SEC. 3. (1) THE PRIVACY OF COMMUNICATION
It is
AND CORRESPONDENCE SHALL BE INVIOLABLE
EXCEPT UPON LAWFUL ORDER OF THE COURT,
OR WHEN PUBLIC SAFETY OR ORDER REQUIRES
OTHERWISE AS PRESCRIBED BY LAW.
(2) ANY EVIDENCE OBTAINED IN VIOLATION OF
THIS OR THE PRECEDING SECTION SHALL BE
INADMISSIBLE FOR ANY PURPOSE IN ANY
PROCEEDING.
Q. What is the reason for Section 3(1)?
A. When the 1935 Constitution was being
formulated, the controlling doctrine was that
the search and seizure clause did not prohibit
non-trespassory wiretaps. This was the doctrine
established in 1928 in Olmstead v. United
States, 277 U.S. 438 (1928). Briefly, the
argument in Olmstead was that where there is
no physical trespass there is no search, and
where the object is not tangible it cannot be
seized. The "tangibles only" rule was anchored
on the text of the Fourth Amendment which
enumerates tangibles: house, person, papers,
effects. Id. at 464-465. The framers of the 1935
Constitution were quite aware of the Olmstead
doctrine and their realization of the inadequacy
of the search and seizure clause as a protection
for personal privacy must have at least partly
motivated the adoption of the privacy provision.
It has no counterpart in the American
Constitution nor in earlier Philippine organic
law. In effect, the privacy provision anticipated
future development of American jurisprudence,
for in 1967 Katz v. United States, 389 U.S. 347
(1967) overruled the Olmstead doctrine and
placed wiretapping, with or without physical
trespass, under the ban of the search and
seizure clause.
Q. What forms of correspondence and
communication are covered by this provision?
A. It covers letters, messages, telephone calls,
telegrams, and the like.
Q. When is intrusion into the privacy of
communication and correspondence allowed?
A. It is allowed "upon lawful order of the court,
or when public safety or order requires
otherwise as prescribed by law."
Q. Upon what grounds may a court allow
intrusion?
A. The text does not give any ground.
submitted that the requirement of probable
cause in the preceding section should be
followed. After all, as may be seen in the
development of American jurisprudence on the
subject, the privacy right is but an aspect of the
right to be secure in one's person. Cf. Material
Distributor Inc. v. Natividad, 84 Phil. 127,136
(1949).
Q. Should the order also particularly describe
the communication or correspondence sought
to be seized?
A. When the correspondence soiight is written
correspondence, it would seem that there
should be no inconvenience in requiring
particularity of description. But if the intrusion
is to be done through wiretaps, how is the
description to be made? Evidently, it would be
impossible to describe the contents of a
communication that has not yet been made.
Hence, it would be unreasonable to require a
description of the contents of the
communication. But the identity of the person
or persons whose communication is to be
intercepted, and the identity of offense or
offenses sought to be prevented, and the period
of the authorization given can be specified. In
fact, an attempt in this direction is made by
Section 3 of R.A. 4200, the Anti- Wiretapping
Law, and similar safeguards are also found in
Title III of the Omnibus Crime Control and Safe
Streets Act, 18 U.S.C. Section 2518, which was
discussed in the wiretapping case of United
States v. U.S. Districts Ct., Eastern Michigan, 40
LW 4761 (1972).
Q. What are the requisites when intrusion is
made without judicial order? Gii
A. When intrusion is made without a judicial
order, it would have to be based upon a
government official's assessment that public
safety and order demand such intrusion. In
addition to what has been said about what
transpired at the 1935 Convention, it was also
made clear in the 1972 Convention that an
executive officer can order intrusion when in his
judgment and even without prior court
approval he believes that public safety or order
so requires. And public order and safety were
defined as 'the security of human lives, liberty
and property against the activities of invaders,
insurrectionists, and rebels." 1971
Constitutional Convention, Session of
November 25,1972. The discretion of the public
officer, moreover, must be exercised "as
prescribed by law." This is a phrase added to
the 1973 version by the new Constitution. It
should also be added that the exercise of this
power by an executive officer is subject to
judicial review. Moreover, other than the
President who may be deemed to have this
power because under the Constitution he is
charged with the exercise of executive power,
other executive officers should first be properly
authorized. To hold otherwise would be to opt
for a government of men and not of laws. Every
police agent would feel authorized to snoop.
Q. Is there any implementing statute covering
this subject?
A. Yes. R.A. 4200 known as the Anti-
Wiretapping Law provides penalties for specific
violations of private communication. Note that
Section 3 of the Act allows court- authorized
taps, under specific conditions, for the crimes of
"treason, espionage, provoking war and
disloyalty in case of war, piracy, mutiny in the
high seas, rebellion, conspiracy and proposal to
commit rebellion, inciting rebellion, sedition,
conspiracy to commit sedition, inciting to
sedition, kidnapping."
Q. What is the effect of violation of Sections 2
and 3(1)?
A. "Any evidence obtained . . . shall be
inadmissible for any purpose in any
proceeding." As already discussed in the
preceding section, however, this defense is
purely personal.
Q. Mr. Job Reyes, proprietor of Manila Packing
and Export Forwarders, a private firm, opened
boxes of Andre Martin for final inspection as
part of standard operating procedure before
delivery to the Bureau of Posts or Bureau of
Customs. Reyes found dried marijuana leaves
inside and took samples to the NBI, who verified
thai'the dried leaves were marijuana leaves. An
information was filed against Martin for
violation of RA 6425, or the Dangerous Drugs
Act. Martin says that the marijuana leaves are
fruits of an illegal search and therefore under
the exclusionary rule of Section 3(2) of the Bill
of Rights. Can an act of a private individual,
allegedly in violation of appellant's
constitutional rights, be invoked against the
State?
A. No. In the absence of governmental
interference, the constitutional right against
unreasonable search and seizure cannot be
invoked against the State. "[T]he protection
against unreasonable search and seizure cannot
be extended to acts committed by private
individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government."
People v Andre Marti, G.R. No. 81561,18
January 1991.
Q. Are firearms which have been illegally seized
in a"zona" admissible in evidence?
A. No. "Pending determination of the legality of
such articles, however, they shall remain in
custodia legis, subject to such appropriate
disposition as the corresponding courts may
decide." Alih v. Castro, 151 SCRA 279 (1987).
NOTE: Section 26, Rule 114 of the Revised Rules
in Criminal Procedure says that an application
for bail or the admission to bail by an accused is
not considered a waiver of his right to assail the
warrant issued for his arrest or the legalities or
irregularities thereof. This is a new rule
intended to modify previous rulings of this
Court. The new rule is curative in nature
because precisely, it is designed to supply
defects and curb evils in procedural rules.
Okabe v. Judge de Leon, G.R. No. 150185, May
27,2004.
But it is long settled that where the accused, by
his voluntary submission to the jurisdiction of
the court, as shown by the counsel-assisted plea
he entered during the arraignment and his
active participation in the trial thereafter,
voluntarily waives his constitutional protection
against illegal arrests and searches. We have
consistently ruled that any objection concerning
the issuance or service of a warrant or a
procedure in the acquisition by the court of
jurisdiction over the person of the accused must
be made before he enters his plea, otherwise,
the objection is deemed waived. People v.
Rivera, G.R. No.177741, August 27^009.
SEC. 4. No LAW SHALL BE PASSED ABRIDGING
THE FREEDOM OF SPEECH, OF EXPRESSION, OR
OF THE PRESS, OR THE RIGHT OF THE PEOPLE
PEACEABLY TO ASSEMBLE AND PETITION THE
GOVERNMENT FOR REDRESS OF GRIEVANCES.
Q. What do "speech," "expression," and "press"
include?
A. Speech, expression, and press include every
form of expression, whether oral, written, tape
or disc recorded. It also includes movies as well
as what is referred to as symbolic speech sucha
s the wearing of an armband as a symbol of
protest. Peaceful picketing has also been
included within the meaning of speech.
No prior restraint
Q. What is the first prohibition of the free
speech and press clause?
A. The first prohibition of the constitutional
provision is a prohibition of prior restraint. Prior
restraint means official government restrictions
on the press or other forms of expression in
advance of actual publication or dissemination.
Its most blatant form is a system of licensing
administered by an executive officer. Movie
censorship, although not placed on the same
level as press censorship, also belongs to this
type of prior restraint. Also similar to the
licensing system is judicial prior restraint which
takes the form of an injunction against
publication. Equally objectionable as prior
restraint are license taxes measured by gross
receipts for the privilege of engaging in the
business of advertising in any newspaper or flat
license fees for the privilege of selling religious
books.
Q. The offices of the WE FORUM , were
searched and closed on the basis of an invalid
warrant. Comment.
A. "Such closure is in the nature of previous
restraint or censorship abhorrent to the
freedom of the press guaranteed under the
fundamental law, and constitutes virtual denial
of petitioners' freedom to express themselves in
dissent." Burgos, Sr. v. Chief of Staff, AFP, 133
SCRA 800 (1984) See also Corro v. Lising, 137
SCRA 541 (July 15,1985).
NOTE: Another case of violation of freedom of
expression through the harassment of media
was the summons the military sent to several
women in media. The Court, however, did not
pass judgment on the case but instead
considered it moot since the military had
discontinued the interviews. See Babst v.
National Intelligence Board, 132 SCRA 316
(September 28,1984).
The warning on media against airing the alleged
wiretapped conversation between the President
and other personalities constitute
unconstitutional prior restraint on the exercise
of freedom of speech and of the press. Chavez
v. Gonzales, G.R. No. 168338, February 15,
2008.
Q. Is the prohibition of "prior restraint"
absolute?
A. No. Although any system of prior restraint
comes to court bearing a heavy presumption
against its constitutionality, New York Times v.
United States, 403 U.S. 713 (1971), there are
exceptions to the rule. Near v. Minnesota, 283
U.S. 697 (1931), enumerates them thus:
"When a nation is at war, many things that
might be said in time of peace are such a
hindrance to its effort that their utterance will
not be endured so long as men fight and that no
court could regard them as protected by any
constitutional right." No one would question
but that government might prevent actual
obstruction to its recruiting service or the
publication of the sailing dates of transports or
the number and location of troops. On similar
grounds, the primary requirements of decency
may be enforced against obscene publications.
The security of the community life may be
protected against incitements to acts of
violence and the overthrow by force of orderly
government.
Q. Does the Comelec's power, under IX, C, 4, to
regulate time in broadcast media and space in
the papers violate freedom of expression?
A. No. The effect of the provision is to create
"an exception to freedom-of-speech-and-press
clause on account of considerations more
paramount for the general welfare and public
interest, which exceptions after all would
operate only during limited periods, that is,
during the duration of the election campaign
filed in the charter itself and/or by law." UNIDO
v. Comelec, 104 SCRA 17,38 (April 3,1981);
National Press Club v. Commission on Elections,
207 SCRA 1 (1992)
Q. As a measure of electoral reform, Republic
Act 6646, Section 11(b) made it unlawful "for
any newspaper, radio broadcasting or television
station, other mass media, or any person
making use of the mass media to sell or to give-
free of charge print space or air time for
campaign or other political purposes except to
the Commission as provided under Section 90
and 92 of Batas Pambansa Big. 881." Batas Big.
881 had also commanded the Commission to
procure print space and broadcast time to be
allocated impartially among the candidates. Is
such law valid?
A. This law has since been repealed. But the
reasoning behind the decision which upheld it
remains valid. In upholding the reasonableness
of the provisions National Press Club v.
Commission on Elections, 207 SCRA 1 (1992),
said that the objective of the prohibition was
the equalizing, as far as practicable, of the
situation of rich and poor candidates by
preventing the former from enjoying undue
advantage offered by huge campaign "war
chests." The Court said that the provision on
freedom of expression must be read in
conjunction with the power given to the
Commission on Elections to supervise and
regulate media during elections as well as with
the various provisions in the Constitution which
place a high premium on equalization of
opportunities.
Q. Relying on Section 11 of Republic Act 6646,
the Comelec prohibited the posting of decals
and stickers of candidates on "mobile" places,
public or private. Valid?
A. Adiong v. Commission on Elections, 207 SCRA
712 (1992) declared Section 11 invalid ,f<?r
infringing freedom of speech and for being an
undue delegation of rule making authority. The
prohibited acts were found to present no
substantial danger to government interest. The
prohibition therefore did not satisfy the
requirements of the clear and present danger
rule. Moreover, the prohibition was found to
suffer from over "breadth." It encompassed the
use of privately owned property such as a
vehicle. It therefore was an unreasonable
restriction on the use of property. Finally, the
constitutional objective to give rich and poor
candidates equal opportunity was not seen as
served by the prohibition of decals.
Q. In the exercise of its authority to regulate the
holders of media franchises during the election
period the Comelec banned "exit polls." It
contends that "an exit poll has the tendency to
sow confusion considering the randomness of
selecting interviewees, which further make[s]
the exit poll highly unreliable. The probability
that the results of such exit poll may not be in
harmony with the official count made by the
Comelec... is ever present.." Valid?
A. Exit polls, i.e., random polling of voters as the
come out of the booths, and the dissemination
of their results through mass media constitute
an essential part of the freedoms of speech and
of the press. Hence, the Comelec cannot ban
them totally in the guise of promoting clean,
honest, orderly and credible elections. The ban
does not satisfy the clear and present danger
tale because the evils envisioned are merely
speculative. ABS-CBN v. Comelec, G.R. No.
133486, January 28,2000.
Q. Section 1 of R.A. 9006, the Fair Election Act,
says: "Surveys affecting national candidates
shall not be published fifteen (15) days before
an election and surveys affecting local
candidates shall not be published seven (7) days
before an election." The provision as well as the
implementing resolution of the Comelec is
challenged as violative of freedom of
expression. The Comelec, however, justifies the
rule as necessary to prevent the manipulation
and corruption of electoral process by
unscrupulous and erroneous surveys just before
election. Decide.
A. As prior restraint, the rule is presumed to be
invalid. The power of the Comelec over media
franchises is limited to ensuring "equal
opportunity, time, space and the right to reply"
as well as to reasonable rates of charges for the
use of media facilities for "public information
and forums among candidates." Here the
prohibition of speech is direct, absolute and
substantial. Nor does the rule pass the &Brien
test for content related regulation because (1) it
suppresses one type of expression while
allowing other types such as editorials, etc. and
(2) the restriction is greater than what is
needed to protect government interest because
the interest can be protected by narrower
restriction such as subsequent punishment.
SWS v. Comelec, G.R. 147571, May 5, 2001.
Q. Newsounds had been operating a radio
station in Cauayan, Isabela. When renewal of
the permit was sought to continue operation in
the same place, he was denied on the basis of a
zoning ordinance. Was this a form of regulation
of speech?
A. Jurisprudence distinguishes between a
content-neutral regulations, i.e., merely
concerned with the incidents of the speech, or
one that merely controls the time, place or
manner, and under well- defined standards; and
a content-based restraint or censorship, i.e., the
restriction based on the subject matter of the
utterance or speech. Content-based laws are
generally treated as more suspect than content-
neutral laws because of judicial concern with
discrimination in the regulation of expression.
Content-neutral regulations of speech or of
conduct that may amount to speech, are
subject to lesser but still heightened scrutiny.
Ostensibly, the ordinance was a content neutral
zoning ordinance. However, under the
circumstances of the case, the real purpose of
the ordinance was to silence the station which
had been a strong critic of the local
administration. The ordinance therefore must
be viewed as a content-based regulation.
Newsounds Broadcasting v. Dy, G.R. Nos.
170270 & 179411, April 2,2009.
NOTE: Section 79(a) of the Omnibus Election
Code defines a "candidate" as "any person
aspiring for or seeking an elective public office,
who has filed a certificate of candidacy x x x."
The second sentence, third paragraph, Section
15 of RA 8436, as amended by Section 13 of RA
9369, provides that "[a]ny person who files his
certificate of candidacy within [the period for
filing] shalLoniy be considered as a candidate at
the start of tfift period for which he filed his
certificate of candidacy." The immediately
succeeding proviso in the same third paragraph
states that "unlawful acts or omissions
applicable to a candidate shall take effect only
upon the start of the aforggnifl campaign
period." These two provisions determine the
resolution of this case. This means that outside
of these conditions a person's right to campaign
is protected by the freedom of speech clause.
Penera v. Comelec, G.R. No. 181613, November
25, 2009, reversing an earlier decision.
Q. Since movie censorship is a form of prior
restraint, how can it escape unconstitutionality?
A. The U.S. Supreme Court ruled in Freedman u.
Maryland, 380 U.S. 51 (1965): [W]e hold that a
non-criminal process which requires prior
submission of a film to a censor avoids
constitutional infirmity only if it takes place
under procedural safeguards designed to
obviate dangers of a censorship system. First,
the burden of proving that the film is
unprotected expression must rest on the
censor... Second,... the requirement cannot be
administered in a manner which would lend an
effect of finality to the censor's determination...
The teaching of our cases is that, because only a
judicial determination in an adversary
proceeding ensures the necessary sensitivity to
freedom of expression, only a procedure
requiring a judicial determination suffices to
impose a valid fined restraint... To this end, the
exhibitor must be assured, by statute or
authoritative judicial construction, that the
censor will, within a specified brief period,
either issue a license or go to court to restrain
showing the film. Any restraint imposed in
advance of a final judicial determination on the
merits must similarly be limited to preservation
of the status quo for the shortest fixed period
compatible with sound judicial resolution.
Moreover,... the procedure must also assure a
prompt judicial decision, to minimize the
deterrent effect of an interim and possibly
erroneous denial of a license.
Q. Do we follow Freedman v. Maryland?
A. Our Court, has held that, while Freedman has
a lot to commend itself, "we are not ready to
hold that it is unconstitutional for Congress to
grant an administrative body quasi-judicial
power to preview and classify TV programs and
enforce its decision subject to review by our
courts." Iglesia ni Kristo v. Court of Appeals, G.R.
119673, July 26,1996.
Q. Respondents claim that the television
program "The Inside Story" is a "public affairs
program, news documentary and socio-political
editorial," the airing of which is protected by
the constitutional provision on freedom of
expression and of the press and therefore not
subject to prior review before showing.
A. Albeit, respondent's basis is not freedom of
religion, as in Iglesia ni Crista, but freedom of
expression and of the press, the ruling in Iglesia
ni Cristo applies squarely to the instant issue. It
is significant to note that in Iglesia ni Cristo, this
Court declared that freedom of religion has
been accorded a preferred status by the
framers of our fundamental laws, past and
present, "designed to protect the broadest
possible liberty of conscience, to allow each
man to believe as his conscience directs x x x."
Yet despite the fact that freedom of religion has
been accorded a preferred status, still this
Court, did not exempt the Iglesia ni Cristo's
religious program from petitioner's review
power. MTRCB v. ABS-CBN, G.R. No. 155282,
January 17,2005.
Q. May live tv coverage of a criminal trail be
prohibited?
A. With the possibility of losing not only the
precious liberty but also the very life of an
accused, it behooves all to make absolutely
certain that an accused receives a verdict solely
on the basis of a just and dispassionate
judgment, a verdict that would come only after
the presentation of credible evidence testified
to by unbiased witnesses unswayed by any kind
of pressure, whether open or subtle, in
proceedings that are devoid of histrionics that
might detract from its basic aim to ferret
veritable facts free from improper influence,
and decreed by a judge with an unprejudiced
mind, unbridled by running emotions or
passions. Re: request for Radio-TV Coverage of
the Estrada Trial, AM. No. 01-4-03-SC. June
29,2001
Q. Does every form of speech enjoy the same
degree of protection?
A. No. The doctrine on freedom of speech was
formulated primarily for the protection of
"core" speech, i.e., speech which communicates
political, social or religious ideas. These enjoy
the same degree of protection. Commercial
speech, however, does not. Commercial speech
Q. What is the meaning of commercial speech?
A. It is communication which "no more than
proposes a commercial transaction."
Advertisement of goods or of services is an
example.
Q. In order for government to curtail
commercial speech what must be shown? 0J
A. To enjoy protection, commercial speech must
not be false or misleading Friedman v. Rogers,
440 U.S. 1 (1979) and should not propose an
illegal transaction. Pittsburgh Press Co. v.
Human Relations Commission, 413 U.S. 376
(1973). However, even truthful and lawful
commercial speech may be regulated if (1)
government has a substantial interest to
protect; (2) the regulation directly advances
that interest; and (3) it is not more extensive
than is necessary to protect that interest.
Central Hudson Gas & Electric Corp. v. Public
Service Commission of NY, 447 U.S. 557 (1980).
Subsequent punishment
Q. What is the second basic prohibition of the
free speech and press clause?
A. The free speech and press clause also
prohibits systems of subsequent punishment
which have the effect of unduly curtailing
expression. For, indeed, if prior restraint were
all that the constitutional guarantee prohibited
and government could impose subsequent
punishment without restraint, freedom of
expression would be a mockery and a delusion.
Q. What are the standards for allowable
subsequent punishment of expression?
A. Since freedom of expression ranks in the
hierarchy of constitutional rights higher than
property, Salonga v. Pano, 134 SCRA 438
(February 18,1985), the norms for the
regulation of expression place more stringent
limits on state action. Jurisprudence has
evolved three tests: (1) the dangerous tendency
test; (2) the clear and present danger test; (3)
the balancing of interests test. Of these, the
second and third are in favor.
Q. What is the dangerous tendency rule?
A. In the early stages of Philippine
jurisprudence, the accepted rule was that
speech may be curtailed or punished when it
"creates a dangerous tendency which the State
has the right to prevent." This standard has
been labeled the "dangerous tendency" rule. All
it requires, for speech to be punishable, is that
there be a rational connection between the
speech and the evil apprehended.
Q. Give an example of the application of the
dangerous tendency rule.
A. In a political discussion held at a town
municipio, citizen Perez made this remark: "And
the Filipinos, like myself, must use . bolos for
cutting off Wood's head for having
recommended a bad thing for the Philippines."
Prosecuted for seditious speech, Perez was
convicted. "Criticism," Justice Malcolm said for
the Court, "no matter how severe, on the
Executive, the Legislature, and the Judiciary, is
within the range of liberty of speech, unless the
intention and effect be seditious." Such
apparently, in the judgment of the Court were
the intention and effect of Perez' remarks.
Malcolm found in them "a seditious tendency"
which could easily produce disaffection among
the people and a state of feeling incompatible
with a disposition to remain loyal to the
Government and obedient to the laws." People
v. Perez, 45 Phil. 599 (1923).
Q. Espiritu, in a gathering of drivers and
sympathizers at the corner of Valencia Street
and Magsaysay Boulevard, said, among others:
"Bukas tuloy ang welga natin . . . hanggang sa
magkagulo na." Later, at a conference at the
National Press Club he called for a nationwide
strike. He was arrested, without warrant, for
inciting to sedition. Was the arrest valid?
A. Yes. People may differ as to the criminal
character of the speech, which at any rate will
be decided in court. But for purposes of the
arrest, not for conviction, there was sufficient
ground for the officer to believe that Espiritu
was in the act of committing a crime. For
purposes of arrest, the law tilts in favor of
authority. Espiritu v. General Lim, G.R. No.
85727, October 3,1991. But see dissents.
Q. State and explain the clear and present
danger rule.
A. The rule was formulated by Justice Holmes in
Schenck v. United States, 249 U.S. 47 (1919)
thus: "The question in every case is whether the
words used are used in such circumstances and
are of such a nature as to'fereate a clear and
present danger that they will bring about the
substantive evils that Congress has a right to
prevent. It is a question of proximity and
degree." As the Supreme Court was later on to
explain in Dennis v. United States, 341 U.S.
494,509 (1951):
Obviously, the words cannot mean that before
the Government may act, it must wait until the
putsch is about to be executed, the plans have
been laid and the signal is awaited. If the
Government is aware that a group aiming at its
overthrow is attempting to indoctrinate its
members and to commit them to a course
whereby they will strike when the leaders feel
the circumstances.
Q. Explain the balancing of interests test.
A. Professor Kauper explained the rule thus:
The theory of balance of interests represents a
wholly pragmatic approach to the problem of
First Amendment freedom, indeed, to the
whole problem of constitutional interpretation.
It rests on the theory that it is the Court's
function in the case before it when it finds
public interests served by legislation on the one
hand and First Amendment freedoms affected
by it on the other, to balance the one against
the other and to arrive at a judgment where the
greater weight shall be placed. If on balance it
appears that the public interest served by
restrictive legislation is of such a character that
it outweighs the abridgment of freedom, then
the Court will find the legislation valid. In short,
the balance-of-igjterests theory rests on the
basis that constitutional freedoms are nqt
absolute, not even those stated in the First
Amendment, and that they may be abridged to
some extent to serve appropriate and
important interests. Cited in Gonzales v.
Comelec, 27 SCRA 835,899 (1969).
Q. What is the special usefulness of the
balancing of interests test?
A. The dangerous tendency rule and the clear
and present danger rule were evolved in the
context of prosecution for seditious speech.
They are thus couched in terms of degree of evil
and proximity of the evil. But not all evils easily
lend themselves, like sedition, to measurement
of proximity and degree. For legislation
therefore whose object is not the prevention of
evil measurable in terms of proximity and
degree, another test had to be evolved. The
balancing of interests test serves the purpose. It
is used, for instance, for commercial speech.
Q. Give an example of the application of the
balancing of . interests test.
A. Republic Act No. 4880 among other things
prohibits the too early nomination of political
candidates and limits the period for partisan
political activity. Its purpose is to prevent the
debasement of the political process. In
determining the validity of the law, free speech
as a social value must be weighed against the
political process as a social value. Castro
Gonzales v. Comelec, 27 SCRA 835 (1969).
Similarly, in the case of Lagunzad v. Soto Vda.
de Gonzales, 92 SCRA 476,488-9 (L-32066,
August 6,1979), where there was conflict
between the right of the family of the late
Moises Padilla to have their privacy protected
and the right of a writer to write about a public
figure like Moises Padilla, the Court applied the
balancing of interests test and held in favor of
the family's right to have their privacy
protected. Hence, the licensing agreement
which required compensation to the family was
upheld as valid.
Q. Which test has found preference with the
Supreme Court?
A. It should be noted that between the
dangerous tendency rule and the clear and
present danger rule, the difference is chiefly
one of degree. Hence, it is difficult to speak of
preferences independently of the factual
context. This much, however, may be said, that
in early speech cases involving incitement to
sedition, an analysis of Supreme Court decisions
yields a language that favors the more
restrictive dangerous tendency rule. See People
v. Perez, 45 Phil. 599 (1923); People v. Feleo, 57
Phil. 451 (1932); People v. Evangelista, 57 Phil.
354 (1932); Espuelas v. People, 90 Phil. 524
(1951).
In cases of contempt of the Supreme Court, the
only test conclusively established by the
Supreme Court is the "dangerous tendency"
rule; however, in certain cases involving
contempt of inferior courts, the "clear and
present danger" rule has also been given at
least a nodding assent. Bernas,
CONSTITUTIONAL RIGHTS AND DUTIES, 181-
192. With the restoration of democracy, the
clear and present danger test is again coming
into favor. Eastern Broadcasting Corp. v. Dans,
Jr., 137 SCRA 628 (July 19,1985).
Q. Enrile seeks to enjoin the movie company
from producing "The Four Day Revolution," a
dramatization of the February 1986 revolution,
for public showing, on the ground that it would
violate his right to privacy. Decide.
A. Motion pictures are protected medium for
the communication of ideas and the expression
of the artistic impulse. This freedom is available
to both local and foreign owned production
companies even if they are commercial. Indeed
there is such a thing as the right to privacy. But
this cannot be invoked to resist publication of
matters of public interest. What the right to
privacy protects is the right against
unwarranted intrusions and wrongful
publication of the private affairs and activities of
individuals which are outside the sphere of
legitimate public concern. Enrile's role in that
revolution is a matter of public interest because
he was a principal figure in that event. Ayer
Productions Pty. Ltd. v. Judge Capidong, 160
SCRA 861 (1988).
Q. On the occasion of the ratification campaign
for the Autonomy Act for the Cordillera, the
COMELEC issued a resolution prohibiting
columnists, commentators, and announcers
from using their columns or radio or television
time to campaign for or against the plebiscite
during the period of the campaign. Valid?
A. The resolution is unconstitutional. The
authority given by the Constitution is over
holders of franchises. The purpose is to assure
candidates equal opportunity and equal access
to media. Sanidad is not a candidate and in fact
in a plebiscite there are no candidates.
Plebiscite issues are matters of public concern
and the people's right to be informed must be
preserved. Moreover, the people's choice of
forum for discussion should not be restricted.
Sanidad v. COMELEC, G.R. No. 90878, January
29,1990.
Symbolic speech
Q. O'Brien burned his Selective Service
registration certificate before a sizable crowd in
order to influence others to adopt his anti-war
beliefs. He was indicted, tried, and convicted for
violating 50 U.S.C.App. § 462(b), a part of the
Universal Military Training and Service Act.
O'Brien argued that the law violated his
freedom of speech. Decide.
A. When "speech" and "nonspeech" elements
are combined in the same course of conduct, a
sufficiently important governmental interest in
regulating the nonspeech element can justify
incidental limitations on free speech. A
governmental regulation is sufficiently justified
if (1) it is within the constitutional power of the
Government and (2) furthers an important or
substantial governmental interest unrelated to
the suppression.
SEC. 5. No LAW SHALL BE MADE RESPECTING
AN ESTABLISHMENT OF RELIGION, OR
PROHIBITING THE FREE EXERCISE THEREOF.
THE FREE EXERCISE AND ENJOYMENT OF
RELIGIOUS PROFESSION AND WORSHIP,
WITHOUT DISCRIMINATION OR PREFERENCE,
SHALL FOREVER BE ALLOWED. NO RELIGIOUS
TEST SHALL BE REQUIRED FOR THE EXERCISE
OF CIVIL OR POLITICAL RIGHTS.
Q. What are the two principal parts of Section
5?
A. They are (1) the non-establishment clause
and (2) the free exercise clause. The first
prohibits the establishment of any religion and
the second guarantees the free exercise of
religion.
Q. Are there other provisions in the Constitution
expressing the non-establishment principle?
A. Yes. Article VI, Section 29(2) says: "No public
money or property shall be appropriated,
applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian
institution, or system of religion, or of any
priest, preacher, minister, or other religious
teacher or dignitary as such, except when such
priest, preacher minister, or dignitary is
assigned to the Armed Forces, or to any penal
institution, or government orphanage or
leprosarium." And Article II, Section 6 says: "The
separation of Church and State shall be
inviolable." Along this line too is the provision
which prohibits religious denominations and
sects from being registered as political parties
or organizations. Article IX, C, Section 2(5).
Q. What is the purpose of the non-
establishment clause?
A. While there is no unanimity in the
interpretation of non- establishment as a
political principle, there is substantial
agreement on the values non-establishment
seeks to protect. These are two: voluntarism
and insulation of the political process from
interfaith dissension.
Voluntarism as a value is both personal and
social. As a personal value, it is nothing more
than the inviolability of the human conscience
which is also protected by the free exercise
clause. As a social value, protected by the non-
establishment clause, it means that the growth
of a religious sect as a social force must come
from the voluntary support of its members
because of the belief that both spiritual and
secular society will benefit if religions are
allowed to compete on their own intrinsic merit
without benefit of official patronage. Such
voluntarism cannot be achieved unless the
political process is insulated from religion and
unless religion is insulated from politics. Non-
establishment assures such insulation and
thereby prevents interfaith dissention.
Non-establishment of religion
Q. What is the meaning of the non-
establishment clause?
A. Board of Education v. Everson, 330 U.S. 1, 15-
16 (1946) interpreted the clause thus: Neither a
State nor the Federal Government can set up a
church. Neither can pass laws which aid one
religion, aid all religions, or prefer one religion
over another...
Neither... can, openly or secretly, participate in
the affairs of riiiy religious organizations or
groups and vice versa. In the words of Jefferson,
the clause against establishment of religion by
law was intended to erect "a wall of separation
between Church and State."
Yet, despite this absolutist language, the
Everson Court upheld a statute authorizing local
districts to reimburse parents of Catholic school
children for the cost of bus transportation to
and from parochial school.
Q. If, as jurisprudence indicates, the non-
establishment clause does not prohibit all
government aid that might redound to the
benefit of religion, how does one distinguish
allowable from non-allowable aid?
A. To be allowable, government aid (1) must
have a secular legislative purpose; (2) must
have a primary effect that neither advances nor
inhibits religion; (3) must not require excessive
entanglement with recipient institutions.
Thus, state sponsored Bible readings and
prayers in public schools have been invalidated
for violation of (1) and (2). School District v.
Schempp, 374 U.S. 203 (1963). On the other
hand, the lending of secular textbooks to
parochial school children and the grant of
construction aid for science buildings have been
allowed as satisfying (1) and (2). Board of
Education v. Allen, 392 U.S. 236 (1968); Lemon
v. Kurtzman, 403 U.S. 602 (1971); Tilton v.
Richardson, 403 U.S. 672 (1971). Similarly, our
Court has allowed the issuance of religious
commemorative stamps as giving merely
incidental benefits to religion. Aglipay v. Ruiz,
64 Phil. 201 (1937). However, in the same
Lemon case; supra, salary payments and
reimbursements for secular textbooks and
other instructional materials under a system
involving close government supervision were
invalidated as not satisfying (3). Also Committee
for Public Education v. Nyquist, 413 U.S. 756
(1973).
Q. The barangay council, through funds
obtained by solicitations and donations from
residents, purchased a statue of San Vicente
Ferrer and placed it under the care of the
hermano mayor. On the occasion of the fiesta,
the statue was lent to the church. Subsequently,
the parish priest refused to return the statue.
The council passed a number of resolutions
towards taking steps to recover the statue. The
validity of these resolutions was challenged on
the ground, among others, of violating the non-
establishment clause and the prohibition
against the use of public money for religious
purposes. Decide.
A. The Court answered this problem thus: That
contention is glaringly devoid of merit. The
questioned resolutions do not directly or
indirectly establish any religion, nor abridge
religious liberty, nor appropriate public money
or property for benefit of any sect, priest or
clergyman. The image was purchased with
private funds, not with tax money...
Q. In a dispute over property belonging to a
voluntary religious organization (a cofradia)
strictly independent of the church, what rule is
followed?
A. The use of properties of a "religious
congregation" in case of schism "is controlled by
the numerical majority of the members. The
minority in choosing to separate themselves
into a distinct body, and refusing to recognize
the authority of the government body, can
claim no rights in the properly from the fact
that they once had been members." Cafiete v.
Court of Appeals, G.R. No. 45330, March 7,1989
(citing Fonacier v. C.A., 96 Phil. 442-443 (1955).
NOTE: Is the dual character of municipal
corporations relevant at all in this case?
Q. Pastor Austria has been a pastor of the
Seventh Day Adventist for 28 years. An
investigation by the congregation authorities
revealed that Austria could not account for
church tithes and offerings collected by his wife.
He was dismissed and the dismissal was upheld
by the NLRC, Austria challenges the jurisdiction
of the NLRC saying that the matter was an
ecclesiastical affair outside the jurisdiction of
the NLRC. Decide.
The case does not concern an ecclesiastical or
purely religious affair. An ecclesiastical affair is
"one that concerns doctrine, creed
Q. Is certification of food as halal, that is,
suitable for consumption by Muslims according
to their religious belief, a religious exercise?
A. Yes. Hence, it may not be performed by a
government agency. Islamic Da'wah Council v.
Executive Secretary, G.R. No. 153888, July
9,2003. Q. Does the Court have jurisdiction to
entertain a complaint about an expulsion or
excommunication from a church? A. No. We
agree with the Court of Appeals that the
expulsion/ excommunication of members of a
religious institution/organization is a matter
best left to the discretion of the officials, and
the laws and canons, of said
institution/organization. It is not for the courts
to exercise control over church authorities in
the performance of their discretionary and
official functions. Rather, it is for the members
of religious institutions/organizations to
conform to just church regulations. Taruc, et al.
v. Bishop, G.R. No. 144801, March 10,2005.
Q. Are there constitutionally created exceptions
to the non- establishment clause?
A. Yes. Article VI, Section 28(3) says: "Charitable
institutions, churches, parsonages or convents
appurtenant thereto, mosques, and non-profit
cemeteries, and all lands, buildings, and
improvements actually, directly, and exclusively
used for religious, charitable, or educational
purposes shall be exempt from taxation." Article
VI, Section 1(2) says: "No public money or
property shall ever be appropriated, applied,
paid, or employed, directly
SEC. 6. THE LIBERTY OF ABODE AND OF
CHANGING THE SAME WITHIN THE LIMITS
PRESCRIBED BY LAW SHALL NOT BE IMPAIRED
EXCEPT UPON LAWFUL ORDER OF THE COURT.
NEITHER SHALL THE RIGHT TO TRAVEL BE
IMPAIRED EXCEPT IN THE INTEREST OF
NATIONAL SECURITY, PUBLIC SAFETY, OR
PUBLIC HEALTH, AS MAY BE PROVIDED BY
LAW.
Q. What rights are protected by Section 6?
A. The right to choose a person's abode and the
right to travel both at home and going out of
the country.
Q. How are these rights limited?
A. The liberty of abode may be limited only
upon lawful order of a court whereas the right
to travel may be limited by administrative
authorities as may be provided by law in the
interest of national security, public safety or
public health.
■o SEC. 7. THE RIGHT OF THE PEOPLE TO
INFORMATION ON MATTERS OF PUBLIC
CONCERN SHALL BE RECOGNIZED. ACCESS TO
OFFICIAL RECORDS, AND TO DOCUMENTS AND
PAPERS PERTAINING TO OFFICIAL ACTS,
TRANSACTIONS, OR DECISIONS, AS WELL AS TO
GOVERNMENT RESEARCH DATA USED AS BASIS
FOR POLICY DEVELOPMENT, SHALL BE
AFFORDED THE CITIZEN, SUBJECT TO SUCH
LIMITATIONS AS MAY BE PROVIDED BY LAW.
Q. What rights are guaranteed by Section 7?
A. They are (1) the right to information on
matters of public concern and (2) the corollary
right of access to official records and
documents. These are political rights available
to citizens only.
Q. What are the limits on these rights?
A. They are "subject to such limitations as may
be provided by law." Q. What are the limits on
the authority to curtail these rights?
A. It is submitted that the standards that have
been developed for the regulation of speech
and press and of assembly and petition and of
association are applicable to the right of access
to information.
Q. Petitioner had requested respondent for
information on the eligibility of certain sanitary
inspectors. (1) Is such information a matter of
public concern? (2) Does petitioner have
standing to assert the right to information? (3)
If denied, what remedy does he have?
A. (1) "Public concern," like "public interest,"
eludes exact definition. They embrace a broad
spectrum of subjects which the public may want
to know, either because these directly affect
their lives or simply because such matters
arouse the interest of an ordinary citizen. Each
case must be examined separately. In this
particular case, it must be said that a public
official must be accountable to the people for
his eligibility.
(2) This is a matter of "public right" where the
real party in interest is the people. Any citizen
therefore has "standing."
(3) The remedy is mandamus. Legaspi v. Civil
Service Commission, 150 SCRA 530 (1987);
Tafiada, et al. v. Tuvera, 136 SCRA 27 (1985).
Q. May the government, through the PCGG, be
required to reveal the proposed terms of a
compromise agreement with the Marcos heirs
as regards their alleged ill-gotten wealth? {i.e.,
does the right to information include access to
the terms of government negotiations prior to
their consummation or conclusion?)
A. It is incumbent upon the PCGG, and its
officers, as well as other government
representatives, to disclose sufficient public
information on any proposed settlement they
have decided to take up with the ostensible
owners and holders of ill-gotten wealth. Such
information, though, must pertain to definite
propositions of the government, not necessarily
to intra-agency or inter-agency
recommendations or communications during
the stage when common ' assertions are still in
the process of being formulated or are in the
'explorator/ stage." Chavez v. Presidential
Commission on Good Government, G.R. No.
130716, December 9,1998.
Information, for instance, on on-going
evaluation or review of bids or proposals being
undertaken by the bidding or review committee
is not immediately accessible under the right to
information. While the evaluation or review is
still on-going, there are no "official acts,
transactions, or decisions" on the bids or
proposals. However, once the committee makes
its official recommendation, there arises a
"definite proposition" on the part of the
government. From this moment, the public's
right to information attaches, and any citizen
can access all the non-proprietary information
leading to such definite proposition. Chavez v.
PEA andAMARl, G.R. No. 133250, July 9,2002.
Q. Are court records covered by the right to
information?
A. A distinction must be made. Decisions and
opinions of a court are, of course, matters of
public concern or interest. Unlike court orders
and decisions, however, pleadings and other
documents filed by parties to a case need not
be matters of public concern or interest. They
are filed for the purpose of establishing the
basis upon which the court may issue an order
or a judgment affecting their rights and
interests. In fine, access to court records may be
permitted at the discretion and subject to the
supervisory and protective powers of the court,
after considering the actual use or purpose for
which the request for access is based and the
obvious prejudice to any of the parties. Hilado,
et al. v. Judge, G.R. No. 163155, July 21, 2006.
Q. What are some of the recognized limitations
to the exercise of the right to information and
the state policy of public disclosure?
A. 1) National security matters.
2) Trade secrets and banking transactions.
3) Criminal matters or classified law
enforcement matters, "such as those relating to
the apprehension, the prosecution and the
detention of criminals, which courts may not
inquire into prior to such arrest, detention and
prosecution." Otherwise, efforts at effective law
enforcement would be seriously jeopardized.
4) Other confidential matters. The Ethical
Standards Act (R. A. No. 6713) prohibits public
officials and employees from using or divulging
"confidential or classified information officially
known to them by reason of their office and not
made available to the public." Other
acknowledged limitations include diplomatic
correspondence, closed door Cabinet meetings
and executive sessions of wither house of
Congress, and the internal deliberations of the
Supreme Court. Chavez v. President
Commission on Good Government,
G.R. No. 130716, December 9,19£3. SEC. 8. THE
RIGHT OF THE PEOPLE, INCLUDING THOSE
EMPLOYED IN THE PUBLIC AND PRIVATE
SECTORS, TO FORM UNIONS, ASSOCIATIONS,
OR SOCIETIES FOR PURPOSES NOT CONTRARY
TO LAW SHALL NOT BE ABRIDGED.
Q. What is the meaning of this provision?
A. All it means is that the right to form
associations shall not be impaired except
through a valid exercise of police power. It is
therefore an aspect of the general right of
liberty. More specifically, it is an aspect of
freedom of contract; and in so far as
associations may have for their object the
advancement of beliefs and ideas, freedom of
association is an aspect of freedom of
expression and of belief. The guarantee also
covers the right not to join an association.
Q. A land buyer buys a lot with an annotated
lien that the lot owner becomes an automatic
member of the homeowner's association. Does
such an annotation violate the right freely to
join or not to join associations?
A. No. The fact that the obligation is annotated
in the title does not make it a government act
forcing one to join an association. Rather, the
buyer freely buys the lot knowing that the
purchase will entail an obligation. Bel air Village
Association v. Dionisio, 174 SCRA 589,597
(1989).
Q. The first sentence of Article 245 of the Labor
Code provides that: "Managerial employees are
not eligible to join, assist or form any labor
organization.0 The Petitioner-Union contends
that this provision contravenes the
constitutional right to form associations.
Decide.
A. The Article 245 ban is valid because the "right
guaranteed in Art. Ill, §8 is subject to the
condition that its exercise should be for
purposes 'not contrary to law.' In the case of
Art. 245, there is a rational basis for prohibiting
managerial employees from forming or joining
labor organizations." Id. Philips Industrial
Development, Inc. v. NLRC, 210 SCRA 399
(1992) stated the rationale thus: "because if
these managerial employees would belong to or
be affiliated with a Union, the latter might not
be assured of their loyalty to the Union in view
of evident conflict of interest. The Union can
also become company-dominated with the
presence of managerial employees in the Union
membership." Id. at 45. (See also the separate
opinions)." United Pepsi-Cola Supervisory Union
(UPSU) v. Laguesma, G.R. No. JO122226, March
25,1998.
Q. Batas Big. 222 prohibits any candidate in the
Barangay election of May 17, 1982 from
representing or allowing himself to be
represented as a candidate of any political party
and prohibits a political party, political group,
political committee from giving aid or support,
directly or indirectly, material or otherwise,
favorable to or against a barangay candidate's
campaign for election. Does this violate the
right to form associations?
A No. The right is not absolute and the
prohibition found in the law is couched in very
narrow terms. The law is intended to meet a
clear and imminent danger of the debilitation of
the electoral process
Q. Do all societies and associations enjoy the
same constitu- tional protection?
A. As already seen, under Section 1, the
Constitution recog- nizes a hierarchy of values.
Philippine Blooming Mills Employees v.
Philippine Blooming Mills, 51 SCRA 189, 2200-3
(1973). Hence, the degree of protection an
association enjoys depends on the position
which the association's objective or activity
occupies in the constitutional hierarchy of
values. Thus, for instance, where theobject of
an association is the advancement of a common
political belief such as racial equality, any law
that either has the effect of limiting
membership in such association or blunting its
effectivity must satisfy the more stringent
standards for allowable limitation of expression
and belief. NAACP v. Alabama, 357 U.S. 449
(1958); NAACP v. Button, 371 U.S. 415 (1963). In
the latter cases, the standards discussed in
Section 4 are applicable.
Q. Is the Communist Party of the Philippines,
otherwise known as Partido Komunista ng
Pilipinas, a subversive association as defined in
R.A. 1700 as amend by E.O 276?
A. No. It is distinct from the CPP-NPA. Dizon v.
Bautista, Jr., G.R; No. 84355-56, March 21,1989.
Q. Do government employees have the right to
form unions? A. Yes. This right is guaranteed by
Article III, Section 8, Article IX,B, Section 2(5)
and Article Xni, Section 3. Trade Union of the
Philippines v. NHC, G.R. No. 49677, May 4,1989.
[See also cases reported under Article XIII,
Section 3.]
Q. Do government employees have the right to
strike? ■ >
A. The right to strike may be limited by law. The
Supreme Court has definitively ruled that
employees of the Social Security System, Social
Security System v. the Court of Appeals, G.R.
No. 85279, July 28, 1989, and public school
teachers, Manila Public School Teachers
Association v. Secretary of Education, G.R. No.
95445, August 6, 19£)1, do not have a
constitutional right to strike. But the current
ban on them against strikes is statutory and
may be lifted by statute. (The dissenting justices
in the public school teachers' case argued that
the right to strike could be deduced from
freedom of speech.)
SEC. 9. PRIVATE PROPERTY SHALL NOT BE
TAKEN FOR PUBLIC USE WITHOUT JUST
COMPENSATION.
Q. What is the power of eminent domain?
A. It is the power of the state to take private
property for public use upon payment of just
compensation. Q. What are the constitutional
provisions on eminent domain? A. They are
Article III, Section 9, which sets down the limits
on the inherent power; and Article XII, Sections
18 (public utilities), Article XIII, Section 4 (land
reform), and Article XVIII, Section 22 (idle or
abandoned agricultural lands), which are
specific examples of the uses to which the
power of eminent domain may be put.
Q. Where does the power of eminent domain
reside?
A. Inherently, it is possessed by the State and is
exercised by the national government
Q. What is the scope of the power of eminent
domain?
A. In the hands of Congress the scope of the
power is, like the scope of legislative power
itself, plenary. Barlin v. Ramirez, 7 Phil. 41,56
(1906).
Q. What are the elements of the exercise of the
power of eminent domain?
A. The elements are: (1) there is "taking" of
private property; (2) the taking must be for
needed "public use;" (3) there must be "just
compensation." <
Q. What circumstances constitute "taking" for
purposes of eminent domain?
A. The following circumstances must concur: (1)
The expropriator must enter upon the private
property; (2) The entrance must not be for a
momentary period, that is, the entrance must
be permanent; (3) The entry must be under
warrant or color of legal authority; (4) The
property must be devoted to public use . or
otherwise informally appropriated or injuriously
affected; (5) The utilization of the property must
be in such a way as to.

Q. Give other examples of taking?

A. Where the entry into private property is not

just a simple right-of-way, which is Didipio Earth
Savers, et al. v. Secretary, G.R. No. 157882,
March 30,2006. So also, where the nature and
effect of the installation of the 230 KV Mexico-
Limay transmission lines results in the
imposition of limitation against the use of the
land for an indefinite period, there is
compensable taking. NPC v. San Pedro, G.R. No.
170945, September 26, 2006.

Q. Distinguish the manner in which police

power and eminent domain affect the right of
private property.

A. Police power regulates or may even destroy

private property but there is no transfer of
ownership nor compensation; emiijpnt domain
transfers ownership and must be compensated.

Q. When injurious private property is destroyed

in the public interest is there compensable
taking? A. No.

Q. When municipal property is taken by the

State, is there compensable taking?

A. It depends on the nature of the property. If it

is patrimonial property of the municipality, yes.
Otherwise, no.