We say incriminating when the answer
attending and testifying or from producing books, papers,
will subject the person to a criminal liability which results to a
correspondence, memoranda and other records on the
penalty. If the answer to the question may be against the interest
ground that the testimony or evidence, documentary or
but does not subject the person to any criminal liability that is not
otherwise, required of him may tend to incriminate him or
covered by the privilege.
subject him to prosecution; but no individual shall be
prosecuted criminally for or on account of any transaction,
As we have mention last night, the privilege in sec. 17 is capable
matter or thing concerning which he is compelled, after
on any proceeding, by any person, once the incriminating
having claimed his privilege against self-incrimination, to
question is asked, the right is claimable. In the case of the
testify or produce evidence, documentary or otherwise,
accused however, he has because it has the continuing the right
except that such individual so testifying shall not be exempt
to remain silent, he is treated specially with respect to the silence
from prosecution and conviction for perjury or false
in fact you cannot compel the accused to take the witness stand
testimony committed in so testifying or from administrative
because it is his continuing right in relation to the privilege itself.
proceedings.
And when he takes the witness stand, the accused cannot be
cross examine on any other important matter except on those
Republic Act No. 6832 AN ACT CREATING A COMMISSION TO
matter taken during direct examination, there is a strict rule on
CONDUCT A THOROUGH FACT-FINDING INVESTIGATION OF
cross examination on accused because it is to protect from any
THE FAILED COUP D′ÉTAT OF DECEMBER 1989
incriminating answers. For the rest of the witnesses in any
proceeding on that matter including administrative proceedings,

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

Section 8. Immunity from Criminal Prosecution. – The (3) Upon the expiration of the corresponding period, a
Commission is authorized to grant immunity from criminal certification to this effect signed by the Chief Justice or the
prosecution to any person who provides information or presiding judge shall forthwith be issued and a copy thereof
testifies in any investigation conducted by it where, upon its attached to the record of the case or matter, and served upon
evaluation, such information or testimony is necessary and the parties. The certification shall state why a decision or
vital to the investigation. The immunity thereby granted resolution has not been rendered or issued within said period.
shall continue to protect the witness who repeats such
testimony before the appropriate court when required to do (4) Despite the expiration of the applicable mandatory period, the
so by the latter. Should he refuse to repeat such testimony, court, without prejudice to such responsibility as may have been
the immunity granted him shall cease. incurred in consequence thereof, shall decide or resolve the case
or matter submitted thereto for determination, without further
Most common situation perhaps too easy to understand is delay.
when the accused turns into a state witness. Under the rules
of court when there is no direct evidence and there are Art VII Sec 18. Xxx The Supreme Court may review, in an
several accused, the one is not the most guilty whose appropriate proceeding filed by any citizen, the sufficiency of the
testimony is material for the conviction of the rest can factual basis of the proclamation of martial law or the suspension
become a state witness. The rules requires that you execute of the privilege of the writ of habeas corpus or the extension
a sworn statement of a propose testimony for the court to thereof, and must promulgate its decision thereon within thirty
appreciate whether to charge you as a state witness. Once days from its filing.xxx
the person is admitted as state witness and performs an
Art IXA Section 7. Each Commission shall decide by a majority
undertaking which is to testify in a case, because if he will
vote of all its Members, any case or matter brought before it
not testify it will not resolved him being acquitted. But if he
within sixty days from the date of its submission for decision or
eventually testifies as part of his condition then he cannot
resolution. A case or matter is deemed submitted for decision or
longer be prosecuted and thereafter found guilty for an
resolution upon the filing of the last pleading, brief, or
offense he is charged. That is an example of transactional
memorandum required by the rules of the Commission or by the
immunity.
Commission itself. Unless otherwise provided by this Constitution
 USE IMMUNITY - The other immunity which is limited in or by law, any decision, order, or ruling of each Commission may
character is used and fruit immunity as the term suggest be brought to the Supreme Court on certiorari by the aggrieved
whatever evidence that a person has given cannot be used party within thirty days from receipt of a copy thereof.
against him nor the fruits of the statement that he was
compelled to give but if there are other evidence that could Right of disposition of cases, we discuss that already last night.
be use against him not those provided and the fruits he had
given, he can nevertheless prosecuted by the state. This
provision of immunity makes applicable in inquiries in aid of XI. SUBSTANTIVE RIGHT UNDER THE DUE PROCESS CLAUSE
legislation. So if a person is called and he is going to testify
he can invoke his privilege against self-incrimination. If there What acts cannot be criminalized
is no immunity given to his testimony then he will no longer
be compelled to testify. Of course the investigating body can 1) Mere belief of aspirations (Art III sec.18 (1)) - No person shall
grant some form of immunity for the answer to the question be subjected of penalty on account again it should follow the
which may be incriminating. same belief action test in freedom of religion for so long as it
is ___ that remain in the ___ of the mind, it cannot be
Being admitted under witness protection program does not mean regulated nor could be penalized but if it is converted into
that you are automatically become a state witness. Part of the overt acts, this overt acts can be subject of regulation
witness protection program law requires witnesses to testify in including imposition of penalties for purposes. This was the
criminal cases where there testimony is material for the basis for decriminalization of anti-subversion law.
prosecution of suspects and there eventual conviction.
2) Debts and Civil Obligations (Art III Sec 20) - non
imprisonment of non-payment of debts and civil obligations.
X. RIGHT TO SPEEDY DISPOSITION OF CASES
Section 20. No person shall be imprisoned for debt or non-
payment of a poll tax.
Art VIII Section 15. (1) All cases or matters filed after the
effectivity of this Constitution must be decided or resolved within This provision is anchored on personal liberty by prohibiting
twenty-four months from date of submission for the Supreme the practice either sending the debtor to jail or making the
Court, and, unless reduced by the Supreme Court, twelve months debtor personal slaves for failing to pay the debts. But it
for all lower collegiate courts, and three months for all other must be clear that this has something to do with purely civil
lower courts. debts, if you notice that in our Revised Penal Code there is a
provision which requires a subsidiary imprisonment of a
(2) A case or matter shall be deemed submitted for decision or
convict for non-payment of fine. The imposition of a fine is
resolution upon the filing of the last pleading, brief, or
not a civil debt. It may be a monetary obligation it belongs to
memorandum required by the Rules of Court or by the court
state as a form of penalty after due process in a criminal
itself.
case and the court decrees a judgment that the fine is not
paid then there is a subsidiary imprisonment. That is not

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

imprisonment for non-payment of debts. Also civil debt does however allows the involuntary servitude on the situation.
not involve fraud, if there is criminal fraud, it may be One, one declaration of principle on defense of the state, all
punishable just like estafa, Bp22..etc.. citizen may be compelled military or civil service. Second is
that the servitude is on account of upon order of the court.
3) Acts which when done were innocent (Ex Post Facto Laws) Normally it is the sanction after criminal conviction so
(Art III Sec 22) accused is made to render service.

Section 22. No ex post facto law or bill of attainder shall be 2) Excessive fines
enacted.
Section 19. (1) Excessive fines shall not be imposed, nor
Now this ex post facto law and bill of attainder involves cruel, degrading or inhuman punishment inflicted. Neither
retroactive application of the law. The common shall the death penalty be imposed, unless, for compelling
characteristics of both is that they applied retroactively so reasons involving heinous crimes, the Congress hereafter
there are traditionally six situation on ex post facto law, the provides for it. Any death penalty already imposed shall be
common denominator is that they are applied retroactively. reduced to reclusion perpetua.
If they apply prospectively, it is not considered ex post facto.
So when a newer law criminalize an act which done when Excessive fines the characterization of excessive fine is not
innocent it becomes ex post facto because it was done measured on the amount imposed per se but rather on its
innocent. If it aggravates the crime or increases the penalty gross disproportionally on the amount of the fine with
or it requires less evidence or conviction are considered as respect to the act or the violation.
ex post facto law.
A good example as mentioned last night is the intents of the
Bill of attainder traditionally refers to the legislative law for special class of victims or special cases of interest, we
adjudication of guilt without the need of judicial trial and the mention about the slapping of a child where to be under the
penalty imposable is death. If it is less than death it is called Revised Penal Code, slander by deed or physical injury but if
bill of tains(?). but in our country it refers to both whether it under RA7610 on child abuse then imprisonment is prision
the resulting penalty is death or less than death. So what the mayor but the intent to blow that is intent to protect a
law provide is that it defines an act to be criminal provides special class or special situation. When a fine is imposed in
for liability imposes penalty without the need of judicial certain situation where the congress has special interest in
hearing. Meaning, it is legislative determination of guilt as order to give some protection. The common here is the Price
we mention in the presumption of innocence, Congress is Control Law, are we still have the price control now? We
not precluded from enacting a law providing for a prima have price control in times of certain emergencies where the
facie presumption of liability because it can be overcome by state can imposed sanction for violation of this supposed
evidence. But if presumption is conclusiveness, that is standard retail pricing.
considered as bill of attainder. Just like ex post facto, the bill
of attainder applies retroactively. 3) Cruel, degrading and inhuman punishments

Remember the case of Bureau of Customs employee vs. sec. Same thing with the inhuman or cruelty punishment, cruelty
of finance Tevez on the attrition law? The argument is that does not mean that is the very thing of the penalty. Death is
the attrition law is a bill of attainder because it defines the most severe. There is nothing more severe than that but
certain misgivings and eventually serve as their dismissal the manner which the death may imposed as will define
because the attrition law provides well benefits if the target cruel, degrading.
is met but if the target is not met they eventually be
dismissed. The SC said it is not bill of attainder because it is 4) Indefinite imprisonment
not applied retroactively. When the law is applied
retroactively there is no escape from any liability that should The Protection against Double Jeopardy
make the bill of attainder, the resulting penalty. Secondly, it
is not bill of attainder because while the law provides for the Section 21. No person shall be twice put in jeopardy of
targets for collection and eventual resulting from dismissal of punishment for the same offense. If an act is punished by a law
service. The SC said analyzing the law including the rules and an ordinance, conviction or acquittal under either shall
issued by the secretary to promulgate the law provides for constitute a bar to another prosecution for the same act.
______, there is no judicial or legislative determination of
their liability. TWO SITUATIONS CONTEMPLATED IN SEC 21, PROTECTION
AGAINST DOUBLE JEOPARDY.
What punishments cannot be imposed
1. Same Act Rule - the act must have to be punished both by a
1) Involuntary servitude statute and an ordinance. A conviction or acquittal or
dismissal of charges in one bars the prosecution of the
Section 18. (2) No involuntary servitude in any form shall other. So, the point of consideration is the act and not the
exist except as a punishment for a crime whereof the party punishing law per se because if that act is punishable by a
shall have been duly convicted. statute or an ordinance then the same act rule shall operate
if the first jeopardy attached in either of the cases filed.
th
Involuntary servitude was abused on 13 amendment of the
US Constitution which abrogated slavery. The constitution

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

2. Same Offense rule – the more discussed aspect or situation So, the first jeopardy is considered attached.
contemplated in double jeopardy protection. The act is
punishable by the same statue or different provisions of the Now, if another case is filed for that the same offense, meaning a
different statutes but nevertheless defined as criminal by second case is filed as that of the first, then double jeopardy can
the same legislative body. It is not by a statute which is be made. As we have said before, there is no equivalent ground
promulgated by congress and an ordinance which is issued to dismiss or quash an information in criminal cases as that of the
by legislative council. civil cases on litis pendentia. When there is another pending
criminal case in another court where the first jeopardy has not
In the same offense test, invariably, the Supreme Court has yet attached, the accused cannot claim protection against double
discussed that they have several conditions for it to be jeopardy. There may have been cases that the court has
claimable but technically speaking, there are only two. reconstrained to dismiss a second case filed because of the
pendency of the first; but again, to be safe about it for so long as
 the first jeopardy must have attached the first jeopardy had not attached, the claim or the protection of
 the second case filed is the same as that of the first double jeopardy in another case could not properly be made.
case filed where the first jeopardy already attached.
The same offense test follows:
RULES OF COURT PROVISIONS
1) literally, the second case is the same as that of the first. or
Rule 117 Section 7. Former conviction or acquittal; double 2) The second case is an attempt of the first. or
jeopardy. — When an accused has been convicted or acquitted, 3) The second case is a frustration of the first. or
or the case against him dismissed or otherwise terminated 4) The second case necessarily includes the first, meaning some
without his express consent by a court of competent jurisdiction, of the elements in the second charge constitute the
upon a valid complaint or information or other formal charge elements in the first charge. or
sufficient in form and substance to sustain a conviction and after 5) The reverse of that, the second is necessarily included in the
the accused had pleaded to the charge, the conviction or first case, meaning some of the elements of the first case as
acquittal of the accused or the dismissal of the case shall be a bar charged constitute the elements of the second case as
to another prosecution for the offense charged, or for any charged.
attempt to commit the same or frustration thereof, or for any 6) Last, which is by rule, when there is a proper and valid enter
offense which necessarily includes or is necessarily included in of plea of guilt to a lesser offense. That last instance would
the offense charged in the former complaint or information. require in the present rules that the prosecution both the
public and private, unless - must have consented.
However, the conviction of the accused shall not be a bar to
another prosecution for an offense which necessarily includes the One of the questions normally asked during pre trial in
offense charged in the former complaint or information under criminal cases, what is the effect if the private complainant
any of the following instances: does not appear? Would the case be dismissed because the
rule in civil cases is that when the plaintiff does not appear
(a) the graver offense developed due to supervening facts arising in pre trial for any justifiable reason, the defendant can
from the same act or omission constituting the former charge; cause the dismissal of the civil complaint by declaring the
plaintiff to be declared as..what? Can the civil case be
(b) the facts constituting the graver charge became known or dismissed if the plaintiff does not appear during the pre trial
were discovered only after a plea was entered in the former of a civil case? Now in criminal cases, the only effect is that
complaint or information; or if there is a plea bargaining, the consent of the private
offended party need not be secured, it would only be the
(c) the plea of guilty to the lesser offense was made without the consent of the public prosecutor. So, if the public prosecutor
consent of the prosecutor and of the offended party except as agrees to the plea bargaining then it will be valid provided
provided in section 1 (f) of Rule 116. the second condition is also satisfied, that the lesser offense
is necessarily included in the offense charged. Prior to the
In any of the foregoing cases, where the accused satisfies or amendment of the present rules, plea of guilt to a lesser
serves in whole or in part the judgment, he shall be credited with offense does not require that the lesser offense is
the same in the event of conviction for the graver offense. (7a) necessarily included in the offense charged. You are charged
for homicide you can plea guilty to other deceits, that is
The further discussion would be when is the first jeopardy has possible before. Now, the lesser offense need to be
attached? That is where the most of the conditions are invariably necessarily included in the offense charged. If you are
cited. charged with murder, can you plead guilty to physical
injuries? Is physical injuries necessarily included in the crime
a) There must be an information sufficient in form and of murder? Yes, they are of the same species. But you
substance to allow a conviction. cannot plead guilty to theft. Robbery, can you plead guilty to
b) It must be have to be filed with a court of competent a lesser offense of theft? Value of goods is 100 na lang?
jurisdiction. Same species. If these two conditions are met, then the plea
c) The accused must have been validly arraigned and therefore of guilt to a lesser offense is supposed to be valid and the
must have entered his plea validly. accused cannot be charged again or in the second case for
d) Lastly, the accused must have been convicted or acquitted the original charge filed by the prosecution.
or the case against him was dismissed without his express
consent.

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

The exceptions are: 2) Petition for review under rule 45 – normally involves
questions which are legal in character; correct
1) When there is supervening event. The graver offense has application or interpretation of a law based on an
developed due to a supervening fact. The supervening fact is one admitted or an uncontested set of facts.
which has developed after the first jeopardy has attached.
3) Petition for certiorari under rule 65 – question on
If the accused has been charged earlier for attempted jurisdiction. The issue is always about jurisdiction
homicide, and he pleaded guilty, and sentenced accordingly regardless of validity of the decision. It is not a question
but by reason of the same injuries the victim eventually on appreciation of evidence. It is not a question of
died. Can he be convicted of consummated homicide this application or interpretation of the law. Rather, it is a
time because there is supervening fact which is the question whether or not the court has authority to
occurrence of death. decide a case at the onset.

However, a situation in one case where the SC did not When the judgment in a criminal case is one of acquittal,
appreciate the supervening fact exception was that the ordinary appeal and rule 45 are not available because it will
victim was mauled by the accused and the victim underwent violate the double jeopardy protection. What is available on
medical examination and was in fact hospitalized. The initial the part of the private offended party or the prosecution is
finding of the medical doctor was that recovery will be not rule 65, question of jurisdiction, but only when (1) one,
more than ten days. So the accused was charged with slight there is grave abuse of discretion because the court has no
physical injuries. The accused pleaded guilty and sentenced jurisdiction or (2) the prosecution is denied of due process.
accordingly. The victim, however, was not able to recover Absent any showing, even if there is error in judgment, it
even after the lapse of ten days and so a more thorough does not allow the court to reverse the ruling based on rule
medical examination was conducted and it was found out 65 petition. So, SC here said that the petitioner here could
that the victim suffered concussion in the brain which if there not seek a reversal of decision of acquittal based on rule 65
was no timely medical intervention could have resulted to his because there is no grave abuse of discretion.
death. So, the accused was charged again for the same
incident of mauling this time for frustrated homicide. Can he Dismissal with consent of the accused, There are two situations
be charged with violating the protection against double contemplated:
jeopardy? The SC said no because it will violate his protection
because the graver offense was not a supervening fact. The 1) When the accused invokes his right to speedy trial. Of
graver offense was already there though not discovered. So, course, the dismissal is with his consent because he was the
which gave way now to the second exception wherein the one who moved to dismiss the criminal case on account of
rules now provide: the violation of his right to speedy trial. If the court grants
his motion to dismiss based on such violation, it is considered
2) The facts which constitute the graver offense became known an acquittal. There can be no review of that unless it is under
or discovered only after the filing of the previous case. So even if rule 65 otherwise it will violate double jeopardy protection.
it was not a supervening fact but it was only discovered after the
first jeopardy attached, the accused could be charged for the 2) When the court grants the accused of demurrer to evidence.
graver offense. Under your rules of criminal procedure, within 5 days from
the time the prosecution rests the defense can ask for leave
3) The third exception is that when there was invalid plea of guilt or move for leave to allow him to file demurrer to evidence.
to a lesser offense. So the accused can be charged with the Literally it means to take exception from the prosecution’s
original charge even if there was a plea of guilt to lesser offense evidence arguing that even with the amount of evidence the
because that plea of guilt to a lesser offense was not valid. prosecution has presented the prosecution has failed to
prove his guilt by proof beyond reasonable doubt. Under
Motions for reconsiderations or appeals your rules, within ten days from the grant of the leave, the
accused may file his demurrer. So it is suggested in the rules
There is a 2012 case that case of Ysidoro vs Leonardo-de that once you file your motion for leave you attach your
Castro. This was a Justice Brion decision. Ysidoro was demurrer already so the court will have opportunity to
charged in SB for violation of RA 3019, Anti-graft and corrupt examine your arguments in your demurrer whether or not to
practices act. SB acquitted him for failure of the prosecution grant the leave. If the court grants it, it is considered
to __ (25:25) one element of the crime. The private offended adjudication on the merits, it is an acquittal. There can be no
party filed a petition for certiorari under Rule 65 questioning reconsideration sought unless again it is based on
the acquittal by the SB. SC had the occasion to discuss the jurisdictional error. It was without jurisdiction, the court
options in criminal case that would be taken if there is which has granted demurrer to.
decision by the trial court and the court mentioned of three
options: In those two occasions, the fact that the court dismissed the case
with consent of the accused would still mean the first jeopardy
1) Ordinary appeal – normally involves factual and legal had attached in those cases.
issues. The issue is on the propriety of the decision
although the decision is considered intrinsically valid Time Bar Rule
although there is an error in judgment.
What is the effect of the Time Bar Rule with respect to our
protection against double jeopardy? In our rules now, we

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

follow the time bar rule when a criminal complaint is THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
provisionally dismissed. When the penalty is 6 years or a
fine, it shall be one year; if 6 years and one day or more, it Section 15. The privilege of the writ of habeas corpus shall not be
shall be two years. Meaning, if the case is provisionally suspended except in cases of invasion or rebellion when the
dismissed depending on one or two years, the question is public safety requires it.
can the prosecution revive or refile the case? In criminal
procedure, there can be provisional dismissals. If the We all know that writ of Habeas corpus as provided for in the
criminal complaint is provisionally dismissed depending on constitution is a remedy available to look into any and all forms of
the penalty, the penalty is not more than 6 years or only a involuntary restraint; it will inherently include also involuntary
fine, within the 1 year period you can ask for revival of the servitude. If there is no legal justification for detaining a person, it
criminal case. If the penalty is 6 years or more, within the 2 may not literally be detaining him by placing him in a detention
year period you can ask for revival of the case because it has facility, for so long as there is substantial defect on his freedom of
been provisionally dismissed. Question, if the one or two mobility by __ imposed even if not actual incarceration it can be a
year period, as the case may be, has already lapsed, does it proper subject of petition for writ of habeas corpus.
mean that the case has already been dismissed and that you
can no longer file the case? Invariably, there may have been FUNCTIONS OF THE WRIT
discussion on the effect that, the time bear rule simply
prohibits the revival of the case outside the one or two year The case of Villa Vicencio vs Lucban, the precursor of all
periods. But on the question that can the prosecution refile these. They were not actually incarcerated; they were forced
the case, should the prosecution should be allowed to refile to be brought from Manila to Davao City. They were not
the case? Because the prescription of offenses in the RPC even prevented from leaving Dvao City. They were just
and other special laws, some are longer than one or two brought here. They were rounded in Metro Manila, loaded
years. Let us go back to your rules on the prescription of in a steamship and brought to Davao. When they arrived
offenses. In the Revised Penal Code, if the penalty is arresto here, they were not prevented from going back to Manila or
mayor, what is the prescriptive period? Those prescriptive marrying the local inhabitants here. Still, the SC, there could
periods are substantive law. The time bar rule is only be proper issuance of writ of habeas corpus because their
provided in the rules of court. We know that rules provided freedom to move around was substantially curtailed.
in rules of court cannot alter, modify or change substantive
laws. So if the penalty is 10 years, one or two years in time That was also the ruling in the case of Mongcopa vs Enrile.
bar rule should not affect the prescriptive period. When the Mongcopa was released after incarceration during martial
crime is committed, when does the prescriptive period law but there were conditions set. If Mongcopa leaves
began to run? From the time the offense is committed. If Manila, he must get permission from military. If he would be
you do not file it the prescriptive period will not stop to run. going out of the country, he would be required to render
But once you file it, it stops to run. Will it run again? What report so that his whereabouts can be known to the military
the time bar rule simply provides is that the prosecution can authorities. SC said there is substantial defect in his freedom
ask for the revival of the case in one or two year periods of mobility or liberty wherein a petition for writ of habeas
depending on the penalty. If there is no revival within the 1 corpus is proper.
or 2 year periods, there is a disputable presumption that the
prosecution or the state is no longer willing prosecute it SUSPENSION OF THE PRIVILEGE
further. It’s a disputable presumption. It is not that the case
is totally barred because there is no revival of the case. If the Art VII Section 18. The President shall be the Commander-in-
information filed against the accused is sufficient in form Chief of all armed forces of the Philippines and whenever it
and substance, the accused arraigned in the court with becomes necessary, he may call out such armed forces to
competent jurisdiction and the case is provisionally prevent or suppress lawless violence, invasion or rebellion.
dismissed and the case is not revived within the one or two In case of invasion or rebellion, when the public safety
year periods, can the case be refiled later without violating requires it, he may, for a period not exceeding sixty days,
the right of the accused against double jeopardy? That is suspend the privilege of the writ of habeas corpus or place
the question. Remember, that when the case is provisionally the Philippines or any part thereof under martial law. Within
dismissed the plea is normally withdrawn. It is as if there is forty-eight hours from the proclamation of martial law or
no valid arraignment. Again it is different case if the plea is the suspension of the privilege of the writ of habeas corpus,
not withdrawn, because when that case is provisionally the President shall submit a report in person or in writing to
dismissed much more without the consent or acquiescence the Congress. The Congress, voting jointly, by a vote of at
of the accused first jeopardy may attach. But if you take the least a majority of all its Members in regular or special
plea back or the accused agrees to provisional dismissal the session, may revoke such proclamation or suspension, which
case can be refiled outside the one or two year periods revocation shall not be set aside by the President. Upon the
provided it is within the prescriptive period within which to initiative of the President, the Congress may, in the same
file the criminal complaint because the first jeopardy had manner, extend such proclamation or suspension for a
not yet attached. period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four


hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

The Supreme Court may review, in an appropriate conviction? The court which rendered the judgment of
proceeding filed by any citizen, the sufficiency of the factual conviction no longer has jurisdiction over the case.
basis of the proclamation of martial law or the suspension of Once the service is commenced, the court loses
the privilege of the writ of habeas corpus or the extension jurisdiction, meaning the convicting court. so you have
thereof, and must promulgate its decision thereon within to file a petition for a writ of habeas corpus.
thirty days from its filing.
2) Or by reason of the judicial declaration or by a
A state of martial law does not suspend the operation of the subsequent legislation, the penalty imposed before is
Constitution, nor supplant the functioning of the civil courts no longer valid under that new judicial decree or by
or legislative assemblies, nor authorize the conferment of that congressional issuance. Meaning, there is a new
jurisdiction on military courts and agencies over civilians law which is beneficial to the accused and we all know
where civil courts are able to function, nor automatically this should be applied retroactively. So as to remainder
suspend the privilege of the writ of habeas corpus. of the penalty, because of the new decision or the new
law, there is no more legal justification, the accused can
The suspension of the privilege of the writ of habeas corpus seek release by filing a petition of writ of habeas corpus.
shall apply only to persons judicially charged for rebellion or
offenses inherent in, or directly connected with, invasion. Affirmative rights

During the suspension of the privilege of the writ of habeas 1) Free Access to the courts
corpus, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be Section 11. Free access to the courts and quasi-judicial
released. bodies and adequate legal assistance shall not be denied to
any person by reason of poverty.
We also know that what is suspended when the president
exercises one of his commander in chief powers is the 2) Protection and enforcement of constitutional rights
privilege and not the writ itself. Meaning, a person may not
be released within the periods provided under Art 125 of the Art III Sec 12 (4) The law shall provide for penal and civil sanctions
revised penal code because when the privilege is suspended for violations of this section as well as compensation to and
under art VII sec 18 the period is extended to 72 hours. rehabilitation of victims of torture or similar practices, and their
families.
The writ would still be issued if the petition filed is sufficient
in form and substance, but the period of detention without Art VIII Section 5. The Supreme Court shall have the following
charge is extended from 12, 18, 36 hours to 72 hours. The powers: (5) Promulgate rules concerning the protection and
same constitutional provision still requires that those enforcement of constitutional rights, pleading, practice, and
persons arrested and detained without charge must have to procedure in all courts, the admission to the practice of law, the
be charged within 72 hours otherwise they shall be released. integrated bar, and legal assistance to the underprivileged. Such
So, it does not justify the arrest and detention. It simply rules shall provide a simplified and inexpensive procedure for the
allows the state to have more time to make a case against speedy disposition of cases, shall be uniform for all courts of the
that person arrested and detained and eventually charge in same grade, and shall not diminish, increase, or modify
court. Because if the three day period has lapsed without substantive rights. Rules of procedure of special courts and quasi-
any of these charges filed, the state is mandated to release judicial bodies shall remain effective unless disapproved by the
these persons. Supreme Court.

THE WRIT OF HABEAS CORPUS AS A POST CONVICTION REMEDY Art XIII Section 18. The Commission on Human Rights shall have
the following powers and functions: (3) Provide appropriate legal
The writ of Habeas corpus has also been used as a post measures for the protection of human rights of all persons within
conviction remedy because either of these two the Philippines, as well as Filipinos residing abroad, and provide
circumstances occurred: for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or need
1) There has been full service; there must be full service of protection;
imprisonment so there is no more justification in
detaining him any longer. This should not include the WRIT OF AMPARO
service of sentence under the indeterminate sentence
law. In indeterminate sentence law, there is minimum A.M. No. 07-9-12-SC (25 September 2007) THE RULE ON THE
penalty and a maximum penalty. When the person has WRIT OF AMPARO
served the minimum penalty, he may be released for
good behavior. That is not a matter of right but a SECTION 1. Petition. – The petition for a writ of amparo is a
matter of discretion. But if there is full service already, remedy available to any person whose right to life, liberty and
there is no more legal justification for continued security is violated or threatened with violation by an unlawful
detention. If the warden does not release him, a petition act or omission of a public official or employee, or of a private
for writ of habeas corpus can be filed. individual or entity.
The writ shall cover extralegal killings and enforced
Question, why should you file a petition when there
disappearances or threats thereof.
was a court that has rendered the judgment of

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

SEC. 2. Who May File. – The petition may be filed by the e. The actions and recourses taken by the petitioner to
aggrieved party or by any qualified person or entity in the determine the fate or whereabouts of the aggrieved party
following order: and the identity of the person responsible for the threat, act
or omission; and
a. Any member of the immediate family, namely: the spouse,
children and parents of the aggrieved party; f. The relief prayed for.

b. Any ascendant, descendant or collateral relative of the The petition may include a general prayer for other just and
aggrieved party within the fourth civil degree of equitable reliefs.
consanguinity or affinity, in default of those mentioned in
SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the
the preceding paragraph; or court, justice or judge shall immediately order the issuance of the
c. Any concerned citizen, organization, association or writ if on its face it ought to issue. The clerk of court shall issue
institution, if there is no known member of the immediate the writ under the seal of the court; or in case of urgent
family or relative of the aggrieved party. necessity, the justice or the judge may issue the writ under his or
her own hand, and may deputize any officer or person to serve it.
The filing of a petition by the aggrieved party suspends the right
of all other authorized parties to file similar petitions. Likewise, The writ shall also set the date and time for summary hearing of
the filing of the petition by an authorized party on behalf of the the petition which shall not be later than seven (7) days from the
aggrieved party suspends the right of all others, observing the date of its issuance.
order established herein.
SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of
SEC. 3. Where to File. – The petition may be filed on any day and court who refuses to issue the writ after its allowance, or a
at any time with the Regional Trial Court of the place where the deputized person who refuses to serve the same, shall be
threat, act or omission was committed or any of its elements punished by the court, justice or judge for contempt without
occurred, or with the Sandiganbayan, the Court of Appeals, the prejudice to other disciplinary actions.
Supreme Court, or any justice of such courts. The writ shall be
SEC. 8. How the Writ is Served. – The writ shall be served upon
enforceable anywhere in the Philippines. the respondent by a judicial officer or by a person deputized by
When issued by a Regional Trial Court or any judge thereof, the the court, justice or judge who shall retain a copy on which to
writ shall be returnable before such court or judge. make a return of service. In case the writ cannot be served
personally on the respondent, the rules on substituted service
When issued by the Sandiganbayan or the Court of Appeals or shall apply.
any of their justices, it may be returnable before such court or
any justice thereof, or to any Regional Trial Court of the place SEC. 9. Return; Contents. – Within seventy-two (72) hours after
where the threat, act or omission was committed or any of its service of the writ, the respondent shall file a verified written
elements occurred. return together with supporting affidavits which shall, among
other things, contain the following:
When issued by the Supreme Court or any of its justices, it may
be returnable before such Court or any justice thereof, or before a. The lawful defenses to show that the respondent did not
the Sandiganbayan or the Court of Appeals or any of their violate or threaten with violation the right to life, liberty and
justices, or to any Regional Trial Court of the place where the security of the aggrieved party, through any act or omission;
threat, act or omission was committed or any of its elements
b. The steps or actions taken by the respondent to determine
occurred. the fate or whereabouts of the aggrieved party and the
SEC. 4. No Docket Fees. – The petitioner shall be exempted from person or persons responsible for the threat, act or
the payment of the docket and other lawful fees when filing the omission;
petition. The court, justice or judge shall docket the petition and c. All relevant information in the possession of the respondent
act upon it immediately.
pertaining to the threat, act or omission against the
SEC. 5. Contents of Petition. – The petition shall be signed and aggrieved party; and
verified and shall allege the following:
d. If the respondent is a public official or employee, the return
a. The personal circumstances of the petitioner; shall further state the actions that have been or will still be
taken:
b. The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is i. to verify the identity of the aggrieved party;
unknown or uncertain, the respondent may be described by
ii. to recover and preserve evidence related to the death or
an assumed appellation; disappearance of the person identified in the petition which
c. The right to life, liberty and security of the aggrieved party may aid in the prosecution of the person or persons
violated or threatened with violation by an unlawful act or responsible;
omission of the respondent, and how such threat or iii. to identify witnesses and obtain statements from them
violation is committed with the attendant circumstances
concerning the death or disappearance;
detailed in supporting affidavits;
iv. to determine the cause, manner, location and time of death
d. The investigation conducted, if any, specifying the names,
or disappearance as well as any pattern or practice that may
personal circumstances, and addresses of the investigating
have brought about the death or disappearance;
authority or individuals, as well as the manner and conduct
of the investigation, together with any report;

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v. to identify and apprehend the person or persons involved in immediate family, in accordance with guidelines which it shall
the death or disappearance; and issue.

vi. to bring the suspected offenders before a competent court. The accredited persons and private institutions shall comply with
the rules and conditions that may be imposed by the court,
The return shall also state other matters relevant to the justice or judge.
investigation, its resolution and the prosecution of the case.
(b) Inspection Order. — The court, justice or judge, upon verified
A general denial of the allegations in the petition shall not be motion and after due hearing, may order any person in
allowed. possession or control of a designated land or other property, to
SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses permit entry for the purpose of inspecting, measuring, surveying,
shall be raised in the return, otherwise, they shall be deemed or photographing the property or any relevant object or
waived. operation thereon.

SEC. 11. Prohibited Pleadings and Motions. – The following The motion shall state in detail the place or places to be
pleadings and motions are prohibited: inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced
a. Motion to dismiss; disappearance or whereabouts of the aggrieved party.
b. Motion for extension of time to file return, opposition, If the motion is opposed on the ground of national security or of
affidavit, position paper and other pleadings; the privileged nature of the information, the court, justice or
c. Dilatory motion for postponement; judge may conduct a hearing in chambers to determine the merit
of the opposition.
d. Motion for a bill of particulars;
The movant must show that the inspection order is necessary to
e. Counterclaim or cross-claim; establish the right of the aggrieved party alleged to be
f. Third-party complaint; threatened or violated.
The inspection order shall specify the person or persons
g. Reply;
authorized to make the inspection and the date, time, place and
h. Motion to declare respondent in default; manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The
i. Intervention;
order shall expire five (5) days after the date of its issuance,
j. Memorandum; unless extended for justifiable reasons.
k. Motion for reconsideration of interlocutory orders or interim (c) Production Order. – The court, justice or judge, upon verified
relief orders; and motion and after due hearing, may order any person in
possession, custody or control of any designated documents,
l. Petition for certiorari, mandamus or prohibition against any papers, books, accounts, letters, photographs, objects or tangible
interlocutory order. things, or objects in digitized or electronic form, which constitute
SEC. 12. Effect of Failure to File Return. — In case the respondent or contain evidence relevant to the petition or the return, to
fails to file a return, the court, justice or judge shall proceed to produce and permit their inspection, copying or photographing
hear the petition ex parte. by or on behalf of the movant.

SEC. 13. Summary Hearing. — The hearing on the petition shall be The motion may be opposed on the ground of national security or
summary. However, the court, justice or judge may call for a of the privileged nature of the information, in which case the
preliminary conference to simplify the issues and determine the court, justice or judge may conduct a hearing in chambers to
possibility of obtaining stipulations and admissions from the determine the merit of the opposition.
parties. The court, justice or judge shall prescribe other conditions to
The hearing shall be from day to day until completed and given protect the constitutional rights of all the parties.
the same priority as petitions for habeas corpus. (d) Witness Protection Order. – The court, justice or judge, upon
SEC. 14. Interim Reliefs. — Upon filing of the petition or at motion or motu proprio, may refer the witnesses to the
anytime before final judgment, the court, justice or judge may Department of Justice for admission to the Witness Protection,
grant any of the following reliefs: Security and Benefit Program, pursuant to Republic Act No. 6981.

(a) Temporary Protection Order. – The court, justice or judge, The court, justice or judge may also refer the witnesses to other
upon motion or motu proprio, may order that the petitioner or government agencies, or to accredited persons or private
the aggrieved party and any member of the immediate family be institutions capable of keeping and securing their safety.
protected in a government agency or by an accredited person or SEC. 15. Availability of Interim Reliefs to Respondent. – Upon
private institution capable of keeping and securing their safety. If verified motion of the respondent and after due hearing, the
the petitioner is an organization, association or institution court, justice or judge may issue an inspection order or
referred to in Section 3(c) of this Rule, the protection may be production order under paragraphs (b) and (c) of the preceding
extended to the officers involved.
section.
The Supreme Court shall accredit the persons and private
institutions that shall extend temporary protection to the
petitioner or the aggrieved party and any member of the

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

A motion for inspection order under this section shall be SEC. 23. Consolidation. – When a criminal action is filed
supported by affidavits or testimonies of witnesses having subsequent to the filing of a petition for the writ, the latter shall
personal knowledge of the defenses of the respondent. be consolidated with the criminal action.

SEC. 16. Contempt. – The court, justice or judge may order the When a criminal action and a separate civil action are filed
respondent who refuses to make a return, or who makes a false subsequent to a petition for a writ of amparo, the latter shall be
return, or any person who otherwise disobeys or resists a lawful consolidated with the criminal action.
process or order of the court to be punished for contempt. The After consolidation, the procedure under this Rule shall continue
contemnor may be imprisoned or imposed a fine.
to apply to the disposition of the reliefs in the petition.
SEC. 17. Burden of Proof and Standard of Diligence Required. – SEC. 24. Substantive Rights. — This Rule shall not diminish,
The parties shall establish their claims by substantial evidence.
increase or modify substantive rights recognized and protected
The respondent who is a private individual or entity must prove by the Constitution.
that ordinary diligence as required by applicable laws, rules and SEC. 25. Suppletory Application of the Rules of Court. – The Rules
regulations was observed in the performance of duty.
of Court shall apply suppletorily insofar as it is not inconsistent
The respondent who is a public official or employee must prove with this Rule.
that extraordinary diligence as required by applicable laws, rules
SEC. 26. Applicability to Pending Cases. – This Rule shall govern
and regulations was observed in the performance of duty. cases involving extralegal killings and enforced disappearances or
The respondent public official or employee cannot invoke the threats thereof pending in the trial and appellate courts.
presumption that official duty has been regularly performed to SEC. 27. Effectivity. – This Rule shall take effect on October 24,
evade responsibility or liability.
2007, following its publication in three (3) newspapers of general
SEC. 18. Judgment. — The court shall render judgment within ten circulation.
(10) days from the time the petition is submitted for decision. If
There are only a few cases that discuss this. The case that
the allegations in the petition are proven by substantial evidence,
discussed this the most perhaps, not only the technical discussion
the court shall grant the privilege of the writ and such reliefs as
of it but proprietary of it is the case of Sec of Defense vs Manalo.
may be proper and appropriate; otherwise, the privilege shall be
The SC upheld the petition and explained it. This is a new writ not
denied.
by the constitution but by the rules of court based on the issuance
SEC. 19. Appeal. – Any party may appeal from the final judgment of the SC to address the situations which would not have been
or order to the Supreme Court under Rule 45. The appeal may addressed by the current rules. Specifically, this has something to
raise questions of fact or law or both. do with the extralegal killings and forced disappearances.
The period of appeal shall be five (5) working days from the date Writ of habeas Corpus normally ends when the respondent
of notice of the adverse judgment. explains to the court that the person subject of the writ is not in
The appeal shall be given the same priority as in habeas corpus my custody. It usually ends there because the court cannot
cases. inquire further. If the respondent came to the court under oath,
makes a return and explains in the court that he is not under my
SEC. 20. Archiving and Revival of Cases. – The court shall not custody, the court cannot do anything but dismiss the petition
dismiss the petition, but shall archive it, if upon its determination against the respondent. In order to compel respondents in a writ
it cannot proceed for a valid cause such as the failure of of Habeas Corpus to do further or more than that, then the Writ
petitioner or witnesses to appear due to threats on their lives. Of Amparo was promulgated to address the situation not covered
A periodic review of the archived cases shall be made by the by writ of habeas corpus. Because in the Writ Of Amparo, the
amparo court that shall, motu proprio or upon motion by any respondents are required to make a return and explain to the
party, order their revival when ready for further proceedings. The court even if the person is not in their custody, what actions have
petition shall be dismissed with prejudice upon failure to they taken to ascertain the whereabouts of the person subject of
prosecute the case after the lapse of two (2) years from notice to the petition for Writ Of Amparo. So if there is violation of privacy,
the petitioner of the order archiving the case. liberty or security of persons then that can be a proper subject of
Writ Of Amparo.
The clerks of court shall submit to the Office of the Court
Administrator a consolidated list of archived cases under this Rule There are some cases in Writ Of Amparo which concerns property
not later than the first week of January of every year. rights. There was one case which involves writ of demolition
issued by the court by reason of a unlawful detainer case. Writ of
SEC. 21. Institution of Separate Actions. — This Rule shall not
execution and demolition has long been final and is about to be
preclude the filing of separate criminal, civil or administrative
executed, they filed Writ Of Amparo seeking protection. SC said
actions.
that Writ Of Amparo, what it is not is to protect a property right.
SEC. 22. Effect of Filing of a Criminal Action. – When a criminal so there is life, liberty, security. Life, there is nothing much to
action has been commenced, no separate petition for the writ discuss there because if you are dead then all your rights can no
shall be filed. The reliefs under the writ shall be available by longer be claimable. Liberty, your freedom to move, freedom to
motion in the criminal case. choose, freedom to whatever without fear of __. Security largely
is encapsulated in the phrase to be freed from any fear for any
The procedure under this Rule shall govern the disposition of the
violation to your right to life and or your right to liberty.These are
reliefs available under the writ of amparo.
in theory and are theoretical rights as to whether they can be
claimed eventually.

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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

There are a lot of cases where the SC said that Writ Of Amparo is respondent resides, or that which has jurisdiction over the place
not applicable, but as to when it is applicable that Manalo ruling where the data or information is gathered, collected or stored.
was the only one that it was. In that case of Fr. Reyes, the running
The writ of habeas data shall be enforceable anywhere in the
priest, upon the request of DOJ, a hold departure order was
Philippines.
issued. He filed a petition for Writ Of Amparo that an HDO is a
violation to his right of liberty. SC said it is not a violation simply Sec. 5. Docket Fees. - No docket and other lawful fees shall be
because it has nothing to do with the state-imposed sanction not required from an indigent petitioner. The petition of the indigent
imposed by the court. Meaning, if the violation perceived to your shall be docked and acted upon immediately, without prejudice
right to life, liberty or security is court sanctioned there is no such to subsequent submission of proof of indigency not later than
violation. It is again a limitation on the non judicial branches of fifteen (15) days from the filing of the petition.
government, specially the executive. It is not to state that there is
state sanctioned activity by law enforcement agents on enforced SEC. 6. Petition. - A verified written petition for a writ of habeas
disappearances or extralegal killings but it is somewhat anything data should contain:
of this which are court sanctioned are not proper to be subject for (a) The personal circumstances of the petitioner and the
petition of Writ Of Amparo. But those which are not court respondent;
sanctioned they can be proper for petition for Writ Of Amparo.
(b) The manner the right to privacy is violated or threatened and
WRIT OF HABEAS DATA how it affects the right to life, liberty or security of the aggrieved
party;
A. M. No. 08-1-16-SC January 22, 2008 THE RULE ON THE WRIT (c) The actions and recourses taken by the petitioner to secure
OF HABEAS DATA the data or information;
SECTION 1. Habeas Data. - The writ of habeas data is a remedy (d) The location of the files, registers or databases, the
available to any person whose right to privacy in life, liberty or government office, and the person in charge, in possession or in
security is violated or threatened by an unlawful act or omission control of the data or information, if known;
of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or (e) The reliefs prayed for, which may include the updating,
information regarding the person, family, home and rectification, suppression or destruction of the database or
correspondence of the aggrieved party. information or files kept by the respondent.

SEC. 2. Who May File. - Any aggrieved party may file a petition In case of threats, the relief may include a prayer for an order
for the writ of habeas data. However, in cases of extralegal enjoining the act complained of; and
killings and enforced disappearances, the petition may be filed (f) Such other relevant reliefs as are just and equitable.
by:
SEC. 7. Issuance of the Writ. - Upon the filing of the petition, the
(a) Any member of the immediate family of the aggrieved party, court, justice or judge shall immediately order the issuance of the
namely: the spouse, children and parents; or
writ if on its face it ought to issue. The clerk of court shall issue
(b) Any ascendant, descendant or collateral relative of the the writ under the seal of the court and cause it to be served
aggrieved party within the fourth civil degree of consanguinity or within three (3) days from the issuance; or, in case of urgent
affinity, in default of those mentioned in the preceding necessity, the justice or judge may issue the writ under his or her
paragraph; or own hand, and may deputize any officer or person serve it.

SEC. 3. Where to File. - The petition may be filed with the The writ shall also set the date and time for summary hearing of
Regional Trial Court where the petitioner or respondent resides, the petition which shall not be later than ten (10) work days from
or that which has jurisdiction over the place where the data or the date of its issuance.
information is gathered, collected or stored, at the option of the SEC. 8. Penalty for Refusing to Issue or Serve the Writ. - A clerk
petitioner.
of court who refuses to issue the writ after its allowance, or a
The petition may also be filed with the Supreme Court or the deputized person who refuses to serve the same, shall be
Court of Appeals or the Sandiganbayan when the action concerns punished by the court, justice or judge for contempt without
public data files of government offices. prejudice to other disciplinary actions.

SEC. 4. Where Returnable; Enforceable. - When the writ is issued SEC. 9. How the Writ is Served. - The writ shall be served upon
by a Regional Trial Court or any judge thereof, it shall be the respondent by a judicial officer or by a person deputized by
returnable before such court or judge. the court, justice or judge who shall retain a copy on which to
make a return of service. In case the writ cannot be served
When issued by the Court of Appeals or the Sandiganbayan or personally on the respondent, the rules on substituted service
any of its justices, it may be returnable before such court or any shall apply.
justice thereof, or to any Regional Trial Court of the place where
the petitioner or respondent resides, or that which has SEC. 10. Return; Contents. - The respondent shall file a verified
jurisdiction over the place where the data or information is written return together with supporting affidavits within five (5)
gathered, collected or stored. working days from service of the writ, which period may be
reasonably extended by the Court for justifiable reasons. The
When issued by the Supreme Court or any of its justices, it may return shall, among other things, contain the following:
be returnable before such Court or any justice thereof, or before
the Court of Appeals or the Sandiganbayan or any of its justices,
or to any Regional Trial Court of the place where the petitioner or
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From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

(a) The lawful defenses such as national security, state secrets, possibility of obtaining stipulations and admissions from the
privileged communications, confidentiality of the source of parties.
information of media and others; SEC. 16. Judgment. - The court shall render judgment within ten
(b) In case of respondent in charge, in possession or in control of (10) days from the time the petition is submitted for decision. If
the data or information subject of the petition; the allegations in the petition are proven by substantial evidence,
the court shall enjoin the act complained of, or order the
(i) a disclosure of the data or information about the petitioner, deletion, destruction, or rectification of the erroneous data or
the nature of such data or information, and the purpose for its information and grant other relevant reliefs as may be just and
collection; equitable; otherwise, the privilege of the writ shall be denied.
(ii) the steps or actions taken by the respondent to ensure the Upon its finality, the judgment shall be enforced by the sheriff or
security and confidentiality of the data or information; and, any lawful officers as may be designated by the court, justice or
(iii) the currency and accuracy of the data or information held; judge within five (5) working days.
and, SEC. 17. Return of Service. - The officer who executed the final
(c) Other allegations relevant to the resolution of the proceeding. judgment shall, within three (3) days from its enforcement, make
a verified return to the court. The return shall contain a full
A general denial of the allegations in the petition shall not be statement of the proceedings under the writ and a complete
allowed. inventory of the database or information, or documents and
SEC. 11. Contempt. - The court, justice or judge may punish with articles inspected, updated, rectified, or deleted, with copies
imprisonment or fine a respondent who commits contempt by served on the petitioner and the respondent.
making a false return, or refusing to make a return; or any person The officer shall state in the return how the judgment was
who otherwise disobeys or resist a lawful process or order of the enforced and complied with by the respondent, as well as all
court. objections of the parties regarding the manner and regularity of
SEC. 12. When Defenses May be Heard in Chambers. - A hearing the service of the writ.
in chambers may be conducted where the respondent invokes SEC. 18. Hearing on Officer’s Return. - The court shall set the
the defense that the release of the data or information in return for hearing with due notice to the parties and act
question shall compromise national security or state secrets, or accordingly.
when the data or information cannot be divulged to the public
due to its nature or privileged character. SEC. 19. Appeal. - Any party may appeal from the final judgment
or order to the Supreme Court under Rule 45. The appeal may
Sec. 13. Prohibited Pleadings and Motions. - The following raise questions of fact or law or both.
pleadings and motions are prohibited:
The period of appeal shall be five (5) working days from the date
(a) Motion to dismiss; of notice of the judgment or final order.
(b) Motion for extension of time to file return, opposition, The appeal shall be given the same priority as in habeas corpus
affidavit, position paper and other pleadings; and amparo cases.
(c) Dilatory motion for postponement; SEC. 20. Institution of Separate Actions. - The filing of a petition
(d) Motion for a bill of particulars; for the writ of habeas data shall not preclude the filing of
separate criminal, civil or administrative actions.
(e) Counterclaim or cross-claim;
SEC. 21. Consolidation. - When a criminal action is filed
(f) Third-party complaint; subsequent to the filing of a petition for the writ, the latter shall
be consolidated with the criminal action.
(g) Reply;
(h) Motion to declare respondent in default; When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of habeas data, the petition
(i) Intervention; shall be consolidated with the criminal action.
(j) Memorandum; After consolidation, the procedure under this Rule shall continue
to govern the disposition of the reliefs in the petition.
(k) Motion for reconsideration of interlocutory orders or interim
relief orders; and SEC. 22. Effect of Filing of a Criminal Action. - When a criminal
action has been commenced, no separate petition for the writ
(l) Petition for certiorari, mandamus or prohibition against any
shall be filed. The relief under the writ shall be available to an
interlocutory order.
aggrieved party by motion in the criminal case.
SEC. 14. Return; Filing. - In case the respondent fails to file a
The procedure under this Rule shall govern the disposition of the
return, the court, justice or judge shall proceed to hear the
reliefs available under the writ of habeas data.
petition ex parte, granting the petitioner such relief as the
petition may warrant unless the court in its discretion requires SEC. 23. Substantive Rights. - This Rule shall not diminish,
the petitioner to submit evidence. increase or modify substantive rights.
SEC. 15. Summary Hearing. - The hearing on the petition shall be SEC. 24. Suppletory Application of the Rules of Court. - The Rules
summary. However, the court, justice or judge may call for a of Court shall apply suppletorily insofar as it is not inconsistent
preliminary conference to simplify the issues and determine the with this Rule.

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CONSTITUTIONAL LAW 2 REVIEW
From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

SEC. 25. Effectivity. - This Rule shall take effect on February 2,


2008, following its publication in three (3) newspapers of general
circulation.

It is a petition not primarily with respect to one’s right to privacy


to life, liberty or security but rather on right to privacy of life,
liberty and security.

This has something to do with data that is gathered, recorded


and kept whether by private or public persons or personnel. Writ
of habeas data does not only seek to protect the privacy of
persons whose data or information are gathered, recorded or
kept but also to cause the correction of any false statement or
information in these data gathered, recorded and kept. You can
cause the correction of any information kept.

Again, this is to protect your privacy over these so that your right
to privacy over your life, liberty can be protected. Similarly, these
persons must inform the court what actions they have taken and
what action they intend to take with respect to these information
gathered, recorded and kept.

3) Compensation to, and rehabilitation of victims of tortures

Art III Sec 12 (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.

- END -

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