CONSTITUTIONAL LAW 2
 
 
Bill of Rights
 
I.  THE DUE PROCESS, EQUAL PROTECTION AND
CONTRACT CLAUSES AS LIMITATIONS ON
POLICE POWER, EMINENT DOMAIN AND
TAXATION
 
              Art. III, Sec. 1.  No person  shall  be deprived of
life, liberty, or property  without due  process  of law, 
nor shall  any person  be denied  the  equal protection  of
the  laws.
        
              Art.  III, Sec. 10.  No law impairing the
obligation of contracts shall be passed.   cardinal  primary rights"  in justiciable  cases before
 
LIMITATIONS OF SOVEREIGNTY
 
            Inherent in sovereignty, and therefore not even
required to be conferred by the  Constitution, are the police,
eminent domain, and  taxation powers.  The Bill of Rights,                c.  While the tribunal has no duty to decide the case
notably the  due process, equal protection and non-
impairment clauses, is a means of limiting the exercise of
these powers by imposing on the State the obligation to
protect individual rights.  The Bill of Rights is addressed to
the State, notably the government, telling  it what it cannot  conclusion.
do to the individual.
 
 
            A.  Due process - Procedural and Substantive
 
Civil Procedural Due Process
 
              In civil cases,  the SC laid down  its elements in the
case of Banco Espanol Filipino v. Palanca:
              a.  Court  with  jurisdiction   over  the  subject
matter.
              b.  Court with jurisdiction over the party-defendant
              c.  Judgement rendered according to law.
 
              d.  Defendant given the oppotunity to be heard
(requirement on notice and hearing)
 
Criminal Due Process
 
              In criminal cases, the  elements were laid down in
Vera v. People:
 
              a.   Accused is informed why he is proceeded
against, and what charge he must answer.
 
              b.  Judgment of  conviction is  based on  evidence
that is not tainted by falsity, and after the defendant was
heard.
 
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                   If  the prosecution  produces the  conviction
based  on untrue  evidence, then  it is  guilty of depriving
the accused of  due process.  Thus false testimony  can   be 
questioned  by   the  accused regardless of the time that
lapsed.
 
              c.   Judgment according to law
 
              d.   Tribunal with jurisdiction
 
 
Administrative Due Process
 
              In administrative  proceedings, the  elements were
laid down in the case of Ang Tibay v. CIR as the "seven
administrative tribunals:
              a.  There  must be  a hearing,  where a  party may
present evidence in support of his case.
              b.  The tribunal must consider the evidence
presented by a party.
correctly,  its  decision must  be  supported  by evidence.
              d.  The evidence supporting  the decision  must be
substantial.  Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
              e.  The  evidence must have been  presented at the
hearing or at  least contained in the  record and known to the
parties affected.
              f.  The  tribunal must rely on  its own independent
consideration  of   evidence,  and  not  rely on the
recommendation of a subordinate.
            g.  The decision must state the facts and the law in
such a  way that  the parties  can know the issues involved
and the reasons for the decision.
Substantive Due Process
Ynot vs. IAC, 148 SCRA 659 (1987) 
F:            Petitioners' 6 carabaos were confiscated by the
police for having been transported from Masbate to Iloilo in
violation of EO 626-A.  He brought an action for replevin,
challenging the consitutionality of the EO.  The trial court
sustained the confiscation of the animals and declined to
rule on the validity of the law on the ground that it lacked
authority to do so.  Its decision was affirmed by the IAC. 
Hence this petition for review.
 
HELD:  (1)  Under the provision granting the SC
jurisdiction to "review, revise, reverse, modify or affirm on
appeal or certiorari, as the law or rules of court may provide
final judgments of lower courts" in all cases involving the
constitutionality of certain measures, lower courts can pass
upon the validity of a statute in the first instance.
            (2)  There is no doubt that by banning the slaughter
of these animals (except where there at least 7 yrs. old if
male and 11 yrs old if female upon the issuance of the
necessary permit) the EO will be conserving those still fit
for farm work or breeding and preventing their improvident
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depletion.  We do not see, however, how the prohibition of
the interprovincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed
any where, w/ no less difficulty in on province than in
another.  Obviously, retaining the carabao in one province
will not prevent their slaughter there, any more than moving
them to another province will make it easier to kill them
there.  As for the carabeef, the prohibition is made to apply
to it as otherwise, so says the EO, it could be easily
circumsbcribed by simply killing the animal.  Perhaps so.  record overthrowing the statute.   The LOI is an energy
However, if the movement of the live animals for the
purpose of preventing their slaughter cannot be prohibited, it
should follow that there is no reason either to prohibit their
transfer as, not to be flippant, dead meat.  petitioners.  W/in the class to w/c the petitioner belongs the
            (3)  In the instant case, the carabaos were arbitrarily
confiscated by the police station commander, were returned
to the petitioner only after he had filed a complaint for
recovery and given a supersedeas bond w/c was ordered
confiscated upon his failure to produce the carabaos when
ordered by the trial court.  The EO defined the prohibition,
convicted the petitioner and immediately imposed
punishment, w/c was carried out forthright.  The measures
struck him at once and pounced upon the petitioner w/o
giving him a chance to be heard, thus denying him
elementary fair play.  Velasco v. Villegas, 120 SCRA (1983)
            (4)  It is there authorized that the seized prop. shall
"be distributed to charitable institutions and other similar
institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to
deserving farmers through dispersal as the Director of
Animal Industry may see fit in the case of carabaos."  The
phrase may see fit is an extremely generous and dangerous
condition, if condition it is.  It is laden w/ perilous
opportunities for partiality and abuse, and even corruption.  from the construction of separate rooms.
One searches in vain for the usual standard and the
reasonable guidelines, or better still, the limitations that the
said officers must observe when they make their
distribution.  VV.          
 
         B.  Due Process and Police Power
 
 
Bautista v. Juinio, 127 SCRA 329 (1984)
 
Ban on Use of Heavy Cars on Week-ends and Holiday s
Valid.
F:         LOI 689 banned the use of vehicles w/ A and EH
plates on week-ends and holidays in view of the energy
crisis.  It excepted, however, those classified as S (Service),
T (Truck), DPL (Diplomatic), CC (Consular Corps), and TC
(Tourist Cars).  The resps., Min. of Public Works,
Transportation, issued memo. providing penalties for viol.
of the LOI, namely, fine, confiscation of vehicles, and
cancellation of registration.  The petitioners brought suit
questioning the validity of the LOI on the ground that it was
discriminatory and a denial of due process.  The resps.
denied the petitioner's allegations and argued that the suit
amounted to a request for advisory opinion.   To construe the amendatory act as granting mun.
 
HELD: (1)  Petitioners are owners of an 8 cylinder 1969
Buick and of a 6 cylinder Willy's Kaiser Jeep.  The
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enforcement of the LOI to them would deprive them of
prop.  They, therefore, have standing to challenge the
validity of the LOI.
            (2)  But the LOI cannot be declared void on its face. 
It has behind it the presumption of validity.  The necessity
for evidence to rebut such presumption is unavoidable.  As
underlying the questions of fact may condition the
constitutionality of legislation the presumption of validity
must prevail in the absence of some factual foundation of
conservation measure; it is an apporpriate response to a
problem. 
            (3)  Nor does the LOI deny equal protection to the
LOI operate equally and uniformly.  That the LOI does not
include others does not render it invalid.  The govt is not
required to adhere to a policy of "all or none."
            (4)  To the extent that the Land Transpo. Code does
not authorize the impounding of vehicles as a penalty, to
that extent the memo. of the resps. would be ultra vires. 
VV.
 
 
 
 
Ordinance Prohibiting Barbershops from Rendering
Massage Services Valid.
 
F:         The ordinance was enacted for a two-fold purpose: 
(1)  To enable the City of Mla. to collect a fee for operating
massage clinics separately from those operating barber ships
and (2)  To prevent immorality w/c might probably arise
 
HELD:  The SC has been most liberal in sustaining
ordinances based on general welfare clause.  VV.       
 
Cruz v. Paras, 123 SCRA 569 (1983)
F:            The petitioners are operators or nightclubs in
Bocaue, Bulacan.  they filed prohibition suits to stop the
Mun. of Bocaue from enforcing an ordinance prohibiting the
operation of nightclubs, cabarets, and dance h alls in that
mun. or the renewal of licenses to operate them.  The CFI
upheld the validity of the ordinance and dismissed the
petition.  Hence, this petition for certiorari.
HELD:  A mun. corp. cannot prohibit the operation of
nightclubs.  Nightclubs may be regulated but not prevented
from carrying on their business. RA 938, as orginally
enacted, granted municipalities the power to regulate the
establishment, maintenance and operation of nightclubs and
the like.  While it is true that on 5/21/54, the law was
amended by RA 979 w/c purported to give municipalities
the power not only to regulate but likewise to prohibit the
operation of nightclubs, the fact is that the title of the law
remained the same so that the power granted to
municipalities remains that of regulation, not prohibition. 
corporations the power to prohibit the operation of
nightclubs would be to construe it in a way that it violates
the constitutional provision that "every bill shall embrace
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only one subject which shall be expressed in the title
thereof."  Moreover, the recentyly-enacted LGC (BP 337)
speaks simply of the power to regulate the establishment,
and operation of billiard pools, theatrical performances,
circuses and other forms of entertainment.  Certiorari
granted.  VV.
 
            C.  Due Process and Eminent Domain
 
            The taking by the State of  private property in an
expropriation proceeding  must be:  (1) for  public  use,  (2)  housing. Among those lands sought to be expropriated are
with just compensation, and  (3)  upon observance of due
process.
            Article III, Sec. 9. Private property shall not be
take for public use without just compensation.
 
            Article XII, Sec. 18.  The State may, in the
interest of national welfare or defense, establish and
operate vital industries and, upon payment of just
compensation, transfer to public ownership utilities and
other private enterprises to be operated by the
government.
 
 
                        1.  Taking either for public use or public
purpose.
 
Public Use
 
            Public use is equivalent to public purpose.  It is not
confined merely to use by the public at large (e.g. roads).  It
is enough that  it serves a public purpose, even if it benefit a
large group of people short of the public in general (e.g.  property owner may not interpose objections merely because
expropriating property for the relocation of squatters).
 
Heirs of Juancho Ardona v. Reyes  123 SCRA 220
 
F:         The Philippine Tourism Authority sought the
expropriation of 282 Ha of land in Barangay Malubog and
Babag in Cebu City. upon deposit of an amount equivalent
to 10% of the value of the property, the CFI authorized the
PTA to take immediate possession of the property. The
charter of the PTA authorizes it to acquire through
condemnation proceedings lands for tourist zone
development of a sports complex. The petitioners who are
occupants of the lands, filed a petition for certiorari in the
SC. They contended that (1) the taking was not for public
use; (2) the land was covered by the land reform program;
and (3) expropriation would impair the obligation of
contracts.
 
HELD:  The concept of public use is not limited to
traditional purposes for the construction of roads, bridges,
and the like. The idea that "public use" means "use by the
public" has been discarded. As long as the purpose of the
taking is public, then the power of eminent domain comes
into play. It is accurate to state then that at present whatever
may be beneficially employed for the general welfare
satisfies the requirement of public use.  The petititioners
have not shown that the area being developed is land reform
area and that the affected persons have been given
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emancipation patents and certificates of land transfer. The
contract clause has never been regarded as a barrier to the
exercise of the police power and likewise eminent domain. 
VV.
 
Sumulong v. Guerrero  154 SCRA 461 (1987)
F:         On December 5, 1977, the National Housing
Authority filed a complaint for the expropriation of 25
hectares of land in Antipolo, Rizal pursuant to PD 1224
authorizing the expropriation of private lands for socialized
the petitioners' lands. They brought this suit in the SC
challenging the constitutionality of PD 1224.
HELD:  Petitioners contend that socialized housing for the
purpose of condemnation proceedings is not public use since
it will benefit only a handful of people. The "public use"
requirement is an evolving concept influences by changing
conditions. Urban renewal or redevelopment and the
construction of low-cost housing is recognized as a public
purpose, not only because of the expanded concept of public
use but also because of specific provisions in the
Constitution. Shortage in housing is a matter of state
concern since it directly and significantly affects public
health, safety, the environment and, in sum, the general
welfare. Petitioners claim that there are vast areas of lands in
Rizal hundreds of hectares of which are owned by a few
landowners only. Why should the NHA pick their small
lots? Expropriation is not confined to landed estates. The
test to be applied for a valid expropriation of private lands
was the area of the land and not the number of people who
stood to be benefitted. The State acting through the NHA is
vested with broad discretion to designate the property. The
in their judgment some other property would have been
more suitable. The provisions on just compensation found in
PD 1224, 1259, and 1313 are the same provisions which
were declared unconstitutional in EPZA v. Dulay (1987) for
being encroachments on judicial prerogatives.  VV.
 
 
                        2.  Just compensation must be judicially
determined
 
Just Compensation
 
            Just compensation is the fair and reasonable
equivalent of the loss sustained by the owner of the property
due to the taking; it  is  the fair  market value of the property
measured at  the time of  the taking, no matter how long ago
it was taken (e.g. the time of the taking was in the 1920's, 
the time of payment was in the 1960's, in the Ministerio and
Amigable cases, supra), and  using the conversion rates at
the time of  taking  (because  according to  those cases, Art.
1250 of  the Civil Code applied only to contractual
obligations).
 
 
EPZA v. Dulay  149 SCRA 305 (1987)
 
F:         The San Antonio Development Corporation was the
owner of a piece of land in Lapu-Lapu City which the EPZA
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expropriated in 1979. The commissioners appointed by the
trial court recommended that the San Antonio Development
Corp. be paid P15.00 per square meter. EPZA filed a
petition for certiorari, arguing that under PD 1533 the
compensation should be the fair and current market value
declared by the owner or the market value determined by the
assessor, whichever is lower.
 
HELD:  The method of ascertaining just compensation
under PD 1533 constitutes impermissible encroachment on
judicial prerogatives.  Although the court technically would
still have the power to determine the just compensation for
the property, following the decree, its task would be
relegated to simply stating the lower value of the property as
declared either by the owner or the assessor. Just
compensation means the value of the property at the time of
the taking. It means a fair and full equivalent for the loss
sustained. All the facts as to the condition of the property
and its surroundings, its improvements and capabilities
should be considered. In this case, the tax declarations used
as basis for the just compensation were made long before
the declaration of martial law when the land was much
cheaper. To peg the value of the lots on the basis of those
documents which are outdated would be arbitrary and
confiscatory.  VV.
 
 
Manotok v. NHA  150 SCRA 89 (1987)
 
F:         Petitioners are the owners of two large estates
known as the Tambunting Estate and Sunog-Apog in Tondo,
Manila, both of which were declared expropriated in two
decrees issued by President Marcos, PD 1669 and PD 1670.
The petitioners contend that the decrees violate their
constitutional right to due process and equal protection since
by their mere passage their properties were automatically
expropriated and they were immediately deprived of the
ownership and possession thereof without being given the
chance to oppose such expropriation. The government on
the other hand contends that the power of eminent domain is
inherent in the State and when the legislature or the
President through his law-making powers exercises this
power, the public use and public necessity of the
expropriation and the fixing of the just compensation
become political in nature and the courts must respect the
decision.
HELD:  The challenged decrees are unfair in the procedures
adopted and the powers given to the NHA. The Tambunting
subdivision is summarily proclaimed a blighted area and
directly expropriated by decree without the slightest
semblance of a hearing or any proceeding whatsoever. The
expropriation is instant and automatic to take effect
immediately upon the signing of the decree. No deposit
before the taking is required. There is not provision for any
interest to be paid upon unpaid installments. Not only are
the owners given absolutely no opportunity to contest the
expropriation, or question the amount of payments fixed by
the decree, but the decision of the NHA are expressly
declared beyond judicial review. PD 1669 and 1670 are
declared unconstitutional.
 
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Teehankee, CJ, concurring: The judgment at bar now learly
overturns the majority ruling in JM Tuason v. LTA that the
power of Congress to designate the particular property to be
taken adn how much may be condemned thereof must be
duly recognized, leaving only as a judicial question whether
in the exercise of such competence, the party adversely
affected is the victim of partiality and prejudice. The SC
now rules that such singling out of properties does not
foreclose judicial scrutiny as to whether such expropriation
by legislative act transgresses the due process and equal
protection and just compensation guarantees of the
Constitution.  VV.
 
 
                        3.  Due process must be observed
 
De Knecht v. Bautista  100 SCRA 660 (1980)
 
F:         The plan to extend EDSA to Roxas Boulevard to be
ultimately linked to the Cavite Coastal Road Project,
originally called for the expropriation of properties along
Cuneta Avenue in Pasay City. Later on, however, the
Ministry of Public Highways decided to make the proposed
extension pass through Fernando Rein and Del Pan Streets.
Because of the protests of residents of the latter, the
Commission on Human Settlements recommended the
reversion to the original plan, but the Ministry argued the
new route withh save the government P2 million. The
government filed expropriation proceedings against the
owners of Fernando Rein and Del Pan streets, among whom
was petitioner.
 
HELD:  The choice of Fernando Rein and Del Pan streets is
arbitrayr and should not receive judicial aprpoval. The
Human Settlements Commission concluded that the cost
factor is so minimal that it can be disregarded in making a
choice between the two lines. The factor of functionality
strongly militates against the choice of Fernando Rein and
Del Pan streets, while the  factor of social and economic
impact bears grievously on the residents of Cuneta Avenue.
While the issue would seem to boil down to a choice
between people, on one hand, and progress and
development, on the other, it is to be remembered that
progress and development are carried out for the benefit of
the people.  VV.
 
Republic v. De Knecht, 182 SCRA 142 (1990)
 
F:         De Knecht was one of the owners of several
properties along the Fernando Rein-Del Pan streets which
the Government sought to expropriate to give way to the
extension of EDSA and the construction of drainage
facilities. De Knecht filed a case to restrain the Government
from proceeding with the expropriation. Her prayer was
denied by the lower court but upon certiorari, the SC
reversed the lower court decision and granted the relief
asked for by De Knecht ruling that the expropriation was
arbitrary. The case was remanded to the lower court.
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                No further action was taken despite the SC
decision until two years later, in 1983, when the
Government moved for the dismissal of the case on the
ground that the Legislature has since enacted BP 340
expropriating the same properties for the same purpose. The
lower court denied tthe motion. Appeal.
 
RULING: While it is true that said final judgment of this
Curt on the subject becomes the law of the case between the
parties, it is equally true that the right of petitioner to take
private properties for public use upon payment of just
compensation is so provided in the Constitution and the
laws. Such expropriation proceeding may be undertaken by
the petitioner not only by voluntary negotiation with the
land owners but also by taking appropriate court action or
by legislation.
            When BP 340 was passed, it appears that it was
based on supervening events that occured after the 1980
decision of the SC on the De Knecht case was rendered. The
social impact factor which persuaded the Court to consider
this extension to be arbitrary had disappeared.
            Moreover, the said decision is no obstacle to the
legislative arm of the Government in thereafter making its
own independent assessment of the circumstances then
pravailing as to the propriety of undertaking the
expropriation of properties in question and thereafter by
enacting the corresponding legislation as it did in this case.
The Court agrees in the wisdom and necessity of enacting
BP 340. Thus the anterior decision of the Court must yield
to the subsequent legislative fiat.  Charo.
 
 
NAPOCOR v. Gutierrez, 193 SCRA 1 (1991)
F:         For the construction of its 230 KV Mexico-Limay
transmission lines, Napocor's lines have to pass the lands
belonging to respondents. Unsuccessful with its negotiations
for the acquisition of the right of way easements, Napocor
was constrained to file eminent domain proceedings.
 
ISSUE: W/N petitoner should be made to pay simple
easement fee or full compensation for the land traversed by
its transmissin lines.
 
RULING: In RP v. PLDT, the SC ruled that "Normally, the
power of eminent domain results in the taking or
appropriation of the title to, and possession of, the
expropriated property, but no cogent reason appears why
said power may not be availed of to impose only a burrden
upon the owner of the condemned property, without loss of
title or possession. It is unquestionable that real property
may, through expropriation, be subjected to an easement of
right of way." In this case, the easement is definitely a
taking under the power of eminent domain. Considering the
nature and effect of the installation of the transmission lines,
the limitations imposed by the NPC against the use of the
land (that no plant higher than 3 meters is allowed below the
lines)  for an indefinite period deprives private respondents
of ts ordinary use.
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            For these reasons, the owner of the property
expropriated is entitled to a just compensation which should
neither be more nor less, whenever it is possible to make the
assessment, than the money equivalent of said property. Just
equiivalent has always been understood to be the just and
complete equivalent of the loss which the owner of the thing
expropriated has to suffer by reason of the expropriation.
The price or value of the land and its character at the time of
taking by the Govt. are the criteria for determining just
cmpensation.  Charo.
 
 
            D.  Equal Protection
 
            Art. III, Sec. 1.  No person shall be deprived of
life, liberty or property without due process of law, nor
shall any person be denied the equal protection of the
laws.  
 
            Art. XIII, Sec. 1.  The Congress shall give highest
priority to the enactment of measure that protect and
enhance the right of all the people to human dignity,
reduce social, economic, and political inequalities and
remove cultural inequities by equitably diffusing wealth
and political power for the common good. 
            To this end, the State shall regulate the
acquisition, ownership, use, and disposition of property
and its increments.
 
 
                        1.  Economic equality
            Art. XIII, Sec. 2.  The promotion of social justice
shall include the commitment to create economic
opportunities based on freedom of initiative and self-
reliance. 
            Art. XIII, Sec. 3.  The State shall afford full
protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality
of employment opportunities for all.
            It shall guarantee the rights of all workers to self-
organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike
in accordance with law.  They shall be entitle to security
of tenure, humane conditions of work, and living wage. 
They shall also participate in policy and decision-making
process affecting the rights and benefits as may be
provided by law.
            The State shall promote the principle of shared
responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes
including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace. 
            The State shall regulate the relations between
workers and employers, recognizing the right of labor to
its just share in the fruits of production and the right of
enterprises to reasonable returns on investments, and to
expansion and growth.
 
 
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            Art. XII, Sec. 10.  The Congress shall, upon
recommendation of the economic and planning agency,
when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such
citizens, or such higher percentage as Congress may
prescribe, certain areas of investments.  The Congress
shall enact measures that will encourage the formation
and operation enterprises whose capital is wholly owned
by Filipinos.
            In the grant of rights, privileges and concessions
covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
            The State shall regulate and exercise authority
over foreign investments within its national jurisdiction
and in accordance with its national goals and priorities.
 
            Id., Sec. 2.  xxx
            The State shall protect the nation's marine wealth
in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
 
            Art. III, Sec. 11.  Free access to the courts and
quasi-judicial bodies and adequate legal assistance shall
not be denied to any person by reason of poverty.  ordinance denies aliens due process and the equal protection
 
            Art. VIII, Sec. 5.  The Supreme Court shall have
the following powers:
            xxx
            (5)  Promulgate rules concerning the protection
and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to
the practice of law, the Integrated Bar, and legal
assistance to the underprivileged.  Such rules shall
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish,
increase, or modify substantive rights.  Rights of
procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the
Supreme Court.
 
           
            There are areas of economic activity which can be
limited to Filipinos.  The Constitution itself acknowledges
this in various places - exploitation of marine wealth (Art.
XII, Sec. 2 par. 2), certain areas of investment (Art. XII,
Sec. 10), to name a few.
 
            In Ichong v. Hernandez, 201 Phil. 1155 (1937), the
SC upheld the validity of the law which nationalized the
retail trade.  For the protection of the law can be observed
by the national interest.
 
Ichong v. Hernandez, 201 Phil. 1155 (1937)
            But there are areas where aliens cannot be kept away
for the simple reason that they cannot be deprived of a
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common means of livelihood, especially when they are
admitted to the country as immigrants.
 
            In Villegas v. Hiu Chiong Isai Po Ho, 86 SCRA 270
(1978), the SC invalidated a city ordinance imposing a P500
permit fee for aliens who wish to engage in the pursuit of an
occupation.  The SC noted that this violated the uniformity
of taxation, and deprived aliens of the right to earn a
common livelihood.
 
Villegas v. Hiu Chiung Tsai Pao Ho  86 SCRA 270 (1978)
 
F:         An ordinance of the City of Manila prohibited the
employment of aliens in any occupation or business unless
they first secured a permit from the Mayor of Manila and
paid a fee of P500. Respondent, an alien, employed in
Manila, brought suit and obtained judgment from the CFI
declaring the ordinance null and void.
 
HELD:  The ordinance is a tax measure. In imposing a flat
rate of P500, it failed to consider substantial differences in
situations among aliens and for that reason violates the rule
on uniformity of taxation. It also lays down no guide for
granting/denying the permit and therefore permits the
arbitrary exercise of discretion by the Mayor. Finally, the
of the laws. VV.
 
            In Vera v. Cuevas, 90 SCRA 379 (1979), Sec. 169 of
the NIRC requiring manufacturers of skimmed milk (non-
fat) to put on its label the warning that the milk is harmful
for infants, was struck down as unconstitutional on the
ground that it did not require the same labeling in the case of
filled milk (coco-fat added)
 
            At that time of the decision thought, the law was
already inoperative.
 
Vera v. Cuevas  90 SCRA 379 (1979)
 
F:         Respondents are engaged in the manufacture and
sale of filled milk products. They brought an action in the
CFI for a declaration of their rights in respect of section 169
of the Tax Code. This provision required that "all condensed
skimmed milk in whatever form, from which the fatty part
has been removed totally or in part or put on sale in the
Philippines shall be clearly and legibly marked on its
immediate containers with the words: This milk is not
suitable for nourishment for infants less than one year of
age.
 
HELD:  Sec. 169 of the Tax Code has been repealed by RA
344. At any rate, Sec. 169 applied only to skimmed milk and
not to filled milk. Sec. 169 is being enforced only against
respondent manufacturers of filled milk but not against
manufacturers of skimmed milk, thus denying them the
equal protection of the laws.  VV.
                        2.  Political equality
 
CONSTITUTIONAL LAW 2
            Art. III, Sec. 18. (1)    No person shall be detained
solely by reason of his political beliefs and aspirations.
            Art. IX, C, Sec. 10.  Bona fide candidates to
public office shall be free from any form of harassment
and discrimination.  enhance the right of all the people to human dignity,
 
 
            In Dumlao v. Comelec, 95 SCRA 392 (1980), the SC
upheld the validity of sec. 4 of Batas Blg. 52 disqualifying
retired elective local officials who have received retirement
benefits and would have been 65 years old at the start of the
term.  It does not violate equal protection, for it gives
younger blood the opportunity to run the local government.
Dumlao v. Comelec, 95 SCRA 392 (1980)
F:         Sec. 4 of BP 52 provides in part that "any retired
elective provincial, city ot municipal official who has
received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of
age at the commencement of the term of office to which he
seeks to be elected, shall not be qualified to run for the same
elective local office from which he has retired." Petitioner,
Governor of Nueva Vizcaya, sued for prohibition to enjoin
enforcement of the law on the ground that it was contrary to
the equal protection and due process guarantee of the
Constitution.
 
HELD:  Dumlao has not been injured by the application of
the provision. No petition seeking his disqualification has
been filed against him. His petition is a mere request for
advisory opinion. Nevertheless, because of public interest,
the question should be resolved. The purpose of the law is to
allow the emergence of younger blood in local governments
and therefore, not invalid. The retired employee in effect
declares himself tired and unavailable for the same
government work. VV.
            In Igot v. Comelec, 95 SCRA 392 (1980), however,
the disqualification of candidates convicted or simply
charged with national security offenses was struck down as
unconstitutional, for violating the presumption of innocence
and thus ultimately the equal political protection.
 
Igot c. Comelec  95 SCRA 392 (1980)
 
F:         Romeo Igot, as taxpayer, voter and member of the
bar, and Alfredo Salapantan Jr., as taxpayer and voter, sued
for prohibition to enjoin enforcement of BP 52, sec. 4 of
which provides for the disqualification as candidate of any
person convicted of subversion, insurrection or rebellion or
similar offenses.
HELD:  Neither petitioner has been convicted nor charged
with acts of disloyalty nor disqualified from being
candidates for local elective positions. They have no
personal or substantial interest at stake and therefore no
locus standi. Neither can they sue as taxpayers because the
statute does not involve disbursement of public funds. VV.
 
 
ZPG & ASSOCIATES
                        3.  Social equality
                       
            Art. XIII, Sec. 1.  The Congress shall give highest
priority to the enactment of measure that protect and
reduce social, economic, and political inequalities and
remove cultural inequities by equitably diffusing wealth
and political power for the common good. 
            To this end, the State shall regulate the
acquisition, ownership, use, and disposition of property
and its increments.
. 
 
II.  REQUIREMENTS OF FAIR PROCEDURE
 
            A.  Arrests, Searches and Seizures
 
            Art. III, Sec. 2.  The right of the people to be
secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever
nature and for any purpose, shall be inviolable, and no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
person or things to be seized. 
 
            Sec. 3.  The privacy of communication and
correspondence shall be inviolable, except upon lawful
order of the court, or when public safety or order
requires otherwise as prescribed by law.            Any
evidence obtained in violation of this or the preceding 
section, shall be inadmissible for any purpose in any
proceeding.
                        1.  Requirements for Search Warrants
 
 
Yee Sue Kuy v. Almeda, 70 Phil. 141 (1940)
 
F:         By virtue of the sworn application of Almeda, the
Chief agent of the Anti-Usury Board, a SW was issued to
search the store and premises of the petitioner, accused of
violating the Anti-Usury Law. Receipt books, PNs and other
articles were seized and retained in the possession of the
Anti-Usury Board.
 
ISSUE: W/n the requirements for the issuance of valid SW
were complied with.
RULING: YES. The applicant, Almeda, in his application,
swore that  "he made his own personal investigation and
ascertained that petitioner is lending money without a
license, charging usurious rates." The witness he presentted
testified before the judge and swore that he knew that YEE
was lending without a license because he personally
investigated the victims who secured loans from the
petitioner. Their affidavits were sufficient for, thereunder,
CONSTITUTIONAL LAW 2
they could be held liable for perjury. The existence of
probable cause has been determined by the justice of the
peace before issuing the warrant complained of, as shown in
the warrant itself.  Charo.
 
 
Pasion vda. de Garcia v. Locsin, 65 Phil. 689, (1938)
 
F:         This is a petition for mandamus presented to secure
the annulment of a search warrant (SW) & 2 orders of the
resp. judge, & the restoration of certain documents alleged
to have been illegally seized by an agent of the Anti-Usury
Board.
                Almeda, an agent of the Anti-Usury Board,
obtained from the justice of the peace of Tarlac, Tarlac, a
SW, commanding any officer of the law "to search the
person, house or store of the petitioner for certain books,
lists, chits, receipts, documents & other papers relating to
her activities as userer."
                On the same date, Almeda, accompanied by a
captain of the PC, went to the office of the petitioner, and
after showing the SW to the petitioner's bookeeper, Salas, &
w/o the presence of the petitioner, who was ill and confined
at that time, proceeded w/ the execution thereof.  Two
packages of records & a locked filing cabinet containing
several papers and documents were seized by Almeda and a
receipt thereof issued by him to Salas.  Separate criminal
cases were filed against petitioner.  Petitioner demanded the
return of the documents seized.  Bu motion, pet. challenged
the legality of the SW and the devolution of the documents
demanded.  By resolution, the resp. judge of CFI denied the
petitioner's motion for the reason that though the SW was
illegal, there was a waiver on the part of the petitioner.    and distribution of the newspapers as well as papers and
                The resolution of 10/5/37 & the order of 1/3/38
are sought, together w/ the SW, to be nullified in these
proceedings.
 
HELD:  Freedom from unreasonable searches and seizures
is declared a popular right and for a SW to be valid, (1) it
must be issued upon probable cause; (2)  the probable
cause must be determined by the judge himself and not by
the applicant or another; (3)  in the determination of
probable cause, the judge must examine, under oath or
affirmation, the complainant and such witnesses as the
latter may produce; & (4)  the warrant issued must
particularly describe the place to be searched and persons
or things to be seized.
            In the instant case, the existence of probable cause
was determined not by the judge himself but by the
applicant.  All that the judge did was to accept as true the
affidavit made by agent Almeda.  It does not appear that he
examined the applicant and his witnesses, if any.  Even
accepting the description of the prop. to be seized to be
sufficient and on the assumption that the receipt issued is
sufficiently detailed w/in the meaning of the law, the prop.
seized were not delivered to the court w/c issued the
warrant, as required by law.  Instead, they were turned over
to the resp. provincial fiscal & used by him in building up
cases against petitioner.  Considering that at the time the
warrant was issued, there was no case pending against the
petitioner, the averment that the warrant was issued
primarily for exploration purposes is not w/o basis.              mimeographing machines and tape recorders, video
ZPG & ASSOCIATES
            IS THERE A WAIVER?  No express waiver. 
            IS THERE AN IMPLIED WAIVER?  None.
 
            To constitute a waiver of constitutional right, it must
appear first that (1)  the right exists; (2)  that the person
involved had knowledge, actual or constructive, of the
existence of such right; (3)  that said person had an actual
intention to relinquish the right.
            It is true that the petitioner did not object to the
legality of the search when it was made.  She  could not
have objected bec. she was sick & was not present when the
warrant was served upon Salas.  Certainly, the constitutional
immunity from unreasonable searches and seizures, being a
personal one, cannot be waived by anyone except by the
person whose rights are invaded or one who is expressly
authorized to do so in his or her behalf.  The failure on the
part of the petitioner and her bookkeeper to resist or object
to the execution of the warrant does not constitute an
implied waiver of the consti. right.  It is but a submission to
the authority of the law.  The delay in making the demand
for the return of the documents seized is not such as to result
im implied. waiver.  RAM.    
 
 
Burgos v. Chief of Staff  133 SCRA 800 (1984)
 
Illegal search of newspaper offices and press freedom
 
F:         On the basis of two warrants issued by the RTC of
QC, the offices of the Metropolitan Mail and the We Forum
were search and printing machines, paraphernalia, motor
vehicles and other articles used in the printing, publication
other literature seized on the ground that they were used in
the commission of the crime of subversion. Petitioners
brought and action to annul the warrants and compel the
return of the things seized.
 
HELD:  Petitioners' thesis is impressed with merit. Probable
cause for a search is defined as such facts and circumstances
which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the
objects sought in connection  with the offense are in the
place sought to be searched. When addressed to a newspaper
publisher or editor, the application for a warrant  must
contain a specification stating with particularity the alleged
subversive materials he has published or intending to
publish.  Broad statement in the application is a mere
conclusion of law and does not satisfy the requirement of
probable cause. Another factor that makes the search
warrants constitutionally objectionable is that they are in the
nature of general warrants. In Stanford v. State of Texas, the
US SC declared this type of warrant void. VV.
 
 
Corro v. Lising  137 SCRA 341 (1985)
 
F:         Respondent Judge issued a search warrant for the
seizure of articles allegedly used by petitioner in committing
the crime of sedition. Seized were printed copies of the
Philippine Times, newspaper dummies, typewriters,
CONSTITUTIONAL LAW 2
machines and tapes. The petitioner moved to quash the
warrant but his motion was denied.
 
HELD:  The statements made in the affidavits are mere
conclusions of law and do not satisfy the requirement of
probable cause. The language used is all embracing as to
include all conceivable words and equipment of petitioner
regardless of whether they are legal or illegal. The search
warrant under consideration was in the nature of a general
warrant which is objectionable. VV.
 
 
Bache & Co. (Phil.) v. Ruiz, 37 SCRA 823 (1971)
 
F:         The Com. of Internal Revenue through Rev.
Examiner de Leon filed an application for a SW against
Bache & Co. and its pres., Seggerman for violation of the
provisons of the NIRC. As Judge Ruiz was then conducting
a hearing, the deposition of de Leon and his witness,
Logronio, was taken by the Dep. Clerk of Court. The
deposition was later read to the judge who asked the witness
to take an oath as to the truth of his statements. The judge
then signed the SW and accordingly issued the same.
 
ISSUE: W/n the requirements for the issuance of valid SW
were complied with.
 
RULING: NO. The judge did not personally examine the
complainant and his witnesses. The judge did not have the
opportunity to  observe tthe demeanor of the deponents and
to propound initial and follow-up questions which his
judicial mind, on account of his training, was in the best
position to conceive. This is important in arriving at a sound
inference on the all-importatnt question of w/n there was
probable cause.  Charo.
 
Prudente v. Dayrit, 180 SCRA 69 (1990)
 
F:         Judge Dayrit, upon applicatin of P/Maj.
Dimagmaliw, supported by a "Deposition of Witness,"
executed by P/Lt. Angeles, issued a search warrant for the
search and seizure of arms, ammunitions and explosives in
the premises of the PUP which were supposed to be in
possession of Dr. Prudente. In enforcing the warrant, 3
fragmentation grenades were found in the bathroom of the
office of Dr. Prudente.
 
ISSUE:  W/n the searrch warrant was valid.
 
RULING: NO.
            (1) The warant was not issued on the basis of
personal knowledge of the applicant and his witness. The
probable cause required under the Constitution for the
issuance of a search warrant must be in connection with one
specific offense, and the judge must, before issuing the
warrant, personally examine in the form of searching
questions and answers, in writing and under oath, the  V. Galit, the Court declared that: " At the time the person is
complainant and any witnesses he may produce, on facts
personally known to them and attach to the record their
sworn statements together with any affidavit submitted.
However, in the case at bar, Dimagmaliw merely stated in
his application that his knowledge was based "on gathered
ZPG & ASSOCIATES
infrmation from verified sources." The same holds true for
the affidavit of Angeles.
            Moreover, the judge did not examine Angeles in the
form of searching questions and  answers. What appears on
the record are leading questions answereable by yes or no.
 
            (2) As to the claim that the SW failed to particularly
describe the place to be searched, the SC ruled that the
description of the place to be searched is sufficient if the
officer with the warrant can, with reasonable effort,
ascertain and identify the place intended to be searched.
Here, the SW described the place as PUP, with its address
and specifically mentioned the offices of the "Dept. of
Military Science and Tactics on the ground floor  and the
Office of the President at the 2nd floor and the other rooms
in that floor." This is deemed sufficient.
 
            (3) There was also an issue as to w/n the SW was
issued for one specific offense. The warrrant was issued for
violation of PD 1866 which punishes several offenses.
While there was failure to state the particular provision of
the law violated, the warrant itself qualified the description
of the offense as "illegal possession of firearms, etc." This
suffices to cure the defect.
            The fact that the word "etc." was added to refer to
ammunitions and explosives did not violate the rule on
single offense, for notwithstanding that possession of
firearms, explosives and ammunitions are punished in
different sections of the PD, they are treated as belonging to
a single specie. An exception to the rule that a warant shall
be issued for a single offense is when existing laws
prescribe a single punishment for various offenses.  Charo.
 
 
Olaes v. People, 155 SCRA 486 (1987)
F:         Petitioners  claim that the SW issued by resp. judge 
was invalid. They also question the extrajudicial confession
taken from them without according them the right to
assistance of a counsel. The articles seized by virtue of the
SW consisting of dried marijuana were admitted as evidence
for violation of RA 6425 or Dangerous Drugs Act.
 
RULING: While it is true that the caption of the SW states
that it is in connection with "the violation of RA 6425," it is
clearly recited in the text thereof that "there is probable
cause to believe that Olaes of Olongapo City has in his
possession and control, marijuana dried stalks which are
suject of the offense stated above." Although the specific
section of the law is not stated, there is no question at all
that the specific offense alleged to have been committed as 
basis for determining probable  cause is alleged.
Furthermore, the SW  specifically described the place to be
searched and the things to be seized.
 
            As to the extrajudicial confessions of the accused,
the same are deemed inadmissible against them. In People
arrested, it shall be the duty of the arresting officer to inform
him of the reason for the arrrest and he must be shown the
warrant of arrest, if any; he shall be informed of his
constitutional rights to remain silent and to counsel, and that
any statement he might make could be used against him.
CONSTITUTIONAL LAW 2
The person arrested shall have the right to communicate
with his lawyer, a relative, or anyone he chooses by the most
expedient means - by telephone if possible - or by letter or
messenger. It shall be the responsibility of the arresting
officer to see to it that this is accomplished. No custodial
investigation shall be conducted unless it be in the presence
of counsel engaged by the person arrested, by any person on
his behalf, or appointed by the court upon petition either of
the detainee himself or by anyone on his behalf. The right to
counsel may be waived but the wiaver shall not be valid
unless made with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid down,
whether exculpatory or inculpatory, in whole or in part, shall
be inadmissible in evidence."
 
            These requirements were even made stricter under
the 1987 Constitution which provides that the rights of a
person under custodial investigation cannot be waived
except when made in writing and in the presence of
counsel.  Charo.
 
 
Presidential Anti-Dollar Salting Task Force v. CA, 171
SCRA 348 (1989)
 
F:         The PASTF was created by virtue of PD 1936 to
serve as the President's arm called upon to combat the vice
of dollar salting or the blackmarketing and salting of foreign
exchange.
 
ISSUE: W/N the PASTF is "such other officer as may be
authorized by law" to issue warrants under the 1973
Constitition.
 
RULING: NO. The Court, in reviewing the powers of the
PASTF under its enabling law, sees nothing that will reveal
a legislative intendement to confer upon the body, quasi-
judicial responsiibilities relative to offenses punishable by
PD 1883. Its undertaking is simply to determine w/n
probable cause exists to warrant the filing of charges with
the proper court, meaning to say, to conduct an inquiry
preliminary to a judicial recourse, and to recommend action
of appropriate authorities.
            The Court agrees that PASTF exercises, or was
meant to exercise, prosecutorial powers, and on that ground,
it cannot be said to be a neutral and detached judge to
determine the existence of probable cause for purposes of
arrest or search. Unlike a magistrate, a prosecutor is
naturally interested in the success of his case. Although his
office "is to see to it that justice if done and not necessarily
to secure the conviction of the accused," he stands
invariably, as the accused's adversary and his accuser. To
permit him to issue warrrants and indeed, warrants of arrest,
is to make him both judge and jury in his own right, when
he is neither. This makes to our mind and to that extent, PD
1636 as amended by PD 2002, unconstitutional.
            The "responsible officer" referred to under the
Cosntitution is one not only possessing the necessary skills
and competence but more significantly, the neutrality and
independence comparable to the impartiality presumed of a
judicial officer.  a warrant; the offensive and much abused phrase "and other
 
 
ZPG & ASSOCIATES
Salazar v. Achacoso, 183 SCRA 145
 
F:         Pursuant to the powers vested by PD 1920 and EO
1022, POEA Administrator Achacoso ordered the closure of
the recruitment agency of Horty Salazar, having verified that
she had no license to operate a recruitment agency.  He
further ordered the seizure of the documents and
paraphernalias, being used or intended to be used as  the
means of commiting illegal recruitment.  This order was
enforced  on 26 January 1988.  Petitioner filed this suit  for
prohibition.
 
Issue:  May the POEA (or the Sec. of Labor) validly issue
warrants of serach and seizure (or arrest ) under Art. 38 of
the Labor Code?                
 
HELD:  NO.
            The provisions of PD 1920 and EO 1022, now
embodied in Art. 38 of the Labor Code, are the dying
vestiges of authoritarian rule in its twilights moments. 
Under Art. III, Sec 2 of the 1987 Constitution, it is only
judges and no other, who may issue warrants of arrest and
search.  The exception is in cases of deportation of illegal
and undesirable aliens, whom the President of the
Commissioner of Immigration may order arrested, following
a final order of deportation, for the purpose of deportation. 
The Sec. of Labor , not being a judge. may no longer issue
search or arrest warrants.  Hence, the authorities must go
through the judicial process.  To that extent, we declare Art.
38, par. C of the Labor Code, unconstitutional and of no
force and effect. 
 
  
  a.  Existence of probable cause.
 
            Probable cause is such facts and circumstances as
would reasonably make a prudent man believe that a crime
have been committed and that the documents or things
sought to be searched and seized are in the possession of the
person against whom the warrant is sought.  Without
probable cause, there can be no valid search warrant.
 
                        In Stonehill v. Diokno, 20 SCRA 385
(1967), 42 search warrants were issued for alleged violation
of Central Bank Laws, the Tariff and Customs Code, the
NIRC, and the Revised Penal Code. The SC voided the
warrants on the ground that it was impossible for the judge
to have found probable cause in view of the number of laws
alleged to have been violated by the petitioner.  How could
he even know what particular provision of each law had
been violated?  If he did not know this, how could it be
determined if the person against whom the warrant was
issued was probably guilty thereof?  In truth, this was a
fishing expedition, which violated the sanctity of domicile
and privacy of communications.  To establish the require-
ment of probable cause, the rule is: One crime, one warrant.
 
    b.  As determined by a judge
 
            Under the 1987 Constitution, only a judge can issue
responsible officer as may be authorized by law" in the 1973
Constitution has been removed
CONSTITUTIONAL LAW 2
 
 c.  After personally examining under oath or
affirmation the complainant and his witness.
 
            The examination conducted by the judge takes the
form of searching questions.
 
            The requirement that the judge must personally
examine the complainant and his witnesses means that the
actual examination cannot be delegated to someone else,
like the clerk of court.
 
            So said the Court in Bache and Co. (Phil) v. Ruiz, 37
SCRA 823 (1971).  In this case, when the BIR agent and his
witnesses arrived in court in the middle of a hearing, the
judge suspended the hearing and directed the branch clerk to
examine and take the testimony of the witnesses in his
chambers.  After he was through with the hearing, he went
back to his chambers and finding that the examination was
finished, asked the BIR agent and his witnesses if they
affirmed what they what they testified to, after which he
issued the search warrant in question.
d.  On the basis of their personal knowledge of the facts
that they are testifying to.
 
            The determination of the reasonableness of the
judicial warrant must be based on the affidavit of one who
has personal knowledge of the facts to which he testifies. 
The testimony cannot be based on mere belief.  Neither can
it be based on a report.  Otherwise, the warrant is void.
 
            Thus, in Burgos v. Chief of Staff, 133 SCRA 800
(1984), reiterating the 1937 case of Rodriguez v. Villamiel,
the testimony based on a military report that the newspaper
We Forum was used for subversive were held to be not a
personal knowledge and so was inadmissible.
            Likewise, in Corro v. Lising, 137 SCRA 541 (1985),
the testimony based on investigation reports that certain
items in the Philippine Times were subversive were held to
be not personal knowledge, and thus the search warrant
issued was not valid.
 e.  The search warrant must describe particularly
describe the place to be searched and the things to be
seized.
 
            Failure to state with particularity the place to be
searched and items to be seized makes the warrant used for
fishing evidence (a general warrant) which is void.
 
            In Burgos v. Chief of Staff, the description which
read "subversive documents, leaflets, papers to promote the
objective of the Movement for a Free Philippines, the Light
a Fire Movement, and the April 6 Movement" were held not
to be particular descriptions, thus making the warrant a
general warrant.
 
            In Corro v. Lising, the search and seizure of "printed
copies and dummies of Philippine Times, subversive
documents, articles, printed matters, handbills, leaflets,
banners, and typewriters, tape recorders, etc." was again
ZPG & ASSOCIATES
invalidated for the description was not at all particular or
specific, thus making the warrants general warrants.
 
              When it comes to printed matters, the offensive
material need not be set out in full.  It is enough if it
specifies the issues and the title of the articles.  The
instruction to seize "subversive materials" is not valid
because the determination of whether a material is
subversive or not is not for the police officer to decide; no
unfettered discretion must be granted to him.
 
            The matter is different if goods were searched and
seized because of their intrinsic quality (as when they are
stolen or smuggled), than if the goods were searched for the
ideas they contain (as when a "subversive newspaper is
sought).  In the latter case, a more detailed description of the
physical features of the item is required to avoid delegating
the appreciation of ideas, and thus threaten free expression. 
 
  2.  When Search May Be Made without a Warrant
 
  (a)  When search is made of moving vehicles 
            The reason is the person may escape easily if a
warrant has to be applied for the mean time.  In the Tariff
and Customs Code, customs agents are specifically
authorized to search and seize vehicles even without a
warrant.
 
            Checkpoints are valid in some instances depending
on the purpose (e.g. apprehend a suspected criminal) and the
circumstances (e.g. probable cause that the criminal is inside
the car).  There is no question that when a child has been
reported kidnapped in a community, the police can stop all
cars and check if the detained child is in any one of them.
 
 (b)  When search is an an incident to a valid arrest.
            Rule 126, Sec. 12.  Search incident to lawful
arrest.--  A person lawfully arrested may be searched for
dangerous weapons or anything which may be used as
proof of the commission of an offense, without a search
warrant.  (Rules of Court.)    
            A person arrested may be searched for dangerous
weapons or anything that proves the commission of the
offense.  It follows that the search can only be made within
the area of control of the arrested person, and within the
time of the arrest.
 
            In Nolasco v. Cruz Pano, 139 SCRA 152 (1985);
Milagros Roque and Cynthia Nolasco were arrested at the
intersection of Mayon and Margal Streets in QC at 11:30
a.m., having been wanted as high officers of the CPP.  At
12:00 noon, Roque's apartment located 2 blocks away, was
searched and some documents seized.  The SC at first held
that the search was valid even if the warrant issued was void
for failing to describe with particularity the things to be
seized, because it was an incident of a valid arrest.
 
            But after the EDSA revolution, the reconstituted SC
granted the motion for reconsideration and held that just
because there was a valid arrest did not mean that the search
CONSTITUTIONAL LAW 2
was likewise valid.  To be valid, the search must be
"incidental" to the arrest, that is, not separated by time or
place from the arrest.  If the basis for allowing incidental
searches is looked into, one can see that this situation is not
one involving a valid incidental search.
            The law allows the arresting officer to search a
person validly arrested (by frisking him for instance)
because (a) a weapon held by the arrested person may be
turned against his captor and (b) he may destroy the proof of
the crime, if the arrested officer has to first apply for a
search warrant from a judge.
 
            If, in the Nolasco case, the search was conducted 30
minutes after the arrest, there is no longer any danger that
the captured may turn against the captor; and if the
documents in the apartment were 2 blocks away, the search
would no longer be justified since there is no way for Roque
to go back to the apartment and destroy the documents,
having been arrested already.
 
 
Nolasco v. Cruz Paño  139 SCRA 152 (1985)
 
F:         Milagros Aguilar-Roque was arrested together with
Cynthia Nolasco by the Constabulary Security Group.
Milagrso had been wanted as a high ranking officer of the
CPP. The arrest took place at 11:30 a.m. of August 6, 1984.
At noon of the same day, her premises were searched and
428 documents, a portable typewriter and 2 boxes were
seized. Earlier that day, Judge Cruz Paño issued a search
warrant for rebellion against Milagros. On the basis of the
documents seized, charges of subversion and rebellion were
filed but the fiscal's office merely charged her and Nolasco
with illegal possession of subversive materials. Milagros
asked for suppression of the evidence on the ground that it
was illegally obtained. The search warrant described the
things to be seized as "Documents, papers and other records
of the CPP, NPA and NDF, xxx".
 
HELD:  The search warrant is void because it fails to
describe with particularity the things to be seized. It does not
specify what the subversive books and instructions are and
what the manuals not otherwise available to the public
contain to make them subversive. There is absent a definite
guideline as to what items might lawfully be seized, thus
giving the officers discretion regarding what articles they
should seize. It is thus in the nature of a general warrant. But
the seizure of the articles could be justified as an incident of
a valid arrest. It is a general rule that, as an incident of an
arrest, the place of premises where the arrest was made can
also be searched without a search warrant.
  
 (c)  When things seized are within plain view of a
searching party
 
 Roan v. Gonzales, 145 SCRA 687 (1986)
 
F:         The challenged SW was issued by the resp. judge on
5/10/84.  The petitioner's house was searched 2 days later
but none of the articles listed in the warrant was discovered.  MANIFESTED HIS CONFORMITY IN WRITING.
The officers conducting the search found 1 colt Magnum
ZPG & ASSOCIATES
revolver & 18 live bullets w/c they confiscated.  They are
now the bases of the charge against the petitioner.
 
RULING:  Search warrant issued by resp. judge is hereby
declared null and void and accordingly set aside.
            The petitioner claims that no depositions were taken
by the resp. judge in accordance w/ Rule 126, Sec. 4 of the
ROC, but this is not entirely true.  Depositions were taken of
the complainant's 2 witnesses in addition to the affidavit
executed by them.  It is correct to say, however, that the
complainant himself was not subjected to a similar
interrogation.
            By his own accounts, all that resp. judge did was
question Capt. Quillosa on the contents of his affidavit only
"to ascertain among others, if he knew and understood the
same," and only bec. "the application was not yet subscribed
and sworn to."  The suggestion is that he would not have
asked any questions at all if the affidavit had already been
completed when it was submitted to him.  In any case, he
did not ask his own searching questions.  He limited himself
to the contents of the affidavit.  He did not take the
applicant's deposition in writing and attach them to the
record, together w/ the affidavit presented to him.  Such
written deposition is necessary in order that the Judge may
be able to properly determine the existence or non-existence
of the probable cause, to hold liable for perjury the person
giving it if it will be found later that his declarations are
false.  (Mata v. Bayona.)
            The applicant was asking for the issuance of the SW
on the basis of mere hearsay and not of info. personally
known to him.  His application, standing alone, was
insufficient to justify the issuance of the warrant sought.  It
was, therefore, necessary for the witnesses themselves, by
their own personal info., to establish the applicant's claims.
            Even assuming then that it would have suffied to
take the deposition only of the witnesses and not of the
applicant himself, there is still the question of the
sufficiency of their depositions.
            A study of the deposition taken from witnesess
Esmael Morada and Jesus Tohilida, who both claimed to be
"intelligence informers," shows that they were in the main a
mere restatement of their allegations in their affidavits,
except that they were made in the form of answers to the
questions put to them by the resp. judge.
            One may well wonder why it did not occur to the
resp. judge to ask how the witness could be so certain even
as to the caliber of the guns, or how far he was from the
window, or whether it was on the first floor or second floor,
or why his presence was not noticed at all, or if the acts
related were really done openly, in the full view of the
witnesses, considering that these acts were against the law. 
These would have been judicious questions but they were
injudiciously omitted.  Instead, the declaration of the
witnesses were readily accepted and the warrant sought was
issued forthwith.
 
SOL-GEN ARGUES THAT THE PETITIONER WAIVED
WHATEVER DEFECT WHEN THE PETITIONER
VOLUNTARILY SUBMITTED TO THE SEARCH AND
 
CONSTITUTIONAL LAW 2
            We do not agree.  What we see here is pressure
exerted by the military authorities, who practically coerced
the petitioner to sign the supposed waiver as guaranty
against a possible challenge later to the validity of the search
they were conducting.
 
            Malum Prohibitum.--  It does not follow that bec.
an offense is malum prohibitum, the subject thereof is
necessarily illegal per se.  Motive is immaterial in mala
prohibita, but the subjects of this kind of offense may not be
summarily seized simply bec. they are prohibited.  A SW is
still necessary.
 
            Motion to Quash.--  Petitioner should have, before
coming to the SC, filed a motion to quash the search warrant
by the resp. judge.  But as we said and did in Burgos, "this
procedural flaw notwithstanding, we take cognizance of this
petition in view of the seriousness and urgency of the
consitutional issues raised."  RAM.
 
 
Pita v. CA, 178 SCRA 362 (1989)
 
F:         Pursuant to the Anti-Smut Campaign of Mayor
Ramon Bagatsng, policemen seized and confiscated  from
dealers, distributors, newsstand owners and peddlers along
Manila sidewalks, magazines, publications and other
reading materials believed to be obscene, pornographic, and
indecent and later burned the seized materials in public.    ROC, a person lawfully arrested may be searched for
Among the publications seized and later burned was "Pinoy
Playboy" magazines published and co-edited by plaintiff
Leo Pita.  After his injunctive relief was dismissed by the
RTC and his appeal rejected by CA, he seeks review with
SC, invoking the guaranty against unreasonable searches
and seizure.
 
Issue:  W/N the search and seizure was illegal        attempting to commit an offense, or when an offense has in
 
HELD:  YES.
            It is basic that searches and seizure may be done
only through a judicial warrant , otherwise, they become
unreasonable  and subject to challenge.  In Burgos v Chief
of Staff (133 SCRA 800) , the SC countermanded the orders
of the RTC  authorizing the serach  of the premises WE
Forum and Metropolitan Mail, two Metro Manila Dailies, by
reason of a defective warrant.  There is a greater reason in
this case to reprobate the questioned raid, in the complete
absence of a warrant, valid or invalid.  The fact that the
instant case involves an obscenity rap makes it no different
from Burgos, a political case, because speech is speech,
whether political or "obscene".
            The authorities must apply for the issuance of the a
search warrant from the judge , if in their opinion, an
obscenity rap is in order.  They must convince the court that
the materials sought to be seized are "obscene" and pose a
clear and present danger of an evil substantive enough to
warrant State interference and action.  The judge must
determine WON the same are indeed "obscene": the
question is to be resolved on a case-to-case basis and on the
judge's sound discretion.  If probable cause exist, a search
warrant will issue.  the same.
 
 
ZPG & ASSOCIATES
  (d)  Stop and Frisk
 
Posadas v. CA, 188 SCRA 288 (1990)
 
F:         Patrolmans Ungab and Umpar, both members of the
INP of the Davao Metrodiscom assigned w/ the Intelligence
Task Force, were conducting a surveillance along
Magallanes, St., Davao City.  While they were w/in the
premises of the Rizal Memorial Colleges, they spotted
petitioner carrying a "buri" bag & they noticed him to be
acting suspiciously.  They approached the petitioner and
identified themselves as members of the INP.  Petitioner
attempted to flee but was stopped by the 2.  They then
checked the "buri" bag of the petitioner where they found 1
caliber .38 Smith & Wesson revolver, w/ 2 rounds of live
ammunition for a .38 cal. gun, a smoke grenade, & 2 live
ammunition for a .22 cal. gun.  Petitioner was brought to the
police station for further investigation.  He was prosecuted
for illegal possession of firearms and ammunitions in the
RTC of Davao City wherein after a plea of not guilty, and
trial on the merits, a decision was rendered finding
petitioner guilty.  The CA affirmed the appealed decision in
toto.                              
                Hence, the petition for review, the main thrust of
w/c is that there being no lawful arrest or search and seizure,
the items w/c were confiscated from the possession of the
petitioner are inadmissible in evidence against him.
                The Sol-Gen argues that under Sec. 12, R 136 of
dangerous weapons or anything (w/c may be) used as proof
of a commission of an offense, w/o a SW.
               
HELD:  From Sec. 5, R 113, ROC, it is clear that an arrest
w/o a warrant may be effected by a peace officer or private
person, among others, when in his presence the person to be
arrested has committed, is actually committing, or is
fact, just been committed, & he has personal knowledge of
the facts indicating that the person arrested has committed it.
            At the time the peace officers identified themselves
and apprehended the petitioner as he attempted to flee, they
did not know that he had committed, or was actually
committing, the offense.  They just suspected that he was
hiding something in the buri bag.  They did not know what
its contents were.  The said circumstances did not justify an
arrest w/o a warrant.
            However, there are many instances where a warrant
& seizure can be effected w/o necessarily being preceded by
an arrest, foremost of w/c is the 'stop & search' w/o a SW at
military or police checkpoints, the constitutionality of w/c
has been upheld by this Court in Valmonte v. de Villa.
            As bet. a warrantless search and seizure (S & S)
conducted at military or police checkpoints and the search
thereof in the case at bar, there is no question that, indeed,
the latter is more reasonable considering that, unlike in the
former, it was effected on the basis of a probable cause.  The
probable cause is that when the petitioner acted suspiciously
and attempted to flee w/ the buri bag, there was a probable
cause that he was concealing something illegal in the bag
and it was the right and duty of the police officers to inspect
            It is too much indeed to require the police officers to
search the bag in the possession of the petitioner only after
CONSTITUTIONAL LAW 2
they shall have obtained a SW for the purpose.  Such an
exercise may prove to be useless, futile and much too late.
            As the Sol-Gen said:
 
                "The assailed S & S may still be
justified as akin to a 'stop and frisk'
situation whose object is either to
determine the identity of suspicious
individuals or to maintain the status quo
momentarily while the police officers
seeks to obtain more info. ...  The US SC
held in Terry v. Ohio that "a police officer
may in appropriate circumstances & in an
appropriate manner approach a person for
the purpose of investigating possible
criminal behaviour even though there is no
probable cause to make an arrest."  In such
a situation, it is reasonable for an officer
rather than simply to shrug his shoulder
and allow a crime to occur, to stop a
suspicious individual briefly in order to
determine his identity or maintaing the
status quo while obtaining more info." 
PETITION DENIED.  RAM.
 
 (e)  When there is a valid express waiver made voluntarily
and intelligently.
 
            Waiver cannot be implied from the fact that the
person consented or did not object to the search, for it many
happen that he did so only out of respect for the authorities.  firearms in furtherance of rebellion, but was acquitted of
The waiver must be expressly made.
 
People v. De lara
 
F:         After a surveillance conducted, a buy-bust operation
was conducted by the police, as a consequence of which,
accused was arrested.  The accused already pocketed the
marked money and handed two foils to the police when he
sensed the presence of police operatives.  He tried to retrieve
the two foils but he was prevented from doing so.  He tried
to escape by running inside his house.  The police pursued
him and were able to subdue him.  The accused admitted
that he kept prohibited drugs in his house.  He even showed
the arresting officers a blue plastic bag containing prohibited
drugs.  The team, together with the accused, proceeded to
WPD headquarters for investigation.  During the
investigation, accused was apprised of his constitutional
rights to remain silent and to have the assistance of counsel. 
When appellant was asked to give a written statement, he
refused to do so pending arrival of his lawyer.  Accused
contends that his arrest and the seizure of the bag containing
prohibited drugs was null and void.  He also contends that
he was not assisted by counsel during custodial
investigation, where he was forced to sign the photocopy of
the marked money,  the Receipt of Property Seized, and the
Booking and Information Sheet.
 
ISSUE:  Whether or not the arrest of the accused and the
seizure of the plastic bag were valid.
ZPG & ASSOCIATES
 
RULING:  YES.  The accused was caught in flagrante as a
result of a buy-bust operation.  There was no need for a
warrant.  The policemen were not only authorized but were
also under obligation to apprehend the drug pusher even
without a warrant.  The policemen’s entry into the house of
the accused without a search warrant was in hot-pursuit of a
person caught committing an offense in flagrante.  The
arrest that followed the hot-pursuit was valid.  The seizure
of the plastic bag was the result of the accused’s arrest
inside the house.  A contemporaneous search may be
conducted upon the person of the arrestee and the immediate
vicinity where the arrest was made.
 
ISSUE:  Whether the documents signed by the accused
during the investigation were admissible in evidence.
 
RULING:  NO.  There was no showing that accused was
then assisted by counsel nor his waiver thereto put into
writing.  (The rejection of these evidence would not affect
the conviction of the accused in view of the abundance of
other evidence establishing his guilt.)  Bam.
 
People v. de Gracia, 233 SCRA 716  (July  6, 1994)
F:         The incidents involved in this case took place at the
height of the coup d'etat staged in December, 1989. 
Accused-appellant Rolando de Gracia was charged in two
separate informations for illegal possession of ammunition
and explosives in furtherance of rebellion, and for attempted
homicide. Appellant was convicted for illegal possession of
attempted homicide.
                Surveillance was undertaken by the military along
EDSA because of intelligence reports                           about
a coup.  Members of  the team were engaged  by rebels in
gunfire killing one member of the team.   A searching team
raided the Eurocar Sales Office. They were able to find and
confiscate six cartons of M-16 ammunition, five bundles of
C-4 dynamites, M-shells of different calibers, and "molotov"
bombs inside one of the rooms belonging to a certain Col.
Matillano. De Gracia was seen inside the office of Col.
Matillano, holding a C-4 and suspiciously peeping through a
door. The team arrested appellant. They were then made to
sign an inventory, written in Tagalog, of the explosives and
ammunition confiscated by the raiding team. No search
warrant was secured by the raiding team.  Accused was
found guilty of  illegal possession of  firearms.
                That judgment of conviction is now challenged
before us in this appeal.
 
Issue:  Whether or not there was a valid search and seizure
in this case.
 
Ruling: YES
            It is admitted that the military operatives who raided
the Eurocar Sales Office were not armed with a search
warrant at that time.  The raid was actually precipitated by
intelligence reports that said office was being used as
headquarters by the RAM.  Prior to the raid, there was a
surveillance conducted on the premises wherein the
surveillance team was fired at by a group of men coming
CONSTITUTIONAL LAW 2
from the Eurocar building. When the military operatives
raided the place, the occupants thereof refused to open the
door despite requests for them to do so, thereby compelling
the former to break into the office.  The Eurocar Sales
Office is obviously not a gun store and it is definitely not an
armory or arsenal which are the usual depositories for
explosives and ammunition. It is primarily and solely
engaged in the sale of automobiles. The presence of an
unusual quantity of high-powered firearms and explosives
could not be justifiably or even colorably explained. In
addition, there was general chaos and disorder at that time
because of simultaneous and intense firing within the
vicinity of the office and in the nearby Camp Aguinaldo
which was under attack by rebel forces.  The courts in the
surrounding areas were obviously closed and, for that
matter, the building and houses therein were deserted.
 
            Under the foregoing circumstances, it is our
considered opinion that the instant case falls under one of
the exceptions to the prohibition against a warrantless
search. In the first place, the military operatives, taking into
account the facts obtaining in this case, had reasonable
ground to believe that a crime was being committed. There
was consequently more than sufficient probable cause to
warrant their action. Furthermore, under the situation then
prevailing, the raiding team had no opportunity to apply for
and secure a search warrant from the courts. Under such
urgency and exigency of the moment, a search warrant
could lawfully be dispensed with.
            There are two separate statutes penalizing different
offenses with discrete penalties. The Revised Penal Code
treats rebellion as a crime apart from murder, homicide,
arson, or other offenses, such as illegal possession of
firearms, that might conceivably be committed in the course
of a rebellion. Presidential Decree No. 1866 defines and
punishes, as a specific offense, the crime of illegal
possession of firearms committed in the course or as part of
a rebellion.
            Subject to the presence of the requisite elements in
each case, unlawful possession of an unlicensed firearm in
furtherance of rebellion may give rise to separate
prosecutions for a violation of Section 1 of Presidential
Decree No. 1866, and also a violation of Articles 134 and
135 of the Revised Penal Code on rebellion. Double
jeopardy in this case cannot be invoked because the first is
an offense punished by a special law while the second is a
felony punished by the Revised Penal Code, 24 with variant
elements.
            Presidential Decree No. 1866 imposes the death
penalty where the illegal possession of firearms and
ammunition is committed in furtherance of rebellion. At the
time the offense charged in this case was committed under
the governance of that law, the imposition of the death
penalty was proscribed by the Constitution. Consequently,
appellant De Gracia could only be sentenced to serve the
penalty of reclusion perpetua which was correctly meted out
by the trial court, albeit with an erroneous recommendation
in connection therewith.  Guazon v. De Villa, 181 SCRA 623 (1990)
 3.  Constitutionality of checkpoints and "areal target
zonings."
 
Valmonte v. De Villa, 170 SCRA 256 (1989)
ZPG & ASSOCIATES
 
F:            On 1/20/87, the NCRDC was activated w/ the
mission of conducting security operations w/in its area or
responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining
peace and order, and providing an atmosphere conducive to
the social, economic and political dev't of the NCR.  As part
of its duty to maitain peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela and MM.
                Petitioners aver that, bec. of the institution of said
checkpoints, the Valenzuela residents are worried of being
harassed and of their safety being placed at the arbitrary,
capricious and whimsical disposition of the military
manning the checkpoints, considering that their cars and
vehicles are being subjected to regular searches and check-
ups, especially at night or at dawn, w/o a SW and/ or court
order.  Their alleged fear for their safety increased when
Benjamin Parpon, was gaunned down allegedly in cold
blood by members of the NCRDC for ignoring and/ or
continuing to speed off inspite of warning shots fired in the
air. 
 
HELD:  Petitioner's concern for their safety and
apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the
checkpoints per se, illegal.  No proof has been presented
before the Court to show that, in the course of their routine
checks, the military, indeed, committed specific violations
of petitioners' rights against unlawful search and seizure of
other rights.
            The constitutional right against unreasonable
searches and seizures is a personal right invocable only by
those whose rights have been infringed, or threatened to be
infringed.
            Not all searches and seizures are prohibited.  Those
w/c are reasonable are not forbidden.
            The setting up of the questioned checkpoints may be
considered as a security measure to enable the NCRDC to
pursue its mission of establishing effective territorial
defense and maintaining peace and order for the benfit of
the public.  Checkpoints may not also be regarded as
measures to thwart plots to destabilize the govt, in the
interest of public security.
            Between the inherent right of the state to protect its
existence and promote public welfare and an individual's
right against a warrantless search w/c is, however,
reasonably conducted, the former should prevail.
            True, the manning of checkpoints by the military is
susceptible of abuse by the military in the same manner that
all governmental power is susceptible of abuse.  But, at the
cost of occasional inconveninece, discomfort and even
irritation to the citizen, the checkpoints during these
abnormal times, when conducted w/in reasonable limits, are
part of the price we pay for an orderly society and a peaceful
community. 
 
 
F:         This is a petition for prohibition w/ prel. inj. to
prohibit the military and police officers represented by
public respondents from conducting "areal target zonings"
or "saturation drives" in MM.
CONSTITUTIONAL LAW 2
                The 41 petitioners state that they are all of legal
age, bona fide residents of MM and Taxpayers and leaders
in their respective communities.
                Accdg. to the petitioners, the "areal target
zonings" or "saturation drives" are in critical areas
pinpointed by the military and police as places where the
subversives are hiding.  Petitioners claim that the saturation
drives follow a common pattern of human rights abuses.
                Respondents stress 2 points.  First, the resps. have
legal authority to conduct saturation drives.  And, second,
they allege that the accusations of the petitioners about a
deliberate disregard for human rights, are total lies.
                Resps. cite Art. VII, Sec. 17 of the Const.:"The
Pres. shall have control of all the executive departments,
bureaus and offices.  He shall ensure that the laws are
faithfully executed."
                They also cite sec. 18.:"The Pres. shall be the
Commander-in-chief of all AFP and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. xxx
HELD:  The Court believes it is highly probable that some
violations were actually committed.  This is so inspite of the
alleged pleas of barangay officials for the thousands of
residents"to submit themselves voluntarily for character and
personal verification."  However, the remedy is not to stop
all police actions, including the essential  and legitimate
ones.  We see nothing wrong in police making their
presence visibly felt in troubled areas.  Police cannot
respond to riots or violent demonstration if they do not
move in sufficient numbers.  A show of force is sometimes
necesary as long as the rights of the people are protected
and not violated.  A blanket prohibition such as that sought
by the petitioners would limit all police actions to one on
one confrontation where search warrants and warrants of
arrest against specific individuals are easily procured.  the case of doubt as in this case, on WON an extension tel.
Anarchy may reign if the military and the police decide to
sit down in their offices bec. all concerted drives where a
show of force is present are totally prohibited.
            The remedy is not an original action for prohibition
brought through a TP's suit.  Where not one victim
complains, and not one violator is properly charged, the
problem is not initially for the SC.  It is basically one for the
executive departments and for the trial courts.   blackmail or gain some unwarranted advantage over the tel.
            Under the circumstances of this TP's suit, there is no
erring soldier or policeman whom we can order prosecuted.  be punishable must stricly be with the use of the enumerated
In the absence of clear facts ascertained through an orderly
procedure, no permanent relief can be given at this time. 
Further investigation of the petitioners' charges and a hard
look by admin. officials at the policy implications of the
prayed for blanket prohibition are also warranted.
            In the meantime, and in the face of a prima facie
showing that some abuses were probably committed and
could be committed during future police actions, we have to
temporarily restrain the alleged baning on walls, the kicking
in of doors, the herding of half-naked men to assembly areas
for examination of tattoo marks, the violation of residences
even if these are humble shanties of squatters, and other
alleged acts w/c are shocking to the conscience. 
 
 4.  Wire Tapping
 
ZPG & ASSOCIATES
 
Gaanan v. IAC, 145 SCRA 112 (1986)
 
F:         Complainant Atty. Pintor and Montebon offered to
withdraw the complaint for direct assault they  filed against
Laconico after demanding P8,000 from him.  This demand 
was heard by Atty. Gaanan through a telephone extension as
requested by Laconico so as to personally hear the proposed
conditions for the settlement.  Atty. Pintor was subsequently
arrested in an entrapment operation upon receipt of the
money.  Since Atty. Gaanan listened to the telephone
conversation without complainant's consent, complainant
charged Gaanan and Laconico with violation of the Anti-
Wiretapping Act (RA 4200).
 
ISSUE:  W/N an extension telephone is among the
prohibited devices in Sec. 1 of RA 4200 such that iuts use to
overhear a private conversation would constitute an
unlawful interception of communication between 2 parties
using a telephone line.
HELD:  NO
            An extension tel. cannot be placed in the same
category as a dictaphone, dictagraph, or other devices
enumerated in Sec. 1 of the law as the use thereof cannot be
considered as "tapping" the wire or cable of a telephone
line.  This section refers to instruments whose installation or
presence cannot be presumed by the party or parties being
overheard because, by their very nature, they are not of
common usage and their purpose is precisely for tapping,
intercepting, or recording a tel. conversation. The tel.
extension in this case was not installed for that purpose.  It
just happened to be there for ordinary office use.  
            Furthermore, it is a general rule that penal statutes
must be construed strictly in favor of the accused.  Thus in
is included in the phrase "device or arrangement" the penal
statute must be construed as not including an extension tel.
            A perusal of the Senate Congressional Record shows
that our lawmakers intended to discourage, through
punishment, persons suchj as government authorities or
representatives  of organized groups from installing devices
in order to gather evidence for use in court or to intimidate,
users.  Consequently, the mere act of listening , in order to
devices in RA 4200 or others of similar nature. 
 
 5.  What may be seized
 
            Rule 126, sec. 2.  Personal property to be seized.-- 
A search warrant may be issued for the search and
seizure of the following personal property:
            (a)  Subject matter of the offense;
            (b)  Stolen or embezzled and other proceeds or
fruits of the offense; and
            (c)  Used or intended to be used as a means of
committing an offense.  (Rules of Court.)
 
6.  Exclusionary Rule
 
            Art. III, Sec. 3.  xxx
CONSTITUTIONAL LAW 2
            (2)  Any evidence obtained in violation of this
(privacy of communication and correspondence) or the
preceding section (unreasonable searches and seizures) 
shall be inadmissible for any purpose in any proceeding.
 
            One of the remedies of one who was victimized by
an illegal search is to ask for the suppression of the things
seized and the evidence illegally taken.
 
            The exclusionary rule prohibits the use of any
evidence obtained in violation of secs. 2 and 3 (1) of Art. III
for "any purpose" and in "any proceeding".  The evidence is
absolutely useless.  This has not always been the case.
            In Moncado v. People's Court (1948), the SC,
following the U.S. case of Wolf V. Colorado, rules that
evidence illegally obtained is not necessarily excluded if is
otherwise admissible under the rules of evidence.  In such
case, the evidence admitted, without prejudice to any
criminal, civil or administrative liability of the officer who
illegally seized it.  In other words, the admissibility of the
evidence is not effected by the illegality of the means by
which it was acquired.
            It was in Stonehill v. Diokno, supra, following the
U.S. case of Maop v. Ohio 1969, when the exclusionary rule
was first adopted in the Philippines, the SC noting that the
total suppression of the thing seized is the only effective
means of ensuring the constitutional right which it seeks to
preserve.  The Court noted, the insufficiency of the other
remedies (e.g. action for damages, criminal punishment,
resistance), especially in the Philippines where violations
were committed by those in power and were thus equipped
with the pardoning power to water down the gravity of the
other penalties imposed to violators of those constitutional
rights.
 
            The victim may or may not get back the thing seized,
depending on whether it is contraband or not.  It the thing is
contraband, it would not be returned, and only its
suppression can be asked for.  But if the thing is legal, the
party can ask for its return, even if no criminal prosecution
has yet been filed, as in the Stonehill case.
 
Stonehill v. Diokno, 20 SCRA 383 (1967)
 
F:         Upon application of the officers of the govt (resp.
prosecutors), several judges (resp. judges) issued a total of
42 search warrants against petitioners &/ or the corporations
of w/c they were officers, directed to any peace officer, to
search the perons named and/ or the premises of their
offices, warehouses, and/ or residences, and to seize several
personal prop. as the "subject of the offense; stolen or
embezelled or the fruits of the offense," or "used or intended
to be used as the means of committing the offense" as
violation of CB Laws, Tariff and Customs Laws (TCC),
NIRC and the RPC."
                Alleging that the aforementioned search warrants
are null & void, said petitioners filed w/ the SC this orig.
action for certiorari, prohibition, mandamus & injunction.  entertain an action not only against the task force but even
The writ was partially lifted or dissolved, insofar as the
papers, documents, and things seized from the officers of the
ZPG & ASSOCIATES
corporations; but the injunction was maintained as regards
those found & seized in the residences of petitioners.
 
ISSUES:     (1)  With respect to those found & seized in the
offices of the corporations, w/n petitioners have cause of
action to assail the validity of the contested warrants.
                  (2)  In connection w/ those found & seized in the
residences of petitioners, w/n the search warrants in question
and the searches and seizures made under the authority
thereof are valid.
                  (3)  If the answer in no. 2 is no, w/n said
documents, papers and things may be used in evidence
against petitioners.
HELD: (1)  No.  Petitioners have no cause of action to assail
the legality of the contested warrants and the seizure made
in pursuance thereof bec. said corporations have their
respective personalities, separate and distinct from the
personality of petitioners.  The legality of a seizure can be
contested only by the party whose rights have been impaired
thereby and that the objection to an unlawful search and
seizure is purely personal and cannot be avalied of by 3rd
parties.
            (2)  No.  Two points must be stressed in connection
w/ Art. III, Sec. 2 of the Consti:  (a)  that no warrant shall
issue but upon probable cause to be determined by the judge
in the manner set forth therein; & (b)  that the warrant shall
particularly describe the things to be seized. 
            None of these requirements has been complied w/.  It
was stated that the natural and juridical persons has
committed a violation of CB laws, TCC, NIRC & RPC.  No
specific offense had been alleged in said applications.  The
averments thereof w/ respect to the offense committed were
abstract.  As a consequence, it was impossible for the judges
who issued the warrants to have found the existence of a
probable cause, for the same presupposes the introduction of
competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions,
violating a given provision of our criminal laws.
            General search warrants are outlawed bec. they place
the sanctity of the domicile and the privacy of
communication and correspondence at the mercy of the
whims, caprice or passion of peace officers.
            The warrants sanctioned the seizure of all records of
the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit
command of our Bill of Rights--  that the things to be seized
be particularly described-- as well as tending to defeat its
major objective:  the elimination of general warrants. 
RAM.
 
 7.  Civil Action for Damages
 
            A civil case for damages can also be filed pursuant
to Article 32 of the Civil Code.
 
            In Aberca v. Ver, the SC held that even if the
privilege of the writ is suspended, the court can nevertheless
against the top ranking officials who ordered the seizure, to
recover damages for the illegal searches and seizures made
CONSTITUTIONAL LAW 2
in a despotic manner.  By so doing, one can indirectly
inquire into the validity of the suspension of the privilege.
 
 
8.  Search and Seizure by Private Persons  delivery of packages to the Bureau of Customs or Bureau of
 
People v. Marti, 193 SCRA 57 (1991)
 
F:         Before delivery of appellant's box to the Bureau of
Customs and/ or Bureau of Posts, Mr. Job Reyes (proprietor)
& husband of Anita Reyes, following standard operating
procedure, opened the boxes for final inspection.  When he
opened appellant's box, a peculiar order emitted therefrom.              That the Bill of Rights embodied in the Consti. is not
His curiosity aroused, he squeezed one of the bundles
allegedly containing gloves and felt dried leaves inside.  support in the deliberations of the Con Com.:  " xxx The Bill
Opening one of the bundles, he pulled out a cellophane
wrapper protruding from the opening of one of the gloves.  and the state.  Its concern is not the relation between
He made an opening on one of the cellophane wrappers and
took several grams of the contents thereof.
                Job Reyes reported the incident to the NBI and
requested a laboratory examination of the samples he
extracted from the cellophane wrapper.
                It turned out that the dried leaves were marijuana
flowering tops as certified by the forensic chemist of the
Narcotics Section of the NBI.
                Thereafter, an information was filed against
appellant for violation of RA 6425.
 
APPELANT CONTENDS that the evidence subject of the
imputed offense had been obtained in violation of his consti.
rights against unreasonable searches and seizures and
privacy of communication and therefore argues that the
same should be held inadmissible in evidence.
 
                The case at bar assumes a peculiar character since
the evidence sought to be excluded was primarily
discovered and obtained by a private person, acting in a
private capacity and w/o the intervention and participation
of state authorities.
               
ISSUE:  May an act of a private individual, allegedly in
violation of appellant's constitutional rights, be invoked
against the state?
HELD:  We hold in the negative.  In the absence of
governmental interference, the liberties guaranteed by the
Consti. cannot be invoked against the State.  This
constitutional right refers to the immunity of one's person,
whether citizen or alien, from interference by govt. xxx              (b)  By the Municipal Trial Court.--  If the
(Villanueva v. Querubin.)
            The contraband in the case at bar having come into
possession of the govt w/o the latter transgressing
appellant's rights against unreasonable searches and seizures
(S & S), the Court sees no cogent reason why the same
should not be admitted against him.
            Appellant, however, would like this Court to believe
that NBI agents made an illegal search and seizure of the
evidence later on used in prosecuting the case.  The
arguments of appellant stands to fall on its own weight, or
the lack of it.
            First, the factual considerations of the case at bar
readily foreclose the proposition that NBI agents conducted
an illegal S & S of the prohibited merchandise.  Records of
ZPG & ASSOCIATES
the case clearly indicate that it was Mr. Job Reyes, the
proprietor of the forwarding agency, who made the search/
inspection.  Such inspection was reasonable and a SOP on
the part of Mr. Reyes as a precautionary measure bef.
Posts.
            Second, the mere presence of the NBI agents did not
convert the reasonable search effected by Reyes into a
warrantless S & S proscribed by the Consti.  Merely to
observe and look at that w/c is plain sight is not search.  
Having observed that w/c is open, where no trespass has
been committed in aid thereof, is not search.
meant to be invoked against acts of private individuals finds
of Rights governs the relationship between the individual
individuals, between a private individual and other
individuals. xxx"  (Sponsorship speech of Commissioner
Bernas.)
            The constitutional proscription against unlawful S &
S therefore applies as a restraint directed only against the
govt and its agencies tasked w/ the enforcement of the law. 
Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of
power is imposed.
            It the search is made at the behest or inititiation of
the proprietor of a private establishment for its own and
private purposes, as in the case at bar, and w/o the
intervention of police authorities, the right against
unreasonable S & S cannot be invoked for only the act of
private individuals, not law enforcers, is involved.  In sum,
the protection against unreasonable S & S cannot be
extended to acts committed by private individuals so as to
bring it w/in the ambit of alleged unlawful intrusion by the
govt. 
  
 9.  In the issuance of warrants of ARREST, as
distinguished from SEARCH warrants, the judge may
rely simply on fiscal's certification as to probable cause
 
Compare Rule 112, Sec. 6 (on warrants of arrest) with Rule
126, Sec. 4 (on search warrants.)
            Rule 112, Sec. 6.  When warrant of arrest may
issue.--  (a)  By the Regional Trial Court.--  Upon the
filing of an information, the Regional Trial Court may
issue a warrant for the arrest of the accused.
municipal trial judge conducting the preliminary
investigation is satisfied after an examination in writing
and under oath of the complainant and his witnesses in
the form of searching questions and answers, that a
probable cause exists and that there is a necessity of
placing the respondent under immediate custody in
order not to frustrate the ends of justice, he shall issue a
warrant of arrest.  (Rules of Court.)
 
 
            Rule 126, Sec. 4.  Examination of complainant;
record.--  The judge must, before issuing the warrant,
personally examine in the form of searching questions
and answers, in writing and under oath the complainant
CONSTITUTIONAL LAW 2
and any witnesses he may produce on facts personally
known to them and attach to the records their sworn
statements together with any affidavits submitted.
 The requirement in the case of warrants of arrest is relaxed
in that the judge can rely on the certification of the fiscal
that the latter has conducted the preliminary investigation
and has found probable cause on the part of the accused.  issue a WA, for the determination of whether it is necessary
The judge can issue the warrant on the basis of the
information filed by the fiscal and the certification of
probable cause.
 
            The SC has allowed this practice in Amarga v.
Abbas, 98 Phil. 739 (1956), noting that it has been practice
long settled and that a judge can issue an order to arrest on
the basis of the certificate.
            Of course, if the judge is in doubt, he can always ask
the fiscal to submit the records of the preliminary
investigation, so he could determine for himself if, on the
basis of the affidavits, there exists probable cause.  It he is
satisfied with the affidavits, he need not summon the
affiants.
Amarga v. Abbas, 98 Phil. 739 (1956)
F:         Municipal Judge Samulde conducted a preliminary
investigation (PI) of Arangale upon a complaint for robbery
filed by complainant Magbanua, alleging that Arangale
harvested palay from a portion of her land directly adjoining
Arangale’s land.  After the PI, Samulde transmitted the
records of the case to Provincial Fiscal Salvani with his
finding that “there is prima facie evidence of robbery as
charged in the complaint”.  Fiscal Salvani returned the
records to Judge Samulde on the ground that the transmittal
of the records was “premature” because Judge Samulde
failed to include the warrant of arrest (WA) against the
accused.  Judge Samulde sent the records back to Fiscal
Salvani stating that although he found that a probable cause
existed, he did not believe that Arangale should be arrested.
                Fiscal Salvani filed a mandamus case against
Judge Samulde to compel him to issue a WA.  RTC
dismissed the petition on the ground that the fiscal had not
shown that he has a clear, legal right to the performance of
the act to be required of the judge and that the latter had an
imperative duty to perform it.  Neverhteless, Judge Samulde
was ordered to issue a WA in accordance with Sec. 5, Rule
112 of the 1985 Rules of Court.
ISSUE:  Whether it is mandatory for the investigating judge
to issue a WA of the accused in view of his finding, after
conducting a PI, that there exists prima facie evidence that
the accused commited the crime charged.
 
HELD:  THE PURPOSE OF A PRELIMINARY
INVESTIGATION DOES NOT CONTEMPLATE THE
ISSUANCE OF A WA BY THE INVESTIGATING
JUDGE OR OFFICER.
            Under Rule 112 of the 1985 ROC, a PI is conducted
on the basis of affidavits to determine whether or not there is
sufficient ground to hold the accused for trial. To determine
whether a WA should issue, the investigating judge must
ZPG & ASSOCIATES
have examined in writing and under oath the complainant
and his wirtnesses by searching questions and answers; he
must be satisfied that a probable cause exists; and there must
be a need to place the accused under immediate custody in
order not to frustrate the ends of justice.  It is not obligatory,
but merely discretionary, upon the investigating judge to
to arrest the accused in order not to frustrate the ends of
justice, is left to his sound judgment or discretion.
            The fiscal should, instead, have filed an information
immediately so that the RTC may issue a warrant for the
arrest of the accused.  Bam.
Beltran v. Makasiar, 167 SCRA 393 (1988)
F:            The Pres. of the Phils. filed a complaint for libel
against the petitioners, who were publisher and columnist of
the Philippine Star, based on the following statement in
Beltran's column of Oct. 12, 1987 entitled "The Nervous
Officials of the Aquino Administration:"  "If you will recall,
during the Aug. 29 coup attempt, the Pres. hid under her
bed, while the firing was going on-- perhaps the first
Commander-in-Chief of the AFP to have to do so."
                Instead of submitting his counter-affidavit, Beltran
moved to dismiss the complaint.  The fiscal deniend his
motion after finding a prima facie case against the
petitioners and filed the case in court w/c thereafter issued
warrants of arrest against the petitioners.  The petitioners
filed a petition for certiorari and prohibition.
 
HELD:  The addition of the word "personally" after the
word "determined" (Art. III, Sec. 2) and the deletion of the
grant of authority by the 1973 Consti. to issue warrants to
"other responsible officer as may be authorized by law," has
apparently convinced petitioner Beltran that the Consti. now
requires the judge to personally examine the complainant
and his witnesses in his determination of probable cause for
the issuance of warrants of arrest.  This is not an accurate
interpretation.  What the Consti. underscores is the exclusive
and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause.  In satisfying
himself of the existence of probable cause for the issuance
of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses.  Following
established doctrine and procedure, he shall:  (1)  personally
evaluate the report and the supporting documents submitted
by the fiscal regarding the existence of probable cause and,
on the basis thereof, issue a warrant of arrest; or (2)  if on
the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.  Sound
policy dictates this procedure, otherwise judges would be
unduly laden w/ the preliminary examination and
investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts. 
            xxx
 10.  When arrest may be made without a warrant
 
CONSTITUTIONAL LAW 2
            Rule 113, Sec. 5.  Arrest without warrant; when
lawful.--  A peace officer or a private person may,
without a warrant, arrest a person:
            (a)  When, in his presence, the person to be
arrested has committed, is actually committing, or is
attempting to commit an offense;
            (b)  When an offense, has in fact just been
committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed
it;
            (c)  When the person to be arrested is a prisoner
who has escaped from a penal establishment of place
where he is serving final judgment or temporarily
confined while his case is pending, or has escaped while
being transferred from one confinement to another.
            In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail,
and he shall be proceeded against in accordance with
Rule 112, Section. 7.  (Rules of Court.)
 
 
            Rule 113, sec. 5 talks of "citizen arrests", cases
where an arrest can be made either by the peace officer or a
private person without need of a warrant.  and requested that said person be apprehended. Acting on
            The key element in the first case is that the offense
was committed "in his presence".  The key element in the
second case is that he has "personal knowledge".
 
            Thus, in People v. Burgos, 144 SCRA 1 (1986), the
arrest made by the constabulary without a warrant of a
farmer on the basis of information that he was a subversive
was held unconstitutional, since there was no personal
knowledge of the offense itself.
 
            The gun and subversive documents found by the
officer and admitted by the former to be his were likewise
held inadmissible because the admission violated the
Miranda rule.
 
 a.  Strict enforcement of rule
 
People v. Burgos, 144 SCRA 1 (1986)
 
F:         On the basis of info. given by Cesar Masamlok, the
appellant was arrested while plowing his farm in Tiguman,
Davao del Sur, on May 13, 1982, on charges of illegal
possession of firearm in furtherance of subversion.  A .38
caliber revolver was found buried under his house.  no personal knowledge that he was indeed handing
Subversive documents were also seized from a place near
his house.  Two arresting officers testified that the appellant
had readily admitted ownership of the gun and the
documents.  The appellant was found guilty of the charge
and sentenced to 20 years of reclusion temporal, as
minimum, to reclusion perpetua, as maximum, and the gun
and documents were ordered confiscated. 
 
HELD:  (1)  Under R 113, Sec. 5 (a), the arresting officer
must have personal knowledge that the crime has been
committed, is being committed, or is about to be committed,
in order to justify an arrest w/o a warrant.  The offense must
also be committed in his presence or w/in his view.  There is
ZPG & ASSOCIATES
no such personal knowledge in this case.  Hence the arrest
of the appellant was illegal.
            (2)  Consequently, the incidental search and seizure
were likewise illegal and the firearm and document are
inadmissible in evidence.
            (3)  The prosecution argues that the appellant
admitted ownership of the gun and claims that it was he who
pointed to the place where the subversive documents were
hidden.  However, as the appellant was not informed of his
constitutional rights at that time, his admission is
inadmissible under [Art. III, Sec. 12 (1).]  It is true that 6
days later he executed a confession before the fiscal w/ the
assistance of counsel, but it was then already too late.
            (4)  As the remaining evidence against the appellant
is the testimony of Cesar M. and it is uncorroborated and
unreliable, the appellant should be acquitted, but the gun and
the subversive documents must be confiscated. 
   
People v. Rodriguez, 232 SCRA 498  (April 25, 1989)
 
F:         Pat. Marvin Pajilan received a phone call from the
desk officer of Sub-Station I, namely, Michael Orbeta, who
informed him that a person named 'Alyas Allan' was selling
marijuana at No. 8199 Constancia St., Makati, Metro Manila
this phone call of desk officer Michael Orbeta, a team of
policemen posted themselves about 10 to 15 meters from the
house located at 8199 Constancia St., Makati. They saw a
tricycle with 3 persons on board, a driver and 2 passengers,
stop in front of the house at 8199 Constancia  St. They also
saw a male person come out of the said house and approach
and talk to the driver of the tricycle. After a while they saw
the male person go back to the house and a little later come
back and hand to the tricycle driver 'a suspicious stuff of a
cigarette, a marijuana cigarette', they further saw the tricycle
driver in turn give something to the male person. Pat. Pajilan
together with his companions approached the male person
and the tricycle driver and after introducing themselves as
police officers, they asked the male person, the tricycle
driver and his 2 passengers to bring out the contents of their
pockets, which the male person, the driver and the
passengers of the tricycle did. The male person brought out
from his pockets 2 small plastic bags containing suspected
marijuana leaves. The tricycle driver brought out from his
right front pocket 3 sticks of suspected marijuana cigarettes.
Nothing illegal was found in the pockets of the 2 passengers
of the tricycle.
                The appellant contends that the police officers had
marijuana to Enrico Bacod as they were 10-15 meters away
from the alleged sale transaction. The arrest therefore was
not valid as the requirements for a warrantless arrest were
not complied with.
 
Issue: Was the warantless arrest valid?
 
Ruling:  YES.
            The warrantless arrest made by the law enforcers
was valid since it falls under the provisions of Rule 113,
Sec. 5(a) of the Rules of Court which provides:
            Sec. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
CONSTITUTIONAL LAW 2
            (a)  When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to
commit an offense;
           
            Having caught the appellant in flagrante as a result
of the buy-bust operation, the policemen were not only
authorized but were also under obligation to apprehend the
drug pusher even without a warrant of arrest. The police
officers were tipped off by an informer about the illegal
trade of the accused. The exact location where this trading in
drugs was taking place was given to them. The 'suspicious
stuff' taken from the accused were confirmed to be
marijuana after tests were conducted on them. The attendant
circumstances taking place before their eyes led the police
officers to reasonably conclude that an offense was actually
being committed.  prosecuting them in court for a statutory offense.  The arrest,
 
 
  b.  Exceptions to strict enforcement
 
      (1)  "Continuous" crimes of subversion
 
Umil v. Ramos, 187 SCRA 311 (1990)
  
            These are 8 petitions for habeas corpus (HC) filed
bef. the Court.  The Court finds that the persons detained
have not been illegally arrested nor arbitrarily deprived of
their constitutional right to liberty and that the
circumstances attending these cases do not warrant their
release on HC.
            An arrest w/o a warrant, under Sec. 5, pars. (a) and
(b) of Rule 113, ROC, as amended is justified when the
person arrested is caught in flagrante delicto, viz., in the act
of committing an offense; or when an offense has just been
committed and the person making the arrest has personal
knowledge of the facts indicating that the person arrested
has committed it.
            The persons in whose behalf these petitions for HC
have been filed had freshly committed or were actually
committing an offense, when apprehended, so that their
arrests, w/o warrant were clearly justified, and that they are,
further detained by virtue of valid informations filed against
them in court.
 
I investigation.  When questioned, he refused to give a written
 
            In Umil v. Ramos, RIOU-CAPCOM received
confidential info. about a member of the NPA-Sparrow unit
being treated for a gunshot wound at the St. Agnes Hospital
in Roosevelt Ave., Q.C.  It was found that the wounded
person, who was listed in the hospital records as Ronnie
Javelon, is actually Rolando Dural, a member of the NPA
liquidation squad, responsible for the killing of 2 CAPCOM
soldiers the day before.  Dural was then transferred to the
Regional Medical Services of the CAPCOM.
            Upon positive identification by an eyewitness, Dural
was referred to the Caloocan City Fiscal who conducted an
inquest and thereafter filed w/ the RTC-Caloocan City an
info. charging Dural w/ the crime of "Double Murder w/
Assault upon agents of persons in authority."
            The petition for HC, insofar as Umil & Villanueva
are concerned, is now moot and academic and is accordingly
ZPG & ASSOCIATES
dismissed, since the writ does not lie in favor of an accused
in a crim. case, who has been released on bail.
            As to Dural, he was not arrested while in the act of
shooting the 2 soldiers.  Nor was he arrested after the
commission of said offense for his arrest came a day after
the shooting incident.  However, Dural was arrested for
being a member of the NPA, an outlawed subversive
organization.  Subversion being a continuing offense, the
arrest of Dural w/o warrant is justified as it can be said that
he was committing an offense when arrested.
            The arrest of persons involved in rebellion whether
as its fighting armed elements, or for committing non-
violent acts but in furtherance of rebellion, is more an act of
capturing them in the course of an armed conflict, to quell
the rebellion, than for the purpose of immediately
therefore, need not follow the usual procedure in the
prosecution of offenses w/c requires the determination by a
judge of the existence of probable cause bef. the issuance of
a judicial warrant and the granting of bail if the offense is
bailable.  Obviously, the absence of a judicial warrant is no
legal impediment to arresting or capturing persons
committing overt acts of violence against govt forces, or any
other milder acts but equally in pursuance of the rebellious
movement. xxx (Garcia-Padilla v. Enrile.)
            Dural was found guilty of the charge and is now
serving the sentence imposed upon him by the trial court. 
Thus, the writ of HC is no longer available
 
II
 
            The arrest of Amelia Roque and Wilfredo
Buenaobra, w/o warrant is also justified.
           
            In view of the revelations made by Rogelio Ramos, a
former NPA, the Constantino house in Marikina Heights
was placed under military surveillance and on 8/12/88,
pursuant to a search warrant , a search of the house was
conducted at 5 PM by CISC-NCD & CSG.  In the course of
the search were found several firearms, regular power
supply, antennae, speaker and subversive documents.
            When confronted, R. Constantino (RC) could not
produce any permit or authority to possess the firearms,
ammunition, radio, etc.  He was brought to CIS HQ for
statement, although he admitted that he was a staff member
of the executive of the NUFC and a ranking member of the
International Dept. of the CPP.
            At about 8 PM, same day, Buenaobra arrived at RC's
house.  When arrested, he readily submitted to the military
agents that he is a regular member of the CPP/ NPA and that
he went to the place to deliver letters to "Ka Mong,"
referring to RC and other members of the rebel group.  Also
found in Buenaobra's possession was a piece of paper
containing the jumbled tel. no. of Florida Roque, sister of
Amelia Roque, aka. "Ka Nelia."  They went to the address
on 8/13/88 and arrived at the place about 11 AM.  After
identifying themselves as military agents and after seeking
permission to search the place, w/c was granted, the military
agents conducted a search in the presence of the occupants
of the house and the barangay captain of the place.
            The military found the place to be another safehouse
of the NUFC/ CPP.  They found firearms, subversive
CONSTITUTIONAL LAW 2
documents, ledgers, journals, vouchers, among others.  HELD:  Vicky O. was arrested in flagrante delicto so that
Amelia admitted ownership of the documents seized.
            Roque was brought to the Caloocan City Fiscal for
inquest after w/c an info. charging her w/ viol. of PD 1866
was filed.  Another info. for viol. of the Anti-Subversion Act
was filed against Roque and also to Buenaobra.
            A petition for HC was filed bef. this Court on behalf
of Roque and Buenaobra.  At the hearing, Buenaobra
manifested his desire to stay in the PC-INP stockade at
Camp Crame, Q.C.  Accordingly, the petition for HC on his
behalf is now moot and academic.
 
III
 
            Anonuevo v. Ramos.  evidence to support their claim.  On the other hand, no evil
 
            The arrest of Domingo Anonuevo (A) and Ramon
Casiple (C) w/o warrant is justified.
            At about 7:30 PM on 8/13/88, A and C arrived at the
house of RC w/c was still under surveillance.  The military
noticed bulging objects on their waist lines.  When frisked,
the agents found them to be loaded guns.  They were asked
to show their permit or license to possess or carry firearms
and ammunitions but they could not produce any.  Hence,
they were brought to PC HQ for investigation.
            At the PC stockade, A was identified as "Ka Ted,"
and C as "Ka Totoy" of the CPP by their former comrades.
            On 8/15/88, an info. charging them w/ viol. of PD
1866 was filed bef. RTC-Pasig.  On 8/24/88, a petition for
HC was filed bef. this Court.
 
HELD:  The petitioner's claim that they were unlawfully
arrested bec. there was no previous warrant, is w/o merit.  them, he was immediately put under arrest.  When he asked
The records show that they were carrying unlicensed
firearms and ammunitions in their person when
apprehended.
            There is also no merit in the contention that the info.
filed against them are null and void for want of prel. inv.              An info. charging him w/ viol. of Art. 142, RPC
The filing of an info., w/o a prel. inv., having been first
conducted, is sanctioned by Rule 112, Sec. 7, ROC.
            Petitioners refused to sign a waiver of the provisions
of Art. 125, RPC.  Nor did petitioners ask for prel. inv. after
the informations had been filed against them in court.
 
IV
 
            Ocaya v. Aguirre.
 
            On 5/12/88, agents of the PC Intelligence and
Investigation Division of Rizal PC-INP Command, armed
w/ a search warrant, conducted a search of a house located
at Marikina Green Heights, believed to be occupied by
Benito Tiamson, head of the CPP-NPA.   In the course of
the search, Ocaya arrived in a car driven by Danny Rivera. 
Subversive documents and several rounds of ammunitions
for a .45 cal. pistol were found in Vicky Ocaya's car.  They
were brought to the PC HQ for investigation, when O. could
not produce any permit or authorization to possess the
ammunition, an info. charging her w/ viol. of PD 1866 was
filed w/ RTC-Pasig.  Rivera was released from custody.
            On 5/17/88, a petition for HC was filed on behalf of
these 2.
 
ZPG & ASSOCIATES
her arrest w/o warrant is justified.  No. prel. inv. was
conducted bec. she was arrested w/o a warrant and she
refused to waive the provisions of Art. 125 of the RPC,
pursuant to R112, Sec. 7, ROC.
 
V
 
            The petitioners Ocaya, Anonuevo, Casiple and
Roque claim that the firearms, ammunitions and subversive
documents alleged to have been found in their possession,
when arrested, did not belong to them, but were planted by
the military to justify their illegal arrest.
            The petitioners, however, have not introduced any
motive or ill will on the part of the arresting officers that
could cause the said officers in these cases to accuse the
petitioners falsely, has been shown.
            As pointed out by the Sol-Gen, the arrest of the
petitioners is not a product of a witch hunt or a fishing
expedition, but the result of an in-depth surveillance of NPA
safehouses pointed no less than by former comrades of the
petitioners.
VI
 
            Espiritu v. Lim.
 
            Deogracias Espititu is the Gen. Sec. of PISTON. 
Petitioner claims that at about 5 AM of 11/23/88, while he
was sleeping in his home located at Sta. Mesa, Mla., he was
awakened by his sister who told him that a group of persons
wanted to hire his jeepney.  When he went down to talk to
for the warrant, the men bodily lifted him and placed him in
their owner type jeepney.  He demanded that his sister be
allowed to accompany him, but the men did not accede to
his request.
(Inciting to sedition) was filed against him.
            In the afternoon of 11/22/88, during a press-con at
the NPC "Deogracias E. through tri-media was heard urging
all drivers and operators to go on nationwide strike on
11/23/88 xxx."
            Policemen waited for petitioners outside the NPC in
order to investigate him, but he gave the lawmen his slip. 
He was next seen at about 5 PM at a gathering of drivers and
sympathizers, where he was heard as saying,
            "Bukas tuloy and welga natin ... hanggang sa
magkagulo na."
            Since the arrest of the petitioner w/o warrant was in
accordance w/ the provisions of R 113, Sec. 5 (b), ROC, and
the petitioner is detained by virtue of a valid info. filed w/
the competent court, he may not be released on HC.            
    
VII
 
            Nazareno v. Station Commander.
 
            At about 8:30 AM of 12/14/88, one Romulo Bunye
II was killed by a group of men in Alabang, Muntinglupa,
MM.  One of the suspects in the killing was Ramil Regala
who was arrested by the police on 12/28/88.  Upon
questioning, Regala pointed to Nazareno as one of his
CONSTITUTIONAL LAW 2
companions in the killing of Bunye II.  In view thereof, the
officers, w/o warrant, picked up Nazareno and brought him
to the police HQ for questioning.
            xxx
            On 2/1/89, the presiding judge of the RTC-Binan,
Laguna, issued a resolution denying the petition for HC, it
appearing that said Narciso Nazareno is in the custody of the
respondents by reason of an info. filed against him w/ the
RTC-Mkti., MM.
 
HELD:  The arrest of Nazareno was effected by the police
w/o warrant pursuant to Sec. 5 (b), R 113, ROC, after he
was positively implicated by his co-accused; and after
investigation by the police.
            The obligation of an agent of authority to make an
arrest by reason of a crime, does not presuppose as a
necessary requisite for the fulfillment thereof, the
indubitable existence of a crime.  For the detention to be
perfectly legal, it is sufficient that the agent or person in
authority making the arrest has reasonably sufficient
grounds to believe the existence of an act having the
characteristic of a crime and that the same grounds exist to
beleive that the person sought to be detained participated
therein."  (Peo. v. Ancheta.)
 
VIII
 
            In all the petitions here considered, criminal charges
have been filed in the proper courts against the petitioners.  personal knowledge of facts indicating that the person to be
The rule is that if a person alleged to be restrained of his
liberty is in the custody of an officer under process issued by
a court or judge, and that the court or judge had jurisdiction
to issue the process or make the order, or if such person is
charged before any court, the writ of HC will not be
allowed.  (Sec. 4, R 102, ROC.)
 
            On the Ilagan Doctrine.
 
            As the Court sees it, re-examination or re-appraisal,
w/ a view to its abandonment, of the Ilagan case doctrine is
not the answer.  The answer and the better practice would
be, not to limit the function of HC to a mere inquiry as to
w/n the court w/c issued the process, judgement or order of
commitment, or bef. whom the detained person is charged,
had jurisdiction or not to issue the process, judgment or
order or to take cognizance of the case, but rahter, as the
court itself stated in Morales, Jr. v. Enrile, in all petitions for
HC, the court must inquire into every phase and aspect of
petitioner's detention-- "from the moment petitioner was
taken into custody up to the moment the court passes upon
the merits of the petition;" and "only after such a scrutiny
can the court satisfy itself that the due process clause of our
Constitution in fact has been satisfied."  "Ronnie Javelon" was actually then being treated in said
 
 
Umil v. Ramos, 202 SCRA 251
PETITION SEEKING SEPARATE MOTIONS FOR
RECONSIDERATION FROM THE COURT'S DECISION
PROMULGATED ON 9 JULY 1990
ZPG & ASSOCIATES
 
            The decision (on July 9, 1990) did not rule that mere
suspicion that one is a CPP or NPA is a valid ground for his
arrest w/o warrant.
 
            We find no merit in the motions for reconsideration.
 
            Rolando Dural.--  His arrest w/o warrant is justified
as it can be said that, w/in the contemplation of Sec. 5 (a), R
113, ROC, he was committing an offense, when arrested,
bec. Dural was arrested for being a member of the NPA, an
outlawed org., where membership is penalized, and for
subversion w/c, like rebellion is, under Garcia v. Padilla, a
continuing crime.
            Dural did not cease to be, or become less of a
subversive, FOR PURPOSES OF ARREST, simply bec. he
was, at the time of arrest, confined in the St. Agnes
Hospital.  Dural was identified as one of several persons
who, the day before his arrest, w/o warrant, had shot 2
CAPCOM policemen in their patrol car.  Dural, given
another opportunity, would have shot or would shoot other
policemen, anywhere as agents or representative of an
organized govt.  It is in this sense that subversion and
rebellion are anchored on an ideological base w/c compels
the repetition of the same acts of lawlessness and violence
until the overriding objective of overthrowing organized
govt is attained.
            His arrest was based on "probable cause."
            Sec. 5, R 113, ROC, requires 2 conditions for a valid
arrest w/o warrant:  (1)  the person to be arrested has just
committed an offense and (2)  the person arresting has
arrested is the one who committed the offense.
            It has been ruled that personal knowledge of facts
in arrests w/o warrant must be based upon probable cause,
w/c means on actual belief or reasonable grounds of
suspicion. 
            The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be
arrested.  A reasonable suspicion therefore must be founded
on probable cause, coupled w/ good faith on the part of the
peace officers making the arrest.    
            Said confidential info. received by the arresting
officers, to the effect that an NPA was being treated for a
gunshot wound was based on actual facts and supported by
circumstances sufficiently to engender a belief that an NPA
member was truly in said hospital.  The actual facts
supported by circumstances are:  (1)  the day bef., or on
1/31/88, 2 CAPCOM soldiers were actually killed in
Bagong Bo., Caloocan City by 5 "sparrows" including
Dural; (2)  a wounded person listed in the hospital records as
hospital for for a gunshot wound; (3)  "Ronnie Javelon" and
his address entered in the hospital records were fictitious
and the wounded man was in reality Dural.
            On good faith.--  The peace officers who arrested
Dural are deemed to have conducted the same in good faith,
CONSTITUTIONAL LAW 2
considering that law enforcers are presumed to regularly
perform their official duties.
            A few days after Dural's arrest, an info. charging him
w/ Double murder w/ assault against agents of persons in
authority was filed in RTC-Caloocan City.  He was placed
under judicial custody.  On 8/31/88, he was convicted and
sentenced to reclusion perpetua.
 
            As to A. Roque., W. Buenaobra, D. Anonuevo, R..
Casiple & V. Ocaya, their arrests, w/o warrant, are also
justified.  They were searched pursuant to a warrant issued
by a court of law and were found w/ unlicensed firearms,
explosives and/ or ammunitions on their persons.  They
were, therefore, caught in flagrante delicto w/c justified
their outright arrest w/o warrant under Sec. 5 (a), R113,
ROC.  A few days after their arrests, informations were filed
in court against said petitioners placing them w/in judicial
custody and disposition.  Buenaobra's petition is moot bec.
he had chosen to remain in detention.
            The reason which compelled the military agents to
make the arrests w/o warrant was the info. given to the
military that 2 safehouses (one occupied by RC and the
other by Benito Tiamson) were being used by the CPP/ NPA
for their operations, w/ info. as to their exact location and
the names of RC and BT as residents and occupants thereof. 
            And at the time of the actual arrests, the following
circumstances surrounded said arrests (of Roque,
Buenaobra, Anonuevo and Casiple), w/c confirmed the
belief of the military that the info. they had received was
true and the persons to be arrested were probably guilty of
the commission of certain crimes:  first, the search warrant
was duly issued to effect the search of the Constantino
safehouse; second, found in the safehouse was a person
named RC, who admitted that he was a ranking member of
the CPP, and found in his possession were unlicensed
firearms and communist equipment; third, at the time of
their arrests, in their possession were unlicensed firearms,
ammunitions, and/ or subversive documents, and they
admitted ownership thereof as well as their membership in
the CPP/ NPA.  And then shortyly after their arrests, they
were positively identified by their former comrades as CPP/
NPA members.
            An arrest is in the nature of an administrative
measure.  The power to arrest w/o warrant is w/o limitation
as long as the requirements of Sec. 5, R 113 are met.  This
rule is founded on an overwhelming public interest in peace
and order in our community.
            "xxx  The legality of the detention does not depend
upon the fact of the crime, but xxx upon the nature of the
deed, wherefrom such characterization may reasonably be
inferred by the officer or functionary to whom the law at the
moment leaves the decision for the urgent purpose of
suspending the liberty of the citizen."  (US v. Sanchez.)
 
            ESPIRITU was arrested w/o warrant, not for
subversive or any "continuing offense," but for uttering the
words "Bukas tuloy ang welga natin xxx hanggang sa
magkagulo na" w/c in the perception of the arresting
officers, was inciting to sedition.
            Many persons differ as to the validity of such
perception and regard the language as falling w/in free
speech guaranteed by the Consti.  But, the authority of the
ZPG & ASSOCIATES
peace officers to make the arrest, w/o warrant, at the time
the words were uttered, or soon thereafter, is still another
thing.  In the balancing of authority and freedom, w/o
obviously becomes difficult at times, the court, has in this
case, tilted the scale in favor of authority but only for
purposes of the arrest (not conviction.)
 
            Supervening events made this case moot and
academic.  for E. had bef. arraignment asked the court a quo
for re-investigation, the peace officers did not appear.  Case
against E. has been provisionally dismissed and his bail
cancelled.
 
            NAZARENO'S ARREST.--  Although the killing of
Bunye II occured on 12/14/88, while Nazareno's arrest w/o
warrant was made only on 12/28/88 or 14 days later, teh
arrest falls under Sec. 5 (b), R113, since it was only on
12/28/88 that the police authorities came to know that
Nazareno was probably one of those guilty in the killing of
Bunye II and the arrest had to be made promptly, even w/o a
warrant (after the police were alerted) and despite the lapse
of 14 days to prevent possible flight.
            Nazareno has since been convicted by the court a
quo for murder and sentenced to reclusion perpetua.
 
ADMISSIBLITY OF EXTRA-JUDICIAL ADMISSION.
 
            These admissions strengthen the Court's perception
that truly the grounds upon w/c the arresting officers based
their arrests w/o warrant, are supported by probable cause,
i.e., that the persons arrested were probably guilty of the
commission of certain offenses, in compliance w/ Sec. 5, R
113, ROC.  To note these admissions, on the other hand, is
not to rule that the persons arrested are already guilty of the
offenses upon w/c their warrantless arrests were predicated. 
The task of determining the guilt or innocence of persons
arrested w/o warrant is not proper in a petition for HC.  It
pertains to the trial of the case on the merits.
 
 
  (2)  Illegal Possession of guns or drugs
 
 
People v. Linsangan, 195 SCRA 784
 
F:         Accused Linsangan was arrested after a “buy-bust”
operation.  The two marked ten-peso bill were retrieved
from him.  He was asked to sign his name on the two
marked bills.  The ten handrolled cigarette sticks confiscated
from the accused were submitted for examination.  After
finding these positive for marijuana, a case was filed for
violation of the Dangerous Drugs Law.  Linsangan denied
the charge.  The trial court found Linsangan guilty.  Upon
appeal, one of the assertions of Linsangan was that the trial
court erred in not holding that when the policemen required
him to initial the marked bills, they violated his
constitutional right to counsel, to remain silent, and not to
incriminate himself while under custodial investigation.
ISSUE:  WHETHER OR NOT THERE WAS A
VIOLATION OF THE ACCUSED’S CONSTITUTIONAL
RIGHTS WHEN HE WAS MADE TO SIGN THE
MARKED BILLS.
CONSTITUTIONAL LAW 2
 
HELD:  Although the accused was not assisted by counsel
when he initialed the P10-bills that the police found tucked
in his waist, his right against self-incrimination was not
violated for his possession of the marked bills did not
constitute a crime; the subject of the prosecution was his act
of selling marijuana cigarettes.  His conviction was not
based on the presence of his initials on the marked bills, but
on the fact that the trial court believed the testimony of the
policemen that they arrested him while he was actually
engaged in the selling marijuana cigarettes to a member of
the arresting party. The trial court gave more credence to
their categorical declarations than to the appellant’s denials. 
That is as it should be for as law enforcers, they are
presumed to have performed their official duties in a regular
manner.  Their task of apprehending persons engaged in the
deadly drug trade is difficult enough without legal and
procedural technicalities to make it doubly so.              a)  To warn him of the consequences of waiving his
 
 
                        11.  Immunity from arrest of members of
Congress
 
            Art. VI, Sec. 11.  A Senator or Member of the
House shall, in all offenses punishable by not more than
six (6) years imprisonment (prision correcional), be
privileged from arrest while Congress is in session.  xxx
 
            B.  Rights of Persons under custodial
interrogation
 
            Art. III, Sec. 12.  (1)  Any person under custodial
investigation for the commission of an offense, shall have
the right to be informed of his right to remain silent and
to have competent and independent counsel preferably
of his own choice.  If the person cannot afford the
services of counsel, he must be provided with one.  These
rights cannot be waived except in writing and in the
presence of counsel.              (The reading of these rights is no less indispensable
            (2)  No torture, force, violence, threat,
intimidation, or any other means which vitiate the free
will shall be used against him.  Secret detention places,
solitary, incommunicado, or other similar forms of
detention are prohibited.  pressure of custodial investigation.)
            (3)  Any confession or admission obtained in
violation of this or sec. 17 hereof, shall be inadmissible in
evidence against him.
            (4)  The law shall provide for penal and civil
sanctions for violations of this section, as well as
compensation to and rehabilitation of victims of torture
or similar practices, and their families.              1)  "General exploratory investigation" -  when the
 
 
Source:  Miranda v. Arizona, 384 U.S. 436 (1966)
 
            According to Chief Justice Warren, when a
defendant is thrust into an unfamiliar atmosphere and run
through menacing police interrogation procedures, where
compulsion is forcefully potential and his will is likely to be
subjugated, the officers must undertake to afford proper
safeguards by the reading of the "Miranda rights" at the
ZPG & ASSOCIATES
outset of the investigation to ensure that the statements made
are truly the product of free choice.
 
            Any person under custodial or police investigation
has the right to be informed of the following rights:
 
1.  Right to remain silent
 
            a)  To make him aware of it.
            b)  To overcome the inherent pressure of the
interrogating atmosphere
            c)  To show the individual that his interrogators are
prepared to recognize his privilege should he choose to
invoke his right.
2.  Right to be reminded that if he waives his right to remain
silent, anything he says can and will be used against him.
 
right to remain silent.
            b)   To make him aware that this is an adversary
system, and that the police are not acting in his interest.
 
3.  Right to counsel before and during the interrogation
 
            a)  To mitigate the dangers of untrustworthiness in
his testimony, since the inherent pressures initially
overcome by the right to remain silent may again run unless
coupled with the right to counsel.
            b)  To lessen the possibility of coercion by the
police.
 
4.  Right to be reminded that if he cannot afford counsel,
then one will be provided for him by the state.
 
            a) To inform him that if he does not have counsel or
cannot afford one, he does not have to defend himself alone.
            b)  To inform him that his poverty is no reason why
he should lose his right to counsel.
 
even if the person arrested is a prominent Constitutional
lawyer.  Although he may already know these rights, the
purpose is not so much to inform him, as to assure him that
his interrogators are willing to respect his rights amidst the
 
            The reading of these rights is required during
"custodial investigation".
 
A police investigation consists of 2 stages:
 
investigation consists merely of general questions to find out
who might be the culprit, but without being directed at
anyone's guilt in particular.  At this stage, the Miranda rule
is not yet applicable; otherwise, people who could otherwise
explain their innocence would be arrested.
 
            2)  "Custodial investigation"  -  when the
investigation now focuses on the guilt of a person such that
he is no longer allowed to leave the premise.  It is at this
stage that the Miranda ruling is necessary, since the purpose
CONSTITUTIONAL LAW 2
of the interrogation is to evince evidence that can be used to
prosecute the person.
 
            For instance, when A, a policeman, sees X running
with a stained knife away from an apparently dead man, he
can rung after X and having grabbed him, ask him for an
explanation as to what he saw without reading his Miranda
rights.  But once A arrests X and starts interrogating him in
the police precinct, then his rights must now be read, for
there can only be one purpose to the questioning, and that is
to elicit evidence to be used to prosecute him.
Mendoza, The Right to Counsel During Custodial
Investigations, 2 Law Rev. No. 10, 2 (1988); 61 Phil. LJ 409
 
I.  RIGHT TO COUNSEL WAS DEVELOPED AS PART
OF PROTECTION AGAINST INVOLUNTARY
CONFESSIONS.
 
            Since the introduction of the American accusatorial
system of criminal procedure in the Phils., the rule has been
that involuntary confessions are inadmissible in evidence
against the accused.
            The question is on whom the burden of proof is
placed.  The early rule placed the burden of proving that the
confession was voluntary and, therefore, admissible in
evidence, on the prosecution.  (Sec. 4, Act No. 619.)  It was
held that a confession not shown to have been voluntarily
given could be objected to at any stage of the proceedings,
even for the first time on appeal in the SC.
            Act No. 619 was later repealed by the Admin. code
of 1916, w/c placed the burden of proof on the accused to
show that his confession was involuntary.  Under the new
rule, it was sufficient that the confession was given under
conditions w/c accredit prima facie its admissibility.
            In 1953, a further change took place when the SC
held in Peo. v. de los Santos that "A confession, to be
repudiated, must not only be proved to have been obtained
by force and violence, but also that it is false or untrue, for
the law rejects the confession when, by force or violence or
intimidation, the accused is compelled against his will to tell
a falsehood, not even when such force and violence he is
compelled to tell the truth.  In the later case of Peo. v.
Villanueva, the Court stated "the admissibility of that kind
of evidence depends not on the supposed illegal manner in
w/c it is obtained but on the truth or falsity of the facts or
admission contained therein.
            The illegality of the means used in obtaining
evidence does not affect its admissibility (Moncado v.
People's Court.)
 
THE EFFECT OF THE EXCLUSIONARY RULE IN
SEARCH AND SEIZURE CASES
 
            The adoption in 1967 of the exclusionary rule in
search and seizure cases (Stonehill v. Diokno) worked a
parallel in the law of confession.  W/o expressly overruling
its decision in de los Santos and Villanueva, the Court, in
Peo. v. Urro, went back to the former rule that involuntary
or coerced confessions, regardless of their truth, are null and
void.  xxx  Involuntary or coerced confessions obtained by
law, w/c proscribes the use of such cruel and inhuman
methods to secure confessions.  xxx
ZPG & ASSOCIATES
            Indeed, in the US, it is said that an "unconstitutional
coercion will render inadmissible even the most
unquestionably true inculpatory statements."  xxx  This is
not bec. such confessions are unlikely to be true but bec. the
methods used to extract them offend an underlying principle
in the enforcement of our criminal law:  that ours is an
accusatorial and not an inquisitorial system --  a system in
w/c the State must establish guilt by evidence independently
and freely secured and not by coercion prove its charge
against an accused out of his own mouth xxx."  (Rogers v.
Richmond, J. Frankfurter.)
THE MIRANDA RULE
 
            The prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the def. unless it demonstrates the use of
procedural safeguards effective to secure the privilege
against self-incrimination.  By custodial interrogation, we
mean questioning initiated by law enforcement officers after
a person has been taken to custody or otherwise deprived of
his freedom of action in any significant way. xxx
 
II.  IN TURN, MIRANDA WARNINGS WERE DEVISED
AS MEANS OF SECURING THE RIGHT TO COUNSEL.
 
            Miranda v. Arizona requires certain warnings to be
given by police interrogators bef. a person in custody may
be interrogated, w/c have been adopted by the Phil. SC:
            1.  The person in custody must be informed in clear
and unequivocal terms that he has a right to remain silent. 
The purpose is to apprise him of his privilege not to be
compelled to incriminate himself, to overcome the inherent
pressures of the interrogation atmosphere, and to assure the
individual that his interrogators are prepared to recognize
his privilege, should he choose to exercise it.
            2.  The person in custody must be warned that
anything he will say can and wilol be used against him. 
This warning is intended to make him aware not only of the
privilege but also of the consequences of foregoing it.
            3.  Since the circumstances surrounding in-custody
interrogation can operate very quickly to overbear the will
of one merely made aware of his privilege by his
interrogators,  it is indispensable that he has the assistance of
counsel.
 
 
THE CUSTODIAL PHASE OF INTERROGATION
 
            At what stage of the police interrogation must the
warnings be given?  The Consti. does not state at what stage
of the interrogation process they must be made.  but in
Miranda, the court specified that it is only at the custodial
phase of the interrogation that its ruling applied.  As the
Court indicated in Escobedo v. Illinois, it is only after the
investigation ceases to be a general inquiry into an unsolved
crime and begins to focus on a particular suspect, the
suspect is taken into custody, and the police carries out a
process of interrogation that leads itself to eliciting
incriminating statements that the rule begins to operate.
 
            In Gamboa v. Cruz, the accused was arrested, w/o a
warrant, for vagrancy.  He was taken to police precint no. 2
CONSTITUTIONAL LAW 2
in Mla.  The next day, he was included in a police line-up of
5 detainees and was pointed to by the complainant as a
complanion of the main suspect on the basis of w/c the
accused was ordered to stay and sit in front of the
complainant, while the latter was interrogated.  The accused
was then charged w/ robbery.  The accused moved to
dismiss the case against him on the ground that he had been
denied the assistance of counsel during the line-up.  His
motion was denied.  Hence, this petition for certiorari.   EXCEPTIONS TO THE EXCLUSIONARY RULE
HELD:  The right to counsel attaches only upon the start of
an interrogation, when the police officer starts to ask
questions designed to elicit info. and/ or confessions or
admissions from the accused.  As the police line-up in this
case was not part of the custodial inquest, the petitioner was
not entitled to counsel xxx.
 
III.  WAIVER OF RIGHTS.
 
            It is important to distinguish bet. the waiver of rights
and the waiver of warnings.  The first can be made provided
that the waiver is "voluntary, knowing and intelligent" but
the second cannot.  As the warnings are the means of
insuring that the suspect is apprised of his rights so that any
subsequent waiver of his rights can be "voluntary, knowing
and intelligent," it is obvious that there can be no valid
waiver of the warnings.  A waiver of rights will not be
presumed.
            1.  With respect to confessions obtained bef. Jan. 17,
1973, the rule that the suspect must be warned that he has a
right to remain silent and to have the assistance of counsel
does not apply. such confessions, even though presented in
evidence in a trial after the effectivity of the 1973 Consti.,
are admissible, provided they are voluntary, using the
traditional test of voluntariness.
           
            2.  With respect to confessions obtained after Jan.
17, 1973, but before March 20, 1985, when the decision of
Peo. v. Galit was handed down, the rule is that the
voluntariness of a waiver of the rights to silence and to
counsel must be determined on a case-to-case basis, taking
into account the circumstances under w/c the waiver was
made.
 
            3.  With regard to confessions obtained after March
20, 1985 but before Feb. 2, 1987, when the present Consti.
took effect, the rule is that a waiver of the rights to remain
silent and to the assistance of counsel, to be valid, must be
made w/ the assistance of counsel.
 
            4.  With regard to confessions given after Feb. 2,
1987, the present Consti. requires that the waiver to be valid,
must be in writing and w/ the assistance of counsel.
 
IX.  THE EXLUSIONARY RULE.
 
            Any confession or admission obtained in violation of
this or Sec. 17 hereof shall be inadmissible in evidence
against him, the Consti. says.  No distinction is made bet.
confession or admission.  Although the previous Consti.
spoke of confessions only, I have argued that it was not so
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limited but that it also embraced uncounselled statements. 
For "if a statement made wore in fact exculpatory, it
could ... never be used by the prosecution, in fact, statements
merely intended to be exculpatory by the defendant are often
used to impeach his testimony at trial or to demonstrate
untruths in the statement given under interrogation and thus
to prove guilt by implication."
 
            The phrase "for any purpose in any proceeding"
conveys the idea that the rule excluding evidence illegally
obtained is absolute.  No similar phraseology is used in the
exclusionary rule implementing the Miranda rule.  Does this
mean there can be instances, where uncounselled statements
may nevertheless be admissible in evidence, albeit, for a
limited purpose?
            In Harris v. US, it was held that although a
confession obtained w/o complying w/ the Miranda rule was
inadmissible for the purpose of establishing in chief the
confessor's guilt, it may nevertheless be presented in
evidence to impeach his credit.  Petitioner, as a def., in a
prosecution for selling heroin, claimed that what he had sold
to a police officer was baking powder, as part of the scheme
to defraud the purchaser xxx  The shield provided by
Miranda cannot be perverted into a license to use perjury by
way of a defense, free from the risk of confrontation w/
prior inconsistent utterance
            In New York v. Quarles, the SC created a "public
safety" exception to the Miranda rule. xxx.  "There is public
safety exception to the requirement that Miranda warnings
be given before a suspect's answers may be admitted in
evidence."  It held that the warnings were not themselves
Constitutional rights but merely "prophylactic" measures to
insure the right against self-incrimination.  The Court noted
the cost imposed on the public by the rule, namely, that the
giving of warnings might deter suspects from answering
questions and this might lead in turn to fewer convictions.  It
then ruled that the social cost is higher when the giving of
warnings might deter suspects from answering questions
than are necessary to avert an immediate threat to public
safety.  When answers are not actually coerced, this social
cost outweights the need for Miranda safeguards.  In such
exigent circumstances, police officers must not be made to
choose bet. giving the warnings at the risk that public safety
will be endangered and withholding the warnings at the risk
that probative evidence will be excluded.
 
 
People v. Bolanos, 211 SCRA 262
 
F:         Bolanos was convicted for Murder.  The victim,
Pagdalian was found dead, sustaining stab wounds.  When
the policemen inquired about the circumstances of the
incident, they were informed that the deceased was with two
companions, on the previous night. The accused was
apprehended.  In the vehicle where the accused boarded, on
his way to the Police Station, Bolanos allegedly admitted
that he killed Pagdalian because he was abusive.
 
CONSTITUTIONAL LAW 2
ISSUE:  Whether or not the admission in the jeep was
admissible in evidence.
 
HELD:  The trial court, in admitting the extra-judicial
confession of the accused in evidence, violated his
Constitutional right to be informed, to remain silent and to
have a counsel of his choice, while already in police
custody.  Since the extra-judicial confession was the only
basis for the conviction of the accused, the trial coust’s
judgment was reversed.  Bam.
 
 
People v. Bandula, 232 SCRA 566
 
F:         After he and his wife were individually
hogtied and their house ransacked, Atty. Garay was
found dead with 3 gunshot wounds .  For his death
and the loss of their things  on the occasion thereof,  investigations
Bandula, Sidigo, Dionanao, and Ejan were charged
in court for robbery with homicide.  On the basis of
the extrajudicial confessions (EJC) allegedly made
by Bandula and Dionanao during their custodial
investigation which the court found to "have all the
qualities and have complied with all the requirements
of an admissible confession, it appearing from the
confession that acussed were informed of their rights
under the law regarding custodial investigation and
were duly represented by Counsel (Atty. Zerna)", it
disregarded the defenses interposed by the accused
and convicted Bandula.  The 3 other  accused were
acquitted for "insufficiency of evidence".
 
Issue:    W/N the extrajudicial confession of Bandula
conformed with the constitutional requisites for its
validity, hence admissible in evidence. 
 
HELD:  NO
            From the records, it can be gleaned that when
accused Bandula and Dionanao were investigated
immediately after their arrest, they had no counsel
present.  If at all, counsel came in only a day after the
custodial investigation with respect to Dionanao, and
2 weeks later with respect to Bandula.  And counsel
who supposedly assisted both accused was Atty.
Zerna, the Municipal Attorney of Tanjay, whose
interest is admittedly adverse to the accused and who
is not an independent counsel.  On top of this, there
are telltale signs that violence was used against the
accused.  Certainly, these are blatant violations of of
Sec. 12, Art III of the 1987 Constitution which
protects the rights of the accused during custodial
investigation.  Suzette.
 
 1.  Miranda rule not applicable to confessions executed
before January 17, 1973
 
 
 2.  Not applicable to res gestae statements
 
People v. Dy, 158 SCRA 111 (1988)
Res gestae (a Latin phrase meaning "things done") is an
exception to the rule against Hearsay evidence. Res gestae is
based on the belief that because certain statements are made
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naturally, spontaneously and without deliberation during the
course of an event, they leave little room for
misunderstanding/misinterpretation upon hearing by
someone else( i.e. by the witness who will later repeat the
statement to the court) and thus the courts believe that such
statements carry a high degree of credibility. Evidence
which can be admitted into evidence as Res gestae fall into
three headings:
Words or phrases which either form part of, or explain a
physical act,
Exclamations which are so spontaneous as to belie
concoction, and
Statements which are evidence as to someone's state of
mind.
 
 3.  Not applicable to statements given in administrative
 
People v. Ayson, 175 SCRA 216 (1989)
 
            It should at once be apparent that there are
two (2) rights, or sets of rights, dealt with in the
section, namely:
 
            1) the right against self-incrimination  i.e., the right
of a person not to be compelled to be a witness against
himself  set out in the first sentence, which is a verbatim
reproduction of Section 18, Article III of the 1935
Constitution, and is similar to that accorded by the Fifth
Amendment of the American Constitution,  and
            2) the right of a person in custodial interrogation,
i.e., the rights of every suspect "under investigation for the
commission of an offense."
 
            Parenthetically, the 1987 Constitution indicates
much more clearly the individuality and disparateness of
these rights. It has placed the rights in separate sections. The
right against self- incrimination, "No person shall be
compelled to be a witness against himself," is now
embodied in Section 17, Article III of the 1987 Constitution.
The rights of a person in custodial interrogation, which have
been made more explicit, are now contained in Section 12 of
the same Article III. 
 
Right Against Self-Incrimination
 
            The first right, against self-incrimination, mentioned
in Section 20, Article IV of the 1973 Constitution, is
accorded to every person who gives evidence, whether
voluntarily or under compulsion of subpoena, in any civil,
criminal, or administrative proceeding.   The right is NOT to
"be compelled to be a witness against himself."  It prescribes
an "option of refusal to answer incriminating questions and
not a prohibition of inquiry."  It simply secures to a witness,
whether he be a party or not, the right to refuse to answer
any particular incriminatory question, i.e., one the answer to
which has a tendency to incriminate him for some crime. 
However, the right can be claimed only when the specific
question, incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time. It does not
give a witness the right to disregard a subpoena, to decline
to appear before the court at the time appointed.
CONSTITUTIONAL LAW 2
 
            The right against self-incrimination is not self-
executing or automatically operational. It must be claimed. 
It follows that the right may be waived, expressly, or
impliedly, as by a failure to claim it at the appropriate time.
Rights in Custodial Interrogation
 
            Section 20, Article IV of the 1973 Constitution also
treats of a second right, or better said, group of rights. These
rights apply to persons "under investigation for the
commission of an offense," i.e., "suspects" under
investigation by police authorities; and this is what makes
these rights different from that embodied in the first
sentence, that against self-incrimination which, as
aforestated, indiscriminately applies to any person testifying
in any proceeding, civil, criminal, or administrative.
 
            This provision granting explicit rights to persons
under investigation for an offense was not in the 1935
Constitution. It is avowedly derived from the decision of the
U.S. Supreme Court in Miranda v. Arizona,  a decision
described as an "earthquake in the world of law
enforcement."              a)  to refuse to be a witness;
 
            Section 20 states that whenever any person is "under
investigation for the commission of an offense"--
 
            1)  he shall have the right to remain silent and to
counsel, and to be informed of such right,  answer a specific question which tends to
            2)  no force, violence, threat, intimidation, or any
other means which vitiates the free will shall be used against
him;  and
            3)  any confession obtained in violation of these
rights shall be inadmissible in evidence.  Felipe Ramos was not in any sense under custodial
 
Miranda rights
 
            He must be warned prior to any questioning that he
has the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires. Opportunity to exercise those
rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity
afforded him, the individual may knowingly and
intelligently waive these rights and agree to answer or make
a statement. But unless and until such warnings and waiver
are demonstrated by the prosecution at the trial, no evidence
obtained as a result of interrogation can be used against him.
 
            The objective is to prohibit "incommunicado
interrogation of individuals in a police-dominated
atmosphere, resulting in self- incriminating statement
without full warnings of constitutional rights."  dismiss the case on the ground that the conduct of the line-
 
            The rights above specified, to repeat, exist only in
"custodial interrogations," or "in-custody interrogation of
accused persons."  And, as this Court has already stated, by
custodial interrogation is meant "questioning initiated by
law enforcement officers after a person has been taken into
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custody or otherwise deprived of his freedom of action in
any significant way."   
 
Rights of Defendant in Criminal Case As Regards Giving of
Testimony
            In fine, a person suspected of having committed a
crime and subsequently charged with its commission in
court, has the following rights in the matter of his testifying
or producing evidence, to wit:
 
            1)  BEFORE THE CASE IS FILED IN COURT (or
with the public prosecutor, for preliminary investigation),
but after having been taken into custody or otherwise
deprived of his liberty in some significant way, and on being
interrogated by the police: the continuing   right to remain
silent and to counsel, and to be informed thereof, not to be
subjected to force, violence, threat, intimidation or any other
means which vitiates the free will; and to have evidence
obtained in violation of these rights rejected; and
 
            2)         AFTER THE CASE IS FILED IN COURT  
 
            b)  not to have any prejudice whatsoever
result to him by such refusal;
            c)  to testify in his own behalf, subject to
cross-examination by the prosecution;
            d)  WHILE TESTIFYING, to refuse to
incriminate him for some crime other than that for
which he is then prosecuted.
 
            It is clear from the undisputed facts of this case that
interrogation, as the term should be properly understood,
prior to and during the administrative inquiry into the
discovered irregularities in ticket sales in which he appeared
to have had a hand. The constitutional rights of a person
under custodial interrogation under Section 20, Article IV of
the 1973 Constitution did not therefore come into play, were
of no relevance to the inquiry. 
 
4.  Custodial Phase of Investigation
 
Police Lineups
 
Gamboa v. Cruz  June 27, 1988
 
Police line-up not part of custodial inquest
 
F:         Petitioner was arrested for vagrancy in Manila. The
following day, he was included in a police line-up and was
identified as one of the suspects in a robbery case. He was
later charged with robbery and charged. He moved to
up, without the assistance of counsel, was unconstitutional.
 
HELD:  The police line-up was not part of the custodial
inquest, hence, petitioner was not yet entitled, at such stage,
to counsel. VV.
 
CONSTITUTIONAL LAW 2
US v. Wade, 388 US 218 (1967)
  
People v. Hatton, 210 SCRA 1
 
F:         Algrame was stabbed at the back while walking with
several companions including Ongue who vaguely
recognized  the assailant, describing the latter as a
"mestizo." Two days later, Ongue was invited  by the police
to identify the suspect in a police line- up. Hatton was
pointed by Ongue as the assailant. Hatton alleges that at the
time that he was made to stand in the police line-up, he was
not assisted by counsel. Hence, his identification therein by
Ongue is inadmissble.
 
RULING: When the suspect was brought to the police
station for indentification, technically, he was not yet under
custodial investigation. Thus, the right to counsel does not
yet apply.
            However, there is every reason to doubt the
regularity of the identification of the suspect by the witness.
During the proceedings in the police station, Ongue
identified Hatton  not because he was certain that Hatton
was really the assailant but because he was the only mestizo
in the station and because he was pointed by the police as
the suspect. This cannot be considered as positive
identification of the accused by the witness.
 
 5.  Tests of Validity of Waiver of Miranda Rights
 
 
No valid waiver.
 
People v. Caguioa  95 SCRA 2 (1980)
 
Right to counsel may be waived provided the waiver is
voluntary, knowing and intelligent
 
F:         Respondent Paquito Yupo was accused of murder in
the CFI of Bulacan. The prosecution presented Corporal
Conrado Roca of the Meycauayan Police who identified a
statement of the accused during a police interrogation and
his alleged waiver of the right to remain silent and to
counsel. When Roca was questioned on the incriminating
answers in the statement, the defense objected, contending
that Yupo's statement was given without the assistance of
counsel. Respondent Judge sustained the objection on the
ground that the right to counsel cannot be waived.
HELD:  The right to counsel during custodial interrogation
may be waived provided the waiver is made intelligently
and voluntarily, with full understanding of its consequences.
In this case, the statement made only a perfunctory opening
question, after informing the suspect that he was under
investigation, that he had a right to counsel and that
anything he said could be used for or against him and after
asking whether he was willing to answer questions and he
answered "yes." The statement was in Tagalog which the
defendant, a native of Samar, had not been shown to be fully
acquainted with. The date of execution of the statement
before the municipal court was not indicated. The separate
statement signed by the defendant stating he was made to
read the opening statement containing the Miranda warnings
and that they were explained to him all the more engenders
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doubt as to whether the defendant was properly informed of
his right.
  
People v. Tampus  96 SCRA 624 (1980)
 
Public trial; waiver of right to counsel
 
F:         Jose Tampus and Rodolfo Avila were prisoners at
the National Penitentiary in Muntinlupa, Rizal. On June 14,
1976, they attacked and killed Celso Saminado, another
prisoner. Afterwards, they surrendered to the prison guard,
saying "surrender po kami. Gumanti lang po kami." Two
days later, they gave extrajudicial confessions admitting the
killing. They were accused of murder and pleaded guilty.
They took the witness stand and affirmed their confessions.
Tampus was sentenced to death while Avila to reclusion
temporal. Trial took place at the Penitentiary. On review, it
was contended that Tampus was denied the right to a public
trial and to counsel.
 
HELD:  The record does not show that the public was
actually excluded from the place where the trial was held or
that the accused was prejudiced by the holding of the trial
there. Anyway, the right to public trial may be waived. In
another case where Avila was also a defendant, the SC
directed that, for security reasons, Avila's trial be held in the
National Penitentiary. The accused was warned in Tagalog
that he had a right to remain silent and to counsel but despite
this, he was willing to answer questions of the police. There
is no doubt that the confession was voluntarily made. The
truth is that shortly after the killing, Tampus and Avila
admitted their guilt. That spontaneous statement, elicited
without interrogation, was part of the res gestae and at the
same time was a voluntary confession of guilt. By means of
that statement given freely on the spur of the moment
without any urging or suggestion, the two waived their right
to remain silent and to counsel.
 
People v. Poyos  143 SCRA 543 (1986)
 
No valid waiver of right to counsel and to silence
 
F:         Poyos was convicted of the murder of a 77-year-old
woman and sentence to death. His conviction was based
solely on his extrajudicial confession which he disowned in
court. The confession was given to the police and subscribed
before the clerk of court and contains a waiver.
HELD:  It is doubtful, given the tenor of the question
whether there was a definite waiver by the suspect of his
right to counsel. His answer was categorical enough, to be
sure, but the question itself was not since it spoke of a
waiver only "for the moment." As worded, the question
suggested a tentativeness that belied the suspect's supposed
permanent foregoing of his right to counsel, if indeed there
was any waiver at all. Moreover, he was told that he could
hire a lawyer but not that one could be provided for him for
free. VV.
 
            Since Royo's conviction for murder was based on a
written confession showing that he was apprised of his right
not only by the police but also by the fiscal, but that he
CONSTITUTIONAL LAW 2
waived these rights, then the waiver found to be voluntary,
knowing and intelligent and thus admissible.
 
 
  b.  The Galit Rule (March 20, 1985 to Feb. 2, 1987)
 
            It is not enough that the confession is voluntary,
knowing and intelligent.  The waiver must be made in the
presence of counsel.  Waiver of the right to counsel must be
made with the assistance of counsel.  This rule applied from
March 20, 1985 to February 2, 1987.
 
            In People v. Galit, 135 SCRA 485 (1985), the SC,
reiterating a dictum in Morales v. Enrile, 121 SCRA 538
(1983), ruled that no custodial investigation should be
conducted unless it be in the presence of counsel, and that
although the right to counsel may be waived, the waiver
should not be valid unless made with the assistance of
counsel.
 
            In the Galit case, however, the adoption of the
Morales obiter was also an obiter.  The confession in this
case was traditionally involuntary, and so the SC did not
need the Morales obiter in order to disallow the confession.
            Under the facts of the case, the accused Galit was
convicted of robbery with homicide on the basis of his
confession, which was obtained through torture.  The NBI
investigators covered Galit's face with a rag and then pushed
it into a toilet bowl full of human waste.  It was only after
they had broken his will that he signed the confession and
posed for pictures for re-enactment as directed by the
investigators.
 
 
People v. Galit  135 SCRA 465 (1985)
 
F:         Defendant was convicted of robbery with homicide
by the Circuit Criminal Court. The principal prosecution
witness testified that he heard the defendant and his wife,
who was the mother of the witness' wife, quarrelling the
morning after the crime. He said the defendant wanted to
leave their house because he and his companions had robbed
"Aling Nene." The prosecution also presented the
extrajudicial confession of the defendant.
HELD:  The confession of the defendant is inadmissible
because it was obtained through torture. The NBI
investigators covered the defendant's face with a rag and
then pushed in into a toilet bowl full of human waste. It was
only after they had broken his will that the defendant signed
the confession and posed for pictures for reenactment as
directed by the investigators. The defendant is from Samar
and there is no showing that he understood Tagalog. It was
two weeks after he executed the salaysay that his relatives
were permitted to visit him. His statement does not contain
any waiver or right to counsel and yet during the
investigation he was not assisted by one. These constitute
gross violations of his right. The SC cited the case of
Morales v. Ponce Enrile where it laid the procedure in
custodial investigations: No custodial investigation shall be
conducted unless it be in the precense of counsel engaged by
the person arrested, or by any person on his behalf, or
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appointed by the court upon petition either of the detainee
himself or of anyone on his behalf. The right to counsel may
be waived but the waiver shall not be valid unless made with
the assistance of counsel. Any statement obtained in
violation of this, whether exculpatory or inculpatory, in
whole or in part, shall be inadmissible in evidence.
 
 
            Whatever doubt as to the validity of the Galit rule,
however, was laid to rest by the SC in People v. Sison, 142
SCRA 219 (1986).  The Court held that in People v. Galit,
which was decided en banc and concurred in by all the
Justices except one who took no part, the Court was out to
rest all doubts regarding the ruling in Morales v. Enrile, and
embraced its ruling.
 
            In this case, the prosecution sought to prove its
charge of subversion against Asis by means of her
confession given in the hospital, in which she admitted
through a leading question, that she was a member of the
NPA and that she was wounded in the encounter.  The SC
upheld the trial court's decision excluding the confession on
the ground that the waiver of the Miranda rights was made
without the assistance of counsel.
 
People v. Sison  142 SCRA 219 (1986)
 
F:         Jocelyn de Asis was accused of subversion. At the
trial, the Fiscal offered as evidence an extrajudicial
confession given by her in the hospital. In that confession,
she admitted, through a leading question that she was a
member of the NPA. The trial court excluded the confession
on the ground that the waiver of Miranda rights was made
without the assistance of counsel. The prosecution contends
that the ruling in Morales v. Ponce Enrile that the right to
counsel may be waived only with the assistance of counsel,
was only a dictum.
 
HELD:  In the case of People v. Galit, which was decided en
banc and concurred in by all Justices except one who took
no part, the SC put to rest all doubts regarding the ruling in
Morales v. Ponce Enrile and Moncupa v. Enrile.
 
 
People v. Lim, 196 SCRA 809 (1991)
 
            In People v. Nabaluna, 142 SCRA 446 (1986),
Nabaluna et. al. were convicted of robbery with homicide on
the basis, among others, of extrajudicial confessions taken in
1977.  The confessions and the special counsel before whom
the confessions were signed prove that the Miranda
warnings were given, but these were not made in the
presence of counsel.  The SC, in allowing the confession,
ruled that the GAlit ruling could not have a retroactive
effect, especially since in this case the trial court decision
was already rendered before the SC pronouncement.
 
 
 
People v. Lasac  148 SCRA 624 (1987)
 
CONSTITUTIONAL LAW 2
F:         Appellant was convicted of parricide on the basis of
a confession and circumstantial evidence which the trial
court found substantial to establish guilt.
 
HELD:  The waiver by the appellant of his right to counsel
was made without the assistance of a counsel. The SC has
held in Morales v. Ponce Enrile, People v. Galit and People
v. Sison (1986) that this requirement is mandatory. Any
statement obtained in violation of this procedure shall be
inadmissible in evidence. VV.
 
 c.  New rule on waiver (Feb. 2, 1987)
 
Art. III, Sec. 12 (1):  Waiver must be in writing and made in
the presence of counsel
 
            Art. III, Sec. 12. (1)  Any person under
investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and
to have competent and independent counsel preferably
of his choice.  If the person cannot afford the services of
counsel, he must be provided with one.  These rights
cannot be waived except in writing and in the presence
of counsel.
 
            Under the new Constitution, any waiver must now be
made (1) in writing, and (2) in the presence of counsel.
6.  The burden of proving voluntariness of waivers is on
the prosecution
            The burden to prove that there was a valid waiver of
the Miranda warning devolves upon the one seeking to
present the confession, that is, on the prosecution.  This rule
applies whether in the pre-Galit, Galit, or 1987 rule.
            In People v. Jara, 144 SCRA 516 (1986), the SC
noted that the stereotype "advice" appearing in practically
all extrajudicial confessions which are later repudiated has
assumed the nature of a legal form.  Investigators
automatically type it together with "opo" as the answer, or
ask the accused to sign it or even copy it in their
handwriting.  Its tired punctilious, fixed and artificially
stately style does not create an impression of voluntariness
or even understanding on the part of the accused.
 
            Whenever a Constitutional protection is waived by
one entitled to that protection, the presumption is always
against the waiver.  Thus, the prosecution must prove with
strongly convincing evidence that indeed the accused
willingly and voluntarily submitted his confession, and
knowingly and deliberately manifested that he was not
interested in having a lawyer assist him during the taking of
that confession.
 
People v. Jara, 144 SCRA 516 (1986)
F:         Appellants were found guilty of robbery with
homicide for the killing and robbery of Ampara vda. de
Bantigue on June 9, 1978. In another case, two of the
appellants were found guilty of homicide for the killing on
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the same date of Luisa Jara while Felicisimo Jara, the
husband of the deceased, was found guilty of parricide. Two
of the appellants, Raymundo Vergara and Bernardo
Bernadas, made extrajudicial confessions implicating Jara as
the mastermind. The confessions were taken while the two
were held incommunicado in the presence of five policemen
and after two weeks of detention.
 
HELD:  The stereotyped "advice" of the Miranda rights
appearing in practically all extrajudicial confessions which
are later repudiated assumed the nature of a legal form or
model. Its tired, punctilious, fixed and artificial style does
not create an impression of voluntariness or even
understanding on the part of the accused. The showing of a
spontaneous, free and unconstrained giving up of a right is
missing. Whenever a protection given by the Constitution is
waived by the person entitled to that protection, the
presumption is always against the waiver. Consequently, 
the prosecution must prove with strong, convincing
evidence that indeed the accused willingly and voluntarily
submitted his confession and knowingly and deliberately
manifested that he was not interested in having a lawyer
assist him during the taking of that confession. That proof is
missing in this case.
 7.  What may be waived:  The right to remain silent and
to counsel, but not the right to be given "Miranda
warnings"
            The right to remain silent and to counsel, which are
the effectuations of the Miranda rights, can be waived.
            What cannot be waived are:
 
            1.  The right to be given the Miranda warnings.  (For
how can one waive what one does not know?)
            2.  The right to counsel when making the waiver of
the right to remain silent or to counsel.
 
 
                        8.  Exclusionary rule
 
            Art. III, Sec. 12. xxx
            (3)  Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
 
 
            Note than under [Art. III, Sec. 3(2)] the exclusionary
rule reads: (any evidence obtained in violation of this or the
preceding section shall be inadmissible "for any purpose in
any proceeding."
            There are two exceptions to the exclusionary rule. 
One, to impeach the credibility of the accused.  Two, public
safety.
Impeach the credibility
            The unwarned or uncounselled confession is not
totally without use.  While it is not admissible to prove the
guilt of the accused, it may be used against him to impeach
his credibility by showing that he is lying in court, so ruled
CONSTITUTIONAL LAW 2
the U.S. Supreme Court in Harris v. New York, 401 U.S.
222 (1971).
 
 
Harris v. New York, 401 U.S. 222 (1971)
 
            In this case, Harris was arrested for twice selling
heroin to an undercover police agent.  He confessed to the
crime during the police interrogation, but the confession was
uncounselled, and so it was held as inadmissible in
evidence.  But when Harris took the witness stand, he
testified that what he sold was baking powder in order to
defraud the police agent.  The SC allowed the prosecution to
introduce the uncounselled statment to show that he was
lying.
 
            In justifying the admission of the testimony, Justice
Burger  said  that it is one thing to say that the government
cannot  make an affirmative use of the evidence unlawfully
obtained, and quite another to say that the defendant can
turn the illegal method by which the evidence in the
possession   of the government was obtained to his own
advantage, providing himself with a shield against perjury
and the contradiction of his untruths.
 
            The reason, continued the  Court is that the shield
provided by the Miranda rights cannot be perverted into a
license to use perjury by way of a defense, free from the risk
of confrontation with prior inconsistent utterances.
 
Public Safety
 
            Public Safety may justify the police in taking
confessions without prior warning.  Thus ruled the U.S.
Supreme Court in New York v. Quarles, 104 S. Ct. 2626
(1984).
 
 
 
New York v. Quarles, 104 S. Ct. 2626 (1984).
 
            In the case, the Court excused the giving of the
Miranda warning because the public safety required that the
weapon had to be located before it could be used by the
accused against those in the supermarket.
            The criticism hurled against this ruling is that while
the police may be justified in forcing the assailant to say
where the weapon is located, he is not justified to present
this in evidence in the subsequent criminal prosecution.
 
 
C.  Right to bail
 
            Art. III, Sec. 13.  All persons, except those
charged with offenses punishable by reclusion perpetua
when the evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law.  the
right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended.  evidence of guilt is strong.
Excessive bail shall not be required.
ZPG & ASSOCIATES
 1.  When right may be invoked
 
            The right to bail is available from the very moment
of arrest  (which may be before or after the filing of formal
charges in court) up to the time of conviction by final
judgement (which means after appeal).
 
            No charge need be filed formally before one can file
for bail, so long as one is under arrest.  So ruled the SC in
Heras Teehankee v. Rovica.  75 Phil.634 (1945).
 
            The case was unique in that after the war, the
People's Court Act amended Art. 125 of the RPC to allow
for a longer time to detain persons because of the
impossibility of filing charges within the reglementary
period due to the number of indictees.
 
Bail and Habeas Corpus
 
            In the case  of bail, there is an implicit recognition
that the arrest and detention, are valid, or that even if they
were initially illegal, such illegality was cured by the
subsequent filing of a case in court.  Thus, the prayer in bail
is that one be released temporarily from such valid
detention, and this can be made anytime after arrest.
 
            In habeas corpus,  the assumption is precisely that
the arrest and detention are illegal, so that the prayer is to be
released permanently from such illegal detention.  When the
privilege of the writ is suspended, the arrest and detention
remain illegal, but the remedy afforded by law to the victim
is not available.  Under the 1987 Constitution, though the
effect of the suspension  has been considerably lessened to
the need to file a case within 72 hours from the illegal arrest,
otherwise the detainee is to be released.
 
            The Constitution now provides, overruling Morales
v. Enrile, that the suspension of the privilege of the writ
does not carry with it the suspension of the right to bail. 
Habeas Corpus refers to illegal detention, while bail refers
to legal detention, or even detention that started as illegal
but was cured by the filing of a case in court.
 
 2.  When bail is a matter of right, when it is a matter of
discretion
            Bail is a matter of right in all cases not punishable by
reclusion perpetua.
 
            It is a matter of discretion in case the evidence of
guilt is strong.  In such a case, according to People v. San
Diego, 26 SCRA 522 (1966), the court's discretion to grant
bail must be exercised in the light of a summary of the
evidence presented by the prosecution.  Thus, the order
granting or refusing bail must contain a summary of the
evidence for the prosecution followed by the conclusion on
whether or not the evidence of guilt is strong.
 
            The only time bail may be denied is when (a) the
offense is punishable by reclusion perpetua, and (b) the
 
CONSTITUTIONAL LAW 2
            With the abolition of the death penalty (III, 20), and
the automatic commutation of a death sentence to reclusion
perpetua, it is contended that when the 1987 Constitution
denies the right to bail in offenses punishable by reclusion
perpetua, it is meant to apply only to those crimes which
were once punishable by death.  For if it includeds even
those crimes which before and now are really punishable by
reclusion perpetua, it would go against the very spirit of the
Constitution.
 
People v. Donato, 196 SCRA 130 (1991)
 
3.  Bail in courts-martial
 
Commendador v. De Villa, 200 SCRA 80 (1991)
  
 4.  Standards for fixing bail
            Rule 114, Sec. 6.  Amount of bail; guidelines.-- 
The judge who issed the warrant or granted the
application shall fix a reasonable amount of bail
considering primarily, but not limited to the following
guidelines:
            (a)  Financial ability of the accused to give bail;
            (b)  Nature and circumstances of the offense;
            (c)  Penalty of the offense charged;
            (d)  Character and reputation of the accused;
            (e)  Age and health of the accused;
            (f)  The weight of the evidence against the
accused;
            (g)  Probability of the accused appearing in trial;
            (h)  Forfeiture of other bonds;
            (i)  The fact that accused was a fugitive from
justice when arrested; and
            (j)  The pendency of other cases in which the
accused is under bond.
            Excessive bail shall not be required.
 
 
            Where the right to bail exists, it should not be
rendered nugatory be requiring a sum that is excessive,
otherwise, it becomes "a promise to the ear to be broken to
the hope, a teasing illusion like a munificent bequest in a
pauper's will" (Jackson).  Thus, said the SC in De la Camara
v. Enage, 41 SCRA 1 (1971).
 
            In this case, a bail of P1.195 million imposed against
Mayor Camara for charges of 12 murders and 12 frustrated
murder was found excessive.
 
            The SC laid down the following guidelines in fixing
the amount of bail in Villasenor v. Abano, 21 SCRA 312
(1967), later contained in sec. 6 of Rule 114.
 
            1.  Ability of the accused to give the bail.
            2.  Nature of the offense.
            3.  Penalty for the offense charged.
            4.  Character and reputation of the accused
            5.  Health of the accused.
            6.  Character and strength of the evidence.
            7. Probability of the accused appearing in trial.
            8.  Forfeiture of other bonds.
ZPG & ASSOCIATES
            9. Whether the accused was a fugitive from justice
when arrested.
            10. If the accused is under bond for appearance at
trial in other cases.
 
            Even when the accused has previously jumped bail,
still he cannot be denied bail.  the remedy in this case is to
increase the  amount of the bail (Siquiam v. Amparo).
 
 5.   Right to bail and right to travel abroad
 
            Art. III, Sec. 6.  The liberty of abode and of
changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the
court.  Neither shall the right to travel be impaired except
in the interest of national security, public safety, or public
health, as may be provided by law.
 
            In Manotoc v. Court of Appeals, 142 SCRA 149
(1986), the SC disallowed a person released on bail to travel
abroad for a business trip.  The Court gave 2 reasons why
bail operates only within the country.
 
            One, the accused may be placed beyond the
jurisdiction of the court if he were allowed to leave the
Philippines without sufficient reason, thus affecting one of
the conditions in the grant of bail, namely to have the
accused available whenever the court requires his presence.
 
            Two, implicit in the bail is the agreement between
the State and the surety that the State will do nothing to
make it difficult for the surety to arrest the defendant upon
order of the court.  If the court thus allows his to leave, then
the State loses its right to order the forfeiture of the bond
because it itself has breached its obligation to the surety.
 
            The case leaves the question of allowing an accused
under bail to go abroad for humanitarian reasons open-
ended.  This reason was not foreclosed by the Court, which
hinted that the accused could be allowed to leave if he had
"sufficient reason".  What the Court found insufficient was
the business trip.
 
 
Manotoc v. CA, 142 SCRA 149 (1986) 
 
F:         Petitioner is a principal stockholder of two
corporations, in one of which he was the president. The
firms were placed under a management committee by the
SEC and petitioner was placed "on hold" by the
Commission of Immigration. Petitioner was charged with
estafa. He later asked for permission to leave the country for
business reasons, but his request was denied by the courts.
He filed a petition for certiorari but his petition was also
dismissed for lack of merit. He appealed to the SC.
 
HELD:  The condition imposed by Rule 114, sec. 1 upon the
accused to make himself available whenever the court
requires his presence, operates as a valid restriction on his
right to travel. The constitutional right to travel is not
absolute, but is subject to lawful orders of the court.  VV.
CONSTITUTIONAL LAW 2
 
  6.  Waiver of the Right to Bail
 
People v. Donato, 198 SCRA 130 (1991)  Cunanan that it was Catap who killed the victim and
 
D.  Rights during trial
 
            Art. III, Sec. 14.  (1)  No person shall be held to
answer for a criminal offense without due process of law.
            In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel,
to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial and public trial,
to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf.  However,
after arraignment, trial may proceed notwithstanding
the absence of the accused provided that he has been
duly notified and his failure to appear is unjustifiable.  Cpl. Cunanan,  there is no evidence that Cunanan had any
 
 
                        1.  Presumption of innocence
 
            In People v. Dramayo, 42 SCRA 69 (1971), the SC
noted that the requirement of proof beyond reasonable doubt
is a necessary corollary of the constitutional right to be
presumed innocent.
 
 
            In Igot v. Comelec, 95 SCRA 392 (1980), a law
disqualifying candidates charged with national security
offences was struck down as unconstitutional, for violating
the presumption against innocence.
 
 
            In Alejandro v. Pepito, 96 SCRA 322 (1980), a judge
who allowed the accused to present his evidence ahead of
the prosecution, over the objection of the prosecution, after
the acused admitted the killing but invoked self-defense,
was reversed by the SC on the ground that this change in the
order of trial violated the constitutional presumption of
innocence which places the burden proof on the prosecution.
            This ruling was modified by Rule 119, sec. 3 (e) of
the 1985 Rules of Criminal Procedure which now reverses
the order of trial when the defendant admits the act but
invokes a justifying or exempting circumstance.
 
 
People v. de Guzman, 231 SCRA 739
 
F:         De Guzman, Castro and Catap were charged
with murder for the killing of an unidentified person
on Nov. 16, 1994.  Only De Guzman and Castro
were arrested and both pleaded not guilty.  They
were convicted by the court mainly on the basis of
the testimony of Adelia Angeles.  She positively
identified the 2 accused as the persons who were
with Catap who maltreated an unidentified person
whom they had tied to an ipil-ipil tree and upon
seeing her, she testified that they untied the man  and
brought him towards the direction of the Pasig river
ZPG & ASSOCIATES
which was only 3 houses away.  This was further
strengthened by the extrajudicial confession (EJC) of
accused Castro to Police Corporal Dominador
that he and de Guzman acted only as look-outs.
 
Issue:    W/N the constitutional presumption of
innocenec of the accused has been overcome.
 
HELD:  YES
            Though there is no direct evidence to link the
3 accused to the killing of the unknown  victim, the
circumstantial evidence presented satisfied  Sec. 4,
Rule 133 ROC namely: (1) there is more than one
circumstance; (2) the facts from which the inferences
are derived are proven; and (3) the combination of all
the circumstances is such as to produce conviction
beyond resonable doubt.
            With regard to the EJC of Accused Castro to Police
motive to falsely testify against accused.  While it is true
that accused's EJC was made without the advice and
assistance of counsel, hence inadmissible as evidence, it
could be treated as a verbal admission of the accused 
established through the testimonies of persons who heard it
or who conducted the investigatiuon  of the accused (Peo v
Molas 218 SCRA 473).  Moreover in Peo  v Alvarez,  the
court ruled that an extrajudicial confession is admissible
against a co-accused when it is used as a circumstantial
evidence to show the probability of the participation  of said
co-accused in the crime committed. 
 
2.  Right to be heard personally or by counsel
 
            Adequate legal assistance shall not be denied to any
person by reason of poverty (Art. III, Sec. 11.)  No matter
how educated one may be, he may not know how to
establsih his innocence for the simple reason that he does
not know the rules of evidence said the SC in People v.
Holgado, 85 Phil 752 (1952).
 
 
People v. Holgado, 85 Phil 752 (1952)
F:         Appellant Frisco Holgado was charged in the court
of First Instance of Romblon with slight illegal detention
because he did "feloniously and without justifiable motive,
kidnap and detain one Artemia Fabreag in the house of
Antero Holgado for about eight hours thereby depriving said
Artemia Fabreag of her personal liberty." Accused, unaided
by counsel, pleaded guilty and said that he was instructed by
Mr. Ocampo to do so.
                Accused was convicted of a capital offense.
                Since the accused-appellant pleaded guilty and no
evidence appears to have been presented by either party, the
trial judge must have deduced the capital offense from the
facts pleaded in the information.
 
Ruling:  Under the circumstances, particularly the qualified
plea given by the accused who was unaided by counsel, it
was not prudent, to say the least, for the trial court to render
such a serious judgment finding the accused guilty of a
capital offense, and imposing upon him such a heavy
CONSTITUTIONAL LAW 2
penalty as ten years and one day of prision mayor to twenty
years, without absolute any evidence to determine and
clarify the true facts of the case.
            The proceedings in the trial court are irregular from
the beginning. It is expressly provided in our rules of Court,
Rule 112, section 3 (now Rule 116, Sec. 6), that:
 
                If the defendant appears without attorney, he must
be informed by the court that it is his right to have attorney
before being arraigned., and must be asked if he desires the
aid of attorney, the Court must assign attorney de oficio to
defend him. A reasonable time must be allowed for
procuring attorney.
 
            Not one of these duties had been complied with by
the trial court.
            One of the great principles of justice guaranteed by
our Constitution is that "no person shall be held to answer
for a criminal offense without due process of law", and that
all accused "shall enjoy the right to be heard by himself and
counsel." In criminal cases there can be no fair hearing
unless the accused be given the opportunity to be heard by
counsel. The right to be heard would be of little avail if it
does not include the right to be heard by counsel. Even the
most intelligent or educated man may have no skill in the
science of the law, particularly in the rules of procedure,
and, without counsel, he may be convicted not because he is
guilty but because he does not know how to establish his
innocence. And this can happen more easily to persons who
are ignorant or uneducated. It is for this reason that the right
to be assisted by counsel is deemed so important that it has
become a constitutional right and it is so implemented that
under our rules of procedure it is not enough for the Court to
apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney,
but it is essential that the court should assign one de oficio if
he so desires and he is poor grant him a reasonable time to
procure an attorney of his own.  terminates the case then and there. But if the motion for
 
 
            Q:  What happens if the accused files a demurrer to
the evidence of the prosecution (on the ground that the
prosecution failed to tender a case) and this motion is denied
-- could the defense still present its own evidence?
 
            In Abriol v. Homeres, 84 Phil 525, (1949), the SC
ruled in the affirmative, contending that the right of the
accused to present his evidence is a constitutional right
which cannot be defeated by the dismissal of the motion of
demurrer.
 
Filing of demurrer to evidence is a WAIVER of right to be
heard  (Rule 119, Sec. 15.)
 
Abriol v. Homeres, 84 Phil 525, (1949)
 
F:         Fidel Abriol, together with six other persons, was
accused of illegal possession of firearms and ammunition.
After the prosecution had presented its evidence and rested
its case, counsel for the defense moved to dismiss the case
on the ground of insufficiency of the evidence to prove the
guilt of the accused. After hearing the arguments for and
against the motion for dismissal, the court held the proofs
ZPG & ASSOCIATES
sufficient to convict and denied said motion, whereupon
counsel for the defense offered to present evidence for the
accused. The provincial fiscal opposed the presentation of
evidence by the defense, contending that the present
procedural practice and laws precluded the defense in
criminal cases from presenting any evidence after it had
presented a motion for dismissal with or without reservation
and after said motion had been denied, and citing as
authority the case of United States vs. De la Cruz, 28 Phil.,
279. His Honor Judge S. C. Moscoso sustained the
opposition of the provincial fiscal and, without allowing the
accused to present evidence in their defense, convicted all of
them and sentenced the herein petitioner to suffer seven
years of imprisonment and to pay a fine of P2,000.
 
Issue:   Whether the accused should be allowed to present
evidence after the denial of their motion to dismiss on the
ground of insufficiency of evidence of the prosecution
 
Ruling:  The accused should be allowed to present evidence.
 
            1.  The refusal of Judge Moscoso to allow the
accused-petitioner to present proofs in his defense after the
denial of his motion for dismissal was a palpable error
which resulted in denying to the said accused the due
process of law guaranteed in the Bill of Rights embodied in
the Constitution, it being provided in Article II, section 1
(17), of the Constitution that in all criminal prosecutions the
accused shall enjoy the right to be heard by himself and
counsel and to have compulsory process to secure the
attendance of witnesses in his behalf. There is no law nor
"procedural practice" under which the accused may ever be
denied the right to be heard before being sentenced.
            Now that the Government cannot appeal in criminal
cases if the defendant would be placed thereby in double
jeopardy (sec. 2, Rule 118), the dismissal of the case for
insufficiency of the evidence after the prosecution has rested
dismissal is denied, the court should proceed to hear the
evidence for the defense before entering judgment
regardless of whether or not the defense had reserved its
right to present evidence in the event its motion for
dismissal be denied. The reason is that it is the constitutional
right of the accused to be heard in his defense before
sentence is pronounced on him. Of course if the accused has
no evidence to present or expressly waives the right to
present it, the court has no alternative but to decide the case
upon the evidence presented by the prosecution alone.
 
            2. The main question to decide is whether the writ of
habeas corpus lies in a case like the present. 
            We have already shown that there is no law or
precedent which could be invoked to place in doubt the right
of the accused to be heard or to present evidence in his
defense before being sentenced. On the contrary, the
provisions of the Constitution hereinabove cited expressly
and clearly guarantee to him that right. Such constitutional
right is inviolate. No court of justice under our system of
government has the power to deprive him of that right. If the
accused does not waive his right to be heard but on the
contrary  as in the instant case  invokes that rough, and the
court denies it to him, that court no longer has jurisdiction to
proceed; it has no power to sentence the accused without
CONSTITUTIONAL LAW 2
hearing him in his defense; and the sentence thus
pronounced is void and may be collaterally attacked in a
habeas corpus proceeding.
            Although the sentence against the petitioner is void
for the reasons hereinabove stated, he may be held under the
custody of the law by being detained or admitted to bail
until the case against him is finally and lawfully decided.
The process against him in criminal case No. 1472 may
stand should be resumed from the stage at which it was
vitiated by the trial court's denial of his constitutional right
to be heard. Up to the point when the prosecution rested, the
proceedings were valid and should be resumed from there.              "In criminal cases there can be no fair hearing unless
 
 
People v. Donesa, 49 SCRA 281 (1973)
 
Grant of demurrer is equivalent to an acquittal
 
F:         After prosecution presented its witnesses, the
defense moved for dismissal of the case on the ground of
insufficiency of evidence.  The judge granted the motion.
 
Issue:  Did such dismissal operate as an acquittal of the
accused?
 
Ruling: YES
            A dismissal ordered after the termination of the
presentation of the evidence for the prosecution has the
force and effect of an acquittal. Since there is a failure to
prove the guilt of the accused, the case must be dismissed,              This right to a counsel de oficio does not cease upon
and it will be a bar to another prosecution for the same
offense even though it was ordered by the Court upon
motion or with the express consent of the defendant, in
exactly the same way as a judgment of acquittal.             intent to appeal. Even in a case, such as the one at bar,
Rule 119, Sec. 15.  Demurrer to evidence.--  After the
prosecution has rested its case, the court may dismiss the
case on the ground of insufficiency of evidence:  (1)  ont
its own intitiative after givint the prosecution an
opportunity to be heard; or (2)  on motion of the accused
filed with proper leave of court.
            If the court denies the motion for dismissal, the
accused may adduce evidence in his defense.  When the
accused files such motion to dismiss without express
leave of court, he waives the right to present evidence
and submits the case for judgment on the basis of the
evidence for the prosecution.  (Rules of Court.)               It is with this thought in mind that we charge clerks
 
3.  Right to free legal assistance
 
            Art. III, Sec. 11.  Free access to the courts and
quasi-judicial bodies and adequate legal assistance shall
not be denied to any person by reason of poverty.
 
 
People v. Rio, 201 SCRA 702 (1991)
 
F:         On 29 December 1989, the accused-appellant
Ricardo Rio, in two (2) letters dated 14 December 1989,
addressed to Division Clerk of Court Fermin J. Garma and
to Assistant Clerk of Court Tomasita M. Dris, manifested
his intention to withdraw the appeal due to his poverty.
ZPG & ASSOCIATES
            Paraphrasing Mr. Justice Malcolm, "Two (2) of the
basic privileges of the accused in a criminal prosecution are
the right to the assistance of counsel and the right to a
preliminary examination. President Mckinley made the first
a part of the Organic Law in his Instructions to the
Commission by imposing the inviolable rule that in all
criminal prosecutions the accused 'shall enjoy the right ... to
have assistance of counsel for the defense' ". Today said
right is enshrined in the 1987 Constitution for, as Judge
Cooley says, this is "perhaps the privilege most important to
the person accused of crime." 
the accused be given an opportunity to be heard by counsel.
The right to be heard would be of little meaning if it does
not include the right to be heard by counsel. Even the most
intelligent or educated man may have no skill in the science
of the law, particularly in the rules of procedure, and,
without counsel, he may be convicted not because he is
guilty but because he does not know how to establish his
innocence. And this can happen more easily to persons who
are ignorant or uneducated.  It is for this reason that the right
to be assisted by counsel is deemed so important that it has
become a constitutional right and it is so implemented that
under our rules of procedure it is not enough for the Court to
apprise an accused of his right to have an attorney, it is not
enough to ask him whether he desires the aid of an attorney,
but it is essential that the court should assign one de oficio
for him if he so desires and he is poor, or grant him a
reasonable time to procure an attorney of his own."
the conviction of an accused by a trial court.  It continues,
even during appeal, such that the duty of the court to assign
a counsel de oficio persists where an accused interposes an
where the accused had signified his intent to withdraw his
appeal, the court is required to inquire into the reason for the
withdrawal. Where it finds the sole reason for the
withdrawal to be poverty, as in this case, the court must
assign a counsel de oficio, for despite such withdrawal, the
duty to protect the rights of the accused subsists and
perhaps, with greater reason. After all, "those who have less
in life must have more in law." Justice should never be
limited to those who have the means. It is for everyone,
whether rich or poor. Its scales should always be balanced
and should never equivocate or cogitate in order to favor
one party over another.
of court of trial courts to be more circumspect with the duty
imposed on them by law (Section 13, Rule 122 of the Rules
of Court) so that courts will be above reproach and that
never (if possible) will an innocent person be sentenced for
a crime he has not committed nor the guilty allowed to go
scot-free.
            In this spirit, the Court ordered the appointment of a
counsel de oficio for the accused-appellant and for said
counsel and the Solicitor General to file their respective
briefs, upon submission of which the case would be deemed
submitted for decision.
 
                From the records of the case, it is established that
the accused- appellant was charged with the crime of rape in
a verified complaint filed by complainant Wilma Phua Rio,
CONSTITUTIONAL LAW 2
duly subscribed before 3rd Assistant Fiscal Rodolfo M.
Alejandro of the province of Rizal, which reads as follows:
                That on or about the 24th day of March, 1984, in
the Municipality of Muntinlupa, Metro Manila, Philippines,
a place within the jurisdiction of this Honorable Court, the
above-named accused, by means of force and intimidation
did then and there wilfully, unlawfully and feloniously have
carnal knowledge of the undersigned Wilma Phua against
her will.
                On 26 June 1985, at the arraignment, the accused-
appellant, assisted by Atty. Leonido Manalo of the Makati
CLAO office, as counsel de oficio, entered a plea of not
guilty to the offense charged.  candor not only protects the interests of his client; he also
                xxx
                The trial court found the accused-appellant guilty
of the crime of rape.
 
                The theory of the defense at the trial level was
grounded on alibi. The accused claimed that at the time of
the alleged commission of the crime of rape he was in
Romblon. This claim was corroborated by the accused's
brother, Amado Rio. However, this claim was, as
aforestated, rebutted by the prosecution's submission of the
voter's affidavit executed by the accused in Muntinlupa,
Metro Manila on 31 March 1984 when appellant claimed he
was in Romblon.
               
HELD:   On appeal, appellant's counsel de oficio changed
the theory of the defense. The new theory presented by
counsel de oficio is that Wilma Phua consented when
accused-appellant had sexual intercourse with her on 24
March 1984. It was stressed by counsel de oficio that the
rape occurred on 24 March 1984 and that, allegedly, it was
the fourth time accused had abused complainant. This
allegation as well as the fact that complainant failed to lock
the door to the bathroom could only have been due to the
fact that there was consent. The charge was filed, according
to defense counsel de oficio, only because the complainant's
mother caught them.
            This theory of the defense on appeal that there had
been consent from the complainant, fails to generate doubt
as to the accused's guilt, for it would be an incredulous
situation indeed to believe that one, so young and as yet
uninitiated to the ways of the world, would permit the
occurrence of an incestuous relationship with an uncle, a
brother of her very own mother.  The Court notes the sudden
swift in the theory of the defense from one of total denial of
the incident in question, by way of alibi, to one of
participation, that is, with the alleged consent of the
complainant. This new version could only be attributed by
the Court to the fact that counsel on appeal is different from
the counsel in the trial court. Although the Solicitor General
has suggested that this sudden shift be interpreted as an
afterthought by the accused or a desperate effort to get
himself acquitted, the Court deems it more likely that this
shift was caused by counsel de oficio's preparation of the
appellant's brief without examining the entire records of the
case. If the appointed counsel for the accused, on appeal,
had read the records and transcripts of the case thoroughly,
he would not have changed the theory of the defense for
such a shift can never speak well of the credibility of the
defense. Moreover, the rule in civil procedure, which applies
equally in criminal cases, is that a party may not shift his
ZPG & ASSOCIATES
theory on appeal. If the counsel de oficio had been more
conscientious, he would have known that the sudden shift
would be violative of aforementioned procedural rule and
detrimental to the cause of the accused-appellant (his client).
            The Court hereby admonishes members of the Bar to
be more conscious of their duties as advocates of their
clients' causes, whether acting de parte or de oficio, for
"public interest requires that an attorney exert his best
efforts and ability in the prosecution or defense of his
client's cause." Lawyers are an indispensable part of the
whole system of administering justice in this jurisdiction.
And a lawyer who performs that duty with diligence and
serves the ends of justice, does honor to the Bar and helps
maintain the respect of the community to the legal
profession. This is so because the entrusted privilege to
practice law carries with it correlative duties not only to the
client but also to the court, to the bar and to the public.
            While a lawyer is not supposed to know all the
laws, he is expected to take such reasonable precaution in
the discharge of his duty to his client and for his
professional guidance as will not make him, who is sworn to
uphold the law, a transgressor of its precepts.
            The fact that he merely volunteered his services or
the circumstance that he was a counsel de oficio neither
diminishes nor alters the degree of professional
responsibility owed to his client. The ethics of the profession
require that counsel display warm zeal and great dedication
to duty irrespective of the client's capacity to pay him his
fees. Any attempted presentation of a case without adequate
preparation distracts the administration of justice and
discredits the Bar.
 
4.  Right to be informed of nature and cause of
accusation
 
            The arraignment in criminal prosecution is precisely
intended to comply with the right of the accused to be
informed of the nature and cause of the accusation against
him.  As noted in Vera v. People, procedural due process
requires that the accused must be informed why he is being
prosecuted and what charge  he must meet.
 
Borja v. Mendoza, 77 SCRA 422 (1977)
    
No valid trial in absentia without arraignment
 
F:         Petitioner was accused of slight physical injuries in
the City Court of Cebu. After one postponement due to
petitioner's failure to appear, the case was reset. Again,
petitioner failed to appear, despite notice to his bondsman.
The court then allowed the prosecution to present evidence
despite the fact that petitioner had not been arraigned. After
the offended party had testified and presented documentary
evidence, the court found petitioner guilty. The CFI
affirmed the decision. Hence, this petition for certiorari.
 
HELD:  Respondent Judge committed a grave abuse of
discretion and his decision is void. Because petitioner was
not arraigned, he was not informed of the nature and cause
of accusation against him. Arraignment is an indispensable
requirement in any criminal proceeding. 
 
CONSTITUTIONAL LAW 2
5.  Right to speedy, impartial and public trial
 
(1)  Speedy Trial
 
            The right to a speedy trial means one that is free
from vexatious and oppressive delays.  Its objective is to
free the innocent person from anxiety and expense of a court
litigation, or otherwise, to have his guilt determined within
the shortest possible time, compatible with the presentation
and consideration of whatever legitimate defense the
accused may interpose.
 
            While reasonable delay may be allowed as
determined on a case to case basis, an unreasonable delay on
the part of the prosecution to present its case, thereby
causing the threat of penal liability to remain hanging over
the head of the accused for an extended period of time,
violates the right of the accused to a speedy trial.
 
            The remedy of the accused in this case is habeas
corpus if he has been restrained of his liberty, or certiorari,
prohibition or mandamus for the final dismissal of the case;
and dismissal based on the denial of the right to speedy trial
amounts to an acquittal.
 
            So said the SC in Acevedo v. Sarmiento, 36 SCRA
247 (1970), a case involving the prosecution for damage to
property through reckless imprudence which had been
pending for 6 years, the last step taken being the start of the
cross-examination of the complaining witness, who did not
appear thereafter.  The SC ordered the case dismissed with
prejudice, thus acquitting the accused.
(2)  Public Trial
   
            A public trial does not require that the entire public
can witness the trial.  It is enough if it is conducted at a
place where one's relatives and friends can be
accommodated and the public may know what is going on.
 
            The right is not absolute.  The court can order the
public out of the trial room in the interest of morality and
order.
 
            In Garcia v. Domingo, 52 SCRA 143 (1970), the SC
dismissed the contention of one party that the trial was
conducted inside the chamber of the judge on the ground
that the objection came too late (the party only complained
after the 14th hearing) and that the place was agreed upon
by the parties for their mutual convenience (the judge's
room was air conditioned).
 
Garcia v. Domingo, 52 SCRA 143 (1970)
 
The pivotal question in this petition for certiorari and
prohibition, one which thus far has remained unresolved, is
the meaning to be accorded the constitutional right to public
trial.
Issue: Is the holding of trial in the chambers of the judge
violative of the right to a public trial?
 
ZPG & ASSOCIATES
Ruling:  NO
            The defendants in this case agreed that the hearings
be held in the chambers.  On fourteen separate occasions
this was the case and there was no objection on their part. 
There was no evidence to substantiate the claim that any
other person was excluded from the chambers.   It is thus
evident that what took place in the chambers of the city
court judge was devoid of haste or intentional secrecy.
            The trial must be public. It possesses that character
when anyone interested in observing the manner a judge
conducts the proceedings in his courtroom may do so. There
is to be no ban on such attendance. His being a stranger to
the litigants is of no moment. No relationship to the parties
need be shown. The thought that lies behind this safeguard
is the belief that thereby the accused is afforded further
protection, that his trial is likely to be conducted with
regularity and not tainted with any impropriety. It is not
amiss to recall that Delegate Laurel in his terse summation
the importance of this right singled out its being a deterrence
to arbitrariness. It is thus understandable why such a right is
deemed embraced in procedural due process. Where a trial
takes place, as is quite usual, in the courtroom and a
calendar of what cases are to be heard is posted, no problem
arises. It the usual course of events that individuals desirous
of being present are free to do so. There is the well
recognized exception though that warrants the exclusion of
the public where the evidence may be characterized as
"offensive to decency or public morals."
            What did occasion difficulty in this suit was that for
the convenience of the parties, and of the city court Judge, it
was in the latter's air-conditioned chambers that the trial was
held. Did that suffice to investigate the proceedings as
violative of this right? The answer must be in the negative.
There is no showing that the public was thereby excluded. It
is to be admitted that the size of the room allotted the Judge
would reduce the number of those who could be  present.
Such a fact though is not indicative of any transgression of
this right. Courtrooms are not of uniform dimensions. Some
are smaller than others. Moreover, as admitted by Justice
Black in his masterly In re Oliver opinion, it suffices to
satisfy the requirement of a trial being public if the accused
could "have his friends, relatives and counsel present, no
matter with what offense he may be charged."
            Then, too, reference may also be made to the
undisputed fact at least fourteen hearings had been held in
chambers of the city court Judge, without objection on the
part of respondent policemen.  xxx 
 
(3)  Impartial trial
 
            One aspect of an impartial trial is a neutral
magistrate who exercises cold impartiality.
            In Tumey v. Ohio, 273 U.S. 510 (1927), it was held
that a town mayor who was paid on the basis of the fine he
imposes for every conviction for violation of the drinking
laws, could not be an impartial judge.  Under such a
situation, he would be interested in convicting those he tries
so he would earn more.
            Another aspect of an impartial trial is an impartial
tribunal bound by the Bill of Rights and the strict rules of
evidence and procedure.
CONSTITUTIONAL LAW 2
            In Olaguer v. Military Commission, 150 SCRA 144
(1987), the SC held that a civilian cannot be tried by a
military court (in connection with the Light a Fire
Movement) so long as the civil courts are open and
operating, even during Martial Law.
 
 6.  Right to confront witness
 
            The purpose of this right is to enable the accused to
test the credibility of the witness.  The best means of
confrontation is the process of cross-examination.
7.  Right to secure attendance of witnesses (and the
production of evidence in his behalf)
 
            There are various means available to the parties to
compel the attendance of witnesses and the production of
documents and things needed in the prosecution or defense
of a case in an adversarial manner: subpoena and subpoena
duces tecum:  depositions and other modes of discovery;
perpetuation of testimonies.
    
  8.  Trial in Absentia
 
            Although the right to be present is not explicit in the
provision, it is inferrable from the phrase "trial may proceed
notwithstanding the absence of the accused"
 
            This right to be present may, however, be waived by
the accused.  Rule 115, sec, 1(c), talks of 3 ways that the
waiver may take place:  (a)  express waiver pursuant to the
stipulations set forth in his bail bond, unless his presence is
specifically ordered by the court for purposes of
identification;  (b)  implied waiver when the accused
without any justifiable cause is absent at the trial on a
particular date of which he had notice; and (c) implied
waiver when the accused under custody who had been
notified of the date of trial escapes.
            In cases in which there have been a waiver of the
right to be present, whether expressed or implied, the trial
may be held "in absentia".  The requisites of a valid trial in
absentia are:  (i)  the accused has been arraigned; (ii)  he
was duly notified of the hearing; and (iii)  his failure to
attend the trial is unjustified.
 
            There can be no valid trial in absentia unless the
accused has been arraigned, ruled the SC in Boria v.
Mendoza, 77 SCRA 422 (1977), a case involving a charge
for slight physical injuries where the accused failed to
appear and so the trial court allowed the prosecution to
present its evidence even if the accused has not yet been
arraigned.  Arraignment is crucial because it informs the
accued of the nature and cause of the accusation against
him.  Conviction without arraignment violates due process
and ousts the court of its jurisdiction.
 
Boria v. Mendoza, 77 SCRA 422 (1977), supra.
 
HELD:  The subsequent trial in absentia deprived petitioner
of his right to be heard by himself and counsel. The
indispensable requirement for trial in absentia is that it
should come after arraignment.  VV.
ZPG & ASSOCIATES
 
            Waiver of the right to be present implies also waiver
of the right to present evidence.  Thus, if the accused fails to
attend trial (which presupposes arraignment), without any
justifiable cause, the prosecution can proceed with the
presentation of the evidence, and thereupon, the court may
consider the case submitted for decision.   The court will
decide the case on the basis only of the prosecution's
evidence.  This does not violate the constitutional
presumption of innocence because it does not mean that the
judgment of the trial court will result in conviction.
            So ruled the SC in People v. Salas, 143 SCRA 163
(1986), which further ruled that trial in absentia applies
even to capital cases.
 
 
People v. Salas  143 SCRA 163 (1986)
 
Trial in absentia applies even to capital cases
 
F:         Mario Abong was originally charged with homicide
in the CFI Cebu but before he could be arraigned, the case
was reinvestigated on motion of the prosecution. As a result
of the reinvestigation, an amended information was filed,
with no bail recommended, to which he pleaded not guilty.
Trial commenced but while it was in progress, the prisoner
took advantage of the first information filed and succeeded
in deceiving the city court of Cebu into granting him bail
and ordering his release. The respondent Judge, learning of
the trickery, cancelled the illegal bail bond and ordered
Abong's re-arrest. But he was gone. Nonetheless, the
prosecution moved that the hearing continue in accordance
with the constitutional provision authorizing trial in
absentia. The respondent Judge denied the motion and
suspended all proceedings until the return of the accused.
Hence, this petition.
 
HELD:  The doctrine laid down in People v. Avanceña has
been modified by Art. IV, sec. 19 [now Art. III, sec. 14(2) of
the 1987 Constitution] which allows trial in absentia. The
prisoner cannot by simply escaping thwart his continued
prosecution and possible eventual conviction provided only
that (a) he has been arraigned; (b) he has been duly notified
of the trial; and (c) his failure to appear is unjustified. The
right to be present at one's trial may now be waived except
only at that stage where the prosecution intends to present
witnesses who will identify the accused. The defendant's
escape will be considered a waiver of this right and the
inability of the court to notify him of the subsequent
hearings will not prevent it from continuing with his trial. 
VV.
 
 
            Trial in absentia was introduced only in the 1973
Constitution to remedy a situation in which criminal
prosecution could not move because the accused has either
escaped or jumped bail.
 
            In People v. Prieto, 84 SCRA 198 (1978), the SC
ruled that trial in absentia does not justify the accused to
jump bail.  Just because th Constitution allows trial in
CONSTITUTIONAL LAW 2
absentia does not mean that the accused is now free to
waive his right to be present during the trial.  If he does, he
runds the risk of having his bail bond forfeited.
  
Provision for trial in absentia not a justification for jumping
bail
 
F:         For repeated failure of the accused Dario Gamayon
to appear, respondent Judge declared the bail bond forfeited
and required the bondsmen to produce the accused within
thirty days and to show cause why no judgment should be
rendered against them. However, on motion of defense
counsel, who invoked the last sentence of Art. IV, section 19
[now Art. III, sec. 14(2)] on trial in absentia, respondent
Judge reconsidered his order. He argued that "if trial could
be conducted after the accused has been arraigned and
identified, the conclusion is inescapable that issuing an order
of forfeiture of the bail bond is premature." The prosecution
filed a petition for certiorari.
HELD:  The innovation introduced by the present
Constitution goes no further than to enable a judge to
continue with the trial even if the accused is not present
under the conditions therein specified. It does not give the
accused the right to jump bail. VV.
Gimenez v. Nazareno, 160 SCRA 1 (1988)
 
In trial in absentia accused waives the right to present
evidence and confront witnesses
 
F:         Teodoro dela Vega Jr., together with five others, was
charged with murder. After arraignment, during which he
pleaded not guilty, the case was set for hearing on Sept. 18,
1973 but he escaped. He was tried in absentia. The trial
court rendered judgment dismissing the case against his co-
accused but it held in abeyance the proceedings against him
in order to give him the chance to cross examine the
witnesses against him and present evidence. Hence, this
petition for certiorari.
HELD:  Was the jurisdiction lost when the accused escaped
from the custody of the law and failed to appear during the
trial? No. As we have consistently ruled, jurisdiction once
acquired is not lost upon the instance of parties but
continues until the case is terminated. The lower court was
correct in proceeding with the reception of evidence but it
erred when is suspended the proceedings as to the
respondent. The court need not wait for the time until the
accused finally decides to appear. To allow this delay is to
render ineffective the constitutional provision on trial in
absentia. 
 
9.  When presence of the accused is a DUTY
 
            In People v. Avancena, 32 O.G. 713, the SC held
that (a) the accused has the right to be present during trial; 
(b) if he is in the custody of the law, presence in all stage is
likewise a duty during (i) arraignment, (ii) entering a plea,
and (iii) promulgation of judgment.  This rule however has
been modified.
 
As things stand, the following are the rules:
ZPG & ASSOCIATES
 
            1.  Generally, the accused has the right to be present
at all stages the trial (from arraignment to rendition of
judgment).
 
            2.  If the accused is in the custody of the law, his
presence during the trial is a duty only if the court orders his
presence to enable the prosecution witnesses to identify
him.  (People v. Salas, infra. reiterating Aquino v. Military
Commiission, infra. modifying People v. Avancena, infra.)
 
            3.  Although the accused is not in the custody of the
law (and more so if he is in the custody of the law), his
presence is required in the following cases:
 
            a)  Arraignment, regardless of the offense;
 
            b) Entering a plea, regardless of whether the
plea is guilty or not guilty.
            c)  Promulgation of judgment, except that
when the judgment is for a light offense, he may be
represented by his counsel or a personal emissary.
 
 
                                    a.  Arraignment and plea, whether of
innocence or of guilt 
 
            Rule 116, Sec. 1.  Arraignment and plea; how
made.--
            xxx
            (b)  The accused must be present at the
arraignment and must personally enter his plea.  Both
arraignment and plea shall be made of record, but a
failure to enter of record shall not affect the validity  of
the proceedings.
 
 
b.  During trial, for identification
People v. Salas, 143 SCRA 163 (1986), supra.
 
HELD: The right to be present at one's trial may now
be waived except only at that stage where the
prosecution intends to present witnesses who will
identify the accused. 
 
c.  Promulgation of sentence, unless it is for a light offense,
in which case accused may appear by counsel, or a
representative (Rule 120, Sec. 6.)      
E.  Priviledge against self incrimination
 
            Art. III, Sec. 17.  No person shall be compelled to
be a witness against himself.
 
            Any confession or admission obtained in violation of
section 17 hereof shall be inadmissible in evidence against
him.  [Art. III, Sec. 12 (3)]
 
                        1.  Scope of privilege:  Compulsory
Testimonial self-incrimination
CONSTITUTIONAL LAW 2
 
            The privilege covers only testimonial incrimination
obtained compulsorily.  It refers therefore to the use of the
mental process and the communicative faculties, and not to
a merely physical activity.  If the act is physical or
mechanical, the accused can be compelled to allow or
perform the act, and the result can be used in evidence
against him.
 
            Thus the accused can be required to allow a sample
of a substance taken from his body (U.S. v. Tan Teng. 23,
Phil. 145 (1912)).
  
F:            This defendant was charged with the crime of rape.
He was found guilty of the charge.  He appeals the decision
on the ground  that the lower court erred in admitting the
testimony of the physicians about having taken a certain
substance from the body of the accused while he was
confined in jail and regarding the chemical analysis made of
the substance to demonstrate the physical condition of the
accused with reference to a venereal disease. It was
discovered that the rape victim was infected by venereal
disease so that the finding of venereal disease in the accused
was material to his conviction.
                Upon this information the defendant was arrested
and taken to the police station and stripped of his clothing
and examined. The policeman who examined the defendant
swore from the venereal disease known as gonorrhea. The
policeman took a portion of the substance emitting from the
body of the defendant and turned it over to the Bureau of
Science for the purpose of having a scientific analysis made
of the same. The result of the examination showed that the
defendant was suffering from gonorrhea.
 
Issue: Whether or not the information that the accused has
gonorrhea may be used against him
 
Ruling:  YES.  The accused was not compelled to make any
admissions or answer any questions, and the mere fact that
an object found on his person was examined: seems no more
to infringe the rule invoked, than would the introduction in
evidence of stolen property taken from the person of a thief.
            The substance was taken from the body of the
defendant without his objection, the examination was made
by competent medical authority and the result showed that
the defendant was suffering from said disease. As was
suggested by Judge Lobingier, had the defendant been found
with stolen property upon his person, there certainly could
have been no question had the stolen property been taken for
the purpose of using the same as evidence against him. So
also if the clothing which he wore, by reason of blood stains
or otherwise, had furnished evidence of the commission of a
crime, there certainly could have been no objection to taking
such for the purpose of using the same as proof. No one
would think of even suggesting that stolen property and the
clothing in the case indicated, taken from the defendant,
could not be used against him as evidence, without violating
the rule that a person shall not be required to give testimony
against himself.
            But the prohibition of compelling a man in a
criminal court to be a witness against himself, is a
prohibition of the use of physical or moral compulsion, to
extort communications from him, not an exclusion of his
ZPG & ASSOCIATES
body as evidence, when it may be material. The objection, in
principle, would forbid a jury (court) to look at a person and
compare his features with a photograph in proof. Moreover
we are not considering how far a court would go in
compelling a man to exhibit himself, for when he is
exhibited, whether voluntarily or by order, even if the order
goes too far, the evidence if material, is competent.
            The prohibition contained in section 5 of the
Philippine Bill that a person shall not be compelled to be a
witness against himself, is simply a prohibition against legal
process to extract from the defendant's own lips, against his
will, an admission of his guilt.
            Mr. Wigmore, in his valuable work on evidence, in
discussing the question before us, said:
            If, in other words, it (the rule) created inviolability
not only for his [physical control] in whatever form
exercised, then it would be possible for a guilty person to
shut himself up in his house, with all the tools and indicia of
his crime, and defy the authority of the law to employ in
evidence anything that might be obtained by forcibly
overthrowing his possession and compelling the surrender of
the evidential articles  a clear reductio ad absurdum. In
other words, it is not merely compulsion that is the kernel of
the privilege, . . . but testimonial compulsion. (4 Wigmore,
sec. 2263.)
            The main purpose of the provision of the Philippine
Bill is to prohibit compulsory oral examination of prisoners
before trial. or upon trial, for the purpose of extorting
unwilling confessions or declarations implicating them in
the commission of a crime. (People vs. Gardner, 144 N. Y.,
119.)
            The doctrine contended for by appellant would
prohibit courts from looking at the fact of a defendant even,
for the purpose of disclosing his identity. Such an
application of the prohibition under discussion certainly
could not be permitted. Such an inspection of the bodily
features by the court or by witnesses, can not violate the
privilege granted under the Philippine Bill, because it does
not call upon the accused as a witness  it does not call upon
the defendant for his testimonial responsibility. Mr.
Wigmore says that evidence obtained in this way from the
accused, is not testimony but his body his body itself. 
 
 
            The accused can be ordered to expel the morphine
from his mouth (U.S. v. Ong Sio Hong 36 Phil 735, (1917)).
 
U.S. v. Ong Sio Hong 36 Phil 735, (1917)
 
            Counsel for appellant raises the constitutional
question that the accused was compelled to be a witness
against himself. The contention is that this was the result of
forcing the accused to discharge the morphine from his
mouth.  To force a prohibited drug from the person of an
accused is along the same line as requiring him to exhibit
himself before the court; or putting in evidence papers and
other articles taken from the room of an accused in his
absence; or, as in the Tan Teng case, taking a substance
from the body of the accused to be used in proving his guilt.
It would be a forced construction of the paragraph of the
Philippine Bill of Rights in question to hold that any article,
substance, or thing taken from a person accused of crime
could not be given in evidence. The main purpose of this
CONSTITUTIONAL LAW 2
constitutional provision is to prohibit testimonial
compulsion by oral examination in order to extort unwilling
confessions from prisoners implicating them in the
commission of a crime. (Harris vs. Coats [1885], 75 Ga.,
415.)
 
 
            The accused can be made to take off her garments
and shoes and be photographed.  (People v. Otadura, 96 Phil
244 (1950)).
 
            A woman accused of adultery can be compelled to
show her body for physical investigation to see if she is
pregnant (Villaflor v. Summers, 41 Phil. 62 (1920)).  not to incriminate herself. The investigator, upholding the
Viewed against present standards, however, it is possible
that this method of determining pregnancy would violate
due process as being too barbaric.
 
Villaflor v. Summers, 41 Phil. 62 (1920)
F:         The facts are not dispute. In a criminal case pending
before the Court of First Instance of the city of Manila,
Emeteria Villaflor and Florentino Souingco are charged with
the crime of adultery. The court ordered the defendant
Emeteria Villaflor, to submit her body to the examination of
one or two competent doctors to determine if she was
pregnant or not. The accused refused to obey the order on
the ground that such examination of her person was a
violation of the constitutional provision relating to self-
incrimination. Thereupon she was found in contempt of
court and was ordered to be committed to Bilibid Prison
until she should permit the medical examination required by
the court.
 
Issue:  Whether the compelling of a woman to permit her
body to be examined by physicians to determine if she is
pregnant, violates that portion of the Philippine Bill of
Rights
 
Ruling:  The constitutional guaranty, that no person shall be
compelled in any criminal case to be a witness against
himself, is limited to a prohibition against compulsory
testimonial self-incrimination. The corollary to the
proposition is that, an ocular inspection of the body of the
accused is permissible. The proviso is that torture of force
shall be avoided. Whether facts fall within or without the
rule with its corollary and proviso must, of course, be
decided as cases arise.
            It is a reasonable presumption that in an examination
by reputable and disinterested physicians due care will be
taken not to use violence and not to embarass the patient any
more than is absolutely necessary. Indeed, no objection to
the physical examination being made by the family doctor of
the accused or by doctor of the same sex can be seen.              Also requiring  the accused to reenact the crime is
 
            The taking of footprint sample to see if it matches
the ones found in the scene of the crime is allowed (People
v. Salas and People v. Sara).
            However, making the accused take dictation to get a
specimen of her handwriting is not allowed, for this involves
ZPG & ASSOCIATES
the use of the mental process. [Bermudez v. Castillo, 64
Phil. 485 (1937).]
 
Bermudez v. Castillo, 64 Phil. 485 (1937)         
 
F:         In connection with this administrative case, said
respondent filed, six letters which, for purposes of
identification, were marked as Exhibits 32, 34, 35, 36 and
37. He contends that said six letters are the complainant's,
but the latter denied it while she was testifying as a witness
in rebuttal.
                Respondent required complainant to copy the
letters in her own handwriting in the presence of the
investigator. The complainant, refused invoking her right
complainant, did not compel her to submit to the trial
required, thereby denying the respondent's petition.
 
Issue: Whether or not the complainant may be forced to
make a copy of the letters in her own handwriting
Ruling:  No.  It would violate her right against self-
incrimination.
            The constitution provides: "No person shall be
compelled to be a witness against himself." It should be
noted that before it was attempted to require the complainant
to copy the six documents above-stated, she had sworn to
tell the truth before the investigator authorized to receive
statements under oath, and under said oath she asserted that
the documents in question had not been written by her. Were
she compelled to write and were it proven by means of what
she might write later that said documents had really been
written by her, it would be impossible for her to evade
prosecution for perjury.
            The reason for the privilege appears evident. The
purpose thereof is positively to avoid and prohibit thereby
the repetition and recurrence of the certainly inhuman
procedure of compelling a person, in a criminal or any other
case, to furnish the missing evidence necessary for his
conviction. If such is its purpose, then the evidence must be
sought elsewhere; and if it is desired to discover evidence in
the person himself, then he must be promised and assured at
least absolute immunity by one authorized to do so legally,
or he should be asked, one for all, to furnish such evidence
voluntarily without any condition. This court is of the
opinion that in order that the constitutional provision under
consideration may prove to be a real protection and not a
dead letter, it must be given a liberal and broad
interpretation favorable to the person invoking it.
            In view of the foregoing consideration and holding,
as it is hereby held, that the complainant is perfectly entitled
to the privilege invoked by her, the respondent's petition is
denied.
 
not allowed, for this also involves the mental process.
 
 
People v. Olvis, 154 SCRA 525
F:         Villarojo, Cademas and Sorela were convicted in the
lower court of murder for the death of Bagon. Olvis, the
alleged principal by inducement, was acquitted. The three
CONSTITUTIONAL LAW 2
accused were convicted on the basis of the extrajudicial
confessions executed by them in the presence of a counsel
summoned by the NBI to handle appellants' case, and the
reenactment done by them of the circumstances surrounding
the killing.
 
RULING: The extrajudicial confessions are inadmissible.
They were made in the presence of a counsel summoned by
the NBI and not of appellants' own choice. He cannot
therefore be said to have been acting on behalf of the
accused when he lent his presence at the confession
proceedings.
            But the accused were denied their right to counsel
not once but twice when they were forced to re-enact the
crime. Forced re-enactments like uncounselled and coerced
confessions come within the ban against self-incrimination.
This constitutional privilege has been defined as a protection
against testimonial compulsion but this has since been
extended to any evidence communicative in nature acquired
under circumstances of duress. Essentially, the right is
meant to avoid and prohibit positively the repetition and
recurrence of the certainly inhuman procedure of compelling
a person, in a criminal or any other case, to furnish the
missing evidence necessary for his conviction.  F:         Arsenio Pascual, Jr., petitioner-appellee, filed on
 
People v. Go, 237 SCRA 73
 
F:         After a buy-bust operation accused were arrested by
the police.  Upon the presentation of a search warrant, the
house of the accused was searched, and several prohibited
drugs were seized.  They were charged with and convicted
of violation of the Dangerous Drugs law.  They contended
that they had not been shown a search warrant.  In
concluding that a search warrant had been presented to the
accused prior to the search, the trial court relied on a
document entitiled “Certificate of Re-conduct of Search”,
signed by the accused.
 
ISSUE:  Whether or not such document is admissible in
evidence.
 
RULING:  IT CANNOT BE ADMITTED IN ITS
ENTIRETY.
            The second paragraph of the Certification amounts to
an implied admission that shabu, the marked money, and
shabu papaphernalia had been found by the police
authorities at the residence of the Go spouses and therefore,
subject to the control and custody of the accused (the
spouses) and necessarily in their possession.  To this extent,
the “Certification” is a declaration against the interest and
tacit admission of the crime charged.  The second paragraph
of the Certification is a self-incriminatory statment made at
a time when the spouses were not assisted by counsel and
under circumstances (in the course of or immediately after
the search of the residence and seizure of quantities of
shabu) which render intelligent waiver of their right against
self-incrimination open to serious doubt.
            The Court considers that there is nothing to prevent
admission of the “Certification” to substantiate the fact that
a search warrant issued by a judge had been brought to the
attention of the spouses in the course of the raid or buy-bust
operation carried out at their residence and that in the course
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thereof, no force or intimidation had been exercised upon
the spouses.
            Notwithstanding such, the accused were convicted of
the crime charged against them. 
 
 2.  In what proceedings available
 
            The privilege is available in any proceedings, even
outside the court, for they may eventually lead to a criminal
prosecution.
 
            In Pascual v. Board of Medical Examiners, 28 SCRA
344 (1969), the SC held that the privilege against self-
incrimination extends to administrative proceedings which
possess a criminal or penal aspect.  In this case, it was held
that a doctor who was being investigated by a medical board
for alleged malpractice and would lose his license if found
guilty, could not be compelled to take the witness stand
without his consent.
 
Pascual v. Board of Medical Examiners, 28 SCRA 344
(1969)
 
February 1, 1965 with the Court of First Instance of Manila
an action for prohibition with prayer for preliminary
injunction against the Board of Medical Examiners, now
respondent-appellant. It was alleged therein that at the initial
hearing of an administrative case  for alleged immorality,
counsel for complainants announced that he would present
as his first witness herein petitioner- appellee, who was the
respondent in such malpractice charge. Thereupon,
petitioner-appellee, through counsel, made of record his
objection, relying on the constitutional right to be exempt
from being a witness against himself. Respondent-appellant,
the Board of Examiners, took note of such a plea, at the
same time stating that at the next scheduled hearing, on
February 12, 1965, petitioner-appellee would be called upon
to testify as such witness, unless in the meantime he could
secure a restraining order from a competent authority.
                A decision was rendered by the lower court on
August 2, 1965, finding the claim of petitioner-appellee to
be well-founded and prohibiting respondent Board "from
compelling the petitioner to act and testify as a witness for
the complainant in said investigation without his consent
and against himself."
 
HELD:  Petitioner could suffer the revocation of his license
as a medical practitioner, for some an even greater
deprivation.
            Why it should be thus is not difficult to discern. The
constitutional guarantee, along with other rights granted an
accused, stands for a belief that while crime should not go
unpunished and that the truth must be revealed, such
desirable objectives should not be accomplished according
to means or methods offensive to the high sense of respect
accorded the human personality. More and more in line with
the democratic creed, the deference accorded an individual
even those suspected of the most heinous crimes is given
due weight. To quote from Chief Justice Warren, "the
constitutional foundation underlying the privilege is the
respect a government ... must accord to the dignity and
integrity of its citizens."
CONSTITUTIONAL LAW 2
            Thus according to Justice Douglas: "The Fifth
Amendment in its Self-Incrimination clause enables the
citizen to create a zone of privacy which government may
not force to surrender to his detriment."  So also with the
observation of the late Judge Frank who spoke of "a right to
a private enclave where he may lead a private life. That right
is the hallmark of our democracy."  In the light of the above,
it could thus clearly appear that no possible objection could
be legitimately raised against the correctness of the decision
now on appeal. We hold that in an administrative hearing
against a medical practitioner for alleged malpractice,
respondent Board of Medical Examiners cannot,
consistently with the self-incrimination clause, compel the
person proceeded against to take the witness stand without
his consent.              Through an immunity statute, the state in effect
 
            In Galman v. Pamaran, infra, the privilege was held
to extend to fact-finding investigation by an adhoc body.
 
Galman v. Pamaran, 138 SCRA 274 (1985)
A person can be compelled to testify provided he is given
immunity co-extensive with the privilege against self-
incrimination
 
F:         The respondents led by General Fabian Ver and
Major General Prospero Olivas testified before the Agrava
Board looking into the killing of former Senator Benigno
Aquino. They were subsequently accused of murder in two
cases for the killing of Sen. Aquino and Rolando Galman.
They were charged as accessories in both. The prosecution
offered in evidence the testimony of Ver and Olivas before
the Agrava Board, but on the latter's objections, the
Sandiganbayan excluded the testimony. The private and
public prosecutions filed petitions for certiorari.
 
HELD:  The persons summoned to testify before the Agrava
Board were "under investigation for the commission of the
offense" within the meaning of Art. III, sec. 12. It is to be
noted that the framers of the Constitution did not adopt the
Miranda reference to "custodial investigation." The subject
matter dealt with and the questioning before the Agrava
Board indubitably evinced purposes other than merely
determining the surrounding facts and circumstances of the
assassination. The respondents were called to determine
their probable involvement in the crime. Yet they were not
informed or at the very least warned of their right to remain
silent and that any statement given by them may be used
against them.  The first portion of Sec. 5 of PD 1886 denied
them the right to remain silent, and gave power to the Board
to punish refusal to testify. The SC said it is not satisfied
that when they testified they waived their constitutional
right not be compelled to be a witness against themselves,
much less their right to remain silent. The SC also said it
cannot be contended that the privilege against self-
incrimination applies only to criminal prosecutions. Art. III,
sec. 17 of the Const. provides that "No person shall be
compelled to be a witness against himself." 
 
 
 
Compare People v. Ayson, 175 SCRA 216 (1989), supra.
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3.  "Use and Fruit Immunity" v. "Transactional
Immunity"
 
            When the State requires testimony to be made before
a board or body, it has to grant immunity by means of law to
the persons testifying, so as not to violate their right against
self-incriminatrion.  This is the only way to reconcile two
conflicting values; public interest to get certain relevant
information, say, to legislation, that can only be supplied by
the testimony of certain persons and the highly primed
constitutional right not to make a person a witness against
himself.
 
exchanges immunity for the testimony of a witness.  The
problem concerns the extent of immunity that the State must
grant in order to protect the privilege against self-
incrimination.
Transactional Immunity
            In a transactional immunity, a person is given
immunity from prosecution of the crime in connection with
which he gave his testimony.  The immunity is from the
prosecution, not merely from the use of the testimony. 
Thus, even if the guilt of the person testifying can be proven
by independent means, he can not be prosecuted anymore.
 
Use and Fruit Immunity
 
            In a use and fruit immunity, a person is exempted
from the use of his testimony as well as the leads (fruits)
that the testimony opened up in a criminal prosecution
arising from what he testified on.  The immunity in this case
is from the testimony given.  Thus, if the state can procure
evidence, independent of the testimony and its fruits, it can
prosecute the person testifying nevertheless.
 
 
History in the United States
 
            In Councilman v. Hitchcock (1892), the SC ruled
that the only way to respect the right against self-
incrimination is to give transactional immunity; anything
less violates the constitutional right.
 
            Thus, Congress in 1893 passed the Compulsory
Testimony Act, providing for transactional immunity.
 
            In 1964, the U.S. SC in Murphy v. Waterfront
Commission of New York hinted that it was not really
necessary to give transactional immunity in order to protect
the right against self incrimination.
 
            This gave the U.S. Congress the cue to revise the
Compulsory Testimony Act and provide for a "use and fruit
immunity".
 
            With the validity of this limited immunity was
raised, the SC in Castigas v. U.S. and Zicarelli v. U.S. ruled
that the right is amply protected by the use and fruit
immunity.
CONSTITUTIONAL LAW 2
 
 
In the Philippines
 
            There is no fixed rule in the Philippines. 
"Transactional immunity" can be found in the following:
 
            Art. XIII, Sec. 18.  The Commission on Human
Rights shall have the following powers and functions
            xxx
            (8)  Grant immunity from prosecution to any
person whose testimony or possession of documents or
other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under
its authority.
 
 Use and Fruit Immunity
 
            On the other hand, "use and fruit immunity can be
found in P.D. 1886, which created the Agrava Fact Finding
Board, and which was the subject-matter of Galman v.
Pamaran, 138 SCRA 274 (1985).
 
            In this case, Ver and other high-ranking AFP
officials were made to testify before the Agrava Board
investigating the double murder of Sen. Aquino and
Galman.  Under P.D.1886, every person summoned by the
Board has to appear and testify on pain of being held in
contempt. Any  testimony made, in turn, was exempted from
being "used" in a criminal prosecution.  Despite this
however, a case was file against Ver in the Sandiganbayan,
and one of the evidence presented was the testimony he
made before the Board.  When objected to, the
Sandiganbayan sustained the objection.  And so the matter
was raised to the SC on certiorari.
 
            The SC held that the testimony could not be used in
a subsequent proceeding.  it hinted that were it not for the
provision in the decree conmpelling attendance and
testimony on pain of being held in contempt, the accused
could have invoked the right against self-incrimination.  But
since the state needed the testimony, it gave them immunity
and so now, the State must honor its obligation and disallow
the use of the testimony in the criminal prosecution.
Galman v. Pamaran, 138 SCRA 274 (1985), supra.
 
HELD:  Immunity statutes may be generally classified into
two: one, which grants "use immunity" and the other, which
grants what is known as "transactional immunity." The
distinction between the two is: "Use immunity" prohibits
use of a witness' compelled testimony and its fruits in any
manner in connection with the criminal prosecution of the
witness. On the other hand, "transactional immunity" grants
immunity to the witness from prosecution for an offense to
which his compelled testimony relates. PD 1886, sec. 5
grants merely immunity from use of any statement given
before the Board, but not immunity from prosecution by
reason or on the basis thereof.  VV
 
 
4.  Exclusionary rule
 
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            Art. III, Sec. 12.  xxx
            (3)  Any confession or admission obtained in
violationof this or Section 17 hereof shall be inadmissible
in evidence against him.            
 
            The paradigmatic application of the exclusionary
rule is a traditionally coerced confession, and not so much
on uncounselled statement.  A fortiori, testimony forced out
of a person cannot be used in evidence against that person.
 
 5.  Effect of denial of the privilege by court
 
            When the privilege against self-incrimination is
violated outside of court, say, by the police, then the
testimony, as already noted, is not admissible under the
exclusionary rule. 
 
            When the privilege is violated by the court itself, that
is, by the judge, the court is ousted of its jurisdiction, all its
proceedings are null and void, and it is as if no judgment has
been rendered.  A classic case is Chavez v. Court of
Appeals, 34 SCRA 663 (1968).
Chavez v. Court of Appeals, 34 SCRA 663 (1968)
 
F:         The thrust of petitioner's case presented in his
original and supplementary petitions invoking jurisdiction of
this Court is that he is entitled, on habeas corpus, to be freed
from imprisonment upon the ground that in the trial which
resulted in his conviction  he was denied his constitutional
right not to be compelled to testify against himself. There is
his prayer, too, that, should he fail in this, he be granted the
alternative remedies of certiorari to strike down the two
resolutions of the Court of Appeals dismissing his appeal for
failure to file brief, and of mandamus to direct the said court
to forward his appeal to this Court for the reason that he was
raising purely questions of law.
                Accused Chavez was made to testify as a witness
for the prosecution without him being considered a state
witness inspite of objections by his counsel.
                Roger Chavez was found guilty. The court had
this to say: "Roger Chavez does not offer any defense. As a
matter of fact, his testimony as witness for the prosecution
establishes his guilt beyond reasonable doubt."  The trial
court branded him "a self- confessed culprit".
Issue: Whether or not  Chavez right against self-
incrimination was violated
 
Ruling:  YES
            The right agianst self-incrimination is "not merely a
formal technical rule the enforcement of which is left to the
discretion of the court"; it is mandatory; it secures to a
defendant a valuable and substantive right;  it is fundamental
to our scheme of justice.
            The constitutional proscription was established on
broad grounds of public policy and humanity; of policy
because it would place the witness against the strongest
temptation to commit perjury, and of humanity because it
would be to extort a confession of truth by a kind of duress
every species and degree of which the law abhors. 
            Therefore, the court may not extract from a
defendant's own lips and against his will an admission of his
guilt. Nor may a court as much as resort to compulsory
CONSTITUTIONAL LAW 2
disclosure, directly or indirectly, of facts usable against him
as a confession of the crime or the tendency of which is to
prove the commission of a crime. Because, it is his right to
forego testimony, to remain silent, unless he chooses to take
the witness stand  with undiluted, unfettered exercise of his
own free, genuine will.
            Compulsion as it is understood here does not
necessarily connote the use of violence; it may be the
product of unintentional statements. Pressure which operates
to overbear his will, disable him from making a free and
rational choice, or impair his capacity for rational judgment
would in our opinion be sufficient. So is moral coercion
"tending to force testimony from the unwilling lips of the
defendant."
            Petitioner, as accused, occupies a different tier of
protection from an ordinary witness. Whereas an ordinary
witness may be compelled to take the witness stand and
claim the privilege as each question requiring an
incriminating answer is shot at him,  and accused may
altogether refuse to take the witness stand and refuse to
answer any and all questions.  For, in reality, the purpose of
calling an accused as a witness for the People would be to
incriminate him.
           
            xxx  With all these, we have no hesitancy in saying
that petitioner was forced to testify to incriminate himself, in
full breach of his constitutional right to remain silent. It
cannot be said now that he has waived his right. He did not
volunteer to take the stand and in his own defense; he did
not offer himself as a witness; on the contrary, he claimed
the right upon being called to testify. If petitioner
nevertheless answered the questions inspite of his fear of
being accused of perjury or being put under contempt, this
circumstance cannot be counted against him. His testimony
is not of his own choice. To him it was a case of compelled
submission. He was a cowed participant in proceedings
before a judge who possessed the power to put him under
contempt had he chosen to remain silent. Nor could he
escape testifying. The court made it abundantly clear that his
testimony at least on direct examination would be taken
right then and thereon the first day of the trial.
            The course which petitioner takes is correct.  Habeas
corpus is a high prerogative writ.  It is traditionally
considered as an exceptional remedy to release a person
whose liberty is illegally restrained such as when the
accused's constitutional rights are disregarded.  Such defect
results in the absence or loss of jurisdiction  and therefore
invalidates the trial and the consequent conviction of the
accused whose fundamental right was violated.  That void
judgment of conviction may be challenged by collateral
attack, which precisely is the function of habeas corpus.  considering that one of them, petitioner Sgt. Rodolfo
Habeas corpus is proper to challenge a conviction where the
consitutional rights of the accused were violated.
            A court which denies the accused of his
constitutional rights is ousted of its jurisdiction.  The
judgment of conviction pronounced by a court without
jurisdiction is void, and one imprisoned thereunder may
obtain release of habeas corpus.  Murder."
 
            Notes on the case:  In this case, the accused Chavez
was compelled by the judge with the threat of being held in
contempt to take the witness stand, in spite of his objection
that he had the right to remain silent and not to be a witness
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against himself.  And so he took the witness stand and was
convicted by qualified theft.  He appealed but the lawyer
failed to file the appellant's brief and so the appeal was
dismissed, the judgment became final and executory, and he
served his sentence.  Years later, Chavez went to the SC on
habeas corpus, contending that his convictioin was void
because it was rendered on the basis of evidence obtained in
the violation of his right against self- incrimination.  The SC
granted the petition and released him.
            Habeas Corpus, as shown by this case, is an
extraordinary post-conviction, mid-sentence, remedy.  The
petition for habeas corpus is such that it inquires into all
questions of illegal detention.  When the judge compelled
the accused to take the witness stand, he was ousted of his
jurisdiction and all subsequent proceedings became void. 
Ultimately, the judgment of conviction and even the
sentence were likewise void, thus making the detention of
Chavez illegal, and thus actionable by habeas corpus.
            The case also illustrates the difference between the
ordinary witness and the accused.  A witness can be
conmpelled to take the stand; he can only object to the
questions as they come, invoking his right against self-
incrimination.
            But in the case of the accused, he cannot even be
made to take the witness stand, for the only purpose of such
is to incriminate him.
            Of course, the moment the accused agrees to take the
stand, he is deemed to have waived his right, and must now
thus submit himself to cross-examination.
 
E.  Right to an impartial tribunal and trial of civilians by
military courts
 
Animas v. Minister of National Defense, 146 SCRA 406
(1986)
 
F:            This petition challenges the jurisdiction of a
military tribunal to try twelve accused persons, only one of
whom is in the military, for the offense devoid of any
national security or political complexion and committed
long before the proclamation of martial law,
                The petitioners were charged with murder in
connection with the alleged killing of Yanson, a political
leader,during the November 11 elections.
                The accused were arrested almost a year later, on
September 21, 1972 after martial law was proclaimed. It was
only in 1974 that a "summary preliminary investigation"
was conducted by a PC captain belonging to the Judge
Advocate General Service. The petitioners were
recommended for prosecution before the Military Tribunal,
Animas is a military personnel. Thereafter, the Judge
Advocate General filed the corresponding charge sheet, but
he modified the crime charged from "Murder" to "Violation
of Section 878 of the Revised Administrative Code" in
Relation to Section 2692 of the same Code and Presidential
Decree No. 9, " Illegal Possession of Firearms with
                On February 16, 1978, the Minister of National
Defense referred the case to the Military Tribunal's Branch
of the Judge Advocate General's Office (JAGO) which in
turn assigned the same to respondent Military Commission
No. 27.
CONSTITUTIONAL LAW 2
 
Issue: Whether or not Military Commission No. 27 is
without jurisdiction over the criminal case
Ruling: The military court is without jurisdiction.
            We apply the rule in Rolando A. de Guzman v. Hon.
Alejandro R. Leopando, et al, (G.R. No. 62798, December
22, 1983 and March 13, 1984) where the lone military
personnel was ordered tried together with 19 civilians
accused before a civil court. It is also clear from the records
that the acts for which Sgt. Animas was charged had nothing
to do with the performance of official duty.
            The crime for which the petitioners were charged
was committed on November 10, 1971 long before the
proclamation of martial law. There was no question about
the case being prosecuted by civilian fiscals and tried by
civil courts at the time. Now that it is already late 1986, and
martial law is a thing of the past, hopefully never more to
return, there is no more reason why a murder committed in
1971 should still be retained, at this time, by a military
tribunal.
 
Olaguer v. Military Commission No. 34, 150 SCRA 144
 
Military trial of civilians void even under Martial Law if the
civil courts are open
 
F:         Petitioners were found guilty of subversion by the
respondent military commission and sentenced to death.
They filed a petition for habeas corpus, certiorari,
prohibition and mandamus before the SC, questioning the
jurisdiction of the military tribunal.
 
HELD: In Aquino v. Military Commission (1975), the SC
held that "Martial law creates and exception to the general
rules of exclusive jurisdiction, and renders offenses against
the laws of war as well as those of a civil character, triable
by military tribunals.xxx" Due process, however demands
that in all criminal cases prosecutions, the accused shall be
entitled to, among others, a trial. As explained by Justice
Teehankee in his dissenting opinion in Aquino v. Military
Commission supra: "Judicial power is vested by the
Constitution exclusively in the SC and insuch inferior courts
as are established by law. Judicial power exists only in the
courts which have the exlcusive power to hear and
determine those matters which affect the life or liberty or
property of a citizen." Since we are not an enemy occupied
territory and even on the premise that martial continues in
force, the military tribunals cannot try and exercise
jurisdiction over civilians for civil offenses committed by
them which are properly cognizable by the civil courts.  the petitioners upon their prosecution before the civil courts.
            xxx
            "The presiding officer at a court martial is not a
judge whose objectivity and independence are protected by
tenure and undiminshed salary and nurtured by the judicial
tradition, but is a military officer.  Substantially different
rules of evidence and procedure apply in military trials.  to try and convict the petitioners prevented the first jeopardy
Apart from these differences, the suggestion of the
possibility of influence on the actions of the court-martial by
the officer who convenes it, selects its members and the
counsel on both sides, and who usually has direct command
and authority over its members is a pervasive one in military
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laws, despite strenuous efforts to eliminate the danger. 
VV.   
 
Cruz v. Ponce-Enrile, 160 SCRA 702 (1988)
 
F:         Habeas corpus proceedings were commenced in this
Court on October 1, 1986  to test the legality of the
continued detention of some 217 so-called "political
detainees  arrested in the nine-year span of official martial
rule and committed to the New Bilibid Prisons in
Muntinlupa. All had been made to stand trial for common
crimes  before various courts martial;  if any of these
offenses had any political color, this had neither been
pleaded nor proved.
                Of the 217 prisoners, 157 are civilians, and only
26 confirmed as military personnel.
 
Issue: Whether or not military courts have jurisdiction over
civilians
Ruling:  No
            As held in Olaguer:  A military jurisdiction or
tribunal cannot try and exercise jurisdiction, even during the
period of martial law, over civilians for offenses allegedly
committed by them as long as the civil courts are open and
functioning, and that any judgment rendered by such body
relating to a civilian is null and void for lack of jurisdiction
on the part of the military tribunal concerned
            The fact cannot be ignored, however, that crimes
appear to have been committed, and there are accusations
against herein petitioners for those offenses. Olaguer cannot
and does not operate to absolve the petitioners of these
charges, or establish that the same are baseless, so as to
entitle them to immediate release from detention. It is not to
be forgotten that the victims in offenses ascribed to the
petitioners have as much interest as the State has to
prosecute the alleged authors of the misdeeds. Justice will
be better served if the detention of such of the petitioners as
are not hereby ordered released or excepted, is continued
until their cases are transferred to the ordinary courts having
jurisdiction, and the necessary informations have been filed
against them therein, as has already been done in the case of
petitioners Imperial D. Usman and Samu Gumal.  The State
should be given a reasonable period of time to accomplish
this transfer, at which time the petitioners may apply for bail
for their temporary release.
            The Solicitor General not unreasonably anticipates
questions to arise as to the availability of certain defenses to
It seems evident, however, that no breach of the
constitutional prohibition against twice putting an accused in
jeopardy of punishment for the same offense  would result
from the retrial of the petitioners" cases, for the simple
reason that the absence of jurisdiction of the courts martial
from attaching.  Valid previous proceedings are required in
order that the defense of double jeopardy can be raised by
the accused in the second prosecution. 
 
G.  Bills of attainder--  Legislative adjudication of guilt
CONSTITUTIONAL LAW 2
 
Bill of Attainder
 
            A "bill of attainder" is a law which substitutes the
legislative determination of guilt for a judicial
determination.  Through a statute, the legislature finds
individuals or groups guilty, without the benefit of being
proven so in court.
 
            A bill of attainder is of two kinds:  (i) bill of
attainder proper (legislative imposition of the death penalty)
and (ii) bill of pains and penalties (imposition of a lesser
penalty).
 
            In People v. Ferrer, 48 SCRA 382 (1972), the Anti-
Subversion Law (RA 1700) which declared the Communist
Party of the Philippines a clear and present danger to
Philippine security, and thus prohibited membership in such
organization, was contended to be a bill of attainder.  The
SC, however, dismissed the contention, holding that
although the law mentions the CPP in particular, its purpose
is not to define a crime but only to lay a basis or to justify
the legislative determination that membership in such
organization is a crime because of the clear and present
danger to national security.
 
 
People v. Ferrer, 48 SCRA 382 (1972)
 
F:         Posed in issue in these two cases is the
constitutionality of the Anti-Subversion Act, which outlaws
the Communist Party and other "subversive associations",
and punishes any person who "knowingly,  willfully and by
overt acts affiliates himself, with, becomes or remains a
member," of the Party and of any other similar "subversive"
organization.
 
ISSUE: W/N this law is a bill of attainder.  solely by reason of his political beliefs and aspirations.
HELD:  NO
            A bill of attainder is a legislative act which inflicts
punishment without trial.  Its essence is the substitution of a
legislative for a judicial determination of guilt.  The
constitutional ban against bill of attainder  serves to
implement the principle of separation of powers by
confining legislatures to rule-making and thereby
forestalling legislative usurpation of the judicial function.
            When the Act is viewed  in its actual operation, it
will be seen that it does not specify the Communist Party of
the Phils (CPP) of the members thereof for the purpose of
punishment.  What it does is simply to declare the Party to
an organized conspiracy  for the overthrow of the
Government for the purposes of the prohibition against
membersip in the outlawed organization.   The term "CPP"
is used solely for definition purposes.  In fact the Act applies
not only to the CPP but to "any other organizatuiion  having
the same purposes and their successors".  Its focus is not on
individuals but on conduct.
            Indeed, were the Anti-Subversion Act a bill of
attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more would
suffice to secure their punishement.  But the undeniable fact
is that their guilt still has to be judicially established.  The
ZPG & ASSOCIATES
Government has yet to prove at the trial that the accused
joined the Party knowingly, willfully and by overt acts, and
that they joined with the specific intent to further its basic
objectives. 
 
H.  Right to a speedy disposition of cases
 
            Art. III, Sec. 16.  All persons shall have the right 
to a speedy disposition of their cases before all judicial,
quasi-judicial, or administrative bodies. 
 
           
 
            The right to a speedy disposition of cases
complements the right to a speedy trial.  After the case has
been submitted for decision, so that technically the trial
stage is terminated, the Constitution mandates that the
judicial, quasi- judicial or administrative body or tribunal
must decide the case consistent with the right of the accused
to a speedy disposition of his case.
 
            To carry out this mandate, the Constitution in several
other places provides periods for deciding a case:
 
            The Supreme Court has to decide cases within 24
months from the date of submission of the case for decision
which is the date of filing of the last pleading [Art. VIII,
Sec. 15 (1).]
III.  SUBSTANTIVE RIGHTS UNDER THE DUE
PROCESS CLAUSE
 
 
            A.  What acts cannot be criminalized
 
                        1.  Mere beliefs and aspirations
 
            Art. III, Sec. 18.  (1)  No person shall be detained
                       
                        2.  Debts and civil obligations
 
            Art. III. Sec. 20.  No person shall be imprisoned
for debt or non-payment of a poll tax.
 
 
           What the law prohibits is imprisonment for non-
payment of a contractual obligation.
 
            When one is convicted of estafa and sent to prison,
the imprisonment is not for the non- payment of debt but for
the deceit or abuse of confidence employed by the convict.
 
            Thus, in Lozano v. Martinez, 146 SCRA 123 (1986),
the SC again upheld Batas Blg. 22 (Bouncing Checks Law)
as not unconsitutional for being violative of the rule against
non- imprisonment for debt.  It is true that under this law
deceit is not necessary.  It is, however, a valid exercise of
the State of its power to determine what acts constitute a
crime.
 
            What the Consitution further prohibits is
imprisonment for  non-payment of poll tax, which is a tax
CONSTITUTIONAL LAW 2
imposed on certain persons regardless of their property or
business.  The prohibition does not apply to non-payment of
property taxes and taxes on privilege.
 
 
Lozano v. Martinez, 146 SCRA 323 (1986)
 
F:         BP 22 punishes any person "who makes or
draws and issues any check on account or for value,
knowing at the time of issue that he does not have
sufficient funds in or credit with the drawee bank for
the payment of said check in full upon presentment,
which check is subsequently dishonored by the
drawee bank for insufficiency of funds xxx"
Petitioners challenged the constitutionality of BP 22
on the following grounds: 1) It offends the
constitutional provision prohibiting imprisonment for
debt; 2) it impairs freedom of contract; 3) it
contravenes the equal protection clause; 4) it unduly
delegates legislative and executive powers; and 5) its
enactment is flawed because the Interim Batasan
prohibited amendment of the bill on 3rd reading.
 
HELD:  The gravamen of the offense punished in BP
22 is the act of making and issuing a worthless check
or a check that is dishonored upon its presentation for
payment. It is not the non- payment of an obligation
which the  law punishes. The law punishes the act
not as an offense against property but as an offense
against public order. Recent statistics show that one
third of the entire money supply of the country
consists of currency in circulation. These demand
deposits in the banks constitute the funds against
which commercial papers are drawn. The amount
concerned justifies the legitimate concern of the state
in preserving the integrity of the banking system.
3.  Acts which when done were innocent
 
            Art. III, Sec. 22.  No ex post facto law or bill of
attainder shall be enacted.
Ex Post Facto Law
          An "ex post facto law" is a law that seeks to punish an
act which, when committed, was not yet a crime or was not
as heavily punished.  It is a law that retroacts to the day of
the act so as to cause prejudice to the person performing the
act.  Its unfairness consists in the fact that the person could
not have known the act was criminal, and thus could not
have avoided the crime.  When a law is more favorable to
the accused, however, it is allowed to retroact.
In re Kay Villegas Kami, Inc., 35 SCRA 428
F:         This petition for declaratory was filed by Kay
Villegas Kami Inc., claiming to be a duly  recognized non-
stock and non-profit corporation created under the laws of
the land, and praying for the detremination of the validity of
Sec. 8, RA 6132 and a declaration of petitioner's right s and
duties thereunder. Petitioner claims that the challenged
provision constitutes an ex post facto law.
 
ZPG & ASSOCIATES
ISSUE:  W/N it is an ex post facto law.
 
HELD:  NO
            An ex post facto law is one which:
            1.  Makes criminal an act done before the passage of
the law which was innocent when done, and punishes such
an act;
            2.  Aggravates a crime , or makes it greater than it
was, when committed;
            3.  Changes the punishment and inflicts a greater
punishment than the law annexed to the crime when
committed;
            4.  Alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law
required at the time of the commission of the offense;
            5.  Assuming to regulate civil rights and remedies
only, in  effect imposes penalty or deprivation of a right for
something which when done was lawful; and
            6.  Deprives a person accused of a crime of some
lawful protection to which he has become entitled, such as
the protection of a former conviction or acquittal, or a
proclamation of amnesty. [Quoting Mekin v. Wolfe, 2 Phil.
74 (1902)] 
            This constitutional prohibition refers  only to
criminal laws which are given retroactive effect.
            While it is true that Sec. 18 penalizes  a violation of
any provisin of  RA 6132 including Sec. 8(a)  thereof, the
penalty is imposed only for acts committed after the
approval of the law and not those perpetrated prior thereto. 
There is nothing in the law that remotely insinuates that its 
provisions  shall apply to acts carried out prior to its
approval. 
 
 B.  What punishments cannot be imposed
 
                        1.  Involuntary servitude
            Art. III, Sec. 18 (2)  No involuntary sevitudes in
any form shall exist, except as a punishment for a crime
whereof the party shall have been convicted. 
 
                        2.  Excessive fines
            Art. III, Sec. 19.  (1)  Excessive fines shall not be
imposed. nor cruel, degrading or inhuman punishment
inflicted.  Neither shall the death penalty be imposed,
unless for compelling reasons involving heinous crimes,
the Congress hereafter provides for it.  Any death
penalty already imposed shall be reduced to reclusion
perpetua. 
 
3.  Cruel, degrading and inhuman punishments
            Art. III, Sec. 19.  (1)  Excessive fines shall not be
imposed. nor cruel, degrading or inhuman punishment
inflicted.  Neither shall the death penalty be imposed,
unless for compelling reasons involving heinous crimes,
the Congress hereafter provides for it.  Any death
penalty already imposed shall be reduced to reclusion
perpetua. 
            Id., Sec. 12.  xxx
CONSTITUTIONAL LAW 2
            (2)  No torture, force, violence, threat,
intimidation, or any other means which vitiate the free
will shall be used against him.  Secret detention places,
solitary, incommunicado, or other similar forms of
detention are prohibited.
           
 
            Assuming that judgment has been rendered and the
accused has been convicted the Constitution now further
prescribes certain standards as to the punishment that can be
meted out.  After all, due process prohibits barbaric and
disproportionate penalties.
 
            The employment of physical, psychological or
degrading punishment against any prisoner or detainee, or
the use of substandard or inadequate penal facilities under
subhuman conditions, shall be dealt with by law.  [Art. III,
Sec. 19 (2).]
 
            In 1935, the prohibition was against "cruel and
unusual"  penalty, in 1973; it was against "cruel or unusual "
penalty; in 1987, the prohibition is against "cruel, degrading
or inhuman" punishment.  The purpose in changing the
phraseology is to allow for experimentation, and not to fix
the concept of what is cruel to the standards of the present
civilization, or those of antiquity.  This notion is supposed to
expand and grow, so that what today is considered as
acceptable may in the next generation be deemed as cruel
penalty.
 
            Whether the cruelty of a punishment depends on its
form or whether it depends on its severity has been
ambivalently answered by the SC:
 
            In People v. dela Cruz, 92 Phil. 900 (1953) the SC
ruled that it was the form of punishment as fixed in antiquity
(pillory desembowelment, etc.) and not its severity, that
constituted "cruel and unusual" penalty under the 1935
Constitution.  Thus a disproportionate penalty (10 years
imprisonment for theft) is not cruel or unusual because it is
only a matter of severity of an acceptable form of
punishment (imprisonment).
 
            The SC spoke in a different way in People v. Borja  could not remmenber as to who actually hacked the victim.
91 SCRA 340 (1979), Borja was sentenced and he served at
the national penitentiary for 20 years before the case came
to the SC.  The Court said that Borja had been living in the
shadow of death.  Although the sentence was initially valid,
it had become cruel by the lapse of time.  And yet, this was
a form of penalty that was neither cruel nor unusual.
 
 
People v. Munoz, 170 SCRA 107 (1989)
 
F:         The accused are four of the 11 bodyguards of a
mayor who killed three persons on suspicion that they were
cattle rustlers. They were found guilty of murder. Three
appealed to the SC which found them equally liable for the
killing. The penalty for murder under the RPC is reclusion
temporal to death. The question concerns the penalty to be
imposed in view of Art. III, sec. 19 which provides that
"Neither shall the death penalty be imposed, unless for
compelling reasons involving heinous crimes, Congress
ZPG & ASSOCIATES
provides for it. Any death penalty already imposed shall be
reduced to reclusion perpetua."
 
HELD:  Art. III, section 19 does not change the periods of
the penalty prescribed by Art. 248 of the RPC except insofar
as it prohibits the imposition of the death penalty adn
reduces it to reclusion perpetua. The range of medium and
minimum penalties remain the same. VV.
 
 
People v. Lubreo, 200 SCRA 11 (1991)
 
F:         A complaint for homicide was filed with MTC of
Del Carmen, Surigao del Norte, charging Remelito Lubreo
along with crime of Homicide in connection with the killing
of Mamerto Sanico.  Judge Gorgolon of said court
conducted both the preliminary investigation and
preliminary examination. Thereafter, he forwarded  the
records of the case to the Office of Provincial Fiscal.  The
fiscal conducted his own PI and on the basis thereof, he filed
an information for murder not only against remelito but also
against Lucresio Lubreo. Trial Court find them guilty of the
crime charged.
 
ISSUE:  W/N the constituional presumption of innocence in
favor of Lucrecio has been overturned by the prosecution 
 
HELD:  NO. 
            An accused is presumed innocent until the contrary
is proved.  The burden of proof is upon the prosecution  and
until such burden is sufficiently discharged , the accused
continues to enjoy the presumption of innocence.  In the
instant case, the lower court convicted  Lucrecio on the basis
of its conclusion that he was positively identified by
witnesses Nenita Monter and Epifanio Pangatungan as one
of the assailants, and that therefore, his defense of alibi 
would not prosper. Unfortunately, the testimonies of the
abovementioned witnesses did not categorically stated or
proved that Lucrecio took part in hacking the victim. 
            Though Monter categorically stated  in her direct
examination that she saw the accused Lucresio hacking the
victim, in the "re-enactmment", she however candidly
informed the court Lucresio was just standing by and she
 
From her version, the participation of Lucrecio is at one
enveloped inserious doubt.  It is worse in the case of
Pangatungan.  While he stated that "Lucrecio abetted in
hacking as if they will come one after the other in  hacking
his mind (sic) and the neck", he never elaborated as to what
"abetted in hacking " means.  He could not even specify the
part of the body  of Mamerto which was hit by Lucrecio. 
            There is evidently insufficient evidence to show the
actual participation of Lucresio in teh crime.  There being no
evidence of conspiracy, he cannot be held for the acts of his
co- appellant. 
 
4.  Secret detention places, solitary, incommunicado and
other forms of detention and the use of substandard or
inadequate penal facilities
 
 
            Art. III, Sec. 12.  xxx
CONSTITUTIONAL LAW 2
            (2)  No torture, force, violence, threat,
intimidation, or any other means which vitiate the free
will shall be used against him.  Secret detention places,
solitary, incommunicado, or other similar forms of
detention are prohibited.
 
            Id., Sec. 19.  xxx
            (2)  The employment of physical, psychological, or
degrading punishment against any prisoner or detainee
or the use of substandard or inadequate penal facilities
under subhuman conditions shall be dealt with by law.       Identity of offenses and identity of act
5.  Indefinite Imprisonments
 
People v. Dacuycuy, 173 SCRA 90 (1989), supra.
 
C.  The protection against double jeopardy
 
            Art. III, Sec. 21.  No person shall be twice put in
jeopardy of punishment for the same offense.  If an act is
punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another
prosecution for the same act.
 
 
Elements of double jeopardy, (Rule 117, Sec 7; People v.
Obsania, 23 SCRA 249 (1968):
 
            (1)  Court of competent jurisdiction;
            (2)  A Complaint or Information sufficient in form
and substance to sustain a conviction;
            (3)  Arraignment and plea  by the Accused;
            (4)  Conviction, acquittal, or dismissal of the case
without the express consent, of the           accused.
 
Subsequent prosecution is barred for the following:
 
            (1)  Same offense
            (2)  Attempt of the same offense
            (3)  Frustration of the same offense
            (4) Offense necessarily included in the 1st offense
(All the elements of the 2nd      constitute some of the
elements of the 1st offense)
            (5) Offense that necessarily includes the 1st offense
(All the elements of the 1st      constitute some of the
elements of the 2nd offense)
Exceptions to no. 5:
            (1)  The graver offense developed die to
"supervening facts" arising from the same act or omission
constituting the former charged.
 
            Thus, in Melo v. People, 85 Phils. 766 (1950), the
SC allowed the amnedment of the information from its
original cahrge of frustrated homicide, because after the
filing of the information, the victim died.
 
            (2)  The facts constituting the graver charge became
known or were discovered only after the filing of the former
complaint or information.
ZPG & ASSOCIATES
            This overrules People v. Yorac, where the SC
disallowed the amendment of the information from slight
physical injuries to frustrated murder after the prosecution
subjected the victim to another medical examination and
found a wound, that it was the fault of the prosecution if
they had an incompetent medical examination.
 
            (3)  The plea of guilty to the lesser offense was made
without the consent of the fiscal and the offended party.
 
            When an act gives rise to two or more offense which
are punished by the same authority, and an individual is
convicted, acquitted, or the case dismissed without his
consent, of one of these offense (Crime A), there is no
double jeopardy if he is charged of another offfense (Crime
B) flowing from the same act.  Double jeopardy arises only
when he is again charged of that same offense (Crime A). 
Thus, this is called double jeopardy by "identity of
offenses".
 
            But when an act which give rise to two or more
offenses is punished by two different authorities (a law and
an ordinance), then if an individual is convicted, acquitted,
or the case dismissed without his consent, of any of these
offenses punished by one authority (Crime A by law), even
if he is charged of another offense which is punished by the
other auhtority (Crime B by ordinance), there is double
jeopardy, because both offenses, one punished by a law and
the other punished by an ordinance, flowed from the same
act.  Thus, this is called double jeopardy by "identity of act."
 
            Sum:  If only a law in involved, there is double
jeopardy only when there is an identity of offenses.  But is a
law and an ordinance are involved, there is double jeopardy
when there is an identity of act.
 
Identity of Offenses:
 
            If a married  man maintains as concubine a married
woman not his wife, the man is guilty of both concubinage
and adultery.  From the same act (cohabiting with the
married woman), two offenses arise.  And yet he can be
prosecuted for both because, the two offenses coming from
the same authority, there is no identity of offenses.
Identity of Act:
            People v. Relova, 48 SCRA 292 (1987), Relova was
prosecuted under an ordinance of Batangas City for the use
of wiring to tap electricity without permission from the local
authorities, but the case was dismissed because the crime
has prescribed.  So the fiscal filed a case for theft of
electricity under the RPC.  The SC ruled there was double
jeopardy already, and so the second case could no longer be
filed.  For although the offenses were different, both flowed
from the same act.  And in this case, the act was punished by
a law and an ordinance.
 
Loss of Jurisdiction:  No double jeopardy
CONSTITUTIONAL LAW 2
            If the court has no jurisdiction, or was ousted of its
jurisdiction beccause it violated the right to due process of
the parties, the decision is null and void, the accused may
again be charged.
 
            In People v. Bocar, 138 SCRA 166 (1985), the SC,
held that the move by the trial court of summarily
dismissing a criminal case for theft on the ground that it
merely involved a question of ownership deprived the
prosecution of due process by denying it the chance to
introduce its evidence.  This ousted the court of its
juridsiction.
            In Galman v. Sandiganbayan, 144 SCRA 43 (1986),
the SC declared the criminal prosecution of the 26 accused
in the Aquino-Galman double murder case a "mistrial" after
the SC commission found that the Sandiganbayan justices
and the Tanodbayan prosecutors had been summoned by the
President and instructed on how to conduct the trial.  Due
process is a right not only of the accused but also of the
State.  Once the court deprives either party, which in this
case is the State, of a fighting chance, then it is ousted from
its jurisdiction, and double jeopardy would not apply.  Thus,
the accused were ordered retried.
 
1.  Two situations contemplated
 
People v. Relova 148 SCRA 292 (1987)
 
F:         Manuel Opulencia was charged wiht violation of
Ordinance No. 1 series of 1974 of Batangas City prohibiting
the installation of electric wiring devices without authority
from the city government. He admitted installing the electric
wiring devices found by the police in order to decrease the
readings of electric current. The case was however
dismissed on the ground that the offense had prescribed.
Fourteen days later, the City Fiscal filed another case for
theft against him. The court also dismissed this case on the
ground of double jeopardy. The prosecution appealed
contending the offense was different.
 
HELD:  The contention has no merit. The first sentence of
Art. III, sec. 21 states the general rule: the constitutional
protection against double jeopardy is not available where the
second prosecution is for an offense that is different from
the offense charged in the first or prior prosecution,
although both may be based from the same facts. The
second sentence provides an exception: that the protection
against double jeopardy is available although the prior
offense charged under an ordinance be different from the
offense charged subsequently under the national statute such
as the RPC provided that both offenses spring from the same
act or set of acts.  VV.
 
 
People v. City Court of Manila, Branch VI, 154 SCRA 175
(1987)
 
F:         Agapito Gonzales, together with Roberto Pangilinan,
was accused of violating Sec.7, in relation to Sec. 11 RA
3060 and Art. 201(3) of the RPC, in two separate
informations filed with  the City Court of Manila.  Upon
arraignment, accused Gonzales pleaded not guilty to both
ZPG & ASSOCIATES
charges.  The other accused, Pangilinan, was not arraigned
as he is still at large.  Gonzales filed a motion to quash the
informations in the 2 cases on the ground that said
informations did not charge an offense.  Motion denied. 
Later, he again moved to quash the information in one of the
Criminal case on the ground of duble jeopardy, as there was
according to him, also pending aginst him another criminal
case, where the informatin allegedly contain the same
allegations as the information in the first criminal case. 
Court granted the motion.
 
ISSUE:  W/N there is double jeopardy.
HELD:  NO
            It is a settled rule that to raise the defense of double
jeopardy, 3 requisites must be present:  (1) a first jeopardy
must have attached prior to the second; (2) the first jeopardy
must have been validly terminated; and (3) the second
jeopardy must be for teh same offense, or the second offense
includes or is necessarily included in the offense charged in
the first information, or is an attempt to commit the same or
a frustration thereof.  All these requisites do not exist in this
case,
            The 2 informations with which the accused was
charged , do not make only one offense, contrary to private
repondent's allegation.  In other words, the offense defined
in  Sec. 7 of the RA 3060 punishing the exhibition  of
motion pictures not duly passed by the Board of Censors for
Motion Pictures does not include or is not included inthe
offense  defined in Art 201 (3) of the RPC punishing the
exhibition of indecent and immoral motin pictures. 
            The elements of the 2 offenses are different.   The
gravamen  of the offense defined in RA 3060 is the public
exhibition of any motion pictures which has not been
previously passed by the Board of Censors for Motion
Pictures.  The motion picture may be indecent or immoral
but if it has not been previously approved by the Board, its
public showing constitutes a crimnal offense.  On the other
hand, the offense punished in Art 201(3) of the RPC is the
public showing os indecent or immoral plays, scenes, acts,
or shows, not just motion pictures. 
            The nature of both offenses also differs.  The crime
punished in RA 3060 is malum prohibitum in wh criminal
intent need not ber proved because it is presumed, while the
offense punished in Art. 201(3) of the RPC is malum in se,
which criminal intent is an indispensable ingredient. 
Suzette.
 
 
2.  Rules of Court provisions
 
            Rule 117, Sec. 7.  Former conviction of acquittal;
double jeopardy.--  When an accused has been convicted
or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a
court of compentent jurisdiction, upon a valid complaint
or information or other formal charge sufficient in form
and substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall
be a bar to another prosecution for the offense charged,
or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or
CONSTITUTIONAL LAW 2
is necessarily included in the offense in the former
complaint of information.
            However, the conviction of the accused shall not
be a bar to another prosecution for an offense which
necessarily includes the offense charged in the former
complaint or information under any of the following
instances:
            (a)  the graver offense developed due to
supervening facts arising from the same act or omission
consituting the former charge;
            (b)  the facts constituting the graver charge
became known or were discovered only after the filing of
the former complaint or information; or
            (c)  the plea of guilty to the lesser offense was
made without the consent of the fiscal and of the
offended party.
            In any of the foregoing cases, where the accused
satisfied or serves in whole or in part the judgement, he
shall be credited with the same in the event of conviction
for the graver offense.
 
Melo v. People, 85 P 776 (1950)
 
F:         Conrado Melo was charged in the CFI, Rizal  with
frustrated homicide , for having allegedly inflicted upon
Obillo, with a kitchen knife and with intent to kill, several
serious wounds on different parts of the body, requiring
medical attendance for a period of more than 30 days, and
incapacitating him from performing his habitual labor for
the same period of time.  On Dec. 29, 1949, at 8 am,
accused pleaded not guilty to the offense chargde.  At 10:15
am of the same day, Obillo died from his wounds.  An
amended information was filed charging accused with
consummated homicide.  Accused filed  a motion to quash
the amended information alleging double jeopardy.  Motion
denied.
 
ISSUE: W/N there is double jeopardy.              The victim Diolito de la Cruz died on the day the
 
HELD:  NO
            Double jeopardy means that when  a person is
charged with an offense and the case is terminated either by
acquittal or conviction or in any other manner without the
consent of the accused, the latter cannot again be charged
with the same or identical offense.  The phrase "the same
offense" has always been construed to mean not only that
the second offense charged is exactly the same as the one
alleged in the first information, but also that the two
offenses are identical.  There is identity between the two
offenses when the evidence to support a conviction for one
offense would be sufficient to warrant a conviction for the
other.  Rogelio Zulueta, was confined since April 8 1968 up to the
            This rule of identity however does not apply,
however, when the second offense was not in existence at
the time of the first prosecution, for the simple reason that  1968  resulting in his being penalized  to suffer 10 days for
in such case there is no possibility for the accused, during
the first prosecution, to be convicted for an offense that was
then inesistent.  Thus, where the accused was charged with
physical injuries and after conviction the accused dies, the  victim Lam Hock for upon further diagnosis, the healing
charge for homicide against the same accused does not put
him twice in jeopardy.
ZPG & ASSOCIATES
            Accordingly, an offense may be said to necessarily
include or to be necessarily included in another offense, for
the purpose of detremining the existence of double jeopardy,
when both offenses were in existence during the pendency
of the first prosecution, for otherwise, if the second offense
was then inexistent, no jeopardy could attach therefor during
the first prosecution, and consequently a subsequent charge
for the same cannot constitute a second jeopardy.  Suzette.
 
 
People v. City Court of Manila, Branch XI, 121 SCRA 637
(1983)
 
F:         This is a petition to review the order of the City
Court of Manila Branch XI, dismissing the information for
homicide thru reckless imprudence filed against Gapay, in a
criminal case on the ground of double jeopardy. 
Respondent court  held that the accused having been
previously tried and convicted of serious physical injuries 
thru reckless imprudence for the resulting death of the
victim would place the accused in double jeopardy.
ISSUE:  W/N a person who has been prosecuted for serious
physical injuries thru reckless imprudence and convicted
thereof may be prosecuted subsequently for homicide thru
reckless imprudence if the offended party dies as a result of
the same injuries. 
 
HELD:  YES
            Well settled is the rule that one who has been
charged with an offense cannot be charged again with the
same or identical offense though the latter be lesser or
greater than the former.  However as held in the  MELO
case, the rule of identity does not apply when the second
offense was not in existence at the time of teh first
prosecution , for the reason that in such case there is no
possibility for the accused during the first prosecution, to be
convicted for an offense that was inexistent.
information was filed , and the accused was arraigned 2 days
after or on October 20, 1972 .  When the information for
homicide thru reckless imprudence was, therefore, filed on
October 24, 1972, the accused was already in doubly
jeopardy.  Suzette.
 
 
People v. Yorac, 42 SCRA 230 (1971)
 
F:         Accused Yorac was charged with slight physical
injuries before the City Court of Bacolod, the offended party
being Lam
Hock who, according to the medical cerificate issued by Dr.
present time for head  injury in Occidental Negros
Provincial Hspital.  Accused pleaded guilty on April 16,
arresto menor.  On April 18, 1968, the provincial fiscal filed
an information charging the same defendant with  frustrated
murder arising from the same act  against the aforesaid
period for the injuries caused to accused was found to be
longer.   A motion to quash was filed by the accused  on the
ground of double jeopardy. 
CONSTITUTIONAL LAW 2
 
ISSUE:  W/N the defendant, who had already been
convicted of slight physical injuries for injuries inflicted on
Lam Hock , and had served sentence therefor, may be
prosecuted anew for frustrated murder for the same act
committed against the same person   law. The SC dismissed. Meanwhile, the Sandiganbayan
 
HELD:  NO.
            In order not to violate the constitutional prohibition
on double jeopardy, there is the indispensable requirement
of the existence of a new fact which supervenes for which
the defendant is responsible changing the character of the
crime imputed to him and together with the facts existing
previously constituting a new and distinct offense.
            In this case, there is no supervening fact which
occurred to justify the non-existence of double jeopardy.  Government and his authoritarian powers to corrupt and
The wound causing the delay in the healing of the injuries
caused to the victim  was already in existence at the time of
the first examination of the doctor.  Said delay was caused
by the very superficial and inconclusive examination then
made resulting to a later finding of fracture.    Suzette.
 
Barlongay:  When defense of double jeopardy
available.--  (1)  Dismissal based on isufficiency of
evidence;  (2)  dismissal bec. of denial of accused's right  to
speedy trial; (3)  accused is discharged to be a state witness.
 
When defense of double jeopardy not available.--  When
the case is dismissed other than on the merits upon motion
of the accused personally, or through counsel, such
dismissal is regarded as w/ express consent of the accused,
who is therefore deemed to have waived the right to plea
double jeopardy.
  
Yap v. Lutero, April 30, 1959
 
F:         Yap was charged with reckless driving in violation
of a city ordinance. Later he was charged again in another
criminal case in the same court with serious physical injuries
through reckless imprudence. Yap moved to quash the latter
information. Meanwhile, petitioner was acquitted in the first
case.
 
ISSUE: W/N there was double jeopardy.
 
RULING: YES. From the viewpoint of Criminal Law, as
distinguished from Constitutional or Political Law - the
offenses with which petitioner was charged constitute,
strictly different offenses, although, under certain
conditions, one offense may include the other, and
accordingly, once placed in jeopardy for one, the plea of
double jeopardy may be in order as regards the other.
            Thus, if the injuries mentioned in the second
information were not established by the evidence, petitioner
could be convicted in the first case of the very same
violation of municipal ordinance charged in the first case,
unless he pleaded double jeopardy.  Charo.
 
 
Galman v. Sandiganbayan, 144 SCRA 43
 
F:         The petitioners filed an action to nullify the
proceedings on the trial of the Aquino-Galman duble murder
ZPG & ASSOCIATES
case alleging that respondents Tanodbayan and
Sandiganbayan committed serious irregularities constituting
mistrial and resulting in miscarriage of justice and gross
violation of the constitutional rights of the petitioners and
the sovereign people of the Philippines to due process of
rendered its decision acquitting all the accused of the crime
charged. Respondents submitted that in view of the SB
decision, the case has become moot and academic. 
Petitioners filed a motion for reconsideration of the SC
ruling. The SC created the Vasquez Commisssion to look
into petitioners' allegations.
 
RULING: The report of the Commission revealed that Pres.
Marcos used the overwhelming resources of the
make a mockery of the judicial process in this case. The
unwholly scenario for the acquittal of the accused after the
rigged trial would accomplish the two principal objectives
of satisfying the public clamor for the suspected killers to be
charged in court and of giviing them, through their acquittal,
the legal shield of double jepardy.
            However, double jeopardy does not attach where a
criminal trial was a sham. A dictated, coerced and scripted
verdict of acquittal such as in this case is a void judgment.
In legal contemplation, it is no judgment. It neither binds
nor bars anyone. The criminal collusion as to the handling
and treatment of the cases by public respondents completely
disqualified them and voided ab initio the SB verdict. DJ
cannot be invoked where the prosecution, which represents
the sovereign people in crimnal cases is denied due process. 
 
 
People v. Obsania, 23 SCRA 249
 
F:         The  information filed by the fiscal alleged that
through violence and intimidation, Obsania had carnal
knowledge of one  Erlinda Dollente against the latter's will.
Later, the fiscal amended the complaint to allege therein that
the offense was committed with lewd designs. The accused
after pleading not guilty moved for the dismissal of the case
on the ground that the first information was fatally defective
for failing to allege "lewd desiigns," and that the amended
information did not cure the jurisdictional infirmity. The
motion of the defense was sustained by the judge. Hence
this appeal by the fiscal.
 
RULING: The failure of the prosecution to allege "lewd
designs" in the first information does not affect the
sufficiency in substance of the information,  for unchaste
motives are deemed inherent in the very act of rape itself. In
any case, the lower court erred in dismissing the case by
failing to distinguish between the concept of jurisdiction and
insufficiency in substance of an indictment.
            As to the question of double jeopardy, the following
requisites must have been obtained to invoke the
constitutional protection against it:
            (1) a valid complaint or information;
            (2) a court of competent jurisdiction;
            (3) the defendant had pleaded to the charge; and
            (4) the defendant was acquitted, or convicted, or the
case against him was dismissed or otherwise terminated
without his express consent.
CONSTITUTIONAL LAW 2
 
            The only remaining and decisive issue in this case
seems to be as to whether or not the case was dismissed
without the prior consent of the accused.
            The SC ruled that as a general rule, when the case is
dismissed, other than on the merits, upon motion of the
accused, such dismissal is to be ragarded as with the express
consent of the accused and consequently he is deemed to
have waived his right to plead double jeopardy and/or he is
estopped from claiming such defense on appeal by the
Government or in another indictment for the same offense.
            The exception to this is where the dismissal is sought
by the accused on the ground that they were denied their
right to a speedy trial and that the government failed to
prosecute; in which case double jeopardy will set in. The
case of herein accused falls under the general rule.  merely restrained.  Thus, in Moncupa v. Enrile, 141 SCRA
 
D.  The privilege of the writ of habeas corpus
 
            Art.  III, Sec. 15.  The privilege of the writ of
habeas corpus shall not be suspended except in cases of
invasion or rebellion, when the public safety requires it. 
 
 
            In case of invasion or rebellion, when the public
safety requires it, the President may, for a period not
exceeding 60 days, suspend the privilege of the writ of
habeas corpus...
 
            The suspension of the privilege of the writ shall
apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
 
            During the suspension of the privilege of the writ,
any person thus arrested or detained shall be judicially
charged within 3 days, otherwise he shall be released.  (Art.
VII, Sec. 18.)
 
            A "writ of heabeas corpus" is a writ directed to the
person detaining another, commanding him to produce the
body of the detainee at a designated time and place, and to
show cause why he should continue to be detained.
 
            The "privilege of the writ" is the right to have the
immediate determination of the legality of the deprivation of
physical liberty.
 
            What is suspended is the privilege of the writ, and
not the writ itself.  The writ will always issue as a matter of
course.  But when the privilege of the writ is suspended, all
the detaining office needs to do when he receives the writ of
habeas corpus is to show to the court that the detainee is
being detained for an offense covered by the suspension,
and the court cannot inquire any further to find out if the
detention is legal.  Under the Conmstitution, this is so only
for 3 days.  After 3 days, the Court can now require the
detaining officer to produce the body of the detainees and
show cause why he should not be released.
            The suspension of the privilege of the writ applied
only to crimes related to invasion or rebellion.  An extensive
discussion was made under the Commander-in- Chief clause
ZPG & ASSOCIATES
of the President, supra.  This rest of the section will be
confined to habeas corpus as a remedy in all other offenses.
 
            In general as already noted above, the privilege of
the writ is an extraordinary remedy to question the illegality
of the arrest or detention, or any other restraint to liberty. 
When all else is lost, it is the last recourse to get someone
out of his illegal detention.
1.  Functions of the writ
 
Villavicencio v. Lukban, 39 P 778 (1919)
            Habeas corpus is available not only for those who
are in actual detention but even for those whose liberty is
233 (1986), the SC granted habeas corpus to petitioner who,
though temporarily released, could not travel outside Metro
Manila, could not change his residence, could not be
interviewed by media, and had to report to the military.
 
 
2.  The writ of habeas corpus as a post-conviction
remedy
 
 
            In Chavez v. Court of Appeals, supra, habeas corpus
was the remedy of one whose confinement was the result of
a void judgnment of conviction arrived at after the judge
violated due process by compelling him to take the stand
and testify against himself.
 
Chavez v. Court of Appeals, 24 SCRA 633 (1986), supra.
 
 
            In Gumabon v. Director of Prison, 37 SCRA 420
(1971), some persons who were charged with the complex
crime of rebellion with homicide, rape, or other common
crimes, did not appeal their conviction and so were
sentenced accordingly.  The other accused, however,
appealed their conviction, resulting in a new ruling in
People v. Hernandez to the effect that there can be no
complex crim of rebellion with homicide, rape, etc., for
these common crimes are absorbed by rebellion.  As a
result, while those who appealed were now free, those  who
did not remained in jail.  The SC ruled that those who
conrtinued to languish in jail could avail of habeas corpus to
question the legality of their continued detention pursuant to
the ruling in People v. Hernandez.
 
3.  Suspension of the privilege
 
            Art. VII, Sec. 18.
 Lansang v. Garcia, 42 SCRA 488 (1971)   
 
 E.  Affirmative rights
 
1.  Free access to the courts
            Art. III, Sec. 11.  Free access to the courts and
quasi-judicial bodies and adequate legal assistance shall
not be denied to any person by reason of poverty.
CONSTITUTIONAL LAW 2
2.  Protection and enforcement of constitutional rights
 
            Art. III, Sec. 12.  xxx
            (4)  The law shall provide for penal and civil
sanctionsfor violations of this section as well as
compensation to and rehabilitation of victims of torture
or similar practices, and their families.
 
3.  Compensation to, and rehabilitation of, victims of
tortures
 
            Art. III, Sec. 12.  xxx
            (4)  The law shall provide for penal and civil
sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture
or similar practices, and their families.
 
IV.  FREEDOM OF EXPRESSION
 
 
            Art. III, Sec. 4.  No law shall be passed abridging
the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and
petition the Government for redress of grievance. 
            Id., Sec. 18.  (1)  No person shall be detained
solely by reason of  his political beliefs and aspirations.
            xxx
A.  Philosophical Basis of Guarantees
 
Free Market Place of Ideas
1.  For the discovery of political truth
 
            When men have realized that time has upset many
fighting faiths, they may come to believe even more than
they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in
ideas-- that the best test of truth is the power of the thought
to get itself accepted in the competition of the market, and
the truth is the only ground upon which their wishes safely
can be carried out.   (Justice Holmes,  Abrams v. United
States, 250 U.S. 616.  (1919)
            The theory behind freedom of expression is the
principle that ours is a democratic society, and so the only
way to rule ultimately is by, means of public opinion, which
is possible only when everyone can speak their minds out
and compete in the free market place of ideas.
 
2.  For self government
 
United States v. Bustos, 37 P 731 (1918)
 
Burgos v. Chief of Staff, 133 SCRA 800 (1984),
supra
 
ZPG & ASSOCIATES
HELD:  As a consequence of the search and seizure, the
premises of the "Metropolitan Mail" and "We Forum" were
padlocked and sealed, with the further result that the
printing and publication of said newspapers were
discontinued. Such closure is in the nature of previous
restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law and constitutes a
virtual denial of petitioner's freedom to express themselves
in print. This state of being is patenly anathematic to a
democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth
of the citizenry. 
 
New York Times v. Sullivan, 380 US 51 (1964)
 
  3.  For individual protection
B.  Prior Restraints
            Thus any system of prior restraints of  expression
comes to the Court bearing a heavy presumption against its
constitutionality, giving the government a heavy burden to
show justification for the imposition of such restraint.  (New
York v. United States (1971); also in New York Times v.
Pentagon and Bantam Books v. Publication of Pentagon
Papers).
 
Sanidad v. COMELEC, 181 SCRA 529 (1990)
 
Subsequent Punishment
            And even subsequent punishment is tempered by the
greater interest of promoting free public opinion.  The most
significant expression is the law on libel.
            We consider this case against the background of a
profound national commitment to debate on public issues
being uninhibited, robust and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.  The
falsity of some of the factual statements and alleged
defamations do not qualify the role.  And just as factual
error afforded no warrant for repressing speech that would
otherwise be free, the same is true of injury to official
reputation.  (New York Times v. Sullivan, 380 U.S. 51
(1964)
            The interest of society and good government
demands a full discussion of public affairs.  Whether the law
is wisely or badly enforced is a fit subject for proper
comment.  Public policy, welfare of society, and the orderly
administration of government have demanded protection for
public opinion.  The inevitable and incontestable result has
been the development and adoption of the doctrine of
privilege.  [Justice Malcom, United States v. Bustos, 731
(1918).]
            While, uncer the Revised Penal Code, any
defamatory statement is presumed to be malicious (malice-
in-law), when the defense proves that the communication is
privileged, such a presumption of malice does not arise
because of the greater public interest involved.
CONSTITUTIONAL LAW 2
 
            If the communication is absolutely privileged (as in
parliamentary freedom of speech), the prosecution cannot
even prove malice-in-fact.
 
            If the communication is only qualifiedly privileged
(Art. 354 enumerates the 2 instances:  fair and true reporting
of an official proceeding; legal moral or social duty), the
burden is shifted on the prosecution to prove malice-in-fact,
which the defense can overcome by proving the truth of the
defamatory statement (which in the case of public officials
may or may not constitute a crime, so long as related to the
conduct of his office) and good motive.
 
            C.  Content-Based Restrictions
 
            1.  Test of validity of content-based restrictions
 
            The U.S. Supreme Court and, by haphazard
imitation, the Philippine Supreme Court, have evolved
certain tests to regulate the contents of speech.
 
            Dangerous Tendency Test:  When the legislative
body has determined generally, in the exercise of its
discretion, that utterances of a certain kind involve such
danger of a substantive evil that they may be punished, the
question whether any specific utterance coming within the
prohibited class is likely, in and itself, to bring the
substantive evils, is not open to consideration.  In such
cases, the general provision of the statute may be
constitutionally applied to the specific utterance if its natural
and probable effect was to bring about the substantive evil
which the legislative body might prohibit.  [Gitlow v. New
York, 268 US 652 (1925).]
 
            Example:  Art. 142.  Inciting to sedition.  When the
legislature has decided that one who advocates a certain
conduct is guilty of a crime, the court cannot intrude.  As it
evolved, this test was supposed to apply when there is a
statute, in contrast to the clear and present danger rule which
applies when the speech is not prohibited by statute.
 
            Clear and Present Danger Test:  The question in
every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive
evils that Congress has a right to prevent.  It is a question of
proximity and degree.  [Schenck v. United States, 249 US
47 (1919).]
 
            The emphasis of the test is the nature of the
circumstances under which it is uttered.  The speech itself
may not be dangerous.  As Holmes said:  "Many things that
might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men
fight."  Or saying "Fire" in a crowded movie house.
 
            Grave-but-improbable danger:  Whether the gravity
of the evil, discounted by its improbability, justifies such an
invasion of free speech as is necessary to avoid the danger.
[Dennis v. United States, 341 US 494 (1951), quoting Judge
Learned Hand.]
 
ZPG & ASSOCIATES
            This test was meant to supplant the clear and present
danger.  They both emphasize the circumstances of the
speech, but this latter test consider the weighing of values.
 
            Direct Incitement Test:  The consitutional guarantees
of free speech and press do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation,
except where such advocacy or peech is directed to inciting
or producing imminent lawless action, and is likely to incite
or produce such action.  [Brandenburg v. Ohio, 395 U.S.
444 (1969), cited in Salonga v. Cruz Pano, 134 SCRA 438
(1985).]
 
            The test emphasizes the very words uttered:  (a) 
What words did he utter?  (b)  What is the likely result of
such utterance?  It criticizes the clear and present danger test
for being top dependent on the circumstances.  Speaker may,
when tested show no incitement but you know the speaker is
inciting to sedition.
 
            Balancing of Interest Test:  The court must
undertake the delicate and difficult task of weighing the
circumstances and appraising the substantiality of the
reasons advanced in support of the regulation of the free
enjoyment of rights.  [American Communication Ass'n v.
Douds, 339 US 383 cited in Gonzales v. COMELEC, 27
SCRA 835 (1969A)]
 
            The test applied when two legitimate values not
involving national secuirty crimes compete.  Involves an
appoint of the competing interest.  (Gonzales v. Comelec)
 
            In Aver v. Capulong and Enrile, for instance, it is a
question of balancing the freedom of expression of the
producer and the right to privacy of Enrile.
 
(not in VV's revised outline)
            Balancing of Factors Test:  The truth is theat the
clear-and-present danger test is over- simplified judgement
unless it takes into account also a number of other factors: 
(1)  the relative seriousness of the danger in comparison
with the value of the occasion for speech or political
activity, (2)  the availability of more moderate controls than
those the State has imposed, and perhaps (3) the specific
intent with which the speech is launched.  (Freund, quoted
in Dennis v. United States in the concurring opinion of
Justice Frankfurter).
 
 
 2.  Applications of tests in various contexts
 
a.  Freedom of expression and national security
 
Babst v. National Intelligence Board  132 SCRA 316
(1984)
 
F:         Petitioners are journalists and columnists. On
different dates in July 1980, they were summoned by
military authorities for interrogation regarding their work,
feelings, sentiments, beliefs, associations and even private
lives. In addition, one of them was charged with libel by a
General who sought to recover P10 million in damages.
They brought an action for prohibition to stop the NIB from
CONSTITUTIONAL LAW 2
questioning them and from filing libel suits on matters that
had been the subject of inquiry by the NIB.
 
HELD:  The petition has become moot and academic. Be
that as it may, it is not idle to note that, while ordinarily, an
invitation to attend a hearing and answer some questions is
not illegal or constitutionally objectionable, under certain
circumstances, however, such an invitation can easily
assume a different appearance as when it comes from a
powerful group composed predominantly of ranking
military officers and the designate interrogation site is a
military camp.
 
 b.  Freedom of expression and criticism of official conduct:  lawyer in the discharge of his legal duty to his clients. He
The Test of "Actual Malice"
 
            Read Revised Penal Code, Articles 353-354 and
361-362
  
Freedom of expression and libel
 
            Freedom of speech versus right to reputation.  Libel
is the most common form of subsequent punishment.  have by himself caused the publication. It does not appear
Although one cannot be prevented from saying something
before he actually says it, one can be held liable for what
one has said if it causes damage to the rights of others.
 
Soliven v. Makasiar; Beltran v. Makasiar, 167 SCRA 393
(1988)
F:         The President of the Philippines filed a complaint for
libel against the petitioners, who were the publisher and
columnist of the Philippine Star, based on the following
statement in Beltran's column of Oct. 12, 1987 totle "The
Nervous Officials of the Aquino Administration": "If you
recall, during the August 29 coup attempt, the President hid
under her bed while the firing was going on - perhaps the
first Commander-in-Chief to do so." Beltran did not submit
a counter affidavit and instead, moved to dismiss the
complaint. The fiscal denied his motion. Thus, this petition
for certiorari.
 
HELD:  xxx
            (3)  As regards the contention of petitioner Beltran
that he could not be held liable for libel bec. of the
privileged character of the publication, the Court reiterates
that it is not a trier of facts and that such a defense is best
left to the trial court to appreciate after receiving the
evidence of the parties.  As to petitioner Beltran's claim that
to allow the libel case to proceed would produce a "chilling
effect" on the press freedom, the Court finds no basis at this
stage to rule on the point.  VV.
 
Manuel v. Cruz-Pano, 172 SCRA 225 (1989)
 
Libel suits based on official criticisms should be dismissed
outright unless made in bad faith
 
F:         Petitioner wrote the Chairman of the Anti-
Smuggling Action Center denouncing abuses allegedly
committed by ASAC agents against petitioner's clients.
Petitioner said the agents subjected Ng Woo Hay to
ZPG & ASSOCIATES
indignities and took her necklace and bracelet and her son's
wristwatch plus HK$ 70. But the agents were exonerated so
petitioner filed criminal charges of robbery. Petitioner found
prosecutors unsympathetic so he filed a civil action for
damages against the agents. Later, the Bulletin Today
published a news item based on petitioner's letter to ASAC.
This became the basis of an action for libel brought against
petitioner and his clients. Petitioner moved to quash the case
but his motion was denied.
 
HELD:  From the viewpoint of procedural and substantive
law, the charge is defective. The letter constitutes privileged
communication. It was sent by petitioner in his capacity as
could also invke his civic duty as a private individual to
expose anomalies in the public service. The complaint was
addressed to the official who had authority over them and
could impose proper disciplinary sanctions. As an index of
good faith, the letter was sent privately, directly to the
addressee without any funfare nor publicity. As for the news
report, it is difficult to believe that the petitioner, an
ordinary citizen without known ties to newspaper, could
either that the report was paid for like an advertisement. At
any rate, the news item is a true and fair report of a judicial
proceeding, made in good faith and without comments or
remarks.  VV.
 
Newsweek Inc. v. IAC  142 SCRA 171 (1986)
F:         Petitioner was sued for libel in connection with the
publication in the Feb. 23, 1981 issue of Newsweek of the
article "An Island of Fear." The plaintiffs, sugar planters of
Bacolod, complained that the article portrayed them as
exploiters of sugar workers. Petitioner moved to dismiss the
complaint on the ground that the article was not libelous
since it did not single any particular individual. The trial
court denied the motion and petitioner filed a petition for
certiorari in the IAC which was dismissed. Thus, this appeal
to the SC.
 
HELD:  Where the defamation is alleged to have been
directed at a group or class, it is essential that the statement
must be so sweeping or all-embracing as to apply to every
individual in that group or class, or sufficiently specific so
that each individual in the class or group can prove that the
defamatory statement specifically pointed to him, so that he
can bring the action separately if need be. The disputed
portion which refers to plaintiff Sola never singled out Sola.
The news report merely stated that the victim had been
arrested by members of a special police unit brought into the
area by Sola, the mayor. Hence, the report referring as it
does to an official act is within the realm of privileged and is
protected by the constitutional guarantees of free speech and
press.  VV.
 
            Notes:  Since the Newsweek artciles "Island of fear
in the Visayas" did not specify any individual, it cannot be
libelous.  An article must be sufficiently, specific or at least
sweeping as to apply to all members of a group, in order to
be deemed libelous.
 
CONSTITUTIONAL LAW 2
Lopez v. Court of Appeals, 34 SCRA 116 (1970)
 
            The pictures of a former mayor was inadvertently
published and mistaken for another man who was a sanitary
inspector and fooled the authorities about the Babuyan
Islands, claiming of murders there, so they could go and he
could be rescued.   An erratum was published by the This
Week magazine.  The SC, quoting Quisumbing v. Lopez,
however, found for plaintiff, but with reduced damages,
since the error in in this case could have been checked
consideringing that this was a weekly magazine and not a
daily.
 
Quisumbing v. Fernando, 96 Phil 510 (1955)
 
            Newspapers should be given leeway and tolerance to
enable them to courageously and effectively perform their
important role in our democracy.  In the preparation of
stories, press reporters and editors usually have to race to
their deadlines; and consistently with good faith and
reasonable care, they should not be held to account, to a
point of suppression, for honest mistakes or imperfection in
the choice of words.
. position in the hierarchy of civil liberties.  It is not,
 
Mercado v. CFI of Rizal  116 SCRA 93 (1982)
 
F:         Petitioner was accused of libel on the basis of a
telegram which he sent to the Secretary of Public Works
requesting investigation of Mrs. Virginia Mercado of the
Public Service Commission "as we have reason to believe
that she has enriched herself thru corrupt practices xxx." He
filed a motion to dismiss on the ground that his
communication was privileged, but his motion was denied.
He filed another motion which was also denied. Thus, this
petition for certiorari, mandamus and prohibition in the SC.
HELD:  US v. Bustos is a landmark decision antedating by
forty years a similar decision of the US Supreme Court to
the effect that a libel prosecution must survive the test of
whether or not the offending publication is within the
guarantees of free speech and free press. However, Justice
Malcolm in US v. Bustos was careful to point out that
qualified privilege and this is one instance may be "lost by
proof of malice." What casts doubt on the good faith of
petitioner is his conduct, vis-à-vis private respondent. The
tenacity with which petitioner had pursued a course of
conduct on its face would seem to indicate that a doubt
could reasonably be entertained as the bona fides of
petitioner. The prosecution should be given a chance to
prove malice. 
 
c.  Freedom of expression and the right to privacy
 
Lagunzad v. Gonzales, 92 SCRA 476 (1979)
   
F:            Lagunzad filmed the Moises Padilla story based on
a book written by Rodriguez.  xxx  Nelly Amane who was a
half-sister of Padilla objected to the movie on the ground
that it contained a portrayal of Padilla's private and family
life, including scenes about his mother, Maria Soto vda. de
Gonzales, and a certain "Auring" as Padilla's girl friend.  intrusion is no more than necessary to keep the film a
Subsequently, Nelly Amante, together w/ her sister and
ZPG & ASSOCIATES
mother, agreed to allow petitioner to "exploit, use and
develope the life story of Moises Padilla for purposes of
producing the pictures," in consideration of P20,000. 
Petitioner paid P5,000 but as he failed to pay the balance
agreed upon, he was sued.  Judgement was rendered against
him by the trial court, w/c was affirmed by the CA. 
Petitioner appealed to the SC contending that he was forced
to enter into the agreement only to avoid financial loss
caused by delay in the showing of the movie and the
relatives of Padilla did not have a property right in the life of
M. Padilla since Padilla was a public figure.  
 
HELD:  Petitioner's averment is not well taken.  Being a
public figure does not automatically destroy in toto a
person's right to privacy.  The right to invade a person's
privacy to disseminate public information does not extend to
fictional or novelized representation of a person, no matter
how a public figure he or she may be.  In the case at bar,
while it is true that petitioner exerted efforts to present the
true-to-life story of Moises Padilla, petitioner admits that he
included a little romance in the film bec. w/o it, it would be
a drab story of torture and brutality.
            Freedom of expression, indeed, occupies a preferred
 
however, w/o limitations.  In the particular circumstances
presented and considering the obligations assumed by
petitioner under the agreement, the validity of such
agreement will have to be upheld particular bec. the limits of
freedom of expression are reached when expression touches
upon matters of private concern.  [In the agreement signed
by him, petitioner admitted that in the picture produced, he
had "exploited the life story of Moises Padilla for pecuniary
gain, and other profit motives, and (had) encroached upon
the privacy of Moises Padilla's immediate family, and (had)
in fact included, in the PICTURE's case, persons portraying
some of MOISES PADILLA's kin..."] 
 
Ayer Productions Pty. Ltd. v. Capulong April 29, 1988
 
F:         Pivate respondent Juan Ponce Enrile filed an action
in the RTC of Makati to enjoin the petitioners from
producing the movie "The Four Day Revolution," a
documentary of the EDSA Revolution in 1986 on the
ground that it violated his right to privacy. Petitioners
contended that the movie would not involve his private life
not that of his family. But the trial court issued a writ of
preliminary injunction and ordered petitioners to desist from
making the movie making reference whatsoever to Ponce
Enrile. This, this action for certiorari.
 
HELD:  Freedom of speech and expression includes
freedom to produce motion pictures and to exhibit them.
What is involved is a prior restraint by the Judge upon the
exercise of speech and of expression by petitioners. Because
of the preferred character of speech and of expression, a
weighty presumption of invalidity vitiates measures of prior
restraint. The Judge should have stayed his hand considering
that the movie was yet uncompleted and therefore there was
no "clear and present danger." The subject matter of the
movie does not relate to the private life of Ponce Enrile. The
truthful historical account.  He is, after all, a public figure.
CONSTITUTIONAL LAW 2
The line of equilibrium in the specific context of the instant
case between freedom of speech and of expression and the
right of privacy may be marked out in terms of a
requirement that the proposed motion picture must be fairly
truthful and historical in its presentation of facts. There must
be no showing of a reckless disregard of truth.
 
            Notes:  Ayer sought to produce a movie on the 4-day
revolution.  Enrile, who had previously been asked for the
use of his character in the movie and had refused the offer,
sued to enjoin the filming because he did not want any
mention of his and his family's name.  The SC lifted the
injunction issued by the lower court on the ground that it
amounted to prior restraint, which is no better if imposed by
the courts than if imposed by administrative bodies or by
ecclesiatical officials.
 
            In Ayer, the reference to Enrile is unavoidable
because his name is part of history and this cannot be
changed or altered; thus his name can be used so long as
only his public life is dwelled only.  But in Lagunzad,
although Moises Padilla was also a public figure, the movie
dealth with both the public and private lives of Moises
Padilla.
 
 d. Freedom of expression and administration of justice
(contempt of court)
  
In re Ramon Tulfo, AM NO. 90-4-1545-0, April 17. 1990
 
 Zaldivar v. Sandiganbayan, 170 SCRA 1 (1989)
 
 Cabansag v. Fernandez, 102 Phil 152 (1957)
 
            A contempt imposed by the court on the party who
sent a letter to the Presidential Action Committee
complaining about the delay in the disposition of the
agrarian case, was lifted by the SC.  It held that although
such a letter should have been sent to the SC and not the
PAC, it was nevertheless a valid exercise of speech which
did not significantly destroy, the orderly administration of
justice.
 
People v. Alarcon, 60 Phil 265 (1939)
 
            A person can be held liable for making comments on
a pending case (sub judice) which have the tendency to
impair or obstruct the orderly administration of justistice. 
But if the case is not pending, such comment is a valid
exercise of the freedom of expression.
 
 e.  Symbolic Expression--  The Flag-burning case
 
 Flag burning when done to express dissent is protected
speech.
F:            Respondent Johnson participated in a political
demonstration where he burned an American flag while
protesters chanted.  No one was physically injured or
threatened with injury, although several witnesses were
seriously offended by the flag burning.  Johnson was
convicted of desecration of a venerated object in violation of
a Texas statute which (1) prohibited the desecration of,
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among other things, a state or national flag, and (2) defined
desecration as the physical mistreatment of such objects in a
way which the actor knows will seriously offend one or
more persons likely to observe or discover the act.  A state
court of appeals affirmed.  The Court of Criminal Appeals
of Texas reversed, holding that the desecration statute as
applied violated the defendant's right to freedom of speech
under the Federal Constitution's First Amendment, because
the statute (1) was too broad for First Amendment purposes
as it related to breaches of the peace, and (2) was not
adequately supported by the state's purported interest in
preserving a symbol of unity.
 
ISSUE:  Whether the flag desecration statute is
unconstitutional
 
HELD:  YES. Decision Affirmed.
            Johnson's conviction was inconsistent with the First
Amendment under the particular circumstances because (1)
Johnson's conduct was sufficiently imbued with elements of
communication to implicate the First Amendment, given
that this flag burning was the culmination of a political
demonstration and that the state conceded  that the
protester's conduct was expressive; (2) the state's interest in
preventing breaches of the peace was not implicated on the
record in this case, since (a) no disturbance of the peace
actually occurred or threatened to occur because of the flag
burning, (b) it cannot be presumed that an audience which
takes serious offense at a particular expression is necessarily
likely to disturb the peace, and (c) the flag burning does not
fall within the small class of "fighting words" that are likely
to provoke the average person to retaliation and thereby
cause a breach of the peace; and (3) the state's asserted
interest in preserving the flag as a symbol of nationhood and
national unity does not justify the conviction, since (a) the
attempted restriction on expression is content-based, and
thus subject to the most exacting scrutiny, given that the flag
desecration statute is aimed not at protecting the physical
integrity of the flag in all circumstances, but only against
impairments that would cause serious offenses to others and
is aimed at protecting onlookers from being offended by the
ideas expressed by the prohibited activity, and (b) although
the state has a legitimate interest in encouraging proper
treatment of the flag, it may not foster its own view of the
flag by prohibiting expressive conduct relating to it and by
criminally punishing a person for burning the flag as a
means of political protest. 
 
f.  Movies Censorship
 
            While prior restraint is the general rule, censorship in
the movies is tolerated because by the nature of the medium,
it has a greater impact on the audience and produces instant
reaction for the ideas it presents, unlike newspapers which
are read by people separated by walls.
 
Gonzales v. Katigbak, 137 SCRA 356 (1985)
 
F:         Petitioner was the producer of the movie Kapit sa
Patalim which the Board of Review for Motion Pictures and
Televisions allowed on condition that certain deletions were
made and that it was shown on adults only. The petitioner
CONSTITUTIONAL LAW 2
brought an action, claiming violation of their freedom of
expression.
HELD:  Motion pictures are important both as a method for
the communication of ideas and the expression of the artistic
impulse. The power of the Board is limited to the
classification of films. For freedom of expression is the rule
and restrictions the exception. The power to impose prior
restraint is not to be presumed, rather the presumption is
against its validity. Censorship is allowable only under the
clearest proof of a clear and present danger of a substantive
evil to public safety, public morals, public health or any
other legitimate public interest. The Board committed an
abuse of discretion in subjecting petitioner to difficulty and
travail before the movie was classified as "For adults only"
without deletion. However there is not enough votes to
consider the abuse of discretion grave as it explained that
there were reasons for its action because of the scenes
showing women erotically dancing naked and kissing and
caressing each other like lesbians.  VV.
 
 
            Notes:  The movie involved in this case was "Kapit
sa Patalim" which the censors wanted to cut in some part
and to label "For Adults".  The SC rules that movies are
within the constitutional protection of freedom of
expression, so that censorship is presumed to be valid as
constituting prior restraint.  The only case whe the Board of
Censors can order a deletion is when there is a clear and
present danger of a substantive evil against national security
or public morals or other public interest.  In all other cases,
the Board can only classify.     communication are entitled to the broad protection of the
 
            But a different standard must be followed in
television because of the pervasive and intrusive influence
of the medium on people who watch its programs without
having to pay anything.
 
            On the issue of obscenity, the SC held that sex along
is not necessarily obscenity, the test being whether, using
contemporary community standards, the dominant appeal us
to the prurient interest. (Miller v. California).  Thus on this
score, it found abuse of discretion of the part of the Board
for subjecting the producer to difficulty and for entertaining
a narrow view of obscenity, but it lacked the votes to rules
that the abuse was grave.
 
Tests of obscenity:
            (1)  Whether the average person, applying
contemporary community standards, would find that the
work, taken as a whole, appeals to the prurient interest.
            (2)  Whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined
by the applicable law.
            (3)  Whether the work, taken as a whole, lacks
serious literary, artistic, political or scientific value.  (Miller
v. California, 37 L. Ed. 2d 419.)
 
g.  Radio Broadcast
 
In Eastern Broadcasting Corp. v. Dans, 137 SCRA 647, the
SC held that radio broadcast also enjoys the protection of
the freedom of expression.  If closed down, the owners
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enjoy the rights to due process according to the standards set
in Ang Tibay v. CIR.
            But radio deserves greater regulation than
newspapers because it could invade the privacy of everyone
for no fee, and it is such that one is likely to listen to what is
being said.
 
 
Eastern Broadcasting Corp. (DYRE) V. Dans, 137 SCRA
647 (1985)
 
F:         The petitioners filed this action to compel
respondent government officials to allow the reopening of
Radio Station DYRE after it had been closed for allegedly
having been used to incite the people to sedition. The
petitioner contended that it was denied due process because
no hearing was held and no proof was submitted to establish
a factual basis for the closure. However, before the Court
could promulgate its decision the petitioner filed a motion to
withdraw its action on the ground that it had sold the radio
station to Manuel Pastrana and that the National
Telecommunications Commission had expressed its
willingness to grant the requisite license.
 
HELD:  The case has been moot and academic. However,
for the guidance of the inferior courts and administrative
bodies, the following guidelines must be observed: 1) The
cardinal primary requirements in administrative proceedings
as laid down in Ang Tibay v. CIR should be followed before
a broadcast station may be closed; 2) All forms of
freedom of expression clause. Necessarily, the freedom of
television and radio broadcasting is somewhat lesser in
scope than the freedom accorded to newspapers and print
media. This limitation derives from the fact the broadcast
media have a uniquely pervasive presence in the lives of all
Filipinos; 3) The government has a right to be protected
against broadcasts which incite listeners to violently
overthrow it; and 4) Broadcast stations deserve the special
protection given to all forms of media by the due process
and freedom of expression clauses of the Constitution.
 
h.  Freedom of Information
 
            Art. III, Sec. 7.  The right of the people to
information on matters of public concern shall be
recognized.  Access to official records, and to documents
and papers pertaining to, official acts, transactions, or
decisions, as well as to government research data used as
basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by
law. 
 
 Baldoza v. Dimaano, 71 SCRA 14 (1976)
 
            Access of official records (the docket book) for any
lawful purpose (to look into the criminal cases for a report
on the peace and order situation of the municipality) is
guaranteed.  But it is subject to reasonable conditions by the
custodian of the records.
 
 
CONSTITUTIONAL LAW 2
Garcia v. BOI, 177 SCRA 374 (1989)
 
 
            D.  Content-Neutral Restrictions
 
            O'brien test: A government regulation is
sufficiently justified if it is within the constitutional power
of the government; if it furthers an important or substantial
governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the
incidental restriction on alleged freedom of expression is no
greater than is essential to the furtherance of that interest.              Morever, The restriction is so broad that it
[US v. O'brien, 391 US 367 (1968), adopted in Adiong v.
COMELEC, 207 SCRA 712 (1992)]    this case is a privately owned vehicle. In consequence of this
 
 1.  Regulation of political campaign
 
National Press Club v. COMELEC, 207 SCRA 1 (1992)
 
F:         Petitioners herein were representatives of mass
media which were prevented from selling and donating
space or air time for political advertisements under RA
6646.
 
ISSUE: Whether or not RA 6646 constitutes a violation of
the constitutional right to freedom of expression.
 
RULING: NO. The Comelec has been expressly authorized
by the Constitution to supervise or regulate the enjoyment or
utilization of the franchises or permits for the operation f
media of communication and information. The fundamental
purposes of such power are to ensure "equal opportunity,
time, and space, and the right to reply," as well as uniform
and reasonable rates of charges for the use of such media
facilities, in connection with "public information campaigns
and forums among candidates."
            Of course, the law limits the right of free speech and
of access to mass media of the candidates themselves. The
limitation however, bears a clear and reasonable connection
with the objective set out in the Constitution. For it is
precisely in the unlimited purchase of print space and radio
and television time that the resources of the financially
affluent candidates are likely to make a crucial difference. 
 
Adiong v. COMELEC, 207 SCRA 712 (1992)
F:         Petitoner, Adiong, a  1992 senatorial candidate,
assails Comelec Resolution No. 2347 insofar as it prohibits
the posting of decals and stickers on mobile places, public or
private, and limits their location or publication to authorized
posting areas.
 
ISSUE: Whether or not the resolution is constitutional.
 
RULING: NO. The prohibition unduly infringes on the
citizen's fundamental right of free speech. There is no public
interest substantial enough to warrant the kind of restriction
involved in this case. The posting of decals amd stickers in
mobile places does not endanger any substantial government
or public interest. Under the clear and present danger rule,
not only must  the danger be patently clear and pressingly
present but the evil sought to be avoided, must be so
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substantive as to justify a clamp over one's mouth or a
writing instrument to be stilled.
            Significantly, the freedom of expression curtailed by
the prohibition is not so much that of the candidate  or the
political party. The regulation strikes at the freedoom of an
individual to express his preference  and, by displaying it on
his car, to convince others to agree with him. A sticker may
be furnished by a candidate but once the car owner agrees to
have it placed on his private  vehichle, the expression
becomes a statement by the owner, primarily his own and
not of anybody else.
encompasses even the citizen's private property, which in
prohibition, another cardinal right guaranteed under the
Constitution is violated which is that no person shall be
deprived of his property without due proocess of law. 
 
 2.  Freedom of Assembly
 
Public Assembly Act of 1985 (Batas Blg. 580)
 
            A permit to hold a rally must be filed with the Office
of the Mayor at least, five working days before the day of
the rally.
 
            But no permit from the mayor is required in case the
rally is going to be held in (i) freedom parks, (ii) inside a
private property (provide with consent of the owner), and
(iii) campuses of state universities (which are left to
university authorities)
 
            The application must be in writing and must include:
(1) names of the organizers and leaders, (2) date and time,
place and street, (3) size (4)manner of the use of the street,
(5) sound system to be used (6)purpose.  It must also have a
statement of the duties of the rallyists.
 
            The written application is filed with the Office of the
Mayor.  Acknowledgemet is given of its receipt.  If the
Mayor refuses to accept the application, then it is enough for
filing purposes if a copy is posted in the premises.
 
            The Mayor has 2 working days to act on the
application.  If he does not act, it is deemed granted.
            But if he thinks that the rally creates a "clear and
present danger" to public peace, order, health, etc., and he
has proof of this, he should not deny the application right
away.  He should hold a hearing during which the applicant
can be heard.  If after hearing he is still not satisfied that no
danger exists, then he can deny the application.
 
            The applicant can then go to any court other than the
Supreme Court for the review of the decision of denial of
the mayor.  The courts have 24 hours to act on the petition. 
If the judgment is a reversal of the denial, or in any case if
the applicant is satisfied with the decision, the  judgment
becomes final and executory immediately, and no appeal
can be taken by the local authorities anymore.
 
CONSTITUTIONAL LAW 2
            But if the decision is not satisfactory  to the
applicant, then he has 48 hours from receipt to appeal to the
SC.
 
            During the rally, the police must be limited to
maintaining peace and order and so must stay away by 100
meters from the rallyists.  They must be in full uniform, with
their names visibly written.  They can carry no firearm
except a nighstick, but they are allowed protective devices.
            If they anticipate trouble, the police must call the
attention of the leader of the rallyists.  When trouble actually
erupts, the police must not disperse the crowd right away but
first give a warning.  If violence persists, they must give a
second warning.  If still violence continues, only then can
they fight back.
 
            If a rally does not have a permit, the police can
disperse the crowd, but they cannot use violence.  Penalty is
imposed only on the leaders and organizers.
 
            Among the duties of the rallyists are: (a) to inform
the members of their duty under the law, (b) to police their
own rank, and (c) to cooperate with local authorities in
maintaining peace and order.
 
 
            Notes:  The freedom to use public places to
peaceably assemble is best expressed thus:  "Wherever the
title or steets and parks may rest, they have immemorially
been held in trust for the use of the public and, time out of
time have been used for purposes of assembly,
communicating thought betwee citizens, and discussing
public questions." (Justice Roberts.  Hague v. CIO)
 
            Although under a "permit system", before one can
use a public place, one must first obtain prior permit from
the proper authorities, the principle has always been that one
has the right to a permit, subject only to reasonable
regulation.  The validity of the permit system has been
upheld by the Court, provided, (a) it is concered only with
the time, place and manner of assembly ad (b) it does not
vest on the licensing authority unfettered discretion in
choosing the groups which could use the public place and
discriminate others.
 
            As held by the SC in Primicias vs Fugoso, 80 Phil.
71, the City Ordinance of Manila giving authority to the
Mayor to issue permits for parades should be construed to
be limited to the time, place, and manner of the parades
socially to secure public order, convenience and welfare.  transpired during the last demonstration held by them which
Thus, denying the Nacionalista Party a permit to hold a rally
at the Plaza Miranda on the ground that passions raised by
the recent national election were still high and a rally to
protest election anomalies could only exacerbate the matter,
was overturned by the court.
 
 
Primicias vs Fugoso, 80 Phil. 71
 
F:         This is an action for mandamus instituted by
petitioner Primicias, campaign manager of the Coalesced
Minority Parties, to compel Mayor Fugoso of the City of
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Manila to issue a permit for the holding of a peaceful public
meeting at Plaza Miranda for the purpose of petitioning the
government for redress of grievances. The Mayor denied the
application on the ground that passions still run high due to
the recent election, and a rally to protest election anomalies
might threaten breaches of the peace and disruption of
public order.
 
ISSUE: W/n the Mayor can refuse to grant the permit.
RULING: NO. The police power granted to the Mayor
under the Ordinance enacted by the Municipal Board
pursuant to its authority under the Revised Administrative
Code  which pertains to the use of streets and public places,
can be construed only to mean the power  to regulate, which
means and includes the power to control, govern, and to
restrain but cannot be construed as synonymous with
"suppress" or "prohibit."
            The Court quoted with approval  the decision in the
American case Cox v. State of New Hampshire, " a statute
requiring persons using public streets for a parade or
procession to procure a special license therefor from the
local authorities is not an unconstitutional abridgement of
the rights of assembly or of freedom of speech and press,
where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of
licenses, to a consideration of the time, place, and manner of
the parade or procession, with a view to conserving the
public convenience and of affording an opportunity to
provide proper policing, and are not invested with arbitrary
discretion to issue or refuse license..."
 
 
            But under the same ordinance, the SC, in Navarro v.
Villegas, 31 SCRA 730 (1970), upheld the mayor's refusal
to grant permit to a group during weekdays, on a finding
that everytime there was an announced rally, stores closed
and business was gravely affected because of violent
incidents.  It found the policy of the mayor to allow rallies
only during weekends to be reasonable.
 
 
Navarro v. Villegas, 31 SCRA 730 (1970)
 
F:         The petitioner, acting in behalf of the Movement for
a Democratic Philippines (MDP), an association of students,
workers and peasants, applied for a permit from the Mayor
of Manila to hold a rally at Plaza Miranda. Respondent
Mayor denied the application  to hold the rally on the date
and time specified  by petitioners in view of the events that
 
ended in the destruction of public and private property, loss
of a few lives, injuries to a score of other persons and the
closing down of  schools, offices and many stores. The
Mayor suggested that the MDP utilize the Sunken Gardens
near Intramuros for its rally and that the rally be held during
weekends and  earlier during the day so that it may end
before dark.
                Petitioner challenged the action of the Mayor on
the ground that the same constitutes a violation of their right
to freedom of assembly. Petitioner contended that the right
of the people to peaceful assembly and to petition the
government for redress of grievances may be exercised
CONSTITUTIONAL LAW 2
without the prior necessity of securing a permit from the
government and that such right cannot be fully enjoyed
without the corresponding right to use public places for that
purpose.  from any foreign embassy as a means of complying with the
 
ISSUE:  Whether or not the Mayor`s denial to issue a permit
amounted to a violation of petitioner`s right to freedom of
assembly.
 
HELD: NO.
            The respondent Mayor has not denied nor absolutely
refused the permit sought by petitioner. He has expressed
willingness to grant the permit for the peaceful assembly
during certain days and time, and at a place when they
would not disrupt the normal activities of the community.
           The respondent mayor possesses reasonable
discretion to determine or specify the streets or public places
to be used for the assembly in order to secure convenient use
thereof by others and provide adequate and proper policing
to minimize the risks of disorder and maintain public safety
and order.
            Petitioner has failed to show a clear specific legal
duty on the part of respondent Mayor to grant their
application for a permit unconditionally.  Experience in
connection with present assemblies and demonstrations have
shown that they pose a clear and imminent danger of public
disorders, breaches of the peace, criminal acts, and even
bloodshed as an aftermath of such assemblies, which,  to be no previous retraint whether in the form of libel suits,
petitioner has manifested, it has no means of preventing.  prosecution for damages, or contempt proceedings unless
Charo.
 
 
            In Ignacio v. Ela, 99 Phil. 346 (1956), the majority
upheld the mayor's denial of permit to members of the
Jehovah's Witnesses sect for the use of a klosk within the
town plaza in order to avoid any untoward incident with
members of the Roman Catholic Church, whose tenets are
opposed to those of the petitioners, and whose church is
very near the klosk.
 
 
Ignacio v. Ela, 99 Phil. 346 (1956)
 
F:         The Mayor denied a permit to the members of the
Jehovah's Witnesses to use the kiosk in the town plaza for
the purpose of holding a public lecture on the ground that
the permit,  if granted, may give rise to disturbance of the
religious ceremonies being performed by the Catholic
Church which was said to be within hearing distance from
the kiosk and which might lead to any  untoward incident
with members of the rival denomination.
ISSUE: W/N the denial is valid.
            In J.B.L. Reyes v. Bagatsing, 125 SCRA 553 (1983),
the SC found no basis for the denial of permit to the Anti-
Bases Coalition to hold a march from Luneta to the street
fronting the U.S. Embassy.  It affirmed the general rule that
the use of streets is free to all.  It found the fear entertained
by city authorities that the rallyists might be agirated by
provocateurs to be unfounded, given the report of the NPD
that adequate security measures were provided by the police.
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            The Court did not rule on the validity of the
ordinance of Manila prohibiting any rally within 200 meters
Geneva Convention that requires the host country to protect
the premises and personnel of the embassy.
 
            Then it gave guidelines for the issuance of permits
(now in BP 9801 (i) any group which applies must do so
within a sufficient time so the authority can have time to act:
(ii) if a disagreement arises over a denial of a permit, the
applicant can question the denial in the lower court, which
can try questions of fact and law, and (iii) appeal can be
made to the SC on an expedited procedure.
 
J.B.L. Reyes v. Bagatsing, 125 SCRA 553 (1983)
 
F:         Retired Justice JBL Reyes, on behalf of the Anti-
Bases Coalition, sought a permit from the City of Manila to
hold a peaceful march and rally on Oct. 26, 1983 starting 2
p.m. from Luneta to the gates of the US Embassy. He filed
this petition because as of Oct. 20, there was yet no action
on his request to hold a rally.
 
HELD:  Free speech, like free press, may be identified with
the liberty to discuss publicly and truthfully any matter of
public concern without censorship or punishment. There is
there is a "clear and present danger of a substantive evil that
the State has a right to prevent." There can be no legal
objection, absent the existence of a clear and present danger
of a substantive evil to the holding of a peaceful rally at
Luneta. Neither can there be objection to the use of the
streets up to gates of the US Embassy. A statute requiring
persons to secure a special license to use public streets for a
procession is not unconstitutional. The licensing of
authorities are strictly limited to the consideration of the
time, place and manner and the authorities are not invested
with arbitrary discretion to issue or refuse a permit.
            In German v. Barangan, 135 SCRA 514 (1985), the
SC upheld the power of the city authorities to close JP
Laurel Street fronting Malacanang from all rallies as a form
of "area restriction", in order to protect the President and his
family, based on the incident in the early 70s when the gates
of the palace were almost stormed.  The rallyists in this case
purported to merely worship at St. Jude's.
 
            In case a rally is held in a private place, no permit
from the mayor is required.  However, the consent of the
owner of the place must be acquired.
German v. Barangan  35 SCRA 514 (1985)
F:         On Oct. 2, 1984 the petitioners who were
businessmen, students and employees, met on JP Laurel
Street in Manila for the ostensible purpose of hearing mass
at the St. Jude Chapel which adjoins the Malacañang
grounds. They wore yellow T-shirts and, with clenched fists,
marched on the street and shouted anti-government
invectives. They were stopped from proceeding to the
CONSTITUTIONAL LAW 2
chapel by the Presidential Security Command. They brought
an action for mandamus.
 
HELD:  The yellow T-shirts worn by some of the marchers,
their fists clenched and chants of anti-government investives
support the government's claim that the petitioners purpose
was not really to worship at the chapel but to hold an anti-
government demonstration close to the residence of the
President. The restricted use of JP Laurel Street is justified.
The need to secure the safety of heads of states cannot be
overemphasized. The threat to their lives is constant and felt
throughout the world. The petitioners were not restrained in
their freedom of religion but only in the manner by which
they had attempted to translate the same into action.  use streets, they may deprive other groups which want to use
            In Malabanan v. Ramento, 129 SCRA 359 (1984)
and Arreza v. GAUP, 13 SCRA 94 (1985), the SC upheld
the right to expression of students who held a rally in a
private university.  But since they held it beyond the time
granted in a place other than the one allowed by the
administration, their suspension was condoned.
Malabanan v. Ramento, 129 SCRA 359 (1984)
 
F:         Petitioners were officers of the Supreme Student
Council of the Gregorio Araneta University Foundation.
They were granted a permit to hold a meeting to protest the
merger of two units of the university. On the scheduled date,
the students continued their meeting beyond the scheduled
time and held it in a different place from that indicated in
the permit. They expressed in a vehement language their
opposition to the merger and as a result, classes and office
work was disturbed. Petitioners were placed under
preventive suspension. On appeal, they were found guilt of
holding an illegal assembly and oral defamation. They were
suspended for one academic year. They filed a petition for
certiorari in the SC.
 
HELD:  The petititon may be considered moot and academic
considering that the TRO issued by the SC allowed the
students to enroll. But there is a need to pass squarely on the
constitutional question. Respect for the constitutional rights
of peaceable assembly and free speech calls for the setting
aside of the order of suspension. Suspending them for one
year is out of proportion considering that the vigorous
presentation of views was expected. The excitement of the
occasion, the propensity of speakers to exaggerate and the
exuberance of the youth should be taken into consideration.
 
 
Arreza v. GAUP, 13 SCRA 94 (1985)
F:         Petitioners were officers and members of the Student
Council of the Gregorio Araneta University Foundation.
They were refused enrollment for having led a rally on Sept.
28, 1982.
 
HELD:  As held in Malabanan v. Ramento: "If in the course
of such demonstration, with an enthusiastic audience
goading them on, utterances, extremely critical, at times
even vitriolic, were let loose, that is quite understandable.
They would be ineffective if during the rally they speak in
the guarded and judicious language of the academe. At any
rate, even a sympathetic audience is not disposed to accord
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full credence to their fiery exhortations. They take into
account the excitement of the occasion, the propensity of
speakers to exaggerate, the exuberance of youth. xxx" The
refusal of the university to enroll the students is a highly
disproportionate penalty.
            Notes:  Note that while the permit system is not
allowed in the case of publication, it is allowed in the case
of assembly.  In publication, censorship is presumptively
unconstitutional.  There is very little possibility or
justification for the regulation of news.  The remedy in this
case is prosecution or subsequent punishment.
            But in assembly regulation is allowed because it is
needed by the very nature of the expression, when people
the streets too.  So as long as only the incidents of speech
are regulated, the measure is constitutionally acceptable.
 
 
Nestle Phils. Inc. v. Sanchez  154 SCRA 541 (1987)
 
F:         While these cases were pending in the SC, the labor
unions involved intensified the pickets they had been
conducting in front of the Padre Faura gate of the Court and
set up picket quarters, at times obstructing access to and
egress from the Court's premises. When required to show
cause why they should not be held in contempt of court,
their lawyer apologized and assured that the above incident
would not be repeated.
 
HELD:  The Court will not hesitate in future similar
situations to apply the full force of the law and punish for
contempt those who attempt to pressure the Court into
acting one way or the other in any case pending before it.
Grievances must be ventilated in the proper channels, i.e.
through appropriate petitions or pleadings in keeping with
the respect due the courts as impartial administrators of
justice. Moreover, "parties have a constitutional right to
have the causes tried fairly in court by an impartial tribunal,
uninfluenced by publication or public clamor xxx" The acts
of respondents are not only an affront to the dignity of this
Court but equally a violation of the above-stated right of the
adverse parties and the citizenry at large. 
3.  Freedom of Association and the right to strike in the
public sector
 
            Art. III, Sec. 8.  The right of the people, including
those employed in the public and private sectors, to form
unions, associations, or societies for purposes not
contrary to law shall not be abridged.
            The inclusion of the right to unionize in this article is
ill-advised because while the right to unionize is an
economic and labor right, the right to association in general
is a civil- political right.
            Discussed elsewhere is the argument why public
employees cannot engage in collective bargaining and
strike.
 
 
SSS Employees Assn vs CA, 175 SCRA 686 (1989)
 
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F:  SSS filed w/ the RTC-QC a complaint for damages w/ a
prayer for a writ of prel inj. against petitioners SSSEA,
alleging that the officers and members of the latter staged an
illegal strike and barricaded the entrances to the SSS
building preventing non-striking employees from reporting
to work and SSS members from transacting business w/
SSS.  The Public Sector Labor-Management Council
ordered the strikers to return to work but the strikers refused
to do so.  The SSSEA went on strike bec. SSS failed to act
on the union's demands.
                Petitioners filed a motion to dismiss the complaint
for lack of jurisdiction, w/c motion was denied.  The
restraining order w/c was previously issued was converted
into an injunction after finding the strike illegal.  Petitioners
appealed the case to the CA.  The latter held that since the
employees of SSS are govt employees, they are not allowed
to strike.   
 
HELD:  Employees in the Civil Service may not resort to
strikes, walkouts and other temporary work stoppages, like
workers in the private sector, in order to pressure the Govt.
to accede to their demands.  As now provided under Sec. 4,
Rule III of the Rules and Regulations to Govern the
Exercise of the Right of Govt. EEs to Self-Organization
which took effect after the initial dispute arose, the terms
and conditions of employment in the Govt, including any
political subdivision or instrumentality thereof and govt.
owned and controlled corporations with original charters,
are governed by law and employees therein shall  not strike
for the purpose of securing changes thereof.
            The statement of the court in Alliance of Govt
Workers v. Minister of Labor and Employment (124 SCRA
1) is relevant as it furnishes the rationale for distinguishing
bet. workers in the private sector and govt employees w/
regard to the right to strike?
 
Since the terms and conditions of govt.
employment are fixed by law, govt.
workers cannot use the same weapons
employed by workers in the private sector
to secure concessions from their
employers.  The principle behind labor
unionism in private industry is that
industrial peace cannot be secured through
compulsion of law.  Relations bet. private
employers and their employees rest on an
essentially voluntary basis.  Subject to the
minimum requirements of wage laws and
other labor and welfare legislation, the
terms and conditions of employment in the
unionized private sector are settled
through the process of collective
bargaining.  In govt employment,
however, it is the legislature and, where
properly given delegated power, the
administrative heads of govt w/c fix the
terms and conditions of employment.  And
this is effected through statutes or
administrative circulars, rules, and
regulations, not through CBA's
 
E.  Academic Freedom
ZPG & ASSOCIATES
Garcia v. Faculty of Admission, 68 SCRA 277 (1975)
 
F:         The FAC of the  Loyola School of Theology refused
to readmit petitioner, Garcia, in its M.A. program because
they felt that "her frequent questions and difficulties were
not always pertinent and had the effect of slowing down the
progress of the class;" that it would be "to the best interest
(of the petitioner) to work with a faculty that is more
compatible with her orientation. Garcia assailled her
expulsion for being unreasonable; that the reasons given
therefor were invalid for nowhere did it appear that her
conduct constituted a violation of the school's regulations
and grave misconduct.
 
ISSUE: Whether or not the FAC can be compelled by
mandamus to readmit petitioner.
 
RULING: NO. The Constitution recognizes the enjoyment
by institutions of higher learning of the right to academic
freedom. The school decides for itself its aims and
objectives and how best to attain them. It is free from
outside coercion or interference save possibly when the
overriding public welfare calls for some restraint. It has a
wide sphere of autonomy certainly extending to the choice
of the students.
            The collective liberty of an organization is by no
means the same thing as the freedom of the individual
members within it. In considering the problems of academic
freedom, one must distinguish between autonomy of the
university, as a corporate body, and the freedom of the
individual university teacher.
            The personal aspect of the freedom consists of the
right of each university teacher to seek and express the truth
as he personally sees it, both in his academic work and in his
capacity as a private citizen. This status of the individual
teacher is as important as the status of the institution to
which he belongs and through which he disseminates
learning.
            On other hand, the internal conditions for academic
freedom in a university are that the academic staff should
have de facto control of the following functions: (a)
admission and examination of students; (b) curricula for
courses of study; (c) appointment and tenure of office of
academic staff; and (d) allocation of income among the
different categories of expenditure. It is the business of a
university to proviide that atmosphere which is most
conducive to speculation, experiment and creation. It is an
atmosphere  in which the four essential freedoms of a
university prevail - to determine for itself who may teach,
what may be taught, how it shall be taught, and who may be
admitted to study.
            For the above reason, mandamus is  not available for
the petitioner. There is no duty on the part of the  School to
admit her to study since the School clearly has the discretion
to turn down even qualified applicants due to limitations of
space, facilities, professors and optimum classroom size and
component considerations. There are standards to meet and
policies to pursue. What a student possesses is a privilege
rather than a right. 
UP v. Ayson, 176 SCRA 647 (1989)
 
CONSTITUTIONAL LAW 2
F:         In 1972, the UP BOR approved the establishment of
the UPCB Highshool to serve, among others, "as a
laboratory and demonstration school for prospective
teachers - provided that UPCBHS must be self-supporting."
However, the Dept of Professional Education in Baguio was
never organized. So, the BOR decided to phase out
UPCBHS for failing to attain the conditions for its creation.
The UPCBHS Foundation Inc. sought to restrain the
University from phasing out the UPCBHS.
 
ISSUE: Is secondary public education demandable in an
institution of higher learning such as the UP?
 
RULING: NO. UP invokes its exercise of academic
freedom. Private respondent invokes the right to quality
education and to free secondary education.
            The rights invoked by private respondent may be
asserted only as against the Government through the DECS.              a.   Is the purpose of the law religious, or is it
UP was created under its charter to provide advanced
tertiary education. An institute of higher learning cannot be
compelled to provide for secondary education.
            It is beyond cavil that UP as an institution of higher
learning enjoys academic freedom. UPCBHS was
established subject to a number of conditionalities. Failing
on such conditions, UP can order its abolition on academic
grounds.  Charo.
 
UP v. CA, Feb. 9, 1993
 
F:         Former PANAMIN Minister Manuel Elizalde and
the Tasaday representative filed a complaint for damages
and declaratory  relief against UP Professors Jerome Bailen
and Zeus Salazar who disputed the authenticity of the
Tasaday find and made a proposition in various conferences
attended by them that  Elizalde merely fabricated the
discovery of the Tasadays.
                UP intervened, aaserting its duty to protect the
respondents as faculty members for acts and utterances
made in the exercise of academic freedom. The lower court
denied UP's motion to dismiss for failure to state a cause of
action. Hence this petition.
 
RULING: With respect to the prayer of the complaint for
"judgment declaring the Tasadays to be a distinct ethnic
community, the lower court is cautioned that the same is
akin to a prayer for a judicial declaration of Philippine
citizenship which may not be granted in a petition for
declaratory relief. The complaint was filed mainly to
vindicate plaintiff's dignity and honor.
            Indeed, it is beyond the province of the court to
make pronouncements on matters beyond its ken and
expertise. To be sure, in resolving the complaint for
damages, the court may find congruence in what is
justiciable and what falls within the field of the sciences.
Still, it is best to keep in mind that its proper role and
function is the determination of legal issues.              In Epperson v. Arkansas, 393 U.S. 97 (1968), the SC
V.  FREEDOM OF RELIGION
 
            Art. III, Sec. 5.  No law shall be made respecting
an establishment of religion; or prohibiting the free
exercise thereof.  The free exercise and enjoyment of
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religious profession and worship, without discrimination
or preference, shall forever be allowed.  No religious test
shall be required for the exercise of civil or political
rights.
 
            A.  Non-Establishment Clause
 
            The clause prohibits excessive government
entanglement with, endorsement or disapproval of religion
[Vicoriano v. Elizalde Rope Workers Union, 59 SCRA 54
(1974); Lynch v. Donnelly, 465 US 668 (1984) (O'Connor,
J., concurring); Allegheny County v. Greater Pittsburg
ACLU, 492 US 574 (1989).]
 
            The clause prohibits the State from establishing a
religion.  In assessing the validity of the law, the questions
to be asked are:
secular?
            b.   Does it or does it not inhibit or advance religion?
            c.   Is its effect to promote or to avoid an excessive
entaglement between the State and religious matters in
religion?
    
            The Non-Establishment clause is violated when the
State gives any manifest support to any one religion, even if
nothing is done against the individual.
            It is likewise violated if the State favors all religions,
for there may be atheists who are not so favored.
1.  Operation of sectarian schools
 
            While the ownership, creation and management of
educational institutions must be in the hands of Filipinos or
60% Filipino-owned corporations, sectarian schools and
those run by religious groups and missions board are
exempted from these requirements, provided the
administration is in the hands of Filipinos, who could be
sectarian. [Art. XIV, Sec. 4(2).]
 
 
2.  Religious instruction in public schools
 
 
            Provided it is upon the written petition of the parents
and it is at no cost to the State (although this is not entirely
possible, because the use of classrooms and electricity are
costs in the State),  religious instruction in public elementary
and secondary schools during class hours, by one approved
by the authorities of the religion of the child or ward is
allowed.  [Art. XIV, Sec. 3(3).]  Religion can even be
integrated in the school curriculum. [Civ. Code, 359 (1).]
 
3.  Anti-evolution laws
 
held that the teaching of the Darwinian theory of evolution
cannot be prohibited from public shools by parents whose
religions finds the theory offensive.
 
4.  Prayer and Bible-reading in public schools
 
CONSTITUTIONAL LAW 2
            In Engel v. Vitale, 370 U.S. 421 (1967), the SC
disallowed the conducting of an interdenominational prayer
before the start of classes in public schools as, violative of
the Non- Establishment clause.
  
Engel v. Vitale, 370 U.S. 421 (1967)
 
F:         The respondent Board of Education upon the
recommendation of the State Board of Regents,  directed the
School's District principal to cause the recitation in public  Amendment. To withstand the strictures of the
schools of a brief, denominationally neutral prayer. Its
observance on the part of the students was voluntary.
 
RULING: The Court ruled that the State of New York, by
using its public school system to encourage the recitation of
the Regent's prayer has adopted a practice wholly
inconsistent with the Establishment Clause. The prayer was
composed by govt officials  as part of a governmental
program to further religious beliefs. The constitutional
prohibition against laws respecting an establishment of
religion means at least that it is not part of the business of
the government to compose official prayers for any group to
recite as part of a religious program carried on by the govt.
            The clauses of the 1st Amendment which prohibit
laws respecting an establishment of religion and abridging
the free exercise thereof, although overlapping in certain
instances, forbids two diff kinds of governmental
encroachment upon religious freedom. The stablishment
clause, unlike the free exercise clause, does not depend upon
any showing of direct governmental compulsion and is
violated by the enactment of laws which establish an official
religion, whether or not those laws operate directly to coerce
non-observing individuals. It rests on the belief that a union
of govt and religion tends to destroy govt and to degrade
religion, and upon an awareness of the historical fact that
governmentally established religion and religious
persecutions go hand in hand.   Board, 51 Phil. 352 (1927) is  modified to the extent now
 
            In Abington School District v. Schemp, 374 U.S.
203 (1963), it likewise disallowed the reading of a passage
from the bible without comment in public schools as
contrary to the Non- Establishment clause.
 
Abington School District v. Schemp, 374 U.S. 203 (1963)
The issue was whether the establishment clause was violated
by a Pennsylvania Statute or a rule of the Board of
Commissioners of Baltimore adopted pursuant to statutory
authority requiring the reading without comment, at the
opening of each school day, of verses from the Bible and the
recitation of the Lord's prayer by the students in unison. The
students and parents may refuse to participate in the school
exercises. These exercises were prescribed as part of the
curricular activities of students who are required by law to
attend school and held in school buildings under the
supervision and participation of teachers employed in those
schools.
 
RULING: YES, the establishment clause was violated.  tax mandated in the Constitution in favor of the religious
            The establishment clause prohibits a state from
placing official support behind the tenets of one or all
orthodoxies and the free exercise clause guarantees the right
of every person to freely choose his own course with
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reference to religious training, teaching and observance, free
from any compulsion from the State.
            The test in determining whether a legislative
enactment violates the Establishment clause which
withdraws all legislative power respecting religious belief or
the expression thereof, is the PURPOSE and the PRIMARY
EFFECT of the enactment. If either is the advancement or
inhibition of religion, then the enactment exceeds the scope
of legislative power as circumscribed by the First
establishment clause, there must be a secular legislative
purpose and a primary effect that neither advances nor
inhibits religion.
            The place of the Bible as an instrument of religion
cannot be gainsaid. This is particularly so where the State's
recognition of the pervading religious character of the
exercise is evident from the rule's specific permission of the
alternative use of the Catholic Douay version of the Bible as
well as from a recent amendment permitting non-attendance
at the exercises, none of those factors being consistent with
the contention that the Bible is used either as an instrument
for non-religious moral inspiration or as a reference for the
teaching of secular subjects. 
 
5.  Tax exemption
 
            Art.  VI, Sec. 28.  xxx
            (3)  Charitable institutions, churches, parsonages
or convents appurtenant thereto,  mosques, non-profit
cemeteries, and all lands, buildings and improvements,
actually, directly, and exclusively used for religious,
charitable or educational purposes shall be exempt from
taxation. 
 
 
            The ruling in Bishop of Nueva Segovia v. Provincial
that the property must be "actually, directly and exclusively"
used for religious purposes to be exempt.
If not for religious purposes, educational purposes.
 
Bishop of Nueva Segovia v. Provincial Board, 51 Phil. 352
(1927)
F:         The plaintiff, the Roman Catholic Apostolic Church,
represented by the Bishop of Nueva Segovia, is the owner
and occupant of a parcel of land in San Nicolas, Ilocos
Norte. On the south siide is a part of the church yard, the
convent and an adjacent lot used as vegetable garden. In the
center is the remainder of the churchyard and the church. On
the north side is an old cemetery and the base of what was
once a tower. The Prov. Board imposed a tax on the whole
land.
 
ISSUE: Whether or not the taxation is legal.
 
RULING: NO. The exemption in the payment of the land
entities refers to the home of the priest who presides over
the church and who has to take care of himself in order to
discharge his duties. It therefore must include not only the
CONSTITUTIONAL LAW 2
land actually occupied by the church but also the adjacent
ground destined for the ordinary incidental uses of man.
            Except in large cities where the density of the
population and the development of commerce require the
use of large tracts of land for buildings, a vegetable garden
belongs to a house and, in the case of a convent, its use is
limited to the necessities of the priest. Therefore,  which
comes under the tax exemption.
            As to the lot which was formerly the cemetery, while
it is no longer used as such, neither is it used for commercial
purposes and, accdg to the evidence, is now being used as a
lodging house by the people who participate in religious
festivities. The same constitutes an incidental use in
religious functions. It also comes within the exemption.  purposes only and not for religious purposes.  When the
 
 6.  Public aid to religion
 
            The payment or use of public money or property for
any religious institution or clergy is not allowed; except in
those cases provided in the Constitution: priests assigned in
the AFP, penal institution, government orphanage, or
leprosarium.  [Art. VI, Sec. 29 (2)]
 
            But in Aglipay v. Ruiz, 64 Phil. 201 (1937), the SC
held that the stamp printed by the government showing the
map of the Philippines with a rosary to commemorate the
33rd International Eucharistic Congress to be held in Manila
did not violate the Non-Establishment clause because its
main purpose, was to call the world's attention to Manila as
the site of an international congress, and whatever benefit it
gave the Catholic Church was only incidental.
Aglipay v. Ruiz, 64 Phil. 201 (1937)
 
F:         The petitioner, Mons. Aglipay, Head of the Phil. Ind.
Church, sought to restrain respondent Director of Posts from
issuing and selling postage stamps commemorative of the
33rd International Eucharistic Congress. The Director issued
the stamps under the provisions of Act 4052 which
appropriates public funds for the cost of the plates and
printing of the stamps. Petitioner alleged that the issuance of
the stamps was done in violation of the Constitutional
provision that no public money or property shall be
appropriated for the use, benefit or support of any sect or
religion.
 
ISSUE: W/N petitioner's contention is tenable.
 
RULING: NO. Act 4052 contemplated no religious purpose
in view. What it gave the Director of Posts was the
discretionary power to determine when the issuance of
special postage stamps would be advantageous to the
government.
            The purpose in issuing the stamps was to advertise
the Philippines and attract more tourists to this country. The
officials concerned merely took advantage of an event
considered of international importance to give publicity to
the country and its people. The stamp contained a map of
the Philippines and the location of Manila, and an
inscription as follows: "Seat XXXIII International
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Eucharistic Crusade." What was emphasized  was not the
event but Manila.
            It was obvious that while the stamps may be said to
be inseparably linked with an event of a religious character,
the resulting propaganda received by the Roman Catholic
Church was merely incidental and was not the aim and
purpose of the government. 
            In Ignacio v. Ela, supra, the dissenting opinion of
Justice Concepcion pointed out that the mayor disapproved
the application for a permit not so much because he was
afraid that breach of peace would ensue but because he
wrongly though the kiosk should be used for public
Jehovah's Witness members use the public squares, they are
no different from ordinary pedestrians or promenaders who
use the street:  that they are performing religious acts is only
incidental.  So long as the use of public property is only
incidentalally and temporarilly for religious purposes and so
long as the use is such as to be reasonably compatible with
the use to which other members of the community are
similarly entitled, then the non-establishment clause is not
violated.  The tests then are (1)  Is the use of the public
facility compatible with general use?  (2)  Is the resulting
benefit to the religious group only incidental.
 
B.  Free Exercise Clause
 
 1.  Flag Salute
 
Ebranilag v. Division Superindentent of Schools of Cebu,
219 SCRA 256 (1993)
Conscientious Objectors cannot be compelled to salute the
flag.
 
F:            All the ptetitioners in these cases were expelled
from their classes by the public school authorities in Cebu
for refusing to salute the flag, since the national anthem and
recite the patriotic pledge as required by RA 1265 and by
Dept. Order No. 8 dated July 21, 1955 of the DECS making
the flag ceremony compulsory in all educational
institutions. 
 
ISSUE:  W/N school children who are members of a
religious sect known as Jehovah's Witnesses may be
expelled from school (both private and public), for refusing,
on account of their religious beliefs, to take part in the flag
ceremony which includes playing (by a band) or singing the
Phil. National Anthem, saluting the Phil. flag and reciting
the patriotic pledge.
 
HELD:   NO. 
            The idea that one may be compelled to salute the
flag, sing the national anthem, and recite the patriotice
pledge, during a flag ceremony on pain of being dismissed
from one's job or of being expelled from school, is alien to
the conscience of the present generation of Filipinos who cut
their teeth on the Bill of Rights w/c guarantees their rights to
free speech and the free exercise of religious profession and
worship.
            xxx
CONSTITUTIONAL LAW 2
            xxx  Forcing a small religious group, through the
iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to
love of country or respect for duly constituted authorities.
            xxx
            The sole justification for a prior restraint or
limitation on the exercise of religious freedom is the
existence of a grave and present danger of a character both
grave and imminent, of a serious evil to public safety, moral,
health or any other legitimate public interest, that the state
has a right and duty to prevent.  Absent such a threat to
public safety, the expulsion of the pets. from the schools is
not justified.
            xxx
            Although petitioners do not participate in the
compulsory flag ceremony, they do not engage in external
acts or behavior that would offend their countrymen who
believe in exercising their love of country through the
observance of the flag ceremony.  They quietly stand at
attention during the ceremony to show their respect for the
right of those who choose to participate in the solemn
proceedings.  As there is no disruption, expulsion is
unwarranted.   HELD: YES. The power to tax the exercise of the privilege
            However, if they should commit breaches of peace
by action that offend the sensibilities, both religious and
patriotic, of other persons, the school authorities have the
power to discipline them.  for its maintenance. It is true that the price  asked for the
 
 
Compare West V. Board of Education v. Barnette, 319 US
624 (1943)
 
F:         The State Board required public school pupils to
salute the flag of the United States while reciting a pledge of
allegiance under penalty of expulsion entailing liability of
both pupil and parents to be proceeded against for unlawful
absence. Appellees, members of the Jehovah's Witnesses,
consider the flag as a graven image which they are
forbidden to salute under their religious beliefs. The State
asserts the power to condition access to public education.
 
ISSUE: W/N the compulsory flag salute is valid.
 
RULING: NO.
            In connection with pledges, the flag salute is a form
of utterance. It requires an affirmation of a belief and an
attitude of mind. It is now a commonplace that censorship or
suppression of expression of opinion is tolerated by the
Constitution  only when the expression presents a clear and
present danger of action of a kind the State is empowered to
prevent and punish. Here the power of compulsion is
invoked without any allegation that remaining passive
during a flag salute ritual creates a clear and present danger
that would justify an  effort even to muffle expression.
            To sustain the compulsory flag salute, we are
required to say that a Bill of Rights which guards the
individual's right to speak his mind left it open to public
authorities to compel him to utter what is not in his mind.
            The Court applies the limitations of the Constitution
with no fear that freedom to be intellectually and spiritually
diverse or even contrary will disintegrate the social
organization. To believe that patriotism will not flourish if
patriotic ceremonies are voluntary and spontaneous instead
ZPG & ASSOCIATES
of a compulsory routine is to make an unflattering estimate
of the appeal of our institutions to free minds. 
 
2.  Freedom to propagate religious doctrines
 
American Bible Society v. City of Manila, 101 P 386 (1957)
 
F:         Plaintiff is engaged in the distribution and sale of
bibles and religious articles. The City Treasurer of Manila
informed the plaintiff that it was conducting the business of
general merchandise without securing the necessary license
and paying the requisite fee in violation of the City
ordinance. Plaintiff protested against this requirement as
constituting a restraint upon the exercise  of religion. It
claimed that it is not engaged in business which necessitates
the securing of a license as it never made any profit from the
sale of its bibles.
 
ISSUE: Whether or not the ordinance as applied to
petitioner is unconstutional  for being in restraint of
petitioner's right to free exercise  of religion.
 
is the power to control or suppress its enjoyment. Those who
can tax the exercise of religious practice can make its
exercise so costly as to deprive it of the resources necessary
religious articles was in some instances a little bit higher
than the actual cost of the same, but this cannot mean that
plaintiff was engaged in the business or occupation of
selling said "merchandise" for profit. The mark up can only
be treated as contributions by the faithfuls to the religious
cause. The Ordinance  CANNOT be applied to plaintiff
society, for in so doing, it would impair its free exercise and
enjoyment of its religious profession and worship, as well as
its right to disseminate religious beliefs.
 
3.  Exemtion from union shop
 
Victoriano v. Elizalde Rope Workers Union, 59 SCRA 54
(1974)
 
F:         Benjamin Victoriano is an employee of the Elizalde
Rope Factory. In 1962, he resigned from the respondent
labor union on the ground that the Iglesia ni Kristo of which
he is a member prohibits union membership. As the union
demanded his dismissal from employment pursuant to a
closed shop agreement, Victoriano brought this action for
injunction. The CFI ruled in his favor exempting from the
closed-shop contracts members of religious sects which
prohibit affiliation of their members in any labor
organization. The union appealed.
 
HELD:  The statute does not violate the rights of
association. It does not impair the obligation of contracts for
not only are existing laws read into contracts in order to fix
the obligation of the parties but the reservation of essential
attributes of sovereign power is also read into such
contracts. Neither does the law constitute an establishment
of religion. It has been held that in order to withstand
objections based on this ground, the statute musr have a
secular purpose and that purpose must not directly advance
or diminish the interest of any religion. Congress acted
CONSTITUTIONAL LAW 2 ZPG & ASSOCIATES

merely to relieve persons of the burden imposed by union enjoin the implementation of the President's decision to bar
security agreements.  their return to the Philippines. The case for petitioners is
  founded on the assertion that the right of the Marcoses to
4.  Disqualification from local government office return to the Philippines is guaranteed under the provisions
  of the Constitution respecting one's  liberty of abode and
Pamil v. Teleron  86 SCRA 413 (1978) right to travel. Respondents argue the primacy of the right of
  the State to national security over individual rights.
F:         In 1971, Fr. Margarito Gonzaga was elected mayor  
of Albuquerque, Bohol. A petition was filed against him on RULING: The right involved in this case is not the right to
the basis of section 2175 of the Revised Administrative travel from the Philippines to other countries or within the
Code providing that "in nocase shall there be elected or Philippines. Essentially, the right involved is the right to
appointed to a municipal office ecclesiastics, soldiers in return to one's country, a totally distinct right under
active service, persons receiving salaries from provincial international law, independent from although related to the
funds, or contractors for public works." The CFI dismissed right to travel.
the petition on the ground that the ineligibility has been             The right to return to one's country is not among the
impliedly repealed by section 23 of the 1971 Election Code. rights specifically guaranteed in the Bill of Rights, which
  treats only of the liberty of abode and the right to travel, but
HELD:  The voting of the SC was inconclusive. Seven it is the Court's well considered view that the right to return
justices held that section 2175 is no longer operative. Justice may be considered as a generally accepted principle of
Fernando held that section 2175 imposed a religious test on international law, and under our Constitution, is part of the
the exercise of the right to run for public office contrary to law of the land. However, it is distinct and separate from the
Art. III of the 1935 Constitution. Justice Teehankee held that right to travel and enjoys a different protection under the
section 2175 had been repealed by the Election Code.  Five Intl. Covenant of Civil and Political Rights, i.e. against
justices held that section 2175 is constitutional.  being arbitrarily deprived thereof.
              The request or demand of the Marcoses to be
  allowed to return to the Philippines cannot be considered in
VI.  LIBERTY OF ABODE AND OF TRAVEL the light solely of the constitutional provisions guaranteeing
  liberty of abode and the right to travel. It must be treated as
            Art. III, Sec. 6.  The liberty of abode and of a matter that is appropriately addressed to those residual
changing the same within the limits prescribed by law unstated powers of the President which are implicit in and
shall not be impaired except upon lawful order of the correlative to the paramount duty residing in that office to
court.  Neither shall the right to travel be impaired safeguard and protect general welfare. In that context, such
except in the interest of national security, public safety, request or demand should submit to the exercise of a
or public health, as may be provided by law.  broader discretion on the part of the President to determine
  whether it must be granted or not.
   
Salonga v. Hermoso  97 SCRA 121 (1980)
 
Right to travel
 
            This is not the first time petitioner Jovito Salonga
came to the SC by way of a mandamus proceeding to
compel the issuance to him of a certificate of eligibility to
travel. In the first case, Salonga v. Madella, the case became
moot and academic. The present petition is likewise moot
and academic. In the motion to dismiss filed by the Solicitor
General, it was stated that the certificate of eligibility to
travel had been granted petitioner.
            Nonetheless, in view of the likelihood that this Court
may be faced again with the same situation, it is desirable
that respondent Travel Processing Center should exercise
the utmost care to avoid the impression that certain citizens
desirous of exercising their constitutional right to travel
could be subjected to inconvenience or annoyance. The
freedom to travel is one of the most cherished. xxx 
 
 
Marcos v. Manglapus, 177 SCRA 668 & 178 SCRA 760
(1989)
 
F:         This petition for mandamus and prohibition asks the
Court to order the respondents to issue travel documents to
Mr. Marcos and the immediate members of his family and to