POLITICAL LAW — ATTY.
ADONIS GABRIEL NOTES 2019
THE CONSTITUTION OF THE PHILIPPINES
Constitutional Law is a very beautiful subject. To better understand the Constitution, we must
appreciate the majesty of this law. If there is any law that we can indeed claim to be a living
organism, it is the Constitution because we can see how the Constitution grows, how it
develops, how it adapts, and to a certain extent, how it mutates.
In the hands of a dictator, the Constitution may serve as a chain that will restrict the freedom
of movement of its citizens; in the hands of a libertarian, however, the Constitution will give
the people wings in order to help them soar high.
What is a Constitution?
- The most commonly used definition of a Constitution is that given by Justice
Thomas Cooley. According to Justice Cooley, “The Constitution is that body of rules
and maxims, in accordance with which the powers of sovereignty are habitually
exercised.”
- Justice Cruz considers this definition as being too broad, as it covers both
written and the unwritten Constitution. Hence, he prefers the definition
given by Justice Malcolm.
- According to Justice Malcolm, a Constitution is “the written instrument enacted by
the direct action of the people, by which the fundamental powers of government are
established, limited and defined, and by which those powers are distributed among
the several departments for their safe and useful exercise for the benefit of the body
politic.”
- In the case of Manila Prince Hotel v. GSIS, the Supreme Court defined the
Constitution as “a system of fundamental laws for the governance and
administration of a nation.”
- In the case of Marcos v Manglapus, the Supreme Court said that it must be borne
in mind that “The constitution, apart from being an allocation of power, is also a
SOCIAL CONTRACT whereby the people have surrendered their sovereign powers to
the state for the common good.”
- In the case of Ocampo v. Enriquez, which involved the internment of the remains
of former President Marcos in the libingan ng mga bayani, the Supreme Court said
that “the Constitution is a product of our collective history as a people.”
In the case of Manila Prince Hotel v. GSIS, the Supreme Court discussed the so-called
DOCTRINE OF CONSTITUTIONAL SUPREMACY.
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- According to the Doctrine of Constitutional Supremacy, “the Constitution is the
basic and paramount law to which all other laws must conform and to which all
persons, including the highest officials of the land must defer. No act shall be valid
however noble its intention if it conflicts with the Constitution. The Constitution must
ever remain supreme. All must bow to the mandate of this law. Expediency must not
be allowed to sap its strength, nor greed for power debase its rectitude. Right or
wrong, the Constitution shall always prevail as long as it has not been changed by
the sovereign people lest its disregard results in usurpation of the majesty of the law
by the pretenders to illegitimate power.”
- The Supreme Court furthered that “under the Doctrine of Constitutional
Supremacy, if a law or contract violates any norm of the Constitution, that
law or contract, whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes, is null and
void and without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract.”
- Under this doctrine, the Constitution is supreme; the Constitution is also
immutable; it can never be wrong. What gives the Constitution these
characteristics?
- The answer to this question can be taken from the definition of a
Constitution given by Justice Malcom. Again, according to Justice
Malcolm, “The Constitution is a written instrument enacted by the direct
action of the people…” This is what gives the Constitution these
characteristics since the Constitution is the act of the sovereign
themselves, unlike other governmental acts, whether it be executive,
legislative, or judicial acts, these are just acts of the representatives.
Relative to this, the case of Van Horne v. Dorrance, which is a landmark case in the US,
involved a parcel of land previously belonging to Indians, and there were two conflicting deeds
disposing the land in question. One deed was executed in Pennsylvania, and the other one
was executed in Connecticut. The land in dispute was located in Pennsylvania, and the
Constitution of Pennsylvania provides that any disposition of these types of land required the
concurrence of the State of Pennsylvania. In this case, the contract executed in Connecticut
was confirmed by the Congress of Connecticut. Thus, the main issue in this case was whether
the confirmation by the Congress of Connecticut of the contract entered into in Connecticut
validates the contract?
- No. Here, the US Supreme Court had the occasion to discuss the meaning of a
Constitution. The US Supreme Court said that:
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- “It is the form of government, delineated by the mighty hand of the
people, in which certain first principles of fundamental laws are
established. The Constitution is certain and fixed; it contains the
permanent will of the people, and is the supreme law of the land; it is
paramount to the power of the Legislature, and can be revoked or altered
only by the authority that made it. The life-giving principle and the death-
doing stroke must proceed from the same hand. What are Legislatures?
Creatures of the Constitution; they owe their existence to the Constitution:
they derive their powers from the Constitution: It is their commission; and
therefore, all their acts must be conformable to it, or else they will be void.”
- “The Constitution is the work or the will of the people themselves in their
original, sovereign, and unlimited capacity. Law is the work or the will of
the Legislature in their derivative and subordinate capacity. The one is the
work of the Creator, and the other of the Creature. The Constitution fixes
limits to the exercise of legislative authority, and prescribes the orbit
within which it must move. In short, gentlemen, the Constitution is the sun
of the political system, around which all Legislative, Executive and Judicial
bodies must revolve. Whatever may be the case in other countries, yet in
this there can be no doubt, that every act of the Legislature, repugnant to
the Constitution, is absolutely void.”
- Under this definition, the Constitution is the center of gravity,
and all governmental acts must revolve around the Constitution.
Any governmental act that does not conform with the
Constitution must be stricken off from the legal system.
If the Constitution is the supreme law of the land and is immutable, can we say then that all
rights emanate from the Constitution, so much so that no right can exist without the
Constitution breathing life to it? Can we say that the Constitution is the source of all rights?
[No]
- In his seminal work titled “Treaties on Constitutional Limitations,” Justice Cooley
raised rhetorical questions. Justice Cooley explained:
- “What is a Constitution, and what are its objects? It is easier to tell what
it is not than what it is. It is not the beginning of a community, nor the
origin of private rights; it is not the fountain of law, nor the incipient state
of government; it is not the cause, but consequence, of personal and
political freedom; it grants no rights to the people, but it is the creature of
their power, the instrument of their convenience.”
- According to Justice Cooley, the Constitution does not create any rights.
The rights preexist even before the Constitution was made.
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- In this regard, our very own Supreme Court in the case of Oposa v. Factoran also
dealt with the same issue.
- In this case, a petition was filed by mostly minors to declare all timber
licensing agreements null and void, premising their cause of action on
Sections 15 and 16 of Article II of the Constitution — the right to health
and the right to a balanced and healthful ecology.
- The public respondent contends that the right to health and
the right to a balanced and healthful ecology, being provided
only under Article II, are not judicially enforceable rights. The
position of the public respondent was that if Sections 15 and 16
had been intended to be judicially enforceable rights, then they
would have been indicated under Article III and not under
Article II.
- The Supreme Court disagreed. The Supreme Court said there
are certain rights that do not need the Constitution, particularly
the right to health and the right to a balanced and healthful
ecology because these are NATURAL RIGHTS inherent in every
human being. Meaning to say, there are certain rights that do
not need the Constitution, particular of which are natural rights
which are inherent in every human being.
In the case of Manila Prince Hotel v. GSIS, the Supreme Court enumerated three purposes of
a Constitution. These purposes are:
1. It prescribes the permanent framework of a system of government;
2. it assigns to the several departments their respective powers and duties; and
3. it establishes certain fixed principles on which the government is founded.
In Van Horne v. Dorrance, the US Supreme Court discussed the concept of PERMANENCE OF
THE CONSTITUTION.
- Under this concept, the US Supreme Court said that “The Constitution of a State is
stable and permanent not to be worked upon by the temper of the times, nor to rise
and fall with the tide of events notwithstanding the competition of opposing
interests, and the violence of contending parties, it remains firm and immovable, as
a mountain amidst the strife of storms, or a rock in the ocean amidst the raging of
the waves.”
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- However, our very own Supreme Court disagreed with this. Our Supreme
Court said that although the Constitution should be stable, it should not
be permanent… the Constitution should not stand still. Thus, the
Constitution must be able to provide for every contingency. The
Constitution must always be relevant.
As an organized or semi-organized political community, how many Constitutions have we had
so far?
- We have had 7 Constitutions so far.
1. BIAK-NA-BATO CONSTITUTION: which was effective November 15, 1897
and established the first revolutionary form of government. This was the
first revolutionary government in Asia.
2. MALOLOS CONSTITUTION: which was effective on January 21, 1899 and
established the first parliamentary form of government with a unicameral
Congress. This was the first democratic government in Asia.
3. THE 1935 CONSTITUTION: which was effective on May 14, 1935.
4. THE 1943 CONSTITUTION: which was established during the Japanese
occupation.
- There was a need to promulgate a Constitution during this time
in order to make the Japanese occupation as a belligerent
occupation, because under the Convention, there were several
requisites that must be present before a military occupation can
be considered a belligerent occupation. The first requisite was
that there must be an established civil government exercising
control and supervision over the armed hostilities; the second
requisite is that there must be a wide-spread occupation of the
territory and that there must be serious and substantial armed
conflicts, the results of which must be uncertain; and lastly, the
third requisite is that there must be a willingness on the part of
the parties to be governed by the articles or the norms of war.
- After the 1943 Constitution, the 1935 Constitution was
reinstated by virtue of the proclamation of General Douglas
MacArthur on October 23, 1944… because immediately after his
return to the Philippines, he declared that all laws, regulations,
and processes in the Philippines as null and void, which, in
effect, nullified the 1943 Constitution.
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- In Co Kim Cham v. Valdez Tan Keh, one of the questions raised
in this case was what gives General MacArthur the power to
invalidate a Constitution? What gives him the power to declare
that all laws in the Philippines, other than those of the
Commonwealth government, are null and void?
- The Supreme Court explained the concept of war.
According to the Supreme Court, armed forces of the
occupying state can impose its will on the occupied
territory, and there is no need for a Constitution nor a
law in order to confirm this power because this is a
necessary consequence of war. In the same manner,
the liberating forces likewise possesses the power to
declare the acts of the occupying state as null and
void. Thus, this is the source of the power of General
MacArthur to declare the 1943 Constitution as null
and void and to reinstate the 1935 Constitution.
5. THE 1973 CONSTITUTION: the ratification of this Constitution was very
controversial because unlike the process mandated by the 1935
Constitution, the proposed 1973 Constitution was submitted to the
people through Citizens Assemblies (Barangay Citizens Assemblies), and
the voting was not done by secret ballot, but rather, it was done by a show
of hands.
- In Javellana v. Executive Secretary, the Supreme Court,
through Chief Justice Concepcion, noted the defects of the
ratification of the Constitution, and one of the questions
decided by the Supreme Court in this case was whether the
ratification of the 1973 Constitution complied with the 1935
Constitution?
- The result of the voting was that 6 of the Justices said
that no it did not comply with the requisites under the
1935 Constitution, 3 Justices said that yes it
substantially complied, and 1 Justice said that he did
not have any basis to form an intelligent decision. If
the majority of the Supreme Court declared that the
ratification did not comply with the requirements
under the 1935 Constitution, then why did the
Supreme Court sustain the constitutionality of the
ratification?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019

- The Supreme Court sustained the the Freedom Constitution, under which it was
constitutionality of the ratification despite provided that governors have the power to appoint
the opposition of the majority of its Justices barangay officials. Prior to the signing of the
because in order to declare an act appointment papers, however, the proposed
unconstitutional, the 1935 Constitution Constitution was already submitted to the people on
requires 2/3 VOTES OF THE MEMBERS of the February 2, 1987 — the date of the plebiscite. But like
Supreme Court. During this time, the any other electoral processes, the result of the
Supreme Court was composed of 10 Justices Plebiscite was only made known on February 11, 1987
with 1 Chief Justice, which means a total of by virtue of Proclamation No. 58. The question in this
8 votes is required in order to declare the case is when did the 1987 Constitution take effect?
ratification of the 1973 Constitution as Did it take effect on the date of the plebiscite (Feb. 2),
unconstitutional. This means, the or on the date that the result of the plebiscite was
ratification of the 1973 Constitution was proclaimed by the President (Feb. 11)?
declared constitutional only by default due
to the failure of the Supreme Court to - The Supreme Court said that the 1987
obtain the necessary votes. This is reason Constitution took effect on February 2, 1987
why in the ponencia of Chief Justice – the date of the plebiscite. Why?
Concepcion, he cannot help but only raise
his personal reservations about the - This is expressly provided for
ratification of the 1973 Constitution, but in under the Constitution itself.
the end, the Supreme Court said that there Under Section 27 of Article XVIII,
should no longer be any obstacles on the the law provides “This
ratification of the 1973 Constitution by Constitution shall take effect
reason of the lack of the required votes to immediately upon its ratification
declare it unconstitutional. by a majority of the votes cast in a
plebiscite held for the purpose and
6. FREEDOM CONSTITUTION: which was effective on March 25, 1986 shall supersede all previous
following the first peaceful revolution. After the success of the Edsa Constitutions.”
Revolution 1, all laws in the Philippines, including the Constitution, were
considered null and void. During this time, there were no laws that were - Thus, it is the
effective except the words of the President. Thus, the Freedom Constitution itself that
Constitution was promulgated by Presidential Proclamation No. 3, which marks the day of its
adopted certain provisions of the 1973 Constitution, and was effective for effectivity.
a period of one year. This leads us to the next question.
- On practical grounds, the
7. THE 1987 CONSTITUTION: Supreme Court likewise ruled in
De Leon v. Esguerra that the
- When did the 1987 Constitution take effect? Constitution is obligatory and
mandatory. Thus, to depend its
- In the case of De Leon v. Esguerra, the exact date of effectivity upon the proclamation
the effectivity of the 1987 Constitution was very of the President, the President
critical. Here, the respondent governor signed the can conveniently delay the
antedated appointment papers of the respondent effectivity of the Constitution by
public officers on February 8, 1987 in accordance with refusing to issue the necessary

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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
proclamation. This is the reason
why in the case of De Leon v.
Esguerra, the Supreme Court was
very emphatic in saying that the
Constitution takes effect on the
date of the plebiscite itself.
Like any other human production, the Constitution lacks perfection and perfectibility. There
may be an instance when a single provision of the Constitution may be interpreted in so many
ways. To address this issue, the Supreme Court laid down RULES IN INTERPRETING DOUBTFUL
PROVISIONS OF THE CONSTITUTION.
- (1) The FIRST RULE, which calls for the determination of whether a constitutional
provision is self-executory or non-self-executory, is provided for by the Supreme
Court in the case of Manila Prince Hotel v. GSIS.
- In this case, respondent GSIS is the owner of all outstanding shares of
stock of Manila Hotel Corporation, and Manila Hotel Corporation owns
the Manila Hotel. Respondent GSIS offered for sale up to 51% of its
outstanding shares of stock in Manila Hotel Corporation through public
bidding. During the public bidding, two entities participated – one was
petitioner Manila Prince Hotel (MPH), which is a Filipino corporation, and
the other was Renong Berhad, a Malaysian firm. Petitioner MPH offered
P41.48 per share, while Renong Berhad offered P44.00 per share. Under
the rules of bidding, the highest bid shall be preferred, but subject to
compliance with certain requirements. However, before the Certificate of
Sale was rewarded to Renong Berhad, petitioner MPH offered to match
the bid of Renong Berhad at P44.00 per share on the basis of the FILIPINO
FIRST POLICY embodied under Paragraph 2, Section 10 of Article XII of the
Constitution, which provides “In the grant of rights, privileges, and
concessions covering the national economy and patrimony, the State shall
give preference to qualified Filipinos.” Despite this, respondent GSIS did
not accept petitioner MPH’s offer since, according to it, the concept of
National Economy and Patrimony does not include shares of stock, and,
more importantly, respondent GSIS argued that the Filipino First Policy is
not a self-executing provision.
- As to the first issue, the Supreme Court said that the concept
of National Economy and Patrimony is not limited only to
forests, rivers, flora, fauna, and other natural resources, but it
also includes buildings. The Supreme Court emphasized that
“when the Constitution speaks of National Patrimony, it refers
not only to the natural resources of the Philippines, as the
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Constitution could have very well used the term ‘natural
resources,’ but also to the CULTRUAL HERITAGE of the Filipinos.”
- In that regard, historical buildings are part of the
National Economy and Patrimony. Similarly,
representation of ownership in buildings considered
as National/Cultural Heritage are likewise part of the
concept of National Economy and Patrimony.
- Having resolved the first issue, the Supreme Court proceeded
with the next issue — what is the nature of the Filipino First
Policy? Is it a self-executing or a non-self-executing provision?
First of all, what is the difference between a self-executing and
a non-self-executing provision?
- The Supreme Court explained that “a provision which
lays down a general principle, such as those found in
Article II of the Constitution, is usually NOT SELF-
EXECUTING. But a provision which is complete in itself
and becomes operative without the aid of
supplementary or enabling legislation, or that which
supplies sufficient rules by which the right it grants
may be enjoyed or protected is SELF-EXECUTING.”
- The Supreme Court added, “Thus, a constitutional
provision is self-executing if the nature and the extent
of the right conferred and the liability imposed are
fixed by the Constitution itself, so that they can be
determined by an examination and construction of its
terms, and there is no language indicating that the
subject is referred to the legislature for action.”
- In conclusion, the Supreme Court said, “In case of
doubt, the Constitution should be considered self-
executing rather than non-self-executing. Unless the
contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective.
These provisions would be subordinated to the will of
the lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed
implementing statute.”
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- A good example of a non-self-executing
provision is that which is found under
Section 26 of Article II, which provides “The
State shall guarantee equal access to
opportunities for public service and prohibit
political dynasties as may be defined by
law.”
- Under this provision, the
Constitution, in no uncertain
language, expressly declares
political dynasties as prohibited.
The Constitution itself declares
political dynasties as prohibited,
but the problem is that the
Constitution grants the Congress
the authority to define what is a
political dynasty. So, unless and
until the Congress enacts the
implementing legislation defining
“political dynasty,” this
constitutional mandate “…would
remain entombed in the cold niche
of the Constitution…” (excerpt
taken from Defensor-Santiago v.
COMELEC).
- This is the risk sought to be
avoided by the Supreme Court in
the case of Manila Prince Hotel v.
GSIS in laying down (2) the
SECOND RULE that in case of
doubt, the doubt shall be resolved
in favor the self-executing
character of a constitutional
provision.
- In case of doubt, the
provisions should be
considered self-
executing; mandatory
rather directory; and
prospective rather than
retroactive.
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- In the case of Francisco v. House of Representatives, the Supreme Court
laid down (3) the THIRD RULE, which calls for the application of SPECIFIC
TOOLS OF CONSTITUTIONAL CONSTRUCTION, which shall only be resorted
to after applying the two rules provided for in the case of Manila Prince
Hotel v. GSIS.
- In Francisco v. House of Representatives, former President
Joseph Estrada filed an impeachment complaint against former
Chief Justice Hilario G. Davide, Jr. and seven Associate Justices
of the Supreme Court for “culpable violation of the Constitution,
betrayal of the public trust and other high crimes.” The
complaint was verified with the resolution of endorsement of
three members of the House of Representatives. This was filed
on June 2, 2003. The impeachment complaint was referred to
the House of Representatives Committee on Justice on August
5, 2003. The Committee on Justice then conducted public
hearings, and on October 13, 2003, the Committee on Justice
ruled that the impeachment complaint was “sufficient in form.”
But several days later, on October 22, 2003, the Committee on
Justice declared that the impeachment complaint was
“insufficient in substance.” On October 23, 2003, however,
another impeachment complaint was filed now by members of
the House of Representatives with a resolution of endorsement
of at least 1/3 of all the members of the House of
Representatives. So, the main issue in this case was whether the
second impeachment complaint is allowed by the Constitution,
in line with the provision under Paragraph 5, Section 3 of Article
XI that “No impeachment proceedings shall be INITIATED
against the same official more than once within a period of one
year.”
- To resolve the controversy, the Supreme Court applied the
three Specific Tools of Constitutional Construction, which must
only be implemented in succession.
- Tool #1, VERBA LEGIS rule.
- This is only an abbreviated term, as the
complete principle is verba legis non est
recedendum, which means “from the plain
language of the law we shall not depart.”
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019

- Wherever possible, the words used in the particular provision and the purpose sought
Constitution must be given their ordinary to be accomplished thereby, in order to
meaning, except where technical terms are construe the whole as to make words
employed. consonant to that reason and calculated to
effect that purpose.”
- Under this tool, doubtful provisions of the
Constitution must be interpreted according - Under this rule, can the courts use
to their ordinary acceptation. secondary or extraneous materials, such as
the deliberations of the Constitutional
- The Supreme Court, citing an Commission, decisions of the Supreme
earlier case, explained that the Court, and other similar materials?
Constitution is not a lawyer’s
document; it must be interpreted - No. Under the second tool, the
according to the consciousness of courts of justice must limit their
ordinary people. judicial gaze within the four
corners of the Constitution. Thus,
- If the verba legis rule failed to elicit the the intent of the framers of the
meaning of the doubtful provision of the Constitution must be interpreted
Constitution, the courts will now use the solely according to the provisions
second tool. of the Constitution.

- Tool #2, RATIO LEGIS EST ANIMA rule. - This means that there
are certain provisions of
- When there is ambiguity, ratio legis est the Constitution which
anima. The words of the Constitution are tools of statutory
should be interpreted in accordance with construction. One
the intent of its framers. example of which is the
Preamble. The
- Citing its earlier ruling in Civil Liberties Preamble is not a formal
Union v. Executive Secretary, the Supreme part of the Constitution
Court declared “A foolproof yardstick in because it is only an
constitutional construction is the intention introduction to the
underlying the provision under 1987 Constitution. The
consideration. Thus, it has been held that Preamble does not
the Court in construing a Constitution should confer any civil or
bear in mind the object sought to be political right. The
accomplished by its adoption, and the evils, Preamble does not
if any, sought to be prevented or remedied. impose any legal
A doubtful provision will be examined in the obligation. However,
light of the history of the times, and the the Preamble tells us
condition and circumstances under which the authors of the
the Constitution was framed. The object is to Constitution, as well as
ascertain the reason which induced the their objectives, goals,
framers of the Constitution to enact the and aspiration. This

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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
gives us the spirit or the
intent of the framers of
the Constitution and
can be a useful tool in
interpreting doubtful
provisions of the
Constitution.
- Again, under the second tool, courts of
justice cannot use secondary or extraneous
materials. Such materials are only available
if all three tools have been exhausted and
have failed in eliciting the meaning and
intent of the doubtful provision of the
Constitution.
- Tool #3, UT MAGIS VALEAT QUAM PEREAT rule.
- Under this rule, the words of the
Constitution should be interpreted as a
whole. So, if a doubtful provision of the
Constitution admits two interpretations —
one of which would nullify other provisions
of the Constitution, and the other would
give effect to all the provisions of the
Constitution — the second approach shall
be used by the court because provisions of
the Constitution shall not be taken in
isolation.
- In other words, the court must
harmonize them, if practicable,
and must lean in favor of a
construction which will render
every word operative, rather than
one which may make the words
idle and nugatory.
- Having said that, the Supreme Court in Francisco v. House of
Representatives defined what is meant by the term
“INITIATE/INITIATED,” in order to determine when an
impeachment proceeding is initiated for purposes of Paragraph
5, Section 3 of Article XI of the Constitution.
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- The Supreme Court said that “To INITIATE, which
comes from the Latin word ‘initium,’ means to begin.
On the other hand, PROCEEDING is a progressive
noun. It has a beginning, a middle, and an end.”
According to the Supreme Court, impeachment
proceedings end upon the transmission of the Articles
of Impeachment to the Senate, while the middle
portion of the impeachment proceedings include any
activity between the initiation and the termination.
So, when do impeachment proceedings begin?
- The Supreme Court said that impeachment
proceedings are not initiated by the mere
filing of a verified impeachment complaint.
Impeachment proceedings start when the
House of Representatives take initial action
on the impeachment complaint. In other
words, an impeachment “…proceeding is
initiated or begins when a verified complaint
is filed and referred to Committee on Justice
for action.”
- To conclude, the Constitution does not
prohibit the filing of multiple impeachment
complaints against the same public official
within a period of one year; what the
Constitution prohibits is the initiation of an
impeachment proceeding against the same
public official more than once within a
period of one year.
- In the later case of Gutierrez v. House of Representatives
Committee on Justice, the Supreme Court gave a very good
analogy on impeachment proceedings.
- In this case, upon the election of President Aquino
and the Congress at that time, members of the House
of Representatives filed an impeachment complaint
against former Ombudsman Ma. Merceditas
Gutierrez. But before the transmittal of the first
impeachment complaint, another impeachment
complaint was filed against her. The two
impeachment complaints were referred to the
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Committee on Justice at the same time. So, the issue
here is whether this is allowed.
- In resolving the issue, the Supreme Court
compared impeachment proceedings to a
candle. According to the Supreme Court, an
impeachment PROCEEDING is like a candle,
while an impeachment COMPLAINT, on the
other hand, is like a matchstick. It was held
that “The Court, of course, does not
downplay the importance of an
impeachment complaint, for it is the
matchstick that kindles the candle of
impeachment proceedings. The filing of an
impeachment complaint is like the lighting
of a matchstick. Lighting the matchstick
alone, however, cannot light up the candle,
unless the lighted matchstick reaches or
torches the candle wick. Referring the
complaint to the proper committee ignites
the impeachment proceeding. With a
simultaneous referral of multiple complaints
filed, more than one lighted matchsticks
light the candle at the same time. What is
important is that there should only be one
candle that is kindled in a year, such that
once the candle starts burning, subsequent
matchsticks can no longer rekindle the
candle.”
- In sum, the filing of an
impeachment complaint does not
start the impeachment
proceeding; the impeachment
proceeding starts upon the
referral of the impeachment
complaint to the Committee on
Justice. The Supreme Court said
that lighting a candle can be done
in so many ways…it can be lit with
just one matchstick, or it can be lit
by two or more matchsticks as
long as all matchsticks reach the
candle at the same time. Thus, an
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impeachment proceeding can be
initiated by one or more
impeachment complaints as long
as all impeachment complaints
reach the Committee on Justice at
the same time.
ART. XVII — AMENDMENTS AND REVISIONS
Article XVII of the Constitution provides for two formal changes that can be introduced to the
Constitution — Amendment and Revision.
Step #1 of the Amendment/Revision Process — PROPOSAL
Why is it necessary to determine the character of the change, whether it be an amendment
or revision, sought by the proposal?
- It is necessary to determine the character of the proposed change because
different procedures apply, and Initiative by the people can only propose
amendments and not revisions.
What is the difference between Amendment and Revision?
- In the cases of Lambino v. COMELEC and Defensor-Santiago v. COMELEC, the
Supreme Court said that an Amendment is just a piecemeal isolated change
intended to delete, add, or improve a provision without altering the basic principle
involved. Revision, on the other hand, is a complete revamp or rewriting of the
Constitution or a change of a basic principle underlying the Constitution.
- In Lambino v. COMELEC, there were two proposals — the first proposal
was to shift from Presidential to Parliamentary, and the second proposal
was to convert the Congress from two houses into one (Bicameral to
Unicameral). The Congress needed to determine what was the nature of
the two proposals. In order to determine the nature of the two proposals,
the Supreme Court applied the TWO-PART TEST of the State of California,
from which the system of Initiative under Article XVII was copied from.
The Two-Part Test involved the application of the Quantitative Test and
the Qualitative Test.
- The (1) Quantitative Test asks whether the proposed changes
are so extensive in its provisions as to change directly the
substantial entirety of the Constitution by the deletion or
alteration of numerous existing provisions. The court examines
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
only the number of provisions affected and does not consider
the degree of the chance.
-If the number of provisions affected by the proposal
is substantial, then the proposal is in the character of
a revision; if it is not substantial, then it is only an
amendment.
- The (2) Qualitative Test inquires into the qualitative effects of
the proposed change in the Constitution. The main inquiry is
whether the change will accomplish such far reaching changes
in the nature of our basic governmental plan as to amount to a
revision. Whether there is an alteration in the structure of
government is a proper subject of inquiry. Thus, a change in the
nature of the basic governmental plan includes change in its
fundamental framework or the fundamental powers of its
branches. A change in the nature of the basic governmental plan
also includes changes that jeopardize the traditional form of
government and the system of check and balances.
- The courts will look into the substantive effect of the
proposal regardless of the number of provisions
affected. If the proposal will change the general
governmental structure or the general governmental
plan, then the proposal is in the nature of a revision.
Likewise, if the proposal will modify a principle
underlying the Constitution, then the proposal is also
a revision; if otherwise, then it is only an amendment.
- Now let’s apply the Two-Part Test to the two proposals in
Lambino v. COMELEC.
- Do the two proposals change the general
governmental plan?
- Definitely. Under the Qualitative Test, the
proposals were considered as revisions
since shifting from Presidential to
Parliamentary will definitely change the
general governmental structure because
the three branches of government will be
converted into one. This shift will also
modify a general principle underlying the
Constitution because in a Parliamentary
Page 10 of 152
form of government, the Parliament
exercises both executive and legislative
powers which, in effect, abrogates the
Doctrine of Separation of Powers. On the
other hand, the merger of the two houses of
Congress will also change the general
governmental structure and will modify the
principle of Checks and Balances. Thus,
qualitatively, the two proposals were
considered as revisions.
- How about quantitatively? Do the two proposals
affect a substantial number of provisions? This was an
issue sought to be resolved by the Supreme Court
because Lambino argued that the two proposals will
only affect Articles VI and VII.
- The Supreme Court did not agree with
Lambino. The Supreme Court said that there
are other provisions of the Constitution that
will ultimately be affected by the two
proposals. All in all, the Supreme Court
counted a total of 105 provisions of the
Constitution that would be affected by the
two proposals. 105 is definitely a substantial
number.
- Therefore, qualitatively and quantitatively, the two
proposals of the Lambino Group were considered as
revisions.
Under Article XVII of the Constitution, there are only two modes of proposing revisions to the
Constitution, but there are three modes of proposing amendments to the Constitution.
Can the Congress amend or revise the Constitution?
- No. The Congress cannot amend or revise the Constitution. The Congress can only
PROPOSE amendments or revisions to the Constitution, because the process for
amendment and revision involves two steps — PROPOSAL and RATIFICATION. The
Congress as an institution can only do the first one (proposal), but not the second
one (ratification). Of course, members of Congress can participate as citizens, but
not as an institution.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Under Section 1 of Article XVII, “Any amendment to, or revision of this Constitution may be
proposed by: (1) the Congress, upon a vote of 3/4 of all its Members; OR (2) a Constitutional
Convention.”
- Take note of the use of the disjunctive word “OR.” The two modes of proposing
amendments or revisions to the Constitution are separated by the word “OR.”
- In the case of Gonzales v. COMELEC, the petitioner challenged the resolutions of
both houses of Congress because in these resolutions, the Congress sought to
exercise both modes under Section 1 of Article XVII — to propose changes to the
Constitution, AND at the same time, to call a Constitutional Convention.
- In this case, three Resolutions were passed by both houses of Congress
jointly (Resolution of Both Houses = RBH). RBH No. 1 was the proposal to
change the 1935 Constitution by increasing the composition of the House
of Representatives from 120 to 180. RBH No. 2 was a call on the
Constitutional Convention. RBH No. 3 was also a proposal to change the
1935 Constitution by allowing the members of the Congress to run for the
office of delegates without forfeiting their seats, because like the 1987
Constitution, the members of Congress under the 1935 Constitution, are
disqualified from holding any other office or employment in the
government. Thus, they sought to remove this disqualification.
- The issue here is whether the Congress can exercise the two powers
under Section 1 of Article XVII at the same time? Can the Congress exercise
the power to directly propose amendments or revisions, AND at the same
time call a Constitutional Convention DESPITE the disjunctive word “OR”?
- Yes. The Supreme Court disposed with a very important
constitutional issue by simply saying that “The term “OR” has,
oftentimes, been held to mean “AND,” or vice-versa, when the
spirit or context of the law warrants it.” This is how the Supreme
Court resolved the issue. The Supreme Court said that in the
absence of an express constitutional provision, “OR” means
“AND.” Therefore, the Congress can directly propose
amendments or revisions to the Constitution AND at the same
time, call for a Constitutional Convention.
What is the required vote to directly propose amendments or revisions to the Constitution?
- The required vote is 3/4 OF ALL ITS MEMBERS. It must be emphasized that the
phrase “OF ALL ITS MEMBERS / OF ALL THE MEMBERS OF CONGRESS” is different
from “OF THE CONGRESS.”
Page 11 of 152
- Let’s take the case of Avelino v. Cuenco in order to determine the
difference between the phrases. In this case, there was a Senate Session.
Prior to this Session, Sen. Tañada registered his right to deliver a privileged
speech, the subject of which was to discuss the abuses and violations of
law by then Senate President Avelino. On the day of the Session, the
Senate President and his group tried to prevent Sen. Tañada from
delivering his privileged speech by the following means: (1) Questions
were raised about the quorum; (2) when Sen. Tañada moved for the
dispensing of the minutes, it was overruled; (3) and the minutes of the
previous meeting were read slowly (almost 1 word per minute). All of
these measures were done in order to prevent Sen. Tañada from
delivering his privileged speech. During this time, there were 22 Senators
present, 2 were absent with Sen. Vicente Sotto in the hospital and Sen.
Cuenco who was in the USA. When Sen. Tañada was about to deliver his
privileged speech, of the 22 Senators, 10 walked out, which means only
12 remained, and the 12 continued to transact business and they declared
all seats vacant. The issue in this case is whether the 12 remaining
Senators constitute a quorum to transact business.
- The Supreme Court said that the quorum to transact business
is the MAJORITY OF THE HOUSE, as distinguished from
MAJORITY OF ALL THE MEMBERS OF THE HOUSE. The Supreme
Court said that “majority of all the members of the House” is
different from “majority of the House.” The two terms are
different. One of these two terms is fixed, and one is variable.
One is bigger, and the other is smaller. So, which of the two
terms is smaller? Bigger? Variable? Fixed?
- The Supreme Court said the fixed and the bigger
number is “MAJORITY OF ALL THE MEMBERS OF THE
HOUSE,” which means that the phrase “MAJORITY OF
THE HOUSE” to constitute a quorum is variable and it
is the smaller number.
- In the case of Avelino v. Cuenco, the Supreme Court said that 12 is a
quorum of not 22, but of 23. Why? The Supreme Court said that in
determining the quorum, all the members of the House who are within
the coercive jurisdiction of the House, shall be counted. Since there was 1
Senator absent within the Philippines and 1 Senator absent outside the
Philippines, the basis should be 23, not 24, because quorum is just
“MAJORITY OF THE HOUSE,” as distinguished from “majority of all the
members of the House.”
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- To better understand this, let’s distinguish Paragraphs 1 and 2 of Section 16 of
Article VI.
- Paragraph 1 of Section 16 of Article VI deals with the election of the
Senate President and the Speaker, whereas Paragraph 2 deals with
quorum.
- Take note of the difference. To elect a Senate President and Speaker, the
Senate needs a “MAJORITY VOTE OF ALL MEMBERS OF THE SENATE,” but
to constitute a quorum, the Constitution only requires a “MAJORITY OF
EACH HOUSE.”
- In 2017 we only had 23 Senators, because of the appointment of Sen.
Cayetano as Secretary of Department of Foreign Affairs. Supposing this
23-man Senate is about to determine quorum, what is the required vote?
Is it 1/2 plus 1 of 23 OR 1/2 plus 1 of 24?
- To constitute a quorum, the Senate only needs 1/2 plus 1 of
23, because the Constitution only requires a “majority vote of
each House.” But what about the election of Senate President?
1/2 plus 1 of 24, because the Constitution requires “majority of
all the members of the Senate.”
We now go back to the 3/4 vote requirement under Section 1 of Article XVII. The 3/4 vote
required in order to propose amendments or revisions to the Constitution insofar as the
Senate is concerned, which consists of 24 Senators, is a vote of 3/4 of 24. Similarly, insofar as
the House of Representatives is concerned, which consists of 304 Representatives, is a vote
of 3/4 of 304.
The problem under Section 1 of Article XVII is the manner of voting between the Senate and
the House of Representatives. Is it joint, or is it separate?
- There was one position that provisions of the Constitution should be interpreted
according to the light of the circumstances at the time that it was promulgated. Also,
under statutory rules of construction, if a new law was copied from an old law, but
the new law did not copy everything, the presumption is that the new law is
intended to be applied differently for the reason that if it was to be applied similarly,
the new law could have just copied everything.
- Section 1 of Article XVII of the 1987 Constitution was copied under the 1935
Constitution, particularly Article XV. But Article XV of the 1935 Constitution was very
specific because it tells how the meeting should be held and how the voting should
be conducted. Under Article XV of the 1935 Constitution, “The Congress in joint
session assembled, by a vote of three-fourths of all the Members of the Senate and
Page 12 of 152
of the House of Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose.” Can we say now that there is no
accident in the Constitution? Can we say that the absence of the phrase “voting
separately” was intentional, which means that the Constitutional Commission
intended the voting to be joint? In other words, it would mean 24 (Senators) plus
304 (Representatives), and 3/4 of the sum. So, which means that even if the 24
Senators do not want to propose amendments to the Constitution, they can be
overruled by the number of the members of the House of Representatives. Is this
the correct interpretation? [No]
- Another basis for pushing for a joint voting is that when the Congress proposes
amendments or revisions to the Constitution, the Congress is not acting as a
Legislative Body; it is acting as a Constituent Assembly. Since the Congress is acting
as a Constituent Assembly, one vote of a Senator should also be equivalent to one
vote of a member of the House of Representatives, in order to support the joint
voting. On the contrary, if the voting is separate, one vote of a member of the Senate
should not be equivalent to one vote of a member of the House of Representatives,
but rather, the vote of a member of the Senate should have a higher value than the
vote of a member of the House of Representatives. This is the effect of separate
voting. But since they are acting as a Constituent Assembly, one vote of a member
of the Senate should be equivalent to one vote of a members of the House of
Representatives.
- Can we say now that the manner of voting should be joint because the Constitution
did not copy everything from the 1935 Constitution and because one vote of a
Senator should be equivalent to one vote of a member of the House of
Representatives?
- The answer is no. The manner of voting should still be SEPARATE.
- Again, in interpreting doubtful provisions of the Constitution, we have
learned earlier that there are three Specific Tools of Constitutional
Construction:
1. VERBA LEGIS — from the language of the law, we shall not
depart. Wherever possible, the words used in the Constitution
must be given their ordinary meaning except where technical
terms are employed.
2. RATIO LEGIS EST ANIMA — the words of the Constitution
should be interpreted in accordance with the intent of its
framers.
3. UT MAGIS VALEAT QUAM PEREAT — the words of the
Constitution should be interpreted as a whole.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The first two tools cannot be applied since we cannot know the meaning
of the manner of voting by just reading the Constitution. We cannot
determine how the Congress should vote. Nevertheless, we can apply the
third tool.
- Under the third tool, ut magis valeat quam pereat, a doubtful provision
of the Constitution shall be interpreted in harmony with other provisions
of the Constitution.
- Sections 1 and 3 of Art. XVII can be interpreted in two ways —
the manner of voting under these two provisions can be
interpreted either as voting jointly or as voting separately.
- If we interpret Sections 1 and 3 to mean voting jointly, will
there be any other provisions of the Constitution that will be
rendered nugatory or ineffective?
- The answer is yes, the provision under Section 1 of
Article VI which calls for the creation of two houses of
Congress under the Principle of Checks and Balances
will necessarily be affected if voting would be done
jointly. So, which means that the Constitution
definitely intended for one house to check on the
other house.
- If we interpret Sections 1 and 3 to mean voting separately, will
it harmonize the entire Constitution?
- The answer is yes. Therefore, this is the
interpretation that should be given to Sections 1 and
3 of Article XVII. It should be done by means of
VOTING SEPARATELY.
Can the Congress, acting as a Constituent Assembly, provide for the implementing legislation
of the call of the Constitutional Convention?
- The answer is yes. This question was answered by the Supreme Court in the cases
of Imbong v. Ferrer and Gonzales v. COMELEC.
- Remember in Gonzales v. COMELEC, there were three Resolutions — RBH No. 1,
RBH No. 2, and RBH No. 3. RBH Nos. 1 and 3 were submitted to the people for the
ratification but they were rejected. Thus, the only choice left for the Congress by
reason of the failed ratification was to push for a Constitutional Convention. Aside
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RBH No. 2, the Congress acting as a Constituent Assembly also passed RBH No. 4,
which provided for the implementing details of the Constitutional Convention
including therein the number of delegates, the qualifications for the delegates, and
the manner of apportionment of congressional districts. One issue in this case was
whether the Congress, acting as a Constituent Assembly, can provide the
implementing legislation of the call of the Constitutional Convention?
- The Supreme Court said yes, the Congress, acting as a Constituent
Assembly can provide for the implementing legislation of the call of the
Constitutional Convention on the basis of the DOCTRINE OF NECESSARY
IMPLICATION.
- Under the Doctrine of Necessary Implication, the grant of an
express power carries with it ex rei necessitate, or by necessary
implication, all other necessary powers in order to implement
the expressed power.
But can the Congress, acting as a Legislative Body, provide the implementing details of the
Constitutional Convention?
- The answer is also yes. The power to provide implementing details of the
Constitutional Convention is not exclusive to the Congress acting as a Constituent
Assembly. The power to provide for the implementing details is essentially
legislative in character and, therefore, it is inherent in Congress.
Then what is the difference between passing implementing legislation by Congress acting as
a Constituent Assembly and that by acting as a Legislative Body?
- CONGRESS ACTING AS A CONSTITUENT ASSEMBLY does not the approval of the
President; mere resolutions will do as long as it passes the 3/4 vote of all its
Members.
- CONGRESS ACTING AS A LEGISLATIVE BODY, on the other hand, requires the
approval of the President as provided for under Section 27 of Article VI of the
Constitution.
What is the difference between Constituent Power and Legislative Power?
- Constituent Power is the power to formulate a Constitution or to propose
amendments or revisions of the Constitution, and to ratify such proposal. Legislative
Power is the power to pass, repeal or amend ordinary laws or statutes, as opposed
to organic laws.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Constituent Power is exercised by Congress by special constitutional conferment,
by a Constitutional Convention or Commission, by the people through initiative and
referendum, and ultimately by sovereign electorate. Legislative Power is an ordinary
Power of Congress and of the people, also through initiative and referendum.
- The exercise of Constituent Power does not need the approval of the President,
whereas the exercise of Legislative Power ordinarily requires the approval of the
President, except when done by people through initiative and referendum.
What is a Constitutional Convention?
- A Constitutional Convention is a body separate and distinct from the Congress
acting as a Constituent Assembly. Do not be mistaken that a Constitutional
Convention is also the Congress. A Constitutional Convention is a body separate and
distinct from the Congress. Members of the Constitutional Convention are also
elected, but unlike the Congress, the term of office of the members of the
Constitutional Convention is either fixed on time or fixed on purpose.
- Like the Congress, a Constitutional Convention is also a collegial body, since it
consists of several delegates. What is the required vote for the Constitutional
Convention to approve a proposal? Since, before the proposal will be submitted to
the people for their ratification, the Constitutional Convention itself must first
approve the proposal. So, supposing the Constitutional Convention consists of 100
delegates, what is the required vote of the 100 delegates in order for the proposal
to be deemed approved?
- This question was answered by the Supreme Court in the case of Occena
v. COMELEC. The Supreme Court said ONLY MAJORITY OF THE MEMBERS
OF THE CONSTITUTIONAL CONVENTION is needed to approve a proposal.
Under Section 3 of Article XVII, there are two modes of calling a Constitutional Convention:
1. The Congress may, by a vote of 2/3 of all its Members, directly call for a
Constitutional Convention; or
2. The Congress, by a majority vote of all its Members, submit to the
people/electorate the question of calling a Constitutional Convention.
Section 2 of Article XVII is a new mode of proposing changes to the Constitution. The system
of Initiative to propose amendments to the Constitution was first implemented under the
1987 Constitution. Thus, can we say that Section 2 of Article XVII gives the people the power
to propose amendments to the Constitution?
Page 14 of 152
- The answer is no. Section 2 of Article XVII did not give the people a power, but
rather it limits the power of the people. The power to change the Constitution is
inherent in the people because they are the source of sovereignty itself, and the
essence of sovereignty is the power to do anything without accountability.
Therefore, even without Section 2 of Article XVII, the people can change their
Constitution. Despite this, however, Section 2 of Article XVII limits the power of the
people to change their Constitution by ONLY PROPOSING AMENDMENTS to the
Constitution.
The essence of amendments directly proposed by the people through Initiative upon a
petition is that the entire proposal on its face is a petition of the people. Thus, two essential
elements must be present:
1. The people must author and sign the entire proposal; no agent or
representative can sign in their behalf; and
2. As an Initiative upon a petition, the proposal must be embodied in the
petition.
- The rationale for these requisites it that the signature requirement would be
meaningless if the person supplying the signature has not first seen what it is that
he is signing, and more importantly, a loose interpretation of the subscription
requirement would pose a significant potential for fraud. In Lambino v. COMELEC,
the great majority of the 6.3 million people who signed the signature sheets did not
see the full text of the proposed changes before signing; they were not apprised of
the nature and effect of the proposed amendments. Failure to comply with these
requirements was fatal to the validity of the Initiative petition.
In addition to the aforementioned requisites, there are constitutional requirements for a valid
exercise of Initiative to propose amendments to the Constitution, namely:
1. The petition must be signed by at least 12% of the total number of registered
voters, of which every legislative district must be represented by at least 3% of the
registered voters therein.
2. There must be an implementing legislation.
- This is because the second paragraph of Section 2 of Article XVII expressly
provides that “the Congress shall provide for the implementation of the
exercise of this right.”
Do we have a sufficient enabling legislation today?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The answer is yes, by way of R.A. 6735, otherwise known as “The Initiative and
Referendum Act.”
- While in the case of Defensor-Santiago v. COMELEC, the Supreme Court
categorically declared R.A. 6735 as insufficient in order to implement the
right of Initiative to propose amendments to the Constitution, in the
Resolution of the Supreme Court in Lambino v. COMELEC, the Supreme
Court noted that 10 Justices of the Supreme Court in their separate
concurring opinions voted R.A. 6735 as sufficient. While in the body of the
majority decision, the ponencia no longer tackled the sufficiency of R.A.
6735 because in the majority opinion the Supreme Court said that there
was no need to revisit the Defensor-Santiago ruling since the question can
be resolved merely by determining the nature of the proposal — whether
it is an amendment or revision. Therefore, since it has already declared
that it was a revision, there was no need to determine whether R.A. 6735
is sufficient or insufficient. Nevertheless, in the Resolution, the Supreme
Court said 10 Justices already voted that R.A. 6735 is a sufficient law. This
means that today, a citizen of the Philippines can exercise the right of
Initiative to propose amendments to the Constitution under R.A. 6735.
Does the President have the power to propose amendments or revisions to the Constitution?
[No]
- In Sanidad v. COMELEC, President Marcos proposed changes to the 1973
Constitution. The Supreme Court sustained the authority of President Marcos to
exercise the power to propose changes to the 1973 Constitution. Under the 1973
Constitution, legislative powers rest in the Interim National Assembly during a
period of transition. The power to propose amendments or revisions to the
Constitution also rests in the Regular National Assembly during a period of
normalcy. However, the 1973 Constitution vests in the President the power to call
or convene the Interim National Assembly. In other words, if the President does not
call for the Interim National Assembly, then they cannot discharge their power.
- In this case, instead of convening the Interim National Assembly, President Marcos
exercised the legislative powers of the Interim National Assembly. Furthermore,
instead of convening the Interim National Assembly, President Marcos exercised the
power of the Interim National Assembly to propose amendments to the
Constitution.
- The Supreme Court held that the President can do that because the
power to propose amendments or revisions to the Constitution is adjunct
to the legislative powers of the Interim National Assembly. Thus, since the
President is already discharging the legislative power of the Interim
National Assembly, then with more reason he could discharge the power
Page 15 of 152
of the Interim National Assembly to propose amendments to the
Constitution.
- However, the ruling of the Supreme Court in this case saying that the
power to propose amendments is an adjunct to the legislative powers of
the Interim National Assembly should only be taken within the factual
circumstances of the case. This case cannot be taken as a judicial
precedent under the doctrine of stare decisis because during this time,
there were only two operating departments — the Office of the President,
which discharges legislative and executive powers, and the Supreme
Court. By reason of this, the Supreme Court held that the power to
propose changes to the Constitution is definitely alien to the judicial
powers exercised by them and, thus, only one other department can
exercise the power to propose changes to the Constitution — the Office
of the President. Again, by default, the President was only given the power
to propose amendments to the Constitution just because there were no
other departments existing at that time that could discharge such power.
Therefore, the Supreme Court said that the exigencies of the time
required the President to act because if the President walked away from
the responsibility of proposing changes to the Constitution, then he would
do injustice to the Filipino people. The Supreme Court explained “With the
Interim National Assembly not convened and only the President and the
Supreme Court in Operation, the urge of absolute necessity renders it
imperative upon the President to act as agent for and in behalf of the
people to propose amendments to the Constitution.”
- Again, it must be emphasized that the ruling in Sanidad v. COMELEC does
not establish a new and controlling doctrine. Gonzales v. COMELEC
remains to be the controlling doctrine that the power to propose
amendments or revisions to the Constitution is not inherent in Congress;
it is a constituent power that can only be exercised by Congress upon an
express provision of the Constitution.
Can the President guarantee that needed changes to the Constitution will be implemented?
[No]
- In the case of Province of North Cotabato v. Gov. of the RP Peace Panel on
Ancestral Domain, under the MOA-AD, the government panel committed that
changes to the 1973 Constitution shall be implemented in order for the provisions
of the MOA-AD to be given effect. So, does the President have the power to
guarantee changes to the Constitution?
- The Supreme Court said no, the President has no power to propose
changes to the Constitution, and with more reason, the President does
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
not have the power to guarantee that changes to the Constitution shall be
implemented. However, the President can participate and recommend to
the Congress the needed changes to be implemented in the Constitution,
as long as it is still incumbent upon the Congress whether to adopt or
reject the recommendations of the President.
- Similarly, while the President, as a public officer, cannot exercise the
right of Initiative since it must be exercised directly by the people, the
President can nevertheless likewise suggest to the people the needed
changes to the Constitution as long as the participation of the Office of
the President shall cease upon the suggestion/recommendation, which
means that the President cannot set aside a budget for the gathering of
signatures because such would then be an interference on the Initiative
of the people on the Constitution, which was prohibited by the Supreme
Court in the case of Lambino v. COMELEC.
What is the status of the 2018 Consultative Committee that was established by President
Duterte in order to study and recommend the needed changes to the 1987 Constitution? Is it
constitutional or unconstitutional?
- First, does the President have the power to create committees? Second, is the
power of the 2018 Consultative Committee to study and recommend the needed
changes to the 1987 Constitution constitutional?
- As to the first question, this issue was resolved by the Supreme Court in
the case of Biraogo v. The Philippine Truth Commission (PTC).
- In this case, immediately upon his election, President Aquino
issued Executive Order No. 1, which established the Philippine
Truth Commission (PTC) in order to investigate violations of law
of the immediately preceding administration. As to the power
of the President, the Supreme Court said that the power to
create the Committee rests on the Take Care Power of the
President under Section 17 of Article VII of the Constitution,
which provides that “He shall ensure that the laws be faithfully
executed.” Thus, the power of the President to ensure that laws
are faithfully executed give him the authority to create fact-
finding committees and ad hoc committees to study the
implementation of the law, and to that we may also include the
study of the Constitution.
- As to the second question, the answer is yes, the power of the 2018
Consultative Committee to study and recommend the needed changes to
the Constitution is constitutional as long as the work of the Consultative
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Committee is only recommendatory and not binding upon the Congress.
In other words, the Congress can still adopt or reject the proposals of the
Consultative Committee.
Can proposals be judicially reviewed?
- The answer depends on whether it is the substance or the manner of making the
proposal that is sought to be reviewed.
- The SUBSTANCE of the proposals is not subject to judicial review since
what to propose is left to the wisdom of the Constituent Assembly.
- However, the MANNER of making the proposal is subject to judicial
review. This is because a Constituent Assembly owes its existence and
derives all its authority and power from the Constitution. Hence, whether
or not it has acted according to the Constitution must always be a matter
of judicial cognizance.
Step #2 of the Amendment/Revision process — RATIFICATION
How are proposed changes (1st step) to the Constitution, whether amendments or revisions,
ratified?
- BY A MAJORITY OF THE VOTES CAST IN A PLEBISCITE.
- Under Paragraph 1, Section 4 of Article XVII, “Any amendment to, or
revision of, this Constitution under Section 1 hereof shall be valid when
ratified BY A MAJORITY OF THE VOTES CAST IN A PLEBISCITE which shall
be held not earlier than 60 days nor later than 90 days after the approval
of such amendment or revision.”
- Under Paragraph 2 of the same provision, “Any amendment under
Section 2 hereof shall be valid and ratified BY A MAJORITY OF THE VOTES
CAST IN A PLEBESCITE which shall be held not earlier than 60 days nor later
than 90 days after the certification by the COMELEC of the sufficiency of
the petition.”
What is a general election?
- A general election, as distinguished from a special election, is an electoral process
whereby the people elect their representatives.
Can the proposed changes to the Constitution be submitted to the people for their ratification
simultaneously with a general election? [Yes]
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- This question was answered by the Supreme Court in the case of Gonzales v.
COMELEC. In this case, the Supreme Court said yes, the proposed changes to the
Constitution can be submitted to the people for their ratification simultaneously
with a general election. Why?
- This case was decided under the 1935 Constitution, and under Art. XV
thereof, it was expressly provided that “Such amendments shall be valid
as part of this Constitution when approved by a majority of the votes cast
at an ELECTION at which the amendment are submitted to the people for
their ratification.” On this note, the Supreme Court said that the 1935
Constitution used the word “election,” and an election can either be
general or special. Therefore, since the 1935 Constitution does not qualify,
nor should we, said the Supreme Court.
- Now, is this doctrine still applicable under the 1987 Constitution since it
still does not qualify despite it using the word “plebiscite” instead of the
word “election”? The 1987 Constitution does not use the word “election,”
but rather it uses the word “plebiscite.” Plebiscite is not a general election;
it is definitely a special election. So, can we say now that the 1987
Constitution makes a distinction?
- The word “plebiscite” under Article XVII should be interpreted
to mean a PROCESS. It is a process whereby a question is
submitted to the people for their approval or rejection. The
word “plebiscite” under Section 4 of Article XVII does not refer
to a day, but rather to a process. The day of the holding of that
process should be held not earlier than 60 days but not later
than 90 days after the approval of the amendment or revision
proposed under Section 1 or after the certification by the
COMELEC of the sufficiency of the petition under Section 2.
Since it refers to a process and not to a day, there can be two
separate processes held in one day. So, in one day, there could
be a general election and a special election, which is the
plebiscite. In such a case, each registered voter will receive two
ballots — one for the selection of their representatives, and
another for the ratification of the Constitution. This is a
plebiscite held simultaneously with a general election on the
same day.
Can the Constitutional Convention or the Congress acting as a Constituent Assembly submit
to the people the proposed changes to the Constitution ahead of other proposals? Can there
be a piecemeal submission?
Page 17 of 152
- In the case of Tolentino v. COMELEC, the Constitutional Convention approved
Organic Resolution No. 1 lowering the voting age from 21 to 18. Immediately upon
the approval of Organic Resolution No. 1, the Constitutional Convention submitted
the Organic Resolution No. 1 to the President with the request that the President
shall submit it to the COMELEC so that it can be submitted to the people for their
ratification in the upcoming election. The question in this case is whether the
Constitutional Convention can make a piecemeal submission?
- The Supreme Court said no, and it applied the DOCTRINE OF PROPER
SUBMISSION.
- Under the Doctrine of Proper Submission, all the proposed
changes to the Constitution, whether they be amendments or
revisions, should be submitted all at once to the people in one
election in order to give the people a proper frame of mind in
making an intelligent decision. Another aspect of the Doctrine
of Proper Submission is that the people should be given
sufficient time to study the proposal. This doctrine is already
constitutionalized because Section 4 of Article XVII specifies the
date for the submission to the people — “not earlier than 60
days nor later than 90 days...”
Supposing the Constitutional Convention submits all the proposed amendments or revisions
to the Constitution to the people all at once at a plebiscite for such purpose. Can the people
choose which proposals to reject and which proposals to ratify? Can the people partially
approve or partially reject the proposals?
- It depends on the nature of the proposal. Remember, there are two kinds of formal
changes to the Constitution — either an amendment or a revision. The difference is
that an amendment is a piecemeal isolated change, while a revision is a complete
overhaul of the Constitution. Thus, if the proposal is just an amendment, which is
just an piecemeal isolated change to the Constitution, the people can choose which
proposals to ratify; if, on the other hand, the proposal is a revision, then the people
can only accept all or reject all proposals. There is no partial ratification with regards
to revisions, since in revisions, the rejection of one has an effect on the other
proposals.
Who has the power to submit the proposal to the people for ratification?
- This was answered in Tolentino v. COMELEC. Remember in this case, Organic
Resolution No. 1 was submitted to the President in order for him to submit it to the
COMELEC, which in turn, would submit it to the people for the ratification. The
Supreme Court raised the question of who has the power to submit the proposal to
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
the people for ratification? Is it the Constitutional Convention? Is it the President?
Is it the COMELEC?
- While the Supreme Court did not answer this question because during
this time, time was of the essence since there was an upcoming election
and the Supreme Court had to determine whether Organic Resolution No.
1 could be submitted in that election, we should nevertheless deliberate
on who has this power.
- Under the law, the proposal should be submitted to the people
in a plebiscite, which is a special election. Plebiscite, as an
electoral process, requires a budget. Now, who has the power
to schedule an election? Who has the power to appropriate
funds for an election?
- Only the Congress. Therefore, since it is the Congress
who has the power to set the date of the plebiscite
and the power to appropriate funds for the plebiscite,
then the Congress necessarily has the power to
submit the proposals to the people for ratification.
THE CONCEPT OF THE STATE
What is a State?
- According to Dr. James Garner, “A State is a community of persons, more or less
numerous, permanently occupying a definite portion of territory, independent of
external control, and possessing a government to which a great body of inhabitants
render habitual obedience.”
- According to Dean Rosco Pound, a State is “…a politically organized sovereign
community, independent of outside control, bound by the ties of nationhood, legally
supreme within its authority, functioning through its government under the rule of
law.”
- In the case of CIR v. Campos Rueda, the Supreme Court citing Adhémar Esmein
explained that a State is “the juridical personification of a nation.”
- Is a State the same as a Nation?
- No. A State is a political concept, while Nation is a racial or ethnic
concept.
Page 18 of 152
- Justice Malcolm defines Nation as “a people bound together by common
attractions and repulsions into a living organism possessed of a common
pulse, a common intelligence and inspiration, and destined apparently to
have a common history and a common fate.” Here, Justice Malcolm was
referring to a political entity, not to a racial or ethnic entity because in a
State, the tie that binds the people to form the community is their political
goals. In a Nation, the tie that binds the people as a group is their common
ancestry and common heritage.
Is a State the same as a Foreign Country? [No]
- In the case of CIR v. Campos Rueda, the Supreme Court said that a State is different
from a Foreign Country. A State, in order to be considered as a political entity, must
have all the four essential elements under the 1933 Montevideo Convention.
However, a Foreign Country can be considered as an entity even if it does not have
all the essential elements of a State.
- Under the 1933 Montevideo Convention, there are four essential elements of a
state: (1) a permanent population/people; (2) a defined territory; (3) government;
and (4) capacity to enter into foreign relations/sovereignty.
1. PEOPLE
The element of People refers to the inhabitants of the State whose number is capable for self-
sufficiency and self-defense. They must be capable of sustaining their existence. People, as an
element of a State, must come from both sexes for perpetuity. They must be numerous
enough to defend themselves and low enough to be governable.
In the case of Sanidad v. COMELEC, the Supreme Court said that the element of People refers
to the particular organized group of individuals in which, according to the Constitution, the
highest power exists. Therefore, insofar as the Philippines State is concerned, People refers to
the citizens of the Philippines.
- If you look at Executive Order No. 292, otherwise known as the Administrative
Code, Chapter 2 therein is subtitled “The People,” and the definition of People under
this chapter is the same as the definition of “Citizens of the Philippines” under Article
IV of the Constitution. Therefore, the People of the Philippines comprising the
Philippine State are the citizens of the Philippines.
2. TERRITORY
Article 1 of the 1987 Constitution defines the National Territory of the Philippines, and under
this definition, there are two groups of territories belonging to the Philippines, namely: (1) the
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Philippine Archipelago; and (2) all other territories over which the Philippines has sovereignty
or jurisdiction.
- This means that a territory outside the Philippine Archipelago can still be
considered as part of our National Territory as long as the Philippines exercises
either sovereignty or jurisdiction over such territory.
Compared to 1935 Constitution, the definition of National Territory under the 1987
Constitution is very general because under the 1935 Constitution, the definition is very
specific, with reference to specific treatises, namely:
1. The Treaty of Paris; December 10, 1898 — covers cession of the PH Islands by
Spain to the USA.
2. The Treaty of Washington; November 7, 1900 — covers Cagayan, Sulu and Sibuto.
3. The Treaty between the Great Britain and the US 1930 — covers Turtle and
Mangsee Island.
4. 1935 Constitution — covers the Batanes Group of Islands.
5. 1973 Constitution — covers territory belonging to the PH by Historic Title.
6. P.D. 1596 — covers our claim over the Kalayaan Group of Islands.
Does this mean that the general definition of National Territory under the 1987 Constitution
serve as an abandonment of the specific territories covered by the 1935 Constitution?
- No. All other territories covered by the 1935 Constitution are deemed included in
the general definition of National Territory under the 1987 Constitution.
In the case of Magallona v. Ermita, the petitioners challenged RA 9522, the Baseline Law.
Under UNCLOS III, all Member States are required to enact their own Baseline Law until May
13, 2009. This was the deadline for the enactment of the Baseline Law.
- According to the petitioner, the Baseline Law violated the Constitution because it
served to abdicate some parts of our national territory, particularly the territory
defined under the Treaty of Paris because the Treaty of Paris delineates the
Philippine Archipelago by metes and bounds and defines the Philippine Archipelago
through a rectangular shaped body of water. According to the petitioner, our entry
into UNCLOS III and our enactment of our Baseline Law have abdicated some of the
body of water previously defined under the Treaty of Paris.
Page 19 of 152
- However, the Supreme Court said that the Baseline Law or treaties are not one of
the modes of losing territories. Under traditional international law, territories are
lost and, inversely, acquired, either by (1) OCCUPATION, (2) CESSION, (3)
PRESCRIPTION, and (4) ACCRETION. Entering into a treaty or an enactment of a
baseline law is not one of the modes of losing or acquiring territories. The Supreme
Court said that UNCLOS III is only a multilateral treaty which governs the sea-use
rights of maritime zones.
- According to the Supreme Court, if we do not enact a Baseline Law, it will result in
a two-pronged disaster. Firstly, we will be disqualified from enjoying the benefits
under UNCLOS III. This will result in an open invitation to all seafaring powers to
enter our maritime zones and exploit the natural resources found in that area.
Secondly, it will weaken our pending cases involving maritime zones grounded on
UNCLOS III.
- In conclusion, the Supreme Court sustained the constitutionality of the Baseline
Law.
- Another argument of the petitioners in challenging the constitutionality of the
Baseline Law is because of the term used by treaty on the waters enclosed by the
baseline, since under our Constitution, these waters are called “Internal Waters,”
but under UNCLOS III, these waters are called “Archipelagic Waters,” thus being
subject to the right of innocent passage. However, the Supreme Court said that it
does not matter what these waters are called since the obligation of the Philippines
as a member of family of nations remain the same. Therefore, no matter what, the
Philippines is bound to observe archipelagic claims and the right of innocent
passage.
- Under UNCLOS III, there are several rights granted to the coastal states over
maritime zones. These maritime zones are measured through the use of straight
baselines connecting the outermost points of the outermost islands and drying reefs
of the archipelago.
- The first body of water is called the Territorial Sea, which is the belt of
sea covering 12 nautical miles measured from the baseline. The State
exercises sovereignty over the Territorial Sea. Criminal laws of the coastal
state can be extended and applied within this belt of water.
- The Contiguous Zone is defined under UNCLOS III as 24 nautical miles
measured from the baseline. However, this is an inaccurate definition
because the Contiguous Zone should be that area of water spanning 12
nautical miles from the territorial sea. In the Contiguous zone, the coastal
state exercises only jurisdiction over that area to the extent necessary to
prevent infringement of its customs, fiscal, immigration or sanitation
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
laws/authority over its territorial waters or territory and to punish such
infringement. Other laws, aside from the four, are not applicable within
the part of the Contiguous Zone that is 12 nautical miles from the
Territorial Sea.
- The next maritime zone is the Exclusive Economic Zone, or otherwise
known as the Patrimonial Sea, which refers to the 200 nautical miles
measured from the baseline. Here, we have the right to exploit living and
non-living creatures. The coastal state has rights over the economic
resources of the sea, seabed, and subsoil, but the right does not affect the
right of navigation and overflight of other States. The provisions on the
Exclusive Economic Zone are both a grant of rights to and an imposition of
obligations on coastal states relative to the exploitation, management and
preservation of the resources found within the zone.
- The Continental Shelf, Archipelagic or Insular Shelf for archipelagos,
refers to (a) the seabed and subsoil of the submarine areas adjacent to
the coastal state but outside the territorial sea, to a depth of 200 meters
or, beyond that limit, to where the depth allows exploitation, and (b) the
seabed and subsoil of areas adjacent to islands.
- The Continental Shelf is also coextensive with the Exclusive
Economic Zone, except for the Extended Continental Shelf which
could be up to a maximum of 250 nautical miles.
- In the case of Magallona v. Ermita, the Supreme Court discussed the reason why
the Baseline Law could not include the Kalayaan Group of Islands (KGI) and the
Scarborough Shoal (Bajo de Masinloc).
- According to the Supreme Court, citing Senator Santiago during the
deliberations of the Baseline Law, there are limitations in the drawing of
baselines under UNCLOS III. The first limitation is that the drawing of
baselines should not depart from the natural configuration of the
archipelago; the second limitation is that the baseline should be up to 100
nautical miles only, with the exception of 3% of all the baselines which
could only extend up to 125 nautical miles, and the ratio of water to land
is 9 is to 1 (9:1). Thus, according to Senator Santiago, if we will enclose the
KGIs and Scarborough Shoal, we will violate these rules under UNCLOS III,
and our Baseline Law would not be accepted by the other Member States.
In that regard, the Supreme Court sustained the constitutionality of the
Baseline Law.
Arbitration of the South China Sea
Page 20 of 152
All members of UNCLOS III are mandated to submit their controversies involving issues as to
the application of UNCLOS to arbitration. There is a Mandatory Arbitration Clause under
UNCLOS III. However, the jurisdiction of the Permanent Court of Arbitration is only limited.
The jurisdiction of the Permanent Court of Arbitration does not include jurisdiction on land
territorial sovereignty. So, this means that the jurisdiction of the Permanent Court of
Arbitration is only to determine the extent of the maritime zones. The Permanent Court of
Arbitration cannot determine who has sovereignty over land territory, which was very clear in
the Resolution of the Permanent Court of Arbitration in the South China Sea Dispute.
In the arbitration, China refused to participate, although it submitted position papers through
informal diplomatic channels. The non-participation of a party to a dispute, however, does
not stop the Permanent Court of Arbitration from ruling on the merits of the controversy. In
this arbitration, the Permanent Court of Arbitration determined the arguments of China in
contesting the jurisdiction of the Permanent Court of Arbitration through the position papers,
and based on these position papers submitted through informal channels, China is contesting
the jurisdiction of the Permanent Court of Arbitration for two reasons: One, the issue involves
the Delimitation of Boundaries; second, it involves historic titles, because once a State enters
into the UNCLOS III, a State can make a reservation of what issues they are not willing to
submit to the Permanent Court of Arbitration, and when China joined UNCLOS III, they
reserved their historic titles. Also, the Delimitation Issues refer to overlapping boundaries. In
other words, if the 200 nautical miles of one State overlaps with the 200 nautical miles of
another State, the overlapping dispute is called a Delimitation Issue, and the Permanent Court
of Arbitration has no jurisdiction over these controversies.
- As to Historic Title, the Permanent Court of Arbitration said that Historic Titles only
refer to historic rights over bays and near shore waters. The Permanent Court of
Arbitration said that the South China Sea is definitely not a bay and the waters
subject of the dispute is not a near shore water. Therefore, this controversy does
not involve historic titles and, thus, Permanent Court of Arbitration has jurisdiction
over the issue.
- As to the Delimitation of Boundaries, the Permanent Court of Arbitration said that
based on the submissions of China through informal channels, it is not claiming that
it has sovereignty or exercises rights over the area in dispute because of the 200
nautical miles that generated from its territory. Based on geographical maps, the
area in dispute is beyond the 200 nautical miles belonging to China. Therefore, it
does not involve a Delimitation of Boundaries.
The Permanent Court of Arbitration determined the merits of the submissions of the parties
and determined whether the contested areas are within our 200 nautical miles. According to
the Permanent Court of Arbitration, in order to determine the rights of coastal states, the
natural condition of the islands and the rocks should be determined because under UNCLOS
III, rocks can generate up to 12 nautical miles of territorial sea and islands can generate up to
200 nautical miles as long as they can support human habitation and an independent
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
economic activity which are not only extractive. So, the features in order to be considered as
entitled to either 12 or 200 nautical miles must be determined based on their original
condition. The Permanent Court of Arbitration said that most of the areas contested in the
arbitration have already been modified, and the parties had merely relied on historical
materials. Based on the historical materials, there were three features in the submission of
the Philippines that were submerged in high tide. Since they were submerged in high tide,
they do not generate any maritime zones; they cannot generate even the minimum 12
nautical miles. Since they cannot generate any maritime zones, they will belong to the coastal
state which has the right over such area if it is within 200 nautical miles from its baseline.
Among the features which are considered as low-tide elevation, which means they are
submerged during high tide, are the Mischief Reef, Reed Bank, and the Second Thomas Shoal.
These three features are submerged during high tide, and these features are within 200
nautical miles from our baseline. This is why the Permanent Court of Arbitration said that
these three features belong to the Philippine State. The other features, however, are high tide
features, which means that they are elevated during high tide and, thus, generate their own
maritime zones. This is the reason why there was no pronouncement as to who has
sovereignty over Scarborough Shoal, otherwise known as Bajo de Masinloc, since it is
considered as high-tide elevation. Again, the Permanent Court of Arbitration has no
jurisdiction to determine who has sovereignty over land territory, which can be settled
through other international modes.
3. GOVERNMENT
In the case of Bacani v. NACOCO, the Supreme Court defined Government as “that institution
or aggregate of institutions by which an independent society makes and carries out those rules
of action, which are necessary to enable men to live in a social State, or which are imposed
upon the society by those who possess the power or authority of prescribing them.”
Under Section 2 of the Revised Administrative Code of 1987, “the Government of the
Philippine Islands is a term which refers to the corporate governmental entity through which
the functions of the government are exercised throughout the Philippine Islands, including,
save as the contrary appears from the context, the various arms through which political
authority is made effective in the Philippines, whether pertaining to the autonomous regions,
the provincial, city, municipal or barangay subdivisions or other forms of local government.”
- In the case of Bacani v. NACOCO, the main issue here is the status of National
Coconut Corporation, whether it can fall under the definition of the “Government
of the Philippine Islands” under the old Administrative Code, because under the
Rules of Court then applicable, the Government of the Philippine Islands is exempt
from the payment of stenographic fees. The issue in this case is whether or not
NACOCO is deemed to be covered by the definition of Government of the Philippine
Islands and, thus, is exempt from the payment of stenographic fees.
Page 21 of 152
- The Supreme Court said that based on the definition of the Government of the
Philippine Islands, government owned and controlled corporations with original
charters are not covered by the definition of “Government of the Philippine Islands.”
The Supreme Court said this term is only limited to Municipal Corporations, which
refers to the local government units and the component units of the Central
Government. The Supreme Court said that Municipal Corporations “do not include
government entities which are given a corporate personality separate and distinct
from the government and which are governed by the Corporation Law, such as the
National Coconut Corporation. Their powers, duties, and liabilities have to be
determined in the light of that law and of their corporate charters. They do not
therefore come within the exemption clause prescribed in Section 16, Rule 130 of our
Rules of Court.”
In Bacani v. NACOCO, the Supreme Court discussed the 2 Traditional Classification of the
Functions of Government. The first, the Constituent Functions. The second, the Ministrant
Functions.
- CONSTITUENT FUNCTIONS refer to those functions which constitute the very bonds
of society and are, therefore, mandatory/compulsory.
- MINISTRANT FUNCITONS, on the other hand, refer to those that intend to promote
the general welfare.
In distinguishing Constituent from Ministrant functions, the Supreme Court applied the
process of elimination in the case of Bacani v. NACOCO. The Supreme Court said that if a
function is not one of those identified as Constituent, then they are only Ministrant. The basis
of the identification is the Treatise of US President Woodrow Wilson. According to US
President Wilson, there are only eight functions which are considered as Constituent
Functions. Any other functions undertaken by the government will only be considered as
optional or Ministrant.
The 8 Constituent Functions, according to US President Wilson, include:
1. The keeping of order and providing for the protection of persons and property
from violence and robbery;
2. The fixing of the legal relations between man and wife and between parents and
children;
3. The regulation of the holding, transmission, and interchange of property, and the
determination of its liabilities for debt or for crime;
4. Those that define contractual rights between parties;
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
5. Those that define and punish crimes;
6. The administration of justice in civil cases;
7. The determination of the political duties, privileges, and relations of citizens; and
8. Dealings of the State with foreign powers: the preservation of the State from
external danger or encroachment and the advancement of its international
interests.
The 5 Ministrant Functions include:
1. Public works;
2. Public education;
3. Public charity;
4. Health and safety regulations; and
5. Regulations of trade and industry.
Do we still apply the dichotomy between Constituent and Ministrant Functions?
- No. In the case of Philippine Virginia Tobacco Administration (PVTA) v. Court of
Industrial Relations, the Supreme Court expressly abandoned the Traditional
Classification of the Functions of Government.
- The Supreme Court said that “The growing complexities of modern
society, however, have rendered this traditional classification of the
functions of government quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and initiative and which the
government was called upon to enter only optionally, and only because it
was better equipped to administer for the public welfare than is any
private individual or group of individuals, continue to lose their well-
defined boundaries and to absorbed within activities that the government
must undertake in its sovereign capacity if it is to meet the increasing
social challenges of the times.”
- In sum, the Supreme Court said that those that were
considered as optional or Ministrant before, will now be
considered as mandatory or Constituent. The State now has to
mandatorily render services which are intended to promote the
general welfare of the State.
Page 22 of 152
What are the different types of government?
- A government may either be UNITARY or FEDERAL depending on the concentration
of authority.
- A government may either be PRESIDENTIAL or PARLIAMENTARY depending on who
exercises executive and legislative powers.
- A government may either be DE FACTO or DE JURE depending on the title of the
exercise of authority.
In the case of Laurel v. Misa as well as in the case of Co Kim Cham v. Valdez Tan Keh, the
Supreme Court enumerated three kinds of De Facto Government, namely:
1. DE FACTO PROPER
- A government which gets possession of or usurps by force or by the voice
of the majority, the rightful legal government and maintains it for itself
against the will of the latter.
2. DE FACTO GOVERNMENT OF PARAMOUNT FORCE
- A government established and maintained by armed forces of the enemy
that gets possession of a territory in the course of war.
3. INDEPENDENT GOVERNMENT
- A government established by the people who rise in insurrection against
the parent state and maintains itself against the will of the latter.
In the case of Co Kim Cham v. Valdez Tan Keh, the Supreme Court was called upon to
determine what kind of government was established during the Japanese occupation.
- The Supreme Court said that the government established during the Japanese
occupation is a De Facto government, more specifically a De Facto Government of
Paramount Force (the second type).
- According to the Supreme Court, there are two indications why the Japanese
government is a Belligerent Government or a De Facto Government of Paramount
Force. One, it maintains itself with the active participation of the Japanese Military
administration; second, the people render obedience to the laws of the Japanese
government without incurring any liability from their rightful legal government; in
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
other words, they do not violate any law by mere submission to the authority of the
Japanese government.
In the case of Co Kim Cham v. Valdez Tan Keh, the Supreme Court determined the effect of
the cessation of Belligerent Occupation on the acts of the Belligerent Government,
considering that during the period of Belligerent Occupation, the government renders
governmental actions, whether it be judicial, legislative, or executive acts.
- The Supreme Court said that after the cessation of Belligerent Occupation, all the
political laws of the Belligerent Government are automatically null and void without
any positive act on the part of the rightful legal government. While municipal laws
of the Belligerent Government shall continue to be valid even after the cessation of
Belligerent Occupation. Similarly, the Supreme Court said that judicial decisions or
decisions of the courts during Belligerent Occupation interpreting or applying
political laws of the Belligerent Government are ipso jure null and void upon the
cessation of Belligerent Occupation, but on the other hand, judicial decisions
interpreting or applying municipal laws of the Belligerent Government shall
continue to be valid even after the cessation of the Belligerent Occupation.
- In this case, the trial courts at the time refused to continue hearing pending cases
on the argument that after the Japanese occupation, all pending cases would be
considered as already terminated. However, the Supreme Court disagreed and said
that they have to continue. Cases involving private individuals should continue
because even after the cessation of Belligerent Occupation, the municipal laws of
the Belligerent Government shall continue to be valid and effective.
What is the difference between Political Law and Municipal Law in order to determine the
effect of the cessation of Belligerent Occupation?
- Political Law refers to laws that governs the relationship between the ruler and the
inhabitants.
- Municipal Laws, on the other hand, are laws that govern the relationship between
and among the inhabitants themselves.
- Thus, Political Laws of the Belligerent Government are deemed abrogated, while
Municipal Laws shall continue.
What is the effect of Belligerent Occupation on the sovereignty of the occupied territory?
- Upon Belligerent Occupation, the sovereignty of the occupied territory shall
remain, but the exercise of sovereignty shall be suspended in the meantime because
during Belligerent Occupation, the rightful legal government has no control over the
government. Since the rightful legal government has no control over the
Page 23 of 152
government, it cannot impose its own political laws. Political laws are also
suspended during Belligerent Occupation, with the exception of the Law on Treason,
according to the Supreme Court in the case of Laurel v. Misa.
- The Law on Treason continues even during Belligerent Occupation
because the Supreme Court said that the relationship between the rightful
legal government and its citizens during Belligerent Occupation is the
same as the relationship of a government and its citizens who are outside
its territory during a period of normalcy. According to the Supreme Court,
during the period of normalcy, once a citizen is outside their own State,
the State cannot impose its will on the citizen, but the citizen who is
outside the State is still subject to the Law on Treason. This means that
the Law on Treason is Extra-Territorial. Similarly, even during Belligerent
Occupation while the rightful legal government does not exercise control
over the government, the Law on Treason shall continue. This means that
citizens can commit treason even during Belligerent Occupation, because
to suspend the Law on Treason, the Supreme Court said, would amount
to a POLITICAL SUICIDE because if the Law on Treason would be
suspended during Belligerent Occupation, then the belligerent
government can use the citizens of the occupied territory against their
own government. This is the reason why the Supreme Court said that even
during Belligerent Occupation, the Law on Treason shall apply.
The rule that during Belligerent Occupation, the political laws of the occupied territory are
suspended, subject to the revival under the DOCTRINE OF JUS POSTLIMINIUM, does not
extend to the members of the Armed Forces of each side. This means that the members of
the Armed Forces of the rightful legal government are still bound to obey the political laws of
the rightful legal government even during Belligerent Occupation.
- In the case of Ruffy v. Chief of Staff, the Supreme Court said that the Articles of
War, which is a political law, shall continue to be effective even during Belligerent
Occupation as between the members of the Armed Forces of each side.
What is the Doctrine of JUS POSTLIMINIUM?
- In the case of Peralta v. Director of Prisons, the Supreme Court said that under the
Doctrine of JUS POSTLIMINIUM, at the end of the occupation, when the occupant is
ousted from the territory, the political laws which had been suspended during the
occupation shall automatically become effective again.
- In the same vein, according to the Supreme Court in Co Kim Cham v. Valdez Tan
Keh, political laws of the Belligerent Government are automatically abrogated upon
the cessation of the occupation.
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4. SOVEREIGNTY
What is Sovereignty?
- According to Garner, “Sovereignty is the supreme and uncontrollable power
inherent in a State by which that State is governed.”
- In the case of Laurel v. Misa, the Supreme Court said that “Sovereignty is (1)
permanent, (2) exclusive, (3) comprehensive, (4) absolute, (5) indivisible, (6)
inalienable, and (7) imprescriptible.” [PECA III]
In the case of People v. Gozo, the accused here was charged and convicted for violating an
ordinance that requires the obtention of a permit before any structure can be built on a
property. According to the accused, the ordinance in question does not apply to her because
her property was within the area covered by the RP-US Military Bases Agreement. The
contention of the accused is that the during the effectivity of the RP-US Military Bases
Agreement, laws of the local and national government do not apply to that specific area.
- The Supreme Court did not agree and said that even during the effectivity of the
Treaty, that part of the territory covered by RP-US Military Bases Agreement is still
part of the Philippines. Since it is part of the Philippines, it is still subject to the
sovereignty of the Philippines. What is given to the US under the RP-US Military
Bases Agreement, according to the Supreme Court, is not sovereignty but the US is
only granted the Right of First Jurisdiction or Primary Jurisdiction. This means that if
the US government does not exercise jurisdiction over the act, then the Philippines
may exercise jurisdiction over the activity.
- The Supreme Court said that local ordinances and national laws shall remain to be
effective and applicable even within the area covered by the RP-US Military Bases
Agreement.
Most political law writers consider the facilities of diplomatic nations, like embassies, to be
extensions of the sending state. Is this correct?
- No. Facilities of diplomatic nations, like embassies, should not be considered as
extensions of the sending state, because such facilities remain to be within our
territory.
- The Supreme Court in the case of People v. Gozo, emphatically declared that “no
inch of Philippine soil can be impregnated by foreign color. Every inch of Philippine
soil remains to be part of the Philippines. What is granted only to the diplomatic
nation is the right of primary jurisdiction, not sovereignty. The host state exercises
sovereignty over that area, but under traditional international law, it grants
authority to the sending state to exercise the right of primary jurisdiction.”
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What is the Doctrine of Auto-Limitation?
- The Philippines adheres to the principles of International Law as a limitation to the
exercise of its sovereignty. It means that any State may, by its consent, express or
implied, submit to a restriction of its sovereign rights. A State then, if it chooses to,
may refrain from the exercise of what otherwise is illimitable competence. There
may thus be a curtailment of what otherwise is a power plenary in character.
THE DOCTRINE OF STATE IMMUNITY
Section 3 of Article XVI of the 1987 Constitution expressly provides that “The State cannot be
sued without its consent.”
Can we say that the basis of Doctrine of State Immunity is this constitutional provision? [No]
- In the case of Air Transportation Office v. Sps. David, which involved the taking of
private property in Baguio to be used for the extension of the airport, the Supreme
Court said that there are two bases of the Doctrine of State Immunity. The first is
the Juristic or Legal Concept, and the second is the Sociological Concept of the
Doctrine of State Immunity.
- In that case, the Supreme Court cited the case of Kawananakoa v.
Polyblank where Justice Holmes explained that under the (1)
JURISTIC/LEGAL CONCEPT, “A sovereign is exempt from suit not because
of any formal conception or obsolete theory, but on the logical and
practical ground that there can be no legal right as against the authority
that makes the law on which the right depends.”
- This is the Juristic or Legal Concept or Legal Basis of the
Doctrine of State Immunity. Under this basis, the Doctrine of
State Immunity is nothing more and nothing less than the
recognition of the sovereignty of the state.
- This doctrine is also known as “The Royal Prerogative of
Dishonesty” because it grants the State the prerogative to
defeat any legitimate claim against it by simply invoking its non-
suability.
- The second basis of the Doctrine of State Immunity was laid down by the
Supreme Court in the case of Air Transportation Office v. Sps. David citing
Providence Washington Insurance v. Republic of the Philippines, where
the Supreme Court explained that under the (2) SOCIOLOGICAL
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CONCEPT,“A continued adherence to the doctrine of non-suability is not to
be deplored for as against the inconvenience that may be caused private
parties, the loss of governmental efficiency and the obstacle to the
performance of its multifarious functions in the absence of such
fundamental principle are far greater if such a fundamental principle were
abandoned and the availability of judicial remedy were not thus restricted.
With the well-known propensity on the part of the people to go to court,
at the least provocation, the loss of time and energy needed to defend
against lawsuits, in the absence of such a basic principle that constitutes
such an effective obstacle, could very well be imagined.”
- The Supreme Court said that “Practical considerations dictate
the establishment of an immunity from suit in favor of the State.
Otherwise, and the State is suable at the instance of every other
individual, government service may be severely obstructed and
public safety endangered because of the number of suits that the
State has to defend against.”
- In sum, public services could be hindered and public
safety would be endangered if the State can be sued
at the instance of every citizen.
- These are the reasons why the Doctrine of State Immunity is not based on any
constitutional provision, but it is based on the sovereignty of the state and the
necessity to focus on the more pressing needs.
In the case of Republic v. Sandoval, which involved the Mendiola Massacre wherein farmers
conducted a violent assembly in Mendiola that resulted in the death of 13 members of the
organization that conducted the assembly, The Supreme Court in this case said that there are
three instances when a suit can be considered as a suit against the State:
1. When the Republic is sued by name;
2. When the suit is against an unincorporated government agency; and
3. When the suit is on its face against a government officer but the case is
such that ultimate liability will belong not to the officer but to the
government.
- However, the Supreme Court clarified in this case that these instances are just
prima facie presumptions, which means that even if the suit names the Republic as
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a defendant, that fact alone does not necessarily make the suit as one against the
State.
- In Republic v. Sandoval, the Republic of the Philippines was named
defendant in the complaint, but the Supreme Court said that this is not a
suit against the State since the officers acted beyond their authority and,
thus, the act was not an official action, and since it was not an official
action, the liability will only be personal to the government officers
involved.
The Doctrine of State Immunity is not absolute. Even Section 3 of Article XVI of the
Constitution itself provides that the State can be sued WHEN IT CONSENTS. How may the State
give its consent?
- The consent of the State can be given EXPRESSLY or IMPLIEDLY.
- Express consent to be sued can be done either by a General Law or a Special Law.
- In the case of Republic v. Sandoval, President Corazon Aquino joined the
march of the families of the victims and she created a Fact-Finding
Committee to investigate the incident and to determine who are liable for
the incident. In this case, the petitioners contend that the participation of
the President in the rally and her creation of the Fact-Finding Committee
is indicative of the State’s consent to be sued.
- The Supreme Court said no because consent to be sued can
only be given by Congress. Express consent to be sued can either
be given by a General Law or by a Special Law, not by the
President.
- Similarly, in the case of Republic v. Feliciano, wherein President Marcos
issued a Presidential Decree mandating the property in question as
subject to private rights and interest, the private respondent argued that
the reservation of the property to the private rights and interest is a
consent to be sued and, thus, a waiver of immunity.
- The Supreme Court said no because a waiver of immunity
should be construed in strictissimi juris. It should be strictly
construed against the waiver. It must be specific, it must be
general, and it must be unequivocal. Any doubt as to whether
there is a waiver or whether the State consents to be sued, shall
be strictly construed. Further, according to the Supreme Court,
the order of the President is not a law, and such order cannot
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expressly waive the immunity of the State and it cannot give its
consent to be sued expressly.
Supposing the Chief of Staff of the Armed Forces of the Philippines entered into a contract
with a supplier of firearms, and in the contract, there is an express provision that the
Philippine Government hereby consents to be sued on any cause of action arising from the
contract. Is this a valid waiver?
- No, because nobody can give consent expressly except the Congress. This was the
ruling in the case of Veterans Manpower and Protective Services (VMPS) v. CA.
According to the Supreme Court, consent to be sued cannot be a contractual
stipulation. Consent to be sued can only be given through legislation.
- But recently, in the case of China National Machinery and Equipment v.
Santamaria, former Chief Justice Serrano said that the provision in the contract
which allows arbitration (the arbitration clause in the contract) may be considered
as an implied waiver of immunity, and the Supreme Court said, through Chief Justice
Serrano, that in the US, there is a law that makes an arbitration clause in a contract
an implied waiver of immunity and there is no reason why we cannot apply that
principle in this jurisdiction. In essence, the Supreme Court is saying that an
arbitration clause in a contract between the government and a private entity is an
implied waiver of immunity. But while the Supreme Court was very categorical in
that case, that statement of the Supreme Court is self-defeating because there is a
reason why we cannot apply the US principle here. The reason is that we do not
have a law similar to the US law which makes an arbitration clause an implied waiver
of immunity.
- Despite the ruling in the case of China National Machinery and Equipment v.
Santamaria, it remains that an implied waiver of immunity shall only arise:
1. When the government enters into a commercial contract, or
2. When the government initiates litigation.
- ...and NOT when the government enters into a contract with
an arbitration clause.
Waiver of immunity can be expressly given through a General Law. Do we have a General Law
where the State expressly waives its immunity?
- In the cases of Merritt v. Government of the Philippine Islands and Republic v.
Villasor, the Supreme Court always considered Act No. 3083 as a General Law where
the State gives its consent to be sued. However, this law only allows the filing of an
action against the State in contractual obligations; this law only applies to
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COMMERCIAL TRANSACTIONS because the law says that “the Government of the
Philippine Islands hereby submits and consents to be sued upon money claims arising
from contracts, expressed or implied, which could be the basis of a cause of action
as between private parties.” This last phrase means that the law can only be applied
to commercial transactions, but not to governmental transactions. This law only
makes express what used to be implied. It does not give an additional cause of action
because even without that law, when a government enters into a commercial
contract, it is deemed to have impliedly waived its immunity. Therefore, Act No.
3083 is not considered a General Law which the State expressly waives its immunity.
- One law that is considered to be a General Law where the State gives its consent
to be sued is the Local Government Code. Under the Local Government Code, it is
expressly provided that political subdivisions created under this Code have the
capacity to sue and be sued. This is a general consent.
Special waiver of immunity arises when the law is specifically applied to a specific individual
or group of individuals.
- An example of a specific waiver of immunity is the law involved in the case of
Merritt v. Government of the Philippine Islands, Act. No. 2457. Under that law, the
Congress authorized Mr. Merritt to file a case against the Government. This is an
express waiver through a Special Law.
An Implied Waiver of Immunity arises when the government enters into a commercial
contract. This is now called the RESTRICTIVE THEORY OF STATE IMMUNITY.
- Under this theory, the immunity of the sovereign shall only apply with regard to
public acts or when the government is exercising governmental or sovereign
functions (acts jure imperii), but not with regard to private acts or when the
government is exercising commercial or proprietary functions (acts jure gestionis).
The Restrictive Theory of State Immunity must be distinguished from the
CLASSICAL/ABSOLUTE THEORY, whereby a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign.
In the cases of US v. Ruiz, US v. Guinto, and Sanders v. Veridiano, the Supreme Court applied
the Restrictive Theory of State Immunity as to the commercial transactions entered into by
the US Government. The Supreme Court said that the operation of a barber shop and the
operation of a restaurant are commercial transactions. Therefore, when the US Government
enters into those transactions, it has descended to the level of a private individual and, thus,
opens itself up to actions.
The Doctrine of State Immunity is not only limited to the Philippine State, it also extends to
foreign states and their officers performing their official duties. If the application of the
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Doctrine of State Immunity as to the Philippine State is based on sovereignty, the recognition
of immunity of foreign states and their officers performing official functions in our courts is
based on the recognition that all states are equal. This is based on the PRINCIPLE OF PAR IN
PAREM NON HABET IMPERIUM, or in other words, “an equal has no power over an equal.”
Since states are sovereign and equal, they cannot be subjected to the judicial processes of
another state.
What is the distinction between Suability and Liability?
- In the case of Republic v. Villasor, the Supreme Court said that Suability is different
from Liability. According to the Supreme Court, Suability is based on consent,
whether expressed or implied, while Liability, on the other hand, is based on
evidence. This means that even if the State consents to be sued, that is not an
admission of liability. The claimant must still prove its claim against the State. Even
if the State consented to be sued, it can still present defenses in order to defeat the
claim against it.
In the case of Republic v. Sandiganbayan, the issue here is whether an implied waiver of
immunity through initiation of litigation shall only arise when the government initiates the
litigation in its commercial function.
- In this case, PCGG initiated an action against the suspected cronies of President
Marcos. The defendants filed a motion for a mode of discovery. However, PCGG
argued that under Executive Order No. 1, the officers of the PCGG cannot be
subjected to any compulsory process. In essence, PCGG invoked immunity. Was
PCGG correct?
- No. The Supreme Court said that the initiation of an action is an implied
waiver of immunity and regardless whether the government agency is
performing government or proprietary functions, it is deemed to have
impliedly waived its immunity when it initiates an action. Therefore, it is
open to counterclaims.
When the government initiates an action, may all counterclaims be raised against it?
- No. Only Compulsory Counterclaims. Permissive Counterclaims cannot be raised
when the government initiates an action. Permissive Counterclaims are based on
separate causes of action. What can be raised by the defendant in cases where the
government initiates litigation are counterclaims which arise from the cause of
action which is the basis of the complaint of the State.
In the case of The Holy See v. Rosario, the petitioner here is the Holy See who exercises
sovereignty over the Vatican City and is represented in the Philippines by the Papal Nuncio.
The Papal Nuncio entered into a contract of sale involving a parcel of land. This parcel of land
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was donated to the Holy See for the purpose of constructing the official house of the Papal
Nuncio in the Philippines. However, the land was occupied by illegal settlers. What petitioner
did was to sell the land. There were two deeds of sale in this case. The respondent filed a
petition to nullify the subsequent sale, but the Holy See invoked its immunity.
- Here, the Supreme Court extended the Doctrine of State Immunity to Holy See.
While the nature of the transaction can be considered as commercial because it
involves a deed of sale of a real property, the Supreme Court said that the nature of
the transaction shall be determined whether the purpose of the transaction is for
profit and done in the ordinary course of business of the foreign entity. The Supreme
Court said that the purpose of why Holy See sold the subject property is to acquire
an alternative property for the construction of its official residence. Therefore, the
transaction involved was not done for profit, nor for commercial purposes, but
rather for the discharge of its governmental functions. In that regard, the immunity
applies even if Holy See entered into a contract of sale.
Supposing the State waives its immunity, up to what stage of the proceedings does the
consent operate?
- In the case of Republic v. Villasor, the Supreme Court said that once the State
waives its immunity or consents to be sued, the consent operates at all stages of the
proceedings until the execution stage. Once the court renders a judgment, the court
loses jurisdiction over the issue. The implementation of any writ of execution
requires a separate consent of the State.
What is the reason why the satisfaction of any judgment by the trial court whenever the State
consents to be sued requires another consent?
- The reason is because public funds can only be used for the purpose for which it
was appropriated. Therefore, even if there is a successful claim against the
government, the State needs to give its consent to the appropriation of funds. If the
government does not appropriate any funds, then the claimant cannot seek
injunctive relief or coercive writs to compel the government to enact a law.
In the case of Municipality of Makati v. CA, which involved the expropriation proceedings and
the local government unit opened a bank account, and that bank account was for the
satisfaction of any claims of the property owners. Municipality of Makati opened Bank
Account A for the payment of just compensation for the properties taken in the exercise of
eminent domain, but Municipality of Makati also opened another bank account, Bank Account
B, for the general operation of the local government unit. The problem in this case is that the
funds in Bank Account A was insufficient. The issue here is whether the claimants can attach
Bank Account B.
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- The Supreme Court said no, only Bank Account A is subject to garnishment, and
not Bank Account B since this account is for the general operation of the local
government unit and, thus, not subject to garnishment. There must be an ordinance
setting aside a fund in order to satisfy the deficiency. Nevertheless, the Supreme
Court provided a remedy — successful claimants against local government units can
resort to Mandamus in order to compel the local government unit to pass an
ordinance to set aside a budget to satisfy claims by the private individuals or entities.
May Mandamus lie to compel the Congress to appropriate funds to satisfy successful claims
against the National Government?
- No. This is in line with the Doctrine of Separation of Powers. In the case of
Municipality of Makati v. CA, the entity involved is a local government unit, and a
local government unit is just a creation of law. Therefore, it is subject to compulsory
judicial processes. However, the courts cannot impose its will on a co-equal body
like the Congress in order that the Congress may be forced to pass a law in order to
satisfy claims against it.
What then is a remedy available to a successful claimant against the National Government if
Mandamus will not lie?
- The remedy is not legal, but political. The remedy is to lobby to the Congress in
order for the Congress to be forced to enact a law to satisfy claims against it. It is a
political remedy, not a legal remedy.
In determining whether a foreign state or an officer of a foreign government is entitled to
immunity, in the case of China National Machinery and Equipment v. Santamaria, the
Supreme Court was called upon to determine who has the authority to recognize immunity of
foreign states and their officers performing official functions sued in our jurisdiction. In this
case, the Solicitor General recognized the sovereign immunity of the petitioner. The issue here
is whether the Solicitor General can make that recognition.
- The Supreme Court said no, the government agency which has the authority to
issue the recognition is the Department of Foreign Affairs, not the Solicitor General,
because the Department of Foreign Affairs is the government agency charged with
the regulation of foreign relations with other states.
ARTICLE II — FUNDAMENTAL PRINCIPLES AND STATE POLICIES
Section 1 of Article II
Section 1 of Article II is the recognition of the kind of government established by the
Constitution. Under the Constitution, the Philippines is a DEMOCRATIC and REPUBLICAN State.
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In a democratic and republican State, may the good interest or the good intention of the public
officers be enough to justify an act not expressly allowed by law?
- In the case of Villavicencio v. Lukban, the City of Manila Mayor was motivated by
the best of intentions. He wanted to rid the city of the vices resulting from
prostitution. He deported 170 women of ill-repute to Davao. The question is
whether the good intention of the mayor enough to justify that activity. There was
no law nor ordinance allowing the mayor to cause the deportation of any person
within the city limits.
- Citing Justice Miller, the Supreme Court said that “The law is the only
supreme power in our system of government, and every man who by
accepting office participates in its functions is all the more strongly bound
to submit to that supremacy, and to observe the limitations which it
imposes upon the exercise of the authority which it gives.”
- The Supreme Court furthered, “The Government of the Philippine Islands
is a government of laws. The court will assist in retaining it as a
government of laws and not of men. No official, however high, is above
the law.”
- In sum, good intentions are not enough to justify an act that is not
sanctioned by a law or by an ordinance.
In a democratic and republican State, the performance of a particular act is allowed in the
absence of law that prohibits, expressly or impliedly, the performance of such act. This is the
difference between the exercise of a power and the exercise of a right.
- In the case of Knights of Rizal (KOR) v. DMCI, which involved the Torre de Manila
which was constructed outside the art premises. When there is an ordinance in the
City of Manila regulating the height of structures, the DMCI was able to get an
exemption from the ordinance. The question here is whether the structure can be
demolished because it destroys the sightline of the National Shrine of our National
Hero.
- Here, according to the Supreme Court, there is no law nor ordinance that
prohibits the construction of that building. Therefore, in the absence of
any law that prohibits the act, the act is allowed. This is also the essence
or manifestation of the kind of government that we have.
Section 2 of Article II
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Under Section 2, International Law can be applied or can be considered as part of our legal
system in two ways — either by INCORPORATION or by TRANSFORMATION.
What International Law may be considered as part of our laws by incorporation?
- Only generally accepted principles of international law. This means that
international law that does not have the characteristic of a generally accepted
principle of international law can only be part of our legal system by a positive act
on the part of the Government through transformation.
- In the case of Kuroda v. Jalandoni, the international law involved here are the
Geneva and Hague Conventions punishing and prohibiting War Crimes. The
Philippines is not a signatory to the Hague Convention and it is a late member to the
Geneva Convention. The question here is whether our non-membership or late
membership in these two international conventions disqualify our government from
creating a body that would prosecute and punish war crimes.
- The Supreme Court said no. These two conventions are
generally accepted principles of international law and as such,
they automatically become part of our laws without any positive
act on the part of the government.
- As distinguished from the Geneva Convention on Road Signs and Signals, as ruled
by the Supreme Court in the case of Agustin v. Edu, under the Geneva Convention
Road Signs and Signals, every member state should adopt a triangular reflectorized
mechanism as an early warning device. While road safety is a generally accepted
principle of international law, that triangular reflectorized mechanism is not a
generally accepted principle of international law. For that mechanism to be applied
in our jurisdiction, there must be a transformation; there must be a positive act on
the part of the government, and in this case, it was through the issuance of a Letter
of Instruction. Hence, there was a positive act in order to localize an international
law.
In the case of David v. Senate Electoral Tribunal (SET), the Supreme Court enumerated two
sources of generally accepted principles of international law. According to the Supreme Court,
generally accepted principles of international law include:
1. International customs as evidenced of a general practice accepted as law;
and
2. General principles of law accepted by civilized nations.
- The Supreme Court explained that International Customary Rules are accepted as
binding as a result of the combination of two elements — one element is 1) to
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establish widespread and consistent practice on the part of the state; the second
element, 2) the psychological element known as Opinion Jurissive Necessitates, or
opinion as to law or necessity. Implicit in the latter element, according to the
Supreme Court, is a recognition that the act involved is made obligatory because of
a rule of law requiring it.
- The second source of generally accepted principles of international law refer to
General Principles of Law Recognized by Civilized Nations. These are principles
established by a process of reasoning or judicial logic, or principles which are
generally too basic in all legal systems, like the general principles of justice, equity,
the principles against discrimination, and so forth. These are general principles of
law recognized by civilized nations, and these are international law that
automatically become part of our law through the Doctrine of Incorporation.
Section 4 of Article II
We have already discussed Section 4 of Article II in the case of People v. Lagman and Sosa.
Section 5 of Article II
Section 5 of Article II is a manifestation that indeed our Constitution has abandoned the
traditional classification of the functions of government because this section enumerates
three functions. 1) Maintenance of peace and order; 2) Protection of life, liberty, and property;
and 3) Promotion of the general welfare. These are traditionally classified as Ministrant
Functions.
Section 6 of Article II
Section 6 of Article II mandates the separation between Church and State. Why? Why can we
not merge these two institutions? Can we not say it is better for them to merge? Can we not
say that it is better for them to join because independently they are already powerful
institutions, and by joining these two institutions, we will create a more powerful institution?
- The separation, according to the Supreme Court in the case of Aglipay v. Ruiz, is
intended to protect the dignity and integrity of not one but both institutions.
According to the Supreme Court, history has taught us that the merger or the joining
of these two institutions will be destructive, and in our system of government, the
system works because of the equilibrium between the power of the State and the
rights of the individuals. If the equilibrium is disturbed, the legal system will not
work. Too much power will disturb the equilibrium. Too much rights will also disturb
the equilibrium. There must be a balance between the power and the rights. This is
the reason why the government cannot be too powerful, and the people cannot
enjoy absolute liberty as well. We have to maintain an equilibrium or a balance
between these two opposing interests.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
In the case of Estrada v. Escritor, the Supreme Court said that the Wall of Separation
mandated by the Constitution is not a wall of hostility. The two institutions do not treat each
other as enemies. Also, the separation is also not a wall of apathy and it does not mean they
do not care for each other. The Supreme Court said that there are different kinds of Walls of
Separation between Church and State, taken from the US which this principle was copied
from. According to the Supreme Court, the Wall of Separation in the US can either be under
1) SEPARATIONIST or under 2) BENEVOLENT NEUTRALITY.
1. SEPARATIONIST as a Wall of Separation could either be A) Strict Separation or B)
Strict Neutrality.
A) Strict Separation means that there is an absolute impregnable wall
between the two institutions. They cannot join each other. If there is an
activity by the State, the Church cannot join and vice versa. Under the
Strict Separation, the roads constructed by the State cannot be used by
the religious organization for their religious processions. That is under the
Strict Separation.
B) Under the Strict Neutrality, what may be applied to one activity shall be
applied to all activities, even religious activities. Which means that if the
State taxes an activity, that tax measure shall apply even to religious
activities. That is under the Strict Neutrality.
2. BENEVOLENT NEUTRALITY, on the other hand, is also called a WALL OF
ACCOMMODATION. And Benevolent Neutrality could either be a A) Mandatory
Benevolent Neutrality or B) Permissive Benevolent Neutrality.
A) A Mandatory Benevolent Neutrality is an exemption of a religious
practice from the coverage of mandatory law because of the observance
of the Constitutionally guaranteed observance of religious freedom. If the
basis of the exemption is because of religious freedom, there is a
Mandatory Benevolent Neutrality. One good example of Mandatory
Benevolent Neutrality is the exemption of properties used actually,
directly, and exclusively by religious organizations for religious purposes.
This is an observance of Mandatory Benevolent Neutrality, because the
exemption of these properties is founded on the recognition of religious
freedom.
B) While Permissive Benevolent Neutrality, on the other hand, is the
accommodation of the religious practices only because of public policy.
One example of Permissive Benevolent Neutrality is the R.A No. 3350,
which exempts religious conscientious objectors from joining labor
organizations. So, this is a Permissive Benevolent Neutrality because
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conscientious objectors are exempted not because of their belief, but only
because they are not allowed by their religious organization. In that
regard, the accommodation is only permissive.
In the case of Estrada v. Escritor, the respondent and her partner are members of Jehovah’s
Witness. The respondent is a court stenographer and she was cohabiting with respondent
Luciano Quilapio who is not her husband and is married to another woman. While respondent
was also previously married, her husband was already dead. Under the rules of Jehovah’s
Witness, members who have a legal impediment to marry each other can cohabit as long as
they execute a “Declaration of Pledging Faithfulness,” and as long as the legal impediment
exists, they can maintain that arrangement. The issue in this case is whether the extramarital
cohabitation of the respondent violates the Code of Ethical Standards of Public Officers
because under the Code, public officers must always live moral lives.
- In determining the morality of the arrangement, the Court was called upon to
determine which standard shall be used, should they use religious standards or
should they use secular standards. The Supreme Court said that the courts can only
apply uniform standards, only legal standards because our courts are courts of law,
and therefore, they cannot apply any other standards but legal standards. Applying
legal standards, the arrangement between the respondent and her partner is
considered as immoral because it is not allowed under our laws since it can
constitute adultery or concubinage. But in deciding religion cases, the courts will not
stop in determining whether the act is moral or immoral. The courts must still look
whether that immoral activity may be accommodated or exempted. In this case,
while the Supreme Court has determined the extramarital cohabitation as immoral,
the Supreme Court applied the COMPELLING STATE INTEREST TEST viewed from
Benevolent Neutrality to determine whether there is a need to accommodate the
religious arrangement. Under the Compelling State Interest Test, there are three
questions that must be answered all in the affirmative, in order to allow the
government act to apply to a religious practice.
COMPELLING STATE INTEREST TEST
1. Whether the Government act created a burden on the free exercise of religion.
- Applying this test to the arrangement between the respondent and her
partner, the Supreme Court said YES, the Code of Ethical Standards and the
Revised Penal Code created a burden on the religious freedom of the
respondent because under those circumstances, the respondent has to choose
whether to follow her religious belief or to follow the law. This means there is
a burden on the exercise of religious freedom.
2. Whether there is a compelling state interest involved in order to justify the
infringement of religious freedom.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- In the 2006 Resolution of the Supreme Court, the Supreme Court said that the
state interest must not be a generalized one, it must be specific. The mere
statement that the laws intend to preserve the dignity and sanctity of marriage
is not enough, said the Supreme Court, there must be specific governmental
interest involved and it must be compelling enough in order to justify the
infringement on religious freedom. Which means that as to question number
2, NO.
3. Whether the government has used the least restrictive means and the infringement
on the religious freedom is no greater than what is necessary in order to achieve the
legitimate governmental interest.
- The Supreme Court said NO, because to be considered as the least intrusive
means, there must be no other way that the government can achieve its
legitimate governmental purpose other than by infringing upon the religious
activity. The Supreme Court said that the preservation of the sanctity of
marriage and the preservation of the dignity of public office can be achieved in
ways other than interfering with the religious arrangement.
In that regard, the two governmental actions failed the Compelling State Interest Test.
Therefore, the religious arrangement between the respondent and her partner were
exempted from the coverage of mandatory law.
The LEMON TEST, as laid down by the US Supreme Court in the case of Lemon v. Kurtzman, is
used to determine the validity of a governmental regulation touching on the wall of
separation. Applying this test, a regulation is constitutional when:
1. It has a secular legislative purpose (Purpose Prong);
2. It neither advances nor inhibits religion (Effect Prong); and
3. It does not foster an excessive entanglement with religion (Entanglement Prong)
“Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other
religious officials make such act immune from any governmental regulation.” In the case of
Diocese of Bacolod v. COMELEC, the Supreme Court said that even the religions/religious
officials have a separate secular existence because “…they exist within a society that is
regulated by law.” This means that controversies involving religion may also be adjudicated
by our courts of justice.
- Let’s take two different cases. We have Taruc v. De La Cruz on the one hand, and
Fonacier v. CA on the other hand.
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- In Taruc v. De La Cruz, the petitioners here were excommunicated. They
were members of the Independent Church. They were excommunicated
because they celebrated a mass officiated by a priest who is not their
parish priest. They were expelled because the bishop already ordered
them not to celebrate the mass but they still continued in defiance of the
order of their bishop. They went to court to question their
excommunication. The court said they do not have the authority.
- On the other hand, Fonacier v. CA, also involved the same religious
organization, the Independent Church. In this case, the petitioner was the
former highest head bishop of the Independent Church. There was an
election wherein the religious organization replaced petitioner with
another leader. So, now the petitioner is being compelled to make an
accounting of all the properties of the religious organization which were
entrusted to him during his administration. The petitioner questioned the
election of the private respondent because, according to him, the private
respondent is not the duly elected leader of the religious organization, and
that there is another group, according to petitioner, that was elected.
That’s why he was willing to make an accounting to that group, but not to
the private respondent. The Supreme Court, in resolving the controversy,
looked into the Articles of Incorporation of the religious organization and
determined who are eligible to vote for the leaders of the religious
organization. In determining who are eligible to vote, the Supreme Court
also passed upon the procedure of the excommunication, because priests
who are excommunicated can no longer vote. Therefore, in order to
determine who was the duly elected leaders, the Court has to determine
how members can be excommunicated and what are the internal rules of
the religious organization. The Supreme Court sustained the religious
organization’s authority, because the Supreme Court said that the issue
involved here are the property rights of the religious organization. In order
to determine who is entitled to administer the funds and the properties
of the religious organization, we have to determine who may be validly
elected and who may elect the leaders. These are the reasons why the
Supreme Court delved into internal issues regarding excommunication
and regarding elections. But nonetheless, it was only in relation to a civil
issue.
- But in the case of Taruc v. De La Cruz, the Supreme Court said that issues
of excommunication and issues of disciplinary sanctions are outside the
jurisdiction of the courts of justice.
Section 7 of Article II
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Do Sections 7 and 8 expressly prohibit the presence of nuclear weapons in our territory? I ask
because under the Independent Foreign Policy (Section 7) and the policy of Freedom from
Nuclear Weapons (Section 8), the policies mention that they are “consistent with the national
interest.” This means that the phrase “consistent with the national interest” allows the
existence of nuclear weapons in our territory. This means that the freedom from nuclear
weapons in our territory is only dependent on that phrase, if it is “consistent with the national
interest.” If it is not in consistent with our national interest, then the presence of nuclear
weapons is allowed in our territory.
Sections 9 and 10 of Article II — Social Justice
There are different concepts of Social Justice depending on the law involved.
In the case of Calalang v. Williams, the Supreme Court, through Justice Laurel, said that “Social
Justice is neither communism, nor despotism, nor atomism, nor anarchy, but the humanization
of laws and the equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated.”
- The Supreme Court said that Social Justice means “the promotion of the welfare of
the people, the adoption by the Government of measures calculated to ensure the
economic stability of all the component elements of society, through the
maintenance of a proper economic and social equilibrium in the interrelations of the
members of the community, constitutionally, through the adoption of measures
legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments under the time-honored principle of
salus populi est suprema lex.”
- This definition of Social Justice by the Supreme Court only means, in
short, EQUALITY. Social Justice does not mean a misplaced sympathy over
a less privileged class. So, Social Justice means THE GREATEST GOOD FOR
THE GREATER NUMBER.
- But, again, the concept of Social Justice differs depending on the law
involved.
- Calalang v. Williams (Political Law) involved a traffic regulation, similar to our
number-coding now. In this case, there is a period of time where animal-drawn
vehicles were not allowed to use the major thoroughfares. According to the
petitioner, that regulation is “anti-poor,” because only the poor use animal-drawn
vehicles. But the Supreme Court disagreed and said that social justice just means
equality; social Justice does not mean misplaced sympathy over a less privileged
class, but it means equality.
Page 32 of 152
In the case of Almeda v. CA, the Supreme Court explained Social Justice, as applied in Agrarian
Law, in the following manner: “Property ownership is impressed with social function. Property
use must not only be for the benefit of the owner, but of society as well. The State, in the
promotion of Social Justice, may regulate the acquisition, ownership, use, enjoyment and
disposition of private property, and equitably diffuse property ownership and profits.”
Taken from the concept of Labor Law, however, the Supreme Court in Ondoy v. Ignacio said
that Social Justice does not mean equality, it means PROTECTION.
- The Supreme Court held that “as between a laborer, usually poor and unlettered,
and the employer, who has resources to secure able and legal advice, the law has
reason to demand from the latter stricter compliance. Social Justice in these cases is
not equality, but protection.”
- When it comes to Labor Law, Social Justice means that those who have less in life,
should have more in law.
Lastly, when it comes to property rights (Obligations and Contracts), Social Justice, according
to the Supreme Court in the case of Salonga v. Farrales, “cannot be invoked to trample on the
rights of property owners who, under the Constitution and laws, are also entitled to protection.
The Social Justice consecrated in our Constitution was not intended to take away rights from
a person and give them to another who is not entitled thereto. Evidently, the plea for Social
Justice cannot nullify the law on Obligations and Contracts, and is, therefore, beyond the
power of the courts to grant.”
- In the absence of a law or contractual obligation, a property owner cannot be
compelled to sell his property to the less privileged class.
These are the different concepts of Social Justice taken from the viewpoint of different laws.
Section 11 of Article II
In the case of Secretary of National Defense v. Manalo, the Supreme Court was called upon
to determine the constitutionality of the rule on the Writ of Amparo. This case is the first
Amparo case in our jurisdiction. The petitioner said that the right to security is a right
dependent on the right to liberty. According to the petitioner, there is no right to security, the
right to security is only dependent on the right to liberty. The Supreme Court said no, because
the right to security is part of human rights, and under Section 11 of Article II, there is a
guarantee of full respect for human rights. This constitutional provision is a manifestation that
the right to security, which is considered as a human right, has a separate constitutional
protection apart from the right to liberty.
- In this case, the Supreme Court identified five Amparo cases as they were applied
in Mexico, where the Writ of Amparo was copied from, namely:
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
1. AMPARO LIBERTAD, which is for the protection of personal freedom,
and this is equivalent to our writ of habeas corpus;
2. AMPARO CONTRA LEYES, which is the judicial review of the
constitutionality of laws;
3. AMPARO CASACION, which is the judicial review of the constitutionality
and legality of judicial decisions;
4. AMPARO ADMINISTRATIVO, which is the judicial review of
administrative actions; and
5. AMPARO AGRARIO, which is for the protection of peasants’ rights
derived from the agrarian reform process.
- The Supreme Court ruled that all these Amparo cases have constitutional
protection.
Section 12 of Article II
Does the Constitution allow absolute divorce? Is there anything in the Constitution that
prohibits absolute divorce?
Absolute divorce means that the termination of the marital relationship is dependent upon
the agreement between the spouses. That they can agree to terminate it or not, up to a certain
time. Is this allowed under our Constitution?
- No. Absolute divorce is not allowed by the Constitution. Specifically, Section 2 of
Article XV provides that marriage, as an inviolable social institution is the foundation
of the family and shall be protected by the State. The constitutional declaration that
marriage shall be protected by the State precludes allowing the parties to decide
among themselves the existence or the termination of their marital relationship.
How about abortion? Does the Constitution allow abortion? [No]
- Section 12 of Article II provides that the State shall protect the life of the mother
and the life of the unborn. And the constitutional protection to the life of the unborn
starts from CONCEPTION.
- In the case of Imbong v. Ochoa, the term “CONCEPTION” means FERTILIZATION,
which refers to the moment the sperm meets the egg. According to the Supreme
Court, that is the beginning of the constitutional protection of the unborn.
Page 33 of 152
- In this case, aside from abortion, the Supreme Court declared
abortifacients as unconstitutional. And according to the Supreme Court,
the Congress cannot define what an abortifacient is because it is expressly
not given to this department the right to define what an abortifacient is.
The Supreme Court said in this case, that there are three drugs which are
ABORTIFACIENTS:
1. A drug that induces abortion;
2. One that destroys the fertilized ovum; and
3. One that prevents the implantation of a fertilized egg in the
mother’s uterus.
- Which means that the theory of Representative Lagman, that the
constitutional protection starts from implantation, or the attachment of
the fertilized egg to the mother’s uterus, was not accepted by the
Supreme Court, because the Supreme Court said that conception means
FERTILIZATION, and not implantation.
- While reluctantly, the Supreme Court defined when does life start.
Although the Supreme Court said that it was not their office to determine
when life begins, but for a constitutional perspective, in order to
determine whether there is a constitutional protection required, they
have to mark when does life start.
- According to the Supreme Court, life starts when the sperm meets the
egg. According to the Supreme Court, there is a scientific proof to that
because once the sperm meets the egg, there is an activity in that union,
and “activity” signifies life. The Supreme Court said that the egg grows
rapidly, and growth indicates life. But the next question is assuming that
there is life upon the meeting of the sperm and the egg, what kind of life
is that?
- The Supreme Court said that it is a human life. Proof, according
to the Supreme Court, is that a fertilized egg has 46
chromosomes, and 46 chromosomes are peculiar to human
beings. According to the Supreme Court, 23 male or 23 female
chromosomes joined together is 46 chromosomes, which is the
DNA footprint of a human being. The Supreme Court said there
is life upon the meeting of the sperm and the egg, and that is a
human life and, therefore, it needs constitutional protection.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Supposing the mother who is pregnant has a medical condition, and the medical condition of
the mother makes it impossible for the doctor to save both the mother and the child. In the
attempt to save the life of the mother, can the doctors deliberately kill the child?
- This was discussed by the Supreme Court in the case of Imbong v. Ochoa, applying
the DOUBLE EFFECT PRINCIPLE, which is applied in medical science but extended by
the Supreme Court to political law through this case.
- In a conflict situation between the life of the mother and the life of a
child, the doctor is morally obliged always to try to save both lives. If,
however, it is impossible, the resulting death to one should not be
deliberate. This is what is known as the DOUBLE EFFECT PRINCIPLE.
- The doctors, whenever there is a medical condition that does not allow
them to save both the life of the mother and the life of the child, can
choose whose life to save, but in saving the life of the chosen one, they
cannot perform any act that will compromise the life of the other. This
means that what the doctors will just do is to channel all their efforts in
saving the life of the chosen one. Hence, if in saving the life of the chosen
one resulted in the death of the other, the doctors will not be liable for
homicide or infanticide.
- Under this principle, wherein intentional harm on the life of either the
mother or the child is never justified to bring about a “good” effect. In a
conflict situation between the life of the child and the life of the mother,
the doctor is morally obliged always to try to save both lives. However, he
can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of the child’s life or
the mother’s life is not intentional and, therefore, unavoidable. Hence,
the doctor would not be guilty of abortion or murder. The mother is never
pitted against the child because both their lives are equally valuable.
- If, in order to save the life of the mother, the doctors have to have
conduct an operation which requires the stopping of the mother’s heart.
Here, the doctors can proceed with the operation. Supposing, however,
that when the doctors stopped the heart of the mother, the child
nevertheless died. The Supreme Court said that under the Double Effect
Principle, the doctors have no criminal liability on the death of the child.
It would be different if the death to the mother or the child was deliberate
or intentional.
Does the Constitution allow same-sex marriage?
Page 34 of 152
- Our constitutional provisions pertaining to family were largely affected or
influenced by American principles, and recently in the case of Obergefell v. Hodges,
the US Supreme Court has already declared that all State Laws which prohibit same-
sex marriages as unconstitutional. This is not conclusive upon our courts; however,
we have a pending case before the Supreme Court. Definitely Obergefell v. Hodges
is not conclusive upon our courts but is persuasive. This means that in the absence
of any pronouncement yet by the Supreme Court, you can cite Obergefell v. Hodges
until the Supreme Court has already rendered an opinion regarding the
constitutionality of a same-sex union.
- Obergefell v. Hodges is a consolidation of several cases. In order to emphasize the
importance of the petition, the US Supreme Court discussed the factual
circumstances of 3 petitioners.
- James Obergefell and John Arthur (from Ohio)
- One case involves James Obergefell, who is a male who has a
partner named John Arthur. They had been living together
exclusively for more than 10 years. In 2001, Arthur was
diagnosed with Amyotrophic Lateral Sclerosis (ALS). Arthur and
Obergefell lived in Ohio, where same sex marriage is not
allowed. Arthur wished to marry Obergefell before he dies. So,
they went to Baltimore, Maryland, where same-sex union is
allowed. At that time, Arthur was so sick that he could not even
go down from the plane. That’s why they had to celebrate the
marriage inside the plane while in the tarmac in Baltimore.
Several months later, Arthur died. The only wish of Obergefell
was that in the Arthur’s death certificate, he would be
recognized as the surviving spouse, but since same sex marriage
is not allowed in Ohio, that was not allowed. Obergefell was not
allowed to be registered as the surviving spouse. Obergefell
feels that in life, there were denied that recognition, and now,
even in death, they were still being denied of that recognition.
- April DeBoer and Jayne Rowse (from Michigan)
- The next case is April DeBoer and Jayne Rowse. They lived in
Michigan. Both are lesbian and are nurses. In Michigan, they are
not allowed to jointly adopt. Only legally married couples can
legally adopt. Each of them has their own respective wards. The
the problem arises, however, if one of them is not available, the
other cannot substitute. Thus, they want permanency; they
want to build a family where each possesses the responsibility
over the other. This is why they filed the petition.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Ijpe DeKoe and Thomas Kotsura (from Tennessee)
- The other one is the petition of Ijpe DeKoe and Thomas
Kotsura. DeKoe is an Army Reserve. Both are gay. They were
married in New York. They settled in Tennessee, where same
sex marriage is not allowed. The problem is that DeKoe, because
of his position in the Army, travels alot. Their marriage comes
and goes when he travels across state lines. In one state, they
are married, and in another, they are not and are mere
strangers. Hence, they want stability; they want continuity. This
is why they want to have their union recognized.
- The US Supreme Court said that there are four reasons why marriage is important.
(Reasons why Justice Kennedy overturned the Baker case)
1. The personal choice regarding marriage is inherent in the concept of
individual autonomy; so, if one can choose whether to undergo abortion
or if one can choose whether to use contraceptives, then they should be
allowed to choose whom to marry;
2. The choice of marriage supports a two-person union unlike any other;
3. It safeguards the children and the family; and
4. It constitutes the cornerstone or the bedrock of the community and the
nation’s order.
- In the prefatory statement of the Supreme Court in the case of Obergefell v.
Hodges, the US Supreme Court, through Justice Kennedy, declared that “The
Constitution promises liberty to all within its reach, a liberty that includes certain
specific rights that allow persons, within a lawful realm, to define and express their
identity.” This liberty should extend to certain personal choices central to personal
dignity and autonomy, including intimate choices that define individual identity and
belief.
- According to the US Supreme Court, the concept of marriage is one of both
continuity and change. The concept of marriage has evolved. From the start,
marriage is a pre-arranged union between two persons because their families
agreed for them to marry. It then evolved into a system of coverture where the wife
has no personality in a marriage; it is a male-dominated union. Then it evolved into
a consensual arrangement. The US Supreme Court said that marriage evolves. So,
our outlook on homosexuality and on same-sex union should likewise evolve.
Page 35 of 152
- The US Supreme Court in the case of Obergefell v. Hodges declared as
unconstitutional any law that prohibits same-sex union on the basis of equal
protection. According to the Supreme Court, from the recognition of the union, it
carries with it benefits, such as social security benefits, tax deduction benefits. To
deny these benefits to persons based on sexual preference violates the Equal
Protection Clause, because there is no difference, according to the Supreme Court,
between same-sex unions and heterosexual unions. Secondly, according to the
Supreme Court, the recognition of same-sex unions does not deprive the right of
heterosexual couples to marry. They still have that right, only that they will extend
such right to other groups of society who have different sexual preferences. In that
regard, the Supreme Court declared these laws as unconstitutional.
Regarding the authority of the parents in rearing the children, take note that the Constitution
says it is the NATURAL and PRIMARY RIGHT and DUTY of the parents.
- In the case of Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City,
the Supreme Court interpreted the meaning of the word “duty” under Section 12 of
Article II. The Supreme Court said that the inclusion of the word “duty” in rearing
the youth allows the government to interfere in the conduct of disciplining the
children because it is not only the right of the parents to rear their children, it is also
their duty. In this regard, the State can step in and determine whether the parents
are doing their duty to their children. This is also in line with the function of the
government as PARENS PATRIAE. Under the concept of Parens Patriae, the State, as
the parent of the nation, can guide the parents in disciplining and rearing their
children for civic efficiency and the development of moral character.
Sections 15 and 16 of Article II
Under Sections 15 and 16, we have learned in the case of Oposa v. Factoran that these are
constitutionally and judicially enforceable rights. The right to health and the right to a
balanced and healthful ecology are self-executing and they do not need implementing
legislation because they are natural and inherent rights of the individual.
- In this case, the Supreme Court said that “While the right to a balanced and
healthful ecology is to be found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is less important than any
of the civil and political rights enumerated under the latter. Such a right belongs to
a different category of rights altogether for it concerns nothing less than SELF-
PRESERVATION and SELF-PERPETUATION — aptly and fittingly stressed by the
petitioners — the advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic rights need not even
be written in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that unless the rights to a balanced
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
and healthful ecology and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing importance and imposing
upon the state a solemn obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would be lost not only for the
present generation, but also for those to come — generations which stand to inherit
nothing but parched earth incapable of sustaining life.”
In the case of Laguna Lake Development Authority v. CA, the Supreme Court said that the
guarantee of a balanced and healthful ecology carries with it a correlative duty on the part of
the government. The Supreme Court ruled that “As a constitutionally guaranteed right of
every person, it carries the correlative duty of non-impairment. This is but in consonance with
the declared policy of the state to ‘protect and promote the right to health of the people and
instill health consciousness among them.’ It is to be borne in mind that the Philippines is a party
to the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978
which recognize health as a fundamental human right.”
- In that regard, the Supreme Court sustained the authority of the LLDA to issue a
Cease and Desist Order for the operation of Open-Pit Garbage Sites because it will
pollute the rivers.
What is the PRINCIPLE OF STEWARDSHIP?
- Under the Principle of Stewardship, the people are the caretakers of the
environment.
What is the PRECAUTIONARY PRINCIPLE?
- In this jurisdiction, the Principle of Precaution appearing in the Rules of Procedure
for Environmental Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases
where there is lack of full scientific certainty in establishing a causal link between
human activity and environmental effect. In such an event, the courts may construe
a set of facts as warranting either judicial action or inaction with the goal of
preserving and protecting the environment.
- According to the Supreme Court in the case Mosqueda v. Pilipino Banana Growers
& Exporters Association, Inc., it is notable, therefore, that the precautionary
principle shall only be relevant if there is concurrence of three elements, namely:
(1) uncertainty; (2) threat of environment damage; and (3) serious or irreversible
harm. In situations where the threat is relatively certain, or that the causal link
between an action and environmental damage can be established, or the probability
of occurrence can be calculated, only preventive, not precautionary measures, may
be taken. Neither will the precautionary principle apply if there is no indication of a
threat of environment harm; or if the threatened harm is trivial or easily reversible.
Page 36 of 152
Sections 18 and 19 of Article II
In the case of Tañada v. Angara, the issue here was whether the GATT and the calling for the
creation of the WTO, violates the constitutional policy on independent and self-reliant
economy. The Supreme Court said that the policy on independent and self-reliant economy is
not a policy of isolation; it is not an isolationist policy. It also not a policy of mendicancy. What
the policy prohibits is the over-dependence on the basic necessities of the State. The Supreme
Court said that the policy on independent and self-reliant national economy allows our
government to open the gates to foreign goods and services so that these foreign goods and
services can compete with our best so that the people may also choose what products or
services to avail of. The Supreme Court sustained the constitutionality of our entry into the
GATT and the WTO. Corollary to this, the Supreme Court cited US President John F. Kennedy.
According to US President John F. Kennedy, “today no government can define its destiny
alone.. the age of self-sufficient nationalism is over.. the age of interdependence is here..” This
is a recognition that we cannot just isolate our country from the rest of the world, because
according to the Supreme Court in this case, we can promote our independence, we can
promote our sovereignty even in entering bilateral or multilateral agreements.
- In the words of the Supreme Court, “While the Constitution indeed mandates a
bias in favor of Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the world on the bases of
equality and reciprocity and limits protection of Filipino enterprises only against
foreign competition and trade practices that are unfair. In other words, the
Constitution did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy.
While the Constitution does not encourage the unlimited entry of foreign goods,
services and investments into the country, it does not prohibit them either. In fact it
allows an exchange on the basis of equality and reciprocity, frowning only on foreign
competition that is unfair.”
Section 21 of Article II
With regard to Section 21, regarding rural and agrarian reform, note that in the case of
Association of Small Landowners in the Philippines v. Secretary of Department of
Agriculture, the Comprehensive Agrarian Reform Law was assailed on the basis of its
imperfection. According to the petitioners, there is no guarantee that the Comprehensive
Agrarian Reform Law will solve the centuries-old problems regarding the distribution of
agricultural lands.
- In this case, the Supreme Court cited Greek Mythology. In the prefatory statement
of the case, the Supreme Court recounted the story of the battle between Hercules
and Antaeus. In that story, Antaeus was described as a terrible giant who blocked
and challenged Hercules for his life on his way to Mycenae after performing his 11th
Labor. We all know that Hercules is very proud/prideful/egotistic; he is the son of
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Zeus and he is known for his strength. When he met Antaeus, he gladly accepted
Antaeus’ challenge. But to Hercules’ amazement when he unleashes his fatal blows
and Antaeus touches the soil, he becomes stronger. Then it dawned upon Hercules
that Antaeus was the son of Gaea, the goddess of Earth. So, what Hercules did was
to fling Antaeus in mid-air and crushed him to his death.
- The moral of the story is that it emphasizes the importance of land to the
farmers. In that story, Hercules represents the landowners — mighty,
powerful, arrogant — while Antaeus represents the farmers/farmworkers
— meek, terrible, vulnerable. But as long as the farmers have a land to till,
nobody can defeat them, not even the mighty Hercules. As long as their
feet are planted on the ground, they are invincible; nobody can defeat
them. Like Antaeus in that story, to remove the farmers from the ground,
from the soil, which is the source of their life, they may die. This how the
Supreme Court emphasized the importance of land to the farmers.
- As regards to the merits of the case, the Supreme Court said that we cannot declare
unconstitutional a law because of its imperfections. We have to determine the
constitutionality of the law based on constitutional guidelines. As regards the
imperfections of the law, the Supreme Court said that yes, we agree that the law is
not perfect but the Supreme Court, citing Justice Holmes, said that “the law is an
experiment as all life is an experiment.” Thus, the Supreme Court said that we have
to start from somewhere; we cannot just expect a perfect law that will just rise into
existence; we have to hone and perfect our laws as we learn from our experiences.
In that regard, the Supreme Court declared the Comprehensive Agrarian Reform
Law valid.
Does the Constitution allow the distribution of lands, and in the alternative, representation of
lands, like shares of stock?
- In the case of Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council, the
Supreme Court sustained the option under the Old Comprehensive Agrarian Reform
Law because this provision under the Old Comprehensive Agrarian Reform Law was
already amended by RA 7900. Currently we only have one mode of distribution, that
is ACTUAL DISTRIBUTION. But nonetheless, as to the constitutional basis, the
Supreme Court said that Section 4 of Article XIII expressly provides that the State
may distribute the lands DIRECTLY or COLLECTIVELY. The Supreme Court said that
the use of the word “collectively” under Section 4 of Article XIII presupposes that
the government can either distribute the land directly or in common and distribute
representation over the land to which the persons have interest with. In that regard,
the Supreme Court declared stock distribution option as valid. But as discussed
earlier, now only ACTUAL DISTRIBUTION is allowed under the amendatory law.
Section 25 of Article II— The Concept of Local Autonomy
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The case of Basco v. PAGCOR involved a local ordinance. The petitioner here was challenging
the charter of PAGCOR, because PAGCOR, under its charter, cannot be subjected to local
taxation. According to the petitioner, the exemption of PAGCOR from local taxation infringes
on the autonomy of local government units.
- The Supreme Court said that the Concept of Local Autonomy under the
Constitution is only DECENTRALIZATION, and it does not make the local government
units an empire within an empire, or “imperium in imperio.” The Supreme Court said
that the concept of local autonomy allows the government to delegate
administrative powers to the local government units.
In the case of Limbona v. Mangelin, the issue here is whether the concept of autonomy in the
Autonomous Region was that of Decentralization of Power. This needed to be determined
because there are two kinds of Decentralization; it’s either 1) DECENTRALIZATION OF
ADMINISTRATION or 2) DECENTRALIZATION OF POWER.
- There is Decentralization of Administration when the central government
delegates administrative powers to the political subdivisions in order to broaden the
base of government power and in the process, to make local government more
responsive and accountable, and ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of national
economy and social progress. It relieves the national government of the burden of
managing local affairs and enables it to concentrate on national concerns. The
President exercises “general supervision” over them, but only to ensure that local
affairs are administered according to law. He has no control over their acts in the
sense that he can substitute their judgments with his own.
- On the other hand, there is Decentralization of Power when the central
government abdicates its political power to the local government units declared to
be autonomous, and this amounts to self-immolation. Self-immolation only means
self-destruction. In this case, the autonomous government is free to chart its own
destiny and shape its future with minimum intervention from central authorities.
- So, given the two choices, the Supreme Court said that the Concept of Autonomy
under the Constitution is only Decentralization of Administration. Even the
Autonomous Regions are still subject to the control and supervision of the national
government. In that regard, they do not enjoy full autonomy.
Does the Constitution allow the Concept of Free Association between the national
government and the local government?
- This is the main issue in the case of Province of Cotabato v. Government of the RP
Peace Panel on Ancestral Domain, because in the MOA-AD, the relationship
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between the national government and the Bangsamoro Juridical Entity was
characterized as one of “association.”
- Under international law, an ASSOCIATION is formed when two states of
unequal power voluntarily establish durable links, and under this model
one state, called the Associate, delegates certain responsibilities to the
other state, called Principal, while maintaining its independent,
international personality and status.
- According to the Supreme Court, FREE ASSOCIATIONS represent a middle
ground between INTEGRATION and INDEPENDENCE. In a free association,
the associate is on its way to full independence.
- Is this relationship allowed between the national government and local
government?
- The Supreme Court said no because under our unitary system
of government, no political subdivision can be detached from
the national government; all political subdivisions are subjected
to the control and supervision of the national government. This
is one of the reasons why the Supreme Court declared as
unconstitutional the MOA-AD, because it allows a free
association between the national government and the local
government units.
Section 26 of Article II
In the case of Pamatong v. COMELEC, the petitioner here was declared as a nuisance
candidate, because he wanted to run for the office of the President invoking the Equal Access
Opportunity for Public Service under Section 26 of Article II.
- The Supreme Court said that the policy of equal access opportunity for public office
is not a guarantee that anyone who wants to run for public office, anyone who wants
to serve for public service shall be accommodated.
- The Supreme Court said that as proof that the policy does not intend to
accommodate all, the Supreme Court said as previously worded, the original
wording of this provision was that “the State guarantees that it shall accommodate
anyone who wants to render public service,” because this original provision was
amended upon the recommendation of former Chief Justice Davide. According to
former Chief Justice Davide, as worded in the original provision of the Constitution,
it would require the government to create as many offices as there are public
suitors, and that would make the government as the number one employer of the
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world. The Supreme Court said that this is only to show that the guarantee of equal
access to opportunity does not mean that the government should accommodate all.
Section 28 of Article II
In the case of Province of Cotabato v. Government of the RP Peace Panel on Ancestral
Domain, the Supreme Court held that: “The people's right to information on matters of public
concern under Section 7, Article III of the Constitution is in splendid symmetry with the state
policy of full public disclosure of all its transactions involving public interest under Section 28,
Article II of the Constitution. The right to information guarantees the right of the people to
demand information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature, subject only to reasonable safeguards or limitations as may be provided by
law. An essential element of these twin freedoms is to keep a continuing dialogue or process
of communication between the government and the people. Corollary to these twin rights is
the design for feedback mechanisms. The right to public consultation was envisioned to be a
species of these public rights.”
In the case of Valmonte v. Belmonte, the Supreme Court held that: “The right to information
is an essential premise of a meaningful right to speech and expression. But this is not to say
that the right to information is merely an adjunct of and therefore restricted in application by
the exercise of the freedoms of speech and of the press. Far from it. The right to information
goes hand-in-hand with the constitutional policies of full public disclosure ** and honesty in
the public service. *** It is meant to enhance the widening role of the citizenry in governmental
decision-making as well in checking abuse in government.”
Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in
Legaspi v. Civil Service Commission, the people's right to information is limited to "matters of
public concern," and is further "subject to such limitations as may be provided by law."
Similarly, the State's policy of full disclosure is limited to "transactions involving public
interest," and is "subject to reasonable conditions prescribed by law."
- Hence, before mandamus may issue, it must be clear that the information sought
is of "public interest" or "public concern,” and is not exempted by law from the
operation of the constitutional guarantee.
As observed in the case of Legaspi v. Civil Service Commission, in determining whether or not
a particular information is of public concern there is no rigid test which can be applied. "Public
concern" like "public interest" is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Government agencies are without discretion in refusing disclosure of, or access to,
information of public concern. This is not to lose sight of the reasonable regulations which
may be imposed by said agencies in custody of public records on the manner in which the
right to information may be exercised by the public.
While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern,
and to afford access to public records cannot be discretionary on the part of said agencies.
Certainly, its performance cannot be made contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any
whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its
performance may be compelled by a writ of Mandamus in a proper case.
FUNDAMENTAL / INHERENT POWERS OF THE STATE
There are three inherent powers of the State. 1) Police Power; 2) Power of Eminent Domain;
and 3) Power of Taxation.
Similarities:
1. All these powers are inherent and, thus, they do not need any express
constitutional conferment;
2. They are all means by which the State interferes with property rights;
3. They all presuppose equivalent compensation; and
4. They are essentially legislative.
Differences:
1. Police Power covers both liberty and property, while the two other inherent
powers only cover property rights.
2. In Police Power, the just compensation is the altruistic feeling that the individual
has contributed to the common good, while in Eminent Domain, the compensation
is the full and fair equivalent of the property taken, and in Taxation, the
compensation that the taxpayer receives from the taxes paid include the public
services, protection, and infrastructure of the government.
3. Police Power and Taxation can only be exercised by the government, and when
we say “government,” it could either be the Congress or by the delegated power to
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the President and other administrative agencies, but the Power of Eminent Domain
can be delegated even to private entities or quasi-public corporations.
4. In Police Power, while property can be taken, only properties which are noxious
or intended for noxious purposes can be taken, and such taking is for destruction or
condemnation, while in Taxation and Power of Eminent Domain, the property taken
is wholesome and the purpose of taking is for public use or public purpose.
1. POLICE POWER
What is Police Power?
- In the case of Philippine Association of Service Exporters, Inc. (PASEI) v. Drilon,
the Supreme Court said “The concept of police power is well-established in this
jurisdiction. It has been defined as the ‘state authority to enact legislation that may
interfere with PERSONAL LIBERTY or PROPERTY in order to promote the general
welfare.’ As defined, it consists of (1) an imposition of restraint upon liberty or
property, (2) in order to foster the common good. It is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace.”
- The Supreme Court furthered, “Its scope, ever expanding to meet the
exigencies of the times, even to anticipate the future where it could be
done, provides enough room for an efficient and flexible response to
conditions and circumstances thus assuring the greatest benefits.” It
covers everything from moon to tomb, and from birth to death.
- As defined, Police Power consists of two elements:
1. It consists of an imposition of restraint upon LIBERTY or
PROPERTY; and
2. The purpose is for the COMMON GOOD.
- According to Professor Freund, “Police Power is the power to promote the general
welfare by restraining or regulating the use of LIBERTY and PROPERTY.”
- In Ichong v. Hernandez, the Supreme Court explained that “Police Power is far-
reaching in scope, and it is almost impossible to limit its sweep. It derives its existence
from the very existence of the State itself, and does not need to be expressed or
defined in its scope. It is said to be co-extensive with self-protection and survival, and
as such it is the most positive and active of all governmental processes, the most
essential, insistent and illimitable.”
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- In that regard, the Supreme Court said that there are four characteristics
of Police Power:
1. It is the most positive and the most active of all governmental
processes;
2. It is the most essential;
3. It is the most insistent; and
4. It is illimitable, but of course like any other power, the Police
Power of the State is subject also to some restraint.
Police Power of the State is not expressly granted by the Constitution for the plain reason that
it does not owe its origin from the State. Along with the Taxing Power and Power of Eminent
Domain, it is born from the very fact of statehood. Furthermore, according to Chief Justice
Marshall, to whom this statement has been credited, “The Police Power of the State is the
PLENARY POWER of the Government to govern its citizens, and it allows the government to
prevent all things hurtful to the comfort, safety, and convenience of the government.”
Police Power of the State constitutes an IMPLIED LIMITATION to the Bill of Rights.
- In the case of PASEI v. Drilon, the Supreme Court cited Justice Fernando, and
Justice Fernando said that the exercise of Police Power is “rooted in the conception
that men, in organizing the State and in imposing upon its government limitations
to safeguard constitutional rights, did not intend thereby to enable an individual
citizen or group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to ensure communal peace, safety, good order, and welfare.”
On that note, the Supreme Court said that “significantly, the Bill of Rights itself does
not purport to be an absolute guaranty of individual rights and liberties. ‘Even liberty
itself, the greatest of all rights, is not an unrestricted license to act according to one’s
will.’ It is subject to the far more overriding demands and requirements of the
greater number.”
- In the case of Ichong v. Hernandez, the Supreme Court said that “The conflict
between police power and the guarantees of due process and equal protection of
the laws is more apparent than real. Properly related, the power and the guarantees
are supposed to coexist. The balancing is the essence, or the indispensable means
for the attainment of legitimate aspirations of any democratic society. There can be
no absolute power, whoever exercises it, for that would be tyranny. Yet there can
neither be absolute liberty, for that would mean license for anarchy.”
- The Supreme Court furthered, “So the State can deprive persons of life,
liberty and property, provided there is due process of law; and persons may
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be classified into classes and groups, provided everyone is given the equal
protection of the law. The test or standard, as always, is reason. The police
power legislation must be firmly grounded on public interest and welfare,
and a reasonable relation must exist between purposes and means. And if
distinction and classification has been made, there must be a reasonable
basis for said distinction.”
Like we said earlier, Police Power is also subject to limitations. Police power of the State can
be exercised as long as it is NOT ARBITRARY or UNREASONABLE.
In various cases, the Supreme Court have laid down two tests for a valid exercise of Police
Power:
1. LAWFUL SUBJECT
- Lawful Subject is anything which involves the general welfare.
- The interests of the public generally, as distinguished from those of a
particular class, require the interference of the State.
2. LAWFUL MEANS
- Lawful Means, on the other hand, requires that the means employed
must have a rational connection with the objective sought to be satisfied
and not unreasonably oppressive upon individuals.
- The means employed are reasonably necessary to the attainment of the
object sought to be accomplished and not unduly oppressive upon
individuals.
What is a LAWFUL SUBJECT of Police Power?
- Anything that affects public interest is a lawful subject of Police Power.
- In the case of PASEI v. Drilon, the Supreme Court considered the right to travel of
female domestic workers as a lawful subject of Police Power.
- In the case of Ichong v. Hernandez, the Supreme Court ruled that a legitimate
business, which in this case was the Retail Trade, is a lawful subject of Police Power.
- In the case of Department of Education, Culture and Sports (DECS) v. San Diego,
the Supreme Court said that the choice of a profession is a lawful subject of Police
Power.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The governmental act challenged in this case is the NMAT Test, or the
Three-Flunk Rule. Under the 3-Flunk rule of the NMAT Test, any applicant
or student who fails the NMAT for three times will no longer be allowed
to enter the School of Medicine. It was challenged for being restrictive and
unreasonable.
- The Supreme Court emphatically declared that “The proper exercise of
the police power requires the concurrence of a lawful subject and lawful
method. The subject of the challenged regulation is certainly within the
ambit of the police power. It is the right and indeed the responsibility of
the State to insure that the medical profession is not infiltrated by
incompetents to whom patients may unwarily entrust their lives and
health. The method employed by the challenged regulation is not
irrelevant to the purpose of the law nor is it arbitrary or oppressive. The
Three-Flunk Rule is intended to insulate the medical schools and ultimately
the medical profession from the intrusion of those not qualified to be
doctors. While every person is entitled to aspire to be a doctor, he does not
have a constitutional right to be a doctor. This is true of any other calling
in which the public interest is involved; and the closer the link, the longer
the bridge to one’s ambition. The State has the responsibility to harness its
human resources and to see to it that they are not dissipated or, no less
worse, not used at all. These resources must be applied in a manner that
will best promote the common good while also giving the individual a
sense of satisfaction. A person cannot insist on being a physician if he will
be a menace to his patients. If one who wants to be a lawyer may prove
better as a plumber, he should be so advised and adviced. Of course, he
may not be forced to be a plumber, but on the other hand he may not force
his entry into the bar. By the same token, a student who has demonstrated
promise as a pianist cannot be shunted aside to take a course in nursing,
however appropriate this career may be for others.”
- So, the Supreme Court in Department of Education, Culture
and Sports (DECS) v. San Diego compared a lawyer to a
plumber. Do you see any relation to the comparison? Or is that
just a random comparison?
- Yes, there is an underlying message to the
comparison. The Supreme Court did not intend to
disrespect plumbing as a profession, because both
professions are noble. However, the Supreme Court
just wanted to deliver a message that if one has the
capacity or potential to become a problem-solver, he
should be advised. What do lawyers do in the exercise
of their profession? They file cases, if not multiple
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cases, in order to protect the interests of their clients.
And what is the result of the filing of all these cases?
It clogs the court dockets. So, what do plumbers do?
They remove the obstruction in order to maintain the
free flow of water. So, that is the message to that. The
Supreme Court is just saying that if you have the
potential to become a problem-solver, the State must
interfere and determine your capacity, so that we will
not become a society of misfits; a society of square
pegs in round holes. This is the message of the
Supreme Court in the case of Department of
Education, Culture and Sports (DECS) v. San Diego.
Again, there are two tests for a valid exercise of Police Power: 1) Lawful Subject; and 2) Lawful
Means. Is it enough for a governmental act to pass one of the two tests?
- In Ynot v. IAC, the Supreme Court said no, both tests must concur.
- In this case, the governmental act that was challenged E.O. 626-A, which
prohibited the inter-provincial transportation of carabaos and carabeef,
and the objective of this prohibition is to prevent indiscriminate
slaughtering.
- The Supreme Court said that definitely the objective is a lawful
subject, since it is within the interest of the State to preserve the
decreasing number of carabaos. As for the lawful means,
however, the Supreme Court struck down E.O. 626-A as
unconstitutional because there was no rational connection
between the object of the law, which is the prevention of the
indiscriminate slaughtering of carabaos, and the means
employed, which is the prohibition of inter-provincial
transportation of carabaos and carabeef, because carabaos,
according to the Supreme Court, can be slaughtered with less
difficulty in one province as in any other provinces. Thus, the
prohibition of the inter-provincial transportation will not
increase the protection because carabaos can be slaughtered
anywhere. In that regard, the Supreme Court declared E.O. 626-
A as unconstitutional for failure to comply with the Lawful
Means Test.
As we have said earlier, we have three inherent powers. Do these three inherent powers live
on different planets? Do they lie on opposite poles? I ask because the traditional application
of the three inherent powers is that they are mutually exclusive. In other words, the exercise
of Police Power would be to the exclusion of the Power of Eminent Domain and Taxation. This
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
was the ruling of the Supreme Court in the case of City of Baguio v. National Waterworks and
Sewerage Authority (NAWASA). Thus, do we still follow the same principle? Do we still
observe the rule that the exercise of one inherent power would be to the exclusion of the
others?
- In Lutz v. Araneta, the Supreme Court ruled that it has already abandoned this
traditional principle. Thus, the three inherent powers can coexist; the three inherent
powers can be used simultaneously as an implement or compliment of each other.
- In this case, the law challenged was Commonwealth Act No. 567, which
imposed taxes on sugar production. This tax measure was being
challenged on the basis that it was not uniform because it only imposed
the tax on sugar.
- The Supreme Court did not agree and said that the tax measure
was a valid governmental act because Commonwealth Act No.
567 was issued not in the exercise of Power of Taxation,
whereby the principles of uniformity, equity and the directive
that it must be progressive must be observed, but the power
exercised by Congress in enacting the law was Police Power,
only using the Power of Taxation as an implement or as an
instrument thereto.
When do we say that a tax measure is enacted in the exercise of Police Power using only the
Power of Taxation as an implement and when do we say that a tax measure is enacted in the
exercise of Power of Taxation?
- The answer is it depends on the objective.
- If the objective of the tax measure is to regulate an activity or an article,
the power exercised by the Congress is Police Power, only using the Power
of Taxation as an implement/instrument.
- If the objective of the tax measure is to raise revenue, the power involved
in this case is the Power of Taxation.
It is now clear that the Power of Taxation can be used as an implement or instrument to Police
Power. Can we also say the same with the Power of Eminent Domain?
- Take note that the Power of Eminent Domain cannot be used as an implement or
instrument to Police Power, but the Power of Eminent Domain can be used as a
COMPLIMENT to Police Power.
What is the difference between an IMPLEMENT and a COMPLIMENT?
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- Implement means that the power is only used as an instrument.
- Compliment means that it is used simultaneously together with another power.
This is in line with the statement “you complete me <3.”
The Power of Eminent Domain can be used to COMPLIMENT Police Power. The application of
this principle was discussed by the Supreme Court in the case of Association of Small
Landowners v. Secretary of Agrarian Reform.
- In the case of Association of Small Landowners v. Secretary of Agrarian Reform,
what was challenged was the Comprehensive Agrarian Reform Law (CARL). The
CARL imposes retention limits on the owners of agricultural land, and it also requires
the distribution of lands in excess of the retention limits.
- The Supreme Court said that the powers discharged by the Congress in
implementing the CARL are powers of Police Power and the Power of
Eminent Domain. Insofar as the law imposes restrictions on the limits of
landholdings, it is exercising Police Power because it regulates property
rights. But as to the distribution of property in excess of the retention
limits, the power exercised is the Power of Eminent Domain, and since a
property is taken, there must be a corresponding just compensation. Thus,
in this case, the Power of Eminent Domain is exercised as a compliment,
not an implement, to Police Power.
We said earlier that Police Power is the power exercised by the State in regulating liberty and
property. Can Police Power be exercised to take property or to confiscate property? I ask
because according to Justice Holmes, while the general rule is that property may be regulated
to a certain extent, if regulation goes too far it will be recognized as taking. So, does this mean
that property cannot be taken in the exercise of Police Power?
- The answer is no. Properties can also be taken in the exercise of Police Power,
subject to the limitation that there are only specific types of properties which may
be taken in the exercise of Police Power. In this regard, let’s take the case of City
Government of Quezon City v. Ericta.
- In City Government of Quezon City v. Ericta, the petitioner sought to
implement an ordinance, which imposes a mandatory donation to the
government of 6% of the total area of every memorial park operating in
Quezon City. The purpose of the imposition of this forced donation is to
allow the City Government to use these memorial lots for the burial of
pauper residents. Is this a valid exercise of Police Power?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- No. The Supreme Court said that the imposition of the 6%
donation amounts to a taking, but such is not a taking in Police
Power because the property involved in this case is a
WHOLESOME PROPERTY. The Supreme Court said that only
properties which are NOXIOUS or intended for NOXIOUS
PURPOSES can be taken in the exercise of Police Power.
Secondly, a valid taking in Police Power is for DESTRUCTION or
CONDEMNATION. If the objective of taking is for public use, this
is not the exercise in Police Power, but rather, it is the exercise
in the Power of Eminent Domain. In that regard, there must be
a corresponding just compensation.
- Let’s also take the case of Manila Memorial Park v. Secretary of DSWD.
In this case, the issue here is the constitutionality of the treatment of the
discount granted to senior citizens because after its amendment, the 20%
discount extended to senior citizens shall only be treated as deductible
expenses before tax. As distinguished from the prior law, the prior law
considers the discount as a tax credit, which means that under the tax
credit regime, every centavo granted to senior citizens can be deducted
from the tax due, which means that there is peso-to-peso compensation.
Under the tax-deductible regime, however, the establishment can only
recover up to the extent of 32%, so which means that the 68% shall be
borne by the establishment. In this case, the petitioners are challenging
the governmental act on the basis that it is an invalid exercise of the Power
of Eminent Domain because there was a taking of private property
without the corresponding payment of just compensation.
- The Supreme Court said that the governmental act challenged
is a valid and constitutional act because there was no taking
involved. The Supreme Court said that the act only imposes
regulation, and it does not take property because the discount
granted to the senior citizens is not yet part of the profits, and,
therefore, it is not yet the property of the establishment. There
is a mere expectation that it may become part of the profits, but
it is not yet part of the profits. The Supreme Court compared the
Senior Citizens Discount Law to another law, which is the Price
Control Law. The Price Control Law, according to the Supreme
Court, is definitely a regulatory law, because it imposes limits on
the prices of basic commodities. In essence, the Supreme Court
said that under the Price Control Law, the State is only
regulating the right of the establishment to make profits.
Similarly, in the case of the Senior Citizen Discount Law, the
State is also regulating the right to determine how much will be
taken as a profit. Thus, there is no taking of private property.
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What is involved here is only a regulation and, therefore, there
is no requirement for a corresponding payment of just
compensation.
While Police Power is inherent, it is nonetheless based on two principles. The two principles
which are the basis of the exercise of Police Power are:
1. SALUS POPULI EST SUPREMA LEX
- The welfare of the individual must yield to that of the community.
- The interest of the State is the supreme law.
2. SIC UTERE TUO UT ALIENUM NON LAEDAS
- One should use his property so as to not injure other property rights.
The principles of Salus populi est suprema lex and sic utere tuo ut alienum non laedas both call
for the subordination of private interests to the general welfare.
2. POWER OF EMINENT DOMAIN
The Power of Eminent Domain is sometimes referred to as the Power of Expropriation. Can
we say that these two terms mean one and the same thing?
- The answer is no. Eminent Domain is different from Expropriation, and this is
apparent from Section 1 of Rule 67 of the Rules of Court.
- Under Section 1 of Rule 67, it is expressly provided that “The Right of Eminent
Domain shall be exercised through the filing of a verified complaint…,” and this
verified complaint is a Complaint for Expropriation. This means the Power of
Eminent Domain refers to the inherent power to take private property, while the
Power of Expropriation is the remedy that must be resorted to by the State in
exercising the Power of Eminent Domain. Hence, these two terms are different.
The Power of Eminent Domain is oftentimes regarded as “the highest and most exact idea of
property remaining in the government,” because under the Power of Eminent Domain, all
private properties are reserved to the government for future use. This means that at any time
in the future, the government can confiscate the property for public use upon payment of just
compensation.
If the Police Power is based on the principles of salus populi est suprema lex and sic utere tuo
ut alienum non laedas, what is the basis of the exercise of the Power of Eminent Domain? Can
we say that Section 9 of Article III of the 1987 Constitution is the source of the exercise of
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Eminent Domain? Can we also say that Section 18 of Article XII is the source of the exercise of
Eminent Domain?
- The answer is no. The Power of Eminent Domain does not need a constitutional
provision.
- Section 9 of Article III and Section 18 of Article XII are mere limitations on the
exercise of the Power of Eminent Domain.
- Section 9 of Article III applies to all properties in general, whereas section 18 of
Article XII only applies to public utilities. In other words, aside from the general
limitations under Sect. 9 of Art. III, the takeover of public utilities shall require
national emergency and national security. In that regard, both provisions are
intended to limit the Power of Eminent Domain.
In the case of City of Manila v. Chinese Community of Manila, the Supreme Court said “The
exercise of the Right of Eminent Domain is necessarily in derogation of private rights, and the
rule in that case is that the authority must be strictly construed. No species of property is held
by individuals with greater tenacity and none is guarded by the Constitution and laws more
sedulously, than the right to the freehold of inhabitants. When the legislature interferes with
that right, the plain meaning of the law should not be enlarged by doubtful interpretations.”
- Any doubt as to the exercise of the Power of Eminent Domain should be construed
in strictissimi juris and shall be resolved against the exercise and in favor of the
property owner.
What is the source of the Power of Eminent Domain?
- The Power of Eminent Domain originates from NECESSITY. It is the necessity which
is the basis of the exercise of the Power of Eminent Domain.
- Again, in the case of City of Manila v. Chinese Community of Manila, the
Supreme Court said that “The very foundation of the right to exercise
Eminent Domain is a GENUINE NECESSITY, and that necessity must be of a
PUBLIC CHARACTER. The ascertainment of the necessity must precede, and
not follow, the taking of the property. The general power to exercise the
Right of Eminent Domain must not be confused with the right to exercise
it in a particular case.”
Is the question of necessity of justiciable question? Is it a controversy which could be
adjudicated by the courts of justice?
- This question was resolved in City of Manila v. Chinese Community of Manila. In
this case, the petitioner sought to expropriate parts of respondent’s Chinese
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Cemetery for the extension of a road. However, the respondent Chinese Community
was operating another property for free, and the respondent essentially said, “Don’t
take that part. We will instead give you another alternative for free.” The petitioner,
however, refused. The issue here is whether the question of necessity is a justiciable
controversy or a political question. It was the position of the petitioner that in
expropriation proceedings, there are only two issues that are to be resolved by the
court: first, the authority to expropriate; and second, the determination of just
compensation. According to the petitioner, once the authority to expropriate is
established, the only remaining question is the amount of just compensation.
- The Supreme Court did not agree. The Supreme Court said that in
expropriation proceedings, necessity can also be a justiciable controversy
depending on who exercises the Power of Eminent Domain.
- If the Power of Eminent Domain is exercised by the Congress
directly, the question of necessity is definitely a POLITICAL
QUESTION, which means the courts cannot determine whether
the exercise is proper or not.
- If the Power of Eminent domain is exercised by a delegate
under a SPECIFIC DELEGATION, it remains to be a POLITICAL
QUESTION question. Specific Delegation means that when the
Congress delegates the Power of Eminent Domain to the
representative, the Congress determines the purpose, the
property, and the use of the property. In this case, it remains to
be a political question.
- However, when the exercise of the Power of Eminent Domain
is through a representative under a GENERAL DELEGATION, the
question of necessity is a JUSTICIABLE CONTROVERSY.
- In the case of City of Manila v. Chinese Community of Manila, since the
charter of the City of Manila only grants the Power of Eminent Domain to
the City of Manila in a General Delegation, the question of necessity can
be assumed by the expropriation courts.
What properties can be taken under the Power of Eminent Domain?
- ONLY PRIVATE PROPERTIES.
Can public properties be expropriated? I ask because if we read Section 1 of Rule 67, the law
provides that “If the title to any property sought to be expropriated appears to be in the
Republic of the Philippines…averment to that effect shall be made in the complaint.” This rule
implies that properties registered in the name of the Republic of the Philippines can be
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
expropriated. So, can we say that public properties or properties registered in the name of
the Republic can be the subject of the Power of Eminent Domain?
- Take note that the Power of Eminent Domain is to be exercised by the State as a
LAST RESORT because whenever the government needs a property for public use,
the first thing that the government will do is to negotiate with the owner. The
government will first ask the owner if the owner is willing to sell or not. It is only
when the owner refuses to voluntarily yield with his property that the government
shall initiate expropriation proceedings.
- On that note, can the government expropriate public properties?
- The answer is no because if we will allow the expropriation of public
property or properties registered in the name of the Republic, it would
result in the absurd situation when the government needs a property but
the owner of that property refuses to yield with his property and it will
also lead to the situation that when the government needs a property and
the owner does not voluntarily yield with his property, the government
will pay just compensation to the owner of the property, which in both
cases will also be the government.
- The statement under Section 1 of Rule 67, which provides that when the title to
the property subject of expropriation is registered in the name of the Republic of
the Philippines, only presupposes that there are PRIVATE INTERESTS ATTACHED TO
A PUBLIC PROPERTY.
- Let’s take for example a land belonging to the Republic of the Philippines
is subject of a lease agreement between the Republic and XYZ
Corporation. The term of the lease agreement is, let’s say for example, 10
years. So, XYZ Corp. will use the property of the government upon
payment of rental fees. During the 10-year period, however, the
government needs the property for public use. Definitely, the government
cannot just violate the contract because that is the law between the
parties. Nevertheless, the government can expropriate the contract; the
government can buy-out the contract. In that regard, the subject of
expropriation or what is expropriated is the PRIVATE INTEREST attached
to the government property, not the property itself because public
properties cannot be expropriated.
- With that said, however, PROPERTIES DEVOTED TO PUBLIC USE can be
further expropriated. Properties devoted to public use is different from
public property. Properties devoted to public use, like in the case of City
of Manila v. Chinese Community of Manila, refers to the situation when
a property of private ownership is devoted to public use. Anyone can use
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the property, and any person who wants to buy it can do it. This is a
property devoted to public use, and such property remains to be a private
property.
According to Justice Cruz, any private property, whether it be tangible or intangible, real or
personal, can be expropriated. Anything that will come into the dominion of man can be
expropriated, EXCEPT money and choses in action.
- Choses in Action are not yet properties; they are a mere expectancy and, thus, they
have yet to ripen into a right.
- As for money, according to Justice Cruz, money cannot be expropriated because if
allowed, it will result in the absurd situation where the government will seize/take
money for money.
- Can we say that US Dollars are money?
- Yes definitely, US Dollars are money. Take note, however, that
possession of US Dollars by a State is different from the
possession of the local currency, because Dollar Reserve is very
necessary in measuring the financial status of a State. This
means that even if a State has a high local currency reserve, and
if it has a low US Dollar Reserve, then its financial status is very
low. So, when a State with a low US Dollar Reserve contracts a
loan, it will be subjected to a restrictive interest. Since US Dollars
are money, can they be expropriated?
- The answer is yes, US Dollars can be expropriated.
This is allowed because it will not result to the absurd
situation wherein the government will take an apple
for an apple. Here, the government will take the apple
for a guava. Thus, the statement of Justice Cruz that
money cannot be expropriated should only be
interpreted to mean the “legal tender.” Thus, foreign
currencies can be expropriated and even Philippine
Pesos which have been out of circulation can be
expropriated for its HISTORICAL VALUE, and not for its
face value.
In sum, any private property can be expropriated, but not public properties.
How about services? Can services be expropriated?
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- This question was answered by the Supreme Court in the case of Republic v.
Philippine Long Distance Telephone Co. (PLDT). In this case, prior to the supposed
exercise of the Power of Eminent Domain, there was a contract between PLDT and
the Bureau of Telecommunications for interconnection. Upon the expiration of the
contract, PLDT was no longer willing to renew it. One of the questions in this case
was whether the Republic can compel PLDT to renew the contract. The Supreme
Court said no, PLDT cannot be compelled to renew the contract because one of the
essential elements of a contract is the voluntary consent of the parties. In other
words, a party cannot be compelled to enter into a contract. However, can the
government expropriate the services of PLDT?
- The Supreme Court said yes. Services are also private property. Since
services are private property, they can be expropriated through the
exercise of the Power of Eminent Domain. This is the ruling of the
Supreme Court in Republic v. Philippine Long Distance Telephone Co.
(PLDT).
Does that mean now that any private service can be expropriated in the exercise of the Power
of Eminent Domain? [No]
- The ruling by the Supreme Court in the case of Republic v. Philippine Long Distance
Telephone Co. (PLDT) that services that can be expropriated shall only be limited to
the services involved in that case — telecommunications — and similar services. In
other words, the services that can be expropriated are PUBLIC UTILITY SERVICES.
This may include transportation, power, and other public utility services, but not
personal services.
Does size matter?
- No, size does not matter.
- This is the ruling by the Supreme Court in the case of Sumulong v. Guerrero. In this
case, the Socialized Housing Project of the government was challenged. One of the
bases of the challenge was that the Power of Eminent Domain can only be exercised
to expropriate “large tracts of land.” According to the petitioner, his property was
just a small property since it was barely one hectare in size, and there were
hundreds of hectares available in Antipolo, Cupang, and in Muntinlupa. So, the
petitioner questioned the government why it needs to seize his small property when
there were other available tracts of land. The Supreme Court said the
constitutionality of the exercise of the Power of Eminent Domain does not depend
on the size of the property expropriated. The Supreme Court held that its earlier
ruling in the case of Guido v. Rural Progress Administration has already been
abandoned because in that case, the ultimate test in determining a valid exercise of
the Power of Eminent Domain was the size of the property and the number of
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beneficiaries. The Supreme Court said that this is no longer the applicable doctrine.
The current and controlling applicable doctrine is that any property, big or small,
which is needed for public use can be expropriated through the exercise of the
Power of Eminent Domain.
In order to exercise the Power of Eminent Domain, there must be TAKING in a constitutional
sense. Is taking in Eminent Domain require a transfer of ownership of the property
expropriated?
- The answer is no.
Does taking in Eminent Domain, at the very least, require the transfer of possession of the
property expropriated?
- The answer is also no.
There is taking in Eminent Domain even if the title of the property remains with the owner.
There is taking in Eminent Domain even if the possession of the property remains with the
owner.
- In order to better understand these principles, let us take the case of People v.
Fajardo. In this case, there was an ordinance issued by the local government unit
that required a permit for any construction to be done within a specified area. Under
the ordinance, any construction within the area affected by the ordinance should
not obstruct the view of the plaza from the highway. The accused in this case,
ironically, was the Mayor when the ordinance was passed. When his property was
destroyed by a typhoon, he tried applying for a permit to use a property that was
adjoining the plaza for the construction of his house. The accused was no longer
Mayor at this time. Since the incumbent Mayor at the time was his political foe, of
course he saw to it that he would make it hard for the accused to build his house in
that area. Hence, the permit was not granted. Nonetheless, the accused built his
house without a permit. As a result, he was prosecuted for violation of the
ordinance. The incumbent Mayor argued that, in this case, there was no taking of
property involved, and it was only a regulation. Remember in this case, the accused
is still the owner of the property and is still in possession of the property, but the
accused cannot build anything on his property considering the fact that anything he
builds on his property will definitely obstruct the view of the plaza from the highway.
Was that only a regulation or was there already taking under the Power of Eminent
Domain?
- The Supreme Court said there is already a taking under Eminent Domain;
it is not just regulation because any restriction on the use of the property
that deprives the owner of the beneficial use of his property amounts to
taking in Eminent Domain.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The Supreme Court emphatically declared, “A Municipal Ordinance is
unreasonable and oppressive if it operates to permanently deprive
appellants of the right to use their own property; it then oversteps the
bounds of Police Power without just compensation. We do not overlook
that the modern tendency is to regard the beautification of neighborhoods
as conducive to the comfort and happiness of residents. But while property
may be regulated in the interest of the general welfare and, in its pursuit,
the State may prohibit structures offensive to sight, the State may not,
under guise of Police Power, permanently divest owners of the beneficial
use of their property and practically confiscate them solely to preserve or
assure the aesthetic appearance of the community. To legally achieve that
result, the landowner should be given just compensation and an
opportunity to be heard.”
- The Supreme Court in the case of Republic v. Philippine Long Distance Telephone
Co. (PLDT) ruled that the mere imposition of burden on the property or easement
on the property is taking and, therefore, there must be an equivalent compensation.
In the case of Republic v. Vda. De Castellvi, the Supreme Court enumerated five requisites of
TAKING in Eminent Domain:
1. The expropriator must enter the private property;
2. The entrance into the private property must be for more than a
momentary period;
3. The entry into the property should be under a warrant or color of legal
authority;
4. The property must be devoted to public use or otherwise informally
appropriated or injuriously affected; and
5. The utilization of the property must be in such a way as to oust the
owner and deprive him of all the beneficial use of his property.
- In the case of Republic v. Vda. De Castellvi, there are several dates where the
government and the owner were establishing taking in Eminent Domain because
the Republic first entered the property on July 1, 1947. On this date, there was a
contract between the government and the owner of the property for the use of the
property by the Philippine Air Force. This contract was for a 1-year term renewable
on a year-to-year basis. Starting July 1, 1947, the government was already occupying
the property. On June 30, 1956, the owner of the property was no longer willing to
renew the contract, but the government continued to stay on the property despite
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the fact that the contract was already terminated. Subsequently, on June 26, 1959,
the government initiated expropriation proceedings. On August 10, 1959, the
Expropriation Court issued a Writ of Possession to place the government in
possession of the property expropriated.
- The issue in this case was when does taking start? When does taking in Eminent
Domain start? Did it start on July 1, 1947? Or did start on June 30, 1956 when the
contract was terminated? Or did it start on June 26, 1959 when the expropriation
proceedings were initiated? Or did it start on August 10, 1959 when the Writ of
Possession was issued by the court?
- Was there taking on July 1, 1947 under the circumstances? Let’s apply
the five requisites. So, first requisite: did the government enter the private
property? The answer is yes. Second requisite: was the entry into the
private property for more than a momentary period only? The answer is
no because the contract was for a fixed term and since the contract was
for a year-to-year basis, the expectation was that after the expiration of
the contract the expropriator will no longer occupy. Hence, the second
requisite is lacking. How about the third requisite: is it under a warrant or
color of authority? The answer is yes because there is a lease agreement,
therefore, the government has a right to stay in the property. Fourth
requisite: is it for public use? The answer is yes, it was for the use of the
Philippine Air Force. The last requisite: was the property owner ousted of
the beneficial use of the property? The answer is no because on July 1,
1947, the property owner is still collecting rent and, therefore, there was
no absolute deprivation of the use of the property.
- How about June 30, 1956 when the owner no longer wanted to extend
the contract? First: did the government enter a private property? Yes,
because the government is still in possession. Second: is it for more than
a momentary period only? Yes, because it is already indefinite. Third: was
the entry under a warrant or color of authority? The answer is no because
the government is occupying the property without any title nor right.
Here, the government is an intruder insofar as the possession is
concerned.
- So, in this case, when was there taking in Eminent Domain?
- Taking in Eminent Domain occurred UPON THE FILING OF THE
COMPLAINT FOR EXPROPRIATION; not upon the time the Writ
of Possession is awarded. This means that once the government
initiates a Complaint for Expropriation there is already taking in
Eminent Domain even if the government is not yet in placed in
possession. So, this means that the taking happened upon the
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
time of the filing of the Complaint and, therefore, the amount
of just compensation shall be determined as of the date of the
taking, which is the filing of the Complaint for Expropriation.
In the cases of Philippine Press Institute (PPI) v. COMELEC and Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP) v. COMELEC, the Supreme Court
distinguished the character of the subject COMELEC Regulation which requires all newspaper
publications to give COMELEC a space for it to be used by the latter for its activities. While in
TELEBAP, the regulation imposes an obligation to television and broadcast media to give the
COMELEC time to be used by the latter for its announcements of its projects. In TELEBAP, the
Supreme Court said that there is no requirement of just compensation, but in the case of PPI,
the Supreme Court said that there must be just compensation for the use of the space in the
newspaper. Why is there a difference?
- The difference lies in the fact that insofar as the newspaper is concerned, space in
the newspaper is a private property because it is owned by the publisher. So, if the
COMELEC takes that private property there must be a corresponding payment of
just compensation. As for TELEBAP, however, the time sought by the COMELEC is
only pursuant to a regulation of the use of the frequencies and the air waves. The
frequencies and the air waves remain to be the properties of the State. Since it is
the properties of the State, the use of such properties only constitutes regulation
and does not amount to a taking.
The next requisite of a valid exercise of the Power of Eminent Domain is PUBLIC USE.
Does public use in Eminent Domain require that the property expropriated be used by the
public? Does the term “public use” mean it is to be used by the public?
- This was the traditional application of public use in Eminent Domain. Any property
expropriated in the exercise of the Power of Eminent Domain must be available for
use by any individual without any discrimination. This is the traditional concept of
public use.
- However, in the case of Sumulong v. Guerrero, which involved a Socialized Housing
Program whereby the government constructed and sold low-cost housing to
qualified beneficiaries, the petitioners were challenging the constitutionality of the
expropriation because it was not done for public use considering that only the
beneficiaries can use the property, not the public in general.
- The Supreme Court abandoned the traditional concept of public use and instead
applied the Expanded Concept of Public Use in Eminent Domain. According to the
Supreme Court, any advantage, direct or indirect, to the public is public use in
Eminent Domain. Thus, there is no need for the property to be used by any person
who intends to use the property. As long as the taking of the property will redound
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to the benefit of the public, there is compliance with the public use requirement in
Eminent Domain. The Supreme Court said that lack of housing is a social ill, and the
Socialized Housing is intended to address this social problem. Thus, while it may be
enjoyed by the beneficiaries, there is an indirect public advantage because the State
is addressing a social problem.
- Similarly in the case of Manosca v. CA, which involved the taking of the birth site
of the founder of Iglesia Ni Cristo for the construction of a marker, the Supreme
Court said that even if the use of the property will be beneficial to a religious
organization, the property was taken not for its religious significance but because of
the recognition of the contribution of Felix Manalo to the formation of the Philippine
society. In that regard, the construction of the marker on the property constitutes
public use.
The last requisite of Eminent Domain is JUST COMPENSATION. Is just compensation the fair
market value of the property?
- The answer is no. Just compensation is not only the fair market value of the
property.
- JUST COMPENSATION is the full and fair equivalent of the property expropriated
at the time of the taking, computed from the context of losses suffered by the
property owner.
- This means that aside from the fair market value, there are other factors that must
be considered by the Expropriation Court in establishing just compensation. One of
the factors that must be considered by the courts in determining just compensation
is the promptness of payment, as well as other factors which were enumerated by
the Supreme Court in the case of Sumulong v. Guerrero and some of these factors
are 1) the improvements of the property; 2) the potential capacity of the property
for use; and 3) other factors that must be considered by the court.
The determination of just compensation is a judicial prerogative. It is to be established by the
Expropriation Court with the assistance of not more than 3 Commissioners (the maximum is
3; it can be less, but it cannot exceed 3).
In the case of Sumulong v. Guerrero, the petitioners argue that in Eminent Domain cases, just
compensation shall be the assessed value of the property for tax purposes applying the
Doctrine of Estoppel because according to the equitable principle of Estoppel, if a party
obtains a benefit from a statement, he cannot at a later date disown that statement. Property
owners derive benefits from the low valuation of the property for tax purposes because they
only pay low taxes. Thus, according to the government in this case, property owners are
already estopped from challenging the accuracy of the value of the property for tax purposes
because they have already derived benefits from the valuation.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The Supreme Court said no, the Doctrine of Estoppel cannot be applied in
expropriation proceedings because the Doctrine of Estoppel is only an equitable
principle so it cannot be applied when there is a specific constitutional provision or
when there is a specific law that provides for the amount of just compensation.
Insofar as Eminent Domain is concerned, the Constitution itself provides for the
compensation which must be just. Again, just compensation is the full and fair
equivalent of the property expropriated at the time of taking. In this case, the
valuation of the property for tax purposes was not the actual value of the property
at the time of the taking because the valuation happened several years ago and the
valuation was fixed on generalities, not on the specific conditions of the property
subject of expropriation.
Can the Congress enact a law that in Eminent Domain cases, just compensation will be the
sworn valuation of the property by the property owner, or the assessed value of the property
for tax purposes, whichever is lower?
- This question was raised in the case of EPZA v. Dulay. In this case, the respondents
challenged the constitutionality of several Presidential Decrees issued by President
Marcos at the time he was exercising legislative powers, which provided that in
Eminent Domain cases there are only two valuations that could be used, but just
compensation shall always be the lower value of the two valuations.
- The Supreme Court declared these Presidential Decrees as
unconstitutional because they encroached on the judicial power of the
courts to determine just compensation. The Supreme Court said that the
assessed value of the property is a guide only, but it is not conclusive upon
the courts and, thus, it is still incumbent upon the court to establish just
compensation.
In establishing just compensation, the Rules of Court requires that the court must appoint not
more than 3 Commissioners. Can the court dispense with the appointment of the
Commissioners?
- As a general rule, the courts CANNOT dispense with the appointment of
Commissioners because it is MANDATORY, EXCEPT when the expropriator and the
property owner have already agreed on the value of the property. If both the
expropriator and the property owner have agreed upon the value of the property,
then the court may dispense with the appointment of the Commissioners.
Who owns the property expropriated upon the finality of the Order of Expropriation?
- The answer is it remains to be the private property of the owner.
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What is the remedy of the private owner whenever the government fails to pay just
compensation?
- In the case of Republic v. Lim, the Supreme Court laid down the rule that if the
expropriator failed to pay just compensation within 5 years from the finality of the
Order of Expropriation, the property owner has the remedy to recover the physical
possession of the property expropriated. This means that the expropriator only has
5 years within which to pay just compensation.
Can we say that the ruling of the Supreme Court in Republic v. Lim has already overturned the
previous doctrine that the non-payment of just compensation does not authorize the property
owner to recover physical possession of the property expropriated? I ask because under the
old rule, the only remedy of the property owner is to demand payment with damages and
interest. Can we say now that Republic v. Lim has already abandoned that rule and has now
set a new rule that provides that whenever the government fails to pay within 5 years, the
property owner is entitled to recover physical possession? [No]
- The Republic v. Lim doctrine is only an exception to the general rule. The general
rule remains to be that the non-payment of just compensation shall not entitle the
property owner to recover physical possession. The rule in Republic v. Lim will only
be implemented when the reasons for the promulgation of that decision are
present.
- Let’s take the case of Republic v. Lim. In this case, the property was
expropriated for the construction of an airport for the Armed Forces.
There were several judgments issued by the Expropriation Courts and
both were final. 57 years after the finality of the first Order of
Expropriation, the government still refused to pay just compensation. This
impelled the Supreme Court to say that the government should return the
property because the government has long delayed the payment of just
compensation. The Supreme Court then said that within 5 years the
expropriator must pay, and if the expropriator cannot pay, then the
property must be returned.
- Let’s say for example, the government expropriates the property of Juan
de la Cruz, the purpose of which is to build an expressway. Supposing the
property of Juan de la Cruz is so big that it covers the entire stretch of the
expressway. Supposing upon the finality of the Order of Expropriation, the
government introduces the necessary improvements to construct the
expressway. Supposing that within a period of 5 years, the construction of
the expressway is done, but the government failed to pay just
compensation. Does that mean the government has to return the
property together with its accessories, together with the highway?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- If we will apply the ruling of the Supreme Court in Republic v.
Lim, this is the necessary consequence — the principal carries
with it the accessory. The government, aside from returning the
land, must also give the accessories and the improvements. In
order to avoid this absurdity, the ruling in Republic v. Lim shall
only be implemented if within 5 years the expropriator failed to
pay just compensation AND there is an express or implied
abandonment of the public use of the property. Remember in
Republic v. Lim, there were only 13 structures introduced on the
property after 57 years. The property was expropriated for the
construction of the airport, but after 57 years there was no
airport constructed; there were only 13 structures and 8 of
these structures were residential. This means that the
government had already abandoned the public use. This is the
reason why the Supreme Court ordered the return of the
property. However, if the government has fully utilized the
property, the return of the property can no longer be done. In
such a case, the only remedy of the property owner is to
demand the payment of just compensation together with
damages and interest.
3. POWER OF TAXATION
What is the principle behind the Power of Taxation?
- The principle is the LIFEBLOOD THEORY.
- Under the Lifeblood Theory, as provided by the Supreme Court in CIR v.
Pineda, “Taxes are the lifeblood of the government and their prompt and
certain availability is an imperious need.”
- In the case of CIR v. Algue, Inc., the Supreme Court said that “Taxes are
what we pay for civilized society. Without it, the government would be
paralyzed for lack of the motive power to activate and operate it. Hence,
despite the natural reluctance to surrender part of one’s hard-earned
income, every person who is able must contribute his share in the running
of the government. In return, the government is expected to respond in the
form of tangible and intangible benefits intended to improve the lives of
people and enhance their moral and material values.”
While the Power of Eminent Domain is strictly construed against the government, the exercise
of the Power of Taxation shall be liberally construed in favor of the government and against
the taxpayer because any exemption of the exercise of the Power of Taxation shall be in
derogation of the exercise of this inherent power.
Page 50 of 152
In the exercise of the Power of Taxation, the PURPOSE MUST BE PUBLIC. Take note of the
differences between the Power of Eminent Domain and the Power of Taxation. In Eminent
Domain, it is intended for public use, but in Taxation it must be for public purpose.
- In the case of Pascual v. Secretary of Public Works, which involves the
appropriation of funds for the construction of a road inside a private subdivision to
be used by the homeowners of that subdivision, the Supreme Court said that the
use of the property was not for a public purpose. PUBLIC PURPOSE in taxation must
be DIRECT and EXCLUSIVE.
- So again, there is a difference between public use and public purpose. Even if the
use of public funds will only benefit specific individuals, that does not mean that it
is no longer for public purpose. Say for example, the government appropriated
funds for the support of elderly or PWDs. While the beneficiaries of the
appropriation will only be specific individuals, the program of the government is
nonetheless public in character — to help the elderly and those with disabilities.
- PUBLIC PURPOSE is strict in Taxation, it must be DIRECT and EXCLUSIVE, while
PUBLIC USE in Eminent Domain is expanded which includes indirect advantage.
Does the Constitution prohibit DOUBLE TAXATION? [No]
- This was answered by the Supreme Court in the case of Punsalan v. Municipal
Board of Manila. In this case, there was an ordinance passed by the Municipal Board
of Manila assessing taxes on professionals who were exercising their profession in
Manila, and these professionals were already subject to income tax by the national
government. The petitioner claimed there was double taxation. First, what is double
taxation?
- Double Taxation, according to the Supreme Court, is the imposition of
the same or identical tax twice by the same taxing authority within the
same taxing jurisdiction for the same purpose/same object within the
same taxing period.
- In this case, there was no double taxation because one tax was imposed by the
national government and the other by the local government. But nonetheless, the
Supreme Court said that the Constitution does not expressly prohibit Double
Taxation, because “the power to tax twice is as ample as the power to tax once.”
Thus, the Supreme Court said that Double Taxation is valid as long as it does not
violate the principles of taxation. Furthermore, the Supreme Court held that even if
it was a double taxation, it was not in violation of the Equal Protection Clause
because there was a substantial distinction between the petitioners and other
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
professionals, as those who practice in the City of Manila could expect a more
lucrative income than those who practice in other parts of the nation.
The PRINCIPLES OF TAXATION are laid down in Section 28 of Article VI.
- The first paragraph of Section 28 of Article VI provides that the “The rule of taxation
shall be uniform and equitable. The Congress shall evolve a progressive system of
taxation.”
- In the case of Sison v. Ancheta, regarding the system of simplified income taxation,
the Supreme Court said that UNIFORMITY/EQUALITY in taxation simply means that
persons or things similarly situated shall be taxed at the same rate wherever they
may be found. Automobiles in Metro Manila shall be taxed at the same rate in
Quezon City. That is Uniformity/Equality in taxation. While EQUITY/EQUITABLE in
taxation simply means that the burden of taxation shall be imposed on those who
have the capacity to pay. Thus, the higher the income, the higher the tax. This is
Equity in taxation.
Does the Constitution prohibit a regressive system of taxation? [No]
- In the case of Tolentino v. Secretary of Finance, the Supreme Court said that the
Congress is only mandated to evolve a progressive system of taxation. The mandate
to evolve a progressive system is different from the mandate to provide such a
system. In other words, it is ideal that taxation shall be progressive, but the
Constitution does not prohibit the Congress from enacting tax laws which are
regressive in character.
In the case of Sison v. Ancheta, the Supreme Court cited two statements of renowned jurists—
the statements of Chief Justice Marshall and Justice Holmes.
- According to Chief Justice Marshall, “the power to tax includes the power to
destroy.”
- Justice Frankfurter considers this statement to be an unfortunate
remark, and he characterized it as a flourish of rhetoric attributable to the
intellectual fashion of the times allowing a free use of the absolutes.
- According to Justice Frankfurter, the famous dictum of Chief Justice Marshall was
brushed away with a single stroke of Justice Holmes’ pen, “That the power to tax is
not the power to destroy as long as this Court sits.”
Can we reconcile the seemingly conflicting statements of these two jurists?
- Yes, they are not mutually exclusive.
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- The statement of Chief Justice Marshall that the power to tax includes the power
to destroy shall be taken from the context that the power of taxation is used as an
implement/instrument of Police Power. Under this principle, the State can exercise
the Power of Taxation to discourage undesirable activities.
- Let’s say for example, the imposition of taxes on cigarettes and spirits.
These may be imposed at a restrictive rate to the extent of destroying the
industry. In such a case, we can then apply the statement of Chief Justice
Marshall that the power to tax includes the power to destroy.
- However, when the Power of Taxation is used for the purpose of revenue-raising,
the statement of Justice Holmes shall be the applicable principle — taxation shall be
uniform, equitable, not arbitrary, and it should not amount to confiscation.
The interpretation of tax laws is that it must be strictly construed against the taxpayer and
liberally in favor of the government; in other words, it must be in favor of taxation and against
exemption. Aside from this construction, the Constitution also imposes stricter requirements
for the validity of laws granting tax exemptions.
- Under the 4th paragraph of Section 28 of Article VI, the Constitution mandates that
laws granting tax exemption shall not be valid unless upon the CONCURRENCE OF A
MAJORITY OF ALL THE MEMBERS OF THE CONGRESS.
- Is this a stricter requirement? Can we not say that all bills require the
majority of all the members of Congress?
- The answer is no. Again, there is a difference between “all the
members of Congress” and “of the Congress.”
- Bills granting tax exemption must be approved by the
absolute majority; 1/2 plus 1 of the total membership.
- While other bills must be approved by 1/2 plus 1 of
those present constituting the quorum.
- Supposing in the Senate, we have only 23 Senators. In order
for a bill granting tax exemption to be validly passed by this
composition, the required vote under the Constitution is 1/2
plus 1 of 24, even if there are only 23.
- However, for the passage of other bills which do not involve
tax exemptions, it can be lower than that. Supposing in a Session
there are only 13 Senators present. Thus, in order to pass a bill
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
that does not grant a tax exemption, only 1/2 plus 1 of the 13
Senators is required.
Aside from the Congress, the Constitution itself grants tax exemptions.
- Under Paragraph 3 of Section 28 of Article VI, “charitable institutions, churches and
personages 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.”
- We have learned in Statutory Construction that when several items are separated
by commas and one of the phrases in the provision is a qualifier, the interpretation
is that the qualifier shall only apply to the item immediately preceding it. So, the
qualifier under Paragraph 3 of Section 28 of Article VI is the phrase ACTUALLY,
DIRECTLY, and EXCLUSIVELY used. Hence, to be granted a tax exemption, it must be
actually, directly, and exclusively used. The phrase immediately preceding this
qualifier is “all lands, buildings, and improvements.” Can we say that the qualifier
only applies to all lands, buildings, and improvements, but not to the other items
enumerated in Paragraph 3 of Section 28 of Article VI? I ask because aside from
lands, buildings, and improvements, there are other enumerations. Can we say that
churches, since it is enumerated, is covered by the phrase “actually, directly, and
exclusively used”? Or can we say that as long as it is a church, then it is exempted by
Paragraph 3 of Section 28 of Article VI?
- The answer is no. The qualifier “ACTUALLY, DIRECTLY, and EXCLUSIVELY
used” shall apply to all the items without regard to the tools of statutory
construction.
- In interpreting doubtful provisions of the Constitution, we have to determine the
intent and the spirit of the Constitution, rather than the form. Therefore, the
qualifying phrase “actual, direct, and exclusive” applies to all the items enumerated
in Paragraph 3 of Section 28 of Article VI.
Does Paragraph 3 of Section 28 of Article VI cover all forms of taxes? [No, it covers only Real
Property Tax]
- The Supreme Court in Lladoc v. Commissioner of Internal Revenue said no,
Paragraph 3 of Section 28 of Article VI is only applicable to REAL PROPERTY TAX, not
to Excise Tax nor to any other taxes. In this case, the taxable activity is a donation
(Gift Tax). The Supreme Court said that the donation is not exempt from the taxation
under Paragraph 3 of Section 28 of Article VI.
In the case of Abra Valley College v. Aquino, the issue here is the definition of the phrase
“actually, directly, and exclusively.” In its ordinary parlance, the phrase presupposes that the
Page 52 of 152
property is solely and not used for any other purpose in order to be exempt from taxation. In
this case, the property in question consists of two-stories. The first floor is being used by a
commercial entity, National Marketing Corp., while the second floor of the building is being
used by the Director of the school as his living quarters with his family.
- The Supreme Court said that “actual, direct, and exclusive” includes INCIDENTAL
USE, which means that as long as the use is incidental to education, religious, or
charitable purposes, it is covered by the exemption. Applying this, the Supreme
Court said that the first floor is not exempt, but the second floor is exempted.
Although the second floor is only being used as residential quarters, such use is
incidental to educational purposes. In that regard, the exemption was extended.
Is ownership of the property relevant in determining tax exemption? I ask because in the case
of Province of Abra v. Judge Hernando, the provincial assessor assessed a property, and
incidentally, the property assessed was the Roman Catholic Church. When the Roman Catholic
Church contested the assessment of its property, it presented its title and the court accepted
its title as justification for real property tax exemption. Did the Supreme Court agree that the
mere presentation of the title will vest tax exemption?
- The Supreme Court said no, the ownership of the property is irrelevant in
determining tax exemption. The best determination of tax exemption is not
ownership, but rather the USE OF THE PROPERTY. Even if the property is owned by
a religious, charitable, or educational institution, but it is not actually, directly, and
exclusively used (and this can be extended to incidental use) for religious, charitable,
or educational purposes, it is not exempt from taxation. Which means that even if
the property is owned by, let’s say for example, by Juan de la Cruz, but the property
is subject to a contract of lease between Juan de la Cruz and the Roman Catholic
Church and the latter is using the property for its religious activities, then the
property of Juan de la Cruz is exempt from taxation. It is not the ownership that
vests tax exemption, but rather the use. Also, Real Property Tax is attached to the
property, not to the owner. Since it is a tax on the property, tax exemption is also
an exemption on the property, not on the owner. Therefore, whoever uses the
property enjoys the exemption.
According to the Supreme Court in the case of Lung Center of the Philippines v. Quezon City,
“EXCLUSIVELY” is defined as possessed and enjoyed to the exclusion of others. It is
synonymous with “solely.” What is meant by “ACTUAL, DIRECT, AND EXCLUSIVE” use of the
property is the DIRECT and IMMEDIATE ACTUAL application of the property itself to the
purposes for which it is organized. It is not the use of the income from the real property that
is determinative of whether the property is used for tax exempt purposes.
Distinction should be made between religious, charitable, educational institutions and non-
stock, non-profit educational institutions under Section 4(3) of Article XIV. Insofar as religious,
charitable, educational institutions are concerned, non-stock non-profit educational
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
institutions enjoy greater tax exemption, because non-stock non-profit educational
institutions enjoy EXEMPTION FROM ALL TAXES AND DUTIES as long as the property is being
used actually, directly, and exclusively for the educational purpose.
ARTICLE III — THE BILL OF RIGHTS
The Bill of Rights governs the relationship between the individual and the State. Its concern is
not the relation between individuals or between the private individual and other individuals.
What the Bill of Rights does is to declare some forbidden zones in the private sphere
inaccessible to any power holder (Sponsorship Speech of Commissioner Bernas; Record of the
Constitutional Commission, Vol. 1, p. 674, July 17, 1986).
SECTION 1, ARTICLE III — DUE PROCESS OF LAW
This provision guarantees two very important fundamental rights:
1. The right to Due Process; and
2. Equal Protection.
We have learned that it is part of the art of constitution making that provisions of the
constitution be cast in a precise and unmistakable language in order to avoid any doubts in its
interpretation. This is the ideal. But on the part of the Due Process Clause, this rule was
deliberately not followed. So, the wording of the Constitution was intentionally kept vague.
- As a matter of fact, the Supreme Court discussed in the case of Ynot v. IAC that
there was an attempt during the 1934 Constitutional Convention to specifically
define Due Process, but delegate Jose P. Laurel forcibly argued against it, and he
was sustained by the Convention.
- According to delegate Laurel, the Due Process Clause is unlike the other
provisions in the Constitution laying down some immutable and
implacable commands for all persons and all seasons. RESILIENCY is
always and should always be the best virtue of Due Process. Not only does
the Constitution refuse to give a specific definition of Due Process, even
the Supreme Court refuses to give a specific definition because to do so,
the Supreme Court would be creating a legal straitjacket that would
constrict them from the implementation of the constitutional guarantee
as the need arises. Having this in mind, the Constitution contended itself
by giving a general characterization of Due Process. FLEXIBILITY/
RESILIENCY is the best virtue of Due Process.
Page 53 of 152
In Ynot v. IAC, Justice Felix Frankfurter would go no further than characterizing “Due Process
as nothing more and nothing less than the embodiment of the sporting idea of fair play.”
- Again, Due Process should be broad and vague in order to maintain the resiliency
of the constitutional guarantee.
Justice Enrique M. Fernando, on the other hand, characterizes Due Process as simply “the
responsiveness to the supremacy of reason and obedience to the dictates of justice.”
Daniel Webster described Due Process in the US Case of Dartmouth College v. Woodward, as
“the law which hears before it condemns, which proceeds upon inquiry and renders judgment
only after trial.”
Justice Isagani Cruz defined Due Process as “a guaranty against any arbitrariness on the part
of the government, whether committed by the legislative, the executive, or the judiciary.”
In Ynot v. IAC, the Supreme Court held that the essence of Due Process is distilled in the
immortal cry of Themistocles to Alcibiades: “Strike — but hear me first!”
But prior to the modern-day concept of Due Process, there was an almost equivalent concept
under the Middle English, particularly under the 1215 Magna Carta Libertatum. In Clause 39
of the 1215 Magna Carta Libertatum, it is expressly provided that “no free man is to be
arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor
shall we go against him or send against him, except by the lawful judgment of his peers or by
the law of the land.”
- Take note that this provision under the Magna Carta Libertatum did not mention
“Due Process,” because Due Process was not yet conceptualized at that time. But
there was an almost similar concept under that Clause, and this was explained by
the US Supreme Court in the case of Dartmouth College v. Woodward, and the US
Supreme Court cited the statement of Daniel Webster, an alumnus of Dartmouth
College. The almost similar concept under the Magna Carta Libertatum is the
concept of the “Law of the Land.” So according to the US Supreme Court, the “law
of the land” means the general law; “a law that hears before it condemns, which
proceeds upon inquiry and renders judgement only after trial.”
- So, it is not yet equivalent to our modern day Due Process because the concept of
the “law of the land” only covers one aspect of the modern day Due Process — only
the PROCEDURAL. And aside from Procedural Due Process, the modern-day Due
Process guaranteed by Section 1 of Article III also includes the Substantive Aspect of
Due Process.
What is the effect of the violation of Due Process? When Due Process is violated, what is the
consequence?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The answer is it depends on what aspect of Due Process was violated.
- If the aspect of Due Process that is violated is only Procedural, the effect is different
as compared to Substantive.
- To better understand this, let’s take the case of Aniag v. COMELEC. In
this case, the petitioner is a member of the House of Representatives. And
during the election period at that time, he directed his driver to get his
gun from his house so that it will be delivered to the Sergeant at Arms
because it is already gun-banned. Unfortunately, however, before the
driver was able to deliver the gun to his boss, there was a checkpoint. And
during the checkpoint the gun was confiscated. The driver, Arellano, was
subjected to preliminary investigation, and during the preliminary
investigation of Arellano, petitioner Aniag submitted an affidavit to
corroborate the statement of his driver that he was only being ordered to
get the gun for the delivery to the Sergeant at Arms. Initially, the public
prosecutor dismissed the case, but since it is a case involving the
application of Election Law, it requires the approval of the COMELEC.
When it was transmitted to the COMELEC, the COMELEC reversed the
resolution of the public prosecutor, and aside from that, it included
petitioner Aniag in the Information. An Information was filed against
petitioner Aniag and his driver Arellano. Now, petitioner Aniag is claiming
violation of the right to Due Process because he was not granted his right
to preliminary investigation.
- The Supreme Court said that while preliminary investigation is
statutory in its concept, it is an essential part Criminal Due
Process. And this part of Criminal Due Process is a Procedural
Aspect of Due Process. Since the right of the petitioner to
Procedural Due Process was violated, the effect was for the
invalidation of the Information, which means that the law which
is the basis of the preliminary investigation remains to be valid,
but only the procedure which violated the Procedural Due
Process shall be considered as invalid, as distinguished from
Substantive Due Process.
- Substantive Due Process was violated in the case of Ynot v. IAC. We said earlier
that for a valid exercise of Police Power, there must be a Lawful Subject and a Lawful
Means. Substantive Due Process deals with the intrinsic validity of the law. In
determining whether there is compliance or violation of the right to the Substantive
Aspect of Due Process, the courts will look into the substantive or the intrinsic
validity of the law. If the law is an exercise of Police Power, the Supreme Court will
determine whether it complies with the Lawful Subject and Lawful Means tests. If
Page 54 of 152
one of these tests is violated, then there is a violation of the right to the Substantive
Aspect of Due Process. Since in this case, there was no Lawful Means, the Supreme
Court said that, intrinsically, E.O. 626-A is invalid, and on that score, the law itself is
unconstitutional.
- If there is a violation of the right to the Substantive Aspect of Due Process, the law
itself shall be declared unconstitutional.
- However, if there is only a violation of the right to the Procedural Aspect of Due
Process, then only the step or the procedure which violated this Procedural Aspect
will be declared as invalid, and the law itself will remain valid.
In the case of Ynot v. IAC, the Supreme Court summarized the Concept of Due Process in the
immortal cry of Themistocles to Alcibiades, “Strike — but hear me first!” The Supreme Court
said that the essence to the right of Procedural Due Process in Administrative Proceedings is
the right to be informed and the opportunity to a hearing.
The minimum requirements of Due Process, according to the Supreme Court, are NOTICE and
HEARING.
Is hearing, as an essential element of Due Process, a trial-type or adversarial proceeding? [No]
- The Supreme Court in the case of Philippine Phosphate Fertilizer Corp. v. Torres
said that the Concept of Hearing in Administrative Proceedings is only the
OPPORTUNITY TO EXPLAIN, either in pleadings, position papers, memoranda and
other documents. The right to be heard is not only limited to trial-type hearings. For
Administrative Agencies, one of the most important powers of Administrative
Agencies is the power to promulgate rules and regulations.
In promulgating rules and regulations, are Administrative Agencies required to comply with
the minimum requirements of notice and hearing?
- Let’s take the case of Philippine Communications Satellite Corp. (PHILCOMSAT) v.
Alcuaz. In this case, when the franchise of petitioner expired, it applied for the
extension. And when petitioner applied for the extension, NTC issued a directive
upon petitioner to provisionally decrease its rates because it is earning too much.
According to NTC, petitioner is earning 12% of its capital, so NTC directed petitioner
to lower its fees in order not to over-exceed its profits. NTC issued the order without
notice and hearing. Did the Supreme Court sustain the order of the NTC requiring
petitioner to provisionally decrease its fees without notice and hearing?
- The Supreme Court said no, it is not valid. The Supreme Court
distinguished rule-making power of Administrative Agencies in the
exercise of legislative, administrative, or executive powers on the one
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
hand and quasi-judicial powers on the other. Rule-making power could
either be in the context of administrative, legislative, and executive, or
quasi-judicial. The Supreme Court said that in the rule-making power
discharging quasi-judicial functions, the Administrative Agencies must
comply with the Twin Requisites of Notice and Hearing, while in
administrative, executive, and legislative, there is no need for prior notice
and hearing.
What is the difference of rule-making power in the exercise of administrative, executive,
legislative, and rule-making power in the exercise of quasi-judicial functions?
- Several months ago, there was an order from LTFRB directed to all TNVS
(Transportation Network Vehicle Services) to reduce their fees. And there is also an
order for Grab to reimburse all excess collections from its clients. Supposing both
orders of LTFRB were issued without notice and hearing, are both orders valid?
- The answer is only the first order is valid. The first order directed to all
TNVS to reduce its rates is in the exercise of administrative, executive,
legislative or quasi-legislative. However, the second order of the LTFRB
directing Grab or Uber to reimburse its clients is in the exercise of a quasi-
judicial function.
- The rule-making power in the exercise of a quasi-judicial function is specific and
the effect is immediate, while in the case of the rule-making power in the exercise
of an administrative, executive, legislative or quasi-legislative function, the order is
general and prospective.
- In that regard, the orders of administrative agencies which are quasi-
judicial in character must comply with the Twin Requirements of Notice
and Hearing, while the orders of administrative agencies in the exercise of
administrative, executive, legislative or quasi-legislative functions, there
is no need for prior notice and hearing.
In the case of Alonte v. Savellano, the Supreme Court enumerated the 4 Essential Requisites
of Due Process in Criminal Proceedings:
1. The court or tribunal trying the case is properly clothed with judicial power to
hear and determine the matter before it;
2. Jurisdiction is lawfully acquired by it over the person of the accused;
3. The accused is given an opportunity to be heard; and
4. Judgement is rendered only upon lawful hearing.
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In the case of Alonte v. Savellano, the Supreme Court enumerated essential requisites of
Criminal Due Process. This case involves a rape case in Laguna. When the case was being heard
in Laguna, the prosecution moved for the transfer of venue because one of the accused is a
local public officer. Before the motion of the prosecution was granted by the Supreme Court,
the private offended party executed an Affidavit of Desistance. When the Affidavit of
Desistance was filed, the Supreme Court granted the transfer of venue from Laguna to Manila.
When the case was transmitted to the RTC Manila, the Judge of RTC Manila scheduled a
hearing to determine the voluntariness and due execution of the Affidavit of Desistance.
During the hearing, the public prosecutor presented the private offended party, her mother,
and the public prosecutor before whom the Affidavit was signed. When the prosecution
rested its case as to the issue of voluntariness and due execution, the Judge asked the defense
whether they desire to present evidence, and both counsels of the accused said, “no your
honor, we will not present any evidence.” The trial court was surprised and asked if they were
sure that they did not want to present evidence, both counsels, who were very prominent
lawyers (one being Atty. Fortun), said yes, they will not present any evidence. The trial court
said okay but warned them that if they do not present evidence, the trial court will render
judgment based solely on the evidence presented by the prosecution, and the defense
counsels said “yes your honor, we submit to the discretion of the court.” After that, the trial
court promulgated a decision convicting the two accused. Now, the defense counsels claim
that they were not given the opportunity to be heard, but the Judge said that he asked them
several times whether they intend to present any evidence and they said no. The issue in this
case is whether there was a violation of Due Process, particularly the right to a hearing?
- The answer is yes, because the right to a hearing in this case is only specific, which
was the right to a hearing on the voluntariness and due execution of the Affidavit of
Desistance. The waiver of the right to be heard on a specific issue is not a waiver of
the right to be heard on the other issues of the case. Which means that what the
defense counsels waived is only the right to be heard on the issue of the
voluntariness and due execution of the Affidavit, but as to the culpability and as to
the innocence of the accused, the defense still has the right to present evidence.
How about in administrative proceedings? What are the cardinal primary rules of Due
Process?
- There are 7 Cardinal Primary Rules in Administrative Proceedings, according to the
Supreme Court in the case of Ang Tibay v. Court of Industrial Relations.
1. The right to a hearing, which includes the right of the party interested
or affected to present his own case and to adduce evidence in support
thereof;
2. The tribunal must consider the evidence presented;
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
3. The tribunal must have something to support its decision;
4. The evidence must be substantial
- Substantial evidence is more than a mere scintilla, but it is that
degree of evidence that a reasonable mind might accept as
sufficient to support a conclusion;
5. The tribunal must render its decision based on the evidence presented
at the trial or at least contained in the records and made known to the
parties;
6. The tribunal must consider the case based on an independent
consideration of the facts and of the law, and not only accept the views of
the subordinate in arriving at its decision; and
7. The administrative agency must render its decision in a way that the
parties would know the issues involved and the reasons for the decision.
How about in disciplinary investigations in schools? Do we follow the same 7 cardinal primary
rules? [No]
- Insofar as disciplinary investigations in schools, the requirements are different. In
the case of Ateneo de Manila v. Judge Capulong, the Supreme Court enumerated
the Elements of Due Process in School Disciplinary Investigation Proceedings. This
case involves a hazing related incident. Mr. William died during the initiation rites
of the Aquila Legis. The members of the Aquila Legis who participated during the
initiation rites was subjected to disciplinary sanctions. During the investigation, the
respondent students were demanding that all witnesses presented before the
committee should be confronted by them. The respondent students wanted to
exercise their right to cross-examination, but they were denied. When the school
promulgated its decision expelling the private respondents, they went to the RTC
Quezon City in order to restrain the implementation of the expulsion, and they
succeeded. However, when the issue was brought up to the Supreme Court, the
ruling of the RTC was reversed.
- The Supreme Court said that there are only 5 Requisites for School Disciplinary
Investigation Proceedings.
1. The students must be informed in writing of the nature and of the cause
of the accusation against them;
2. The students should be given the opportunity to explain with the
assistance of counsel, if so desired;
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3. The students must have the right to be informed of the evidence against
them;
4. The students also have the right to present their own evidence; and
5. The investigating committee must consider the evidence of the
students.
- Note that in the 5 requisites, the right to cross examination is not there. As long as
the students are given the opportunity to explain, as long as the students are
informed of the evidence against them, and they respectively present their own
evidence, then the right to Due Process is complied with. The Supreme Court said
that these are the procedures to be specifically applied in school administrative
proceedings.
A FACIAL CHALLENGE (Void for Vagueness and Overbreadth) means the law on its face is
invalid. The requisite of proper party is dispensed with because it can be raised by any person
because of the chilling effect of the law. A Facial Challenge only applies to free speech cases,
religious freedom cases, and other cases wherein the subject involves fundamental rights.
Facial challenges, however, do not apply to penal laws because if penal laws may be
challenged under a Facial Challenge, the State may not be able to enforce its penal laws since
every time there is a law enacted, it will be challenged by one even if he is not being injured
thereby.
- A Facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of the possible “CHILLING EFFECT” upon protected speech. The
theory is that when statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity. The possible harm
to society in permitting some unprotected speech to go unpunished is outweighed
by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly
broad statutes. This rationale does not apply to penal statutes. Criminal statutes
have, in general, terrorism effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
AS APPLIED CHALLENGE, on the other hand, can only be raised by a party to whom the law
was declared unconstitutional. It considers only extant facts affecting real litigants.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Ordinarily, a particular litigant claims that a statute is unconstitutional as applied
to him or her; if the litigant prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties
and can only assert their own interests.
What is the relevance of the VOID FOR VAGUENESS RULE and the OVERBREADTH DOCTRINE
to the right to Due Process?
- In the cases of Sps. Romualdez v. COMELEC and Southern Hemisphere
Engagement Network, Inc. v. Anti-Terrorism Council, the Supreme Court explained
the concept of Void for Vagueness as well as the Overbreadth Doctrine. The
Supreme Court said that a statute suffers from the defect of vagueness if it lacks
compressible standards that men of common intelligence must necessarily guess at
its meaning and defer as to its application.
- In the case of Southern Hemisphere v. Anti-Terrorism Council, the Supreme Court
said that there are two reasons why laws which are VOID FOR BEING VAGUE are
unconstitutional:
1. It deprives the person, particularly those targeted by it, a fair notice of
the conduct to be avoided (thus, it violates the Due Process Clause); and
2. It gives the law enforcement officers charged with the implementation
of the law an unbridled discretion in carrying out its provisions and
thereby becomes an arbitrary flexing of government muscle.
- Laws which are void for being vague violates the Due Process Clause, and also
violates the standard for valid delegation because it becomes an unbridled
discretion, because in order to be valid, delegated authority must map out the
boundaries of the authority of the delegate to prevent it from running riot or
becoming a roving commission. A law which is void for being vague violates this
Principle of Valid Delegation.
- The Supreme Court in both cases also discussed the OVERBREADTH DOCTRINE. The
Supreme Court said that the Overbreadth Doctrine decrees that a governmental
purpose to prevent or regulate an activity which is subject to State regulation may
not be achieved by means which sweep unnecessarily broadly and thereby
encroaching or invading protected areas of freedom.
- In the case of SPARK v. Quezon City, which involved the curfew ordinances of
Manila, Caloocan, and Quezon City, the Supreme Court struck down as
unconstitutional the Manila and Caloocan curfew ordinances, while the Quezon City
Page 57 of 152
curfew ordinance was sustained. One of the reasons why the Supreme Court
declared as unconstitutional the Manila and the Caloocan curfew ordinances is due
to the application of the Overbreadth Principle, because the curfew ordinance was
not narrowly drawn, and because in the objective of the Manila and the Caloocan
curfew ordinances to preserve the security and safety of the students, the
ordinances prohibit minors from leaving their houses during curfew hours, and
while the law enumerates certain exemptions, there are certain valid exemptions
under the Constitution which were not included in the list. The Supreme Court said
that even if the children were engaged in their religious freedom, they are covered
by the curfew ordinances. The law is overbreadth because it is already invading on
protected liberties. The Supreme Court said that even if the students are discharged
in the exercise of their religious freedom, they are covered by curfew ordinances,
therefore, they cannot exercise their right to religious freedom during the curfew
time. Thus, the Supreme Court said that the law is too broad since it encroaches
upon protected liberties. On that score, the Supreme Court invalidated the two
ordinances.
SECTION 1, ARTICLE III — EQUAL PROTECTION OF THE LAWS
Unlike the Due Process Clause, the courts gave the Equal Protection Clause a more specific
meaning.
Equal Protection simply means “all persons or things similarly situated shall be treated alike,
both as to the rights conferred and the liabilities imposed.”
It is not always easy to determine whether it is the Due Process or the Equal Protection Clause
that shall be applied to a particular case, because the Due Process and the Equal Protection
clauses of the Constitution are potent tools in order to challenge governmental acts. However,
as we said earlier, it is difficult at times to determine whether it is the Due Process or the Equal
Protection Clause that should be applied.
- In order to address this issue, the Supreme Court in the case of Biraogo v. The
Philippine Truth Commission (PTC) laid down the standard. The Supreme Court said
that arbitrariness in general can be challenged on the ground of Due Process.
However, when the particular act assailed partakes of unjust or illegal
discrimination, the sharper weapon to cut it down shall be the Equal Protection of
the Laws.
According to the Supreme Court in the case of People v. Vera, the Equal Protection of the
Laws is against two evils:
1. It is against undue favor or class/individual legislation; and
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
2. It is also against unjust discrimination or oppression/inequality.
Is there a difference between a law that discriminates and a law that only allows
discrimination? [No; there is no difference between a law that unjustly discriminates and a
law that allows such discrimination; both violate the Equal Protection Clause]
- This question was answered by the Supreme Court in People v. Vera. This case
involves the Probation Act. Under Section 11 thereof, it is expressly provided that
the benefits of probation shall be applied in provinces whose local legislative
counsel appropriates funds for the salary of the probation officer. On its face, there
is nothing discriminatory about that provision. On its face, there is nothing arbitrary
about that provision. However, it does not escape the reality that it allows
discrimination by allowing a province to appropriate funds and allowing other
provinces not to appropriate such funds. In that regard, accused who are similarly
situated but residing in different provinces will not be treated similarly. Thus, the
Supreme Court said that there is no difference between a law that discriminates and
a law that only allows discrimination...BOTH violate the Equal Protection of the
Laws.
- To support this principle, the Supreme Court in the case of People v. Vera as well
as in Biraogo v. The Philippine Truth Commission (PTC) cited the ruling of the US
Supreme Court in Yick Wo v. Hopkins, a landmark case in the US. Yick Wo v. Hopkin
only involves a state law which requires that laundry businesses shall be undertaken
in buildings made out of bricks. There’s nothing discriminatory about that. However,
at the time that the state law was passed, almost 90% of the laundry business were
being operated by Chinese people, and most of the Chinese establishments were in
wooden buildings.
- That’s why the US Supreme Court in the case of Yick Wo v. Hopkins said
that “although the law itself be fair on its face and impartial in its
appearance, yet if applied by public officers with an evil eye and an
unequal hand so as to make discriminations between persons in similar
circumstances, material to their rights, the violation of substantial justice
is still within the prohibition of the Constitution.”
- Again, even if the law is not discriminatory, but the law allows discrimination, it is
still violative of the constitutional guarantee of Equal Protection of the Laws.
Ordinarily, the Equal Protection of the Laws is invoked when the law does not apply equally
or uniformly. Can a law be challenged for being violative of the Equal Protection of the Laws
because it applies equally? Can the courts say that the law is unconstitutional for violation of
Equal Protection of the Laws because it applies equally? [Yes; Unconstitutional for failure to
recognize material differences]
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- In the case of Villegas v. Hiu Chiong Tsai Pao Ho, there was an ordinance in the
City of Manila which imposed an employment fee for all aliens who want to work.
The fee was 50 pesos. The case was decided in the 1970s, so the fee was a
substantial amount during this time. The regulation imposed a uniform employment
fee of 50 pesos for all aliens who want to work in Manila, without regard to their
condition/status...whether rich or poor...whether regularly employed or part-time
employed... The Supreme Court declared the regulation unconstitutional for failure
to recognize material differences. Thus, the uniform application of the law to
persons or things that are not similarly situated also violates the Equal Protection of
the Laws because Equal Protection of the Laws only requires equality among equals.
The application of the law to persons or things that are not equal also offends the
Equal Protection guaranty. Which means that the Constitution does not prohibit
classification or grouping of persons.
Classification is the grouping of persons or things which are similar in certain particulars but
different from others in the same particulars. In classification, the same characteristics that
bind the group are the same characteristics that set them apart from others.
In the case of Mosqueda v. Pilipino Banana Growers & Exporters, the Supreme Court
provided THREE LEVELS OF SCRUTINY that shall be resorted to by the courts in order to
determine the propriety of a classification in Equal Protection cases:
1. RATIONAL BASIS SCRUTINY – (also known as the Rational Relation Test or Rational
Basis Test) the traditional test, which merely demands that the classification
reasonably relates to the legislative purpose. This test often applies in cases
involving economics or social welfare, or to any other case not involving a suspect
class.
- The legislative purpose must be legitimate.
- The classification must be rationally related to the legislative purpose.
2. INTERMEDIATE or HEIGHTENED REVIEW – A classification based on sex is the best-
established example of an intermediate level of review. When the classification puts
a quasi-suspect class at a disadvantage, it will be treated under this test.
Classifications based on gender or illegitimacy receives intermediate scrutiny. To
survive intermediate scrutiny, the law must not only further an important
government interest and be substantially related to that interest, but the
justification for the classification must be genuine and must not depend on broad
generalizations.
- The legislative purpose must be important.
- The classification must be substantially related to the legislative purpose.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
3. STRICT SCRUTINY REVIEW – applies when a legislative classification impermissibly
interferes with the exercise of a fundamental right or operates to the peculiar class
disadvantage of a suspect class. The Government carries the burden to prove that
the classification is necessary to achieve a compelling state interest, and that it is
the least restrictive means to protect such interest.
- The legislative purpose must be compelling.
- The classification must be necessary and narrowly tailored to achieve the
legislative purpose.
The most recent case where the Supreme Court discussed these three tools is in the case of
SPARK v. Quezon City, which involved the curfew ordinances in Manila, Caloocan, and Quezon
City.
- The Supreme Court said that the difference among the three is that in STRICT
SCRUTINY TEST, the classification either burdens a suspect class or affects a
fundamental right, including those guaranteed by the Constitution. The standard
under this test is compelling state interest. The government bears the heavy burden
of showing that it has a compelling state interest in imposing the
classification/restriction, and such is narrowly drawn.
- On the other hand, the Intermediate or Heightened Review Test is applied in the
negative. The INTERMEDIATE REVIEW TEST is applied when the classification is not
based on the exercise of a fundamental right or it does not burden a suspect class,
but requires a heightened scrutiny, particularly when the classification is based on
gender and legitimacy. The standard under this test is Heightened Scrutiny.
- Lastly, the RATIONAL BASIS SCRUTINY TEST is applied when the other two tests are
not. The classification is based on a distinction and there must be a rational
connection between the distinction and the object of the law.
Does the Constitution accept all classifications?
- No, the Constitution only accepts REASONABLE CLASSIFICATION because the four
requisites are requisites of Reasonable Classification.
In the case of People v. Vega, the Supreme Court enumerated the 4 requisites of REASONABLE
CLASSIFICATION:
1. The classification must rest on substantial distinctions which make for real
differences;
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2. It must be germane to the purposes of the law;
3. The reasonableness of the classification must not be limited to existing conditions
only; and
4. The law must apply equally to all members of the same class.
*Let’s take the 1st and 2nd requisites.
What is a SUBSTANTIAL DISTINCTION that could be a basis for a reasonable classification?
- In the case of Ichong v. Hernandez, which involved The Retail Trade Law, under
which the operation of Retail Trade is only limited to Filipino citizens and Filipino
corporations... which means that foreign aliens are not allowed to engage in Retail
Trade. The Supreme Court sustained the classification based on citizenship, because
according to the Supreme Court, Retail Trade is an activity/industry imbued with
public interest, so it is very critical to withhold this very important business from the
hands of aliens. In that regard, the Supreme Court sustained the classification based
on citizenship.
- However, under The Retail Trade Law, while foreigners or foreign corporations are
disqualified from engaging in Retail Trade, American nationals and American
corporations are allowed to engage in Retail Trade. We said earlier that the Equal
Protection of the Law is against undue favor or individual/class legislation. Can we
not say that to the extent that the law allows Americans to engage in Retail Trade
while disqualifying all other aliens, it offends the Equal Protection guaranty?
- The Supreme Court said no because there is a material difference
between Americans and other foreigners, and because this case was
decided under the 1935 Constitution, wherein we had a Parity Provision
based on the Parity Treaty. Under the Parity Provision of the 1935
Constitution, American citizens and American corporations shall also have
the right to exploit and use the natural resources of the Philippines. Thus,
in the eyes of the 1935 Constitution, American citizens and American
corporations are like Filipino citizens. This is the difference that
distinguishes American citizens and American corporations from other
aliens. In that regard, citizenship is a substantial distinction that could be
the basis of a reasonable classification.
How about age? Can age be a substantial distinction that could be the basis of a reasonable
classification? [Yes]
- In the case of SPARK v. Quezon City, the Supreme Court said yes. The curfew
ordinances only apply to minors. The Supreme Court said that the classification of
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
persons according to their age (minors and seniors) is based on substantial
distinctions. The Supreme Court said that minors are subject to influences and they
may be vulnerable to crimes committed during the nighttime, therefore, they are
the only ones covered by the law. Age is a valid classification.
Can sex be considered as a material distinction that could be the basis of a reasonable
classification? The answer is yes... but how do we classify persons according to sex? Good,
better, best? No... Male or female! Classification of persons based on gender!
- In the case of Philippine Association of Service Exporters, Inc. (PASEI) v. Drilon,
the challenged governmental act was Department Order No. 1 Series of 1988 issued
by Secretary Drilon, which imposes a provisional ban on the deployment of female
overseas domestic workers (OFW) in some countries in the Middle East. The law
only applies to female OFWs, not to all OFWs. The Supreme Court said that
classification based on gender rests on a substantial distinction, particularly so that
the purpose of the Department Order is to protect the women.
How about the degree or level of civilization? Is this a material distinction that could be the
basis of a reasonable classification? [Yes]
- This was the issue in People v. Cayat. This case involves a law that prohibits the
possession and use of intoxicating spirits which are non-traditional to non-Christian
tribes. The use of the word “non-Christian tribes” does not refer to religious
orientation, but to degree of civilization. In essence, non-Christian tribes should be
interpreted to mean Indigenous cultural communities. In the enactment of the law,
the data according to Congress showed that members of these communities who
are exposed to non-traditional drinks become more violent. The Supreme Court
sustained the classification of the law based on degree or level of civilization.
To recap, the Supreme Court sustained the reasonable classification based on (1) citizenship,
(2) age, (3) gender, and on (4) degree or level of civilization.
Can we now say that applying the Doctrine of Stare Decisis (the adherence to judicial
precedents), whenever a law classifies according to any of the four bases, we can apply the
rulings of the Supreme Court in previous cases that they are reasonable? [No]
- The answer is no. The reasonableness of a classification shall be taken from the
context of the law and the factual circumstances involved. The Doctrine of Stare
Decisis does not apply in determining reasonable classification. Which means that if
in a future law the Congress used age as a basis of classification, we cannot say that
in SPARK v. Quezon City it was already considered as reasonable... the
reasonableness of that classification shall rest on the factual circumstances of that
law and not on previous cases.
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- In the case of Philippine Association of Service Exporters, Inc. (PASEI) v. Drilon,
the Supreme Court laid down a general guideline in determining the reasonableness
of a classification based on these factors. According to Justice Fernando, “when the
classification is based on distinctions that make real differences, such as infancy, sex,
degree or level of civilization of indigenous cultural communities, and citizenship, the
better rule it would seem is to allow their validity only if the young and the old, the
women, the indigenous cultural communities, and the Filipinos are singled out for
favorable treatment. But if the classification is intended to discriminate them based
on such classification, then it will be considered as unconstitutional.”
Remember in the case of Ichong v. Hernandez, the Supreme Court sustained the validity of
the classification based on citizenship — Filipinos and foreigners.
In the case of International School Alliance of Educators v. Quisimbing, this is the case
involving professors of the International School. International School pays professors based
on citizenship. Local/Filipino professors are paid less than Expats/Foreign professors, albeit
they are occupying the same positions and performing the same duties. While the Supreme
Court did not apply Equal Protection in striking the regulation as discriminatory… (because
Equal Protection is only available against the government, and International School is a private
school and, thus, Equal Protection does not apply to them)... the Supreme Court applied a
similar concept under the Labor Code — “Equal Pay for Equal Work.” This is the same as the
principle of Equal Protection. In that regard, the regulation was declared as invalid.
- But supposing that the regulation was reversed, and it allowed for the
Local/Filipino professors to be paid more than the Expats/Foreign professors. Is this
valid?
- The answer is yes, because now the Filipinos are being singled out for
favorable treatment, but it is not valid if it is intended to discriminate
them.
*The 3rd requisite is that the reasonable classification MUST NOT BE LIMITED TO EXISTING
CONDITIONS ONLY.
You have learned in your Political Law that courts can only assume jurisdiction over the
constitutionality of a particular act if all the 4 requisites of a Judicial Inquiry are present.
The 4 Requisites of a Judicial Inquiry are:
1. There is an actual case or controversy;
2. It must be raised by the proper party;
3. It must be raised at the earliest possible opportunity; and
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- It must be raised in the pleadings and not for the first time on appeal.
4. It must be the lis mota of the controversy.
- The determination of the constitutionality of the law is relevant to the
main issue.
Are laws challenged on the basis of Equal Protection of the Laws required to comply with the
4 requisites of a Judicial Inquiry? [No; it is not required to comply with the requisites of a
Judicial Inquiry because of the 3rd requisite of a Reasonable Classification]
- Actual case or controversy means that there must be a direct injury or threatened
injury at the very least. Actual case or controversy does not accept speculations. It
must not be based on speculation.
- Let’s take the case of People v. Vera. At the time the Probation Act was challenged,
there was no province, even the City of Manila, that has ever appropriated funds for
the salary of a probation officer. Which means that the Probation Act does not apply
nationwide. The Probation Act does not apply to any province. Is there an actual
case or controversy? There is none because there is no resulting inequality. To say
that one province will appropriate and the others will not is highly speculative. But
did the Supreme Court assume jurisdiction? The answer is yes.
- Also, let’s take the case of Ormoc Sugar Co., Inc. v. Treasurer of Ormoc City. This
case involved an ordinance in the City of Ormoc that imposes a tax that only names
Ormoc Sugar Co. At the time that the ordinance was passed, it was only Ormoc Sugar
that was engaged in the production of centrifugal sugar. So, to say that in the future,
other entities may engage in the production of centrifugal sugar is highly
speculative. There is no actual case or controversy yet.
- The Supreme Court, however, assumed jurisdiction over these two cases because
of the 3rd requisite of a Reasonable Classification that “it must not be limited to
existing conditions only.”
- The classification for the existing condition in People v. Vera at the time
the Probation Act was challenged does not result to discrimination. But if
the situations change, then there might be resulting discrimination.
- Similarly in the case of Ormoc Sugar Co., Inc. v. Treasurer of Ormoc City,
if another entity engages in the production of centrifugal sugar, then there
is a resulting inequality. Which means that the reasonableness of the
classification at the time is only limited to the circumstances. However, if
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the circumstances change, then there is a violation of the Equal Protection
of the Laws.
* Lastly, the 4th requisite of a Reasonable Classification is that the law MUST APPLY EQUALLY
TO ALL MEMBERS OF THE SAME CLASS.
- In Biraogo v. The Philippine Truth Commission (PTC), E.O. No. 1 was challenged
primarily on the basis of Equal Protection of the Laws because E.O. No. 1, which
creates the Presidential Truth Commission, is only applicable to violations of law
committed by the immediately preceding administration, specifically the Arroyo
Administration. According to the Supreme Court, this is a violation of the Equal
Protection of the Laws because the Arroyo Administration is just a member of a class
— a class of all past administrations. To single out the Arroyo Administration from
the rest of the class is unduly discriminatory. In that regard, the Supreme Court
declared E.O. No. 1 as unconstitutional.
- In defense of E.O. No. 1, the Solicitor General invoked the DOCTRINE OF
UNDERINCLUSIVENESS. The Doctrine of Underinclusiveness means that
when a law is insufficient, that is not a ground to declare such law
unconstitutional. The remedy, according to the Solicitor General in cases
of deficient laws, is remedial legislation. So, if E.O. No. 1 does not cover all
past administrations, this should not be a basis to declare it
unconstitutional. The proper remedy would be to enact another Executive
Order/law covering all past administrations. This is under the Doctrine of
Underinclusiveness.
- Did the Supreme Court apply the Doctrine of Underinclusiveness?
- No, the Supreme Court did not apply it because the Doctrine
of Underinclusiveness is applicable only to situations where the
deficiency or the insufficiency of the law was ONLY BY MERE
INADVERTENCE. But if the insufficiency of the law was
deliberate or intentional, the Doctrine of Underinclusiveness
will not apply. The Supreme Court noted that the failure of the
law to cover all past administrations in the case of E.O. No. 1
was not only by mere inadvertence, but rather it was intentional
because at least 3 provisions of E.O. No. 1 specifically names the
previous administration. In that regard, the insufficiency of the
law was deliberate, thus, the Doctrine of Underinclusiveness
does not apply.
SECTION 2, ARTICLE III — SEARCHES AND SEIZURES
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
This Section can be divided into two parts:
1. The constitutional guaranty against unreasonable searches and seizures; and
2. The latter part enumerates the requisites for a valid warrant.
Does the Constitution prohibit all kinds of warrantless searches, seizures and arrest?
- The answer is no. The Constitution only prohibits UNREASONABLE searches,
seizures and arrest.
What is “unreasonable?” Can we say that searches, seizures and arrests effected without a
warrant are unreasonable?
- The answer is no, because searches, seizures and arrest can be effected without a
warrant and yet, reasonable... because the Rules of Court and decisions of the
Supreme Court recognize warrantless searches, seizures and arrest.
In the case of Alvarez v. CFI, this involves the issuance of a search warrant for the search and
seizure of books of accounts and documents used by the accused in his lending transactions
charging usurious interest. In this case, the Supreme Court ruled that neither the Constitution
nor the General Order No. 58, which is an organic law at the time, defines what constitutes
unreasonable searches, seizures, and arrests. It is said to have no fixed and unchangeable
meaning, although at times, the Court described it in a general manner. The Supreme Court
said that there could be no doubt that “all illegal searches, seizures or arrests are
unreasonable... and all lawful ones are reasonable.”
- Illegal = Unreasonable;
- Legal = Reasonable.
The Supreme Court in the case of Alvarez v. CIR said that in the determination of the
reasonableness of the Search and Seizure and of an Arrest, the factors that may be considered
are:
1. Purpose of the search;
2. Object sought to be seized or the person sought to be seized;
3. Existence or the absence of probable cause;
4. Circumstances or the manner in which the seizure was made; and
5. The place sought to be searched.
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What is the nature of the Constitutional guaranty against unreasonable searches, seizures,
and arrests? [PERSONAL RIGHT]
- Let’s take the case of Stonehill v. Diokno. In this case, 42 search warrants were
issued for the search and seizure of books of accounts and documents used by the
corporation. The 42 search warrants can be divided into two groups...
- The 1st group refers to the searches and seizures to be effected in the
house of the petitioners, who are officers of the corporation; and
- The 2nd group refers the searches and seizures to be effected in the
offices of the corporation.
- The petitioners who are officers of the corporation challenged the constitutionality
of ALL 42 search warrants. Did the Supreme Court sustain the contention of the
petitioners?
- The Supreme Court said no... only searches and seizures to be effected
in their houses may be challenged, because a corporation has a
personality separate and distinct from its officers and members, and the
right against unreasonable searches and seizures is a PERSONAL RIGHT...
it can only be invoked by the party whose right was violated. Insofar as
the searches and seizures of the offices of the corporation, it is the
corporation which is the proper party, not the petitioners who are only
stockholders and officers of the corporation.
- But can we say that since they are stockholders and officers of the
corporation, can they raise the defenses of the corporation since a
corporation is just a legal fiction?
- The answer is no... nobody can represent the corporation
UNLESS armed with a Board Resolution. So regardless of the
shareholdings of the stockholder and regardless of the position
of the officer, they cannot raise the defenses available to the
corporation without an express authority from the Board of
Directors.
Can the Constitutional guaranty against unreasonable searches, seizures, and arrests be
invoked against any person? [No; ONLY AGAINST THE STATE]
- Let’s take the case of People v. Marti. In this case, the accused sent parcels to his
friend in Zurich, Switzerland. When the wife of the proprietor asked about the
contents of the parcels, the accused said that it just contains books and cigars to be
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
sent to the friend. The ever-trusting wife believed him without question. But as a
standard operating procedure, the ever-doubtful husband Mr. Reyes inspected the
parcel because he smelled something emanating from the parcel. When he opened
it, the parcel contained dry leaves, and when he had it tested, it tested positive for
Marijuana. Thereafter, he invited the NBI to witness the opening of the other parcels
belonging to the same accused. The second search also resulted in the discovery of
Marijuana. The issue in this case is whether the search conducted by Mr. Reyes of
the parcels of the accused is covered by the Constitutional guaranty under Section
2 of Article III?
- The Supreme Court said no. The Constitutional guaranty against
unreasonable searches, seizures, and arrests only applies against the
government and against law enforcement officers, not to any other
private persons, nor to any public officers who are not law enforcement
officers. A law enforcement officer within the context of Section 2 and
Section 12 of Article III is a public officer who has a duty to arrest offenders
of law and to investigate the violations of law and the commission of
crimes.
- The Supreme Court in People v. Marti cited Father Bernas in his sponsorship
speech as the Chairman of the Bill of Rights. Father Bernas said that “the protection
of fundamental liberties is the essence of a Constitutional democracy.” Then he
raised a question... “...protection against who?” Then Father Bernas proceeded by
saying “...protection against the State. The Bill of Rights governs the relationship
between the individual and the State. Its concern is not the relation between
individuals, between a private individual and other individuals. What the Bill of
Rights does is to declare some forbidden zones of privacy in the private sphere
inaccessible to any power holder.”
- The Supreme Court concluded by saying that in the absence of any
governmental interference, the Constitutional guarantees in the Bill of
Rights cannot be invoked against the government. Section 2 of Article III
cannot be invoked against private individuals... it can only be invoked
against the government and officers thereof charged with the
enforcement of the law.
- In the case of People v. Marti, while there can be no question that the first search
was effected exclusively by a private individual, can we say that the second search
which was in the presence of the NBI makes it a search by law enforcement officer?
- The Supreme Court said no. The mere presence of the NBI did not
convert the search into one effected by a law enforcement officer. The
mere look and see or observation on the part of the NBI does not make it
a search or seizure by law enforcement officer.
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There are two warrants under Section 2, Article III that can be issued by a Judge: 1) Warrant
of Arrest; and 2) Search Warrant. Of course, the Judge can also issue other coercive writs, like
Writ of Execution, Writ of Possession, Writ of Habeas Corpus, Writ of Habeas Data, and so
forth.
What is the implication of the specific mention of the Warrant of Arrest and Search Warrant
under Section 2 of Article III?
- The implication is the Congress cannot withdraw these powers from the courts of
justice...because under Section 2 of Article VIII, the Constitution grants the authority
on the Congress to define the jurisdictions of the various courts, but in defining the
jurisdictions of the various courts, the Congress cannot withdraw the power of the
courts to issue Warrants of Arrest and Search Warrants... but it can withdraw other
powers. Which means that the Congress, in the exercise of its powers, can withdraw
the power to issue Writs of Execution, but it cannot withdraw the power to issue
Warrants of Arrest and Search Warrants.
What is a Search Warrant?
- Under Section 1 of Rule 126, a SEARCH WARRANT has been defined as “an order
in writing issued in the name of the People of the Philippines, signed by a Judge and
directed to a peace officer, commanding him to search for personal property
described therein and bring it before the court.”
Can a Search Warrant be issued for the search and seizure of a real property, say for example
a house?
- The answer is no, because in a Search Warrant there are two duties of the serving
officers. Law enforcement officers have the obligation to look for the properties
described in the Search Warrant AND to bring such properties before the court (so
the two duties are TO LOOK and TO BRING). It would be physically impossible for
the law enforcement officers to comply with the second duty… because definitely,
immovable properties cannot be brought before the court... that’s why under
Section 1 of Rule 126, it is specifically says “...for the search and seizure of a
PERSONAL PROPERTY described therein, and to bring it before the court...” and
under Sect. 3 of Rule 126, the three properties enumerated under this section are
all personal properties.
Under Section 3 of Rule 126, the personal properties that can be seized by virtue of a Search
Warrant are:
1. Personal properties subject of the offense;
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
2. Stolen or embezzled properties and other fruits and proceeds of the offense; and
3. Personal properties which are used or intended to be used as a means for the
commission of the offense.
For how long is a Search Warrant valid?
- A Search Warrant is valid for a period of 10 DAYS counted FROM THE DATE OF
ISSUANCE. It is to be counted from the date of issuance because if the Search
Warrant will be effective for 10 days counted from the receipt of the police officer
who are tasked to serve the warrant, the police officers can unduly extend the life
of the Search Warrant by simply saying that they had just received it when in fact
they have actually received it at a prior date... because the only date appearing on
the Search Warrant is the date of issuance, and the date of receipt by the police
officer does not appear therein. This is the reason why Search Warrants shall be
effective for 10 days counted from the date of issuance, regardless of the date the
police officers received it.
For how long is a Warrant of Arrest valid?
- A Warrant of Arrest is VALID UNTIL SERVED. A Warrant of Arrest can be
implemented even beyond the 10 day period, but under the Rules of Court,
particularly Rule 113, there is also a duty on the part of the police officer to render
a report or to make a return of the Warrant of Arrest within 10 DAYS to be counted
FROM THE RECEIPT OF THE WARRANT BY THE POLICE OFFICER.... because a Warrant
of Arrest is not only valid for 10 days... the 10-day period to make a return is counted
from the date the police officer received the warrant. The police officer must, within
10 days from receipt, make a report on what happened during the service of the
Warrant of Arrest.
Are Search Warrant proceedings criminal in nature? [No, they are SUI GENERIS PROCEEDINGS;
it is not directed against any specific person; it is just a mode of discovery]
- The case of United Laboratories (UNILAB) v. Isip involved the issuance of a Search
Warrant for the search and seizure of fake Revicon Multivitamin products. During
the application for the warrant, UNILAB, which is a private entity, participated.
According to the private respondent, in Search Warrant proceedings, only the public
prosecutor or the Solicitor General can participate... because Search Warrant
proceedings are criminal in nature... because Search Warrant proceedings are titled
like criminal procedures... “Republic of the Philippines v. Juan de la Cruz” or “People
of the Philippines v. Juan de la Cruz.” According to the contention of the private
respondent that it is a criminal proceeding, private entities cannot participate in
Search Warrant proceedings. Did the Supreme Court agree with the private
respondent?
Page 64 of 152
- The Supreme Court said no. Search Warrant proceedings are not criminal
proceedings because Search Warrant proceedings are not directed against
any specific person... a Search Warrant proceeding is A MODE OF
DISCOVERY. The Supreme Court compared Search Warrant proceedings
to John Doe proceedings... which means that ANY PERSON in custody of
the personal property is covered by these proceedings. It is not directed
against any specific person; the object of a Search Warrant proceeding is
to obtain custody over a personal property.
- Since private parties can participate in Search Warrant proceedings, can we say
now that Search Warrant proceedings are civil in nature?
- The answer is still no, because Search Warrant proceedings are not
involved in the adjudication of civil properties or civil issues. In that regard,
there are not civil proceedings. Also, they are not administrative
proceedings since the required quantum of evidence required in Search
Warrant proceedings is only PROBABLE CAUSE, while in administrative
proceedings, the required quantum of evidence is Substantial Evidence.
Therefore, Search Warrant proceedings are SUI GENERIS PROCEEDINGS
according to the Supreme Court in the case of United Laboratories
(UNILAB) v. Isip.
What are the requisites of a Valid Warrant?
1. It must be based upon probable cause;
2. Personally determined by a judge;
3. After examination under oath or affirmation of the complainant and the
witnesses he may produce; and
4. Particularly describing the place to be searched and the persons or things to be
seized.
What is PROBABLE CAUSE?
- Probable Cause refers to such facts and circumstances antecedent to the issuance
of the warrant that in themselves are sufficient to induce a reasonably cautious man
to rely on them and to act in pursuance thereof.
- In relation to a Search Warrant, Probable Cause refers to such facts and
circumstances which would lead a reasonably discreet and prudent man to believe
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
that an offense has been committed and that the object sought is in connection with
the crime and it can be found in the place sought to be searched.
The case of Mantaring v. Judge Roman involves the issuance by the trial court of a Search
Warrant for the search and seizure of an unlicensed firearm. In that Search Warrant,
Mantaring Jr. was named as the owner of the house, but in the Warrant of Arrest issued
thereafter, the warrant named Mantaring Sr. According to Mantaring Sr., the Warrant of
Arrest was improvidently issued as he was not named in the Search Warrant. The theory of
petitioner is that a Warrant of Arrest can only name persons named in the Search Warrant.
But the Supreme Court said no... Warrants of Arrest are based on different probabilities than
Search Warrants.
- In Warrants of Arrest, the probabilities are: 1) that a crime has been
committed, and 2) that the person suspected maybe probably guilty
thereof.
- In Search Warrants, the probabilities are: 1) the objects sought are in
relation to a crime, and 2) may be found in the place sought to be
searched.
- Since they are based on different probabilities, persons named in the Search
Warrant may be different from persons named in the Warrant of Arrest.
Under the Constitution, the Judge must personally determine the existence of probable cause.
In the determination of the existence of probable cause, is it required that the Judge must
personally examine the complainant and the witnesses?
- Let’s take two different cases. The case of Soliven v. Makasiar and the case of Silva
v. Presiding Judge of RTC, Negros Oriental.
- In Soliven v. Makasiar, this is the case involving a libel complaint filed by
President Aquino. She filed a libel complaint because of a published article
describing her as hiding underneath her bed during the 1987 coup. The
Judge issued a Warrant of Arrest. Then the petitioners asked the Judge if
he examined the President before he issued the Warrant of Arrest. The
Judge said no, he did not interview the President anymore. The Judge said
that he only relied on the report filed by the public prosecutor. Now
petitioners are contesting the improvidence of the issuance of the
Warrant of Arrest because the Judge did not personally examine the
complainant. Did the Supreme Court agree?
- No. In issuing Warrants of Arrest, the Judge need not
personally examine the complainant. It is enough that the Judge
personally evaluated the report of the public prosecutor, as well
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as the supporting affidavits, and if the Judge is satisfied, he may
issue the Warrant of Arrest; if not, he may require the
submission of other supporting affidavits, but no personal
examination of the complainant is required. This case was
decided in 1988.
- But in the case Silva v. Presiding Judge of RTC, Negros Oriental, which
was decided in 1991, the Supreme Court said that it is not enough for the
Judge to issue warrants based on examination of affidavits. According to
the Supreme Court, the Judge must conduct searching questions and
answers. Conducting searching questions and answers require that the
complainant and the witnesses shall personally appear before the Judge.
So, do we now say that the ruling in Soliven v. Makasier is already
abandoned by the ruling in Silva v. Presiding Judge of RTC, Negros
Oriental? [No]
- The answer is no. The obligation of the issuing Judge depends
on the kind of warrant involved.
- The ruling of the Supreme Court in the case of
Soliven v. Makasiar only applies to Warrants of
Arrest.
- In Silva v. Presiding Judge of RTC, Negros Oriental,
the requirement of searching questions and answers
apply to Search Warrants; this is also in line with
Section 5 of Rule 126 of the Rules of Court.
- Which is stricter? Issuance of Warrants of Arrest or issuance of Search Warrants?
- Apparently it is Search Warrants, because under the rules, the Judge
cannot issue a Search Warrant unless the complainant and the witnesses
personally appear before him. In Warrants of Arrest, however, the Judge
can issue the warrant based only on documents. Does this mean that the
Rules of Court gives more importance to personal property than to
personal liberty? [No]
- Why is it stricter when it comes to the issuance of Search Warrants?
- Because in Warrants of Arrest, particularly those cases that are
covered under the rule of Preliminary Investigation, there are
already antecedent proceedings prior to the issuance of the
Warrant of Arrest. During Preliminary Investigation, the
complainant has already appeared before the public
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
prosecutor, together with his witnesses... which means that
there is no need to repeat this process... the issuing Judge may
rely only on the regularity of the performance of duty of the
public prosecutor... that the complainant and the witnesses
personally appeared before the public prosecutor.
- But when it comes to Search Warrants, there is no complaint
yet... this is the first time the complainant is being examined...
being assessed. Hence, it is necessary for the issuing Judge to
personally examine the complainant through searching
questions and answers since there were no other public officers
who had conducted similar proceedings yet.
The warrant must be issued by a Judge. Does this mean that officers who are not Judges
cannot issue warrants anymore?... because under the 1973 Constitution, warrants can also be
issued by responsible officers authorized by law. But this authority was no longer carried over
to the 1987 Constitution. Does this mean that officers who are not Judges can no longer issue
warrants? [No]
- Let’s take two different cases... Salazar v. Achacoso and Harvey v. Santiago.
- In the case of Salazar v. Achacoso, the Supreme Court invalidated Art.
38 of the Labor Code, because Art. 38 authorizes the Secretary of Labor to
issue Search Warrants and Warrants of Arrest for Illegal Recruitment
cases.
- in the case of Harvey v. Santiago, however, the Supreme Court sustained
the constitutionality of the power of the Bureau of Immigration to issue
warrants.
- Why is there a difference?
- The Constitution, while reserving the power to issue warrants to Judges,
does not absolutely remove the power to issue warrants from
administrative officers. But warrants that may be rendered or issued by
administrative officers must be for a different purpose than warrants
exclusively reserved to Judges.
- Warrants of Arrest that may only be issued by Judges must be for the
purpose of taking into custody the person in order for him to be bound to
answer to a criminal offense; this is in line with Section 1 of Rule 113. With
regard to Search Warrants, the purpose of a Search Warrant that may be
issued only by a Judge is to take custody over a personal property so that
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it may be used for the prosecution of an offense. These are the purposes
of warrants that are reserved only to Judges.
- Other warrants, however, which are not intended for prosecution may
be issued by other officers. To better understand this, let’s take the case
of Harvey v. Santiago.
- In the case of Harvey v. Santiago, 22 suspected pedophiles
were arrested In Flagrante Delicto after 3 months of surveillance
by the agents of the Bureau of Immigration and Deportation. At
the time the suspected pedophiles were arrested, they were in
the company of naked young boys in possession of immoral
literature. They were immediately arrested upon the operation.
They were arrested on February 27, 1988. Out of the 22
suspected pedophiles, 17 opted for self-deportation, 1 was
released for lack of evidence, and another was charged with
working without a permit, but not for pedophilia... so there
were only 3 remaining accused. Upon their arrest on February
27, 1988, they were already immediately taken into custody...
they were already detained in Taguig. On March 4 of the same
year, the Bureau of Immigration and Deportation conducted
deportation proceedings to determine if the 3 remaining
accused violated the conditions of their visas. After the
deportation proceedings, the Bureau of Immigration issued an
Order declaring the accused as undesirable aliens and that they
should be deported. On March 7 of that year, the Commissioner
of the Bureau of Immigration issued a Warrant of Arrest... which
obviously shows that the Warrant of Arrest issued by the
Commissioner was not for the purpose of taking custody over
the persons of the accused... because as early as February 27,
1988, they were already in the custody of the law. The purpose
of the Warrant of Arrest was to execute the Order of
deportation. A warrant that could be issued by officers who are
not Judges are valid as long as the purpose is for the execution
of a final and executory judgement.
- Note that the ruling of the Supreme Court in the case of Harvey v.
Santiago, which only echoed the ruling in Morano v. Vivo, applies not only
to the Commissioner of the Bureau of Immigration but also to all
administrative officers. As long as the purpose is to execute a final order,
administrative officers may be authorized by law to issue warrants.
The warrants must be issued after examination under OATH OR AFFIRMATION of the
complainant and the witnesses.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
What is the difference between OATH and AFFIRMATION?
The Constitution allows the alternative... it could either be under oath or under affirmation.
- In an oath, can we say that the affiant or the person taking the oath has to tell the
truth and the whole and nothing but the truth? Definitely...
- In an affirmation, can we say the same thing? Yes, definitely...
What is the difference between the two?
- The only difference is the basis of the obligation.
- In the case of Alvarez v. CFI, the Supreme Court said that “in its general sense, an
OATH includes any form of attestation by which a party signifies that he is bound in
conscience to perform an act truthfully and faithfully.” Also, it is sometimes defined
as “an outward pledge given by the person taking it that his attestation or promise
is made under an immediate sense of his responsibility to God.” Which means that
in an oath, the obligation to tell the truth is premised on the belief in God. Therefore,
for those who do not believe in God, in lieu of an oath, they may take an affirmation
instead, but the obligation remains the same.
- To better understand the difference, let’s take Section 5 of Article VII.
- Under Section 5 of Article VII, the Constitution lays down the
condition before the President, Vice-President, and the Acting
President can assume office. They have to take either an oath or
affirmation. The oath or affirmation provides “I solemnly
swear...” if it is an oath; if it is an affirmation, it says “I solemnly
affirm...” Then the next few lines are the same. Then it ends with
“So help me God” if it is an oath; if it is an affirmation, the last
sentence is omitted. Despite the differences, the obligation
remains the same.
- Whether it is an oath or affirmation, the affiant is required to tell the truth, the
whole truth and nothing but the truth. The only difference is that an oath is
premised on the belief in God, while an affirmation is premised on the obligation to
law. The affiant has the obligation under the law to tell the truth, the whole truth
and nothing but the truth.
What is the Test of a Sufficient Oath?
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- The Test of a Sufficient Oath is when it is drawn in such a manner that the affiant
may be held liable for perjury for any false statements.
In the case of Alvarez v. CFI, the application was made based on reliable information. The
police officer applied for a Search Warrant and he said that based on information coming from
reliable persons, he believes that an offense is being committed in a specific place. So is this a
sufficient oath?
- The answer is no, because reliable information is not enough. The information
must be based on the personal knowledge of the applicant.
- Supposing the information was indeed reliable, is it enough that the
applicant is convinced? Supposing that the source of the applicant is
unimpeachable, a person who does not tell a lie... is this sufficient?
- The Supreme Court said no. It is not enough that the police
officer/applicant himself is convinced; it is incumbent upon the
police officer/applicant to convince the issuing Judge, and he
can only do so under the Rules by information which are
personal to him. He cannot convince the Judge through the use
of Hearsay Evidence.
The last requisite of a warrant is the particularity in the description.
PARTICULARITY IN THE DESCRIPTION does not mean that the warrant should describe the
place sought to be searched and the object sought to be seized and the person sought to be
arrested with such particularity that will go even to the minute detail. Particularity in the
description only means that the warrant describes the place sought to be searched or the
object sought to be seized or the person sought to be arrested in a way that the police officer
can identify the place, the object, or the person that is the subject of the warrant. Even John
Doe Warrants are allowed as long as the warrant provides personal description, or descriptio
personae, that would allow the police officers to identify who is the subject of the warrant.
- Supposing that the Warrant of Arrest did not particularly describe the person
sought to be arrested, but incidentally, the police officer to whom the service of the
Warrant of Arrest was assigned has personal information which will supplement the
lacking description in the warrant. Can a police officer having personal knowledge
supplement what is lacking in the warrant?
- The answer is no. Police officers cannot use any discretion; they cannot
use any information personal to them. The particularity in the description
must rest on the description in the warrant itself, and not on the
circumstances which are personal to the serving officers.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
In the case of People v. Del Rosario, a Search Warrant was issued for the search and seizure
of shabu and other drug paraphernalia in a place particularly described in the warrant. In the
service of the warrant, the police officers accidentally stumbled upon an unlicensed firearm
inside a canister. So it was not included in the warrant... the warrant only specified the search
and seizure of shabu and other drug paraphernalia. They only accidentally discovered the gun.
- The first question in this case is if the unlicensed firearm subject to confiscation
and seizure. The second question is if the unlicensed firearm is admissible in
evidence against the owner of the house.
- As to the first question, the Supreme Court said the unlicensed firearm
is subject to confiscation. While it was not included in the warrant, it is an
article or item in violation of a law. Since it is in violation of a law, the
police officers can confiscate it. However, the mere fact that it is subject
to confiscation does not necessarily mean that it is admissible in evidence.
Since it was not included in the warrant and the seizure of the unlicensed
firearm is not one of those allowed under the Rules of Court for a
warrantless seizure, then it is inadmissible in evidence.
- The Supreme Court said in People v. Del Rosario that “a Search Warrant is not a
sweeping authority empowering a raiding party to conduct a fishing expedition to
seize and confiscate any and all articles in relation to a crime.” While it is subject to
confiscation, the unlicensed firearm is inadmissible in evidence.
WARRANTLESS ARRESTS
Searches, Seizures, and Arrests may still be considered reasonable even if they are effected
without a warrant. This means that the reasonableness or unreasonableness of a Search,
Seizure, or Arrest does not depend upon the absence or existence of a warrant. The Rules of
Court and the decisions of the Supreme Court recognize several instances of a warrantless
Search and Seizures, and Arrests.
Most legal scholars and legal writers say that there are 3 permissible Warrantless Arrests, and
they point out to Section 5 of Rule 113. True enough, Section 5 of Rule 113 is titled “Arrest
without warrant; when lawful.”
- Under Section 5 of Rule 113, the three instances of permissible Warrantless Arrests
are:
1. Arrests in Flagrante Delicto — when in his presence, the person to be
arrested has committed, is actually committing, or is attempting to
commit an offense.
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2. Arrests in Hot Pursuit — when an offense has just been committed and
he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it.
3. Arrests of a Prisoner — when the person to be arrested is a prisoner
who has escaped from a penal establishment or place where he is serving
final judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
- Take note that Section 5 of Rule 113 may be implemented not only by law
enforcement officers. Section 5 of Rule 113 may also be implemented by private
persons. When Section 5 of Rule 113 is implemented by a private person, we apply
the newly-concocted doctrine called “the Robin Padilla Doctrine” (*hilarity ensues)
— the Warrantless Arrest by a private person.
Aside from Section 5 of Rule 113, there are other provisions of the Rules of Court that allow
Warrantless Arrests. Which means that Warrantless Arrests are not only limited to the
provisions of Section 5 of Rule 113.
- Other instances of permissible Warrantless Arrests include Section 13 of Rule 113,
which is titled “Arrest after escape or rescue.”
- Under Section 13 of Rule 113, a person who is lawfully arrested who has
subsequently escaped or has been rescued may be pursued or arrested at
any time without a warrant.
- Two other instances of permissible Warrantless Arrests are those provided for
under Section 23 of Rule 114, which is titled “Arrest of accused out on bail.”
- Under Section 23 of Rule 114, a bondsman may effect the arrest of on
accused who is out on bail in order to execute a final decision. The
bondsman without a Warrant of Arrest can effect the arrest of an accused
who is out on bail or he may authorize any other person to effect the
arrest.
- The last permissible Warrantless Arrest under Section 23 of Rule 114 is
the arrest of an accused who is out on bail who attempts to leave the
Philippines without authority from the court which granted the
application for bail.
These are the several instances when an arrest can be effected even without a warrant.
*Let’s discuss the IN FLAGRANTE DELICTO ARREST.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
In Flagrante Delicto arrest requires that the commission of the offense must be done in the
presence of the person effecting the arrest... because the Rules of Court expressly states
“When in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.”
What does “in his presence” mean? Must “in his presence” require physical presence of the
person effecting the arrest at the scene of the crime? [No]
- Let’s take the case of People v. Sucro. In this case, the police officer was conducting
a stakeout operation. He was observing the activities of the target who was
incidentally a childhood friend. The police officer conducted the stakeout operation
from across the street in front of the church. When he confirmed that the accused
was engaged in the sale of marijuana, the latter was apprehended In Flagrante
Delicto. The Supreme Court said that “in his presence” only means that the police
officer effecting the arrest sees the commission of the offense although at a distance
or heard the commission of the offense and proceeded to the scene of the crime
and effected the arrest. Which means that In Flagrante Delicto arrests can be
effected as long as the police officer or private person effecting the arrest has used
any of his faculties in order to observe the commission of the offense. Which means
that the arresting officer or private person can use his sense of smell if the
commission of the offense can be detected by the olfactory sense, or by the
gustatory sense which is the sense of taste. As long as the police officer or private
persons effecting the arrest has used any of his sensory perceptions, he can effect
an In Flagrante Delicto arrest.
In effecting an In Flagrante Delicto arrest, it is required that the arrest must be effected at the
time of the offense was committed, or when the accused is actually committing the offense,
or when the accused is about to commit the offense. There must be no appreciable time
between the commission of the offense and the actual arrest.
Can an arrest be effected as an In Flagrante Delicto arrest even if the accused is no longer
performing the acts constitutive of the elements of the crime?
- The general rule is no. In certain instances, however, these can be effected in cases
of CONTINUING CRIMES.
- In the case of Umil v. Ramos, the shooting incident happened a day before the
arrest. When the accused was arrested, he was being treated in a hospital. So at the
time of his arrest, the accused was no longer committing acts constitutive of the
elements of the crime of Subversion. But the Supreme Court considered this type of
offenses as a Continuing Crime. Even if the accused is no longer in the discharge of
acts which constitute the offense, they are still deemed to be committing the
offense. In this case, even if the accused was only being treated at the hospital, he
is deemed to be still engaged in the act of Subversion. The Supreme Court explained
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the reason why these crimes are considered to be Continuing; the Supreme Court
said that these crimes are directed against the Government, and the only reason
why they are considered as Continuing Crimes is to allow the State to effect a
Warrantless Arrest so that there is no more need for the Government to wait for
another overt act that would compromise the safety and security of the
Government. Which means that while Rebellion, Insurrection, and Subversion are
not continuing in fact (in the sense that the elements are scattered across time),
they are still considered to be Continuing Crimes only to effect a Warrantless Arrest.
A real continuing offense is that where the elements of the crime may be said to still
be existing even with the passage of time. An example would be Kidnapping and
Serious Illegal Detention.
*Let’s now discuss HOT PURSUIT ARREST.
Hot Pursuit Arrest presupposes that the offense has just been committed. There must be
certain immediacy between the commission of the offense and the actual arrest.
Is it required that to effect a Hot Pursuit Arrest that the officer effecting the arrest must have
been in the presence of the commission of the offense?
- The Rules of Court does not require it. The Rules only provide that a Hot Pursuit
Arrest may be effected as long as the arresting officer has probable cause, although
such probable cause must be based upon personal knowledge. Which means that
even if the arresting officer did not see the commission of the offense, but he has
conducted an investigation in order to determine the commission of the offense,
that is probable cause and such probable cause is derived from personal knowledge
because he was the one that has conducted the investigation.
The case of Go v. CA involved the shooting incident in San Juan. Six days after the shooting
incident, the petitioner together with his two counsels went to the Police Station. The only
purpose of the visit was to inquire and to confirm whether indeed the petitioner was the
subject of a manhunt operation. Petitioner was arrested immediately when he got to the San
Juan Police Station. The police effected the arrest as a Hot Pursuit Arrest. The Supreme Court
said that a crime committed 6 days ago cannot by any stretch of imagination be considered
as one that has just been committed.
Does that mean that if a crime was committed in the afternoon, a Hot Pursuit Arrest can be
made in the evening?
- Let’s take the case of People v. Rodrigueza. In this case, the version of the arresting
officers was that in the afternoon, they conducted a Test-Buy Operation. One police
officer acted as a Poseur-Buyer to confirm whether the accused was indeed engaged
in an illegal activity. Once the transaction was consummated, it was confirmed that
the accused was engaged in illegal activity. What the police officer did was he
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
returned to the Police Station to report the matter to his superior, and then the
superior formed an arresting team which eventually performed the arrest at 10 in
the evening. The illegal activity was confirmed at 5pm, then the arrest was
conducted at 10pm. Is this a Hot Pursuit Arrest? [No]
- The Supreme Court doubted that truthfulness of the version given by the
police officers because in Buy-Bust Operations, once the illegal activity is
confirmed, a Warrantless Arrest can be effected at that precise moment.
The Supreme Court said that even assuming for the sake of argument that
the version given by the police officers was correct, the police officers can
no longer effect a Hot Pursuit Arrest, because when the police officers left
the scene of the crime, the chain of events was already broken. Which
means that to effect an arrest under a Hot Pursuit, the chain of events
from the commission of the offense to the actual arrest must be
connected by unbroken links.
- In that regard, let’s take the case of People v. Gerente. In this case, a socially-
conscious neighbor heard the plan of a group. There was a drinking session and the
socially-conscious neighbor heard the plan. At 3’o’clock in the afternoon, the group
effected the plan and they killed the victim. The victim was rushed to the hospital,
and once the police officers confirmed that the victim was dead, they went to the
place where the offense was committed. They gathered evidence and interviewed
witnesses, including the socially-conscious neighbor. The neighbor pointed to the
accused, and the accused was already sleeping at the time when the police officers
effected the arrest.
- The Supreme Court said that the arrest was valid... it was just a period of
3 hours... and the chain of events from the discovery of the crime up to
the actual arrest was unbroken. Which means that in order to effect a
Warrantless Arrest under a Hot Pursuit Arrest, the determinative factor is
the link between the commission of the offense and the actual arrest.
Which means that the lapse of time is irrelevant. What is relevant is that
the chain of events from the commission of the offense up to the actual
arrest must be unbroken.
- So just to exaggerate... Let’s say for example, police officer A witnessed B killing C.
But unfortunately, police officer A was unable to arrest B at the time the latter killed
C. Police officer A could no longer effect an In Flagrante Delicto arrest because B
was able to run. Supposing police officer A and B are long-distance marathon
runners, and the chase lasted for 30 days. On the 30th day, B gave up and police
officer A arrested B under a Hot Pursuit Arrest. Is this a valid Hot Pursuit Arrest?
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- Yes. Even if there is a 30-day lapse from the commission of the offense
and the actual arrest, there can still be a Hot Pursuit arrest as long as the
chain of events remain connected by unbroken links.
WARRANTLESS SEARCHES
There are several instances of Warrantless Searches. Most of these Warrantless Searches are
provided by Case Law. There are only few that are provided by the Rules of Court or by law.
Examples of Warrantless Searches and Seizures provided for by the Rules of Court would be
the “Search incident to a lawful arrest” under Rule 126, another would be “Custom searches”
under the Tariff and Customs Code.
The rest of the Warrantless Searches are from Case Law doctrines.
In the case of Luz v. People, which involved a violation of a traffic ordinance, the accused was
apprehended for riding a motorcycle without a helmet. He was apprehended in Naga. The
penalty for the traffic ordinance only imposes a fine. Since he was apprehended near the
Police Precinct, the police officer asked if they can just prepare the ticket inside the Police
Precinct, to which the accused consented. While the police officer was preparing the ticket
for the traffic violation, the officer observed that the accused was frequently looking inside
his pocket. This impelled the police officer to order the accused to take everything out of his
pockets. Without any question and objection, the accused brought out everything from his
pockets, including a tinfoil. When the police officer opened the tinfoil, he discovered Shabu.
The issue in this case is whether there was a valid Warrantless Search and Seizure. The
Supreme Court enumerated several instances of permissible Warrantless Searches and
Seizures.
In Luz v. People, the Supreme Court enumerated 7 Instances of Permissible Warrantless
Searches and Seizures:
1. Search Incident to a Lawful Arrest;
2. Searches in Plain View;
3. Consented Searches;
4. Customs Searches;
5. Searches of Moving Vehicles;
6. Stop and Frisk; and
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
7. Searches During Exigent and Emergency Circumstances.
*Let’s first discuss CONSENTED SEARCH.
In Luz v. People, did the accused in taking out everything in his pocket without any objection
consent to the search?
- The Supreme Court said no. The Supreme Court enumerated the requisites for a
Consented Search.
In order for the search to be a Consented Search, there are 4 requisites that must be present:
1. The consent must be specific;
2. The consent must be unequivocal;
3. The consent must be intelligently given; and
4. The consent must be free from coercion or duress.
Also, the Supreme Court said that whether consent to the search was in fact voluntary is a
question of fact to be determined from the totality of all the circumstances. The Supreme
Court enumerated 9 factors to be considered in determining if consent was voluntarily given:
1. The age of the defendant;
2. Whether the defendant was in a public or a secluded location;
3. Whether the defendant objected to the search or just passively looked on;
4. The education and intelligence of the defendant;
5. The presence of coercive police procedures;
6. The defendant’s belief that no incriminating evidence would be found;
7. The nature of the police questioning;
8. The environment in which the questioning took place; and
9. The possibly vulnerable subjective state of the person consenting.
In Luz v. People, the Supreme Court said that the mere fact that the accused did not object to
the search inside the Police Precinct does not necessarily equate to consent, since he is inside
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the Police Precinct, any resistance would be futile. The Supreme Court said that there was no
Consented Search.
Can we say that even if that does not constitute a Consented Search, can it be a Search
Incidental to a Lawful Arrest? I ask because the accused was apprehended first for violation
of a traffic ordinance. [No]
A Search Incidental to a Lawful Arrest presupposes that there must be a valid arrest that
precedes the search.
In the case of Malacat v. CA, which involved a police officer who observed a group of Muslim
children in Plaza Miranda, the police officer said the Muslim children were acting suspiciously,
and when the court asked him how they were acting suspiciously, the police officer said that
their eyes were moving too fast. The police officer said that while he was about to approach
the group, the group of young Muslim boys ran away in different directions. The police officer
chased one, and the search on the person of the young boy resulted in the discovery of a hand
grenade. The issue in this case is whether there was a Search Incident to a Lawful Arrest.
- The Supreme Court said no. In order to effect a Search Incident to a Lawful Arrest,
there must be an arrest prior to the search. This event cannot be reversed, but only
insofar as Search Incident to a Lawful Arrest is concerned, because other
Warrantless Searches allow a search prior to an arrest. But insofar as a Search
Incident to a Lawful Arrest is concerned, there must be a valid prior arrest before a
search is effected.
Going back to Luz v. People, the Supreme Court said that in order to be considered as an
arrest, the law violated by the person apprehended must be punishable by imprisonment. If
the apprehension of the person is for a violation of law punishable only by a fine, then it is not
an arrest. The Supreme Court said that under the Rules of Court, an arrest is not required for
offenses punishable only by a fine. Therefore, in this case, when the accused was
apprehended for a traffic violation, he was not arrested, he was only apprehended. The
purpose of the apprehension was for the service of a ticket, and not to deprive the person
apprehended of his liberty.
What is the extent of a permissible Search Incident to a Lawful Arrest?
- The extent of such permissible search is the body of the person arrested, his outer
clothing, and the premises within his immediate control.
The case of Espano v. CA also involved a Buy-Bust Operation wherein the police officer acted
as a Poseur-Buyer. The transaction happened on the road several meters away from the house
of the accused. When the transaction was consummated, the police officer effected an arrest,
and the police officer searched the outer clothing of the accused, which yielded in the
discovery of 3 cellophane bags of marijuana. Thereafter, the police officers searched the
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
house of the accused. The issue in this case is whether the 10 cellophane bags of marijuana
discovered in the house of the accused after he was arrested on the street outside his house
is by a permissible Warrantless Search under a Search Incident to a Lawful Arrest.
- The Supreme Court said no. Only the items found in the possession of the accused
at the time he was arrested are covered by a Search Incident to a Lawful Arrest, but
those items found inside his house are not covered by such search because it was
already beyond the permissible Warrantless Search as an Incident to a Lawful Arrest.
What now is the permissible extent of these Warrantless Searches?
- Let’s take the case of People v. Musa. This case also involved a Buy-Bust Operation.
The transaction was consummated inside the house and the accused was arrested
in his living room. The police officer searched the kitchen which was several meters
away from the living room and they found a plastic bag which contained marijuana.
The issue in this case is whether the plastic bag discovered in the kitchen several
meters away from the living room, where the arrest is effected, is covered by the
Search Incident to a Lawful Arrest.
- The Supreme Court said no. A Search Incident to a Lawful Arrest will only be valid
up to the extent of that which is within the reach of the accused.
According to the Supreme Court in People v. Musa, the purposes of a Search Incident to a
Lawful Arrest are:
1. To protect the person effecting the arrest; and
2. To prevent the accused from discarding or destroying evidence.
A Search Incident to a Lawful Arrest presupposes that there must be a valid arrest prior to the
search. Supposing the accused could no longer challenge the validity of his arrest, can the
search that was effected subsequent to such arrest be covered by a Search Incident to a Lawful
Arrest?
- Let’s take the case of People v. Peralta. The accused in this case, who is an
employee of the Central Bank, was arrested while he was waiting for a bus. Which
means that it was not one of those permissible Warrantless Arrests. Then he was
subjected to custodial investigation, and the police officers said that they found a
perforated bill inside his wallet. The demonetized perforated bills were intended to
be destroyed. The issue in this case is that the accused entered his plea of not guilty
without challenging the validity of his arrest. The Supreme Court said that the
accused has already waived his right to challenge the validity of his arrest. The
question is what about the validity of the search? Can we say that since the arrest
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can no longer be considered as illegal, the search that was effected thereafter is also
a search incident to an arrest which can no longer be declared illegal?
- The Supreme Court said no. The waiver only covers the issue of the
validity of the arrest but not as to the validity of the search. In order to
effect a Warrantless Search as an Incident to a Lawful Arrest, it is
incumbent upon the prosecution to establish that the arrest is one of
those allowed under the Rules of Court without a warrant. Which means
that the mere waiver of the right to challenge the validity of the arrest
does not make the subsequent search as falling within a Search Incident
to a Lawful Arrest.
*Now we go to another permissible Warrantless Search — STOP AND FRISK / THE TERRY
SEARCH.
This was first implemented in the US case of Terry v. Ohio. In this case, the police officer
involved was Detective McFadden. Detective McFadden had been with the Cleveland Police
Force for 39 years. He had been patrolling the area where he spotted Terry and his group for
35 years. This means that Detective McFadden was very much familiar with the area. He
knows the usual persons, and he knows the usual activities occurring in the area. One
afternoon, he spotted Terry. Since he did not know Terry, he observed them and their
activities. Terry was moving to and fro in the same direction from one end of the street to the
other, and whenever Terry was in front of a store, he looks at a window. This happened for
quite some time. After several minutes, Detective McFadden observed another person doing
the exact same thing as Terry. Then these two, Terry and his companion, conferred with a
third person, another member of the group. At that time, Detective McFadden concluded that
Terry and the other 2 persons were casing up the establishment, and he wanted to conduct
further investigation, thus, he approached the group. When Detective McFadden introduced
himself, one of the members of the group mumbled something, which was not revealed in the
decision of the Supreme Court, although this was controversial because Terry was black.
Detective McFadden searched Terry by patting his outer clothing, which resulted in the
discovery of an unlicensed revolver. He did the same thing to the other two members, which
resulted in the discovery of another unlicensed revolver in the possession of one of the
members, Katz. The issue in this case is whether the two unlicensed firearms could be used as
evidence against the accused. Was the search a permissible Warrantless Search?
- The US Supreme Court said yes. There is a difference between arrest and “stop for
further investigation.” There is also a distinction between an extensive search and
frisk of the outer clothing, the latter being called “stop and frisk.” So, arrest
distinguished from a stop, and extensive search distinguished from a frisk. The US
Supreme Court said that the purpose of a Stop and Frisk Search is to continue the
investigation without exposing the person of the police officer to danger. That is
why it is only limited to the outer clothing of the person sought to be searched.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
In the case of Malacat v. CA, the Supreme Court said that there are 2 Objectives of a Stop and
Frisk / Terry Search, which are:
1. For the general interest of an effective crime prevention and detection; and
2. For the more pressing interest of personal safety and security.
In Stop and Frisk Searches, there is no need for probable cause. The only requisite for a Stop
and Frisk is that there must be a genuine reason based on the training and experience of the
police officer to believe that crime may be afoot. Even if there is no probable cause, as long
as it is grounded on reasonable circumstances, the Warrantless Stop and Frisk Search may be
effected.
Aside from Stop and Frisk, the Supreme Court also applied another Warrantless Search, which
is STOP AND SEARCH.
What is the distinction between Stop and Frisk and that of Stop and Search?
- Stop and Search was applied by the Supreme Court in the case of Posadas v. CA.
In this case, police officers were observing the activities of a person. The police
officer noted the suspicious conduct of this person. When the police officer
approached, the accused ran. The police officer chased the accused and was able to
catch him. The police officer searched his outer clothing and the courier bag that he
was carrying at that time, which resulted in the discovery of firearms and
ammunition inside the bag. Which means that Stop and Frisk cannot be applied here
because Stop and Frisk is only limited to the outer clothing. But the Supreme Court
said that no, it is not Stop and Frisk which is applicable here, but STOP AND SEARCH
which is akin to Stop and Frisk. The Supreme Court distinguished the two.
- In STOP AND FRISK, there is no need for probable cause. The standard to
be used here is based on the training and experience of the police officer.
There must be genuine reason based on the training and experience of
the police officer to believe that crime may be afoot.
- In STOP AND SEARCH, there must be probable cause. In probable cause,
the standard is based on a reasonably discreet and prudent man.
- Which means that with regard to the suspicious conduct, it is more obvious in Stop
and Search because the point of view is taken from an ordinary man. If the point of
view is taken from a police officer, what may be obvious to a trained and seasoned
police officer may not necessarily be obvious to an ordinary man. That is the reason
why in a Stop and Search, the permissible extent of the search is greater than a Stop
and Frisk; it includes the person of the accused, as well as those within his
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immediate control. It is the same scope and extent as that allowed in a Search
Incident to a Lawful Arrest.
*We go now to SEARCHES IN PLAIN VIEW.
In United Laboratories (UNILAB) v. Isip, a Search Warrant was issued for the search and
seizure of counterfeit Revicon Products. The police officers served the warrant but did not find
the counterfeit Revicon Products in the place described in the warrant, but they found instead
Dycodrene and Inoflux Products, which are also being manufactured by the petitioner. The
issue in this case is whether the seizure of the Dycodrene and Inoflux Products, which were
later found to be counterfeit, may fall under Search and Seizure In Plain View.
The Supreme Court enumerated 3 Requisites for a Valid Seizure of Evidence in Plain View:
1. The police officer has prior justification for an initial intrusion or otherwise
properly situated in a position from which he can view a particular order;
2. The police officer discovered the incriminating evidence inadvertently; and
3. Not only is the object readily apparent, but also the incriminating character of the
object.
Supposing police officers A and B love go to parties. Police officer A told B that he knows the
location of a party. Police officer B asks if they were invited, and police officer A says that there
is no need because they are police officers. When they went to the house of the party, they
knocked on the door. No one answered. The door was unlocked so they went right in.
Immediately upon entering the door, they saw drugs everywhere. Can they effect a seizure of
evidence under the Doctrine of Plain View?
- The answer is no, because they do not have a right to be there; they are party
crashers. To effect a seizure in Plain View, there must be prior justification for an
initial intrusion. Since they violated the privacy of that event/party, they cannot
effect a seizure of evidence in Plain View.
Supposing the court issued a Search Warrant for the search and seizure of shabu and other
drug paraphernalia, and in the service of the warrant within the place described therein, the
police officers found an unlicensed firearm inside a drawer while they were searching for the
shabu and other drug paraphernalia. Is seizure of evidence in Plain View applicable in this
case? Let’s apply the three requisites:
- Do the police officers have a right to be there? Definitely because they are serving
a Search Warrant.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Did they discover the evidence inadvertently? Definitely because they were not
looking for the unlicensed firearm. They were looking for shabu and other drug
paraphernalia, but incidentally they found the unlicensed firearm.
- Is the incriminating character of the object apparent? Definitely because it is a
prohibited article or is regulated at the very least. Which means that it is incumbent
upon the owner to show that it is allowed or he has a license to possess it.
This is what happened in the case of People v. Del Rosario. But in this case, the Supreme Court
said no... the unlicensed firearm is not admissible as evidence... We cannot apply seizure of
evidence in Plain View. The second requisite provided by the Supreme Court in the case of
United Laboratories (UNILAB) v. Isip should be modified to the extent that the police officers
must have discovered the incriminating evidence inadvertently WITHOUT CONDUCTING ANY
SEARCH. Which means that they must not be opening anything. The object which is
incriminating must be readily apparent. They must discover the evidence inadvertently but
without conducting any search.
The Supreme Court in People v. Del Rosario said that “a search warrant is not a sweeping
authority empowering a raiding party to undertake a fishing expedition to seize and confiscate
any and all kinds of evidence or articles relating to a crime.”
In the case of People v. Musa, remember the police officers arrested the accused in the living
room. When the police officers arrested the accused in the living room, they saw a plastic bag
hanging in the kitchen. The police officers asked the accused what the plastic bag contained,
but the accused refused to answer. Thus, the police officers went to the kitchen and took the
plastic bag and looked inside only to find that it contained Marijuana. Is this a seizure of
evidence in Plain View? Can we say that the police officers did not search, but they merely
saw the plastic bag in the kitchen from the living room where the arrest was made?
- The Supreme Court said no, because what is apparent to the police officers is just
the plastic bag hanging in the kitchen; they do not know the contents of the plastic
bag. To effect a seizure of evidence in Plain View, the incriminating evidence must
be apparent and not only the container thereof. The problem in this case is when
the Supreme Court said that there was no indication, there was nothing in the plastic
bag that revealed its contents, and there was no manifestation at all that it
contained incriminating evidence. Does that mean that when there are some
suggestions in the container, they can effect a seizure of evidence in Plain View?
- Let’s modify the factual circumstances in the case of People v. Musa. Supposing
that the plastic bag hanging in the kitchen had a note, and that note says “Marijuana
Inside.” The container reveals its contents. Can the police officers effect a seizure of
evidence in Plain View?
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- The answer is no, because what must be apparent is the evidence itself,
and not only a suggestion. In that regard, the incriminating evidence must
be apparent to the officers effecting the seizure.
In the case of United Laboratories (UNILAB) v. Isip, when the police officers entered the
premises, they saw a transparent glass cabinet full of Dycodrene and Inoflux Products. The
police officers said that they were not looking for anything, they were not conducting a search
for it, but when they entered the premises they saw the Dycodrene and Inoflux Products. Can
they effect a seizure of evidence in Plain View? Let’s apply the 3 requisites provided by the
Supreme Court:
- Do the officers have a right to be there? Definitely, they are serving a Search
Warrant.
- Did they discover the evidence inadvertently without conducting a search?
Assuming that that was what happened, yes definitely.
- Is there anything wrong with the display of Dycodrene and Inoflux Products? None.
Which means that it is not incriminating by itself.
In order to effect a seizure of evidence in Plain View, the incriminating character of the
evidence must be readily apparent. The Supreme Court said that the only time the police
officers discovered that they were counterfeit products is when the FDA certified that they
were indeed counterfeit. So, when the police officers seized them, they did not know that
they were counterfeit or not. Which means that the incriminating character of the evidence
was not readily apparent.
What is the standard to be applied by the police officers in determining whether the
incriminating character of the evidence is readily apparent? What standard of evidence?
- The Supreme Court in United Laboratories (UNILAB) v. Isip said ONLY PROBABLE
CAUSE. As long as the police officers have probable cause to believe that the object
that they observed is a contraband, they can effect a seizure of evidence in Plain
View.
*Now we go to CUSTOMS SEARCHES.
What is the limitation of Customs Searches?
- Customs Searches can be effected even outside the Customs premises. Customs
Searches, without a warrant, can be effected even inside buildings, inside
enclosures, EXCEPT DWELLINGS... meaning, houses cannot be searched without a
warrant under Customs Searches. This is the ruling of the Supreme Court in the case
of Papa v. Mago.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
What items may be seized without a warrant under Warrantless Customs Searches? Are all
objects subject to seizure under a Customs Search?
- The answer is no, ONLY DUTIABLE GOODS may be seized. Dutiable Goods refer to
imported items or those items to be exported. These are the only items that are
subject to Customs Duties.
*Let’s now discuss REGULAR CHECKPOINTS.
How about Regular Checkpoints? What is the extent of permissible warrantless Checkpoints?
- ONLY VISUAL SEARCH. Meaning, the police officers may use a flashlight to see the
inside or require the occupant of the vehicle to turn on the light inside the vehicle.
However, the occupant of the vehicle cannot be required to open the trunk, the
compartments, or any other enclosure of the vehicle under Regular Checkpoints.
- The more Extensive Searches During Checkpoints may only be effected when the
police officers have probable cause to believe that the vehicle or the owner is
involved with a crime.
- But during Regular Checkpoint Operations, only visual searches are allowed.
How about AERIAL SATURATION DRIVES?
- They are valid, provided that constitutional rights are respected.
- If we have Oplan Tohkang now, during Martial Law we had Aerial Saturation Drives.
- Aerial Saturation Drives occurs when police officers of a particular community,
usually a Barangay, require all male persons to be flushed out of their residences
and gathered and assembled in an open place, usually a basketball court, and they
will be required to take their shirts off to reveal any identifying marks.
- In the case of Guazon v. De Villa, the Supreme Court did not make a categorical
declaration as to the constitutionality of this type of Warrantless Searches. The
Supreme Court, however, dismissed the petition based on technicalities because the
petitioner is not one of those who were subjected to this type of search. The
Supreme Court implied that police officers can effect law enforcement activities like
Aerial Saturation Drives, because the Supreme Court said that the circumstances of
that time allow the President to use extraordinary force in order to ensure and
maintain peace and order. Which means that Aerial Saturation Drives are one of
those Warrantless Searches that fall under SEARCHES DURING EXIGENT OR
EMERGENCY SITUATIONS. The Supreme Court, however, cautioned the police
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officers in this case that rights of the persons subjected to this type of law
enforcement activity should be respected. The Supreme Court said that persons
subjected to this type of search cannot be required to take off their shirts, the
houses should be protected, there should be no banging of doors, no kicking of
walls, and of the like. The rights of the people, particularly the right to privacy, must
be recognized.
These are the many instances of Permissible Warrantless Arrests and Warrantless Searches.
SECTION 3 OF ARTICLE III — PRIVACY OF COMMUNICATION AND CORRESPONDENCE
Is there such a constitutional right to privacy? I ask because if we read Art. III from Section 1
to Section 22, there is only one provision which deals with privacy — Section 3. However, the
extent of privacy protected by Section 3 is only limited to “communication and
correspondence” and the right to privacy is more than that. Does that mean that the right to
privacy guaranteed by the Constitution is only limited to communication and
correspondence?
- The Supreme Court answered this question in the case of Ople v. Torres. In this
case, the governmental act challenged was Administrative Order No. 308 — The
National ID System. The Supreme Court ruled that while there is no specific
constitutional provision that guarantees the right to privacy in all its aspects, Zones
of Privacy are created by the Constitution.
- The Supreme Court in Ople v. Torres cited the case of Griswold v. Connecticut
which involved a State Law that prohibits the use of contraceptives. The US Supreme
Court declared that law unconstitutional because it invades the privacy of one’s
room. There are areas which cannot be entered by the government... definitely, the
bedroom is outside the governmental power... that area cannot be interfered upon
by the courts. The US Supreme Court said the Concept of Limited Government
always included the idea that governmental powers stop short at certain intrusions
into the personal life of an individual. This is one of the distinctions between a
Limited Government and an Absolute Government. The US Supreme Court said that
the ultimate and pervasive control in the life of the individual of all aspects of his
life is the hallmark of an Absolute Government. While on the other hand, the
Concept of Limited Government recognizes a private sector which belongs to the
private individual which clearly distinguishes it from the public sector which the
State can control. Which means there are zones which are beyond the power of the
government.
- In the case of Griswold v. Connecticut, the US Supreme Court said that various
provisions in the Constitution have penumbras formed by emanations of these
guarantees that help give them life and substance. The US Supreme Court said that
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
various provisions in the Bill of Rights create Zones of Privacy. The First Amendment,
the Third, Fourth, Fifth Amendments of the US Constitution create Zones of Privacy.
- In the same fashion, in Ople v. Torres, the Supreme Court enumerated the
provisions of the 1987 Constitution which create Zones of Privacy. The Supreme
Court said that provisions of the 1987 Constitution which create Zones of Privacy
are:
1. Section 1 of Article III (Due Process and Equal Protection);
2. Section 2 of Article III (Right against Unreasonable Searches and
Seizures);
3. Section 3 of Article III (Right to Privacy of Communication and
Correspondence);
4. Section 6 of Article III (Liberty of Abode and of Travel);
5. Section 8 of Article III (Right to Form Unions, Associations, or Societies);
and
6. Section 17 of Article III (Right against Self-Incrimination).
What are the two Categories of Privacy?
- In Disini v. Secretary of Justice, the Supreme Court said that the two Categories of
Privacy, taken from the US Supreme Court decision in Whalen v. Roe, are:
1. DECISIONAL Privacy — the independence in making certain important
decisions; and
2. INFORMATIONAL Privacy — interest in avoiding disclosure of personal
matters and freedom from surveillance.
- Although in the more recent case of Vivares v. St. Theresa’s College, the Supreme
Court extended the 2 categories and made it 3. The Supreme Court said that the
third category of Privacy is LOCATIONAL/SITUATIONAL Privacy.
- Assessing the 2 Categories Decisional and Informational, we can say that
Locational/Situational is already embraced in Informational, because
Locational/Situational only refers to the information about the location of a
particular person.
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Decisional Privacy refers to the right to be independent in making certain important decisions.
Under this category of privacy, the government cannot interfere in the decision-making
process of an individual because it is covered by Decisional Privacy.
Informational Privacy, on the other hand, consists of two aspects. The two aspects of
Informational Privacy are:
1. The right not to disclose personal information or information of private matters;
and

2. To live freely without surveillance and interference.
In the case of Ople v. Torres, the public respondent contends that there is no right to privacy
on transactions with the government, because under The National ID System, the transactions
of one person with one government agency can be shared with other government agencies.
According to the public respondent, there is no expectation of privacy with regards to such
information. The Supreme Court did not agree. The Supreme Court said that there are 2 tests
in order to determine whether there is a reasonable expectation of privacy.
According to Ople v. Torres and Disini v. Secretary of Justice, the reasonableness of a person’s
expectation of privacy depends on a two-part test:
1. SUBJECTIVE TEST — Whether by his conduct, the individual has exhibited an
expectation of privacy; and
2. OBJECTIVE TEST — Whether this expectation is one that society recognizes as
reasonable.
The factual circumstances of the case determine the reasonableness of the expectation.
However, other factors, such as 1) CUSTOMS, 2) PHYSICAL SURROUNDINGS, and 3) PRACTICES
OF A PARTICULAR ACTIVITY may serve to create or diminish this expectation.
The conditions wherein the government may compel disclosure from the people are:
1. A compelling state interest is involved;
2. There is a rational connection between the disclosure and the purpose of the law;
and
3. The law must be narrowly drawn.
In the case of Vivares v. St. Theresa’s College, the STC students, who are minors, uploaded on
their Facebook accounts pictures where they were shown to be in their undergarments. The
pictures were accessed by other schoolmates and were shown to their teacher. The teacher
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
then reported the matter to the administration, which then conducted an investigation.
According to the petitioners, those pictures are private, and the school, the teacher, and the
administration have no right to access them. The Supreme Court said that with regard to
online social networking environments, privacy is no longer grounded on reasonable
expectations. In online social networking platforms or environments, privacy is no longer
grounded on reasonable expectations, but rather on theoretical protocols, or theoretical
protocols better known as “wishful thinking.” The Supreme Court said there is no privacy in
online social networking environments. While the Supreme Court discussed there are certain
levels of privacy settings... “For Me,” “Public,” “Custom,” “Friends Only,” the Supreme Court
said that even if these settings are provided, there is a disclaimer... Facebook says that the
privacy settings are not full-proof... which means there is no absolute privacy even for these
types of privacy settings. The Supreme Court said that the students have not shown any
indication that they intended those pictures to be private. As a matter of fact, anyone from
the school can access the pictures... which means that it can be accessed by any person. The
Supreme Court said that if the students failed to protect their privacy, how can they expect
the courts to do that for them. They must first protect their privacy before they go to court.
This is also the same ruling of the Supreme Court in the case of Belo v. Guevarra.
In Belo v. Guevarra, this is an administrative case for disbarment which involves Dr. Vicky Belo
and Atty. Argee Guevarra. In his Facebook account, Atty. Guevarra posted some strong
statements against Dr. Vicky Belo. He called her a “Quack Doctor,” among other things. During
the proceedings, Atty. Guevarra claimed those statements are private, that they were
intended only for his friends. The Supreme Court said no... even if the statements are made
only for friends, those friends have several different friends, who likewise have several
different friends... the original audience of 100 will multiply to a million-fold. The Supreme
Court said that in order to be entitled to the right of privacy, the actor must show that he has
exhibited an expectation of privacy, and such expectation must be reasonable. In this case,
Atty. Guevarra was suspended from practicing law for a period of 1 year.
Remember that in the case of People v. Marti, the Supreme Court said that the Bill of Rights
can only be invoked against the Government. Remember the statement of Father Bernas that
“the Bill of Rights governs the relationship between the individual and the State. It is not
concerned with the relation between two private individuals. What the Bill of Rights does is to
create forbidden zones of privacy inaccessible by any power holder.” Does that mean that the
entire Bill of Rights from Sections 1 to 22 are only directed against the Government and cannot
be violated by a private individual?
- Let’s take the case of Zulueta v. CA. In this case, the wife went to her petitioner
husband’s clinic, who is a doctor. She opened the drawers, and took some pictures,
and took some correspondences to be used in the civil action that she filed against
her husband. At this time, she was accompanied by the usual companion of a very
suspicious wife — her mother. They ransacked the clinic and took the letters. The
petitioner moved to suppress the pieces of evidence procured by the wife inside the
clinic without his consent. The wife said that the right to privacy can only be invoked
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against the Government, thus, the constitutional protection does not apply to her.
The Supreme Court disagreed. The Supreme Court said that “the intimacies between
husband and wife do not justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any telltale evidence of marital
infidelity.” The Supreme Court said that “a person, by contracting marriage, does
not shed his or her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.” In this case, the Supreme
Court applied the right to privacy of communication and correspondence even
against a private individual.
Again, different zones of privacy are created by different constitutional provisions:
- Section 2 of Article III creates a zone of privacy over one’s person, house, papers,
and other effects AGAINST GOVERNMENT INTRUSION.
- Section 3 of Article III creates a zone of privacy over one’s communication and
correspondence AGAINST ANY PERSON, whether against the government or any
private person.
There may be instances when an evidence may have the characteristic of a paper and a
communication. “Paper” is covered by Section 2 of Art. III, while “Communication” is covered
by Section 3 of Article III. To be specific, a Letter is both a Paper and a Communication. If a
letter is procured by a private individual without the consent of the owner, do we apply
Section 2 or Section 3? Can we say that the Letter is a Paper, and since it is a Paper, it is covered
by Section 2, which can only be violated by the government, and since it is a private individual
who procured the Letter, the Letter is admissible, applying People v. Marti? On the other
hand, can we say that Letter is also a Communication, and since it is a Communication, it is
covered by Section 3, and according to the Supreme Court in Zulueta v. CA, Section 3 can also
be violated by a private person, therefore, inadmissible? So how can we reconcile this? Can
we say that only Section 2 or only Section 3 is applicable, or can we say that both are
applicable?
- The answer is BOTH SECTION 2 AND SECTION 3 ARE APPLICABLE. The Letter is
admissible and inadmissible at the same time. Could this be possible? Yes, the
admissibility or inadmissibility of that evidence depends on the purpose of such
evidence.
- If that Letter is offered as an OBJECT EVIDENCE, Section 2 shall apply. If
the only purpose is to show that there is indeed a Letter, Section 2 shall
apply, which means that it is admissible because it was a private individual
who obtained that Letter.
- But if that Letter is being offered as a DOCUMENTARY EVIDENCE,
meaning to say, the proponent will prove the contents of the Letter, we
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
apply Section 3 because in that regard, it is a Communication. Since it was
procured without the consent of the owner, there is a violation of the right
to privacy. Therefore, even if the person who procured it is a private
individual, it is covered, according to the Supreme Court in the case of
Zulueta v. CA.
- This is the difference between People v. Marti and Zulueta v. CA.
Apart from the Constitution, laws also create Zones of Privacy.
- The Civil Code, particularly the law on Torts, makes it actionable on the act of
prying into the privacy of one’s neighbor. That’s an actionable tort.
- The Intellectual Property Code also creates a Zone of Privacy for trade secrets.
- The Bank Secrecy law also creates a Zone of Privacy by making bank transactions
private.
- The recent Data Privacy Act also creates a Zone of Privacy.
- The Anti-Wire Tapping Act (R.A. 4200) also creates a Zone of Privacy.
Supposing while we are conducting this lecture, one of the participants present recorded the
lecture. Does the lecturer have a cause of action under R.A. 4200? Can the lecturer say that
his right to privacy was violated and this constitutes a violation under R.A. 4200? [No]
- This question was answered by the Supreme Court in the case of Navarro v. CA. In
this case, a heated discussion between the victim and the police officer was tape
recorded by the companion of the victim. The victim and the companion are
reporters. Before the incident, the victim and the companion went to a strip club (a
place that is notorious for presenting “cultural shows”). During the show, the victim
took pictures when the cultural dancers started to undress. When the bouncer
noticed that the victim was taking pictures, they were asked to leave. The victim
refused, but they were forcibly brought outside. The victim and the companion
immediately reported to the Police Precinct. When they got there, the police officers
were doing their routine activity at night; they were in the performance of their
duty. Once the victim and the companion got there, the police officers were doing
their usual activity — they were drinking. When the police officers learned about
the incident, the police officers asked if “hindi nyo ba alam sino yun ari doon?” Then
the owner of the club arrived at the Police Precinct during the time that the victim
and the police officers were having a heated argument. Then the police officer
punched the victim, who fell to the pavement and died as a result of trauma to the
head. However, unbeknownst to all, the discussion between the victim and police
officer was tape recorded by the companion without their knowledge. While it was
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not raised as an issue in the case, the Supreme Court discussed whether R.A. 4200
was violated.
- The Supreme Court said no. R.A. 4200 prohibits the unauthorized
recording of PRIVATE COMMUNICATIONS. The conversation happened
inside a Police Precinct. At the time the conversation happened, there
were other people around. Which means that the two parties did not
intend for the communication to be private. Since it was not a private
communication, it is not covered by R.A. 4200.
Supposing the private communication was recorded without the knowledge of the other party
by one of the parties to the communication. Supposing A and B were having a private
conversation, and B recorded the private conversation, is R.A. 4200 violated? [Yes]
- This is the issue in the case of Ramirez v. CA. The Supreme Court said yes, there is
a violation of R.A. 4200 because the law does not distinguish who may violate the
law.
- Section 1 of R.A. 4200 expressly provides that “it shall be unlawful for ANY PERSON,
not being authorized by all the parties to any private communication or spoken word,
to tap any wire or cable, or by using any other device or arrangement, to secretly
overhear, intercept, or record such communication or spoken word by using a
detectaphone, or walkie-talkie, tape recorder, or any other devices howsoever
called.”
- The Supreme Court in the case of Ramirez v. CA said that the use of the word “ANY”
means it applies even to the parties to the private communication or spoken word.
Supposing the private communication between two persons was intercepted or overheard by
a third party through the use of an extension telephone line. Is there a violation of R.A. 4200?
[No]
- Let’s take the case of Gaanan v. Intermediate Appellate Court. In this case, the
petitioner and the private respondent were discussing an amicable settlement in a
criminal case. At the time they were discussing the terms of the amicable
settlement, the lawyer of the plaintiff was present. The plaintiff asked his lawyer if
he could go to the other line and listen to their discussion, but the other party did
not know that the lawyer was listening on the other line. When the other party
discovered that plaintiff’s lawyer was listening without his consent, he filed a
complaint for violation of R.A. 4200. The Supreme Court said that it did not
constitute a violation of R.A. 4200, because an extension telephone line is not one
those enumerated under the law that could be used to violate the law. The catch-
all phrase “any other device howsoever called” cannot be applied in this case
because the extension telephone line is not similar to those mentioned. The phrase
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
“any other device howsoever called” shall only be interpreted to mean that it must
be similar to those mentioned following the PRINCIPLE OF EJUSDEM GENERIS (of the
same kind or nature). Since an extension telephone line is not one of those
mentioned by R.A. 4200, nor is it similar to those mentioned, it cannot be covered
by the law following the doctrine in Criminal Law NULLUM CRIMEN NULLA POENA
SINE LIGE (if there is no law prohibiting it, then there is no crime).
- Another question... since the overhearing of the discussion between the two
parties in that case did not constitute a violation under R.A. 4200, can the plaintiff
present the lawyer to prove the matters that they had discussed?... because it does
not constitute a criminal act... The answer is no... because while it does not
constitute a criminal act, it constitutes a violation of Section 3 of Article III of the
Constitution, and Paragraph 2 of Section 3 of Article III provides that “any evidence
obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.” Which means that it is not required that the violation
of the privacy is a criminal act. As long as there is a violation of the right to privacy,
any evidence obtained in violation of the Constitution or the right to privacy is
inadmissible.
Paragraph 2 of Section 3 of Article III is known as the EXCLUSIONARY PRINCIPLE. But
remember, the Exclusionary Principle deals with the Primary Evidence... because under the
Exclusionary Principle, the evidence obtained in violation of the Constitution will be rendered
inadmissible... while any other evidence derived from that Primary Source is rendered
inadmissible under the Doctrine of FRUIT OF THE POISONOUS TREE. The Exclusionary Principle
deals with the Tree, while the Fruit of the Poisonous Tree deals with the Fruit. But Section 3
of Article III says “ANY EVIDENCE obtained in violation...” which means that it is not only
limited to the Primary Evidence but also Derivative Evidence... ALL evidence, whether Primary
or Derivative Evidence, shall be inadmissible.
- Prior to the constitutionalization of the Exclusionary Doctrine, in this jurisdiction
we have applied the NON-EXCLUSIONARY DOCTRINE, under the Moncado v. People
ruling that the criminal cannot go scot-free just because the constable had
blundered. Under the Non-Exclusionary Doctrine, courts will still admit evidence
obtained in violation of the Constitution, but shall impose criminal or administrative
sanctions against the erring public officer. Under the Non-Exclusionary Doctrine, it
is as if the court will tell the police “I’ll admit the evidence, but next time don’t do it
again.” This is the application under the Non-Exclusionary Doctrine.
- But in the case of Stonehill v. Diokno, the Supreme Court has abandoned the Non-
Exclusionary Doctrine because of the statement of Judge Learned Hand. According
to Judge Learned Hand, “Only in case the prosecution which itself controls the seizing
officials, knows that it cannot profit by their wrong, will that wrong be repressed.”
Which means that as long as the prosecution knows that it can profit or benefit by
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a violation of the Constitution, they will continue to violate it... but until the
prosecution knows that they cannot benefit from it, the violation will not stop.
SECTION 4 OF ARTICLE III — FREEDOM OF SPEECH, OF EXPRESSION, OR OF THE PRESS, OR
THE RIGHT TO ASSEMBLE AND PETITION
Section 4 protects five very important constitutional rights:
1. Freedom of Speech;
2. Freedom of Expression;
3. Freedom of the Press;
4. Right to Free Assembly; and
5. Right to Free Petition.
These rights are so important that in the case of Bayan v. Ermita, the Supreme Court said that
“the first point to mark is that the right of the people to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression, and of the press, a
right that enjoys primacy in the realm of constitutional protection. For these rights constitute
the very basis of a functional democratic policy, without which all the other rights would be
meaningless and unprotected.”
- The Supreme Court in Bayan v. Ermita was saying that without Section 4 of Article
III, all rights under Article III from Section 1 to Section 22 would be meaningless.
Without Section 4, all other sections of the Bill of Rights would become unprotected.
That’s how important Section 4 is.
If the rights guaranteed under Section 4 are so important, why are they just treated in one
single very short constitutional provision? If they are so important, should they not deserve
one provision each?
- This question was answered by the Supreme Court in the case Reyes v. Bagatsing.
-In Reyes v. Bagatsing, the Supreme Court, citing Judge Rutledge, said that “it was
not by accident or coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these rights,
while not identical, are INSEPARABLE.”
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The Supreme Court said that the rights cannot be separated; they must
be treated together.
We have learned that in the case of People v. Marti, Section 2 of Article III can only be used
against the government, and we have learned that in the case of Zulueta v. CA, Section 3 of
Article III can be used even against private intrusions. What about Section 4 of Article III? Is
Section 4 available against private intrusion, or is Section 4 only available against the
government?
- The answer is that it is AVAILABLE ONLY AGAINST THE GOVERNMENT.
- This is provided for by the Constitution itself. In the first five words of Section 4 of
Article III, the Constitution says “No law shall be passed...” Which means that this
constitutional guarantee is only a prohibition against the government not to enact
a law. Which means that private acts are not covered by Section 4 of Article III.
If private acts are not covered by Section 4 of Article III, then why in two cases, particularly
PBM Employees Association v. Philippine Blooming Mills and Malabanan v. Ramento, the
Supreme Court discussed the primacy of this constitutional rights.
- In PBM Employees Association v. Philippine Blooming Mills, this case involved
Philippine Blooming Mills, a factory of which all the workers participated in an
assembly against Pasig Police. All those who participated in the assembly were
dismissed.
- In Malabanan v. Ramento, this case involved the private school Gregorio Araneta
School. The students and their leaders were suspended for one academic year
because of the assembly that they had conducted in excess of the activities
authorized by the school.
In both cases, the entities involved are private entities. Why did the Supreme Court apply the
constitutional guarantees under Section 4 of Article III? Again, the constitutional guarantees
under Section 4 can only be invoked against the government. The Supreme Court discussed
the importance of the right to assembly and petition in these cases only to determine the
reasonableness of the penalties.
- The Supreme Court said in PBM Employees Association v. Philippine Blooming
Mills that the employees were only engaged in the exercise of their constitutional
rights... so to punish them with dismissal is too heavy a penalty.
- Same with the case of Malabanan v. Ramento, the students were only engaged in
the exercise of their constitutional rights... so to suspend them for one year is
likewise too heavy a penalty.
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- The Supreme Court is not saying that these two private establishments violated
their rights to free assembly and petition. The Supreme Court is just saying that the
imposition of the penalties was unreasonable. The Supreme Court recognized that
these constitutional rights can only be invoked against the government.
PRIVILEGED COMMUNICATION (ABSOLUTE vs. QUALIFIED)
In order to strengthen the right to free speech, laws, rules and regulations recognize
PRIVILEGED COMMUNICATION. There are certain types of speeches which are not protected
by the Constitution, one of which is Libel. Libel is not a protected speech. However, in order
to further strengthen the constitutional right to free speech, particularly in criticizing
government officials, the RPC and the Rules of Court insulates some defamatory remarks from
the coverage of Libel.
According to the Supreme Court in U.S. v. Bustos, “the Doctrine of Privileged Communication
rests upon Public Policy, which looks to the free and unfettered administration of justice,
though, as an incidental result, it may in some instances afford an immunity to the evil-
disposed and malignant slanderer.”
There are two kinds of Privileged Communication, it can either be Absolute or Qualified
Privileged Communication.
1) ABSOLUTE PRIVILEGED COMMUNICATION is a statement which is totally blameless,
whether criminal, civil or administrative liability.
- One example of this is Section 11 of Article VI, which provides that Member of
Congress are given immunity of speech.
- The difference between Absolute and Qualified Privileged Communication is that
even if the defamatory statement is impelled with malice or bad faith, Absolute
Privileged Communication is totally blameless, unlike the case in Qualified Privileged
Communication.
- Supposing that during her Privileged Speech, a Member of the Senate delivered a
speech and said that “I’m not angry... I’m not irate... I’m homicidal... I’m suicidal...
I’m foaming at the mouth... and I’m not only that, I feel like throwing up to be living
my middle years in a country of this nature. I am nauseated... I spit on the face of
Chief Justice Artemio Panganiban and his cohorts in the Supreme Court. I’m no
longer interested to become a Chief Justice if I were to be surrounded by idiots. I
would rather be in another environment than in a Supreme Court of idiots.”
- This was the issue in Pobre v. Defensor-Santiago. The Senator who
delivered the Privileged Speech was Senator Miriam Defensor-Santiago.
Pobre v. Defensor-Santiago is a disbarment case. The Supreme Court
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
cannot help but rebuke the statements of Senator Santiago. The Supreme
Court said that it was uncalled for especially for a member of the Bar,
because each member of the Bar must accord the highest respect to the
highest officials of the land. However, with a lengthy discourse on legal
ethics, the Supreme Court nevertheless concluded that she is a member
of the Senate and, thus, the Court could not do anything about it. The
Supreme Court can only remind her but she cannot be sanctioned,
because the statements of Senator Santiago are Absolute Privileged
Communication.
2) QUALIFIED PRIVILEGED COMMUNICATION, on the other hand, are provided for by RPC and
by the decisions of the Supreme Court.
- In the case of Borjal v. Court of Appeals, remember this involves the editorial
about a self-proclaimed EDSA hero who was going around soliciting donations. In
this case, respondent claimed that the editorial is not a Qualified Privileged
Communication, because it is not one of those enumerated under Article 354 of the
RPC. Article 354 of the RPC only enumerates two kinds of Qualified Privileged
Communication, which are:
1. A private communication made by one person to another in the
performance of any legal, moral, or social duty;
2. A fair and true report, made in good faith, without comments or
remarks, of any judicial, legislative, or other official proceedings which are
not of confidential nature, OR of any statement, reports, or speech
delivered in said proceedings, OR of any other act performed by public
officers in the exercise of their functions.
- In Borjal v. Court of Appeals, the editorial is not a private communication, nor is it
a fair and true report without comments or remarks because it is an editorial and,
thus, it is an opinion. However, the Supreme Court said that the enumeration of
Qualified Privileged Communication under Article 354 of the RPC is not exclusive.
There are other statements which are Qualified Privileged Communication. The
reason, according to the Supreme Court, is that Article 354 of the RPC is not the
source of Qualified Privileged Communication. The genesis of the Principle of
Qualified Privileged Communication is the Constitution itself. Which means that
there are other laws and other rules that may grant Qualified Privileged
Communication other than Article 354 of the RPC.
The case of Diocese of Bacolod v. COMELEC involved the tarpaulins quoted by Bacolod after
the passing of the R.H. Bill... “Team Buhay, Team Patay.” In this case, the legal department of
COMELEC sent a letter to the Diocese of Bacolod ordering the dismantling of the 2 tarpaulins
because they exceeded the allowable size allowed for elections propaganda. They filed a
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petition with the Supreme Court. The Supreme Court dissected Sect. 4 by defining the extent
of this constitutional provision.
- The first phrase interpreted by the Supreme Court is the phrase “No law...” The
question raised by the Supreme Court is what does “law” mean? Does “law” mean
a legislative act? The Supreme Court said no... the word “law” applies to all
governmental acts... it applies to the act of the mayor in Primicias v. Fugoso... the
resolutions of the COMELEC in Social Weather Stations (SWS) v. COMELEC... and
also to the letter of the law department of the COMELEC in Diocese of Bacolod v.
COMELEC. So, the phrase “law” under Section 4 of Article III applies to ALL
GOVERNMENTAL ACTS.
- The next word interpreted by the Supreme Court in this case is the word
“expression.” In the 1987 Constitution, this is the first time the word “expression”
appears in the constitutional guarantee. In the 1935 and the 1973 Constitutions, the
constitutional guarantee is only limited to speech, press, assembly, and petition...
the term “expression” was not included. The word “expression” was proposed to be
inserted in the Constitution by Commissioner Lino Brocka. According to him,
“expression is more expansive than speech.” The Constitutional Commission,
through Father Bernas as the Chairman of the Committee, accepted the proposal on
the ground that it will expand the constitutional guarantee.
- According to the Supreme Court, “speech” is not only limited to vocal
communication. Conduct is treated as a form of speech sometimes referred to as
SYMBOLIC SPEECH, such that when speech and non-speech elements are combined
in the same course of conduct, the communicative element of the conduct may be
sufficient to bring into play the right to freedom of expression. The Supreme Court
said that the right to freedom of expression, thus, applies to the entire continuum
of speech from utterances made to conduct enacted, and even to inaction itself as
a symbolic manner of communication. The Supreme Court said that the Constitution
is now broader in scope because of the inclusion of the word “expression.”
In the case of Diocese of Bacolod v. COMELEC, the Supreme Court discussed several theories
and schools of thought that strengthen the need to protect the basic right to freedom of
expression and the other rights under Section 4 of Article III.
6 FREE SPEECH THEORIES AND SCHOOLS OF THOUGHT (Diocese of Bacolod v. COMELEC):
1. DELIBERATIVE DEMOCRACY — this relates to the right of the people to participate
in public affairs, including the right to criticize governmental action.
- Under this theory, open, substantial and ethical dialogue on public affairs
is a critical, and indeed defining, feature of a democratic polity. This
includes a collective decision making with the participation of all who will
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
be affected by the decision. It is anchored on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.
The theory on deliberative democracy has evolved to the right of the
people to make the government accountable.
- According to the Supreme Court, speech that promotes dialogue on
public affairs, or airs out grievances and political discontent, should thus
be protected and encouraged. The Supreme Court, in borrowing the
words of Justice Brandeis, said “it is hazardous to discourage thought,
hope and imagination; that fear breeds repression; that repression breeds
hate; that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed
remedies.”
- In line with this, Father Bernas said that “speech may be said to be
inextricably linked to freedom itself, as the right to think is the beginning
of freedom, and speech must be protected from the government because
speech is the beginning of thought.” This is how important speech is; if
freedom starts from the right to think, the right to think starts from
speech. Speech is the basic right that creates freedom.
- Under the political theory of Deliberative Democracy, criticisms of
government actions are a form of protected speech. But the Supreme
Court in Diocese of Bacolod v. COMELEC said that to be considered as
protected speech, the criticism must be specific and constructive, and not
only a generalized denouncement on the entire government system.
- In United States v. Bustos, this is the case which involved the Justice of
the Peace of Pampanga (an old position which is now equivalent to our
MTC judges). In this case, an administrative complaint was filed against
the Justice of the Peace. According to the accused, the Justice of the Peace
was demanding goose, chicken, or anything in value for a favorable
decision. However, the complaint was dismissed. When the case was
dismissed, the Justice of the Peace filed a criminal complaint against the
accused for Libel. The Supreme Court said that “the interest of society and
the maintenance of good government demands a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe relieves
the abscesses of officialdom. Men in public life may suffer under a hostile
and an unjust accusation, but the wounds can be assuaged with the balm
of a clear conscience. A public officer must not be too thin-skinned with
reference to comments upon his official acts. Only thus can the intelligence
and dignity of the individual be exalted.”
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- In this statement, free speech through criticism was likened to
a scalpel. A scalpel is a surgical instrument. Surgeons use
scalpels to slice the flesh of the patient. When doctors do this,
definitely, the patient will get hurt. Similarly, when citizens
criticize the government officials, such officials will also get hurt.
However, it must be noted that doctors use the scalpel for the
purpose of not hurting the patient, but rather for the purpose
of exposing the disease so that it may be cured. In a protected
speech through criticism, the purpose of criticism is not to hurt
the public officer... the purpose of criticism is to bring out the
social ill, with the end in view of curing it. This is the protected
speech... it is not a generalized condemnation of our
government system.
- Is criticism, as a protected speech, applicable as well to judicial officers?
Can people in the exercise of their right to free speech through criticism
say that the judges and justices of the Supreme Court are thieves? Can
we also say that members of Congress are thieves? Yes, definitely we can
say that members of Congress are thieves. Under the protected speech,
an individual can criticize members of Congress. May criticisms applicable
to members of Congress be applied as well to the members of the
Supreme Court? This was answered by the Supreme Court in the case of
United States v. Bustos.
- In United States v. Bustos, the Supreme Court said that “the
guarantees of free speech and of free press include the right to
criticize judicial conduct. The administration of the law is a
matter of vital public concern. Whether the law is wisely or badly
enforced is, therefore, a fit subject for proper comment. If the
people cannot criticize a judge or a justice the same as any other
public officer, public opinion will be effectively muzzled.
Attempted terrorization of public opinion on the part of the
judiciary would be a tyranny of the basest sort. The sword of
Damocles in the hands of a judge does not hang suspended over
the head of the individual who dares to assert his prerogative as
a citizen and to stand up bravely before any official.” The
Supreme Court said that it is not only a right but also a duty of
every citizen to criticize their government officials, including
judicial officers.
- However, in another case, People v. Alarcon, the Supreme Court made
a distinction and discussed PERMISSIBLE CRITICISMS against judicial
officers. In this case, the accused published an article and he was
condemning the decision of the RTC of Pampanga convicting him in a
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
robbery case involving farmers. He published his article while the
judgment of conviction was still pending before the Court of Appeals. The
Supreme Court said that there must be some distinction between
criticisms on terminated cases and criticisms on pending cases.
- Insofar as TERMINATED CASES, free-for-all... whatever can be
used against any other public officers, can also be used against
judges and justices.
- for PENDING DECISIONS, however, there must be some degree
of restraint. The Supreme Court said that newspaper
publications tending to impede, obstruct, embarrass, or
influence the courts in administering justice in pending cases
may constitute CONTEMPT, which may be summarily punished
by the court. Insofar as terminated cases, any degree of criticism
available to be used against any other public officers may
likewise be used against judges and justices.
- In People v. Alarcon, remember the case was still pending before the
Court of Appeals when the article was published. Can we say that the
article was a criticism of a pending case?
- The Supreme Court said no... the criticism was against the
RTC... and insofar as the RTC is concerned, it was already a
terminated case. The RTC judge can no longer be influenced by
such criticism. Similarly, the Court of Appeals cannot take action
on that, because it is not the Court of Appeals that was being
criticized, and the Court of Appeals is not the agent of the RTC.
In order to be considered as finally terminated, it does not
necessarily mean that the case is already final and executory...
it only requires that the decision being criticized can no longer
be changed by the public officer/judge/justice being criticized.
- In United States v. Bustos and People v. Alarcon, the Supreme Court
recognized the right of the people to criticize government officers. Which
means that government officers can be the subject of public discussion
and even ridicule... they cannot invoke their right to privacy when the
people talk about their activities. Aside from government officials, are
there other groups of individuals who also enjoy a lesser right to privacy?
PUBLIC FIGURES.
- In Ayer Productions v. Capulong, this case involved the film
“The Four Day Revolution,” wherein it depicts Edsa Revolution
1. Private respondent Ponce Enrile, who was a private citizen at
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this time, filed a TRO for the showing of the film because
according to him, it violated his right to privacy since he was
depicted in the film. The Supreme Court said no... while Enrile
was not a public officer at that time, he was still a PUBLIC
FIGURE. The Supreme Court defined who is a Public Figure.
- According to the Supreme Court, “a PUBLIC FIGURE has been
defined as a person who, by his accomplishments, fame or mode
of living, or by adopting a profession or calling which gives the
public a legitimate interest in his doings, his affairs, and his
character, has become a ‘public personage.’ He is, in other
words, a celebrity.”
- The Supreme Court said that there are three reasons why
PUBLIC FIGURES enjoy lesser rights to privacy:
1. They had sought publicity and consented to it, and
so they cannot complain when they received it;
2. Their personalities and their affairs had already
become public, and could no longer be regarded as
their own private business; and
3. The press had a privilege, under the Constitution, to
inform the public about those who have become
legitimate matters of public interest.
- A Pugilist is a professional boxer.
- We have identified two groups of individuals who enjoy a lesser right to
privacy (Public Officers and Public Figures). Aside from Public Officers and
Public Figures, are there any other groups of individuals who may be
subjected to public discussion and even criticism? This was discussed by
the Supreme Court in the case of Borjal v. Court of Appeals.
- In Borjal v. Court of Appeals, petitioner Borjal is a writer and
he has a column in the newspaper called “Jaywalker.” In his
editorial column, he discussed in a blind item, he said that there
is this self-proclaimed Edsa Hero who goes around soliciting
donations. Feeling alluded to the editorial, private respondent
Francisco Wenceslao filed a criminal complaint for Libel against
petitioner Borjal. According to private respondent Wenceslao,
petitioner Borjal cannot publicly discuss his activities because he
is not a public officer... he may be a consultant of the First
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
National Conference on Land Transportation, but he is not a
public officer... and he has not yet achieved that status of a
celebrity... therefore, he cannot be the subject of a public
discussion. However, the Supreme Court did not agree. Even if
a person is not a public officer nor a public figure, the people
can nevertheless talk about his activities if he is INVOLVED IN A
PUBLIC ISSUE. So private individuals involved in a public issue
can be the subject of public discussion without violating their
right to privacy.
2. MARKET PLACE OF IDEAS — free speech should be encouraged under the concept
of a market place of ideas.
- This theory was articulated by Justice Holmes in that “the ultimate good
desired is better reached by the free trade in ideas.” According to Justice
Holmes, “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
that truth is the only ground upon which their wishes safely can be carried
out.”
- The way it works is that the exposure to the ideas of others allows one
to consider, test, and develop their own conclusions. The Supreme Court
said in Diocese of Bacolod v. COMELEC that a free, open, and dynamic
market place of ideas is constantly shaping new ones. This promotes both
stability and change where recurring points may crystallize and weak ones
may develop.
- Under the market place of ideas, it is like a UFC event where all the
opinions are thrown in the ring, and whichever emerges as the victor will
become the ultimate truth... because in our system of government, there
is no ultimate truth... the truth of one should be able to compete with the
truth of another. Once a truth prevails, then such will be considered as the
ultimate truth.
- In this regard, the Supreme Court said in the case of Iglesia Ni Cristo v.
Court of Appeals, which involved the show of Iglesia Ni Cristo receiving an
X-Rating by the MTCRB, that “when the luxury of time permits, the
marketplace of ideas demands that speech should be met by more speech
for it is the spark of opposite speech, the heat of colliding ideas that can
fan the embers of truth.” Which means that in a democratic institution,
there is no truth... the only ultimate truth is that people will die and they
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have to pay taxes (*hilarity ensues). In order to be considered as a truth,
it must be able to compete with other truths. This is the concept of Market
Place of Ideas.
3. SELF-EXPRESSION — this requires that free speech must be encouraged because
it involves self-expression which enhances human dignity.
- In the case of PBM Employees Association v. Philippine Blooming Mills,
the Supreme Court compared the right to assemble and petition to the
property rights of the employer. In this case, the employer was
complaining that he and the employees had agreed that those in the first
shift should not participate in the assembly, and yet they did... thus, he
dismissed them because it interrupted the employer’s operations. The
Supreme Court, in order to determine whose right should prevail,
compared the property rights of the employer and the rights of the
employees to assemble and petition. The Supreme Court said that the
rights under Section 4 of Article III are HUMAN RIGHTS... as such, they
enjoy primacy in the hierarchy of civil and political rights... because they
are not just civil rights, but also political rights essential to the man’s
enjoyment of his life, to his happiness, and to his full and complete
fulfillment. The Supreme Court said that while property rights may
prescribe, human rights under Section 4 of Article III are
IMPRESCRIPTIBLE.
- Another proof that Section 4 of Article III is superior to other rights is that
property rights can be regulated as long as there is a Lawful Subject and
Lawful Means. Rights under Section 4 can be regulated only if there is a
Clear and Present Danger or if there is a Substantial Governmental
Interest under the O’Brian Test... so Lawful Subject and Lawful Means are
not enough when it comes to regulating the rights under Section 4. These
are the reasons why the rights under Section 4 are primary over property
rights.
4. MARKER FOR GROUP IDENTITY — free speech should be protected as the vehicle
to find those who have similar and shared values and ideals, to join together and
forward common goals.
5. PROTECTION FOR INDIVIDUALS AND MINORITIES AGAINST MAJORITARIAN
ABUSES — free speech is supposed to protect individuals and minorities against
majoritarian abuses perpetrated through the framework of democratic governance.
- According to James Madison, there are two potentially vulnerable
groups: 1) the citizenry at large (majorities) who might be tyrannized or
plundered by despotic federal officials, and 2) the minorities who may be
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
oppressed by dominant factions of the electorate that capture the
government for their own selfish ends.
- According to the Supreme Court, free speech is not intended to protect
the majority, because the majority does not need any protection. Free
speech is intended for the minority views, the unpopular views, because
this is the opinion that needs protection.
- In this regard, the statement of Justice Holmes is also applicable.
According to Justice Holmes, “the right to free speech exists not so much
for the thought that agrees with us, as for the thought that we detest.”
- It is for this purpose that the right to free speech be protected
in order to encourage the individuals to voice their opinions.
6. SAFETY VALVE — In the case of Diocese of Bacolod v. COMELEC, expounding the
ruling of the Supreme Court in Reyes v. Bagatsing, the Supreme Court compared
society to a dam. The Supreme Court said that society accumulates anger,
frustration, negative feelings, ill will against the government... if there is no safety
valve in order that the people can vent their frustrations, there will come a point
where society will no longer contain these feelings, and the only way to vent these
feelings is to explode. Like a dam, if there is no safety valve to regulate the flow of
water, once the dam meets the spilling point, it will explode. Thus, free speech
should be protected in order to allow the people to vent their frustrations so that it
will not result to violence. The Supreme Court said that “nonviolent manifestations
of dissent reduce the likelihood of violence.” This is also the reason why the Supreme
Court issued a warning in Reyes v. Bagatsing.
- In Reyes v. Bagatsing, this is the case involving the assembly and petition
in front of the US Embassy. Former Justice J.B.L. Reyes filed the petition in
order that they be allowed to conduct the assembly and petition outside
the US Embassy, which was allowed. The Supreme Court, through Justice
Frankfurter, said that “it must never be forgotten that the Bill of Rights is
the child of Enlightenment. Back of the guaranty of free speech lay faith in
the power of an appeal to reason by all the peaceful means for gaining
access to the mind. It was in order to avert force and explosions due to
restrictions upon rational modes of communication that the guaranty of
free speech was given a generous scope. For if the peaceful means of
communication cannot be availed of, resort to non-peaceful means may
be the only alternative.”
- The Supreme Court is saying that if the people cannot vent
their frustrations in a peaceful manner, they can go and take up
arms against the government... because there is no other way
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for them to express their dissent except through violence. This
is how important free speech is.
Like any other constitutional right, the rights under Section 4 of Article III can also be
regulated. However, as we have said in the case of PBM Employees Association v. Philippine
Blooming Mills, the requirements for a valid regulation of the rights under Section 4 is
different than the requirements for a valid regulation of property rights.
Not all speeches have the same degree of protection. The Supreme Court compared Political
Speeches and Commercial Speeches in Diocese of Bacolod v. COMELEC. The Supreme Court
said that a COMMERCIAL SPEECH is a speech that does nothing but promote commercial
transactions, while POLITICAL SPEECH is both intended and received as contribution in
discussing public affairs.
The core of the right to free speech is Political Speech. Which means that Political Speech
enjoys greater protection than Commercial Speech.
- Which means that a producer of bottled water cannot claim that their product is
the best water without justification... there must be some substantiation... there
must be some research showing that their product is indeed the best. However, a
person can say that President Duterte is the best President without any
substantiation... this is a Political Speech... it enjoys greater protection.
In the case of Diocese of Bacolod v. COMELEC, insofar as Political Speech is concerned, the
Supreme Court said that the degree of permissible regulation should also be based on the
nature of the regulation, whether it be CONTENT-BASED or CONTENT-NEUTRAL.
- A regulation is CONTENT-BASED when it regulates the subject of the speech or the
speaker.
- The applied test is CLEAR AND PRESENT DANGER TEST... the government
bears the heavy burden to show that the speech brings about a clear and
substantive evil which the State has a right to prevent. In the absence of
an evil both substantive and imminent, the State cannot regulate the
Political Speech.
- In the cases of Reyes v. Bagatsing and Primicias v. Fugoso, the Supreme
Court said that the Dangerous Tendency Test is not enough. Justice
Brandeis in Whitney v. California said that “Fear of serious injury cannot
alone justify suppression of free speech and assembly. Men feared witches
and burned women. It is the function of speech to free men from the
bondage of irrational fears.” In regulating a Political Speech, and such
regulation is Content-Based, it must pass the Clear and Present Danger
Test.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- A regulation is CONTENT-NEUTRAL when it only regulates the incidents of the
speech, such as the time, place, or manner of the speech.
- The applied test is only the INTERMEDIATE TEST under the O’BRIAN
TEST... if all the 4 requisites under the O’Brian Test are present, then the
government can regulate the Political Speech.
- HOWEVER, if the content-neutral regulation imposes stricter
requirements, imposes penalties, or otherwise burdens the rights under
Section 4, then the test to be applied is the CLEAR AND PRESENT DANGER
TEST, and not the Intermediate Test / O’Brian Test.
The US Supreme Court in the case United States v. O’Brian provided a test that should be
employed in determining a valid governmental regulation of free speech. This is called the
O’BRIAN TEST.
Following the O’BRIAN TEST, a government regulation is sufficiently justified —
1. If it is within the constitutional powers of the government;
2. If it furthers an important or substantial governmental interest;
3. If the governmental interest is unrelated to the suppression of free expression;
and
4. If the incidental restriction on the alleged constitutional freedom is no greater
than is essential for the furtherance of that interest.
Not all speeches are protected. There are speeches that are not protected. The case of Social
Weather Stations v. COMELEC involved the prohibition of the release of the survey results...
15 days for national election and 7 days for local election. The Supreme Court said that there
are several speeches which are not protected. Citing Chaplinsky v. New Hampshire, the
Supreme Court said that “the lewd and obscene, the profane, the libelous, and the insulting or
‘fighting’ words, and words by their mere utterance inflict injury or tend to incite an immediate
breach of the peace are unprotected speeches.” These types of speeches are not covered
under Section 4 of Article III.
Let’s talk about OBSCENITY.
In the case of Pita v. Court of Appeals, the Supreme Court had the occasion to determine
what “obscenity” means. But in the end, the Supreme Court still couldn’t give a categorical
definition of “obscenity.” The Supreme Court only said that there must be guidelines that must
be implemented by the courts in determining the characteristic of the subject literature...
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whether it is obscene or whether it is wholesome. The Supreme Court discussed the evolution
of the concept of obscenity from People v. Kottinger to Gonzalez v. Kalaw Katigbak to Miller
v. California.
- In the case of People v. Kottinger, even isolated passages can be used in order to
declare an act as obscene. Under the KOTTINGER TEST, a literature is obscene if it
has a corrupting tendency. If the tendency of the material is to corrupt or deprave
the minds of those who are exposed to the literature.
- In Gonzalez v. Kalaw Katigbak, the Supreme Court applied the DOMINANT THEME
TEST which provides that isolated passages alone will not be enough. The dominant
theme of the literature should be the determinative factor.
- In Miller v. California, the Supreme Court enumerated 3 tests or “basic guidelines”
in determining the nature of the literature... whether obscene or wholesome. The
three tests or “basic guidelines” are:
1. Whether the average person, applying contemporary standards, would
find 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 state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
In Pita v. Court of Appeals, the literature involved is Pinoy Playboy. The Mayor of Manila
ordered the confiscation of Pinoy Playboy from news-stands and magazine-stands. The Mayor
burned the copies. The Supreme Court did not make a categorical declaration as to the nature
of Pinoy Playboy...why? The Supreme Court said that the determination must be based on the
literature involved... it cannot be determined on the past issues or subsequent issues... it
must be determined solely on the literature involved. Unfortunately, said the Supreme Court,
all the copies of the literature were burned... therefore, the Supreme Court said that there is
nothing to base their decision because all the copies were burned. In this case, the Supreme
Court only provided for the guidelines... and the Supreme Court said that in the end, obscenity
shall be determined by the courts applying these standards.
RIGHT TO PEACEABLY ASSEMBLE AND PETITION
Assembly and Petitioner are considered as necessary consequences of a Republican
institution. They are deemed to be complimentary to the right to free speech.
- ASSEMBLY only means that the people have the right to meet peaceably for
consultation purposes.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- While PETITION means that the people can apply to the government without fear
of penalty for redress of grievances.
In the case of Primicias v. Fugoso, the Supreme Court said that the power to regulate the use
of public places does not authorize the Mayor to prohibit assemblies. The Mayor can only
regulate the time, manner, and place of assemblies, but not to prohibit outright the conduct
of assemblies. This was also echoed by the Supreme Court in Reyes v. Bagatsing.
Can students exercise their rights to Assembly and Petition?
- This is one of the issues in Malabanan v. Ramento. In Malabanan v. Ramento, the
Supreme Court said that students also have the right to exercise Assembly and
Petition. According to the Supreme Court, citing Justice Fortas in Tinker v. Des
Moines Community School District, “the students do not shed their constitutional
rights at the schoolhouse gate.” However, the assembly of students must not
materially disrupt classwork, and it should not involve substantial disorder or
invasion on the rights of other students and the teaching staff.
What about employees in the private sector... do they have the right to Assembly and
Petition?
- This was resolved by the Supreme Court in PBM Employees Association v.
Philippine Blooming Mills. The Supreme Court said that “The rights of Assembly and
Petition enjoy primacy in the realm of constitutional protection...because they are
not only civil rights but also political rights.”
In the case of Bayan v. Ermita, which involved the Calibrated Preemptive Response Policy,
President Arroyo issued a Memorandum declaring that police officers engaged in regulating
public assemblies under B.P. 880 shall use Calibrated Preemptive Response instead of the
standard of conduct provided under B.P. 880. The Supreme Court determined the authority
of the President to change the standard of conduct of police officers during public assemblies.
But according to public respondent, the standard of Calibrated Preemptive Response is the
same as the one provided for under B.P. 880... the President only changed the title in order to
break the wrong notion that the standard of conduct does not allow the police officers to
exercise some discretion during assemblies. But the Supreme Court said no... if the law says
that this is the standard, then the President cannot change it. According to the Supreme Court,
the standard required by B.P. 880 is the standard required by law, and the President has no
authority to modify the law. “For this reason, the so-called Calibrated Preemptive Response
Policy has no place in our legal firmament and must be struck down as a darkness that shrouds
freedom.” In that regard, the Supreme Court invalidated the Calibrated Preemptive Response
Policy.
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- On the other hand, petitioners contend that B.P. 880 is a Content-Based
Regulation. Because according to the petitioner, B.P. 880 uses the terms “lawful,”
“opinion,” “questioning,” and according to them, these terms only apply to the
opposition... those who are opposing the government. The Supreme Court said no...
the use of the term “lawful” only means that only peaceful activities are protected
by the Constitution... so unlawful activities do not enjoy constitutional protection.
The words “opinion“ and “petitioning” refer to any subject matter and they do not
only cover those who are against the government. In that regard, the Supreme Court
declared B.P. 880 as a Content-Neutral Regulation.
- In this case, the Supreme Court noted that more than 20 years after the effectivity
of B.P. 880, there were only two local government units that have established their
respective Freedom Parks... because under the law, local government units are
required to establish their respective Freedom Parks within 6 months from the
effectivity of B.P. 880. However, more than 20 years later, the Supreme Court noted
that there were only 2 local government units that have established their respective
Freedom Parks.... one is Cebu in Fuente Osmena, and the other is Manila. However,
the Freedom Park in Manila (Sunken Park) was converted into the Intramuros Golf
Course. This impelled the Supreme Court to issue a warning to all government units
that they have to establish their respective Freedom Parks within 30 days from the
finality of the decision in Bayan v. Ermita. Under pain that should they fail to provide
their respective Freedom Parks, all public parks within the territorial limits of the
local government unit shall be considered as Freedom Parks wherein no permits
shall be required.
Relative to Free Assembly and Petition, in the case of Malabanan v. Ramento, the Supreme
Court said that the mere attendance of disorder will not make the assembly as illegal. Citing
the early case of U.S. v. Apurado, the Supreme Court said that “It is rather to be expected that
more or less disorder will mark the public assembly of the people to protest against grievances
whether real or imaginary, because on such occasions feeling is always wrought to a high pitch
of excitement, and the greater the grievance and the more intense the feeling, the less perfect
as a rule will be the disciplinary control of the leaders over their irresponsible followers.”
Therefore, disorder will not make a public assembly illegal. If the assembly is held with a
permit, it is still valid if it is attended by disorder during the assembly.
SECTION 5, ARTICLE III — FREEDOM OF RELIGION
Section 5 of Article III guarantees two constitutional rights:
1. The Non-Establishment of Religion; and
2. The Free Exercise of Religion
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
In the case Estrada v. Escritor, respondent is a court stenographer who was administratively
charged because she was living with a man who is not her husband, and both the respondent
and the partner are married to other persons. The respondent and her partner belong to
Jehovah’s Witnesses and Watch Tower Bible & Tract Society. Under these religious
organizations, cohabitation of members who are not married is allowed as long as they
execute a “Declaration of Pledging Faithfulness,” and either one or both of the parties suffer
a legal impediment for them to get married. The husband of the respondent is already dead,
but the wife of her partner is still alive... which means that respondent and the partner cannot
get married because of the legal impediment. The religious organization only allows the
cohabitation of the parties as long as there is a legal impediment. Since the respondent is a
public officer, she was charged for having a grossly immoral life.
In Estrada v. Escritor, the Supreme Court discussed the Free Exercise Clause and the Non-
Establishment Clause of the Constitution.
- The Supreme Court in its 2003 Decision said that these two constitutional
guarantees are always incomplete... they cannot coexist... it is either the Non-
Establishment Clause that will prevail or the Free Exercise Clause that will prevail.
- The Supreme Court explained that under the Non-Establishment Clause,
it is a guarantee that the State should not do anything that will influence
religion... because under the Non-Establishment Clause, the stance of the
government is always neutrality... they cannot do anything that will
influence religion. While under the Free Exercise Clause, the government
must ensure that the people can enjoy their right to religious profession...
which means that the government must do anything possible within its
power in order for the citizens to enjoy religious freedom.
- In the case of Estrada v. Escritor, the Supreme Court said that the Non-
Establishment Clause is an OBLIGATION OF INACTION... the government
should not do anything that will influence religion... while the Free
Exercise Clause is an OBLIGATION OF ACTION... the government must
perform all things possible to ensure religious freedom of the people. So,
this is the reason why the Supreme Court said that they CANNOT
COEXIST... one can only be applied, but not both.
- However, in the 2006 Resolution of the Supreme Court in Estrada v. Escritor, the
Supreme Court clarified its earlier statement... the Supreme Court said that
ACTUALLY, THEY CAN COEXIST...because according to the Supreme Court, both the
Non-Establishment Clause and the Free Exercise Clause are intended to deny the
government the power to influence religious belief.
- In short, according to the Supreme Court, the Non-Establishment Clause
only prohibits the government from inhibiting religious beliefs and
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practices with rewards... while the Free Exercise Clause prohibits the
government from inhibiting religious beliefs and practices with penalties.
- In other words, the Supreme Court said that both constitutional
guarantees intend to deny the government the power to use either carrot
or stick to influence individual religious beliefs and practices. But these
two constitutional guarantees are not intended to serve different
masters... they are intended to achieve the same objective... which is to
not influence religious beliefs and practices.
The first question that must be answered by the courts in cases involving religion is the
definition of religion... what does religion mean?
- In Aglipay v. Ruiz, the Supreme Court said that “Religion is the profession of faith
to an active power that binds and elevates man to his creator.” Obviously, the
definition of religion in this case is a Theistic Concept. Theistic in a sense that the
center of the belief to be considered a religion must be a belief in God, however he
may be called... he may be called Yahweh, Jehovah, Allah, or any other name. As
long as the centrality of the belief is the belief in a supreme being, that is a religion.
- In the case of Estrada v. Escritor, the Supreme Court went into the etymology of
the word “religion.” The word “religion” came from the Middle English word
“religioun.” And it also comes from Latin word “religion” and Latin term “religio.” All
these words refer to a bond between man and God. This is the etymology of the
word “religion.” This means that etymologically, the word “religion” is indeed a
Theistic Concept.
- But in the case of Estrada v. Escritor, the Supreme Court extended the concept of
religion even to Non-Theistic Belief. According to the Supreme Court, a system of
belief or philosophy may be considered as a religion if it complies with the four
requisites, citing U.S. v. Sieger.
- Let’s discuss U.S. v. Sieger. This case is different from People v. Lagman and Sosa,
because in U.S. v. Sieger, the accused here was charged for his refusal to be drafted
in the Vietnam War, and he invoked religious freedom. But during the conference
with the government authorities, he was asked whether he was part of any religion,
and he said that he was not but that he believes in the “universal goodness of man,”
and that he believes it is against one’s conscience to take another man’s life. So the
issue in this case is whether the beliefs of the accused can be considered as a
religion... because the Military Service Law of the US allows Conscientious Objectors
to be exempted from military service, as distinguished from our PH Military Service
Act (The National Defense Law) in the case of People v. Lagman and Sosa.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Remember, the two accused in People v. Lagman and Sosa said that they
did not want to render military service because it is against their religion
to kill... so they invoked religious freedom. The Supreme Court in these
cases said that “without violating the Constitution, a person may be
compelled by force, if need be, against his will, against his pecuniary
interests and even against his religious or political convictions, to take his
place in the ranks of the army of his country, and risk the chance of being
shot down in its defense.” Meaning, regardless of personal or religious
convictions, ALL CITIZENS may be required to render military or civil
service. This is the rule in People v. Lagman and Sosa.
- However, in U.S. v. Sieger, the accused was granted his motion not to be enlisted
in the military for the Vietnam War because of his religious belief. The distinction is
that in the U.S., the law exempts religious or Conscientious Objectors from military
service unlike the Philippines. This is also the basis of Cassius Clay, or otherwise
known as Muhammad Ali, in being exempted from being drafted in the Vietnam
War. Remember his famous statement when he said that “No Vietcong ever called
me nigger.” This was the basis of Muhammad Ali and other celebrities in order not
to be drafted in the military service.
- Going back to the requisites of a system of belief or philosophy in order to be
considered as a religion, according to the Supreme Court in Estrada v. Escritor, the
4 requisites are:
1. There must be belief in God or some parallel belief that occupies a
central place in the believers’ life;
2. The religion must involve a moral code transcending individual belief;
- I.e., it cannot be purely subjective.
3. A demonstrable sincerity in belief is necessary; and
- However, the court must not inquire into the truth or
reasonableness of the belief.
4. There must be some associational ties.
- Although there is also a view that religious beliefs held by a
single person rather than being part of the teachings of any
kinds of group or sect are entitled to the protection of the Free
Exercise Clause.
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- These are the requisites for a system of belief or philosophy to be considered as a
religion.
Under the Non-Establishment Clause of Religion, it is strengthened by the separation of
Church of State under Section 6 of Article II. The Wall of Separation has two concepts.
In the case of Estrada v. Escritor, the Supreme Court said that the Wall of Separation can
either be taken from the context of Separationist Approach or Benevolent Neutrality
Approach.
1. SEPARATIONIST APPROACH can either be Strict Separationist or Strict Neutrality.
- In a STRICT SEPARATIONIST, there is an absolute impregnable wall that
separates the Church and the State. Activities of the Church shall only be
done by the Church, and activities of the State shall only be done by the
State. Under a Strict Separation, the roads built by the government cannot
be used for religious processions... they must build their own roads.
- In a STRICT NEUTRALITY, religion cannot be used as a basis to favor or
discriminate religion. Whatever applies to a secular activity shall also be
applied to a religious activity. If employees should be required to work on
a Saturday, this regulation should also be applied even to those employees
who belong to a religious organization that are not allowed to work on a
Saturday because of religious belief.
2. BENEVOLENT NEUTRALITY APPROACH is a Wall of Accommodation. Under the
Benevolent Neutrality Wall of Separation, a religious practice can be accommodated
or exempted from the coverage of mandatory law, whether criminal, civil or
administrative. Benevolent Neutrality can either be Mandatory or Permissive.
- A MANDATORY BENEVOLENT NEUTRALITY is an accommodation or
exemption of religious activity based on the CONSTITUTION. One example
of this is Par. 3 of Sect. 28 of Art. VI exempting properties used for religious
purposes from Real Property Tax. It is the Constitution itself that grants
the accommodation or exemption. This is a Mandatory Benevolent
Neutrality.
- A PERMISSIVE BENEVOLENT NEUTRALITY is an accommodation or
exemption of religious activity based on PUBLIC POLICY. One example of
this is the case involving Victoriano v. Elizalde Rope Worker’s Union. In
this case, the Industrial Peace Act allows the employer and the union to
agree on a Union Security Clause, either Closed Shop or Union Shop. So,
employees within a particular bargaining unit may be compelled to
become members of the union under the Union Security Clause. However,
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
the law was amended under R.A. 3350, which exempts members of
religious organizations that do not allow their members to be affiliated
with a union... they would be exempted from the Union Security Clause.
In essence, while it is not based on the Constitution nor on religious
freedom, it is based only on public policy. This is a Permissive Benevolent
Neutrality.
What kind of Wall of Separation is mandated by the Constitution? Is it a Wall of Separationist
or a Wall of Benevolent Neutrality?
- It is a WALL OF BENEVOLENT NEUTRALITY.
Under the Constitution, particularly under Sect. 29 of Art. VI, public funds or property cannot
be used for religious purposes. Does that mean that any use of public funds or property for an
activity that has some religious color is prohibited by the Constitution?
Let’s take the two cases of Aglipay v. Ruiz and Garces v. Estenzo.
- In Aglipay v. Ruiz, this case involved the commemorative stamps of the 33rd
International Eucharistic Congress which was held in the Philippines.
- In Garces v. Estenzo, the local government unit of Valencia, Ormoc City purchased
a wooden image of a patron saint, San Vicente Ferrer, to be used in the celebration
of the town’s annual fiesta, because San Vicente Ferrer is the patron saint of that
local government unit.
- In both cases, the Supreme Court sustained the use of public funds or property.
- In Garces v. Estenzo, the Supreme Court said that the funds were not public
because they were collected from solicitations from private persons. But
nonetheless, the funds were collected by public officers using official time,
therefore, they partake the nature of public funds. But even if they were to be
considered as public funds, the Supreme Court still sustained the use of the funds
for the purchase of the wooden image. The Supreme Court noted, “the barrio fiesta
is a socio-religious affair. Its celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and drudgery of the lives of the
masses.”
- In Aglipay v. Ruiz, the appropriation of funds for the release of the commemorative
stamps was sustained because, according to the Supreme Court, not all use of public
funds for activities that has some religious color is prohibited by the Constitution. It
may be allowed as long as there is some secular legislative purpose involved in the
activity.
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- The appropriate test to be used in order to determine whether the use of public
funds or property for activities that have some religious color may be allowed is THE
LEMON TEST, which was laid down by the U.S. Supreme Court in the case of Lemon
v. Kurtzman.
THE LEMON TEST (Lemon v. Kurtzman; The test to be used to determine whether the use of
public funds or property for activities that have some religious color may be allowed)
1. It has a secular legislative purpose (Purpose Prong);
2. It neither advances nor inhibits religion (Effect Prong); and
3. It does not foster an excessive entanglement with religion (Entanglement Prong).
As long as the Lemon Test is satisfied, the use of public funds or property for activities that
have some religious color is constitutionally permissible.
With regards to Section 5, please take note of the case of Austria v. NLRC. In Austria v. NLRC,
concerning the dismissal of petitioner, a minister of the 7th Day Adventist, for
misappropriation of denominational funds, willful breach of trust, serious misconduct and
gross and habitual neglect of duties, wherein the Supreme Court had occasion to define an
ECCLESIASTICAL AFFAIR as “one that concerns doctrine, creed or form of worship of the church,
or the adoption and enforcement within a religious association of needful laws and regulations
for the government of the membership, and the power of excluding from such associations
those deemed unworthy of membership.”
- Based on this definition, an ecclesiastical affair involves the relationship between
the church and its members and relates to matters of faith, religious doctrines,
worship and governance of the congregation.
- Examples of these affairs in which the State cannot meddle are proceedings for
excommunication, ordination of religious ministers, administration of sacraments,
and other activities to which is attached religious significance.
- In Austria v. NLRC, what is involved is the relationship of the church as an employer
and the minister as an employee. It is purely secular and has no relation whatsoever
with the practice of faith, worship or doctrine of the church.
In the case of Diocese of Bacolod v. COMELEC, the Supreme Court said that “not all acts done
by those who are priests, bishops ustadz, imams, or any other religious make such act immune
from any secular regulation. The religious also have a secular existence. They exist within a
society that is regulated by law.” Which means that there are acts done by the religious which
may fall under governmental regulation. Similarly, there may be acts done by religious
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
organizations which are secular in character. Hence, not all acts of religious organizations are
religious or ecclesiastical.
RELIGIOUS FREEDOM
In Iglesia Ni Cristo v. Court of Appeals, the Supreme Court said that there are two aspects of
Religious Freedom. The two aspects of Religious Freedom are:
1. The Freedom to Believe; and
2. The Freedom to Act on One’s Belief.
The Supreme Court distinguished these two aspects of Freedom of Religion. The Supreme
Court said that the first aspect is absolute, while the second aspect is subject to regulation.
- Remember in Iglesia Ni Cristo v. Court of Appeals, the shows of INC received an X
rating by the MTRCB. According to INC, MTRCB has no authority to screen and
review its television shows because they were issued in the exercise of religious
freedom. In essence, INC is saying that once a religious organization invokes
religious freedom, they will already be outside the regulatory powers of the
government. But the Supreme Court said no. The Supreme Court, citing Justice
Frankfurter, said that “The constitutional provisions on religious freedom terminated
disabilities, it did not create new privileges. It gave religious liberty, not civil
immunity. Its essence is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma.” Which means that once a
religious activity violates a law, the State can interfere.
- The Supreme Court said that the “Freedom of religion has been accorded a
preferred status by the framers of our fundamental laws, past and present. We have
affirmed this preferred status well aware that it is designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs,
to profess his beliefs, and to live as he believes he ought to live, consistent with the
liberty of others and with the common good.”
- Furthermore, the Supreme Court ruled that “the exercise of religious freedom can
be regulated by the State when it will bring about the clear and present danger of
some substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals, or public
welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal
mind but history counsels the Court against its blind adoption as religion is and
continues to be a volatile area of concern in country today.”
- There is a case involving Ang Dating Daan and INC. In the television show of Ang
Dating Daan, Brother Eli Soriano said that members of INC were being killed inside
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the Church. So, the members of INC filed a Libel complaint against Brother Eli
Soriano. According to Brother Eli Soriano, the courts cannot interfere because the
issue was between Ang Dating Daan and INC, and that when the issue is between
two religious organizations, the courts cannot interfere. But the Supreme Court said
no. The issue involved here is a violation of law, not who has a better doctrine. In
that regard, the Supreme Court said that when the exercise of religion destroys, the
Court cannot stand still; it must interfere.
In the case of Estrada v. Escritor, going back to the main issue, the Supreme Court determined
whether the arrangement between respondent and her partner was morally permissible. The
first question sought to be resolved by the Supreme Court is what standard is to be applied in
determining the morality of the arrangement... because the arrangement is sanctioned by the
religious organization. Do the courts apply religious morality or secular morality?
- The Supreme Court said the standard to be applied is SECULAR MORALITY, not
religious, because courts are courts of law... so since courts are courts of law, they
can apply no standard other than LAW. Which means that in applying legal
standards, the arrangement between respondent and her partner is secularly
immoral. Since the Supreme Court has resolved the character of the arrangement,
can it be exempted from the coverage of the Administrative Code, or the Code of
Ethical Standards of Public Officers, or the RPC for adultery and concubinage?
- The Supreme Court applied the COMPELLING STATE INTEREST TEST
viewed from BENEVOLENT NEUTRALITY in determining whether a
religious practice can be accommodated or exempted from the coverage
of mandatory law. Under the Compelling State Interest Test, there 3
questions that must be answered in the affirmative in order for the
governmental regulation involved may be applied to the religious activity.
If one question is answered in the negative, then the governmental
regulation cannot be applied to the religious activity and is, thus,
exempted.
- In Estrada v. Escritor, the governmental regulations sought to be applied
are the provisions of the RPC punishing adultery and concubinage, the
Administrative Code requiring officers to live moral lives, and the Code of
Ethical Standards of Public Officers requiring public officers to maintain
the ethical standards in public service. These are the 3 regulations sought
to be implemented or applied to the extra-marital cohabitation of the
respondent and her partner. Let’s now go with the three questions.
THE COMPELLING STATE INTEREST TEST
1. Whether the Government act created a burden on the free exercise of religion.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Applying this test to the arrangement between the respondent and her
partner, the Supreme Court said YES, the Code of Ethical Standards, the
Administrative Code, and the Revised Penal Code created a burden on the
religious freedom of the respondent. Because under those circumstances,
the respondent has to choose whether to follow her religious belief or to
follow the law. This means there is a burden on the exercise of religious
freedom. The respondent’s free exercise of religion is burdened by the 3
governmental acts.
2. Whether there is a compelling state interest involved in order to justify the
infringement on religious freedom.
- In the 2006 Resolution of the Supreme Court, the Supreme Court said
that the state interest must not be a generalized one, it must be specific.
The mere statement that the laws intend to preserve the dignity and
sanctity of marriage is not enough, said the Supreme Court, there must be
specific governmental interest involved and it must be compelling enough
in order to justify the infringement on religious freedom. Which means
that as to question number 2, NO.
- In this case, the Supreme Court said that the Solicitor General failed to
establish a sufficiently compelling state interest in order to justify the
infringement on the religious freedom because, according to the Supreme
Court, a generalized statement of principles is not enough; it must be a
specific interest established by the government to show that there is a
need to regulate the activity.
3. Whether the government has used the least intrusive means and the infringement
on the religious freedom is no greater than what is necessary in order to achieve the
legitimate governmental interest.
- The Supreme Court said NO, because to be considered as the least
intrusive means, there must be no other way that the government can
achieve its legitimate governmental purpose other than by infringing upon
the religious activity. The Supreme Court said that the preservation of the
sanctity of marriage and the preservation of the dignity of public office
can be achieved in ways other than interfering with the religious
arrangement.
- To be considered as the least intrusive means, the governmental action
is the only way to achieve its purpose. In order to understand this standard
better, let’s take the case of Ebralinag v. Division Superintendent of Cebu.
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- The case of Ebralinag v. Division Superintendent of Cebu also
involves the same religious organization of Jehovah’s Witness.
In this case, students who belong to the Jehovah’s Witness were
expelled because they refused to sing the National Anthem, and
they refused to salute the Philippine Flag because it is against
their religion. In Jehovah’s Witness, members cannot sing the
National Anthem, they cannot recite the Patriotic Oath, and
they cannot salute the Philippine Flag. Thus, the students were
expelled because there was a provision in the old Administrative
Code requiring mandatory singing of the National Anthem, the
recitation of the Patriotic Oath, and the salute to the Philippine
Flag. The Supreme Court said that the objective of the old
Administrative Code in requiring mandatory singing of the
National Anthem, the recitation of the Patriotic Oath, and the
salute to the Philippine Flag was to inculcate in the children the
love of country, the love of heroes, and patriotism. The Supreme
Court asked that if that is the objective of the law, is that the
only way to achieve that purpose? The Supreme Court said that
there are other less intrusive means, like teaching them in class.
The Supreme Court said that since they are other less intrusive
means, the requirement of mandatory singing and the recitation
is not the least intrusive means.
- Applying the ruling in Ebralinag v. Division Superintendent of Cebu to
Estrada v. Escritor, is the application of the Administrative Code, the Code
of Ethical Standards of Public Officers, and the RPC the only way to achieve
the legitimate purpose of the government to preserve the sanctity of
marriage and the dignity of public office, or is there any other way? There
is another way, definitely. Therefore, it is not the least intrusive means. To
be considered as the least intrusive means, again, the interference on the
religious activity is the only way to achieve the legitimate governmental
purpose.
- In that regard, the Supreme Court exempted the religious activity of the
respondent from the coverage of the RPC, the Administrative Code, and
the Code of Ethical Standards of Public Officers.
What would be the test to be applied in order that the religious freedom can by regulated by
the State?
- The Clear and Present Danger Test and the Compelling State Interest Test can be
applied simultaneously.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- In the cases of Iglesia ni Cristo v. Court of Appeals and American Bible Society v.
City of Manila, the Supreme Court applied the Clear and Present Danger Test
because apart from religious freedom, there were other constitutional rights
involved... in these cases, religious freedom was invoked in conjunction with other
constitutional rights like freedom of speech, expression, and of the press.
- In Estrada v. Escritor, this case involved the pure and exclusive use of religious
freedom. Only the Compelling State Interest Test was applied.
Can the government prevent the distribution of religious articles?
- No. In the case of American Bible Society v. City of Manila, the Supreme Court said
that imposing a tax on religious activities violates the constitutional guarantee of
religious freedom. The Supreme Court ruled that the power to tax an exercise of
privilege is the power to control or suppress the enjoyment of that right. The right
becomes meaningless, useless, and at times burdensome if the government
imposes a tax on the enjoyment of the right.
- In American Bible Society v. City of Manila, the Supreme Court recognized the
RIGHT TO PROSELYTIZE as part of religious freedom, and invalidated the application
of a City Ordinance imposing license fees on the sale of merchandise to the sale of
religious tracts.
- Proselytize refers to the conversion or attempt to convert someone from
one religion, belief, or opinion to another. It is to advocate or promote a
belief or course of action.
- In Iglesia ni Cristo v. Court of Appeals, the Supreme Court said that the
constitutional guarantee of free exercise of religious profession and worship carries
with it the right to disseminate religious information, and any restraint of such right
can be justified only on the ground that there is a Clear and Present Danger of an
evil which the State has the right to prevent.
SECTION 6, ARTICLE III — LIBERTY OF ABODE AND OF TRAVEL
Under the first sentence of Section 6, the liberty of abode shall not be impaired, except upon
the lawful order of the court. Does this mean that the only valid restriction of the liberty of
abode is by lawful order of the court? Is there any other valid regulation of the liberty of
abode? Yes there is.
- The Constitution specifically says that “The liberty of abode and of changing the
same WITHIN THE LIMITS PRESCRIBED BY LAW...”
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- This means that aside from a lawful order of the court, the liberty of abode can
also be limited by law. It can be limited by law and by lawful order of the court.
In the deliberations of the Constitutional Commission, the Members of the Constitutional
Commission specifically split the Liberty of Abode and the Right to Travel in order to prevent
the practice of Hamletting.
What is Hamletting?
- HAMLETTING is the isolation of a particular community from the rest of the country
so that the insurgents can be flushed out.
- It is a law enforcement activity whereby the PNP and the AFP cordon off an entire
territory in pursuit of criminals and, by such act, the innocent people in the
community will be deprived of basic necessities to force the latter to give up the
criminal hiding among them.
- The Members of the Constitutional Commission said that if they will retain the
previous wording of the 1973 Constitution, then the practice of Hamletting by
President Marcos can still be continued. This is the reason why they separated the
Liberty of Abode from the Right to Travel.
In the case of Marcos v. Manglapus, petitioner filed a petition to be allowed to return to the
Philippines. The Supreme Court said that there are only two activities covered by the Right to
Travel.
The Right to Travel only covers:
1. The right to leave the Philippines and go to another country; and
2. The right to travel anywhere within the Philippines (freedom of movement within
the Philippines).
The Right to Return to the Philippines from a Foreign Country is NOT included in the Right to
Travel.
However, in the case of Marcos v. Manglapus, the Supreme Court said that while the right to
return to one’s country is not included in the Right to Travel, it is covered by international
conventions, particularly Article 13 of the Universal Declaration of Human Rights and Article
12 of the Covenant on Civil and Political Rights. These international conventions are
GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW and, therefore, under the
Doctrine of Incorporation, they are deemed part of our legal system. Thus, whether it is the
Right to Travel or the Right to Return to One’s Country, nonetheless it is protected by the
Constitution.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Nevertheless, the Supreme Court said that although, yes, it is a constitutionally guaranteed
right, and yes, the Right to Return to One’s Country is a generally accepted principle of
international law, but the LEVEL OF PROTECTION IS DIFFERENT.
- The Right to Travel can only be impaired in the interest of national security, public
safety, or public health, as may be provided by law.
- The Right to Return to One’s Country can be regulated as along as the regulation
is not arbitrary and is based on legal grounds.
- Which means that the level of protection and the level of regulation is different as
between the two rights... because had the Supreme Court considered the Right to
Return to One’s Country as part of the Right to Travel, the order of President Aquino
in that case would have been unconstitutional... same as in Genuino v. Delima...
because in order to validly restrict the Right to Travel, there must be a law allowing
the administrative officer to restrict the Right to Travel in the interest of national
security, public safety, or public health.
- Remember in the case of Marcos v. Manglapus, the petitioner, former President
Marcos and his family, were only prevented from returning to the Philippines
because of an order of President Aquino. That is not the “law” contemplated by
Section 6 of Article III. The “law” contemplated under Section 6 is a legislative act...
there must be a legislative act authorizing the President to do that, if it were an
activity covered by the Right to Travel. Since the activity is not included in the Right
to Travel, the order of President Aquino is valid because it is not arbitrary... because
the Supreme Court showed that at that time, there were still risks from the Marcos’
loyalists and that the Philippines was still in a vulnerable state. Hence, the Supreme
Court said that definitely, the order of President Aquino preventing them from
returning to the Philippines is not arbitrary, and that is a valid restriction or
regulation of the Right to Return to One’s Country, but not the Right to Travel.
- In Genuino v. Delima, this is the case involving the Hold Departure Order (HDO),
the Allow-Departure Order (ADO), and Watchlist Order (WLO) issued by the
Secretary of Justice through DOJ Circular No. 41. Ironically, DOJ Circular No. 41 was
promulgated during the administration of President Arroyo through Secretary Agra.
This is also the same regulation used by the then Secretary Delima to prevent
President Arroyo from leaving the Philippines because she wanted to go to
Singapore, Japan, France, and Germany in order to seek medical attention. The
Secretary of the DOJ issued a WLO, which is the same as an HDO because a WLO
also prevents the person subject thereto from leaving the Philippines without
clearance from the Secretary of the DOJ. This is one of the reasons why DOJ Circular
No. 41 was declared as unconstitutional because of the vagueness... there is no
difference between a WLO, a HDO, and an ADO... and, therefore, it suffers from the
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Defect of Vagueness. But as to the constitutionality of the order, the Supreme Court
said that the Secretary of the DOJ does not have the authority under the
Administrative Code or any other law to issue orders restricting the Right to Travel.
Since the Secretary of the DOJ has no authority to restrict the Right to Travel, the
Secretary of the DOJ has no authority to issue a WLO or a HDO.
Under the 1973 Constitution, the Liberty of Abode and the Right to Travel are treated in one
sentence. Under the 1973 Constitution, “The Liberty of Abode and of Travel shall not be
impaired, except upon lawful order of the court, or when necessary in the interest of national
security, public safety, or public health.” Under the 1973 Constitution, administrative agencies
can validly restrict the Right to Travel.
In Manotoc v. Court of Appeals, this case was decided under the 1973 Constitution. In this
case, the Order was issued by the court as a condition of the Right to Bail. Petitioner was not
allowed to leave the Philippines because it was a condition to his right to bail that he shall
make himself available whenever required by the court. Petitioner challenged the order of the
court as it restricted his Right to Travel. The Supreme Court said that this is inherent in the
power of the courts of justice to enforce its will upon parties to a controversy because judicial
acts are territorial in character. To allow the accused to leave the Philippines without the
authority of the court that granted the bail would be to allow the accused to be outside the
jurisdiction of the court and, therefore, he would no longer be bound to comply with the
lawful orders of the court because of the territoriality of judicial processes.
In Silverio v. Court of Appeals, the petitioner argued that while courts can restrict the Right
to Travel under the 1987 Constitution, courts can only do so in the interest of national security,
public safety, or public health. According to the petitioner, courts cannot restrict the Right to
Travel for any other reasons. The Supreme Court said no... the power of the courts to restrict
the Right to Travel as a condition of the Right to Bail did not change either under the 1973
Constitution or under the 1935 Constitution or under the 1987 Constitution. This is an
INHERENT LIMITATION on the Right to Travel.
- Section 6 of Article III of the 1987 Constitution should by no means be construed
as delimiting the inherent power of the courts to use all means necessary to carry
their orders into effect in criminal cases pending before them. When by law,
jurisdiction is conferred on a court or judicial officer, all auxiliary writs, process, and
other means necessary to carry it into effect may be employed by such court or
judicial officer.
In the case of Leave Division, Office of Administrative Services-Office of the Court
Administrator v. Heusdens, the respondent is a court stenographer and she applied for an
authority to travel outside the Philippines, but without waiting for the approval of her
application, she left for her planned vacation. When she arrived, she was subjected to
administrative sanctions. While it was not raised as an issue, the Supreme Court discussed its
authority to regulate the Right to Travel of the employees in the judiciary. There is no law that
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
authorizes the Offices of the Court Administrator (OCA) to restrict the Right to Travel, and
definitely, the restriction in this case impairs the liberty of movement of officers of the
judiciary... so, is it constitutional?
- The Supreme Court said that the Memorandum Circular issued by the Supreme
Court did not violate the constitutional guarantee of the Right to Travel because it
was only an administrative restriction. It is a restriction issued by an employer to its
employees. Under this restriction, employees can still leave but they must face the
consequences of their acts... because as an employer, the Supreme Court has the
duty to ensure that the activities of the courts will not be impaired by the absence
of the employees. In that regard, the Supreme Court sustained the constitutionality
of the Memorandum Circular as it does not impair the Right to Travel.
SECTION 7, ARTICLE III — RIGHT TO INFORMATION
Did the Constitution guarantee the right to information? I ask because if you read Section 7 of
Article III, it only says “...shall be recognized.” Recognition is different from guarantee.
Recognition only affirms a fact, but it is not a commitment to protect it. Can we say that the
Constitution does not guarantee the right to information?
- The Constitution ONLY RECOGNIZES IT.
- This issue was resolved by the Supreme Court in Legaspi v. Civil Service
Commission (CSC). In this case, certain information were requested by the
petitioners from the CSC. They were requesting for the Civil Service Eligibilities of
some Health Officers in Cebu. CSC claimed that these are confidential information...
that these cannot be publicly disclosed. The CSC argued that the Right to
Information, as well as the Guarantee of Full Public Disclosure, are not self-
executing... because of the phrases “...as may be provided by law,” and
“...prescribed by law” in both Section 7 of Article III and Section 28 of Article II. If you
note, Section 7 of Article III ends with the phrase “...as may be provided by law,”
while Section 28 of Article II begins with the phrase “Subject to reasonable
conditions prescribed by law...” Under both provisions, the CSC was under the
impression that there is a need for a legislative act in order for the policy of full
public disclosure and the right to information becomes operative.
- As to the characteristic of Section 7 of Article. III, whether it guarantees
or it only recognizes, the Supreme Court said that “For every right of the
people recognized as fundamental, there lies a corresponding duty on the
part of those who govern to respect and protect that right.” Hence, the
recognition of the right to information carries with it the duty on the part
of the government to protect that right. It is the same as guarantee; it is a
commitment that the government will protect and respect it.
Page 95 of 152
- As for the characteristics of Section 28 of Article II and Section 7 of Article
III, the Supreme Court said that both provisions are SELF-EXECUTING
PROVISIONS. They do not need implementing legislations. The Supreme
Court said that these provisions supply the rules by means of which the
right to information may be enjoyed by guaranteeing the right and
mandating the duty to afford access to information. The phrase “...as may
be provided by law” refers to REASONABLE LIMITATIONS / REASONABLE
CONDITIONS... but not to the Policy of Full Public Disclosure and not to
the Right to Information. Which means that the Policy of Full Public
Disclosure and the Right to Information become operative upon the
ratification of the Constitution without need of any enabling legislation.
In the case of Valmonte v. Belmonte, the Supreme Court said that “The right to information
is an essential premise of a meaningful right to speech and expression. But this is not to say
that the right to information is merely an adjunct and therefore restricted in application by the
exercise of the freedoms of speech and of the press. Far from it. The right of information goes
hand-in-hand with the constitutional policies of full public disclosure and honesty in the public
service. It is meant to enhance the widening role of the citizenry in governmental decision-
making as well in checking abuse in government.” The Supreme Court furthered the “The
cornerstone of this republican system of government is delegation of power by the people to
the State. In this system, governmental agencies and institutions operate within the limits of
the authority conferred by the people. Denied access to information on the inner workings of
government, the citizenry can become prey to the whims and caprices of those to whom the
power had been delegated. The postulate of public office as a public trust, institutionalized in
the Constitution (in Section 1, Article XI) to protect the people from abuse of governmental
power, would certainly be mere empty words if access to such information of public concern is
denied, except under limitations prescribed by implementing legislation adopted pursuant to
the Constitution.”
- In this case, petitioners are practitioners in media. As such, they have both the
right to gather and the obligation to check the accuracy of information they
disseminate. For them, the freedom of the press and of speech is not only critical,
but vital to the exercise of their professions. The right of access to information
ensures that these freedoms are not rendered nugatory by the government’s act of
monopolizing pertinent information. For an essential element of these freedoms is
to keep open a continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that the channels for
free political discussion be maintained to the end that the government may perceive
and be responsive to the people’s will. Yet, this open dialogue can be effective only
to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues
and have access to information relating thereto can such bear fruit.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
In the case of Province of Cotabato v. The Government of the RP Peace Panel on Ancestral
Domain, the Supreme Court said that “The people’s right to information on matters of public
concern under Section 7, Article III of the Constitution is in SPLENDID SYMMETRY with the state
policy of full public disclosure of all its transactions involving public interest under Section 28,
Article II of the Constitution. The right to information guarantees the right of the people to
demand information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature, subject only to reasonable safeguards or limitations as may be provided by
law.”
- An essential element of these twin freedoms is to keep a continuing dialogue or
process of communication between the government and the people. Corollary to
these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.
May the administrative agencies who are custodians of information imbued with public
interest restrict or prohibit the disclosure of the information? [No]
- This is the main issue in Legaspi v. Civil Service Commission (CSC). The CSC is an
administrative agency in charge with the information relative to the Civil Service
Eligibilities of certain professionals. The Supreme Court said that administrative
agencies do not have the power to prohibit... they only have the right or the power
to REGULATE. The power to regulate does not include the power to prohibit or
restrict.
The Supreme Court said that the REASONABLE REGULATIONS that may be implemented by
the administrative agencies should only be:
1. To the extent that any damage to or the loss of the documents maintained by
them shall be avoided;
2. To the extent that the examination of the information shall not interfere with the
performance of their other functions; and
3. To the extent that persons who are equally entitled to the exercise of their right
may be respected.
- These are the three regulations that may be implemented by administrative
agencies that are custodians of information imbued with public interest or public
concern.
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In Legaspi v. CSC, the Supreme Court said that before the Right to Information becomes
demandable and before the Policy of Full Public Disclosure becomes operative, there are two
questions that must be answered by the courts:
1. Whether the information or transaction is one of public interest or of public
concern; and
2. Whether there is a law prohibiting its disclosure.
The Supreme Court said that PUBLIC INTEREST, like PUBLIC CONCERN, is a term that eludes
exact definition. But both terms embrace a wide spectrum of subject matter “which the public
may want to know either because these directly affects their lives, OR simply because such
matters naturally arouse the interest of an ordinary citizen.”
- Take note that there must be a distinction between an information of public
interest or of public concern to a mere curiosity. There must be some legitimate
objective for the information.
- While the individual can demand the right to information and invoke the guarantee
of full public disclosure in order to compel the President to disclose the status of his
health, even without Art. VII of the Constitution mandating that the President must
inform the public if he’s seriously ill, the people have a right to know under the Policy
of Full Public Disclosure. But a citizen, just because he has an interest in the subject
matter, cannot demand under the Policy of Full Public Disclosure or the Right to
Information that he be given information regarding the sex life of the President.
While it satisfies curiosity, there is no legitimate public objective for that
information. Because the two standards given by the Supreme Court in Legaspi v.
CSC said that it is a matter of public interest or of public concern if it affects the life
of the individual, or it arouses his interest... the second standard must be taken
within the context of a legitimate public objective...and not mere curiosity.
Supposing there is no law prohibiting the disclosure and the information is one of public
interest or of public concern, is it now mandatory on the part of the government to disclose
the information? In other words, are all information that are imbued with public interest or
public concern subject to disclosure if there is no law prohibiting disclosure? [No]
- The case of Chavez v. Presidential Commission on Good Government (PCGG)
involved the demand for the disclosure of the concessions between the government
and the Marcos family because there was a Plea Bargaining Agreement. So the
petitioner wanted to know what were the concessions, but the government said
that it was confidential. The Supreme Court said that while the constitutional
guarantee of the right to information requires that the information must be
disclosed if it is one of public interest or of public concern and if there is no law
prohibiting its disclosure, there are certain types of information which by their very
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
nature are confidential in character. Which means that even without any law
prohibiting its disclosure, the government can validly withhold the information.
- In Chavez v. Presidential Commission on Good Government (PCGG), the Supreme
Court identified four groups of information which cannot be validly disclosed, even
if there is no law prohibiting its disclosure. These 4 groups are:
1. National security matters and other information regarding intelligence;
- The Supreme Court and common law recognize the proprietary
nature of these information. Military secrets are included, as
well as the correspondence with diplomatic representatives.
2. Trade Secrets and banking transactions;
- The Intellectual Property Code protecting trade secrets; The
Bank Secrecy Law protecting banking transactions. These
transactions are private in character. These are proprietary in
character.
3. Criminal matters; and
- These do not refer to criminal cases. These refer to law
enforcement activities. These matters relate to the
apprehension, the prosecution, and the detention of criminals
which cannot be publicly disclosed UNTIL the actual arrest,
actual prosecution, and actual detention. Meaning, the
confidentiality of these information is only limited for a
particular period.
- These matters are excluded because efforts and effective law
enforcement would be seriously jeopardized by the free public
access thereto.
- Such matters would include the police information regarding
rescue operations, the whereabouts of fugitives, or any leads
regarding covert criminal activities.
4. Other confidential information.
- These include information obtained by public officers in the
exercise of their official functions, the internal deliberations of
the Supreme Court, the closed-door Cabinet meetings, the
Executive Sessions of either House of Congress.
Page 97 of 152
The Right to Information and the Policy of Full Public Disclosure extends to GOVERNMENT
OWNED AND CONTROLLED CORPORATIONS WITH ORIGINAL CHARTERS, regardless of
whether they are performing governmental or proprietary functions. This is the ruling in the
case of Valmonte v. Belmonte.
- In Valmonte v. Belmonte, the petitioners are media reporters. They were
demanding from the GSIS (a GOCC) information about loan transactions, and they
were demanding a list of names of members of Batasang Pambansa (now Congress)
belonging to UNIDO and PDP-Laban who were able to secure clean loans through
the intercession/marginal notes of the former First Lady Imelda Marcos.
- The first question is whether the information of the GSIS regarding the loan
transactions covered by the Right to Information. The Supreme Court said yes... the
information of GOCC with Original Charters, even if only performing proprietary
functions, are also considered as information of public interest or of public
concern... particularly so since the funds of GSIS are coming from contributions of
government officials.
- The second question is whether the demand of the petitioner to be given a list of
names of members of the Congress who were able to secure clean loans a valid
demand under the Right to Information? The Supreme Court said no... that is not
valid. While the information was one of public interest or of public concern, the
Right to Information does not include the right to demand for copies, lists,
summaries, or abstracts. The Right to Information is only the right to demand access
to the information, but the custodians cannot be required to provide for summaries
or abstracts. The person invoking the Right to Information himself must prepare the
list, the summary or the abstract.
In Province of Cotabato v. The Government of the RP Peace Panel on Ancestral Domain, the
Supreme Court ruled that it is not required that the transaction shall be fully consummated
so that the people can exercise their Right to Information and have access to this information.
If the people have to wait for the consummation of the transaction, it would be too late for
them to nullify or to rescind or voice out their concern regarding the transaction.
In Re: Production of Court Records and Documents of Court Officials and Employees as
Witnesses under the Subpoenas of February 10, 2012 and the Various Letters for the
Impeachment Prosecution Panel dated January 19 and 25, 2012.
- Relative to the documents and activities of the Supreme Court, the Supreme Court
laid down rules in the matter of requests for the production of documents and
attendance of court officials and employees in the impeachment trial of Chief Justice
Renato Corona.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The Supreme Court said that insofar as the documents and the proceedings of the
Supreme Court, these are the seven rules, which are confidential in character:
1. COURT ACTIONS such as the result of the raffle of cases and the actions
taken by the Court on each case included in the agenda on matters and
cases pending before it.
- In the impeachment trial of former Chief Justice Renato
Corona, the prosecution was demanding for the minutes of the
raffle of the cases. The Supreme Court said no... that is
confidential. The exception is that only the parties and their
counsel are entitled to the information... which means that the
result of the raffle of the cases can only be disclosed to the
parties and their counsel.
- The exception to the exception is that even the
parties and their counsel are not entitled to the
information when it is in connection with (a)
disciplinary cases involving judges and justices, (b) bar
matters involving lawyers, and (c) criminal cases
where the penalty is life imprisonment or higher.
2. COURT DELIBERATIONS or the deliberations of the members of Court in
Session on cases and matters pending before the Court.
- The public cannot demand the minutes of the deliberations
because these are considered privileged and confidential.
3. COURT RECORDS which are “Predecisional” and “Deliberative” under
the Deliberative Process Privilege.
- A communication or transaction is Predecisional if it precedes
the decision to which it relates. In short, a communication is
Predecisional when it is made in an attempt to reach a
conclusion. Which means that the notes of the justices cannot
be disclosed because these are Predecisional communications.
- On the other hand, if a communication is Deliberative under
the Deliberative Process Privilege, it is part of the give-and-take
of the negotiation process. The Supreme Court said that the
ultimate test in determining whether a communication is
deliberative is when the disclosure of the information would
discourage a candid discussion among the members of the
Supreme Court. If the disclosure of the information would
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discourage candid opinion, then it is Deliberative Information
insulated from public examination.
4. CONFIDENTIAL INFORMATION obtained by justices, judges, officers or
employees of the judiciary in the exercise of their official functions. This is
in line with R.A 6713, otherwise known as The Code of Conduct and Ethical
Standards for Public Officials and Employees.
- Members of the judiciary who violate this rule may be
subjected to penal or administrative sanctions.
5. RECORDS OF CASES THAT ARE STILL PENDING FOR DECISION. This is
under the Rule of Subjudice.
- Under the Rule of Subjudice, records of pending cases cannot
be publicly disclosed until they are publicly issued.
- When is a decision or resolution publicly or officially issued?
- A decision or resolution is publicly or officially issued
when the final copy thereof is placed inside an
envelope addressed to the parties and transmitted to
the Records Section Division. Once that envelope is
transmitted to the Records Section Division, then that
decision or resolution is officially promulgated.
6. THE PRINCIPLE OF COMITY OR INTERDEPARTMENTAL COURTESY.
- Under this principle, the highest officials of each department
are exempted from the compulsory processes of the other.
Which means that the highest officials of one department
cannot be compelled by compulsory writs like subpoena to
attend the internal (internal only) proceedings of the other.
- When it comes to the Executive Department, the only person
covered is the President and by extension, the Executive
Secretary, as held in the cases of Neri v. Senate and Senate vs.
Ermita. Only the President is covered by Executive Privilege, and
by extension, the Executive Secretary.
- When it comes to the Supreme Court, not only the Chief Justice
is covered by this doctrine, but all the Justices of the Supreme
Court are covered by the Doctrine of Comity or
Interdepartmental Courtesy. Even the Associate Justices cannot
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
be compelled to attend the internal proceedings of the other
departments.
- How about the Congress? Are all Members of Congress (all 24
Senators and all 280 Members of the House of Representatives)
covered by this, or only the Speaker or Senate President
covered? The answer is ALL Members of Congress are covered
by this principle because the Congress is a collegial institution
and the right of one Member of Congress is the same as the
Senate President and the Speaker.
7. THESE PRIVILEGES belong to the Supreme Court as an institution.
- No Associate Justice, nor the Chief Justice, and no Judge can
validly waive the privilege. Since the Court is higher than the
individual justices or judges, no sitting or retired justice or judge,
not even the Chief Justice, may claim exception without the
consent of the Court.
SECTION 8, ARTICLE III — RIGHT TO FORM ASSOCIATIONS
The Right to Association applies to all employees, whether in the public or private sector. Can
we also say that the Right to Association is available only to those “working,” whether in the
public or private sector because of the phrase “...including those employed in the public and
private sectors...” Is the right limited only to those who are working?
- The Supreme Court said that the constitutional guarantee is APPLICABLE TO ALL.
- The phrase “...including those employed in the public and private sectors...” only
emphasizes the importance of this constitutional guarantee to those working,
whether in public or private service. In essence, it only says “including…without
limitations.”
- The Right to Association can be enjoyed or exercised even by students or even
those who are not working.
Is the extent of the protection the same as to the employees of the public and private sector?
In the case of SSS Employees Association v. Court of Appeals, the Supreme Court discussed
the extent of the Right to Association of employees in the public sector.
- The Supreme Court said that the Right to Association of employees in the public
sector, including those employed in GOCCs with Original Charters, whether
Page 99 of 152
performing governmental or proprietary functions, can be restricted, as
distinguished with those employed in the private sector.
- According to the Supreme Court, the Constitution only authorizes the employees
of the public sector to form unions, societies, or organizations which are not
contrary to law. However, the Right to Association does not include the Right to
Strike, which is a potent tool for employees in the private sector. The Supreme Court
said that while there is nothing in the Constitution that prohibits it, the nature of
the functions of employees in the public sector allows the government to restrict
the exercise or enjoyment of the constitutional guarantee of the Right to
Association.
Is there a constitutional basis for restricting the right of employees in the public sector to
exercise the Right to Association? The answer is yes.
- Under Section 8 of Article III, there is a clause “...for purposes not contrary to law...”
This means that the law may declare a purpose that is contrary to law. The Congress
can enact a law enumerating what are the specific purposes that are not allowed
under the Right to Association. Insofar as employees in the public sector, there is a
law that prohibits employees in the public sector to engage in a strike.
- At the time that the case was filed in SSS Employees Association v. Court of
Appeals, the law mentioned in this case was Executive Order No. 180 in relation to
Civil Service Memorandum Circular No. 6 Series of 1986. The question is whether
Executive Order No. 180 a law?
- Executive Order No. 180 was issued by the President in April 1987... is
this a law? The answer is yes, this is a law.
- It is a law because at that time, the President was exercising legislative
powers. Note that the President, under the Transitory Provisions, shall
continue to exercise legislative powers until the Congress meets in
Regular Session. The first time that the Congress (constituted under the
1987 Constitution) met for the first time for Regular Session was the
Fourth Monday of July 1987. Which means July 27, 1987 is the cut-off
date. Before that date, the President can still exercise legislative powers.
Executive Order No. 180, like the Family Code, is an executive order issued
by the President in the exercise of her legislative powers.
- So, there is a law that prohibits employees of the public sector to engage in a Strike,
and that law is E.O. No. 180.
What is the extent of the Right to Association?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The Right to Association, according to the Supreme Court In Re: IBP Membership
Dues Delinquency of Atty. Marcial Edillon, includes the RIGHT TO JOIN AND NOT
TO JOIN. Which means that a person in the exercise of his Right to Association
cannot be compelled to become a member to an organization to which he does not
want to belong.
Can we say then that the creation of the Integrated Bar violates the rights of lawyers to
become members of an organization to which they do not want to be associated with?
- In Re: IBP Membership Dues Delinquency of Atty. Marcial Edillon, the Supreme
Court skirted the issue. The Supreme Court just said that lawyers are not being
compelled to become members of an association of which they are not yet
members. But this is not accurate because upon passing the bar exam, a successful
candidate automatically becomes a member of the Bar, but he is not yet a member
of the Integrated Bar. Once one has become a member of the Bar, in order for such
member of the Bar to be given a Roll of Attorney’s Number, he must choose the
specific IBP Chapter to which he wants to be associated with. If a successful
examinee becomes a member of the Bar, but doesn’t want to choose a specific IBP
Chapter, he will not be given a Roll of Attorney’s Number. To that extent, there is
compulsion... members of the Bar must become members of the Integrated Bar...
otherwise, they cannot practice law.
- The Supreme Court skirted this issue by saying that lawyers are not
required to attend meetings, but this is irrelevant to the issue... while they
may not be allowed to attend meetings, they are required to become
members of the IBP.
- Instead of skirting the issue, the Supreme Court should have resolved the
controversy by saying that the Right to Association, like any other
constitutional right, can be regulated. In the exercise of the RULE-MAKING
POWER of the Supreme Court under Par. 5 of Sect. 5, Art. VIII, the
Supreme Court can regulate the practice of law and the integrated bar. In
that regard, the basis would have been clearer that while a member of the
Bar is compelled to become a member of an association, even if against
their will, that is a valid regulation in the exercise of the Rule-Making
Power of the Supreme Court.
The Right to Association is a constitutional right. May it be a valid subject of contractual
stipulation? Can parties to a contract agree that the Right to Association is restricted? The
answer is yes... in contracts containing UNION SECURITY CLAUSES.
- In a Union Security Clause, the employer and the union can agree that the
employees should remain members of the Union in order to enjoy their right to be
Page 100 of 152
continually employed. In essence, the parties are restricting their Right to
Association because the right to associate includes the right not to associate.
- So, if an employee does not want to become a member of the Union, he may be
dismissed from employment. This is a valid contract according to the Supreme Court
in Victoriano v. Elizalde Rope Workers’ Union.
Distinction between a STRIKE and an ASSEMBLY AND PETITION.
Let’s take two cases.
- In PBM Employees Association v. Philippine Blooming Mills, the factory workers
stopped working and walked out of the factory and engaged in a concerted action.
The Supreme Court called the activity an Assembly and Petition.
- In SSS Employees Association v. CA, the public school teachers walked out of their
classrooms and engaged in a concerted activity. The Supreme Court called the
activity a Strike.
- So, what’s the difference? Because in both cases, there was work stoppage... in
both cases, the persons involved were employees... and in both cases, they were
engaged in a concerted action. How do we determine whether a concerted action
by employees is a Strike on the one hand, and an Assembly and Petition on the
other?
- The first standard in determining the nature of the concerted activity is the
relationship between the speaker and the one invoking the right.
- In a Strike, the participants and the recipient of the grievances are
employees and employers. The one raising the grievances are employees
and the one who is subject of these grievances is the employer.
- In an Assembly and Petition, the one raising the issue is a citizen and the
recipient of that grievance is the government as an institution, and not as
an employer.
- The second standard is to consider the grievances raised during the concerted
action. This is the most determinative factor.
- In a Strike, the grievances raised are employer-employee related issues,
like better benefits, better working conditions, and other employment
conditions.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- In the case of SSS Employees Association v. CA, the public school teachers were
demanding better pay. The Supreme Court said that this is a Strike. But in the case
of PBM Employees Association v. PBM, the employees were denouncing the abuses
of Pasig Police, which means that the issues were not related to employer-employee
relationship. This is the reason why the Supreme Court said that this is an Assembly
and Petition.
SECTION 10, ARTICLE III — NON-IMPAIRMENT CLAUSE
When is there impairment of obligation of contracts?
- In the case of Victoriano v. Elizalde Rope Workers’ Union, the Supreme Court,
citing Black’s Law Dictionary, said that “any statute which introduces a change in the
express terms of the contract, its legal construction, its validity, its discharge, or the
remedy for its enforcement, impairs the contract.”
Is the extent of the change relevant?
- The Supreme Court said no. The extent of the change is not material because it is
not the degree, manner, or cause, but of the encroachment in any respect on the
obligation or dispensing with any part of its force that is material.
- Whether small or substantial, any change in the contract impairs the contract.
Does the Constitution prohibit all impairments of a contract?
- The Constitution ALLOWS REASONABLE IMPAIRMENT of a contract. Which means
that even if there is an impairment of a contract, it would be valid if such impairment
is reasonable.
In the case of Rutter v. Esteban, this involves the Moratorium Law. The Supreme Court
discussed the validity of the Moratorium Laws to validly impair the obligations of contracts.
- MORATORIUM LAWS are postponements of the performance of an obligation
through the medium of the courts or the legislative. Which means that through
Moratorium Laws, the performance of a legal obligation may be deferred or
postponed. This is applied in cases of war and other cases of financial distress.
In the case of Rutter v. Esteban, the Supreme Court said that there are 2 conditions in order
that Moratorium Laws may validly impair the obligation of contracts. The two conditions are:
1. The period of suspension for the obligation of the contract must be
DEFINITE/FIXED, not indefinite; and
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2. The period of suspension must be REASONABLE.
In the case of Rutter v. Esteban, the total Moratorium or the total postponement of the legal
obligation under the law in question is 12 years. Is 12 years a reasonable period of suspension?
- The Supreme Court said no. Additionally, the Moratorium Law does not only
suspend the performance of the legal obligation, but it also suspends the other
rights of the creditors, because during the Moratorium period, the creditors cannot
impose interest. The Supreme Court said that this is an unreasonable condition. In
that regard, the Supreme Court invalidated the Moratorium Law in this case.
Valid impairment of the constitutionally guarantee on non-impairment of contracts can be
done in the exercise of the inherent powers of the State. The exercise of Police Power,
Eminent Domain, and the Power of Taxation can validly impair the obligation of contracts.
In Ortigas & Co. Ltd. Partnership v. Feati Bank & Trust Co., this case involves a zoning
ordinance. The land in question has an annotation on its back, and the annotation says that
the land shall only be used for residential purposes. However, the purchaser of the land, the
new owner, used it for commercial activities... because of the zoning ordinance which
reclassified of the area into a commercial industrial site. The petitioner now is invoking the
annotation or the encumbrance because according to him, respondent violated his obligation
under the Contract of Sale. The respondent invoked the zoning ordinance, but the petitioner
said that the zoning ordinance cannot be applied because it would impair the obligation of
the contract. The Supreme Court did not agree. The Supreme Court said that in every
contractual obligation, there are two implied elements. Meaning to say, whenever two parties
enter into a contract, these two elements are deemed included in their contract. The two
implied elements in a contract are:
1. All existing laws are deemed included in the contract;
- The parties cannot stipulate anything that is in violation of the law. Even
if the contract does not say that all existing laws are included, they are still
impliedly included in every contractual obligation.
2. Every contract also includes a reservation on the part of the State to exercise the
attributes of sovereign power as a postulate of legal order.
- Police Power, Eminent Domain, and Taxation.
The cases in Rutter v. Esteban and Ortigas & Co. Ltd. Partnership v. Feati Bank & Trust Co.
are examples of the exercise of Police Power that may validly interfere with contractual
obligations.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Example of an exercise of Eminent Domain that may validly interfere with contractual
obligations:
- A entered into a Contract of Lease with B for 10 years. The government-initiated
expropriation proceedings on the land of A leased by B with payment of just
compensation. Here, the parties cannot invoke the non-impairment of their
contractual obligations.
Example of an exercise of the Power of Taxation that may validly interfere with contractual
obligations:
- A entered into a Contract of Lease with B with the agreed payment of P5,000.00 a
month and 10% VAT for 10 years. Congress enacted a law increasing the VAT from
10% to 12%. Here, the parties cannot invoke the non-impairment of their
contractual obligations.
Is the Non-Impairment of Contracts guarantee under Section 10 of Article III available only
against the Congress? Because the Constitution says, “No law impairing the obligation of
contracts shall be passed.” Can we also apply the same approach in Section 6 of Article III that
the “law” mentioned therein only refers to a legislative act? Can we say the same with regards
to Sect. 10? [No]
- In Ganzon v. Inserto, the Supreme Court said no. The Supreme Court applied the
Non-Impairment of Obligation of Contract Clause even to judicial decisions.
- Remember in this case the trial court issued an order changing the
guarantee from Real Estate Mortgage to a Surety. The Supreme Court said
that the trial court cannot do that, because the trial court would in effect
be changing the contractual obligations of the parties in violation of the
provisions of Section 10 of Article III.
- Section 10 of Article III APPLIES TO ALL GOVERNMENTAL ACTS... to
judicial, legislative, and executive acts.
- This is now the implication of the ruling of the Supreme Court in Ganzon
v. Inserto because traditionally Sect. 10 was only applied against the
Congress and the local legislative councils. However, now Sect. 10 of Art.
III extends even to other governmental acts.
SECTION 11, ARTICLE III — FREE ACCESS TO THE COURTS
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Under Section 11 of Article III, the Constitution guarantees that all persons shall have free
access to the courts and quasi-judicial bodies. It also guarantees that adequate legal assistance
shall not be denied to any person by reason of poverty.
Does free access to the courts mean that any person can go to court without paying anything?
[No]
- Free access to the courts is only a guarantee of availability of legal remedies, but
of course, with the consequent obligation on the part of the parties to pay
reasonable fees.
- In deference to the constitutional guarantee of adequate legal assistance to the
people without regard to their financial status, the Rules of Court, particularly
Section 21 of Rule 3 and Section 19 of Rule 131, allows indigent to litigate as
paupers.
In the case of In Re: Query of Mr. Roger Prioreschi, he was invoking these rules in order to
allow Good Shepherd Foundation to be recognized as a pauper litigant. According to the
petitioner, Mr. Roger Prioreschi, the Good Shepherd Foundation is a non-stock, non-profit
corporation which caters to the needs of the fatherless, the homeless, and the poor. Thus,
according to petitioner, the Good Shepherd Foundation should be allowed to litigate as a
pauper, and he is also invoking Section 11 of Article III.
- The Supreme Court said that Section 11 of Article III is ONLY AVAILABLE TO
NATURAL PERSONS. The Supreme Court said that the word “poverty” under Sect. 11
only limits the application of this constitutional guarantee to natural persons, and
not to juridical persons, because only natural persons can suffer the condition of
poverty. While corporations can be insolvent, that is not equivalent to poverty.
Similarly, the Rules of Court, particularly Rule 3 and Rule 131, takes into
consideration the minimum wage and the basic necessities to determine whether
one would be deemed a pauper litigant. Definitely, corporations are not covered by
the Minimum Wage Law and they do not have basic necessities, therefore, these
rules do not apply to artificial beings but only to natural persons.
SECTION 12, ARTICLE III — CUSTODIAL INVESTIGATION
Section 12 guarantees the rights of a person under custodial investigation.
What is a Custodial Investigation?
- In People v. Judge Ayson, this case started as an administrative investigation
involving a PAL tickets sales clerk in Baguio. The respondent in the administrative
case offered to reimburse the missing sales... so he wrote the management that he
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
was willing to reimburse the missing funds. Nevertheless, PAL filed a criminal
complaint for Estafa against respondent. Now respondent is arguing that his
statement saying that he will reimburse the missing funds was obtained without
affording him his rights under Section 12 of Article III and, therefore, such statement
is inadmissible in evidence. Respondent is moving for the suppression of his written
offer to reimburse the missing funds.
- In People v. Judge Ayson, the Supreme Court cited Miranda v. Arizona, which is
the origin of this right. The Supreme Court explained that the extent of the coverage
of Section 12 is broader than the Miranda Rights, because under Section 12, the
Right to Counsel is mandatory either in the conduct of custodial investigation OR in
the waiver of the right. Which means that under Section 12, it is mandatory that
there is always a lawyer. However, under the Miranda Rights, as long as the person
is informed of his rights, it shall be sufficient. Thus, our constitutional guarantee is
broader than the Miranda Rights.
- The Supreme Court in the case of People v. Judge Ayson, citing Miranda v. Arizona,
said that CUSTODIAL INVESTIGATION refers to “any questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.”
- The two alternative acts in order to place a person under custodial
investigation are either —
1. The person is taken into custody; or
2. The person is deprived of his freedom of action in any
significant way.
- Which means that even if the person is not taken into custody, but there is some
restriction on his freedom of movement by law enforcement officers, there may
already be custodial investigation... but of course this should be coupled with
another requisite of custodial investigation... because according to the Supreme
Court in People v. Bolanos, the suspect was taken by the police officers into custody
and he was about to be transported to the Police Precinct, but because of the
overeagerness of the police officers while inside the mobile car, they started to ask
questions... which resulted in a confession... the accused confessed that he killed
the victim. The question in this case is whether it was part of custodial investigation.
The Supreme Court said that “custodial investigation begins when the investigation
ceases to be a general inquiry, but starts to focus on a particular person as a
suspect.”
- Which means that custodial investigation begins when:
Page 103 of 152
1. A person is taken into custody, or is otherwise deprived of his
freedom of movement, or is invited by the law enforcement
officers;
2. The one who takes him into custody or deprives him of his
freedom of movement is a law enforcement officer;
3. The law enforcement officer starts to ask questions; and
4. The questions are specific as to the offense which is the
subject of the investigation.
- These are the requisites in order for the proceeding to be considered as
a custodial investigation.
- In the case of People v. Bolanos, the Supreme Court said that the time the police
officers started to ask questions regarding the incident, custodial investigation has
begun. Therefore, the accused was entitled to all the rights under Section 12 of
Article III.
What is the reason why Section 12 of Article III guarantees the rights of a person under
custodial investigation?
- In People v. Andan, which involved a rape case, the accused was detained and
while in detention, the Mayor passed by the detention cell. When the accused saw
the Mayor, he whispered something to the Mayor. The accused said “Mayor, I have
something to tell you...” The Mayor then asked the Chief of Police to bring the
accused from the detention cell. They then went inside the office of the Chief of
Police. While they were having their discussion, the accused suddenly confessed his
guilt. He admitted to the Mayor that it was him who raped and killed the victim. But
the Mayor said “Stop! Wait! Let me go check if there are any lawyers around.” The
Mayor then opened the door and asked if there were any lawyers around, but to no
avail. He then asked the Media to come inside because the accused was telling him
his confession and he wanted them to record it. Thus, the Media recorded the
discussion. Without any questioning from the Mayor, the accused spontaneously
confessed his guilt. The issue in this case is whether it was part of custodial
investigation.
- The Supreme Court said no. It was not yet part of custodial investigation
because the confession was only spontaneous and voluntarily given. The
Supreme Court said that the rights under Sect. 12 of Art. III are guaranteed
to preclude the slightest use of coercion by the government, but not to
prevent the accused from freely and voluntarily telling the truth.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Spontaneous statements made under ordinary circumstances voluntarily
are not part of custodial investigation, particularly so, when the law
enforcement officer did not question the accused or the confession was
not elicited from questioning.
- Constitutional procedures on custodial investigation do not apply to a
spontaneous statement not elicited through questioning by authorities,
but given in an ordinary manner whereby appellant orally admitted having
committed the crime.
- Hence, the Supreme Court in People v. Andan admitted in evidence the
confession because it was not part of the custodial investigation.
- In the same case of People v. Andan, the Supreme Court said that “The
Exclusionary Rule is premised on the presumption that the defendant is thrust into
an unfamiliar atmosphere and runs through menacing police interrogation
procedures where the potentiality for compulsion, physical and psychological, is
forcefully apparent. The incommunicado character of custodial interrogation or
investigation also obscures a later judicial determination of what really transpired.”
- Which means that these rights are intended to protect the accused from
any compulsion that may result in any incriminating statements without
full warnings of his constitutional rights. This is the objective of the rights
under Section 12 of Article III.
What are the rights of a person under Custodial Investigation?
- In People v. Judge Ayson, the Supreme Court enumerated 4 rights of a person
under custodial investigation. The Supreme Court said that the four rights under
custodial investigation are:
1. The continuing right to remain silent and to have competent and
independent counsel preferably of his own choice;
2. The right to be informed of his rights;
3. The right not to be subjected to torture, force, violence, threat,
intimidation, or other means which vitiate his free will; and
- Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
4. The right to have evidence obtained in violation of his rights
inadmissible in evidence.
Page 104 of 152
Can the accused waive his rights under Section 12 of Article III?
- The answer is no, NOT ALL. Only the Right to Remain Silent and the Right to Counsel
may be waived.
- Which means that even if the waiver is made in writing and in the presence of his
counsel, the accused cannot waive his Right to be Informed. It is mandatory. The
law enforcement officer must inform a person subjected to custodial investigation
of all his constitutional rights.
- More importantly, a person cannot waive his Right Not to be Subjected to Torture.
- Nor may a person waive his Right to the Exclusion of Evidence.
- Which means that if the accused was subjected to custodial investigation
without according him his rights under custodial investigation, and during
the trial the prosecution presents the affidavit of confession obtained
during the custodial investigation proceedings, and even if the defense
does not object to the admission of the evidence, the court on its own
may still render it inadmissible.
- In the case of People v. Pinlac, which involved a robbery with homicide of a
Japanese, the Supreme Court said that it is incumbent upon the prosecution to show
that all the rights under custodial investigation have been accorded. In the failure of
the prosecution to show that all the constitutional rights of the accused have been
accorded, the judge can suppress the evidence, or even on appeal, the justices of
the Court of Appeals and of the Supreme Court may declare the evidence presented
by the prosecution relative to the custodial investigation inadmissible in evidence if
the prosecution failed to show that they were validly obtained or the rights under
custodial investigation have been accorded.
Who may conduct custodial investigation?
- The Supreme Court and the Constitution provides that only law enforcement
officers may conduct custodial investigation.
Who is a law enforcement officer?
- A LAW ENFORCEMENT OFFICER is one who is charged with the duty to arrest
criminals, and the duty to investigate violation of criminal laws.
- This is the general definition of a law enforcement officer. Under this
definition, Philippine National Police (PNP) members are included, NBI are
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
included, and according to the Supreme Court in the case of Ho Wai Pang
v. People of the Philippines, Bureau of Immigration agents are included,
and Mayors, as held in People v. Andan, are included.
- May a private individual be considered as a law enforcement officer? [Yes]
- In People v. Andan, it was the Media who covered the confession. Even
after the confession, the reporters continued to interview the accused,
and the accused kept confessing his guilt to the reporters. The question in
this case is whether the interview by the reporters is part of the custodial
investigation. The Supreme Court said first, the reporters are not law
enforcement officers because they do not have the duty to investigate and
to order the detention, and more importantly, the Supreme Court said
that there is no indication that they had acted under the control and
supervision of a law enforcement officer. From this, it can be implied that
even a private individual can be considered as a law enforcement officer
IF that private individual acted under the control and supervision of a law
enforcement officer.
- If the reporters were instructed by the police officers to ask questions
and the reporters were able to secure a confession, that is part of
custodial investigation because in such case, the reporters would be
acting under the direction and control of law enforcement officers.
- What about the Auditors of Commission on Audit (COA)? Are they law
enforcement officers? [No]
- In Navallo v. Sandiganbayan, the Supreme Court said no, because the
function of COA Auditors is to determine the proper use of public funds...
that is their only concern... although incidentally, they may discover a
violation of laws... nevertheless, the main objective of COA Auditors is to
determine the proper use of public funds. In that regard, they are not
considered as law enforcement officers.
What about Police Line-Up Procedures? Are these considered part of custodial investigation?
- There are two streams of decisions regarding Police Line-up.
- In Gamboa v. Cruz, the accused here was arrested the day before the Police Line-
Up for Vagrancy (when there was still a law punishing for Vagrancy) because he was
loitering around. The day after he was arrested and placed in detention, a
complainant walked into the Police Station and complained about a robbery
incident. The police officers then asked the complainant if he could identify the
accused if he saw him again, to which the complainant said yes. The inmates of the
Page 105 of 152
Police Station were then required to form a Police Line-Up for identification, after
which the complainant was able to identify the accused.
- The Supreme Court said that the uncounseled identification is not yet
part of custodial investigation because it was still a GENERAL INQUIRY; the
process has not yet turned into ACCUSATORY INQUIRY. More importantly,
the Supreme Court said that the police officers did not ask anything from
the accused since the only person that was interviewed by the police
officers was the complainant/victim. Therefore, the Supreme Court said
that it was not yet part of custodial investigation.
- In contradistinction, in People v. Macam, this case involved a robbery with
homicide. The day after the robbery with homicide incident, the accused were
apprehended in the factory of one of the accused. When they were arrested, they
were interrogated first by the security guards, and then by the police officers. They
refused to confess. When the police officers couldn’t obtain a confession, the police
officers took the accused to the hospital where one of the surviving victims was
being treated. While at the hospital, the accused were required to form a Police
Line-Up together with plain-clothed police officers, during which the surviving victim
identified the accused.
- The Supreme Court said that it was already part of custodial
investigation. The Supreme Court said it was already ACCUSATORY
because custodial investigation had already begun when the police
officers interrogated the accused in the factory... so any Identification
following the commencement of custodial investigation will form part of
custodial investigation. In that regard, the uncounseled identification at
the hospital was considered as inadmissible in evidence.
What is the effect of the violation of the rights of a person under custodial investigation? If
the rights of a person under custodial investigation were violated, is he entitled to an
acquittal? If his rights were violated, then his extrajudicial confession will be inadmissible in
evidence, but is he also automatically entitled to an acquittal? The answer is no. This was
answered by the Supreme Court in Ho Wai Pang v. People.
- In Ho Wai Pang v. People, this involved an importation of drugs. In the airport, the
Chinese accused were subjected to a routine check by the Bureau of Immigration
(BI). When the BI agent noticed that the accused were carrying identical baggages
with identical contents, it impelled the agent to open one of the boxes that was
labeled “Chocolates,” and then the BI agent found that the chocolates were indeed
illegal drugs. They were subjected to questioning, but they didn’t understand English
as they only spoke Mandarin. The BI agent did not seek an interpreter. The question
here is whether their rights under custodial investigation were violated.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The Supreme Court said yes, their rights were violated because they
were not accorded the right to be informed. According to the Supreme
Court in People v. Pinlac, “When the Constitution requires that a person
under custodial investigation to be informed of his right to remain silent
and to counsel, it must be presumed to contemplate the transmission of a
meaningful information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle.” The mere reading of
Sect. 12 of Art. III is not enough. The Right to be Informed carries with it
the correlative obligation on the part of the law enforcement officer to
explain the rights under Sect. 12 of Art. III.
- The Supreme Court said in Ho Wai Pang v. People, the rights of the
accused under custodial investigation were violated. However, the
Supreme Court still sustained their conviction because there was enough
independent evidence to establish the guilt of the accused beyond
reasonable doubt. The testimony of the BI agent who was able to discover
the illegal drugs was independent from the custodial investigation, and
since it had nothing to do with the custodial investigation, it was admitted
and was able to prove beyond reasonable doubt the guilt of the accused.
- Same in People v. Macam, remember earlier we said that the
uncounseled identification at the hospital was rendered inadmissible, but
the Supreme Court still sustained the conviction of the accused because
there was independent evidence that established the guilt of the accused
beyond reasonable doubt.
- In the case of Ho Wai Pang v. People, the Supreme Court cited People v. Wong
Chuen Ming. In People v. Wong Chuen Ming, which involved importation of illegal
drugs, the Chinese accused were also carrying identical baggages with identical
contents of Alpen Cereal boxes. The BI agent conducted an inventory and he
required the accused to sign each box. The Supreme Court said that the only basis
of their conviction were the SIGNATURES on the boxes, and since they were not
accorded their right to custodial investigation, those signatures on the boxes are
inadmissible in evidence because they are part of custodial investigation. Which
means that in custodial investigation, confession is not only limited to verbal
admission; confession in custodial investigation also includes signing the inventory.
- REENACTMENT OF THE CRIME is also included in confession during custodial
investigation, as held in People v. Pinlac. While in a reenactment of the crime, the
accused is not being compelled to verbally confess, he is being required to confess
by an act. This is part of custodial investigation, and this is a confession during
custodial investigation. Failure of the law enforcement officers to accord the
accused of his rights under Sect. 12 of Art. III will render inadmissible these acts.
Page 106 of 152
- To recap, the confession during custodial investigation includes verbal
communication, acts, and signatures.
- In People v. Dy, immediately after a shooting incident in Boracay, the accused went
to the Police Precinct and confessed that he shot a tourist. The accused said to the
police that the gun that he used was still inside the restaurant. The issue here is
whether the confession of the accused is admissible in evidence, or was it already
part of custodial investigation? The Supreme Court said it was admissible because
the statement of the accused was PART OF THE RES GESTAE.
- What is the difference between Part of the Res Gestae and Independently Relevant
Statement?
- In Independently Relevant Statement, the admissibility of an
independently relevant statement is only limited to establishing the
existence of the statement.
- Part of the Res Gestae, on the other hand, admits the truthfulness of the
statement. Res Gestae literally means “things done.” Part of the Res
Gestae means that the statement is “part of the things done.”
- In that regard, the statement of the police officer saying that the accused
told him that he shot a tourist and that the gun was still in the restaurant
is admissible in evidence and is an exception to the Hearsay Rule. The
court can admit the fact that the statement was made, and the court can
admit the truthfulness of that statement. This is Part of the Res Gestae as
distinguished from an Independently Relevant Statement.
- In Ho Wai Pang v. People, the Supreme Court said that violation of the rights of an
accused under custodial investigation only excludes confessions obtained during the
custodial investigation, but other independent evidence or evidence independent
of the custodial investigation are admissible. In essence, the Supreme Court is saying
only the confession, only the primary evidence is inadmissible in evidence…
- Supposing a passenger arrives in the Philippines and he was interviewed
by a BI agent. He was asked if he was carrying illegal drugs, and the
passenger says yes. Because of that confession, the BI agent searched his
outer clothing, and he found illegal drugs inside his pocket. Can we say
that only the confession is inadmissible, but the drugs found is admissible?
The answer is no... both the confession and the evidence obtained based
on the confession are inadmissible in evidence. This was the ruling of the
Supreme Court in People v. Alicando.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- In People v. Alicando, this case involved Rape with Homicide of a child. During the
investigation of the accused, the accused confessed. The police officers were also
able to obtain other evidence (the blood-stained shirt and pillow) because of the
confession. The question here is up to what extent may the inadmissibility apply?
- The Supreme Court said it extends to the confession and all derivative
evidence... any evidence obtained in violation of Section 12 of Article III,
however far removed from the primary source, shall be excluded in
evidence. This is the application of the FRUIT OF THE POISONOUS TREE
DOCTRINE, as cemented by Justice Frankfurter in Nardone v. U.S. Which
means that Section 12 of Article III renders inadmissible in evidence not
only the confession, but as well as other derivative evidence under the
Fruit of the Poisonous Tree Doctrine.
Under R.A. No. 7438, the term “custodial investigation” was extended even to the practice of
police officers of issuing invitations to a person who is investigated of a crime to which he is a
suspect. This is intended to address the concern of individuals who were invited by the police
officers in order to shed light on an incident. This is now part of custodial investigation under
R.A. 7438.
Under the Constitution, for a valid waiver of the Right to Remain Silent and Right to Counsel,
it is required that the accused must be assisted by counsel and that the waiver must be in
writing. For a valid waiver of the Right to Remain Silent and the Right to Counsel, the
Constitution only requires that the waiver must be in writing and signed in the presence of
counsel. R.A. 7438 provides an additional condition for the admissibility of a confession
obtained during custodial investigation.
- Under R.A. 7438, for the admissibility of the custodial investigation proceedings,
the law requires that the custodial investigation report must be in writing. If the
custodial investigation report is not reduced into writing and signed by the accused,
anything that happened during the custodial investigation proceedings shall be
inadmissible. Second, the extrajudicial confession of the accused must also be in
writing and signed by the accused. Which means that verbal admissions or
confessions during custodial investigation is inadmissible... that confession must be
reduced into writing and signed by the accused in the presence of his counsel, or in
the absence of his counsel upon a valid waiver, it must be signed in the presence of
any of the parents, of any of the older brothers or sisters, of the spouse, of the the
Municipal Mayor, of the Municipal Judge, of the School District Supervisor, or of the
priest or Minister of the Gospel chosen by him. Which means that if the extrajudicial
confession was not signed in the presence of counsel or of any of the persons
mentioned in R.A. 7438, that extrajudicial confession is inadmissible in evidence.
These are the additional requirements for the admissibility of extrajudicial
confessions obtained during custodial investigations.
Page 107 of 152
Under Section 3 of R.A. 7438, “ASSISTING COUNSEL is any lawyer, except (a) those directly
affected by the case (b), those charged with conducting preliminary investigation, or (c) those
charged with the prosecution of crimes.”
SECTION 13, ARTICLE III — RIGHT TO BAIL
Under Sect. 1 of Rule 114 of the Rules of Court, “Bail is the security given for the release of a
person in custody of the law, furnished by him or a bondsman, to guarantee his appearance
before any court as required under the conditions hereinafter specified. Bail may be given in
the form of corporate surety, property bond, cash deposit, or recognizance.”
Under the Rules of Court, the four forms of bail are:
1. Corporate surety;
2. Property bond;
3. Cash deposit; and
4. Recognizance.
All forms/kinds of bail are subject to the mandatory conditions under Sect. 2 of Rule 114.
Under Sect. 2 of Rule 114, the mandatory conditions for the right to bail are:
1. The undertaking shall be effective upon approval, and unless cancelled, shall
remain in force at all stages of the case until promulgation of the judgement of the
RTC, irrespective of whether the case originally filed in or appealed to it; 

2. The accused shall appear before the proper court whenever required by the court
or these Rules;
3. The failure of the accused to appear at the trial without justification and despite
due notice shall be deemed a waiver of his right to be present thereat. In such case,
the trial may proceed in absentia; and
4. The bondsman shall surrender the accused to the court for execution of the final
judgment.
May bail be applied for and granted even if the accused is not in detention, or is it
required that the accused must be in detention before he may be granted bail?...
because the object of bail is to give the accused provisional liberty... So can the
courts say that provisional liberty presupposes that the accused is in detention?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The answer is no. There is no need to wait for detention. An accused may
post bail even if he is not yet in detention by voluntarily submitting himself
to the custody of law enforcement officers.
- If the accused learned that there is already a Warrant of Arrest, there is
no need for him to wait for the service of the Warrant of Arrest... he may
submit himself to the custody of law enforcement officers and then post
bail. In that regard, he may be spared from the humiliation of being
arrested.
Ordinarily, bail is granted only to an accused who is charged with a crime. Can bail
be imposed to a person who is not an accused or is not even a party to the
proceedings?
- The answer is yes. Under Rule 119, a bail may be required in order to
secure the attendance of a material witness. Which means that bail under
this rule is not a right; it is an obligation. A material witness may be
compelled/required to post bail to ensure his appearance during a trial.
There are two kinds of bail under Sections 4 and 5 of Rule 114. Bail could either be
a—
1. Bail as a MATTER OF RIGHT; or
2. Bail as a MATTER OF DISCRETION.
Under Section 4 of Rule 114, bail is a MATTER OF RIGHT —
1. Before or after conviction by the Metropolitan Trial Court, Municipal
Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court;
2. Before conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment.
Aside from the two instances under Section 4 of Rule 114, is there any other instance
where bail is a MATTER OF RIGHT?
- Note that under Section 13 of Article III, the Constitution says “ALL
PERSONS” are entitled to bail. The Constitution only excludes certain
persons charged with a crime from bail. Which means that a person is
entitled to bail UNLESS he falls under the exception. Under the exception,
there are two conditions in order to deny a person his right to bail. These
conditions are that 1) the person is charged with an offense punishable by
Page 108 of 152
reclusion perpetua, AND 2) the evidence of guilt is strong. If one of these
two conditions is absent, then bail is a matter of right.
- So, let’s take out the first condition. If the accused is punished with an
offense not punishable by reclusion perpetua, life imprisonment, or
death, and it is before conviction, then bail is a matter of right, regardless
of the strength of the evidence of guilt. Even if the evidence of guilt is
strong or overwhelming, bail is still a matter of right under this scenario
before conviction by the RTC or even after conviction by the MTCs.
- So, let’s put back the first condition, but take out the second condition.
If the accused is charged with an offense punishable by reclusion
perpetua, life imprisonment, or death, but the evidence of guilt is not
strong, then bail is still a matter of right.
- This is the third instance when bail is a matter of right (Before conviction
by the RTC for an offense punishable by reclusion perpetua, life
imprisonment, or death, but the evidence is not strong).
To recap, the instances wherein bail is a MATTER OF RIGHT are:
1. Before or after conviction by the Metropolitan Trial Court, Municipal
Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court
(Section 4, Rule 114);
2. Before conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment (Section 4,
Rule 114); and
3. Before conviction by the Regional Trial Court for an offense punishable
by reclusion perpetua, but the evidence is not strong (Section 13, Article
III of the Constitution).
Under Section 5 of Rule 114, the Rules only enumerated one instance when bail is a matter of
DISCRETION. The Rules of Court provides that “Upon conviction by the Regional Trial Court of
an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail
is discretionary.”
- After conviction, bail is a matter of discretion, provided that the offense is not
punishable by death, reclusion perpetua, or life imprisonment.
Aside from Section 5 of Rule 114, is there any other instance when bail is a MATTER OF
DISCRETION? [Yes]
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Before conviction, bail is a matter of discretion when the accused is charged with
an offense punishable by death, reclusion perpetua, or death.
- So it is not correct to say that there are non-bailable offenses... it is inappropriate
to say so because ALL OFFENSES ARE BAILABLE. The only reason why there are
accused charged with some offenses who are not allowed to post bail is because of
the weight of evidence of guilt. Even offenses punishable by reclusion perpetua, life
imprisonment, or death are bailable when the evidence of guilt is not strong.
- Going back to bail as a matter of discretion... bail is a matter of discretion before
conviction of an offense punishable by reclusion perpetua, life imprisonment, or
death. The discretion of the court lies in the determination of the weight of evidence
of guilt. In determining the weight of the evidence of guilt, it is mandatory, according
to the Supreme Court in Basco v. Rapatalo, to hold a hearing. In such hearing, the
court will conduct a Summary Determination of the weight of evidence of guilt. The
discretion of the court will only be applied in determining whether the evidence of
guilt is strong or weak.
- If the accused is charged with an offense punishable by reclusion
perpetua, life imprisonment, or death, and before conviction, the court
held a hearing to determine the weight of the evidence of guilt, and after
such hearing, the court determines that the weight of the evidence of guilt
is strong, the discretion ceases; the court has no choice but to deny the
application for bail. On the other hand, if after such hearing, the court
determines that the evidence of guilt is not strong, the discretion likewise
ceases; the court has no choice but to grant the application for bail.
- Which means that the discretion only lies in the determination
of the weight of the evidence of guilt.
- In Basco v. Rapatalo, the accused was charged with an offense punishable by
reclusion perpetua. He was in detention. Several months later, the parents of the
victim were surprised to see the accused in their town, and they discovered that the
judge granted bail without conducting a hearing. The Supreme Court said that
HEARING IS MANDATORY in order to determine the weight of the evidence of guilt,
and secondly, to determine the reasonable amount of bail (Sect. 9, Rule 114). The
Supreme Court said that “discretion, when applied by a court of justice, means
discretion governed by rule, not by humor; it must not be arbitrary, vague, nor
fanciful, but rather, it must be legal and regular.”
Whether bail is a matter of right or a matter of discretion, a hearing is mandatory in order to
determine the reasonable amount of bail.
Page 109 of 152
Under Section 9 of Rule 114, the judge who issued the warrant or granted the application shall
fix a REASONABLE AMOUNT OF BAIL considering primarily, but not limited to, the following
factors:
1. Financial ability of the accused to give bail;
2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of the evidence against the accused;
7. Probability of the accused appearing at the trial;
8. Forfeiture of other bail;
9. The fact that the accused was a fugitive from justice when arrested; and
10. Pendency of other cases where the accused is on bail.
Are applications for bail subject to the 3-Day Notice Rule? [Yes]
- In Baylon v. Judge Sison, the trial court believed that applications for bail are
exempted from the 3-Day Notice Rule, because according to the trial court judge,
time is of the essence since the accused is in detention, therefore, the motion for
bail must be heard at the earliest possible opportunity. But the Supreme Court said
no.
- According to the Supreme Court, citing Basco v. Rapatalo, there are 4 obligations
of the court whenever applications for bail are filed. These four obligations are as
follows:
1. To notify the prosecution of the hearing of the application for bail or to
require the prosecution to submit a recommendation;
2. To conduct the summary hearing of the application for bail in order to
allow the court to exercise its reasonable and sound discretion;
3. To determine the weight of the evidence of guilt; and
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
4. If the weight of the evidence of the guilt is not strong, then the court
must discharge the accused upon approval of the bail bond; if the weight
of the evidence of the guilt is strong, then the court must deny the
application for bail.
- Going back to the 3-Day Notice Rule, the Supreme Court in Baylon v. Judge Sison
said that to deny the 3-Day Notice to the prosecution would be a denial as well of
the right to prepare for the presentation of evidence to establish the weight of the
evidence of guilt. This is a violation of the Right to Due Process of the prosecution.
- The Supreme Court said the right to a hearing, particularly in cases where
bail is a matter of discretion, is mandatory, and the 3-Days Notice Rule is
also mandatory to afford the prosecution adequate time to prepare for
the presentation of evidence.
If you are asked whether members of the Armed Forces of the Philippines are entitled to the
right to bail, what is your categorical answer? If that is only the question... are members of
the AFP entitled to bail?
- The answer is yes. Yes is the categorical answer to that question. Note that the
Constitution provides “ALL PERSONS.”
- The ruling of the Supreme Court in Comendador v. De Villa should be taken only
from the context of that case. While the Supreme Court said in Comendador v. De
Villa that members of the AFP do not have the right to bail, this has reference to
General Court Marshall Proceedings. Which means that if the question is if members
of the AFP are entitled to bail, the answer is yes... with the only exception is when
they are charged before a Court Marshall Proceeding.
- The Supreme Court in Comendador v. De Villa explained the peculiar
character of the Military. The Supreme Court said that the members of the
Military are more entitled to speedy disposition of cases because they are
not entitled to the right to bail. For example, the case involving Senator
Trillanes, insofar as the Coup d’état charges before the RTC, he’s entitled
to bail; but insofar as the proceedings before the General Court Marshall,
he’s not entitled to bail. So, the same act may be the basis of a General
Court Marshall Proceeding or a proceeding under the Revised Penal Code.
However, if the proceedings are under the Revised Penal Code, then he is
entitled to bail, but if the proceedings are before the General Court
Marshall, then he cannot post bail because General Court Marshall
Proceedings are not criminal proceedings.
Page 110 of 152
In determining whether bail is a matter of right or a matter of discretion, we have learned that
the material considerations are based on the penalty for the offense charged, and the weight
of the evidence of guilt.
In determining whether bail is a matter of right or a matter of discretion, what penalty shall
be considered by the court? Supposing there is a difference between the penalty at the time
of the filing of the criminal information and the penalty at the time of the pendency of the
application for bail, which penalty shall be considered for purposes of determining whether
bail is a matter of right or of discretion?
- To be specific, supposing at the time the criminal information was filed, the penalty
for the offense charged was reclusion perpetua. During the pendency of the
application for bail, the law was amended and the penalty was reduced prision
mayor. Which penalty shall be considered for purposes of determining whether bail
is a matter of right or of discretion? Because if we will consider the penalty at the
time the criminal information was filed, then bail is only a matter of discretion... but
if we consider the penalty at the time of the application of bail, then bail is a matter
of right regardless of the weight of the evidence of guilt. So which penalty shall be
considered?
- This was answered by the Supreme Court in the case of People v. Judge
Donato. This case involved Rebellion. At the time of the filing of the
criminal information, Rebellion was punishable by reclusion perpetua to
death, but during the application for bail, the penalty was reduced to
prision mayor. The Supreme Court said that it is the penalty at the time of
the application of bail that shall be the basis in determining whether bail
is a matter of right or a matter of discretion. Which means that in this case,
the Supreme Court granted the bail regardless of the weight of the
evidence of guilt because the penalty at the time of the application for bail
is the determinative factor.
- Can we now say that when you are asked during the Bar Examination
that the penalty at the time of the application for bail is the determinative
factor, do you agree or not? The answer is “I do NOT agree.” But why?
That statement is only taken from the context of People v. Judge Donato
when the law lowered the penalty... because supposing the circumstances
are reversed... supposing that at the time of the filing of the criminal
information, the penalty was prision mayor, but at the time of the
pendency of the application for bail, the law was amended increasing the
penalty... so can we still say that the penalty at the time of the application
for bail should be the basis? No, not anymore because that becomes EX
POST FACTO.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The correct categorical answer to the question is that it is
ALWAYS THE LOWER PENALTY that shall be considered.
Whether it is the penalty at the time of the filing of the criminal
information or the penalty during the pendency of the
application for bail, it is always the lower penalty that shall
govern in determining the nature of the application for bail.
May Section 13 of Article III be applied in non-criminal proceedings, such as deportation,
quarantine, and extradition proceedings? [No]
- The answer is no. Section 13 of Article III is ONLY EXCLUSIVE TO CRIMINAL
PROCEEDINGS, but the Right to Bail can be granted not under Section 13 of Article
III, but under Section 1 of Article III, the Right to Due Process. The Right to Bail under
Section 13 of Article III is only exclusive to criminal proceedings.... because the
provision requires a “penalty for the offense charged...”and the “weight of evidence
of guilt” is also relevant... and in non-criminal proceedings, these are not relevant.
In the cases of U.S. v. Puruganan and Government of Hong Kong Special Administrative
Region v. Hon. Olalia, the Supreme Court discussed the nature of Extradition Proceedings.
Extradition is definitely not a criminal proceeding. The Supreme Court enumerated the FIVE
POSTULATES OF EXTRADITION PROCEEDINGS, which are:
1. Extradition is a major instrument for the suppression of crimes;
- With the advent of easy and convenient international travel, the
Supreme Court said the way that a State deals with criminal actions has
evolved into States entering into Extradition Treaties so that criminals
who may flee from the jurisdiction of the local courts may be returned to
the Requesting State in order that justice may be administered. The
Supreme Court said that extradition is now a major instrument for the
suppression of crimes.
2. The requesting State must accord due process to the accused;
- In entering into Extradition Treaties, a State must review the procedures
of the other State. When the State is convinced that due process is
observed, that is the only time when the State will sign the Extradition
Treaty. The ratification of the Extradition Treaty presupposes that both
parties trust the legal system of the other.
3. The proceedings are sui generis;
- Extradition Proceedings are not criminal proceedings even if they use the
mechanisms of criminal cases, such as arrest and detention. The Supreme
Page 111 of 152
Court said that these are not criminal proceedings because in Extradition
Proceedings, the penalty for the offense charged and the weight of the
evidence of guilt are not relevant. There are only two issues in Extradition
Proceedings which are (a) whether the application for extradition
complied with the Extradition Treaty, and (b) whether the accused is
extraditable. These are the only two issues that must be resolved by the
Extradition Courts, and not the innocence or guilt of the accused, nor the
penalty of the offense charged, nor the weight of the evidence of guilt,
and so on.
- Another proof that Extradition Proceedings are not criminal proceedings
is that the required quantum of evidence in criminal cases to convict the
accused is Proof Beyond Reasonable Doubt. In Extradition Proceedings,
extradition may be granted using the standard of Prima Facie Evidence.
The standard of evidence that must be applied by the Extradition Court in
granting the application for extradition is only Prima Facie Evidence.
- The Clear and Convincing Evidence is the standard to be used
in determining whether the extraditee is entitled to bail and in
granting the application for bail. But when it comes to the
determination by the court of whether the application for
extradition should be granted, the only standard to be used is
Prima Facie evidence, because Extradition Proceedings are only
summary in nature. So, Prima Facie Evidence is to be used by
the Extradition Court in determining whether the requesting
State is entitled to the extradition.
- Another proof that Extradition Proceedings are not criminal proceeding
is that decisions in criminal cases become executory upon its finality. Once
a decision becomes final in criminal cases, it becomes executory. In
Extradition Proceedings, however, final decisions are not executory UNTIL
the President decides... which means that even if the decision has become
final, the decision is not executory until the President approves it. This is
again a further proof that Extradition is not a criminal proceeding because
Extradition, according to the Supreme Court, is part of the Executive
Powers of the President in establishing foreign relations.
4. Compliance shall be in good faith; and
5. There is underlying risk of flight.
- The Supreme Court said that the only reason why the Requesting State
filed an application for extradition is because the supposed extraditee has
fled the jurisdiction of the Requesting State.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
We had learned earlier that there are only two instances when Bail is a Matter of Discretion.
To recap, BAIL IS A MATTER OF DISCRETION:
1. Upon conviction by the Regional Trial Court of an offense not punishable by death,
reclusion perpetua, or life imprisonment (Section 5, Rule 114); and
2. Before conviction, when the accused is charged with an offense punishable by
death, reclusion perpetua, or life imprisonment. The discretion of the court lies in
the determination of the weight of evidence of guilt.
- Note: The prosecution cannot adduce evidence for the denial of bail
when it is a matter of right. When the grant of bail is discretionary,
however, the prosecution may show proof to deny the bail.
The Supreme Court further expanded the instances when Bail is a Matter of Discretion in the
case of Enrile v. Sandiganbayan.
- In this case, note that the petitioner was charged with an offense punishable by
reclusion perpetua and the evidence of guilt is strong. Ordinarily, bail is neither a
right nor a matter of discretion, but the Supreme Court granted the application for
bail because of the health condition of the petitioner. The Supreme Court said that
regardless of the stage of the proceedings, and regardless of the weight of the
evidence of guilt, Bail is a Matter of Discretion when the continued detention of the
accused will pose a risk on his health. Thus, the Supreme Court granted the
application for bail in this case on humanitarian considerations. Which means that
this is another instance when Bail is a Matter of Discretion.
- Applying Enrile v. Sandiganbayan, when the accused is charged with an offense,
regardless of the penalty, the weight of the evidence of guilt, and the stage of the
proceedings, bail shall nevertheless be a matter of discretion for HUMANITARIAN
CONSIDERATIONS.
- This is now the implication of this case; it gives the courts of justice
authority and discretion in determining when bail may be granted as a
matter of discretion.
Under Section 5 of Rule 114, the Supreme Court enumerated conditions when bail is not a
matter of right nor a matter of discretion after conviction by the Regional Trial Court.
- Note under Section 5 of Rule 114, as a general rule, upon conviction of an offense
not punishable by death, reclusion perpetua, or life imprisonment, admission to bail
is discretionary... EXCEPT any of the five instances provided under Sect. 5. Under
Page 112 of 152
these five instances, bail will be neither a matter of right, nor a matter of discretion,
and the court must deny the application of bail or cancel bail if already granted.
- Under Section 5 of Rule 114, if the penalty imposed by the RTC is imprisonment
exceeding six (6) years, the accused shall be DENIED BAIL, or his BAIL SHALL BE
CANCELLED upon a showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:
1. That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
2. That he has previously escaped from legal confinement, evaded
sentence, or violated the conditions of his bail without valid justification;
3. That he committed the offense while under probation, parole, or
conditional pardon;
4. That the circumstances of his case indicate the probability of flight if
released on bail; or
5. That there is undue risk that he may commit another crime during the
pendency of the appeal.
In determining whether bail is a matter of right or a matter of discretion, are attendant
circumstances (aggravating/mitigating) relevant?
- In Enrile v. Sandiganbayan, the petitioner contends that although the penalty for
the offense charged is reclusion perpetua, he is nevertheless entitled to 2 attendant
mitigating circumstances, which were voluntary surrender and that he is above 70
years old. According to the petitioner, the maximum imposable penalty in light of
the attendant mitigating circumstances is one degree lower than reclusion
perpetua, thus, the imposable penalty is reclusion temporal. So according to the
petitioner, bail is a matter of right. The Supreme Court said no... the attendant
aggravating or mitigating circumstances are not relevant in the determination of the
application for bail. The determinative factor is the penalty prescribed by law, and
not the penalty imposed by the trial court.
- Supposing the accused is charged with an offense punishable by reclusion
perpetua. During the summary hearing, the prosecution established that the
evidence of guilt is strong, but during the trial, the accused was only convicted of an
offense punishable by reclusion temporal. Just to be specific, supposing the offense
charged is Murder... and during the application for bail, the prosecution was able to
establish a strong evidence of guilt.... during trial, the accused was denied bail... but
after the trial, the court only convicted the accused for the crime of Homicide which
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
prescribes the penalty of reclusion temporal... can the appellate court grant an
application for bail? Yes, because it is now a matter of discretion.
- Would this not violate the Constitution?... because the Constitution only
says “Before conviction...” In the given scenario, the application for bail
was granted by the appellate court after conviction by the trial court... The
answer is no. This rule further expands the constitutional guarantee. What
violates the Constitution is a rule that restricts the right to bail... but
expanding the right to bail to other circumstances, which are not expressly
provided for by the Constitution, does not violate the Constitution. But of
course, a rule cannot expand the right to the extent that it will violate the
Constitution.
SECTION 14, ARTICLE III — RIGHTS OF THE ACCUSED
The rights under Section 14 of Article III are collectively called “The Rights of the Accused.”
Can we say that all the rights under Section 14 of Article III are indeed available only to the
accused?
- The answer is no. There is one right under Sect. 14 of Art. III that does not belong
to the accused, which is the last one — Trial in Absentia.
- Trial in Absentia is a right of the prosecution to continue with the
proceedings even in the absence of the accused. Which means that Trial
in Absentia is an exception of the right to be heard by himself and counsel.
But all the rest, besides Trial in Absentia, are rights of the accused.
The first right of the accused under Section 14 is the Right to Criminal Due Process. In the case
of Alonte v. Savellano, remember this is the rape case in Laguna, the Supreme Court
enumerated the Four Mandatory Elements of Criminal Due Process, which are:
1. The court or tribunal trying the case is properly clothed with judicial power to
hear and determine the matter before it;
- In other words, the court or tribunal must have jurisdiction over the
subject matter of the controversy.
2. Jurisdiction is lawfully acquired by it over the person of the accused;
3. That the accused is given notice and an opportunity to be heard; and
4. Judgement is rendered only upon lawful hearing.
Page 113 of 152
Element #1
How do courts acquire jurisdiction over the subject matter of the controversy?
- Courts acquire jurisdiction over the subject matter of the controversy BY LAW. It is
the law or the Constitution which vests jurisdiction on the various courts. So B.P.
129 and the Rules of Court establish the jurisdiction of various courts.
Element #2
How about jurisdiction over the person of the accused? How is it lawfully acquired?
- There are two instances when the courts acquire jurisdiction over the person of
the accused. These two instances are: (1) by arrest; and (2) by voluntary surrender.
What is the difference between Criminal Due Process under Section 14 and Due Process in
general under Section 1?
- Criminal Due Process applies only in criminal proceedings. Due Process in general
applies to all proceedings, whether it be judicial, quasi-judicial, administrative, and
other proceedings. The right to Due Process in general is available to all persons and
parties, but the right to Criminal Due Process is only available to an accused. Only
an accused can invoke Section 14. Due Process in general covers both Substantial
and Procedural Due Process, while Criminal Due Process only covers Procedural Due
Process. So, these are the differences between Criminal Due Process and Due
Process in general.
Aside from the four requisites of Criminal Due Process enumerated by the Supreme Court in
Alonte v. Savellano, is there any constitutional objection to the inordinate delay in the
conduct of criminal proceedings?
- In Tatad v. Sandiganbayan, the petitioner was only charged with non-filing of
Statement of Assets, Liabilities, and Net Worth (SALN), but the Preliminary
Investigation lasted for more than 3 years. What is the effect of the inordinate delay
in the conduct of the Preliminary Investigation?
- The Supreme Court said that this violates the Criminal Due Process of the
accused. This is the practice called “Parking Fee.” “Parking” means that
the case will not be acted upon for a very long period of time so that after
a sufficient lapse of time, the Office of the Ombudsman can file a petition
to dismiss, and a petition to dismiss based on inordinate delay is final. This
is the “Parking” practice of the Office of the Ombudsman, and there is a
“fee” per month or per year.
- In Tatad v. Sandiganbayan, the public respondent contended that
assuming for the sake of argument that there is a violation of the right to
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019

Criminal Due Process, the delay in the conduct of the Preliminary
Investigation does not justify the dismissal of the criminal complaint,
because according to the public respondent, absence of Preliminary
Investigation is not a ground for the dismissal of the criminal complaint...
which means that the mere delay will not justify the dismissal of the
criminal complaint. But the Supreme Court disagreed. The Supreme Court
said that DELAY IS WORSE THAN ABSENCE OF PRELIMINARY
INVESTIGATION, because absence of Preliminary Investigation can easily
be corrected by holding a Preliminary Investigation, just like in the case of
Aniag v. COMELEC where there was no Preliminary Investigation, so the
only recourse was to conduct a Preliminary Investigation. But the
Supreme Court said that insofar as delay in the Preliminary Investigation,
the defect is incurable... it can no longer be corrected... because,
according the Supreme Court, up to date, man has not yet invented a
machine to turn back time. Once delay is present, it can no longer be
corrected, and to further conduct Preliminary Investigation would be to
further aggravate the condition of the respondent. The Supreme Court
said that delay in the conduct of Preliminary Investigation is worse than
an absence of Preliminary Investigation.
What is the wisdom behind the dismissal of criminal complaints due to inordinate delay in the
conduct of Preliminary Investigation?
What are the rights of the accused under Section 14 of Article III?
- The legal principle behind this is the often-quoted principle: “Justice delayed is
justice denied.”
secret meeting in Malacañang. The Supreme Court said that when the Presiding
Justice of the Sandiganbayan and the Tanodbayan attended that meeting, “all
semblance of impartiality were already lost.” Which means that at that time, the
case was already predetermined.
- The Supreme Court said that “Verily, it can be said that any avowal or independent
action or resistance to presidential pressure became illusory from the very moment
they stepped inside Malacañang Palace on January 10, 1985.” The Supreme Court
said that it “cannot permit such a sham trial and verdict and travesty of justice to
stand unrectified. The courts of the land under its aegis are courts of law and justice
and equity. They would have no reason to exist if they were allowed to be used as
mere tools of injustice, deception and duplicity to subvert and suppress the truth,
instead of repositories of judicial power whose judges are sworn and committed to
render impartial justice to all alike who seek the enforcement or protection of a right
or the prevention or redress of a wrong, without fear or favor and removed from the
pressures of politics and prejudice.”
- The Supreme Court said that once the associate justices are placed under the
direction of the President, then the decision of the court becomes based on the
predetermination of the President. This violates the Criminal Due Process of the
accused.
1. Criminal Due Process;

- Once the dispensation of justice is inordinately delayed, the right to justice of the 2. Presumption of Innocence;
party has already been denied or at the very least, he has already suffered a violation
of his right to justice. 3. Right to be Heard by Himself and Counsel;

According to the Supreme Court in Tatad v. Sandiganbayan, inordinate delay in the conduct 4. Right to be Informed of the Nature and Cause of Accusation;
of Preliminary Investigation violates the right to Criminal Due Process and it may be a ground
for the dismissal with finality of the criminal complaint. 5. Right to Speedy, Impartial, and Public Trial;

In Galman v. Sandiganbayan, this is the case involving the proceedings relative to the 6. Right of Confrontation;
assassination of Senator Benigno “Ninoy” Aquino, Jr. This is one of the few instances when
the Supreme Court reversed a judgment of acquittal... because as we will discuss later in Sect. 7. Compulsory Processes; and
21 of Art. III, a judgment of acquittal is final. But in this case, the Supreme Court reversed a
judgment of acquittal because, according to the Supreme Court, it was a mistrial or the “non- 8. Trial in Absentia.
trial of the century.”
THE PRESUMPTION OF INNOCENCE
- The accused in this case were members of the AFP, but the jurisdiction was given
to the Sandiganbayan. During the proceedings, the Presiding Justice of the
Sandiganbayan, as well as the Special Prosecutor, the Tanodbayan, were called to a

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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Why does the Constitution play favorites? Why doesn’t the Constitution just
remain neutral? Why is there such a thing as Presumption of Innocence? Why is the
Constitution siding with the accused?
- The Constitution establishes a Presumption of Innocence because all the
prosecutorial arms of the government are being mobilized to establish the
guilt of the accused. In order to level the playing field against the entire
governmental machinery, the Constitution at the very least gave the
accused the Presumption of Innocence.
- Is the right to the Presumption of Innocence available to all persons?
- The answer is no. It is only available to NATURAL PERSONS.
- In the case of Feeder International Line v. Court of Appeals, the
Supreme Court denied the right to presumption of innocence to a
corporation. According to the Supreme Court, this is a right exclusive only
to natural persons.
- Is the Presumption of Innocence a conclusive presumption?
- The answer is no. It is only a DISPUTABLE PRESUMPTION.
- What is the degree of evidence necessary to overcome a disputable presumption?
- The standard of Proof Beyond Reasonable Doubt.
- Does Proof Beyond Reasonable Doubt require absolute certainty?
- The answer is no. Under Section 2 of Rule 133, “MORAL CERTAINTY only
is required, or that degree of proof which produces conviction in an
unprejudiced mind.”
- Under Section 2 of Rule 133, “In a criminal case, the accused is entitled
to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof
Beyond Reasonable Doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Moral certainty
only is required, or that degree of proof which produces conviction in an
unprejudiced mind.”
- In People v. Dramayo, this is the case involving Murder and there were
7 accused. But of the 7 accused, 3 were acquitted, 2 were discharged as
State Witnesses, and 2 were convicted. The criminal information charged
all the accused with the crime of Murder aggravated by the circumstance
Page 115 of 152
of Conspiracy. According to the 2 accused who were convicted, in a
Conspiracy, “the act of one, is the act of all,” because there was a
concerted effort to affect the crime. The theory of the 2 accused is if in a
Conspiracy, “the guilt of one, is the guilt of all,” then it should also follow
that the innocence of one, is also the innocence of all. They argued that
since 3 of the accused were declared innocent, their innocence should
also be extended to them. The Supreme Court said no. The Supreme Court
said that although the act/guilt of one is the act/guilt of all and the
Conspiracy must be shown by proof beyond reasonable doubt,
nevertheless once the Conspiracy is shown by proof beyond reasonable
doubt, only those who participated in the Conspiracy can be convicted.
Those who did not participate in the Conspiracy definitely cannot be held
accountable for the criminal acts done.
- The Supreme Court said that “By reasonable doubt is not
meant that of which possibility may arise, but it is that doubt
engendered by an investigation of the whole proof and an
inability, after such investigation, to let the mind rest easy upon
the certainty of guilt. Absolute certainty of guilt is not demanded
by the law to convict of any criminal charge but moral certainty
is required, and this certainty is required as to every proposition
of proof requisite to constitute the offense. We feel that it is
better to acquit a man upon the ground of reasonable doubt,
even though he may in reality be guilty, than to confine in the
penitentiary for the rest of his natural life a person who may be
innocent.”
- In Criminal Cases, you have learned that “to doubt is to acquit.” Do you agree that
to doubt is to acquit?
- The answer is no. There is a kind of doubt that is not inconsistent with
conviction. Which means that there are certain doubts that can coexist
with conviction. These are UNREASONABLE DOUBTS. Because the Rules
only require Proof Beyond “Reasonable Doubt.” If doubt is unreasonable,
then it can sustain a conviction. Therefore, it is not accurate to say that
“to doubt is to acquit.” It only means that if there is reasonable doubt,
then you must acquit; but if there is a doubt that is unreasonable, then a
conviction may be had.
- In the case of Dumlao v. COMELEC, the law challenged is a law that disqualifies
persons convicted of acts of disloyalty from running for local elective office, and
under the law, there is a presumption that persons charged of acts of disloyalty are
Prima Facie deemed guilty of such acts. Which means that persons convicted of acts
of disloyalty are disqualified, and persons merely charged for acts of disloyalty are
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
deemed Prima Facie guilty and, therefore, are likewise disqualified. The issue in this
case is whether it is allowed to establish guilt, and primarily, is it allowed to treat
persons who are already convicted, and persons merely charged of a crime
similarly... can the law treat them similarly? [No]
- The answer is no. The Supreme Court said that ACCUSATION IS NOT
SYNONYMOUS WITH GUILT. Mere accusation should not be a basis to
treat a person charged in the same manner as those who are already
convicted. To place a person who is merely accused of a crime in the same
manner or in the same level as a person who is already convicted violates
the Presumption of Innocence.
- But does this mean that laws that establish a presumption of guilt are
unconstitutional? Particularly the law on Malversation. Under the law on
Malversation, if an accountable officer failed to fully account for the funds
and property entrusted to him, then there is a presumption of
Malversation, which is a Presumption of Guilt. Is this unconstitutional?
Another example, the flight of an accused establishes a Presumption of
Guilt. Is this unconstitutional? Instead of establishing a Presumption of
Innocence, these laws establish a Presumption of Guilt.
- The answer is no. The Supreme Court said that there may be
laws that may establish a Presumption of Guilt, as long as (1) the
presumption is based on human experience, and (2) there is a
rational connection between the facts established and the facts
ultimately presumed therefrom. As long as these two conditions
are present, then laws that establish a Presumption of Guilt is
valid and constitutional.
- In Dumalao v. COMELEC, the Supreme Court said that to treat persons who are
merely charged with an offense the same as persons who are already convicted
violates the Presumption of Innocence.
- In Marquez v. COMELEC, the Implementing Rules and Regulations of the Local
Government Code (LGC) were being challenged. Under R.A. 7160 or the LGC,
fugitives from justice are disqualified to run for local elective office, and the
Implementing Rules and Regulations of the LGC defined who are “FUGITIVES FROM
JUSTICE.” And under the Implementing Rules and Regulations, “a fugitive from
justice is a person who, after conviction, flees the jurisdiction in order to avoid or
evade punishment.” Is this a valid definition of a fugitive from justice?
- The Supreme Court said no, that definition is unduly circumscriptive.
Fugitives from justice must be defined and interpreted to mean “a person
who, after conviction, flees the jurisdiction in order to avoid punishment,
Page 116 of 152
and also persons who, after having been charged, avoid the jurisdiction in
order to avoid prosecution.” In essence, in Marquez v. COMELEC, the
Supreme Court wants to treat persons who are already convicted and
persons who are merely charged similarly, and make them fugitives from
justice which, therefore, makes them disqualified from running for any
local elective office.
- How do we then reconcile the rulings in Dumlao v. COMELEC and in Marquez v.
COMELEC?
- In Dumlao v. COMELEC, the Supreme Court said that courts cannot treat
persons who are already convicted and persons who are merely charged
similarly.
- But in the case of Marquez v. COMELEC, the Supreme Court said that to
confine “fugitives from justice” to only those who have already been
convicted would be unduly circumscriptive. The definition of “fugitives
from justice” should also extend to persons who are merely charged who
flee to avoid prosecution. In essence, the Supreme Court wants to treat
persons who are already convicted and persons who are merely charged
similarly.
- So how do we reconcile these two seemingly conflicting rulings of the
Supreme Court?
- In Dumalao v. COMELEC, the disqualification arises by the
mere filing of a criminal complaint. Upon the mere filing of a
criminal complaint for acts of disloyalty, the persons charged
are already disqualified.
- In Marquez v. COMELEC, the mere filing of a criminal
complaint does not make the accused a fugitive from justice.
The disqualification arises from the act of flight by the accused.
Which means that the act of flight is the factor that makes the
accused a fugitive from justice, and not by the mere accusation.
The accusation coupled with the act of flight is what makes an
accused a fugitive from justice.
- In the case of Corpus v. People, the Supreme Court discussed the concept of the
EQUIPOISE RULE. The Supreme Court said that “if the evidence of the prosecution is
evenly balanced with the evidence of the defense, the Equipoise Rule shall be applied
in order to tilt the scales of justice in favor of innocence.”
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- By that definition, it implies that the Equipoise Rule can only be applied
when the evidence of the prosecution and the evidence of the accused is
50-50... so if the evidence of guilt for the prosecution is 50% and the
evidence of the defense is also 50%, then the Equipoise Rule will lean in
favor of the accused.
- Supposing the evidence of the prosecution establishing the guilt of the
accused is not 99%, and the evidence of innocence of the defense is 1%
reasonable doubt... the Equipoise Rule does not apply right? ...because
the evidence for both sides are not equally balanced... so does that mean
that the court should convict the accused?
- The answer is no. As long as there is a reasonable doubt, even
without the Equipoise Rule, the scales of justice will always tilt
in favor of the innocence of the accused because, in such a case,
the prosecution failed to overcome the Presumption of
Innocence of the accused by proof beyond reasonable doubt.
- What is the relevance then of the Equipoise Rule when even if the
evidence for both sides are not equally balanced, as long as there is a
reasonable doubt, the scales of justice shall always be tilted in favor of
innocence?
- The Equipoise Rule is an analytical tool in order to assess the
probative value of a specific evidence. During trial, both parties
present evidence, and after the presentation of all the evidence,
the court will assess each evidence. It does not necessarily
follow that the evidence presented by the prosecution
establishes the guilt of the accused, and it does not necessarily
follow that the evidence presented by the defense establishes
the innocence of the accused. The court must make an
independent assessment of each evidence.
- Supposing that there was a total of two pieces of evidence
presented by the parties. After assessing the first piece of
evidence, the court holds that it establishes the guilt of the
accused by 80%... thus, there is a 20% leaning in favor of
innocence. The court considers the first piece of evidence as
evidence establishing the guilt of the accused. After assessing
the second piece of evidence, the court holds that it establishes
the guilt of the accused by 50%... thus, it also establishes the
innocence of the accused by 50%. Now we apply the Equipoise
Rule. The Equipoise Rule says that if that specific evidence
establishes the guilt of the accused by 50% and the innocence
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of the accused by 50%, then we apply the Equipoise Rule in
order to make that specific evidence as evidence establishing
the innocence of the accused. This is the proper application of
the Equipoise Rule.
THE RIGHT TO BE HEARD BY HIMSELF AND BY COUNSEL
The right to be assisted by counsel is MANDATORY. This is the ruling of the Supreme Court in
People v. Holgado.
- In People v. Holgado, the accused, during the arraignment, appeared without
counsel. The court asked the accused if he had a counsel or if he wanted to plead
guilty... this was the only question asked by the court, to which the accused said that
he did not have a counsel and that he was pleading guilty. The issue here is whether
there was a valid waiver of the right to counsel?
- The Supreme Court said no. In arraignment, the court has four
obligations (this is before the amendment of the Criminal Procedure). The
Supreme Court said that based on the old rules on Criminal Procedure, if
an accused appears at arraignment without counsel, the court has 4
obligations, which are:
1. To inform the defendant that it is his right to have an attorney
before being arraigned;
2. After giving such information, the court must ask him if he
desires the aid of an attorney;
3. If he so desires and is unable to employ an attorney, the court
must assign a counsel de officio to assist him; and
4. If the accused decides to procure a counsel de parte (an
attorney of his own), the court must grant him a reasonable
time therefor.
- Based on these four obligations of the court, as enumerated by the
Supreme Court in People v. Holgado, the appointment of the counsel de
officio and the grant of reasonable time to procure the services of a
counsel de parte depends on the desire of the accused. If, however, the
accused desires the services of a counsel but he cannot afford such
services, then he must be given a counsel de officio... so this implies that
if the accused does not desire to be represented by a counsel, the court is
dispensed with the obligation to appoint a counsel de officio and the
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
obligation to give him reasonable time... because he does not want to be
represented by a counsel. This is the implication of the old rules.
- Which is why, under the new rules on Criminal Procedure,
APPOINTMENT OF COUNSEL DE OFFICIO IS MANDATORY... EXCEPT only
for two circumstances. The only 2 circumstances when the court can
dispense with the appointment of a counsel de officio are:
1. When it appears before the court that the accused can
sufficiently defend himself;
- Under Section 1(c) of Rule 115, “Upon motion, the
accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can
properly protect his rights without the assistance of
counsel.”
- Which means that there may be instances when an
accused may waive his right to counsel, but the court
must assess that he has the capacity to defend
himself.
2. When the accused desires to be represented by a counsel de
parte.
- If it does not fall under any of the two circumstances when the court can
dispense with the appointment of a counsel de officio, then the court has
no choice but to make such appointment.
- In People v. Holgado, the Supreme Court said that “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
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 an
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.”
- This is why the Supreme Court said that as a general rule, the
right to counsel during arraignment is mandatory.
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- Supposing the Minutes of the trial did not reflect that the court complied with the
four-fold obligations... let’s compare this situation to Senator Trillanes... there is
nothing on record to show that he filed an application for amnesty. Supposing that
there is a Minutes of the proceeding during the amnesty application, but the
Minutes did not state that Senator Trillanes submitted his application. This is similar
to People v. Agbayani.
- In People v. Agbayani, the Minutes of the trial did not reflect that the
court informed the accused of his right to counsel, and that it had asked
the accused if he wanted to be represented by a counsel de parte or a
counsel de officio. There was nothing on record that the court complied
with its four-fold obligations.
- The Supreme Court in People v. Agbayani said that not everything needs
to be indicated in the record.... we can rely on the Presumption of
Regularity in the Performance of Official Duties. The Supreme Court said
that it is incumbent upon the accused to show that he was not accorded
his rights during arraignment. In the absence of an affirmative showing to
the contrary, the court must be presumed in matters of this kind to have
complied with the provisions of law prescribing the procedure to be
followed in the trial before it. In other words, unless the contrary appears
in the record, or that it is positively proved that the trial court failed to
inform the accused of his right to counsel, it will be presumed that the
accused was informed by the court of such right. The Supreme Court,
citing U.S. v. Labial, said that “Much must be left to intendment and
presumption, for it is often less difficult to do things correctly than to
describe them correctly.”
Is the choice by the accused of counsel during trial preferred? I ask because the term
“preferably of his own choice” does not appear in Section 14, Article III, but rather it appears
in Section 12, Article III (Custodial Investigation). Is the choice of counsel by the accused during
trial preferred over that of the court?
- The answer is yes. It is preferred but it is not exclusive.
- The case of Amion v. Judge Chiongson involved an administrative case against the
respondent judge. During the criminal proceedings of the petitioner, the petitioner
successively moved for resetting because either his counsel was not prepared, or he
changed his counsel. The petitioner kept moving for a reset until such time that the
court said enough is enough. The court said that if petitioner still did not have a
counsel then it would appoint him a counsel de officio, but the petitioner replied
that he wanted to procure his own lawyer and that he does not want to be
represented by a counsel de officio. Nevertheless, the court said that it will appoint
a counsel de officio for him for purposes of the Direct Examination, and that if the
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
petitioner still wanted to procure his own counsel, then present him during the next
hearing and he may conduct the Cross-Examination. This is the reason why
petitioner filed an administrative case against the respondent judge. According to
the petitioner, his preference is exclusive... once he said that he wanted to be
represented by his own counsel, then the court has no business in appointing him a
counsel de officio. However, the Supreme Court did not agree.
- The Supreme Court said that the right to choose one’s counsel does not exclude all
other counsels who may be competent and independent to represent the accused
during trial. The right to choose one’s counsel cannot be exercised to the extent that
it becomes arbitrary and to the extent that it will violate the rights of the other
parties to due process.
THE RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION
What are the three reasons why the accused during criminal proceedings have the right to be
informed of the nature and cause of the accusation against him?
- These three reasons were enumerated by the Supreme Court in People v.
Quitlong. In this case, the accused was charged with Murder. The criminal
information did not state that they acted in concert with one another. In short, there
was no allegation of conspiracy. But during the trial, the prosecution presented
evidence to show that the accused acted in conspiracy with one another. The issue
in this case is whether the right of the accused to be informed was violated. The
Supreme Court, citing U.S. v. Karlsen, said that there are 3 reasons why an accused
in a criminal case is entitled to be informed of the nature and cause of the accusation
against him. These three reasons are:
1. To furnish the accused with such a description of the charge against him
as will enable him to make his defense;
2. To avail himself of his conviction or acquittal for protection against a
further prosecution for the same cause; and
3. To inform the court of the facts alleged, so that it may decide whether
they are sufficient in law to support a conviction, if one should be had.
- In a criminal information, the Supreme Court said that there are minimum
allegations in order to comply with the constitutional guarantee that the accused is
accorded of his right to be informed of the nature and cause of the accusation
against him. The Supreme Court said in People v. Quitlong that in order to comply
with this constitutional mandate, a criminal information must contain the following:
1. Name of the accused;
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2. Designation given to the offense by the statute;
3. Statements of acts or omissions;
4. Name of the offended party;
5. Approximate time and date of the commission of the crime; and
6. Place of the commission of the crime.
- These are the minimum allegations. If one of these allegations is absent, then there
is a violation of the right to be informed.
- In People v. Quitlong, the charge of conspiracy must be stated or alleged in the
criminal information in order to inform the accused that he was not only being held
accountable for his own acts, but also for the acts of the other co-accused. In that
regard, in the failure of the criminal information to allege conspiracy, the court
cannot allow or admit any evidence establishing this element. Thus, the Supreme
Court disallowed the presentation of evidence by the prosecution to prove
conspiracy, because it will violate the right of the accused to be informed.
What is the relevance of arraignment to the right to be informed?
- The Supreme Court said that it is an essential element in order to accord the
accused of his right to be informed, because during arraignment, this is the first time
that the accused will be informed why the prosecutorial arms of the government
are being mobilized to convict him. Even if the criminal information is vaguely
worded, the Supreme Court said that at least he is informed, and more particularly,
this is the reason why the right to be assisted by counsel is mandatory during
arraignment because the counsel can explain to the accused the allegations in the
criminal information/complaint before he makes his plea. According to the Supreme
Court in Borja v. Mendoza, the arraignment is not a useless formality, but rather
“arraignment is an indispensable requirement in any criminal prosecution...
procedural due process demands no less.”
Ordinarily in criminal cases with deference to the right to be informed, the accused can only
be convicted of the offense charged proven during the trial. Which means that the accused
cannot be convicted of an offense charged which is not proved during the trial. Similarly, the
accused cannot be convicted of an offense proven but which is not charged. The accused can
only be convicted of the offense charged and proven during the trial... this is the general rule.
Is there any exception?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The answer is yes. Under Section 4 of Rule 120, “When there is variance between
the offense charged in the complaint or information and that proved, and the offense
as charged is included in or necessarily includes the offense proved, the accused shall
be convicted of the offense proved which is included in the offense charged, OR of
the offense charged which is included in the offense proved.”
When does the offense charged included in the offense proved, and when does the offense
charged include the offense proved?
- Under Section 5 of Rule 120, “An offense charged necessarily includes the offense
proved when some of the essential elements or ingredients of the former, as alleged
in the complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved, when the essential ingredients of the
former constitute or form part of those constituting the latter.”
- An offense charged necessarily includes the offense proved when some
of the essential elements or ingredients of the offense charged constitute
all the essential elements of the offense proved.
- Example: the offense charged is Murder, and the offense
proven is Homicide. The offense of Murder includes the offense
of Homicide. Which means that in such cases, the accused shall
be convicted only of Homicide because it is the offense proven
and included in the offense charged.
- On the other hand, an offense charged is included in the offense proved
when all the essential elements of the offense charged constitutes or
forms part of the essential elements of the offense proved.
- Example: the offense charged is Theft, and the offense proved
is Robbery. The accused can be convicted of the offense charged
which is included in the offense proved. Which means that in
such cases, the accused shall be convicted only of Theft because
it is the offense charged and all of its essential elements
constitutes or forms part of the essential elements of Robbery,
which is the offense proved.
- In summary, when there is a variance between the offense charged and the offense
proved, and the offense charged includes or is included in the offense proved, the
accused shall ALWAYS BE CONVICTED OF THE LESSER OFFENSE. It is always the lesser
offense. But the primary consideration/determination is to assess first if one is
included in the other. If one is not included in the other, say for example the offense
charged is Murder and the offense proved is Rape, the accused shall be acquitted,
because the offense of Rape is not included in the offense of Murder. This is the first
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assessment that must be done... assess first whether the two offenses includes or is
included in the other... and once it is established that one offense includes or is
included in the other, then conviction will always be on the lesser offense... so
whether it is the offense charged or the offense proved, it is always the lesser
offense.
- In this regard, in the case of Pecho v. People, the accused was only charged of
violation of Section 3(e) of R.A. 3019, which is the Anti-Graft and Corruption
Practices Law... a special law that does not punish the attempted or frustrated
stages of execution. The Supreme Court sustained the conviction of the accused for
the crime of Estafa for the falsification of official documents, because according to
the Supreme Court, Estafa is included in Sect. 3(e) of R.A. 3019. Since it is included,
then the accused can be convicted of Estafa even it was not charged in the criminal
complaint, because it is included in the offense charged.
Supposing the variance is not between the offense charged and the offense proved, but rather
between the title of the offense and the recital of the acts or omissions in the body of the
criminal information/complaint. Supposing the title of the offense charged is Violation of
Section 1(g) of R.A. 3019, but the recital of the acts or omissions in the body of the
information/complaint provides for the crime of Bribery. If the court convicts the accused of
Bribery, can the accused claim violation of his right to be informed?
- This was resolved by the Supreme Court in the case of Soriano v. Sandiganbayan.
In this case, the charge was violation of Section 3(b) of R.A. 3019. The principal issue
in this petition to review a decision of the Sandiganbayan is whether or not the
Preliminary Investigation of a criminal complaint conducted by a Fiscal is a “contract
or transaction” so as to bring it within the ambit of Section 3(b) of R.A. 3019. The
Supreme Court said that definitely Preliminary Investigation cannot be considered
as a transaction, but the actual recital of the acts constituting the offense in the
body of the complaint does not make out a violation of R.A. 3019, but rather a
violation of the RPC for Bribery. Which means that if there is a variance between the
title and the body of the criminal information/complaint, then the body of the
information/complaint would prevail without violating the right of the accused to
be informed of the cause and accusation against him. In other words, the description
in the complaint or information controls over the designation of the offense.
RIGHT TO SPEEDY TRIAL
In the case of People v. Tee, the Supreme Court, citing Andres v. Cadac, explained that “a
speedy trial means a trial conducted according to the law of criminal procedure and the rules
and regulations, free from vexatious, capricious, and oppressive delays.”
In People v. Tee, the accused is charged with the illegal possession and selling of Marijuana.
The material witness for the prosecution who was in the custody of the NBI failed to appear
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
for 20 successive hearing dates, which resulted in the cancellation of trials for a period of 2
months. The issue in this case is whether there is a violation of the right of the accused to a
speedy trial. The prosecution moved for the issuance of a Warrant of Arrest of the material
witness and 2 Warrants of Arrest were issued by the court, but still the NBI did not present
the material witness despite the issuance of the 2 Warrants of Arrest. The prosecution then
moved for the NBI agent to be cited for contempt, which the court ordered. After 20
successive hearing dates, the material witness finally appeared before the court. Under the
factual circumstances, is there a violation of the right to speedy trial? [No]
- The Supreme Court said that “The concept of speedy trail is necessarily relative. A
determination as to whether the right has been violated involves the weighing of
several factors such as the (1) length of the delay, (2) the reasons for the delay, (3)
the conduct of the prosecution and the accused, and (4) the efforts exerted by the
defendant to assert his right, as well as (5) the prejudice and damage caused to the
accused.”
- These are the factors that must be considered by the court in
determining whether there is a violation of the right to speedy trial.
- The Speedy Trial Act of 1998 provides that the trial period for criminal cases in
general shall be one hundred eighty (180) days. However, in determining the right
of an accused to speedy trial, courts should do more than a mathematical
computation of the number of postponements of the scheduled hearings of the
case. The right to a speedy trial is deemed violated only when:
1. When the proceedings are attended by vexatious, capricious, and
oppressive delays;
2. When unjustified postponements are asked for and are secured; or
3. When without cause or justifiable motive, a long period of time is
allowed to elapse without the party having his case tried.
- But what is wrong with this enumeration? The problem with these instances is that
they are too general. These 3 circumstances can only constitute a violation of the
right to speedy trial when the DELAY IS CAUSED BY THE PROSECUTION. When the
delay is caused by the accused, definitely there is no violation of the right to speedy
trial under Section 14 of Article III. In order to constitute a violation of the right to
speedy trial, the proceedings are attended by any of the 3 circumstances caused by
the prosecution.
- The Supreme Court in People v. Tee said that there was no violation of the right to
speedy trial because the delay was not attributable to the prosecution. In this case,
the prosecution exhausted all means in order to procure the attendance of the
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material witness. Which means that the right of the accused to speedy trial was not
violated at the instance of the prosecution. In that regard, the court continued with
the prosecution.
In criminal proceedings, there are specific stages, such as preliminary investigation, the filing
of the criminal complaint/information, issuance of Warrant of Arrest, arraignment, pre-trial,
trial, promulgation of judgment, and appeal. As the term implies, can we say that the right to
speedy trial only applies during the Trial Proper? Can we say that the right to speedy trial
cannot be applied to the other stages of the proceedings? [No; it only applies during the trial
stage and the proceedings anterior to the trial]
- This was answered by the Supreme Court in the case of Flores v. People. In this
case, the trial court rendered a decision. On appeal, the appellate court remanded
the case to the court of origin due to some factual insufficiencies. For a long period
of time, from the referral by the appellate court of the case to the court of origin,
there was no movement. The issue here is whether the delay by the Court of Appeals
and the delay upon the referral to the court of origin are part of the constitutional
guarantee of the right to speedy trial. The Supreme Court said no. The right to
speedy trial only applies during the trial stage and the proceedings anterior to the
trial. Which means that proceedings after the trial are no longer covered by the right
to speedy trial. The proceedings after the trial are covered by a different
constitutional guarantee under Section 16 of Article III, but not under Section 14 of
Article III. The Supreme Court said that in determining whether there is a violation
of the right to speedy trial, the delay in the appellate proceedings is irrelevant; what
is relevant is when the case is remanded to the trial court and there was no
movement for a long period of time, then it would be part of the right to speedy
trial.
- Again, the right to speedy trial applies only to the Trial Proper and all proceedings
before/anterior thereto.
- Why does the right to speedy trial apply with regards to the proceedings before
the trial?
- The Supreme Court in Flores v. People said that if the proceedings
anterior to the trail are delayed, necessarily the trial itself is likewise
delayed because the court cannot proceed with the trial without
completing the procedures prior to the trial. Thus, if the proceedings prior
to the trial are delayed, then the trial itself is delayed.
Dismissal of the case for violation of the right to speedy trial is a final decision.
What is the remedy for violation of the right to speedy trial?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- In Conde v. Rivera, the Supreme Court laid down the alternative remedies for the
violation of the right to speedy trial, which are:
1. Writ of Habeas Corpus, if the accused is detained; or
- The continued detention of an accused upon the violation of
his right to speedy trial constitutes illegal detention.
2. File a Petition for Certiorari, Prohibition, Mandamus to compel the
dismissal of the criminal complaint/information.
- The case of Conde v. Rivera involved a municipal midwife in Lucena, Tayabas, who
has been forced to respond to no less than five Informations for various crimes and
misdemeanors, has appeared with her witnesses and counsel at hearings no less
than on eight different occasions only to see the cause postponed, has twice been
required to come to the Supreme Court for protection, and now, after the passage
of more than one year from the time when the first information was filed, seems as
far away from a definite resolution of her troubles as she was originally charged.
The accused here was from the province, and she and her witnesses had to go all
the way to the trial court just to attend court hearings, only to find out that they
have been cancelled.
- In Conde v. Rivera, the Supreme Court said that the accused was “compelled to
dance attendance in court.” What does this phrase mean? The Supreme Court was
referring to the dance routine of “Cha Cha,” because she was going back to and fro
the court and the province. The Supreme Court said that she should not be made to
dance attendance in court, and that the accused from her humble position is
entitled to the right of speedy trial. The inordinate delay caused by the prosecution
in conducting the trial is a violation of the right to speedy trial, and is a ground to a
final dismissal of the case.
- Why is the dismissal of the case due to the violation of the right to speedy trial a
final decision, and why is it compared to a dismissal due to Demurrer to Evidence?
- In Demurrer to Evidence (Section 23, Rule 119), the Demurrer to
Evidence is granted upon the resting of the presentation of evidence by
the prosecution, and if the evidence is not sufficient to establish the guilt
of the accused beyond reasonable doubt, then the case must be
dismissed. The dismissal of the case due to Demurrer to Evidence is an
acquittal because it is based on the merits of the case. Why is the dismissal
based on the violation of the right to speedy trial likewise considered as
an acquittal?
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- The dismissal based on the violation of the right to speedy trial
is likewise considered as an acquittal since, according to the
Supreme Court, the only reason why the prosecution will delay
the presentation of evidence is because they do not have any
evidence at all. Since they have no evidence, then dismissal of
the case due to violation of the right to speedy trial is also based
on the merits... only by presumption.
RIGHT TO IMPARTIAL TRIAL
In criminal cases, the accused is entitled to no less than the cold neutrality of an impartial
judge.
In the case of Mateo, Jr. v. Villaluz, the trial judge hearing the case administered the oath of
a witness. There was a witness for the prosecution, and the witness subscribed his oath before
the presiding trial judge. During the trial, the witness recanted his testimony. According to the
witness, he was only forced to sign the affidavit. The issue in this case is what is the effect of
the recantation on the authority of the judge to continue to hear the case, because under the
Rules of Court, there are only several instances when trial court judges are required to
inhibit... one is the relationship of the trial court judge with one of the parties... second is
previous participation... third is pecuniary interest. In the case of Mateo, Jr. v. Villaluz, the
factual circumstances of the case are not one of those instances enumerated by the Rules of
Court when the judge is required to inhibit.
- The Supreme Court, citing Justice Dizon, held “It has been said, in fact, that due
process of law requires a hearing before an impartial and disinterested tribunal, and
that every litigant is entitled to nothing less than the cold neutrality of an impartial
judge.” The Supreme Court said that an impartial judge “at all times manifest depth
commitment and concern to the cause of justice according to legal norms, a cerebral
man who deliberately holds in check the tug and pull of purely personal preferences
and prejudices which he shares with the rest of his fellow mortals.” This is how the
Supreme Court defined an impartial judge, as distinguished from a jury.
- The Supreme Court said that judges should refrain from notarizing documents,
because when the witness testified that he was forced to sign the document, that
makes the attestation of the judge false. Notarization does not validate the
allegations, but rather it only signifies that the document was signed by the person
whose name is indicated therein... that it was voluntarily signed... this is the
relevance of notarization. When the witness said that he was forced to sign that
document, this means that there were only two possibilities... either the judge is
lying, or he exerted coercion. In either case, the judge should inhibit himself
because, as the Supreme Court said, a judge has both the duty to render a just
decision, and the duty of rendering it in such a manner as to be free from any
suspicion.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- “A judge should not only be impartial, but also appear to be impartial.” Even if the
judge renders a decision strictly based on the merits of the case, but one of the
litigants frequently visits and socializes with the judge, the other party might harbor
a suspicion that the reason why the judge rendered the decision is because he was
close with the winning litigant. The Supreme Court cautioned that judges should
remove any and all semblance of partiality.
Let’s now differentiate a judge in our judicial system and a jury. In People v. Teehankee, this
was the case involving Claudio Teehankee, the son of Chief Justice Teehankee... so it was a
very controversial case back then in the 90s. During the trial, no less than President Corazon
Aquino visited the victim, Maureen Hultman, at the hospital. There were several protests
against the accused. According to the accused, the pervasive publicity of his trial was
prejudicial... so he was invoking the Doctrine of Prejudicial Publicity.
- The Doctrine of Prejudicial Publicity is relevant to the right to an impartial trial,
because in a prejudicial publicity, it presupposes that the judge is influenced in
rendering his decision because of the pervasive publicity.
- The Supreme Court in this case said that “pervasive publicity is not per se
prejudicial to the right of an accused to a fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does
not by itself prove that the publicity so permeated the mind of the trial
judge and impaired his impartiality. For one, it is impossible to seal the
minds of members of the bench from pre-trial and other off-court publicity
of sensational criminal cases. The state of the art of our communication
system brings news as they happen straight to our breakfast tables and
right to our bedrooms. These news form part of our everyday menu of the
facts and fictions of life. For another, our idea of a fair and impartial judge
is not that of a hermit who is out of touch with the world. We have not
installed the jury system whose members are overly protected from
publicity lest they lose their impartiality. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances
of parties to a litigation. Their mere exposure to publications and publicity
stunts does not per se fatally infect their impartiality.”
- The Supreme Court compared a judge to a jury. Unlike a jury, judges are learned in
the science of law... unlike a jury, judges can filter what passes as evidence and what
only constitutes as hearsay... in that regard, judges are not required to be isolated...
unlike jurists. The Supreme Court said that the idea of an impartial judge is not like
that of a hermit who is detached from the realities of the world. It is impossible,
according to the Supreme Court, to seal the minds of the judges... they are exposed
to influences, but we can rest assured that they know what an admissible evidence
is and what is hearsay. The Supreme Court cited the protestation of Mark Twain in
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People v. Teehankee, which holds that “In this age, when a gentleman of high social
standing, intelligence and probity, swears that testimony given under solemn oath
will outweigh, with him, street talk and newspaper reports based upon mere
hearsay, he is worth as hundred jurymen who will swear to their own ignorance and
stupidity, and justice would be far safer in his hands than in theirs. Why could not
the jury law be so altered as to give men of brains and honesty an equal chance with
fools and miscreants?” So according to Mark Twain, it is very dangerous to place the
liberty and property of an individual in the hands of persons who do not know the
law.
- This is the difference between a jury system and our legal judicial system. In our
legal system, judges are learned in the science of the law. Therefore, even if there
is a pervasive publicity, that does not necessarily mean prejudicial publicity, nor
does it necessarily mean that the judge is no longer impartial. The Supreme Court
applied a standard of evidence in determining whether the pervasive publicity
constitutes prejudicial publicity... or in short, when there is a violation to the right
of impartial trial... the Supreme Court applied the TOTALITY OF CIRCUMSTANCES
TEST.
- Under the Totality of Circumstances Test, the person invoking the right
to an impartial trial must show the actual prejudice... the person invoking
the right must show by direct evidence that the judge was indeed
influenced by the publicity.
RIGHT TO PUBLIC TRIAL
In addition to the right to speedy and impartial trial, trial must also be public.
In the case of Garcia v. Domingo, the Supreme Court said that the objective of public trial is
“to offset any danger of conducting it in an illegal and unjust manner.” The purpose of this
guarantee is to serve “as a safeguard against any attempt to employ our courts as instruments
of persecution. The knowledge that every criminal trial is subject to contemporaneous review
in the form of public opinion is an effective restraint on possible abuse of judicial power.” The
right to public trial is a guard against arbitrariness.
In Garcia v. Domingo, during this time, proceedings for motions were conducted on
Saturdays... Saturdays were motion days. There was only one case on the calendar, and during
the hearing of the motion, the judge asked the parties if they can conduct the proceedings in
his chamber because it was very hot and his chamber was air conditioned, to which the parties
acceded. The issue here is does this situation not violate the right to a public trial of the
accused.
- The Supreme Court said that trial is public when anyone who wants to observe
how the judge conducts his proceedings in the courtroom can do so without any
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
qualification; there is to be no bar on the attendance, and the fact that he is not
related to any of the parties will not be a basis to disqualify such person to attend
the proceedings. The Supreme Court said that trial is public when the friends, the
council, and the family members of the parties can attend the proceedings. But of
course, the Supreme Court recognized the reality that courtrooms can only
accommodate so much... that the number of persons who may be accommodated
will be limited only to the capacity of the courtroom.
- The Supreme Court said that the mere fact that the proceedings were held inside
the judge’s chamber did not mean that it was already a private proceeding, because
there was no one barred or prevented from attending the proceedings, only that
the chambers could only accommodate a limited number of people. In that regard,
the Supreme Court said it is still a public trial.
Is public trial the same as publicized trial?
- In the cases of In re: Request for Live Radio and TV Coverage of the Trial in the
Sandiganbayan of the Plunder Cases against Former President Joseph Estrada and
In re: Petition for Radio and Television Coverage of the Multiple Murder Cases
Against Maguindanao Governor Zaldy Ampatuan, et al., the Supreme Court
discussed the validity of audio-visual recording of court proceedings.
- Particularly In re: Petition for Radio and Television Coverage of the
Multiple Murder Cases Against Maguindanao Governor Zaldy
Ampatuan, et al., the Supreme Court discussed the evolution of the
position of the Court in audio-visual recordings from Aquino to Estrada
and then to Ampatuan.
- Aquino involves the Libel case in Soliven v. Makasiar... here,
there was also a request for audio-visual recording of the trial
proceedings in the Libel criminal case of President Aquino vs.
Soliven, et al... but it was denied because the Supreme Court
said that there was outright prohibition of recording. The basis
of this ruling, according to the Supreme Court, is that court
proceedings are not for entertainment, so therefore, there
should not be any recording at all. Thus, there was an absolute
ban of audio-visual recording in the Aquino case.
- But then the Supreme Court said that there was a glimmer of
hope in the Estrada case. The Supreme Court allowed audio-
visual recordings for documentation purposes... not for live
airing, but only for documentation purposes.
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- Then now comes the Ampatuan case... the Supreme Court said
that regulation should be implemented, not restriction. There
should be a balance between the interest of the accused to have
an impartial trial and the right of the public to information. So
initially, the Supreme Court allowed live TV and radio coverage
of the proceeding under strict regulations... the recording or the
publication must be from start to finish without any
annotations. Once a network started, it must finish the airing.
Initially, the Supreme Court allowed the live TV and Radio
coverage of the Ampatuan proceedings. But in the Resolution of
the Motion for Reconsideration, the Supreme Court modified its
Decision. Instead of live TV and Radio coverage, the Supreme
Court only allowed live streaming of the proceedings inside the
premises... meaning, only those within the premises can see the
proceedings inside the courtroom, and not those within the
comfort of their own living rooms. The Supreme Court
considered the special factual circumstances of the case. The
ruling in the Ampatuan case is only a Pro Hac Vice decision...
meaning, it cannot be applied as a judicial precedent for future
cases. The Supreme Court said that the factual circumstances of
the proceedings impels the Court to allow a live video streaming
because there were 57 victims, 197 accused, and both sides
have listed 200 witnesses each, plus their families and the rest
of the public... thus, no courtroom can accommodate all these
people. This is the reason why the Supreme Court allowed a live
video streaming in order to accommodate persons who may
want to observe the proceedings.
The right to public trial is a right that belongs to the accused, and as we said earlier, Section
14 of Article III can only be invoked by an accused. Supposing the accused wants to have a
private trial. Supposing the accused wants to waive his right to a public trial, can there be a
private trial instead? Can the prosecution object? Can the prosecution demand a public trial?
- The answer is no. While the right to a public trial is a right of the accused, the
prosecution also has a right to a public trial not under Section 14, but under Section
1 of Article III. This is because the right to public trial is a guard against arbitrariness.
The prosecution also has a right against arbitrariness, only that they do not have a
right under Section 14, but they have a right under Section 1. This is also the reason
why bail in Extradition and other Non-Criminal Proceedings may be granted not
under Section 14, but rather under Section 1 of Article III.
RIGHT OF CONFRONTATION
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
In the case of U.S. v. Javier, this is an old case but it is still relevant today. This is case involves
anti-cattle rustling. The accused was apprehended by police officer Presca. Upon the arrest of
the accused, police officer Presca executed an affidavit narrating how the arrest was effected.
But unfortunately, police officer Presca died prior to his presentation as a witness. The issue
is whether the affidavit executed by sergeant Presca prior to his death may be admitted in
evidence.
- The Supreme Court said no, because one of the constitutional rights of the accused
is the right to confront any witness that may presented against him. The
Constitution disallows ex parte affidavits. There are two reasons why right to
confrontation is essential... the Supreme Court said that the right to confrontation
is necessary because:
1. Cross-examination is necessary; and
- Which means that the Constitution accords the accused his
right to confrontation to accord him his right to cross-
examination.
2. In order to allow the judge to observe the deportment of the witness
during the presentation of the witness.
- The judge may determine whether the witness is lying or telling
the truth, and this can only be done during the presentation of
the witness.
In our legal system, an accused can only be hailed to court by persons who can meet them
face to face. The Supreme Court in Talino v. Sandiganbayan said that “No accusation is
permitted to be made against his back or in his absence nor is any derogatory information
accepted if it is made anonymously, as in poison pen letters sent by persons who cannot stand
by their libels and must shroud their spite in secrecy.” Under the Constitution, the accused
must be able to confront the witnesses.
Supposing that there is a case involving several co-accused. Say for example, there is a Murder
case and there are several co-accused. All the accused demanded separate trials, which the
trial court granted. May the testimony of a witness in the trial of accused #1 be admitted in
evidence in the cases of accused #2 and #3 even without presenting again the person as
witness in their respective trials? [No]
- This is the issue in Talino v. Sandiganbayan. The Supreme Court said no. All the
accused in these cases should be given the opportunity to exercise their right to
confrontation. So, the testimony of one witness in case #1 is not admissible in cases
#2 and #3 unless the witness is again presented in their respective cases.
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- But is there an exception to the general rule that the testimony of a witness given
in one case cannot be admitted in evidence in other cases without presenting again
the witness to the witness stand?
- Yes. The exception is under Section 1(f) of Rule 115. Under Section 1(f)
of Rule 115, if there are several cases between the same parties and the
same subject matter, and the witness is presented by a party in one case,
the testimony of that witness in one case can be admitted in evidence in
other cases, provided that the parties are the same and that the person
was able to exercise his right to cross-examination in the first case.
- Supposing A filed two cases against B... the two cases arose
from the issuance of a check which, when presented for
payment, was dishonored by the drawee bank... and the
issuance of the check was for a consideration of goods and
services... A (the payee) filed a criminal complaint for violation
of BP 22 and Estafa against B. Supposing in the BP 22 case, A
presented the Bank Manager C in order to prove that the owner
of the check is B and that the bank account of B was already
closed when the check was issued. Bank Manager C was
presented in the BP 22 case... and in the BP 22 case, B cross-
examined Bank Manager C. In the Estafa case, the testimony of
Bank Manager C in BP 22 case may be admitted in evidence in
the Estafa Case even without presenting Bank Manager C again
IF, even despite the exercise of due diligence, he can no longer
be located or is already outside the country, he is already dead,
or is otherwise unable to testify. Which means that the fact of
the ownership of the bank account testified to by Bank Manager
C in the BP 22 case can be admitted in evidence in the Estafa
case even if C was not able to be presented in that case. This is
the application of Section 1(f) of Rule 115 of the Rules of Court.
COMPULSORY PROCESSES
There are two compulsory processes allowed under the Rules of Court, which are:
1. Subpoena Duces Tecum; and
2. Subpoena Ad Testificandum.
Under Section 1 of Rule 21, a “Subpoena is a process directed to a person requiring him to
attend and to testify at the hearing or the trial of an action, or at any investigation conducted
by competent authority, or for the taking of his deposition. It may also require him to bring
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019

with him any books, documents, or other things under his control, in which case it is called a gravamen of BP 22 is only the issuance of a
subpoena duces tecum.” worthless check, then the records sought to
be presented do not have any bearing at all
- Subpoena is a Latin term which literally means “under the pain of penalty.” to the guilt or innocence of the accused. This
is the reason why the Supreme Court
The term Subpoena Duces Tecum is incomplete, because the complete process is Subpoena concluded that the only reason why the
Duces Tecum Et Ad Testificandum. There can be no Subpoena to be issued nor any compulsory accused wanted to procure the records of
process which will only require the production of documents. The production of documents the complainant corporation is to fish for
requires the obligation on the part of the custodian to testify... which means that in a evidence that he can use against the
Subpoena Duces Tecum, the custodian must likewise be presented in court to testify regarding complainant corporation. The Supreme
the authenticity and identification of the documents sought to be presented. This is why a Court disallowed the issuance of the
Subpoena Duces Tecum cannot be issued without a corresponding Ad Testificandum. On the subpoena.
other hand, a Subpoena Ad Testificandum can be issued independently of a Subpoena Duces
Tecum. 2. Such books and documents must be reasonably and particularly
described by the parties to be readily identified (TEST OF DEFINITENESS).
In the case of Roco v. Contreras, the Supreme Court enumerated two tests that must be
applied by the courts in determining the propriety of the issuance of a subpoena. - This is in order that the custodian of these documents may
know or may identify the things that he has to bring to court.
- In this case, this only involves a BP 22 case. During the trial, the accused moved for
the issuance of a Subpoena Duces Tecum and Ad Testificandum for the production TRIAL IN ABSENTIA
of the ledgers and books of accounts of the complainant corporation. The Supreme
Court said that in order to determine whether the request is appropriate, the Test We said earlier that trial in absentia is not a right of the accused. This is certainly so because
of Relevancy and Definiteness must be complied with. Before a subpoena may be it is the waiver of the accused to be present during the trial. Trial in absentia can only be done
issued, the court must first be satisfied that the following requisites are present: when the accused has already been arraigned. After arraignment, if the accused failed to
appear during trial to which he was notified, and his failure to appear is unjustifiable, then
1. The books, documents, or other things requested must appear prima there will be a trial in absentia.
facie relevant to the issue subject of the controversy (TEST OF
RELEVANCY); and The three elements of trial in absentia are:

- How do we determine whether a document or the object
sought to be produced by the subpoena is relevant?
- The Supreme Court said that an evidence is relevant
when it can establish either the guilt or innocence of
the accused.
- If the evidence or object sought to be procured
cannot establish or is not necessary to establish either
the guilt or innocence of the accused, then such is not
a relevant evidence or object.
- In the case of Roco v. Contreras, the
Supreme Court said that since the
proceedings only involved BP 22, and the
1. Accused has been validly arraigned;
2. Accused has been duly notified of the dates of hearing; and
3. The failure to appear thereat is unjustifiable.
What is the effect of a trial in absentia? As we said earlier there are multiple stages of a
criminal proceeding — there is a preliminary investigation, the filing of a criminal
information/complaint, the issuance of a Warrant of Arrest, arraignment, pre-trial, trial
proper, and appeal. Can we say that as the term implies, trial in absentia only applies during
trial? Which means that trial shall only proceed in the absence of the accused, but the other
stages of the proceedings will be deferred?
- This is the issue in the case of People v. Mapalao. This case involves Murder, and
the victim here was suspected of being a witch. After the arraignment and during

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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
the trial, the accused escaped. The judge allowed trial in absentia to proceed. But
after the conclusion of the trial, the judge refused to promulgate the decision. The
judge said that he could not promulgate the decision because decisions can only be
promulgated in the presence of the accused. The judge said that there are three
instances when the presence of the accused is mandatory.
- The presence of the accused is mandatory in the following instances:
1. During arraignment and plea;
2. During trial for identification, unless the accused has already stipulated
on his identity during the pre-trial and that he is the one who will be
identified by the witnesses as the accused in the criminal case; and
3. During promulgation of sentence, unless for a light offense.
- According to the judge, since the accused was not present, he will not promulgate
any judgement. But the Supreme Court said no. The Supreme Court said that if the
accused has been tried in absentia, the court can render and promulgate a decision
even in his absence. Trial in absentia presupposes that the accused has waived his
right to be present during trial, and if such waiver continues up to the promulgation
of judgment, then the waiver also applies during the promulgation of judgment.
- How may a judge promulgate a judgment in the absence of the accused? I ask
because in criminal cases, promulgation of judgment means that the judge will read
the decision in the presence of the accused. So, how can the judge promulgate a
judgment in the absence of the accused?
- The Supreme Court pointed out in People v. Mapalao that the court will
record the judgment in the criminal court docket, and then send a copy of
the judgment to the last known address of the accused or his counsel. In
that regard, the judgment is already promulgated.
Aside from the right to be present during the trial, what are the other rights waived by the
accused in trial in absentia? I ask because if the accused fails to appear at the trial despite due
notice and without justification, the accused is deemed to have waived his right to be present
during the trial. So, may an accused who is tried in absentia still exercise his right to be
represented by counsel? Can the accused say that what is only waived in trial in absentia is his
right to be present, but his right to be represented by counsel still continues?
- The answer is no. The right to counsel is derived from the right of the accused, and
if the accused has no right to be present during the trial, then he cannot be
represented by any person even by his counsel.
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- An accused who is tried in absentia has waived his right to be present, as well as
his right to be represented by counsel, and in the same manner, he waives his right
to cross-examine the witnesses of the prosecution, his right to present evidence,
and his right to appeal. These are the rights waived by the accused when he has
waived his right to be present during the trial.
- The case of People v. Valeriano involves a Robbery case in Benguet. During the
trial, one of the accused committed suicide and the other co-accused escaped from
detention. The Supreme Court ruled in this case that a judgment of conviction
rendered after the accused is tried in absentia cannot be appealed by the accused
UNTIL he is again arrested, or he voluntarily surrenders within the reglementary
period for perfecting an appeal. In this case, the accused was not arrested again, nor
did he voluntarily surrender within the reglementary period, thus, the accused could
no longer appeal.
- An accused who has been tried in absentia loses his legal standing and,
therefore, he cannot appeal the decision of the trial court.
SECTION 15, ARTICLE III — SUSPENSION OF THE PRIVILEGE OF THE WRIT OF
HABEAS CORPUS
Does the Constitution allow the suspension of the writ of habeas corpus?
- No, the Constitution does not allow the suspension of the writ; the Constitution
only allows the suspension of the privilege of the writ. There is a difference between
the privilege of the writ of habeas corpus and the writ of habeas corpus itself.
What does habeas corpus mean?
- The term “habeas corpus” literally means “have the body.” This is the reason why
in a writ of habeas corpus, the person who is in custody of the prisoner would be
required to produce the body of the prisoner at the given time and place with an
explanation of the time and the cause of arrest or detention, and to further explain
whatever the court may require of him. This is a writ of habeas corpus.
What is the difference between a writ of habeas corpus and the privilege of the writ of habeas
corpus?
- A WRIT OF HABEAS CORPUS is a high prerogative writ, the objective of which is to
inquire into the legality of the arrest or the detention. This is the only object of the
writ of habeas corpus — to inquire whether the detention or arrest of a person is
legal.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- The PRIVILEGE OF THE WRIT OF HABEAS CORPUS, on the other hand, is an order of
the court to release the person who is unduly or illegally detained. This is the reason
why what can only be suspended is the privilege of securing the liberty of a person
who is illegally detained when the privilege of the writ of habeas corpus is
suspended, but the writ itself is not. Even when the privilege of the writ of habeas
corpus is suspended, a petition for a writ of habeas corpus may still be filed, only
that when the return of the petition for a writ of habeas corpus shows that the
petitioner whose liberty is being sought is being detained for rebellion or offenses
inherent in or directly connected with invasion, then the court will defer or dismiss
the petition since the suspension is applicable in these offenses.
What are the bases for a valid suspension of the privilege?
- Section 15 of Article III and Section 18 of Article VII explicitly provide that the
privilege of the writ of habeas corpus can only be suspended in cases of invasion or
rebellion when the public safety requires it.
- Do not be mistaken that there are three grounds for a valid suspension a privilege
of the writ of habeas corpus. Do not say that the valid bases for the suspension are
invasion, rebellion, or when public safety requires it. The phrase “…when public
safety requires it” qualifies both invasion and rebellion.
- To be specific, the two grounds for a valid suspension for the writ of habeas corpus
are (1) in cases of invasion when public safety requires it, and (2) in cases of rebellion
when public safety requires it. Both grounds must be qualified by the phrase when
public safety requires it.
Who has the authority the suspend the privilege of the writ of habeas corpus?
- The authority to suspend the privilege of the writ of habeas corpus is one of the
military powers of the President under Section 18 of Article VII. Thus, it is the
President who has the power to suspend the privilege of the writ of habeas corpus.
- For how long can the President suspend it?
- He can only suspend it for a period not exceeding 60 days.
Take note that any discussion on the suspension of the privilege of the writ of habeas corpus
also applies to martial law because the grounds and the obligation of the President are the
same.
Let’s discuss the cases of Lagman v. Medialdea together with Lagman v. Pimentel, and Padilla
v. Congress. These are the three most recent cases dealing with the proclamation of martial
law and the suspension of the privilege of the writ of habeas corpus in the whole Mindanao.
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The factual circumstances of these cases are the same. In these cases, President Duterte
issued a proclamation placing the entire Mindanao under martial law and suspending the
privilege of the right of habeas corpus therein.
- Regarding the requirement of conformity by the Congress, the Supreme Court
discussed in the cases of Lagman v. Medialdea and Lagman v. Pimentel that the
proclamation of martial law and the suspension of the privilege of the writ of habeas
corpus by the President do not need the confirmation by the Congress. The Supreme
Court said that while the 1987 Constitution sought to restrict the authority of the
President in exercising his authority to declare martial law and to suspend the
privilege of the writ of habeas corpus, the Supreme Court noted that the members
of the Constitutional Commission sought to balance the interest of the people
during these extraordinary circumstances and the authority of the President in
order to restore peace and order. The Supreme Court said under the 1987
Constitution, the President can no longer suspend the privilege of the writ of habeas
corpus or proclaim martial law when there is no actual invasion or no actual
rebellion because, unlike the 1973 Constitution, imminent threat of invasion or
imminent threat of rebellion is not enough. Under the 1987 Constitution, the
Constitution requires actual invasion, actual rebellion and that public safety requires
it. The Supreme Court said that in the deliberations of the Constitutional
Commission, it was made explicit that the initial proclamation of martial law and
suspension of the privilege of the writ of habeas corpus is an exclusive prerogative
of the President. Of course it can be challenged, but it does not require conformity
of any of the departments, whether the Congress or the Supreme Court, for its
implementation because once the President suspends the privilege of the writ of
habeas corpus or proclaims martial law, it is effective without any approval on the
part of the Congress. The approval of the Congress is only required when the initial
proclamation of the President of martial law or the suspension of the privilege of
the writ of habeas corpus is sought to be extended.
- We said earlier that the maximum period for which the President can suspend the
privilege of the writ of habeas corpus or declare a state martial law is 60 days, and
this initial proclamation does not require the conformity of the Congress.
- Supposing the President suspends the privilege of the writ of habeas
corpus because of invasion and public safety requires it, and he suspends
it only for 30 days. Supposing that on the 30th day, the President still thinks
there is a need to keep the privilege of the writ of habeas corpus
suspended. Can the President extend the suspension another 30 days to
exhaust the maximum 60-day period allowed by the Constitution? Can the
President say that since he is given the authority to suspend it for a period
not exceeding 60 days, and that since he only used the first half, he does
not need the approval of the Congress to suspend it for the remaining half
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
because the suspension would still be within the maximum period
provided by the Constitution?
- No. Once the President suspends the privilege of the writ of
habeas corpus even for a period less than the maximum 60-day
period, any further extension of such period requires the
consent of the Congress.
- In the case of Padilla v. Congress the issue here is the obligation of the Congress
to meet in session upon the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus because under the second paragraph of
Section 18 of Article VII it is expressly provided “The Congress, if not in session, shall,
within twenty-four hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.”. According to the petitioner, this
constitutional provision mandates that upon the proclamation of martial law or
upon the suspension of the privilege of the writ of habeas corpus, the Congress shall
hold a session to determine the factual basis of the suspension or proclamation.
Was the petitioner correct?
- No. The Supreme Court said that the term “convene” is different from
holding a session. The term “convene” under Paragraph 2, Section 18 of
Article VII only applies when the Congress is in recess. If the Congress is in
recess, upon the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the Congress is required to convene
but it not required to hold a session. What is only required is that it shall
convene. This is in line with the obligation of the President to submit the
report within 48 hours, so that when the President submits the report
within 48 hours from the suspension or the proclamation of martial law,
the Congress can receive it. If the Congress is not in session, the
transmittal cannot be accepted by the Congress since it is in recess and,
hence, the need for Paragraph 2, Section 18 of Article VII.
- Another issue in Padilla v. Congress is the requirement to meet in session in cases
when the Congress does not intend to revoke the proclamation of martial law or the
suspension of the privilege because according to the Constitution, “The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not be
set aside by the President.” The position of the petitioner is that even if the Congress
does not intend to revoke the proclamation or suspension, the Congress must still
hold session to determine the factual basis of the suspension of the privilege of
habeas corpus or the proclamation of martial law.
- The Supreme Court did not agree. The Congress is only required to meet
in session to determine the factual basis for the proclamation of martial
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law or the suspension of the writ of habeas corpus if it intends to revoke
the suspension or the proclamation, but not when it does not intend to
revoke the proclamation or suspension.
- In the cases of Lagman v. Medialdea and Lagman v. Pimentel, Padilla v.
Congress, immediately upon the issuance of the proclamation of martial
law, both houses of Congress independently issued a Resolution
manifesting their support of the decision of the President to proclaim
martial law and to suspend the privilege of the writ of habeas corpus. The
Supreme Court said that the since Congress already manifested their
intention not to revoke the suspension then there is no need to meet.
- The Supreme Court in the case of Lagman v. Medialdea laid down the standard of
evidence that must be applied by the President in determining whether to proclaim
martial law or to suspend the privilege of the writ of habeas corpus.
- Take note that while the powers granted to the President under Section
18 of Article VII are presented in such a way that it starts from the most
benign to the least benign, the Supreme Court held that there is nothing
in the Constitution that requires the President to respect the order in the
exercise of his military powers, and that he does not need to start from
the calling out power and then up to martial law. The Supreme Court said
that he has the choice to determine whether to proclaim martial law even
without suspending the privilege of the writ of habeas corpus or even
without exercising his calling out power. The Supreme Court said that the
President cannot be restricted in the exercise of his military powers. He
can exercise any of his military powers based on his discretion, and not in
succession.
- The Supreme Court said that in determining whether there is invasion or
rebellion and public safety requires it, the standard to be applied by the
president should only PROBABLE CAUSE. This is the standard to be applied
by the President to determine whether there is invasion or rebellion, and
whether public safety requires it.
- In reviewing the sufficiency of the factual basis of the suspension of the
privilege of the writ of habeas corpus or the proclamation of martial law,
the Supreme Court said that the only authority of the courts of justice,
particularly the Supreme Court, is to determine the sufficiency of the
factual basis as presented by the President. The Supreme Court cannot
determine the accuracy or veracity of the statements. In Lagman v.
Medialdea, the petitioners were saying that the statements of the
President in the “Whereas Clauses” as well as in the Report to the
Congress were based on false statements. The Supreme Court said that
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
we cannot determine the accuracy; we are only here to determine the
sufficiency, and not the accuracy. So, even if the statements are wrong,
the Supreme Court must determine the sufficiency based on those
statements because the authority of the Supreme Court in determining
the sufficiency the factual basis of proclamation of martial law or
suspension of the privilege of the writ of habeas corpus shall only be based
on the factual circumstances at the time of the proclamation and
suspension and those before it. Events happening after the proclamation
and events happening after the suspension are no longer within the
competence of the courts of justice to consider in determining the
sufficiency of the factual basis of the proclamation or the suspension.
Which means that even if the statements of the President in the
proclamation prove to be false later on because of the confirmation, that
is no longer relevant insofar as the power of the Supreme Court to
determine the sufficiency of the factual basis.
- In the case of Lagman v. Pimentel the issue here is the authority of the President
to seek extension because according to petitioner Lagman, the President can only
ask for one extension. Remember in 2017, the proclamation of martial law expired
in July and it was extended by the Congress from July to December 2017, and then
again from January to December 2018. According to petitioner Lagman, the
extension can only be made once. Was his contention correct?
- The Supreme Court said no. The Constitution does not prohibit
extensions. There is nothing in the Constitution that says that the
President can only seek one extension. The only requirement for an
extension is that rebellion or invasion must persist, and public safety
requires it. As long as these two conditions are present, the President can
ask for successive extensions.
- Another point raised by petitioner Lagman was that since the President
is only allowed 60 days for an initial proclamation of martial law or
suspension of the privilege of the writ of habeas corpus, extension of the
suspension or proclamation should only be for the same period. According
to him, an extension of 1 year would be too much since what is provided
by the Constitution is only a period not exceeding 60 days.
- The Supreme Court said no. The Constitution is very clear. The
Constitution says “…extend such proclamation or suspension for
a period to be determined by the Congress.” Thus, the period of
extension is within the discretion of Congress.
- Supposing the Congress did not revoke the suspension of the privilege of the writ
of habeas corpus or the proclamation of martial law and instead, the Congress
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confirms the existence of rebellion and invasion, and that public safety requires the
suspension of the privilege and the proclamation of martial law. Can the Supreme
Court Revoke that determination? Supposing the President submits the Report to
Congress and the Congress confirms and says that based on the report of the
President, we in the Senate and the House of Representative confirm the existence
of rebellion; we in the Senate and in the House of Representative confirm that there
is a need to suspend the privilege and proclaim martial law. Can the Supreme Court
revoke the proclamation or revoke that confirmation made by two coordinate
bodies?
- Yes. Under Paragraph 3, Section 18 of Article VII, “The Supreme Court
may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty days from
its filing”
- Under Paragraph 3, Section 18 of Article VII, the Supreme Court can
review the sufficiency of the factual basis, not only of the President in
proclaiming or suspending the privilege of the writ of habeas corpus, but
as well as the factual basis as confirmed by the Congress in extending or
not revoking it. Thus, the Supreme Court can overrule the confirmation
made by the Congress.
- But can the Congress overrule the finding of the Supreme Court? Supposing the
President submits a report to the Congress and then Congress confirms the
existence of rebellion/invasion and that public safety requires it. However, when a
question was filed with the Supreme Court, the Supreme Court determined that
there was no rebellion/invasion, and that public safety does not require it. Hence,
the Supreme Court said that martial law and the suspension of the privilege should
be lifted. Can the Congress overturn that?
- Yes. Congress can overturn it on the basis of facts subsequent to that
declaration by the Supreme Court. This is the ruling in the case of Lagman
v. Pimentel. The Supreme Court said that definitely the Supreme Court
can overrule the confirmation of the sufficiency of the factual basis as
determined by the Congress. But, again, take note that the authority of
the Supreme Court in determining the sufficiency the factual basis of
proclamation of martial law or suspension of the privilege of the writ of
habeas corpus shall only be based on the factual circumstances at the time
of the proclamation and suspension and those before it. Which means,
there may be supervening events after that that can support a finding of
invasion or rebellion and the requirement of public safety which is within
the power of the Congress. Therefore, even if the Supreme Court
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determined that there is no invasion and public safety does not require it,
this determination is only valid up to the time the proclamation was made,
but supervening events can be used by Congress to overrule the decision
of the Supreme Court.
- In the case of Lagman v. Medialdea the Supreme Court discussed the nature of the
power of the Supreme Court in reviewing the sufficiency of the factual basis of the
proclamation of martial law, suspension of the privilege, and any extension thereof.
In this case, the position of the Solicitor General was that the petition to be filed
before the Supreme Court must be in accordance with Rule 65 of the Rules of Court
considering the Constitution only says “…in an appropriate proceeding file…” Was
the Solicitor General correct?
- The Supreme Court said no, the Constitution itself provides for the
process. The Supreme Court said that jurisdiction and remedies are
provided for either by law, by the Rules of Court, or by the Constitution.
So, that provision, particularly Paragraph 3, Section 18 of Article VII,
provides for its own specific remedy; the Constitution says “in an
appropriate proceeding filed by any citizen,” and any petition questioning
the sufficiency of the factual basis of the proclamation of martial law, or
of the suspension of the privilege of the writ of habeas corpus, or of any
extension thereof can be filed by any citizen, while under Rule 65, the
petition can only be filed by a “proper party,” and a proper party under
the Rules of Court is any person who has suffered or is in danger of
suffering a prejudice. Under the Constitution, however, even if the citizen
has not suffered any prejudice, he can file a petition questioning the
sufficiency of the factual basis of the proclamation of martial law, or the
suspension of the privilege, or any extension thereof.
We now go to the other points on habeas corpus.
The privilege of the writ of habeas corpus seeks to relieve a person illegally detained of the
detention and to secure his liberty. Under the Constitution the President can only suspend the
privilege of the writ of habeas corpus, together with the other military powers. We have
learned in various cases, particularly in Secretary of National Defense v. Manalo, that aside
from the writ of habeas corpus, there are other remedies under the Rules of Court whose
object is to secure the liberty of a person who is illegally detained. Specifically, we have the
WRIT OF AMPARO.
- In the case of Secretary of National Defense v. Manalo, the Supreme court
enumerated five types of amparo cases. The five amparo cases according to the
Supreme Court, as it was in Mexico from which the writ of amparo was copied from,
include:
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1. AMPARO LIBERTAD, which is for the protection of personal freedom,
and this is equivalent to our writ of habeas corpus;
2. AMPARO CONTRA LEYES, which is the judicial review of the
constitutionality of laws;
3. AMPARO CASACION, which is the judicial review of the constitutionality
and legality of judicial decisions;
4. AMPARO ADMINISTRATIVO, which is the judicial review of
administrative actions; and
5. AMPARO AGRARIO, which is for the protection of peasants’ rights
derived from the agrarian reform process.
- Supposing the President suspended the privilege of the writ of habeas corpus. Can
a person who claims to be illegally detained be released through amparo? Can the
petitioners say that what is suspended is only the privilege of the writ of habeas
corpus, and the Constitution does not authorize the President to suspend the writ
of amparo. Can a person who is illegally detained be released through amparo
during the suspension of the privilege of the writ of habeas corpus?
- No. The term “writ of habeas corpus” under Section 15 of Article III, as
well as Section 18 of Article VII, refers to a remedy regardless of what it
may be called. It does not refer to writ of habeas corpus under Rule 102.
The term “writ of habeas corpus” under the Constitution applies to any
remedy whose object is to relieve the person of his illegal detention
because if we will say that writ of habeas corpus under the Constitution
only refers to Rule 102, then the Supreme Court can easily defeat the
power of the President to suspend the privilege by simply renaming it. Like
in the case of writ of amparo, the Supreme Court can just issue another
rule making it available for a person illegally detained to be released
although not calling it a writ of habeas corpus. So, that is a risk that is not
contemplated under Section 15 of Article III. Therefore, in order to give
Section 15 of Article III and Section 18 of Article VII substance and spirit,
we have to consider the writ of habeas corpus as any remedy whose
objective is to secure the liberty of a person who is illegally detained.
What is the effect of the filing of a petition for bail in a pending petition for a writ of habeas
corpus?
- This was ruled in Jackson v. Macalino. Here, the petitioner was facing deportation
cases. During the deportation proceedings he questioned the legality of his
detention. He filed a petition for a writ of habeas corpus and subsequently he also
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filed for a petition for bail. The issue here is the effect of the application for bail to
the pending petition for a writ of habeas corpus.
- The Supreme Court said the application for bail is a recognition of the
validity of the arrest or detention. Since it has the effect of recognizing the
validity of the arrest or detention, the petition for a writ of habeas corpus
becomes functus officio and, thus, it should be dismissed.
Section 13 of Article III of the Constitution expressly provides that “The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is suspended.”
Does that mean that when the privilege of the writ of habeas corpus is suspended, persons
arrested or detained for rebellion or offenses inherent in or directly connected with invasion
can be released on bail because the Constitution says that the right to bail shall not be
impaired even when the privilege of habeas corpus is suspended? Let’s assume for the sake
of argument that rebellion or offenses inherent in or directly connected with invasion is
punishable by reclusion temporal and lower. Does that mean that a person who is arrested for
rebellion during the suspension of the privilege of the writ of habeas corpus can post bail
because of this provision?
- No. If we will subscribe to the position that even persons detained for crimes
covered by the suspension of the privilege of the writ of habeas corpus can post bail,
it will result in a situation when those who are involved in rebellion can post bail and
then upon filing bail, they can resume their criminal activities towards overturning
the government.
- The provision of Section 13 of Article III is a general rule. As a general rule, the right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended, but there is an exception to that general rule. The exception to the
general rule is that when the privilege of the writ of habeas corpus is suspended,
the suspension of the privilege of the writ of habeas corpus also denies the right to
bail for those who are charged with cases under the suspension.
- If the suspension is on the basis of rebellion because public safety
requires it, then persons charged with rebellion cannot post bail as an
exception to the general rule.
What happens when the privilege of the right to the writ of habeas corpus is suspended?
- Under Section 18 of Article VII of the Constitution, “During the suspension of the
privilege of the writ of habeas corpus, any person thus arrested or detained shall be
judicially charged within three days, otherwise, he shall be released.”
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Supposing 100 suspected rebels were arrested for rebellion during the suspension of the
privilege of the writ of habeas corpus. Immediately upon their arrest, the Secretary of National
Defense or his representative filed criminal charges for rebellion against these 100 suspected
rebels with the public prosecutor for preliminary investigation. Can the Department of
National Defense continue the detention of these suspected rebels even beyond 3 days?
- The answer is no, because the Constitution requires “judicially charged,” which
means that the mere filing of a criminal complaint before the public prosecutor will
not toll the running of the 3-day period. The Constitution requires that the charge
must be filed before the court. Therefore, if the charge is only filed before the
Secretary of Justice or his authorized representative, then the persons arrested or
detained must be released after 3 days if no charge has been filed before a court
within such period of time.
SECTION 16, ARTICLE III — RIGHT TO SPEEDY DISPOSITION OF CASES
The application of Section 16 is similar to Section 14—speedy trial. The differences between
the two are the following:
1. Speedy trial (Section 14) only applies to an accused; while speedy disposition of
cases (Section 16) applies to all parties, whether they be an accused, defendant,
petitioner, or a respondent.
2. Speedy trail (Section 14) only applies to criminal cases; while speedy disposition
of cases (Section 16) applies to all proceedings.
3. Speedy trail (Section 14) only applies during the trial and the proceedings leading
up to the trial; while speedy disposition of cases applies to all stages of the
proceedings even upon appeal.
4. If the right of the accused to speedy trial (Section 14) was violated, the remedy is
the dismissal of the complaint, and such dismissal is final; If the right to speedy
disposition of cases (Section 16) was violated, the remedy is not the dismissal of the
case but rather, the remedy is to hasten the proceedings and imposing the
corresponding administrative sanctions to the judge who delayed the proceedings.
Similar to speedy trial under Section 14, there is a violation of the right to speedy disposition
of cases when the proceedings are tended with VEXATIOUS, CAPRICIOUS, and OPPRESSIVE
delays.
SECTION 17, ARTICLE III — RIGHT AGAINST SELF-INCRIMINATION
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Take note that there is no constitutional right to self-incrimination. The constitutional
guarantee under Section 17 of Article III refers to the right AGAINST self-incrimination.
The right against self-incrimination is of common law origin. It originates from the common
law principle of NEMO TENETUR SEIPSUM ACCUSARE, which translates to “no man shall be
bound to accuse himself.”
- The common law principle of nemo tenetur seipsum accusare was applied in the
early days in England and it was considered as a revolt against the Thumbscrew and
Rack torture methods. The Thumbscrew and Rack were inquisitorial methods used
during the time of Stuarts in order to extract forced confessions from the accused.
A Thumbscrew is a mechanical device where the fingers and toes of the person
being investigated are placed between two metal objects, which will be tightened
to force out a confession or answer. A Rack is also an inquisitorial method whereby
the extremities of the person being investigated are tied to a rope, and the end of
each rope will usually be tied to cattle. As the questions are being propounded and
the investigator did not obtain the desired answer, the ropes will be tightened, and
the cattle will be forced to move in opposite directions thereby pulling the
extremities of the accused.
According to the Supreme Court in the case of Chavez v. CA, the constitutional proscription
against self-incrimination “…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.”
What is the extent of this constitutionally guaranteed right against self-incrimination?
- Let’s take the case of US v. Tan Teng. This was a rape case where the victim was a
7-year-old child. Several days after the incident, the sister of the victim discovered
that the victim was suffering from gonorrhea, a sexual-transmissible disease. During
investigation, the accused was required to remove his garments, and the police
officers noted a substance emitting from the genitals of the accused. The police
officers took the substance from the genitals of the accused and it tested positive
for gonorrhea. The issue here is the admissibility of the examination on the
substance taken from the body of the accused.
- The Supreme Court, citing Justice Holmes in his decision in Holt v. US,
said “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
body as evidence, when it may be material.”
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- In sum, the kernel of the constitutional guarantee is against
TESTIMONIAL COMPULSION.
- In Villaflor v. Summers, the accused here was charged with adultery, and she was
being compelled by the court to undergo pregnancy examination against her will.
She was cited in contempt for her refusal to undergo medical examination. When
the case reached the Supreme Court, the order of the trial court in citing the accused
was sustained, citing the ruling in US v. Tan Teng that the guarantee is against
testimonial compulsion.
-In the more recent case of People v. Gallarde, a petition was filed questioning the
decision of the respondent judge in excluding certain evidence, particularly the
picture of the accused taken during custodial investigation.
- The Supreme Court overruled the decision of the respondent judge and
admitted in evidence the picture because, according to the Supreme
Court, PURELY MECHANICAL ACTS are not covered by the constitutional
guarantee against self-incrimination.
- According to the Supreme Court, “The constitutional right of
an accused against self-incrimination proscribes the use of
physical or moral compulsion to extort communications from the
accused and not the inclusion of his body in evidence when it
may be material. Purely mechanical acts are not included in the
prohibition as the accused does not thereby speak his guilt,
hence the assistance and guiding hand of counsel is not required.
The essence of the right against self-incrimination is testimonial
compulsion, that is, the giving of evidence against himself
through a testimonial act.
- The Supreme Court furthered, “Hence, it has been
held that a woman charged with adultery may be
compelled to submit to physical examination to
determine her pregnancy (Villaflor v. Summers); and
an accused may be compelled to submit to physical
examination and to have a substance taken from his
body for medical determination as to whether he was
suffering from gonorrhea which was contracted by his
victim (US v. Tan Teng). To expel morphine from his
mouth (US v. Ong Siu Hong); to have the outline of his
foot traced to determine its identity with bloody
footprints; and to be photographed or measured, or
his garments or shoes removed or replaced, or to move
his body to enable the foregoing things to be done.”
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- How about writing? Is writing covered by the constitutional guarantee against self-
incrimination?
- In Beltran v. Samson, during preliminary investigation, the public
prosecutor required the respondent to transcribe certain dictations for
purposes of comparison with the documents subject of the offense of
falsification.
- The Supreme Court applied the constitutional guarantee
against self-incrimination even to writings because “…writing is
something more than moving the body, or the hands, or the
fingers; writing is not a purely mechanical act, because it
requires the application of intelligence and attention…”
- While the Supreme Court said in the case of US v. Tan Teng
that the kernel of the constitutional guarantee is only
testimonial compulsion, in Beltran v. Samson the Supreme
Court noted that this constitutional guarantee also extends to
documents, chattels, and any other object that may produce
incriminating evidence against the accused. This means that an
accused in a case for adultery cannot be compelled to produce
love letters between the accused and her illicit paramour. This
is covered by the constitutional guarantee.
- In the 1917 case of US v. Ong Siu Hong, the Supreme Court sustained the act of a
police officer in extracting morphine from the mouth of the accused. The Supreme
Court said that the act involved is a purely mechanical act, but in subsequent cases,
the Supreme Court considered this as “too close to the rack and screw.” The rule
observed now is that there should be certain limitations on the authority of the law
enforcement officers in extracting evidence from the accused; it should not be too
invasive. While an accused may be subjected to medical and physical examinations,
like in the case of Villaflor v. Summers, and may even be required to submit blood
samples, an accused however cannot be required to submit a sperm sample because
it would be too invasive; it would be too close to the rack and screw.
Does the constitutional protection apply regardless of the person invoking the constitutional
right?
- In Chavez v. CA, what is involved here is an Estafa case and the accused were very
notorious in during the 1960s. The accused were members of a gang known as the
“Big Four.” One of the accused was surprised during the hearing for the presentation
of evidence for the prosecution when he was called as the star witness for the
prosecution. The accused objected and according to the trial judge, the prosecution
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can call to the witness stand any person, including the accused. According to the
trial judge, the accused can invoke the right against self-incrimination only when an
incriminating question is asked.
- The Supreme Court disagreed and said that the constitutional protection
against self-incrimination differs depending on the person invoking the
right. When the person invoking the right against self-incrimination is the
accused himself, he may refuse to take the witness stand altogether. But
when the person invoking the right is an ordinary witness, he cannot
refuse to take the witness stand and he may only invoke the right when
an incriminating question is asked. What is the reason for this distinction?
- The Supreme Court said that the only reason why the
prosecution will call the accused to the witness stand as a
witness for the prosecution is to incriminate himself. If this is the
only purpose of the prosecution in calling the accused to the
witness stand, then there is no need to wait for an incriminating
question before the accused may invoke his right against self-
incrimination.
Is the right against self-incrimination only available during trial?
- In the case of Beltran v. Samson, the proceeding involved here was preliminary
investigation. The Supreme Court extended the constitutional guarantee even to
the period of time covering the preliminary investigation because it would be absurd
if the constitutional guarantee could only be implemented during the trial
considering that the public prosecutor can compel the suspect, who may
subsequently become an accused during the trial proper, to produce incriminating
evidence during the preliminary investigation.
The right against self-incrimination is not exclusive only to criminal proceedings.
- In Pascual v. Board of Medical Examiners, which involved a case of medical
malpractice, the petitioner was being compelled to testify against himself and
according to the respondent, the constitutional guarantee against self-incrimination
does not apply in administrative investigations.
- The Supreme Court disagreed and said the right to self-incrimination also
applies to civil and administrative cases which are PENAL IN CHARACTER.
- So, since the case involved here is medical malpractice, which could
result in the revocation of the license of the doctor, then the right against
self-incrimination is available.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
It is in the interest of the State to prosecute and to punish violations of law. It is also in the
interest of the accused to maintain confidential any facts known to him since, as according to
Justice Marshall, while a defendant’s knowledge of the facts “remains concealed within his
bosom, he is safe; but draw it from thence, and he is exposed” — to conviction. Is there a
mechanism in order to breach the conflicting interest of the State to prosecute and punish
violations of law and, at the same time, to sustain the constitutional guarantee against self-
incrimination?
- This was answered by the Supreme Court in the case of Mapa, Jr. v.
Sandiganbayan. The moderating mechanism that may be applied by the State in
order to achieve its goals of prosecuting and punishing violations of law and, at the
same time, to protect the constitutionally guaranteed right against self-
incrimination is to provide IMMUNITY STATUTES. By giving the accused immunity,
he may be compelled to produce incriminating evidence.
- Incriminating statutes may either be of two types, namely:
1. TRANSACTIONAL IMMUNITY
- Here, the accused can no longer be prosecuted for
any offense related to the testimony.
- Transactional immunity is broader in the scope of its
protection. By its grant, a witness can no longer be
prosecuted for any offense whatsoever arising out of
the act or transaction.
2. USE-AND-DERIVATIVE-USE IMMUNITY
- Here, the accused can still be prosecuted as long as
his testimony cannot be used as evidence against
himself. This means that an accused who is granted
use-and-derivative-use immunity can still be
convicted as long as the prosecution can produce
independent evidence sufficient to establish his guilt
beyond reasonable doubt.
- By the grant of use-and-derivative-use immunity, a
witness is only assured that his or her particular
testimony and evidence derived from it will not be
used against him or her in a subsequent prosecution.
SECTION 18, ARTICLE III — RIGHT AGAINST INVOLUNTARY SERVITUDE
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Involuntary Servitude has been defined as the condition of enforced or compulsory service of
one to another no matter under what form such servitude may be disguised.
- It is the condition where one is compelled by force, coercion, or imprisonment, and
against his will, to labor for another, whether he is paid or not.
Take note that in order to constitute involuntary servitude under this definition, there must
be compulsion. But under the Expanded Anti-Human Trafficking Act, the concept of
involuntary servitude has been extended and also includes within the constitutional coverage
the use of any other device or scheme. In effect, even if there is no physical compulsion, but
the person who is being required to perform forced labor is being enticed to perform the labor
against his will because of a mistaken belief that he has the obligation, or there is a threat of
physical or bodily harm will befall upon him, then the right against involuntary servitude shall
be applicable.
Like any other constitutional right, the right against involuntary servitude is subject to certain
limitations, namely:
1. SERVICE IN DEFENSE OF THE STATE.
- Under Section 4 of Article II of the Constitution, which provides “The
Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided
by law, to render personal, military, or civil service.”
- In People v. Lagman and Sosa, the accused were asking to be exempted
from the mandatory military service that was being required by
Commonwealth Act No. 1, otherwise known as the National Defense Act.
Aside from religious freedom, the accused were invoking their right
against involuntary servitude.
- The Supreme Court overruled the objections of the accused in
both cases because, according to the Supreme Court, as
between the interests of the individuals to be required to serve
against their will, the interest of the State to maintain its
existence is primordial. The continued existence of the State is
essential in order to protect the Constitution, upon which the
constitutional guarantee against involuntary servitude is
ground. If the State no longer existed, then all the rights under
the Constitution will be extinguished. Therefore, it is essential
that the existence of the State be maintained in order for the
constitutional guaranteed rights to be exercised and protected.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
2. CONCEPT OF POSSE COMITATUS.
- The concept of posse comitatus is an order allowing law enforcement
officers to summon able-bodied men to aid them in the pursuit of
criminals.
- This concept is applicable under our laws, particularly Section 10, Rule
113 of the Rules of Court, which provides “An officer making a lawful
arrest may orally summon as many persons as he deems necessary to
assist him in effecting the arrest. Every person so summoned by an officer
shall assist him in effecting the arrest when he can render such assistance
without detriment to himself.”
3. CONCEPT OF PATRIA POTESTAS.
- Under the concept of patria potestas, parents may compel their children to
perform work as a disciplinary measure. A child who is being required to perform
household chores cannot invoke his or her right against involuntary servitude
because under the concept of patria Potestas, the State recognizes the authority of
the parents in imposing discipline on their children.
4. NAVAL ENLISTMENT.
- Due to the nature of this undertaking, persons who enlist in naval marines may be
required to complete their voyage. Unlike in land-based undertakings, there is no
alternative manpower. Also, mutiny in the high seas is prohibited. As a result, those
who have enlisted in naval marine may be required to work even against their will.
5. RETURN TO WORK ORDER.
- Under the Labor Code, once the Secretary of Justice assumes jurisdiction over a
labor dispute, all striking employees may be compelled to return to work and all
locking-out employers may be compelled to allow the return of the employees. This
is a valid exception to the right against involuntary servitude.
In the case of In the Matter of Petition for Writ of Habeas Corpus of Segifredo Aclaracion,
Aclaracion was a former court stenographer who resigned and transferred to another
government agency. However, there were pending cases whose transcript of stenographic
notes were yet to be transcribed by Aclaracion. As such, Aclaracion was being compelled to
complete the transcriptions. Aclaracion objected on the ground that he was no longer a court
stenographer and, thus, he cannot be compelled against his will to complete the
transcriptions.
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- The Supreme Court did not agree. According to the Supreme Court, official duties
mandated by law are exempted from the coverage of the right against involuntary
servitude. Therefore, public officer may be compelled to perform their duties even
against their will.
SECTION 19, ARTICLE III — PROHIBITED PUNISHMENT
The Constitution enumerates four prohibited punishments, namely:
1. Excessive fines;
2. Cruel punishment;
3. Degrading punishment; and
4. Inhuman punishment.
It is not necessary for a punishment to have all these characteristics. Cruel punishment is a
prohibited punishment independent from degrading or inhuman punishment.
What constitutes cruelty as a prohibited punishment?
- In the case of People v. Estoista, which involved the possession of an unlicensed
firearm, the accused was the child of the owner of the gun. While hunting for wild
chickens, the accused accidently shot one of his servants. The accused was then
charged with possession of an unlicensed firearm. Under the law applicable at that
time, possession of an unlicensed firearm was punishable with imprisonment for
five to ten years. The trial court, however, in considering the factual circumstances
of the case did not impose even the minimum penalty because, according to the
trial judge, even 5 years imprisonment is too much, and as such, it would constitute
a cruel punishment. The trial court judge imposed only 1 year of imprisonment as
penalty.
- Upon appeal, the Supreme Court overruled the decision of the trial
judge. The Supreme Court said that cruelty in punishment refers to the
cruelty inherent in the imposition of the penalty, and not the unnecessary
suffering cause by the penalty. The Supreme Court, however, did not
delve on whether the long period of imprisonment may constitute cruel
punishment. The Supreme Court said that “Small transgressors for which
the heavy net was not spread are like small fishes, bound to be caught,
and it is to meet such a situation as this that courts are advised to make a
recommendation to the Chief Executive for clemency or reduction of the
penalty.” In other words, in cases where the judge feels that the
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
imposition of the minimum penalty is too harsh, the judge, under the
Revised Penal Code, is still required to impose the minimum penalty
provided for by law, with the recommendation for the exercise of
executive clemency in order to lower the penalty.
We have learned when we were discussing Section 14 of Article III that when an accused is
tried and is convicted in absentia, the accused cannot appeal in absentia because an accused
who is tried in absentia loses his legal standing. In such a case, the accused can only appeal
the judgment of conviction if within the reglementary period for perfecting an appeal, he is
either arrested or voluntarily surrenders. Is there an exception to this rule?
- Yes, the exception is provided by the Supreme Court in the case of People v.
Esparas. In this case, at the time when death penalty was still imposable, the
accused was sentenced to suffer the penalty of death, but he was tried in absentia.
The issue here was whether the death penalty imposed by the trial court shall
become final and executory due to the failure of the accused to be arrested or to
have voluntarily surrendered during the reglementary period to appeal.
- The Supreme Court said no. When it comes to death penalty, it can only
attain finality once the Supreme Court sustains the imposition of the
death penalty. According to the Supreme Court, what is at stake in the
imposition of the death penalty is the extinguishment of life. Therefore, it
is incumbent upon the Supreme Court to ensure that all impositions of the
death penalty shall be error-free.
- In sum, all death penalties imposed by the trial courts are
subject to the automatic review of the Supreme Court
regardless whether the accused jumped bail or does not intend
to appeal.
Is the death penalty prohibited under the 1987 Constitution? I ask because under Section 19,
Article III of the 1987 Constitution, it is expressly provided that “Neither shall death penalty
be imposed…” Does this mean that the death penalty is one of the prohibited punishments
under Section 19?
- No. The death penalty is still a valid penalty but only for specific
crimes. This means that for offenses that are considered as
heinous crimes, the death penalty is a valid penalty. Inversely,
the death penalty can be considered as a prohibited punishment
only if it is imposed for non-heinous crimes.
In the case of Eschagaray v. Secretary of Justice, the petitioner was challenging the imposition
of death penalty by lethal injection because such method would entail pain due to the
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administration of drugs into the intravenous veins. According to the petitioner, any penalty
that inflicts pain is cruel and since it is cruel, it is prohibited by the Constitution.
- The Supreme Court said that in the strictest sense, all penalties inflict pain, whether
physical, psychological or moral. Pain is inherent in every penalty. So, if pain makes
the penalty cruel, then all penalties are unconstitutional. But the Supreme Court
said that cruelty in punishment, particularly in the imposition of the death penalty,
involves torture or lingering death. According to the Supreme Court, the imposition
of the death penalty by lethal injection is not torture, nor a lingering death. As such,
it is not a cruel punishment.
Under the 1973 Constitution, aside from cruel punishment, the Constitution prohibits unusual
punishment. The term “unusual punishment” is no longer included under the 1987
Constitution. What is the effect of the non-inclusion of unusual punishment in the list of
prohibited punishments?
- The term unusual refers to something that is not ordinary; it is novel; it is new.
- In Eschagaray v. Secretary of Justice, the Supreme Court said that the non-
inclusion of unusual punishment from the list of prohibited punishments allows the
State to experiment in penology. Now, Congress can enact a law providing for an
unusual and new punishment as long as it is not a cruel, degrading, or inhuman
punishment.
SECTION 20, ARTICLE III — NON-IMPRISONMENT FOR DEBT
Like the constitutional guarantee against self-incrimination, the guarantee against
imprisonment for debt is also based on a common law principle, and it is intended to prohibit
certain acts which were prevalent during the early days, particularly the issuance of an order
called “Writ of Capias Ad Satisfaciendum.”
- Under the writ of capias ad satisfaciendum, the creditor may compel the taking of
the body of the debtor until he fully pays his civil obligation. In order to prevent this
inhuman practice of taking custody over the person of the debtor in satisfaction of
a civil obligation, the Constitution expressly guarantees non-imprisonment for debt.
What does the term “debt” mean under the Constitution?
- Debt only refers to financial obligations arising from contracts. With that said,
financial obligations arising from other sources, such as law, delict, or quasi-delict,
are not covered against the constitutional guarantee against imprisonment for debt.
- Let’s view B.P. Blg. 22 from this lens.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019

honored because of the fact that he failed

- In the case of Lozano v. Martinez, the petitioner challenged to pay within 5 days from notice of
the constitutionality of B.P. Blg. 22 because it imposes the dishonor.
punishment of imprisonment for failure of the drawer to pay the
face value of the check. According to the petitioner, once the - In the first example, even though that at
drawer fails to pay the face value of the check, he may face the time A issued the check he knew that it
criminal punishment and, as such, B.P. Blg. 22 is a “Bad Debts would be dishonored does not make him
Law” since what is punished is the non-payment of an criminal liable because he was able to pay
obligation. Under the law, once a check is dishonored, the payee the face value of the check within 5 days
has the obligation to notify the drawer, and criminal liability only from the notice of dishonor.
arises when the drawer fails to pay within 5 days from the notice
of dishonor. Does this mean that what is punished by law is the - Does this now make B.P. Blg. 22
non-payment of the face value of the check within 5 days from unconstitutional since, apparently, criminal
notice of dishonor? Let’s take two examples. liability only arises upon failure of the
drawer to pay within 5 days from notice of
- Supposing A issued a check payable to the order of dishonor?
B. At the time that A issued the check, he knew that
the check would be dishonored because he drew it - No. Again, what is prohibited by
from a closed account. Under the law, criminal liability the Constitution is the
shall only accrue when the drawer fails to pay within imprisonment for the failure to
5 days from the notice of dishonor. In this case, A is fulfill a financial obligation arising
not yet criminally liable. B has to first notify A that the from a contract. The requirement
check bounced, and A must subsequently fail to pay under B.P. Blg. 22 to pay within 5
within 5 days from receipt of such notice in order form days from notice of dishonor is
criminal liability to attach. A has 5 days within the not an obligation arising ex
receipt of the notice of dishonor to pay in order to contractu (“from a contract”); it is
avoid criminal liability. If A pays, then there is no an obligation arising from the law
criminal liability. So, criminal liability only attaches if A itself. Therefore, since it is a legal
fails to pay. obligation provided for by law,
non-compliance with the
- Supposing A issued a check payable to the order of obligation of paying within the 5-
B. At the time A issued the check, he knew that the day period will result in
check would be paid because he had sufficient funds imprisonment.
in the bank. Unfortunately, however, when B
presented the check for payment, it was dishonored - This is similar to the
for insufficient funds. B then issued a notice of legal obligation of a
dishonor to A, but the latter was still unable to husband to give
produce the amount necessary to pay the face value financial support to his
of the check. A failed to pay within the 5-day period. wife and children
Here, is A criminally liable? because this is a
provision expressly
- Yes, A in the second example is still liable provided by law, and
even though, at the time he issued the failure to comply with
check, he thought that the check would be this obligation will

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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
result in criminal
liability and
imprisonment.
To repeat, the constitutional guarantee of non-imprisonment for debts only applies to
financial obligations arising ex contractu.
SECTION 21, ARTICLE III — DOUBLE JEOPARDY
Under Section 21, Article III of the Constitution, it is expressly provided that “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.”
There are two types of double jeopardy under the Constitution, namely:
1. Double jeopardy of punishment for the same offense;
2. Double jeopardy of punishment for the same act.
In the case of People v. Relova, the Supreme Court distinguished these two types of double
jeopardy and explained why there is a need to provide for the second type of double jeopardy.
- The first sentence of Section 21 of Article III is the traditional type of double
jeopardy — double jeopardy of punishment for the same offense. The second
sentence of the same provision is the second type of double jeopardy — double
jeopardy of punishment for the same act. The second type only applies when the act
is punishable by a law and an ordinance. Why is there a need to provide for the
second type of double jeopardy? Is the traditional type of double jeopardy of
punishment for the same offense insufficient?
- The Supreme Court said that double jeopardy of punishment for the
same offense only applies when the two offenses are either the same or
are identical, and there can be no identity of offenses if one is punished by
the national government through and the other by the local government
through an ordinance. This is the reason why there is a need to provide
for the second type of double jeopardy.
- The case of People v. Relova involved the crime theft for stealing electricity. The
owner of an Ice Plant and Cold Storage utilized a contraption that lowered the
reading of electric energy consumption. Upon discovery of this scheme, a criminal
complaint for violation of an ordinance. Under the ordinance, however, the offense
shall prescribe after two months from discovery of the crime. The criminal complaint
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was filed after 9 moths from discovery of the criminal activity. As a result, the case
was dismissed because of prescription. This prompted the public prosecutor to file
a second criminal complaint for violation of the Revised Penal Code for the same
act.
- The Supreme Court said the second complaint is no longer allowed
because double jeopardy of punishment for the same act has already set
in. Since the criminal act being sought to be punished falls under a law and
an ordinance, the second type of double jeopardy applies.
How do we determine the existence of the identity of acts in order to constitute double
jeopardy of punishment for the same act?
- Double jeopardy of punishment for the same act requires IDENTITY OF ACTS.
- The Supreme Court in the case of People v. Relova set the guideline by
determining the location of the act or series of acts so that if the act or
acts are impelled in one or single criminal design, then the acts are
identical.
- The Supreme Court stressed that “The question of identity of the acts
which are claimed to have generated liability both under a municipal
ordinance and a national statute must be addressed, in the first instance,
by examining the location of such acts in time and space. When the acts of
the accused as set out in the two informations are so related to each other
in time and space as to be reasonably regarded as having taken place on
the same occasion and where those acts have been moved by one and the
same, or a continuing, intent or voluntary design or negligence, such acts
may be appropriately characterized as an integral whole capable of giving
rise to penal liability simultaneously under different legal enactments (a
municipal ordinance and a national statute).
- In sum, if the acts give rise to a violation of law and violation of an
ordinance, then the conviction or acquittal under either shall constitute
as a bar to another prosecution for the same act.
- Double jeopardy of punishment for the same offense, on the other hand, requires
IDENTITY OF OFFENSES.
- In the case of Melo v. People, the Supreme Court applied a test in order
to determine whether there was identity of offenses. This is the so-called
“SAME-EVIDENCE TEST.”
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- Under the Same-Evidence Test, 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.
- However, the Supreme Court said that the Same-Evidence Test
was inaccurate because double jeopardy of punishment for the
same offense does not require similarity of offenses, but rather,
what is required by the Constitution is identity of offenses. In
other words, there can be an identity of offenses even if the
evidence to support the conviction in one offense is not the
same as the evidence needed to support the conviction in the
other offense as long as one is an attempt or frustration of the
other, or when it necessarily includes or is necessarily included
in the former charge or complaint.
- In the words of the Supreme Court, “This so-called
‘Same-Evidence Test’ which was found to be vague
and deficient, was restated by the Rules of Court in a
clearer and more accurate form. Under said Rules,
there is identity between two offenses not only when
the second offense is exactly the same as the first, but
also when the second offense is an attempt to commit
the first or a frustration thereof, or when it necessarily
includes or is necessarily included in the offense
charged in the first information.”
What are the requisites of double jeopardy of punishment for the same offense? Mostly, the
Supreme Court enumerates four requisites for double jeopardy [these refer to LEGAL
JEOPARDY only], namely:
1. There must be a valid complaint or information;
2. It must be filed before a competent court;
3. The accused has been arraigned or pleaded to the charge; and
4. The accused was acquitted, or convicted, or the case against him was dismissed
or otherwise terminated without his express consent.
Are these the requisites for double jeopardy of punishment for the same offense?
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- No. There are only three requisites of double jeopardy of punishment for the same
offense, and these three requisites were laid down by the Supreme Court in the case
of People v. Tampal.
- In People v. Tampal, the Supreme Court said that the requisites for
double jeopardy of punishment for the same offense are:
1. A first jeopardy must have attached prior to the second;
2. The first jeopardy must have been validly terminated; and
3. A second jeopardy must be for the same offense as that in the
first (or an attempt or frustration thereof, or when it necessarily
includes or is necessarily included in the former charge).
The four requisites that we first enumerated only refer to LEGAL JEOPARDY, or otherwise
known as the First Jeopardy. There is a First Jeopardy when there is a (1) valid complaint or
information (2) filed before a competent court, and (3) the accused has been arraigned, and
(4) he has been acquitted, convicted, or the case against him was dismissed or otherwise
terminated without his express consent. If these four requisites are present, then there is
Legal Jeopardy/First Jeopardy. There can only be double jeopardy when the prosecution
appeals the acquittal or files another cased based on an identical offense.
Let’s discuss the four requisites of Legal/First Jeopardy.
- Supposing the public prosecutor filed a criminal information for adultery against
A. After trial, A was acquitted. Considering that under the Revised Penal Code,
concubinage, adultery, and other private offenses can only be instituted by the
private offended spouse, can the private offended spouse file a second criminal
complaint in his or her own behalf after the acquittal of the accused in the first case?
- Yes, because there was no valid criminal complaint or information in the
first case. The accused was not placed in jeopardy of being convicted in
the first case because in private offenses, the charge can only be initiated
by the private offended spouse.
- Supposing the public prosecutor filed a criminal information for homicide against
A in Manila. After trial, it was established that the victim was not killed in Manila,
but rather, he was killed in Quezon City. As a result, the complaint was dismissed
against the will and objection of the A. Can the public prosecutor file a second
criminal information now in Quezon City?
- Yes, because the Manila court was not a court of competent jurisdiction.
Again, the accused was not placed in jeopardy of being convicted in the
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
first case because the Manila court was not a competent court since it had
no jurisdiction over the subject matter of the offense.
- Supposing during arraignment, the accused plead guilty to the charge. According
to the Rules of Court, upon a plea of guilty, the court may allow the accused to
present evidence to establish mitigating circumstances. Instead of presenting
mitigating circumstances, however, the accused presented evidence to prove the
exculpatory circumstance of self-defense. Based on the evidence presented by the
accused, the court acquitted the accused. Can the prosecution appeal the judgment
of acquittal?
- This was the factual circumstances of People v. Balisacan. In this case,
after pleading guilty to the charge, the accused presented exculpatory
evidence, and he was acquitted on the basis thereof. The Supreme Court,
however, reversed the judgment of acquittal. This is one of the very few
cases wherein the Supreme Court reversed a judgment of acquittal
because ordinarily, judgments of acquittal are final decisions.
- Another case wherein the Supreme Court reversed the judgment of
acquittal was Galman v. Sandiganbayan. In this case, the Supreme Court
said that the acquittal of the accused will not bar the filing of an appeal of
the judgment of acquittal because there was no Legal/First Jeopardy that
attached since there was no valid plea. Since there was no valid plea, the
accused was never placed in Legal/First Jeopardy.
- The last requisite of Legal/First Jeopardy is that the accused has been acquitted,
convicted, or the case against him was dismissed or otherwise terminated without
his express consent.
- As to dismissal of the case without the express consent of the accused,
why does dismissal with the express consent of the accused not set in
motion double jeopardy?
- This was answered by the Supreme Court in People v. Obsania.
In this case, a criminal complaint for acts of lasciviousness was
filed against the accused. The accused moved for the dismissal
of the complaint because, according to him, the facts in the
complaint were not sufficient to constitute the elements of the
crime charged. The complaint was then dismissed. Aggrieved,
the prosecution appealed the judgment of dismissal. Upon
appeal, the accused invoked his right against double jeopardy.
- The Supreme Court said that the dismissal was made
at the instance of the accused and, as such, the
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application of the sister doctrines of waiver and
estoppel precludes the accused from invoking his right
against double jeopardy.
- In the own words of the Supreme Court,
“The application of the sister doctrines of
waiver and estoppel requires two sine qua
non conditions: first, the dismissal must be
sought or induced by the defendant
personally or through his counsel; and
second, such dismissal must not be on the
merits and must not necessarily amount to
an acquittal.”
- In sum, when the dismissal of the case was made at
the instance of or with the express consent of the
accused, it is an express waiver of the accused’s right
against double jeopardy.
- Ordinarily, the double jeopardy of punishment for the same offense
presupposes that the accused is charged for two identical offenses after
he has been convicted, acquitted, or the case against him was dismissed
or otherwise terminated without his express consent. Can there be double
jeopardy of punishment for the same offense even if the accused is only
charged with one offense?
- Yes, during an appeal of the judgment of acquittal.
- In the case of Philippine Savings Bank v. Bermoy, the Supreme
Court said that “The right against double jeopardy can be
invoked if (a) the accused is charged with the same offense in
two separate pending cases, or (b) the accused is prosecuted
anew for the same offense after he had been convicted or
acquitted of such offense, or (c) the prosecution appeals from a
judgement in the same case. The last is based on Section 1, Rule
122 of the Rules of Court which provides that ‘any party may
appeal from a final judgment or order, except if the accused
would be placed thereby in double jeopardy.”
- When the prosecution appeals from the judgement
of the trial court, double jeopardy arises even if there
is only one offense. The Supreme Court said there is
double jeopardy of punishment for the same offense
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
because of the Principle of the Right of Repose, or
otherwise known as the Finality-of-Acquittal Rule.
- The Supreme Court said that “The
fundamental philosophy highlighting the
finality of an acquittal by the trial court cuts
deep into the humanity of the laws and in a
jealous watchfulness over the rights of the
citizen, when brought in unequal contest
with the State.” The Supreme Court
furthered, “the underlying idea, that one
that is deeply ingrained in at least the Anglo-
American system of jurisprudence, is that
the State with all its resources and power
should not be allowed to make repeated
attempts to convict the individual for an
alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and
compelling him to live in a continuing state
of anxiety and insecurity, as well as
enhancing the possibility that even though
innocent, he may be found guilty.”
- In other words, if there would be no limit
to the attempts to convict the accused,
there will come a time when the accused
will just give up and surrender due to
frustration, and he may be convicted not
because he is guilty, but because he is tired
of trying to defend himself.
- Does the Finality-of-Acquittal Rule also prohibit the
filing of a Motion for Reconsideration?
- This is the issue in Lejano v. People. In this
case, the conviction of the accused by the
RTC was sustained by the CA. Upon appeal,
the Supreme Court reversed the judgment
of conviction and acquitted the accused.
The People, through the prosecution, filed a
Motion for Reconsideration. Is a Motion for
Reconsideration covered by the right
against double jeopardy?
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- The Supreme Court said yes,
because a Motion for
Reconsideration also opens the
decision of acquittal. Hence, since
it has the effect of revisiting again
the judgment of acquittal, it will
violate the Finality-of-Acquittal
Rule. Therefore, the Supreme
Court denied the Motion for
Reconsideration because of the
constitutional guarantee against
double jeopardy.
Supposing an administrative charge is filed against a judge for rendering an unjust judgment.
After hearing, the Supreme Court dismissed the complaint for lack of evidence. Upon the
dismissal of the administrative charge, the complainant filed a criminal complaint before the
Office of the Ombudsman. Is there double jeopardy?
- This is the factual circumstances in Icasiano v. Sandiganbayan. The Supreme Court
said that double jeopardy requires that the two offenses must be criminal in nature.
Since the first case was administrative in nature, double jeopardy does not attach.
The dismissal of the administrative complaint does not set in motion double
jeopardy even if the criminal complaint is based on the same act or omission
constituting the administrative complaint.
Supposing the complainant filed a criminal complaint against the judge before the Office of
the Ombudsman. After preliminary investigation, the Office of the Ombudsman dismissed the
criminal complaint for lack of evidence. After dismissal, the complainant filed a second
criminal complaint against the same judge based on the same act or omission. Is there double
jeopardy?
- No, double jeopardy does not attach in preliminary investigations. In order to
constitute double jeopardy, there must be a Legal/First Jeopardy and two of the
requisites of a Legal/First Jeopardy is that the accused must have first been
arraigned and the accused was acquitted, convicted, or the case against him was
dismissed or otherwise terminated without his express consent. During preliminary
investigation, the accused will not be arraigned. In that regard, double jeopardy will
not attach in preliminary investigations.
Supposing a criminal complaint for homicide was filed against A for killing B. A is arraigned
and trial ensued. During the trial, the prosecutor filed a complaint for murder against A for
killing B. Is there double jeopardy?
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
- No. This was answered by the Supreme Court in the case of People v. Pineda. The
Supreme Court said that the “mere filing of two informations charging the same
offense is not an appropriate basis for the invocation of double jeopardy since the
first jeopardy has not yet set in by a previous conviction, acquittal or termination of
the case without the consent of the accused.”
- But in the case of Philippine Savings Bank v. Bermoy, the Supreme Court said that
there are three instances when double jeopardy may be invoked, and the first of
these three circumstance is when “…the accused is charged with the same offense
in two separate pending cases…” So, how do we reconcile this statement of the
Supreme Court in the case of Philippine Savings Bank v. Bermoy to the ruling of the
Supreme Court in the case of People v. Pineda?
- The statement of the Supreme Court in Philippine Savings Bank v.
Bermoy to the effect that double jeopardy applies when “…the accused is
charged with the same offense in two separate pending cases…” is only an
obiter dictum.
- It was only an obiter dictum because the main issue in
Philippine Savings Bank v. Bermoy is the appeal of the
demurrer to evidence, while in the case of People v. Pineda, the
main issue is whether the filing of multiple complaints against
the same accused based on the same act or omission for
identical offenses constitutes double jeopardy. The Supreme
Court in the latter case said no, it does not constitute double
jeopardy because double jeopardy requires Legal/First
Jeopardy, and in order to constitute Legal/First Jeopardy, there
must be a previous conviction, acquittal, or the case was
dismissed or terminated without the consent of the accused.
SECTION 22, ARTICLE III — EX POST FACTO LAW and BILL OF ATTAINDER
In the case of Salvador v. Mapa, the Supreme Court enumerated six kinds of Ex Post Facto
Laws, namely:
1. Every law that makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act;
- Example: A law passed in 2000 raising the age of seduction from 18 to 25
years, effective 1990.
2. Every law that aggravates a crime, or makes it greater than it was when
committed;
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- Example: A law passed in 2000 designating the crime of homicide
through reckless imprudence as murder, effective 1990.
3. Every law that changes punishment, and inflicts a greater punishment than the
law annexed to the crime when committed;
- Example: A law passed in 2000 increasing the penalty for libel from
prision correccional to prision mayor, effective 1990.
4. Every law that alters the legal rules of evidence, and receives less or different
testimony than the law required at the time of the commission of the offense, in
order to convict the offender;
- Example: A law passed in 2000 requiring for conviction mere
preponderance of evidence instead of proof beyond reasonable doubt,
effective 1990.
5. Every law which, assuming to regulate civil rights and remedies only, in effect
imposes a penalty or the deprivation of a right for something which when done was
lawful;
- Example: A law passed in 2000 depriving professionals of the right to
practice for failure or refusal to vote, effective 1990.
6. Every law which deprives persons accused of a crime of some lawful protection to
which they have become entitled, such as the protection of a former conviction or
acquittal, or of a proclamation of amnesty.
- Example: A law passed in 2000 lengthening the period for prescription of
blackmail from 5 to 10 years, effective 1990.
Take note that in the case of Salvador v. Mapa, the Supreme Court included “proclamation of
amnesty,” and any law that would result in a revocation of this would constitute an Ex Post
Facto Law.
What are the three characteristics of an Ex Post Facto Law?
1. It refers to criminal matters;
2. It is retroactive in application; and
3. It works to the prejudice of the accused.
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Supposing there is a case between the government and a private individual. The rules, at the
time of the pendency of the case, required that in the event the government would seek
provisional remedies, such as preliminary attachment or injunction, a bond must be filed.
Supposing that during the pendency of the case, the rules were changed to the effect that the
government was exempted from the filing of the bond. May this new rule apply to the pending
case without violating the constitutional prohibition against Ex Post Facto Laws?
- Yes, the new rule may apply to the pending case because it is only remedial in
character.
- In the case of Concepcion v. Garcia, the Supreme Court said that Ex Post Facto
Laws do not apply to the Rules of Court.
- Here, the Supreme Court said, “It has long been settled that the phrase
‘Ex Post Facto Laws’ is not applicable to civil laws, but to penal and criminal
which punish a party for acts antecedently done which were not
punishable at all, or not punishable to the extent or in the manner
prescribed. In short, Ex Post Facto Laws relate to penal and criminal
proceedings, which impose punishment or forfeitures, and not to civil
proceedings, which affect private rights retrospectively.”
Supposing that at the time of the commission of the criminal act, the penalty for the offense
charged was 5 years imprisonment. However, before the filing of the criminal complaint, the
law was amended to the effect that the penalty was increased to 10 years imprisonment. Is
the amendatory law an Ex Post Facto Law?
- No, the amendatory law is not an Ex Post Facto Law because it is not retroactive in
its application.
- An Ex Post Facto Law is a law the explicitly or expressly provides that it shall apply
to cases committed or cases pending before the effectivity of that law.
- Therefore, the mere fact that the law increases the penalty does not
make it an Ex Post Facto Law in the absence of an express provision that
it shall be applied retroactively.
In the case of People v. Hon. Donato, during the pendency of the continuing offense of
rebellion, the penalty was reduced to prision mayor pursuant to a law. However, at the time
of the filing of the criminal information, the penalty was restored to the penalty of reclusion
perpetua to death. Is the law that reduced the penalty to prision mayor applicable in this case?
- The Supreme Court said yes because it is favorable to the accused, and the new
law that restored the penalty of reclusion perpetua to death for the crime of
rebellion is prejudicial to the accused.
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What is the difference between an Ex Post Facto Law and a Bill of Attainder? Are Ex Post Facto
Laws Bill of Attainders? Or are Bill of Attainders Ex Post Facto?
- All Bill of Attainders are Ex Post Facto, but not all Ex Post Facto Laws are Bill of
Attainders.
- In order to be considered as a Bill of Attainder, the law must be criminal
in nature, it must be retroactive in its application, it must be prejudicial to
the accused, and it must dispense with the judicial determination of guilt.
So, if the Ex Post Facto Law makes the person liable without any judicial
proceedings, then it is also a Bill of Attainder.
- The term “Bill of Attainder” is usually applied to laws which are criminal in
character, retroactive in application, prejudicial to the accused, dispenses with the
requirement of judicial proceedings, and the penalty is death. This is traditionally
the concept of a Bill of Attainder. If the penalty, however, is less than death, the
term applied is “Bill of Pains and Penalties.” This is the origin of Bill of Attainder.
- Under the Constitution, however, Bills of Attainder is a legislative act that inflicts
punishment without trial, its essence being the substitution of legislative fiat for a
judicial determination of guilt. It is only when a statute applies either to named
individuals or to easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial that it becomes a Bill of Attainder.
ARTICLE IV — CITIZENSHIP
In the case of David v. Senate Electoral Tribunal (SET), the Supreme Court, through Justice
Leonen, noted that “Citizenship is a legal device denoting political affiliation. It is the ‘right to
have rights.’ It is one’s personal and… permanent membership in a political community… The
core of citizenship is the capacity to enjoy political rights, that is, the right to participate in
government principally through the right to vote, the right to hold public office, and the right
to petition the government for redress of grievance.”
Under the Constitution, particularly Section 1 of Article IV, there are four classes of citizens,
namely:
1. Those who are citizens of the Philippines at the time of the adoption of this
Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority; and
4. Those who are naturalized in accordance with law.
Is the enumeration under Section of Article IV of the Constitution exclusive?
- No, there are groups of individuals who are considered as Filipino citizens even if
they do not fall under any of the classes under Section 1 of Article IV. These are
FOUNDLINGS.
In the cases of Poe-Llamanzares v. COMELEC and David v. Senate Electoral Tribunal (SET),
the Supreme Court discussed the status of foundlings. The Supreme Court said that
foundlings, under international law, are required to be given citizenship. Under traditional
international law, foundlings are citizens of the State where they are found. The Supreme
Court considered this rule as a generally accepted principle of international law. Since we have
adopted the generally accepted principles of international law, pursuant to the Doctrine of
Incorporation as provided under Section 2 of Article II, the rule that foundlings are citizens of
the State where they are found is now part of our legal system.
- With that said, however, the conferment of the status of Filipino citizenship on
foundlings is only provisional. In other words, the status of Filipino citizenship of
Foundlings is only prima facie; it is disputable. This means that if there is evidence
to show that none of the parents of the child found in the Philippines is a Filipino
citizen, then the presumption may be destroyed by such evidence.
- Supposing the child of unknown parents is found in the Philippines, and
the child has blue eyes, blonde hair, and a pale complexion. Does the child
enjoy the presumption?
- Yes, the child still enjoys the presumption. According to the
Supreme Court in the case of David v. Senate Electoral Tribunal
(SET), Filipino “…citizenship is not about human thoroughbred.”
There may be Caucasians who are citizens of the Philippines. In
order to attack the citizenship of the foundling, it must be
shown that none of the parents is a Filipino citizen. The physical
features of the child are not enough. Caucasians or black
individuals may be Filipino citizens, and these citizens can
transmit their Filipino citizenship to their children.
- Thus, the child in the given example still enjoys the
presumption. It is incumbent upon those who assail
the citizenship of the child to show that none of the
parents of the child is a Filipino citizen.
Page 145 of 152
The first group Filipino citizens under Section 1 of Article IV refers to those who are citizens of
the Philippines at the time of the adoption of the 1987 Constitution. This group refers to
persons who are considered as citizens of the Philippines under the 1935 and 1973
Constitutions.
- Prior to the 1935 Constitution, citizenship could be acquired in two ways.
According to the Supreme Court in the case of Bengzon III v. House of
Representatives Electoral Tribunal (HRET), citizenship can be acquired either (1) by
naturalization, or (2) by birth.
- Marriage, as a third mode of acquiring citizenship, is a derivative
naturalization. Thus, it is covered by the mode of naturalization.
- Birth, as a mode of acquiring citizenship, could either be by virtue of (2a)
jus sanguinis, or (2b) jus soli.
- Jus sanguinis is the acquisition of citizenship by birth on the
basis of blood relationship between the parents and the child.
- Jus soli is the acquisition of citizenship by birth on the basis of
place of birth.
- Under the 1987 Constitution, we apply the jus sanguinis principle. Has
there been a period when we also applied the jus soli principle?
- Yes, there was a brief period in our history where the principle
of jus soli was also applicable.
- In the case of David v. Senate Electoral Tribunal
(SET), the Supreme Court discussed the history of
Filipino citizenship. According to the Supreme Court,
during the Spanish colonial rule, “…the native
inhabitants of the Philippine Islands were identified
not as citizens but as ‘Spanish subjects,’” or as
“indios.” The Supreme Court said that the first time
the term “citizens of the Philippines” was used was on
July 1, 1902 under the Philippine Bill of 1902. Under
the Treaty of Paris, signed by the US and Spain on
December 10, 1898, all inhabitants of the Philippine
Islands who continued to reside therein and who were
Spanish subjects upon the effectivity of the Treaty of
Paris, and who did not elect the option to continue to
be Spanish subjects, shall be considered as citizens of
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
the place where they reside. So, even the Treaty of
Paris did not consider the inhabitants of the Philippine
Islands as “citizens of the Philippines.” Again, it was
only in 1902 that the inhabitants of the Philippine
Islands were considered as “citizens of the
Philippines.” Under the Philippine Bill of 1902, there is
a cut-off date — April 11, 1899. What is the
significance of the date April 11, 1899?
- The Treaty of Paris was signed on
December 10, 1898, but unlike ordinary
contracts, treatise become effective upon
the exchange of the instrument of
ratification. The instrument of ratification
between US and Spain was exchanged on
April 11, 1899. Therefore, this is the
effectivity date of the Treaty of Paris. The
Treaty of Paris did not take effect on
December 10, 1898; it took effect on April
11, 1899. Under the Treaty of Paris, Spanish
subjects had one year from the effectivity of
the treaty to choose whether to continue
being Spanish subjects or to become a
citizen of the place where they reside. This
means that from April 11, 1899, the people
had until April 11, 1900 to choose whether
to remain as Spanish subject or to become a
citizen of the place where they reside.
- There was a debate on the status of children who were not Spanish
subjects but were born on April 11, 1899 up to July 1, 1902, because these
children were not covered by the Treaty of Paris, nor where they covered
by the Philippine Bill of 1902 since, according to the latter law, to be
considered as a “citizen of the Philippines,” the child must be a Spanish
subject as of April 11, 1899 and he has resided in the Philippines, or he
must be a child of a such person that has complied with the
aforementioned qualifications. Children born from persons who are not
Spanish subjects on April 11, 1899 up to July 1, 1902 are not included in
the description.
- In the case of David v. Senate Electoral Tribunal (SET), the
Supreme Court said that the principle of jus soli is applicable to
this group of individuals. So, children born in the Philippines on
April 11, 1899 up to July 1, 1902 to parents who are not Spanish
Page 146 of 152
subjects are also considered as Filipino citizens based on the
principle of jus soli. The Supreme Court justified that since under
that period of time, we were under American protection, then
we use the principle applied in the US, which is the principle of
jus soli. In that regard, there was a brief period of time when the
jus soli principle was applied in this jurisdiction.
- How about the 1935 Constitution? Does the 1935 Constitution apply the
principle of jus soli?
- Yes, to a limited extent, the 1935 Constitution applied the
principle of jus soli. If you look at Article IV of the 1935
Constitution, there are five groups of Filipino citizens, and the
second group provides: “Those born in the Philippine Islands of
foreign parents who, before the adoption of this Constitution,
had been elected to public office in the Philippine Islands.” This
means that children of foreign parents who are born in the
Philippines are Filipino citizens, with the condition that before
the adoption of the Constitution, they have been elected to
public office. This provision under the 1935 Constitution was
called the CARAM DOCTRINE/PRINCIPLE.
- Why was it called the Caram Doctrine/Principle?
- If you take a look at the list of the delegates
of the Constitutional Convention, you will
see a delegate named Fermin Caram. Dr.
Fermin Caram was the representative of
Iloilo, and he was born to Syrian parents. His
parents migrated to the Philippines in order
to avoid political persecution. He was born
in Iloilo and was elected as a delegate to the
Constitutional Convention. The provision
under Article IV of the 1935 Constitution
was intended to accommodate Dr. Caram.
Why?
- This was done in order to avoid
the anomaly that a delegate of the
Constitutional Convention, whose
task was to write the Constitution,
was not of Filipino origin. This was
done in order to correct this
anomaly and so that the draft of
the 1935 Constitution would be,
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
in effect, done by only Filipino
citizens. Of course, the provision
also extends to others who are
similarly situated as Dr. Caram.
- Therefore, the jus soli principle applies under the 1935 Constitution,
albeit only to a certain extent. Under the 1973 Constitution, however,
there can be no doubt that the jus soli principle is no longer applicable.
As regard to foundlings, their recognition as Filipino citizens is based on the presumption that
one of their parents is a Filipino citizen. Once that presumption is destroyed, however, a
foundling can no longer be considered as a Filipino citizen.
We now go to the third group of citizens under Section 1 of Article IV. To be considered as a
Filipino citizen under the third group, (1) the child must be born before January 17, 1973, (2)
the mother of the child must be a Filipino citizen, and (3) the child must elect Filipino
citizenship upon reaching the age of majority. These are the three conditions.
- What is the relevance of January 17, 1973?
- This is the effectivity of the 1973 Constitution. This means that the third
group under Section 1 of Article IV refers to children born under the 1935
Constitution because under the 1973 Constitution, a child born to a
Filipino mother is a natural-born citizen without having to perform any act
to acquire such citizenship.
- In the case of Tecson v. COMELEC, which involved Fernando Poe Jr. (FPJ), the
Supreme Court discussed the evolution of the provision regarding children born to
Filipino mothers under the third group. The Supreme Court discussed the
differences between children born to Filipino mothers under the 1935, 1973, and
the 1987 Constitutions.
- According to the Supreme Court, children born to Filipino mothers under
the 1935 Constitution only have an inchoate right or an expectancy that
they may become a Filipino citizen upon reaching the age of majority.
Under the 1973 Constitution, the Constitution confers citizenship to these
group of children without need to perform any act. Lastly, the 1987
Constitution did not only consider the children under the third group as
Filipino citizens, but even considered them as natural-born citizens
because under the 1973 Constitution, the status of the children born to
Filipino mothers is only naturalized citizens.
- This is in line with the ruling of the Supreme Court in Bengzon
III v. House of Representatives Electoral Tribunal (HRET) that
Page 147 of 152
there are only two kinds of Filipino citizens, namely: (1) a
natural-born citizen; or (2) a naturalized citizen. This means that
if a child is not a naturalized citizen, then he is a natural-born
citizen and vice-versa because there are only two kinds of
Filipino citizens.
- So, under the 1973 Constitution, this group of children are considered as
naturalized citizen, but under the 1987 Constitution, they are considered
as natural-born citizens.
Are all children born during the 1935 Constitution to Filipino mothers required to elect
Philippine citizenship upon reaching the age of majority? [No]
- This was answered by the Supreme Court in the case of Republic v. Chu Y. Lim. In
this case, the respondent was born to a Filipino mother and a Chinese father out of
wedlock during the 1935 Constitution, which gave her the status of an illegitimate
child. The Supreme Court said that the requirement under Commonwealth Act. No.
625 to elect Philippine citizenship upon reaching the age of majority only applies to
legitimate children. Illegitimate children born of Filipino mothers are natural-born
Filipino citizens without having the need to elect Philippine citizenship upon
reaching the age of majority. The Supreme Court said that illegitimate children
follow the citizenship of their mother. This is in line with traditional international
law because of the presumption that the mother of the illegitimate child shall have
full parental authority over the child and shall provide the support of the child. This
is why the illegitimate child shall follow the citizenship of the mother.
- Having this in mind, does this mean that a child born during the 1935 Constitution
(or before January 17, 1973) to a Filipino father and an American mother out of
wedlock is considered as an American citizen? Do we follow the ruling of the
Supreme Court in Republic v. Chu Y. Lim that such a child follows the citizenship of
the mother?
- These are the factual circumstances of the case Tecson v. COMELEC. The
person involved in this case is FPJ. FPJ was born out of wedlock during the
1935 Constitution to an American mother and the father was presumed
to be a Filipino citizen. The Supreme Court said that here, the traditional
international law that the illegitimate child shall follow the citizenship of
the mother because this law will only be applied if it will accommodate
the child to become a Filipino citizen. This rule shows the character of
citizenship laws in the Philippines. Filipino citizenship is accommodating;
it will extend general principles of international law in order to make a
child to become a Filipino citizen, but not to deprive the child the privilege
to become a Filipino citizen. So, in the case of Tecson v. COMELEC, the
Supreme Court said that under the Constitution, children born to Filipino
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
fathers are Filipino citizens without any qualification, whether they be
legitimate or illegitimate. In that regard, the express provision of the
Constitution shall apply rather than the general accepted principles of
international law.
Under Commonwealth Act No. 625, there are certain requisites for a valid election of Filipino
citizenship. According to Section 1 of Commonwealth Act No. 625, upon reaching the age of
majority, children born before January 17, 1973 (during the 1935 Constitution) to Filipino
mothers must express their intention to elect Filipino citizenship “…in a statement to be signed
and sworn to by the party concerned before any officer authorized to administer oaths, and
shall be filed with the nearest civil registry. The said party shall accompany the aforesaid
statement with the oath of allegiance to the Constitution and the Government of the
Philippines.”
- When should children born before January 17, 1973 to Filipino mother elect
Philippine citizenship?
- The 1935 Constitution provides Philippine citizenship must be elected
upon reaching the age of majority. What does the phrase “upon reaching
the age of majority” mean?
- While we have already lowered the age of majority from 21 to
18, the Supreme Court nevertheless applies the age of majority
under the 1935 Constitution. In the cases of Co v. House of
Representatives Electoral Tribunal (HRET) and In re:
Application for Admission to the Bar of Vicente Ching, the
Supreme Court said that the obligation to elect Philippine
citizenship shall start upon reaching the age of 21. But the
question is until when? I ask because the Constitution, in
essence, just says that Philippine citizenship should be elected
upon reaching the age of majority. Upon reaching the age of 21,
when is the deadline to elect Philippine citizenship?
- The Supreme Court, in the case In re: Application for
Admission to the Bar of Vicente Ching, said that it
must be exercised within a reasonable time upon
reaching the age of 21. The phrase “within a
reasonable time” has been explained to mean within
a period of 3 years upon attaining the age of 21.
Commonwealth Act No. 625 requires a formal election. Can there be an informal election of
Philippine citizenship?
Page 148 of 152
- Let’s take the cases of Co v. House of Representatives Electoral Tribunal (HRET)
and In re: Application for Admission to the Bar of Vicente Ching. The respondent
in the Co case and the petitioner in the Ching case were born under the 1935
Constitution. They were both born to Filipino mothers and Chinese fathers. Both of
them were CPAs, were elected in a local election, and they both participated during
the election.
- In the Co case the Supreme Court said that those acts were constitutive
of a formal election, but in the Ching case, the Supreme Court said that
those acts were not enough. Why is there a difference between the two
rulings?
- In the Co case, respondent’s father was naturalized when he
still 9 years old. This means that applying derivative
naturalization under Section 15 of Commonwealth Act No. 473,
respondent was considered as a citizen of the Philippines when
he was still a minor. Applying its ruling in the earlier case of In
re: Florencio Mallare, the Supreme Court said INFORMAL
ELECTION applies to those who are already citizens of the
Philippines at the time of the obligation to elect Philippine
citizenship arises. This now begs the question as to why is there
even a need to elect Philippine citizenship upon reaching the
age of majority if there are already Philippine citizens at such
time?
- The answer is that they must still elect Philippine
citizenship upon reaching the age of majority in order
to make them natural-born citizens. This means that if
respondent did not perform positive acts towards
informal election of Philippine citizenship, then at
most he would only be considered as a naturalized
citizen. However, since he has actually participated in
activities which are reserved only to Filipinos — which
included entering into a profession reserved for
Filipinos, running for local public office, and voting in
the election — the Supreme Court said that these acts
are no less than binding than the formal election
under Commonwealth Act No. 625.
- In the Ching case, on the other hand, the petitioner
was not a citizen of the Philippines when he was still a
minor. The Supreme Court said that the participation
by petitioner of activities reserved only to Filipinos
were not enough in order of him to be considered to
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
have elected Philippine citizenship. In sum, insofar as
children who are not yet citizens of the Philippines at
the time they reach the age of 21, they have to comply
with the requirements of Commonwealth Act No. 625.
- In the case of In re: Application for
Admission to the Bar of Vicente Ching, the
petitioner complied with the requirements
of Commonwealth Act No. 625 when he was
already 35 years old, or 14 years after
attaining the age of 21. The Supreme Court
said that by any stretch of interpretation, 14
years cannot be considered as reasonable
time. Thus, the Supreme Court said that it
was too late for petitioner to elect
Philippine citizenship, and that he can only
be a Filipino citizen through naturalization.
- In the case of Cabiling Ma v. Fernandez, the petitioners were born under the 1935
Constitution to a Taiwanese father and a Filipino mother. Upon reaching the age of
21, the petitioners executed a written statement of election of Filipino citizenship
under oath, and they subscribed to an oath of allegiance to support and defend the
Constitution of the Philippines. Unfortunately, however, they failed to register the
written statement and their oath of allegiance to the nearest civil registry until 30
years from the time they attained the age of 21. They only registered the written
statement and their oath of allegiance when they were already 50 years old. The
issue here is whether the petitioners could still be allowed to complete the
requirements provided under Commonwealth Act No. 625?
- The Supreme Court said yes, they can still complete the requirements
under Commonwealth Act No. 625 because the determinative fact of
electing Philippine citizenship is not registration. Registration only means
to record or to annotate. The only purpose of registration is to give notice
to the whole world. The Supreme Court said that there are other acts that
that would constitute the equivalent of registration, such as participation
in activities reserved only to Filipinos, or introducing themselves as
Filipino citizens. These acts would also be considered as giving notice to
the whole world. Therefore, the Supreme Court allowed the petitioners to
complete the requirements under Commonwealth Act No. 625 even after
30 years because they had performed activities which gave notice to the
world of their intention of electing Philippine citizenship. If, on the other
hand, they did not perform activities that gave notice to the world of their
intention to elect Philippine citizenship, then they would not have been
allowed to complete the requirements under Commonwealth Act No. 625.
Page 149 of 152
Under Section 3 of Article IV of the 1987 Constitution, “Philippine citizenship may be lost or
reacquired in the manner provided by law.”
Commonwealth Act No. 63 enumerates the modes of losing Philippine citizenship. Under this
law, one of the modes of losing Philippine citizenship has already been abrogated with the
advent of Section 4 of Article IV of the 1987 Constitution.
- Under Section 4 of Article IV of the Constitution, Filipino women who marry aliens
shall retain their Philippine citizenship, unlike under Commonwealth Act No. 63, this
was one of the modes of losing Philippine citizenship.
One of the modes of losing Philippine citizenship under Commonwealth Act No. 63 is by
naturalization in a foreign country. With the advent of R.A. No. 9225, can we say that this
mode of losing Philippine citizenship has already been invalidated? Can we say that
Commonwealth Act No. 63 has been repealed to the extent that naturalization in a foreign
country is no longer a mode of losing Philippine citizenship?
- No. The provision under Commonwealth Act No. 63 that Philippine citizenship is
lost by naturalization in a foreign country is still applicable to naturalized Filipino
citizens who subsequently are naturalized in a foreign country because R.A. No.
9225 only applies to natural-born Filipino citizens. Therefore, naturalized Filipino
citizens cannot avail of the benefits under R.A. No. 9225.
Under R.A. No. 9225, natural-born Filipino citizens who are naturalized in a foreign country
can either reacquire or retain their Philippine citizenship upon subscribing to an oath of
allegiance to support and defend the Constitution, laws and the Government of the
Philippines. Take note of the two operative facts under R.A. No. 9225 — reacquire and retain.
- “Reacquire” presupposes that one lost it and got it back, while “retain”
presupposes that the person never lost it at all.
- When do we apply the term “reacquisition”? When do we apply “retention”?
- We apply the term “reacquisition” for natural-born Filipino citizens who
were naturalized in a foreign country BEFORE the effectivity of R.A. No.
9225, or September 17, 2003.
- We apply the term “retention” for natural-born Filipino citizens who
were naturalized in a foreign country AFTER the effectivity of R.A. No.
9225, or September 17, 2003.
R.A. No. 9225 is a repatriation law. In the case of Altajeros v. COMELEC, the Supreme Court
said that a repatriation law is curative in character and retroactive in application. Under R.A.
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
No. 9225, in order for a natural-born Filipino citizen to reacquire or retain his Philippine
citizenship after being naturalized in a foreign country, he must subscribe to an oath of
allegiance to support and defend the Constitution, laws, and the Government of the
Philippines.
- Supposing A is a natural-born Filipino citizen. After the effectivity of R.A. No. 9225,
let’s say for example on January 1, 2005, A was naturalized in the US. A can retain
his Philippine citizenship by subscribing to an oath of allegiance to support and
defend the Constitution, laws, and the Government of the Philippines. Supposing A
only subscribed to an oath of allegiance on December 2, 2005. What is the status of
A during the period spanning January 1, 2005 to December 1, 2005? Is he only an
American citizen, or is he a dual citizen?
- He is a dual-citizen. Again, R.A. No. 9225 is a (1) repatriation law; it is (2)
curative in character; and it is (3) retroactive in its application.
- In this example, A is not deemed to have ever lost his Philippine
citizenship. He is deemed to have retained it even if he was naturalized in
the US. The act of subscribing to an oath of allegiance retroacts to the day
that he was naturalized in the US. In that regard, A was a dual citizen the
entire time from January 1, 2005.
Another mode of losing Philippine citizenship is by express renunciation of Philippine
citizenship.
- In the case of Yu v. Defensor-Santiago, the Supreme Court said, “EXPRESS
RENUNCIATION was held to mean a renunciation that is made known distinctly and
explicitly and not left to inference or implication.”
- Here, the petitioner was a former Portuguese citizen who was
naturalized in the Philippines. After he was naturalized in the Philippines,
he renewed his Portuguese passport, used it and introduced himself in his
travel documents as a Portuguese national. The Supreme Court
considered the totality of petitioner’s acts as an express renunciation of
his Philippine citizenship. The Supreme Court said that the totality of the
acts was “…grossly inconsistent with his maintenance of Philippine
citizenship.” In that regard, petitioner was deemed to have expressly
renounced his Philippine citizenship.
- In sum, the acquisition of a foreign passport is equivalent to renunciation
of Philippine citizenship.
- Does this mean that the use of a foreign passport would result in the
express renunciation of Philippine citizenship?
Page 150 of 152
- In the case of Maquiling v. COMELEC, the respondent is a
natural-born Filipino citizen. He was naturalized in the US. After
the effectivity of R.A. No. 9225, he reacquired his Philippine
citizenship. After the reacquisition of his Philippine citizenship,
he executed an affidavit of renunciation of his American
citizenship so that he may run for public office because under
R.A. No. 9225, those who would like to hold for public office,
either by election or appointment, would need to renounce
through an affidavit of express renunciation their foreign
citizenship. However, after renouncing his American citizenship,
respondent nevertheless used his US passport. The issue here
was whether the use of his US passport resulted in his loss of
Philippine citizenship.
- No. The Supreme Court said that the use of a foreign
passport is not one of the grounds of losing Philippine
citizenship. The only effect of respondent’s use of his
US passport is that he has then withdrawn his affidavit
of express renunciation of his American citizenship.
This means that when he used his US Passport, he
then reverted back to his status as a dual citizen. In
that regard, he can no longer run for public office
unless and until he executes an affidavit of express
renunciation.
Under Commonwealth Act No. 63, Philippine citizenship can be reacquired in three modes,
namely: (1) by naturalization; (2) by direct act of Congress; and (3) by repatriation.
- As for the mode of acquiring citizenship by direct act of Congress, this is where the
Congress enacts a law conferring Philippine citizenship to a specific individual or to
identified groups of individuals, such as the conferment of Philippine citizenship to
Andray Blatche. This is naturalization through a direct act of Congress.
- In the 1989 case of Frivaldo v. COMELEC, after being naturalized in the
US, Frivaldo returned to the Philippines when former President Marcos
was ousted. Upon returning to the Philippines, he resumed his activities
as a Filipino citizen, and he ran for public office. According to him, this
resulted in him reacquiring his Philippine citizenship.
- However, the Supreme Court disagreed. The Supreme Court
said that in order to reacquire Philippine citizenship that was
already lost, the applicant must comply with any of the three
modes of reacquiring Philippine citizenship under
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 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019
Commonwealth Act No. 63, either by naturalization, by direct
act of Congress, or by repatriation. Therefore, the mere fact that
he resumed his activities as a Filipino citizen does not result in
him reacquiring his lost Philippine citizenship.
- In this case, the Supreme Court emphatically expressed, “This
country of ours, for all its difficulties and limitations, is like a
jealous and possessive mother. Once rejected, it is not quick to
welcome back with eager arms its prodigal if repentant children.
The returning renegade must show, by an express and
unequivocal act, the renewal of his loyalty and love.”
- In sum, the mere participation in activities reserved to Filipino
citizens does not automatically confer him the lost Philippine
citizenship; he must reacquire it either by naturalization, direct
act of Congress, or by repatriation.
- In the case of Labo v. COMELEC, the petitioner here is a natural-born Filipino
citizen. He married an Australian citizen. Under the laws of Australia, petitioner was
considered as an Australian citizen by reason of his marriage. However, their
marriage was subsequently declared null and void for being bigamous. The theory
of the petitioner was that since he lost his Philippine citizenship by marrying an
Australian national, the declaration of nullity of his marriage would have the effect
of him not having lost his Philippine citizenship at all.
- The Supreme Court did not agree. The Supreme Court said that once you
are considered as a citizen of another country and you subsequently lose
such citizenship does not mean that you will automatically reacquire your
lost Philippine citizenship.
- The Supreme Court held that “Philippine citizenship is not a cheap
commodity that can be easily recovered after its renunciation. It may be
restored only after the returning renegade makes a formal act of re-
dedication to the country he has abjured and he solemnly affirms once
again his total and exclusive loyalty to the Republic of the Philippines. This
may not be accomplished by election to public office.”
Under Section 5 of Article IV of the 1987 Constitution, “Dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law.”
What does Dual Allegiance mean?
- In Mercado v. Manzano, the Supreme Court explained that Dual Allegiance
“…refers to the situation in which a person simultaneously owes, by some positive
Page 151 of 152
act, loyalty to two or more states. While dual citizenship is involuntary, dual
allegiance is the result of an individual’s volition.”
Does Dual Allegiance mean Dual Citizenship?
- In the case of Mercado v. Manzano, the issue here is the provision under Section
40(d) of R.A. No. 7160 that disqualifies dual citizens from running for any local
elective office.
- According to the Supreme Court, to the extent that the provision under
R.A. No. 7160 disqualifies dual citizens, Section 40(d) is unconstitutional
because what is prohibited by the Constitution is dual allegiance, and not
dual citizenship.
- Dual citizenship occurs, according to the Supreme Court, in cases of
conflict of laws. The Supreme Court enumerated three instances when
dual citizenship may result due to conflict of laws. The Supreme Court said
that considering the citizenship clause (Article IV) of our Constitution, it is
possible for the following classes of citizens of the Philippines to possess
dual citizenship:
1. Those born of Filipino fathers and/or mothers in foreign
countries which follow the principle of jus soli;
2. Those born in the Philippines of Filipino mothers and alien
fathers if by the laws of their fathers’ country such children are
citizens of that country; and
3. Those who marry aliens if by the laws of the latter’s country
the former are considered citizens, unless by their act or
omission they are deemed to have renounced Philippine
citizenship.
- These are the three instances when dual citizenship result because of the
conflict of laws. Dual citizenship arising from these conflicts of laws is
involuntary. Due to the conflict of laws, a person can acquire citizenship
of two states.
Remember, under R.A. No. 9225, natural-born Filipino citizens who are naturalized in a foreign
country can retain their Philippine citizenship by subscribing to an oath of allegiance to
support and defend the Constitution, laws and the Government of the Philippines. However,
all naturalization laws around the world conclude by taking an oath of allegiance. This means
that if a Filipino citizen is naturalized in the US, the naturalization in the US shall conclude by
taking an oath of allegiance to the US. But the naturalized citizen in the US can nevertheless
Richard Martin A. De Leon
 POLITICAL LAW — ATTY. ADONIS GABRIEL NOTES 2019

retain his Philippine citizenship by subscribing to an oath of allegiance to the Philippines. Is

this not dual allegiance? I ask because here, the person has an oath of allegiance to the US
and to the Philippines. Can we say that this is scenario that is prohibited by the Constitution?

- The answer is no because once a person subscribes an oath of allegiance to the

Philippines, it erases all previous allegiances, regardless of the effect of that
allegiance to the other states. Even if the other states do not consider the oath of
allegiance to the Philippines as a renunciation of allegiance to that foreign country,
our laws consider that as a renunciation. So, in the eyes of our laws, there is only
one allegiance, which is the allegiance to our Constitution and laws.

Supposing the citizenship of a candidate to an elective office is being challenged for not being
a Filipino citizen, and the protester submitted evidence in the form of a US passport to show
that the candidate is an American citizen. Does this categorically show that the candidate is
not a Filipino citizen?

- This was answered by the Supreme Court in the case of Aznar v. COMELEC. Here,
respondent Osmeña was being challenged as not being a Filipino citizen. The
petitioner presented respondent Osmeña’s US passport to show that he was not a
Filipino citizen. The Supreme Court said that evidence only shows that he is an
American citizen, and it does not disprove that he is a Filipino citizen. By analogy,
the Supreme Court said, if a person has two brothers — one named Mario and the
other, Jose — proving that he has a brother named Mario does not prove that he
does not have a brother named Jose, and vice-versa. Similarly, if a student is
enrolled in University X and in University Y, proving that he is enrolled in University
X does not necessarily mean that he is not enrolled in University Y.

- Going back to the case of Aznar v. COMELEC, the presentation of respondent

Osmeña’s US passport only means that he is an American citizen, but it does not
mean that he is not a Filipino citizen.

- According to the Supreme Court, in order to show that respondent Osmeña is not
a Filipino citizen, the petitioner must show that none of his parents is a Filipino
citizen, or that he lost his Philippine citizenship under any of the modes of losing
Philippine citizenship as provided by Commonwealth Act No. 63. In that regard, the
Supreme Court sustained the citizenship of respondent Osmeña.

—NOTHING FOLLOWS —

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