Group 6

Section 4, 5 and 6

Meaning of the Bill of Rights

1. From the foregoing, it is not difficult to understand that the Bill of Rights refers to the
declaration and enumeration of the fundamental civil and political rights of a person with the
primary purpose of safeguarding the person from violations by the government, as well as by
individuals and group of individuals. It includes the protection of the following rights:
(a) Civil rights or those rights belonging to individuals by virtue of their citizenship, such as
freedom to contract, right to property, and marriage among others;

(b) Political rights which are rights pertaining to the citizenship of the individual vis-à-vis the
administration of the government, such as right of suffrage right to hold office, and right to
petition for redress of wrong;

(c) Socio-economic rights or those which ensure the well-being and economic security of an
individual; and
(d) Rights of the accused which refer to protections given to the person of an accused in any
criminal case.

FREEDOM OF EXPRESSION

Meaning and Scope

1. Constitutional Provision. Section 4, Article III provides that “no law shall be passed
abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances.” The right
underscores tolerance to different views and thoughts.
2. Aspects of the Right. Freedom of expression has four aspects, to wit: (a) freedom of speech;
(b) freedom of expression; (c) freedom of the press; and (d) freedom of assembly. Nonetheless,
the scope of the protection extends to right to form associations or societies not contrary to law,
right to access to information on matters of public concern, and freedom of religion. These are
all crucial to the advancement of beliefs and ideas and the establishment of an “uninhibited,
robust and wide-open debate in the free market of ideas. “

3. Importance of the Right. Freedom of expression is accorded the highest protection in the Bill
of Rights since it is indispensable to the preservation of liberty and democracy. Thus, religious,
political, academic, artistic, and commercial speeches are protected by the constitutional
guarantee.

4. Limitation. The right is not absolute. It must be exercised within the bounds of law, morals,
public policy and public order, and with due regard for others’ rights. Thus, obscene, libelous,
and slanderous speeches are not protected by the guarantee. So are seditious and fighting words
that advocate imminent lawless conduct.

Freedom from Prior Restraint and Subsequent Punishment

1. Freedom of speech and of the press has two aspects: (a) freedom from prior restraint, and (b)
freedom from subsequent punishment.
2. On the one hand, freedom from prior restraint means freedom from censorship or
governmental screening of what is politically, morally, socially, and artistically correct. In here,
persons and the media are freed from total suppression or restriction by the government of what
could be disseminated, and prevents the government from being a subjective arbiter of what is
acceptable and not. Although the system of prior restraint is presumed unconstitutional, it is
allowed under the following instances:

(a) Undue utterances in time of war;

(b) Actual obstruction or unauthorized dissemination of military information;

(c) Obscene publication; and
(d) Inciting to rebellion.

3. On the other hand, freedom from subsequent punishment refers to the assurance that citizens
can speak and air out their opinions without fear of vengeance by the government. Subsequent
chastisement has the effect of unduly curtailing expression, and thus freedom therefrom is
essential to the freedom of speech and the press. The State, however, can validly impose
subsequent punishment under the following instances:
(a) Libel which is the most common form of subsequent punishment, refers to a public and
malicious imputation of a crime, vice or defect, real or imaginary or any act or omission, status
tending to cause dishonor, discredit or contempt of a natural or juridical person, or blacken the
memory of one who is dead;

(b) Obscenity which includes works (taken as a whole) appealing to prurient interest or
depicting sexual conduct as defined by law or lacking of serious literary, artistic, political or
scientific value;

(c) Criticism of official conduct made with actual malice ; and

(d) School articles which materially disrupt class work or involves substantial disorder or
invasion of rights of others.

Tests to Determine When Right Maybe Suppressed

There are six tests or rules to determine when the freedom may be suppressed. These are:
(1) Dangerous Tendency Test which provides that if a speech is capable of producing a
substantive evil which the State is mandated to suppress or prevent, even if it did not
materialize, the State is justified of restricting the right. This rule has already been abandoned;

(2) Clear and Present Danger Test which is a more libertarian rule, provides that the finding
out of substantive evil is not enough to suppress the right. Rather the substantive evil must have
clear and present danger type depending on the specific circumstances of the case. This rule is
consistent with the principle of “maximum tolerance” and is often applied by the Court in
freedom of expression cases;

(c) Balancing of Interest Test which provides that when there is conflict between a regulation
and freedom of speech, the court has the duty to determine which of the two demands greater
protection;

(d) Grave-but-Improbable Danger Test, which was meant to supplant the clear and present
danger test, determines whether the gravity of the evil, less its improbability to happen, can
justify the suppression of the right in order to avoid the danger;
(e) O’Brien Test which provides that when “speech” and “non-speech” elements are combined
in the same course of conduct, a sufficiently important government interest that warrants the
regulation of the “non-speech” element can also justify incidental limitations on the speech
element; and

(f) Direct Incitement Test which determines what words are uttered and the likely result of the
utterance, that is, whether or not they will directly incite or produce imminent lawless action.

Restrictions on Freedom of Speech

1. Two Kinds of Restrictions. The State may impose two kinds of restrictions on speech under a
system of prior restraint: content-based restriction and content-neutral restriction. The
restriction is content-based when restriction is directed to the speech itself, while the restriction
is content-neutral when it is directed, not to the speech itself, but to the incidents (such as time,
place, or manner) of the speech. An example of a content-based restriction is when the
government prohibits speeches against the President, in which case the restriction is on the
speech itself. An example of a content-neutral restriction is when the government regulates the
manner of posting campaign advertisements, in which case the restriction is on the manner the
right is made.
2. Appropriate Tests for Each Restriction. If the governmental restriction is content-based, the
applicable rule or test is the clear and present danger test. This is to give the government a
heavy burden to show justification for the imposition of such prior restraint which bears a heavy
presumption of unconstitutionality. If the restriction is content-neutral, the applicable rule is
only an intermediate approach, inasmuch as the restraint is only regulatory and does not attack
the speech directly.

3. Example. In one case, the court held that the act of granting a permit to rally under the
condition that it will be held elsewhere is a content-based restriction and not content-neutral
because it is directed to the exercise of the speech right itself and not merely to the manner. As
such, the applicable test is the clear and present danger test.

Regulations on Mass Media

Mass media may be broadcast media (e.g. television and radio) or print media (e.g. newspaper).
The two have a substantial difference in that broadcast media has a uniquely pervasive presence
in the lives of Filipinos. Thus, freedom of television and radio broadcasting is somewhat lesser
than the freedom accorded to the print media; greater regulation is imposed over broadcast
media because of its greater tendency to invade the privacy of everyone than print media.

Doctrine of Fair Comment

1. Meaning. Under the doctrine of fair comment, a discreditable imputation directed against a
public person in his public capacity, does not necessarily make one liable. Although generally
every discreditable imputation publicly made is deemed false and malicious because every man
is presumed innocent until proven guilty, nevertheless, if the imputation directed against a
person in his public is based on “established facts,” even if the inferred opinion is wrong, the
comments as justified. As long as the opinion might reasonably inferred from the facts, it is not
actionable. In order to that such discreditable imputation to a public official may be actionable,
it must either be a “false allegation” or a “baseless comment. “

2. Example. If a case of theft was filed against a barangay official, and someone commented
that he maliciously stole things from the local residents, the doctrine of fair comment is
applicable, inasmuch as the opinion was based on such fact. In here, the comment is justified.

Commercial Speech
1. Meaning. Commercial speech is one that proposes a commercial transaction done in behalf of
a company or individual for purposes of profit. It is a protected speech for as long as it is not
false or misleading and does not propose an illegal transaction.

2. But if the government has a substantial interest to protect, even a truthful and lawful
commercial speech may be regulated.

3. Private speech is accorded more freedom and protection than commercial speech.

Freedom of Assembly
1. Meaning. Freedom of assembly refers to the right to hold a rally to voice out grievances
against the government.

2. Freedom not Subject to Prior Restraint. As a rule, freedom of assembly is not subject to prior
restraint or prior issuance of permit by government authorities. Nevertheless, it must be
exercised in such a way that will not to prejudice public welfare. Freedom of assembly is
reinforced by Batas Pambansa Blg. 880, otherwise known as the Public Assembly Acts of 1985,
which basically provides the requirements and procedure for holding rallies. It also implements
the observance of “maximum tolerance” towards participants of rallies consistent with the clear
and present danger test.

3. Permit Requirement. Under the said law, permit is required to hold a rally. It must be
emphasized, however, that the permit is not a requirement for the validity of the assembly or
rally, because the right is not subject to prior restraint. Rather, the permit is a requirement for
the use of the public place.

4. When Permit not Required. Permit is not required if the rally is held in a private place, in a
campus of a state college or university, or in a freedom park, in which case only coordination
with the police is required. If the application for permit is not acted upon by the mayor within
two working days, then the same is deemed granted.

5. Political rally during election is regulated by the Omnibus Election Code, not by BP 880.

Right to Form Associations

1. Constitutional Provision. Section 8, Article III provides that “the right of the people,
including those employed in the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.”

2. Who may Exercise the Right. The right of association may be exercised by the employed or
the unemployed and by those employed in the government or in the private sector. It likewise
embraces the right to form unions both in the government and private sector. The right of civil
servants to unionize is expressly provided in Section 2(5), Article IX-B: “The right to self-
organization shall not be denied to government employees.” The right of labor in general to
unionize is likewise provided in Section 3, Article XIII: “[The State] shall guarantee the rights
of all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law.”
3. Right to Strike not Included. The right to form associations or to self-organization does not
include the right to strike. Thus, public school teachers do not enjoy the right to strike even if
they are given the constitutional right of association. The terms and conditions of employment
in the Government, including in any political subdivision or instrumentality thereof and
government owned and controlled corporations with original charters, are governed by law and
the employees therein shall not strike for purposes of securing changes.

Right to Information
1. Constitutional Provision. Section 7, Article III provides that “the right of the people to
information on matters of public concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.”

2. Scope and Limitation. The right guarantees access to official records for any lawful purpose.
However, access may be denied by the government if the information sought involves: (a)
National security matters, military and diplomatic secrets; (b) Trade or industrial secrets; (c)
Criminal matters; and (d) Other confidential information (such as inter-government exchanges
prior to consultation of treaties and executive agreement, and privilege speech).

FREEDOM OF RELIGION

Two Aspects of Freedom of Religion

1. Freedom of religion has two aspects: (a) the freedom to believe, and (b) the freedom to act on
one’s belief. The first aspect is in the realm of the mind, and as such it is absolute, since the
State cannot control the mind of the citizen. Thus, every person has the absolute right to believe
(or not to believe) in anything whatsoever without any possible external restriction by the
government. The aspect refers to the externalization of belief as it is now brought out from the
bosom of internal belief. Since it may affect peace, morals, public policy, and order, the
government may interfere or regulate such aspect of the right.
2. The second aspect is expressed in Section 5, Article III, thus “… The free exercise and
enjoyment of religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil or political
rights.”

Non-establishment Clause
1. Constitutional Provision. Section 5, Article III provides that “no law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof.”

2. Explanation. The non-establishment clause holds that the State cannot set up a church or pass
laws aiding one religion, all religion, or preferring one over another, or force a person to believe
or disbelieve in any religion. In order words, it prohibits the State from establishing an official
religion. It discourages excessive government involvement with religion and manifest support
to any one religious denomination. Manifestly, the clause is rooted in the principle of separation
of church and state.

3. Particular Prohibitions. In particular, the non-establishment clause prohibits, among others,

prayers of a particular denomination to start a class in public schools, financial subsidy of a
parochial school, display of the ten commandments in front of a courthouse, law prohibiting the
teaching of evolution, mandatory reading of the bible, and using the word “God” in the pledge
of allegiance.
4. Exceptions to the Prohibition. The clause, however, permits the following:

(a) Tax exemption on property “actually, directly and exclusively used” for religious purposes;
(b) Religious instruction in sectarian schools and expansion of educational facilities in parochial
schools for secular activities;

(c) Religious instruction in public schools, elementary and high school, at the option of parents
or guardians expressed in writing, within regular class hours by designated instructors, and
without additional costs to the government;
(d) Financial support given to priest, preacher, minister, or dignitary assigned to the armed
forces, penal institution or government orphanage or leprosarium;
(e) Government sponsorship of town fiestas which traditions are used to be purely religious but
have now acquired secular character ; and

(f) Postage stamps depicting Philippines as the venue of a significant religious event, in that the
benefit to religious sect is incidental to the promotion of the Philippines as a tourist destination.

Tests to Determine whether Governmental Act Violates Freedom of Religion

1. Different tests are used to determine if there are governmental violations of non-
establishment clause and free exercise clause. On the on hand, Lemon Test is used to determine
whether an act of the government violates the non-establishment clause. Under this test, a law
or a governmental act does not violate the clause when it has a secular purpose, does not
promote or favor any set of religious beliefs, and does not get the government too entangled
with religion.

2. On the other hand, Compelling State Interest Test and Clear and Present Danger Test are
used to determine whether there is violation of free-exercise clause. Compelling state interest
test is used to determine if the interests of the State are compelling enough to justify intrusion
into an individual’s freedom of religion. Under this test, government infringement is justified if
the burden it creates on freedom of religion is due to a sufficiently compelling state interest and
the means used to attain its purpose is the least intrusive. Clear and present danger test is used
to determine whether the circumstance are of such nature as to create a clear and present danger
that will bring about a substantive evil which the state has the right to prevent.

3, Example. In one case, the Court held that expulsion from school is unjustified if is based on
the conflict between religious beliefs and school practices (saluting the flag). The expulsion
violates the right of children to education. Using the clear and present danger test, the Court
held that the danger of disloyalty which the government is trying to prevent may be the very
same thing that it advocates if expulsion is validated. Times have changed. Freedom of religion
is now recognized as a preferred right.

Religious Solicitations
Under Presidential Decree No. 1564, also known as the Solicitation Law, permit is required
before solicitations for “charitable and public welfare purposes” may be carried out. The
purpose of the law is to protect the public from fraudulent solicitations. Nonetheless, permit is
no longer required if the solicitation is for “religious purposes.” Fraud is much less in religion.
If the law is extended to religion, then it becomes unconstitutional; it constitutes restriction on
freedom of religion as resources necessary for maintenance are deprived of churches.

Conscientious Objector Test

A conscientious objector is someone who sincerely claims the right to refuse to perform
military service and salute a flag on the grounds of freedom of thought, conscience, and/or
religion. He may be granted exemption from military service or from saluting the flag if he
establishes that his objection is “sincere,” based on “religious training and belief,” and not
arbitrary.

LIBERTY OF ABODE AND RIGHT TO TRAVEL

Freedom of Movement
1. Constitutional Provision. Section 6, Article III provides that “the liberty of abode and of
changing the same within the limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.”

2. Aspects of the Freedom. Freedom of movement has two aspects: (a) Freedom to choose and
change one’s domicile, and (b) Freedom to travel within and outside the country. A person’s
place of abode or domicile is his permanent residence.

Limitations
1. Freedom of movement is not an absolute right. It has limitations. Liberty of abode may be
impaired or restricted when there is a “lawful court order.”
2. The right to travel may also be restricted in interest of national security, public safety, or
public health, or when a person is on bail, or under a watch-list and hold departure order.

Right to Return to One’s Country

Although the right to return to one’s country is not among the rights expressly mentioned in the
Bill of Rights, it is nonetheless recognized and protected in the Philippines. It is a generally
accepted principle of international law, and as such it is part of the law of the land, pursuant to
the doctrine of incorporation. It is different from the right to travel and is guaranteed under the
International Covenant on Civil and Political Rights.