 The balancing of interests test.

The function of the Court is to balance the interests served by

legislation against the freedoms affected by it. BERNAS: Professor Kauper explained the rule thus:
The theory of balance of interests represents a wholly pragmatic approach to the problem of First
Amendment freedom, indeed, to the whole problem of constitutional interpretation. It rests on the
theory that it is the Court's function in the case before it when it finds public interests served by
legislation on the one hand and First Amendment freedoms affected by it on the other, to balance the
one against the other and to arrive at a judgment where the greater weight shall be placed. If on
balance it appears that the public interest served by restrictive legislation is of such a character that it
outweighs the abridgment of freedom, then the Court will find the legislation valid. In short, the
balance-of-interests theory rests on the basis that constitutional freedoms are not
absolute, not even those stated in the First Amendment, and that they may be abridged to some
extent to serve appropriate and important interests. Cited in Gonzales v. Comelec, 27 SCRA 835,899
(1969). 
 Freedom of expression is not absolute. (Justice Carpio, Inq., April 9,2020) Four exceptions when
the State may impose prior restraint, or subsequent punishment, on the exercise of freedom of
expression, namely: pornography, false or misleading advertisement, advocacy of imminent lawless
action, and danger to national security. The very high bar or standard to hurdle before the
State can successfully invoke these exceptions. The State must establish that the expression
creates a clear and present danger of an evil that the State has a right and duty to prevent. The
danger from the expression must be extremely imminent, and the evil must be substantive and
extremely serious. (https://opinion.inquirer.net/128762/our-greatest-freedom#ixzz6rGPbCEd9)
 Diocese of Bacolod vs. Commission On Elections (GR No. 205728, January 21, 2015). The
Commission on Elections (COMELEC) does not have the competence to limit expressions made by the
citizens — who are not candidates — during elections. ESCRA: Fair Elections Act (R.A. No. 9006);
Section 17 of Commission on Elections (COMELEC) Resolution No. 9615, the rules and regulations
implementing the Fair Elections Act, regulating the posting of campaign materials only apply to
candidates and political parties, and petitioners are neither of the two. 

 Why regulation is unconstitutional. Regulation is inconsistent with according fullest opinion and
debate by the electorate. 

 ESCRA: In this case, the size regulation is not unrelated to the suppression of speech. Limiting the
maximum size of the tarpaulin would render ineffective petitioners’ message and violate their right to
exercise freedom of expression. The COMELEC’s act of requiring the removal of the tarpaulin has the
effect of dissuading expressions with political consequences. These should be encouraged, more so
when exercised to make more meaningful the equally important right to suffrage. 
 ESCRA: Clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC, 288 SCRA 447 (1998) and National
Press Club v. COMELEC, 207 SCRA 1 (1992). Regulation of speech in the context of electoral
campaigns made by persons who are not candidates or who do not speak as members of a
political party which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is inconsistent
with the guarantee of according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and robust debate in the
criteria for the choice of a candidate. 
 Declarative speech is a specie of speech by a private citizen who is not a candidate that
may be validly regulated by law. ESCRA: Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak
as members of a political party if they are not candidates, only if what is regulated is declarative
speech that, taken as a whole, has for its principal object the endorsement of a candidate
only. 
 Requisites of a valid regulation. The regulation (a) should be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive
means to achieve that object. 
 COMELEC may not order petitioners, who are private citizens, to remove the tarpaulin
from their own property. ESCRA: Freedom of expression can be intimately related with the right to
property. There may be no expression when there is no place where the expression may be made.
COMELEC’s infringement upon petitioners’ property rights as in the present case also reaches out to
infringement on their fundamental right to speech. 
 The message in the tarpaulin does not constitute religious speech the prohibition of which
is a violation of religious freedom. The tarpaulin does not convey any religious doctrine of the
catholic church. ESCRA: As aptly argued by COMELEC, however, the tarpaulin, on its face, “does not
convey any religious doctrine of the Catholic church.” That the position of the Catholic church appears
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 to coincide with the message of the tarpaulin regarding the RH Law does not, by itself, bring the
expression within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to
candidates classified under “Team Patay” and “Team Buhay” according to their respective votes on the
RH Law. 
 The expressions on the tarpaulin is not an ecclesiastical matter. The position of the Catholic
religion  as regards the RH Law does not suffice to qualify the posting as religious speech. ESCRA:
The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression on the tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful, the
church doctrines relied upon by petitioners are not binding upon this court. The position of the Catholic
religion in the Philippines as regards the RH Law does not suffice to qualify the posting by one of its
members of a tarpaulin as religious speech solely on such basis. The enumeration of candidates on the
face of the tarpaulin precludes any doubt as to its nature as speech with political consequences and
not religious speech. 
 Unprotected speech: Freedom of expression has never been understood to be an absolute right.
Some forms of speech are not protected. 
 Two types of unprotected speech: libel and obscenity. PRIMER: "There are certain well defined
and narrowly limited classes of speech, the prevention and punishment of which has never been
thought to raise any constitutional problems." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-2
(1942). These are libel and obscenity. "It has been well observed that such utterances are no essential
part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social interests in order and morality."
Chaplinsky v. New Hampshire, 315 U.S. 572 (1942). 
 A libel is a public and malicious imputation of a crime, or of a vice, or a defect, real or imaginary,
or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead. Article 353
of the Revised Penal Code   
 To be liable for libel, the following elements must be shown to exist: (1) the allegation of a
discreditable act or condition concerning another; (2) publication of the charge; (3) identity of the
person defamed; and (4) existence of malice.
 The speech is libelous when the imputation is public and malicious. 
 The imputation is public when the defamatory statement is made known to someone other than the
person to whom it is written. PRIMER: The reason for such rule is that 'a communication of the
defamatory matter to the person defamed cannot injure his reputation though it may wound his self-
esteem. A man's reputation is not the good opinion he has of himself, but the estimation in which
others hold him." (Ledesma v. Court of Appeals, G.R. No. 113216, September 5,1997, 278 SCRA 656,
686-87) 
 It is malicious when the author of the imputation is prompted by ill will or spite and speaks not in
response to duty but merely to injure the reputation of the person who claims to have been defamed.
 If a speech is not malicious, even if defamatory, it is privileged. (Alonzo v. CA, 241 SCRA 51 (1995).
BERNAS: ”The rule on privileged communication is that a communication made in good faith on any
subject matter in which the communicator has an interest, or concerning which he has a duty, is
privileged if made to a person having a corresponding interest, although it contains incriminatory
matter which, without the privilege, would be libelous and actionable.”
 Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown. Article 354 of the Revised Penal Code   
 Are pleadings privileged? Under what condition may it be privileged? (Armovit v. Judge
Purisima, GR No. 39258, November 15, 1982). PRIMER: Q: In a suit for collection of money owed,
the answer of defendants attributed "usurious loan transaction" to the plaintiff, called plaintiff
"scheming," and accused plaintiff of "fraudulent distortions." Can such an answer be a ground for
damages?  A: The prevailing rule is that parties, counsels, and witnesses are exempted from liability in
libel or slander for words otherwise defamatory published in the course of judicial proceedings
provided the statements are relevant to the case. The statements are relevant to the defense of usury.
 When may criticisms of a public figure constitutionally protected? When not protected?
When the object of criticism is his strictly private life, defamatory imputations are not constitutionally
protected expression. When, however, his public acts are the object of criticism, constitutional
immunity applies. BERNAS: True criticism of a person's fitness for office is always fair and, therefore,
privileged; false criticism is not privileged if malicious, that is, when used as a cloak for assaults on a
person's private life. Hence, good faith is always a valid defense in a suit for defamatory imputations
against a person's moral, mental or physical fitness for office.
 The right to assembly and petition may be impaired. What are the allowable standards for
its impairment? Since the right to assembly and petition is equally fundamental as freedom of
expression, the standards for allowable impairment of speech and press are also those for assembly
and petition. The dangerous tendency rule, the clear and present danger rule and the
balancing of interest rule.

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 US v. Apurado, 7 Phil 422 (1907). BERNAS: In US v. Apurado which involved a spontaneous
gathering of some five hundred men to demand the ouster of certain municipal officials. No permit was
involved. But the significant point was that, in a prosecution for sedition, the Court, invoking the right
of assembly and petition, was willing to allow for a certain amount of disorder: 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 ... If instances
of disorderly conduct occur on such occasions, the guilty individuals should be sought out and
punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly
conduct and seditious conduct and between an essentially peaceable assembly and a tumultuous
uprising.
 Evangelista v. Earnshaw, 57 Phil 255 (1932),  the dangerous tendency rule. BERNAS: FACTS:
Evangelista, a Communist leader, had requested permission to hold a meeting in Plaza Moriones in
Manila. The meeting was to be followed by a parade and the delivery to the Governor-General of a
message from labor. Earnshaw, the city Mayor, refused permission and prohibited all Communist
meetings. Previous to this, meetings had been had with prior permission "in which seditious speeches
were made urging the laboring class to unite by affiliating to the Communist Party of the Philippines in
order to be able to overthrow the present government, and stirring up enmity against the insular and
local police forces by branding the members thereof as the enemies of the laborers and as tools of the
capitalists and imperialists for oppressing the said laborers. RULING: In upholding the Mayor's
refusal, the Court said: [It] must be considered that the respondent mayor, whose sworn duty it is "to
see that nothing should occur which would tend to provoke or excite the people to disturb the peace
of the community or the safety or order of the Government," did only the right thing under the
circumstances... Instead of being condemned or criticized, the respondent mayor should be praised
and commended for having taken a prompt, courageous, and firm stand towards the said Communist
Party of the Philippines before the latter could do more damage by its revolutionary propaganda, and
by the seditious speeches and utterances of its members. 
 Primicias v. Fugoso, 80 Phil 71 (1948), the clear and present danger rule. BERNAS: FACTS: The
case was a petition for mandamus instituted by Cipriano Primicias, campaign manager of the
Coalesced Minority Parties, against Mayor Valeriano Fugoso of Manila to compel him to issue a permit
for the holding of a public meeting at Plaza Miranda. The meeting was to be an indignation rally in
protest against the alleged fraud committed by the Liberal Party in the recent elections. In refusing the
permit, the Mayor had given as his reason the fact that "there was a reasonable ground to believe,
basing upon [sic] previous utterances and upon the fact that passions, specially on the part of the
losing groups, remain bitter and high, that similar speeches will be delivered tending to undermine the
faith and confidence of the people in their government, and in the duly constituted authorities which
might threaten breaches of the peace and a disruption of public order." RULING: In rejecting the
Mayor's contention, the Court said that the right of the applicant to a permit was subject only to the
Mayor's "reasonable discretion to determine or specify the streets or public places to be used for the
purpose, with a view to prevent confusion by overlapping, to secure convenient use of the streets and
public places by others, and to provide adequate and proper policing to minimize the risk of disorder."
It rejected the notion that "comfort and convenience in the use of streets or parks [was] the standard
of official action." It adopted as its own the concurring opinion of Justice Brandeis in Whitney v.
California. To justify suppression of free speech there must be reasonable ground to fear that serious
evil will result if free speech is practiced. There must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is
a serious one ..." Distinguishing the present case from the Earnshaw case, the Court said: The popular
meeting or assemblage intended to be held therein by the Communist Party of the Philippines was
clearly an unlawful one, and therefore the Mayor of the City of Manila, had no power to grant the
permit applied for..
 JBL Reyes v. Mayor Bagatsing, GR 65366,  October  25, 1983. The Court adopted the clear and
present danger test. BERNAS: FACTS: Towards the end of the Marcos regime, however, and after
the assassination of Benigno Aquino, Jr., the Supreme Court showed occasional sign of vigor. Retired
Justice JBL Reyes, in behalf of the Anti-Bases Coalition, sought a permit from the Mayor of Manila for
the use of the empty field in front of the Luneta Grandstand and Roxas Boulevard in front of the U.S.
Embassy on October 26,1983, from 2 to 5 p.m. The petitioners were sponsoring an International
Conference for General Disarmament, World Peace, and the Removal of All Foreign Military Bases and
proposed a March for Philippine Sovereignty and Independence, participated in by foreign and
Philippine delegates. The march was to proceed from the Luneta to the gate of the U.S. Embassy
where a short program would be held. The Mayor refused the permit (1) because his office was "in
receipt of police intelligence reports which strongly militate against the advisability of issuing such
permit at this time at the place applied for" and (2) because Ordinance No. 7295, in accordance with
the Vienna Convention, prohibits rallies or demonstrations within a radius of 500 feet from any foreign

3
 mission or chancery. Should permit be granted? RULING: The Supreme Court found the vigor to say
that permit should be granted. In sum the Court said: (1) to justify limitations on freedom of assembly
there must be proof of sufficient weight to satisfy the "clear and present danger test;" (2) there was
no showing that the distance between the chancery and the gate is less than 500 feet. And even if it
were, the ordinance would not be conclusive because it still must be measured against the
requirement of the Constitution.
 PRIMER: Q. Summarize the rules on assembly and petition enunciated inJ.B.L. Reyes v. Bagatsing. A.
The applicant for a permit to hold an assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. (If it is a private place, only the consent of the
owner or of the one entitled to its legal possession is required.) Such application should be filed well
ahead in time to enable the public official concerned to appraise whether there may be valid objections
to the grant of the permit or to its grant but to another public place. It is an indispensable condition to
such refusal or modification that the clear and present danger test be the standard for the decision
reached. The presumption must be to incline the weight of the scales of justice on the side of liberty.
If public authority is of the view that there is such an imminent and grave danger of a substantive evil,
the applicants must be heard on the matter. Thereafter, the decision of public authority, whether
favorable or adverse, must be transmitted to the applicants at the earliest opportunity. Thus, if so
minded, they can have recourse to the proper judicial authority. Id.
 The right to peaceably assemble and petition must be discussed in relation to 
 Sec. 18, Art. II - The State affirms labor as a primary social economic force. It shall protect the rights
of workers and promote their welfare.; 
 Sec 8, Art III - The right of the people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law shall not be abridged.; 
 Sec 3, Art XIII - The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled
to security of tenure, humane conditions of work, and a living wage. They shall also participate in
policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their
mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its
just share in the fruits of production and the right of enterprises to reasonable returns to investments,
and to expansion and growth.; and also 

 Sec 2 (5) B, Art IX - The right to self-organization shall not be denied to government employees.

 Question: Which rule is more in keeping with the spirit of the constitutional guarantees of free
expression, of peaceful assembly and petition, the dangerous tendency rule or the clear and present
danger rule.

Section 5.  No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights. 

This section is related to Article VI, Section 29(2) "No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other
religious teacher or dignitary as such, except when such priest, preacher minister, or dignitary is
assigned to the Armed Forces, or to any penal institution, or government orphanage or leprosarium."
And Article II, Section 6 "The separation of Church and State shall be inviolable." Along this line too
is the provision which prohibits religious denominations and sects from being registered as political
parties or organizations. Article IX, C, Section 2(5).

 The twin mandates of the constitutional provision: The non-establishment clause and the free
exercise clause. The first prohibits the establishment of any religion and the second guarantees the
free exercise of religion. 

4
 Non-establishment clause.

MEANING: Board of Education v. Everson, 330 U.S. 1, 15-16 (1946) interpreted the clause thus: Neither
a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion,
aid all religions, or prefer one religion over another... Neither... can, openly or secretly, participate in
the affairs of riiiy religious organizations or groups and vice versa. In the words of Jefferson, the
clause against establishment of religion by law was intended to erect "a wall of separation between
Church and State.” PURPOSE: While there is no unanimity in the interpretation of non- establishment
as a political principle, there is substantial agreement on the values non-establishment seeks to
protect. These are two: voluntarism and insulation of the political process from interfaith dissension.

 The text of the section is the same in the 35, 73 and 87 constitutions. ORIGIN: ARTICLE X
of Treaty of Paris - The inhabitants of the territories over which Spain relinquishes or cedes her
sovereignty shall be secured in the free exercise of their religion.
 The essence of the free exercise clause is the freedom of belief. It is based on the respect for
the inviolability of the human conscience. BERNAS: On the one hand, it forestalls compulsion by law
of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and
freedom to adhere to such religious organization or form of worship as the individual may choose
cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of
religion. Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The
first is absolute, but in the nature of things, the second cannot be.
 Reynolds v. US, 98 US 145, the free exercise clause completely insulated the realm of belief from
state action, leaving, however, religiously motivated action, including expression, subject to police
power. BERNAS: The scope of governmental action, however, as it gets involved with ends and
values of varying importance, is an expanding one and frequently comes into conflict with religiously
motivated action or expression. Thus, the judicial task in free exercise cases is one of balancing the
secular interest of the state with the interest of religion.
 Cantwell v. Connecticut, 310 US 296. The constitutional inhibition on legislation on the subject of
religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any
creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such
religious organization or form of worship as the individual may choose cannot be restricted by law. On
the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment
embraces two concepts — freedom to believe and freedom to act. The first is absolute, but in the
nature of things, the second cannot be.

 People v. Fabillar, 68 Phil. 584 (1939). BERNAS: FACTS. In People v. Fabillar, Section 34 of the
old Marriage Law, which empowered the Director of the National Library to satisfy himself whether the
"church, sect or religion of the applicant [for license to perform marriage] operates in the Philippine
Islands and is in good repute," was challenged as unconstitutional on the ground that it in effect
empowered the Director to enquire into the organization and doctrine of the church or sect. RULING.
The Court, answering the objection said: The duty thus conferred is not one of enquiring into the
organization or doctrine of a particular church or religion, but a duty to distinguish and discriminate
between a legitimately established religion or church and one that pretends to be such, as a
prerequisite to the issuance of a certificate of authority. The law, therefore, in no sense prohibits or
impairs the free exercise of any religion. On the contrary, it purports to protect every legitimately
established religion from the imposture of pseudo or spurious religious organizations which ostensibly
appear to be dedicated to the practice of religion and the exercise of particular faith but which in
reality are mere marriage agencies.
 American Bible Society v. City of Manila, 101 Phil. 386 (1957). BERNAS: FACTS. Plaintiff was
a non-stock, non- profit, religious missionary corporation which in the course of its ministry sold bibles
and gospel portions of the bible. An attempt was made by the City of Manila to compel the plaintiff to
obtain both a Mayor's permit and a municipal license required of those who are engaged in the
business of general merchandise. Plaintiff challenged this attempt on the ground that it amounted to
"religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the

5
 distribution and sale of bibles and other religious literature to the people of the Philippines.” RULING.
In holding for the plaintiff, the Supreme Court said that the constitutional guarantee was plaintiff's
license. "The constitutional guarantee of the free exercise and enjoyment of religious profession and
worship carries with it the right to disseminate religious information. Any restraint of such right can
only be justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent.”
 Imposition of civic obligations that conflict with one’s religious beliefs. 

 Gerona v. Sec. of Educ., 106 Phil. 2 (1969). FACTS. The case involved a challenge by Jehovah's
Witnesses against a Department Order issued by the Secretary of Education implementing Republic Act
1265 which prescribed compulsory flag ceremonies in all public schools. Petitioner's children had
refused to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge; hence,
they were expelled from school. ISSUE. Does the Flag Salute Law requiring compulsory participation
by public school students in flag ceremonies violate either the free exercise or the non-establishment
clause? RULING. The flag is not an image but a symbol of the Republic of the Philippines, an emblem
of national sovereignty, of national cohesion and of freedom and liberty which it and the Constitution
guarantee and protect. Considering the complete separation of church and state in our system of
government, the flag is utterly devoid of any religious significance. Saluting the flag consequently does
not involve any religious ceremony…
 Ebralinag v. Div. Sup. Of Schools of Cebu, 219 SCRA 256 (1993). BERNAS: Gerona lasted until 1993
when Ebralinag v. Division Superintendent of Schools of Cebu reversed it, for reasons already stated in
the criticism of Gerona, saying that freedom of religion requires that protesting members be exempted
from the operation of the law. ESCRA: (1) Our task here is extremely difficult, for the 30-year-old
decision of this Court in Gerona upholding the flag salute law and approving the expulsion of students
who refuse to obey it, is not lightly to be trifled with. It is somewhat ironic however, that after the
Gerona ruling had received legislative cachet by its incorporation in the Administrative Code of 1987,
the present Court believes that the time has come to reexamine it. The idea that one may be
compelled to salute the flag, sing the national anthem, and recite the patriotic pledge,
during a flag ceremony on pain of being dismissed from one's job or of being expelled
from school, is alien to the conscience of the present generation of Filipinos who cut their
teeth on the Bill of Rights which guarantees their rights to free speech and the free
exercise of religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV,
Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution). (2) Exemption may be
accorded to the Jehovah's Witnesses with regard to the observance of the flag ceremony
out of respect for their religious beliefs, however "bizarre" those beliefs may seem to
others. Nevertheless, their right not to participate in the flag ceremony does not give them
a right to disrupt such patriotic exercises.
 The non establishment clause simply means that the state cannot establish or sponsor an official
religion.

 It prohibits the state from passing laws which aid one religion, aid all religions, or prefer one religion
over another. BERNAS: The intermediate views are chiefly two: (1) the non-establishment clause
prohibits only direct support of institutional religion but not support indirectly accruing to churches and
church agencies through support given to members; (2) both direct and indirect aid to religion are
prohibited but only if the support involves preference of one religion over another or preference of
religion over irreligion 
 Austria v. NLRC, GR 124382, Aug 16/99. Secular authority has no jurisdiction over ecclesiastical
matters. PRIMER: FACTS. Pastor Austria has been a pastor of the Seventh Day Adventist for 28
years. An investigation by the congregation authorities revealed that Austria could not account for
church tithes and offerings collected by his wife. He was dismissed and the dismissal was upheld by
the NLRC, Austria challenges the jurisdiction of the NLRC saying that the matter was an ecclesiastical
affair outside the jurisdiction of the NLRC. RULINGS. The case does not concern an ecclesiastical or
purely religious affair. An ecclesiastical affair is "one that concerns doctrine, creed or form or 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. Simply stated, what is involved here 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 doctrines of the church. BERNAS: The Court saw the
matter as a pure labor case
 Aglipay v. Ruiz, 64 Phil. 206. FACTS: Petitioner Aglipay, the head of Phil. Independent Church,
filed a writ of prohibition against respondent Ruiz, the Director of Post, enjoining the latter from
issuing and selling postage stamps commemorative of the 33rd Intl Eucharistic Congress organized by
the Roman Catholic. The petitioner invokes that such issuance and selling, as authorized by Act 4052

6
 by the Phil. Legislature, contemplates religious purpose – for the benefit of a particular sect or church.
ISSUE: Whether or not the issuing and selling of commemorative stamps is constitutional? RULING:
The issuance of the postage stamps in question by the Director of Posts and the Secretary of
Public Works and Communications was not inspired by any sectarian feeling to favor a
particular church or religious denomination. The stamps were not issued and sold for the benefit
of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that
church. The only purpose in issuing and selling the stamps was "to advertise the
Philippines and attract more tourists to this country." The officials concerned merely took
advantage of an event considered of international importance "to give publicity to the Philippines and
its people."
 Concession on taxes on property used for religious purposes. The condition for the exemption
is not just that the property be used exclusively for religious purposes but that it be used actually,
directly and exclusively for such purpose. Article VI, Section 28(3) says: "Charitable institutions,
churches, parsonages or convents appurtenant thereto, mosques, and non-profit cemeteries, and all
lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable, or
educational purposes shall be exempt from taxation." 
 Purpose of the provision prohibiting religious test. To allow religious test would have the effect
of formal or practical establishment of a particular religious faith. PRIMER: The purpose of this
provision, which is but a corollary Of the freedom and non-establishment clause, is to render the
government powerless "to restore the historically and constitutionally discredited policy of probing
religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly,
profess to have a belief in some particular kind of religious concept." Torcaso v. Watkins, 367 U.S. 488
(1961). For, indeed, to allow religious tests would have the effect of "formal or practical
'establishment' of particular religious faiths . . . with consequent burdens imposed on the free exercise
of the faiths of non-favored believers." Id. at 490.
 The case of conscientious objectors. Can the state compel a person to bear arms in defense of
the country even when bearing arms is contrary to the person's beliefs? BERNAS: Philippine
jurisprudence has not yet had the opportunity to deal with the problem of conscientious objectors.
However, Section 17, Article XIV, of the 1987 Constitution provides that "The State shall recognize,
respect, and protect the rights of indigenous cultural communities to preserve and develop their
cultures, traditions, and institutions. It shall consider these rights in the formulation of national
plans and policies." In other words, the fact that an obligation has been imposed on citizens by the
Constitution to defend the State (Article II, Section 4) does not mean that the obligation imposed
overrides all rights.

US Jurisprudence: PRIMER: It should be noted, however, that when the State exempts a person from
military service on religious grounds, the State in effect gives preferential treatment to religious
affiliations which object to war over religious affiliations which do not object to war. Is not such an
exemption then contrary to the non-establishment clause? Gillete v. United States, 401 U.S. 437
(1971) dealt with this question and answered that the exemption could violate neutrality only if
it is religiously motivated on its face. Id. at 450 (1971), or when it is religiously discriminatory. Id.
at 452. This was not the case in Gillete because the Court found that the exemption in question was
supported by valid reasons, neutral with respect to religion, such as the need to insure a fair and
uniform system for deciding, who will and will not be forced to serve. Id. at 461.

 The state may support church social action centers. Requirements: (1) must have a secular
legislative purpose; (2) must have a primary effect that neither advances nor inhibits religion; (3) must
not require excessive entanglement with recipient institutions. 
 Estrada v. Escritor, AM No. P-02-1651, 2003, 2004. BERNAS: ISSUE. The case was about a
clerk of court who was living with a man without benefit of marriage. Her situation was thought to be
incompatible with her office in court and her dismissal from the service was being sought.
RESOLUTION. The Supreme Court remanded the case to the Office of the Court Administrator, and
the Solicitor General was ordered to intervene in the case. He was instructed (a) to examine the
sincerity and centrality of respondent's claimed religious belief and practice; (b) to present evidence on
the state's "compelling interest" to override respondent's religious belief and practice; and (c) to show
that the means the state adopts in pursuing its interest is the least restrictive to respondent's religious
freedom. On reconsideration, the clerk of court's right was upheld on the basis of "benevolent
neutrality." ESCRA: The adoption of the benevolent neutrality-accommodation approach does not
mean that the Court ought to grant exemptions every time a free exercise claim comes before it;
Although benevolent neutrality is the lens with which the Court ought to view religion clause cases, the
interest of the state should also be afforded utmost protection—under the framework, the Court

7
 cannot simply dismiss a claim under the Free Exercise Clause because the conduct in question offends
a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the
Constitution; Our constitutional history and interpretation indubitably show that benevolent neutrality
is the launching pad from which the Court should take off in interpreting religion clause cases.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or public
health, as maybe provided by law.

 Freedom of movement involves two rights: The liberty of abode and the liberty of travel.
 …except upon lawful order of the court. A clear example of an allowable order of a court would
be a condition imposed in connection with the grant of bail. 
 Marcos v. Manglapus, 177 SCRA 66(89). The authority to impair the right to travel must be based
on law.  The court found this authority in the totality of executive powers, both stated and unstated in
the constitution. BERNAS: FACTS. The case dealt with the ban of President Aquino on the former
President's return to the Philippines. The ban was challenged as violative of the right to travel and the
right to return to one's abode. The Court treated it merely as involving the right to travel. And since
the authority to impair the right to travel must be based on law, the President had to be able to point
to a law giving her such authority. RULING. (1) The Court, speaking through Justice Cortes, found
this in the totality of executive powers, both stated and unstated in the Constitution,
explicit and residual.  (2) The Court also said that the right to travel guaranteed in the
Constitution involves the right to travel within the country, the right to leave the country,
but not the right to return to the country. (3) The court also did another unusual thing. It said:
"This case is unique. It should not create a precedent, for the case of a dictator forced out of office
and into exile after causing twenty years of political, eco- nomic and social havoc in the country and
who within the short space of three years seeks to return, is a class by itself."

 Arroyo v. De lima, 861 SCRA 325, April 17, 2018. FACTS: Petitioners, particularly Spouses
Arroyo, file temporary restraining order against the issued HDO and WLO of DOJ seeking relief and
grant from court to allow them to travel so that former president Arroyo may seek medical treatment
abroad. The court granted relief sought on a condition that petitioners will file a bond of PhP2M, an
undertaking that petitioners shall report to Philippine consulate in the countries they are to visit
(Germany, Singapore, USA, Italy, Spain and Austria) and shall appoint a representative to receive on
their behalf subpoena, orders and other legal processes. Petitioners complied with all the conditions.
Instead of following the order of the court, DOJ caused for the refusal to process the petitioners travel
documents. RULING. The Court is in quandary of identifying the authority from which the DOJ
believed its power to restrain the right to travel emanates. To begin with, there is no law particularly
providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the
interest of national security, public safety or public health. As it is, the only ground of the former DOJ
Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation
of the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral
sabotage against them. To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment
which underwent the scrutiny and concurrence of lawmakers, and submitted to the President for
approval. It is a mere administrative issuance apparently designed to carry out the provisions of an
enabling law which the former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise
known as the “Administrative Code of 1987.”

Section 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and to papers pertaining to
official acts, transactions, or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject to such limitations as
maybe provided by law. 

 The rights guaranteed by the provision:  (1) the right to information on matters of public concern
and (2) the corollary right to access to official records and documents.

8
BERNAS: The constitutional right, however, does not mean that every day is an open house in public
offices. The right given by the Constitution is "subject to such limitations as may be provided by law."
Thus, while access to official records may not be prohibited, it certainly may be regulated. The
regulation can come either from statutory law and from what the Supreme Court has called the
"inherent power [of an officer] to control his office and the records under his custody and ... to
exercise [some discretion] as to the manner in which persons desiring to inspect, examine, or copy the
record may exercise their rights.

 These rights are political rights available to citizens only.  “shall be afforded the citizen”
 The right to access is a self executory constitutional right. BERNAS: The 1973 recognized the
right of access to public documents and records as a self- executory constitutional right. The role given
to the National Assembly was not to give the right but simply to set limits on the right given by the
Constitution. The right, moreover, was a public right where the real parties in interest are the people.
Hence, every citizen has "standing" to challenge any violation of the right and may seek its
enforcement by mandamus, The 1987 Constitution has preserved the 1973 text.
 Chavez v. PEA-AMARI, GR No. 133250, July 9, 2002. While the evaluation or review is still on-
going, there are no "official acts, transactions, or decisions" on the bids or proposals. PRIMER: Q.
May the government, through the PCGG, be required to reveal the proposed terms of a compromise
agreement with the Marcos heirs as regards their alleged ill-gotten wealth? {i.e., does the right to
information include access to the terms of government negotiations prior to their consummation or
conclusion?) A.  Information, for instance, on on-going evaluation or review of bids or
proposals being undertaken by the bidding or review committee is not immediately
accessible under the right to information. While the evaluation or review is still on-going, there
are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee
makes its official recommendation, there arises a "definite proposition" on the part of the government.
From this moment, the public's right to information attaches, and any citizen can access all the non-
proprietary information leading to such definite proposition.

 Recognized limitations to the exercise of the right to information. BERNAS: In Chavez v.

President Commission on Good Government, the Court enumerated some of the recognized limittions
on the right to information. These are: 

1. National security matters. These include state secrets regarding military, diplomatic and other
national security, and information on inter-government exchanges prior to the conclusion of treaties
and executive agreements. Where there is no need to protect state secrets, the privilege to withhold
documents and other information may not be invoked, provided that they are examined "in strict
confidence" and given "scrupulous protection."
2. Trade secrets and banking transactions, pursuant to the Intellectual Property Code (R.A. No.
8283) and other related laws, and to the Secrecy of Bank Deposits Act (R.A. No. 1405)
3. Criminal matters or classified law enforcement matters, "such as those relating to the apprehension,
the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest,
detention and prosecution." Otherwise, efforts at effective law enforcement would be seriously
jeopardized
4. Other confidential matters. The Ethical Standards Act (R.A. No. 6713) prohibits public officials and
employees from using or divulging "confidential or classified information officially known to them by
reason of their office and not made available to the public." Other acknowledged limitations include
diplomatic correspondence, closed door Cabinet meetings and executive sessions of wither house of
Congress, and the internal deliberations of the Supreme Court. Chavez v. President Commission on
Good Government.

Section 8. The right of the people, including those employed in the public and private
sectors, to form unions, associations, or societies for purposes not contrary to law shall
not be abridged.

  All it means is that the right to form associations shall not be impaired without due
process of law. PRIMER: All it means is that the right to form associations shall not be impaired
except through a valid exercise of police power. It is therefore an aspect of the general right of liberty.
More specifically, it is an aspect of freedom of contract; and in so far as associations may have for

9
 their object the advancement of beliefs and ideas, freedom of association is an aspect of freedom of
expression and of belief. The guarantee also covers the right not to join an association.
 Philippine Association of Free Labor Unions v. Sec. of Labor,  27 SCRA 41 (1969). The
registration prescribed by the law is not a limitation to the right of assembly or association, which may
be exercised with or without said registration. BERNAS: ISSUE: In Philippine Association of Free
Labor Unions v. Secretary of Labor, Section 23 of R.A. No. 875 requiring the registration of labor
unions was challenged as violative of the Bill of Rights. RULING: The challenge was answered by
Chief Justice Concepcion thus: The theory to the effect that Section 23 of Republic Act No. 875
unduly curtails the freedom of assembly and association guaranteed in the Bill of Rights is
devoid of factual basis. The registration prescribed in paragraph (b) of said section is not a
limitation to the right of assembly or association, which may be exercised with or without said
registration. The latter is merely a condition sine qua non for the acquisition of legal personality by
labor organizations, associations, or unions and the possession of the "rights and privileges granted by
law to legitimate labor organizations." The Constitution does not guarantee these rights and privileges,
much less said personality, which are mere statutory creations, for the possession and exercise of
which registration is required to protect both labor and the public against abuses, fraud, or impostors
who pose as organizers, although not truly accredited agents of the union they purport to represent.
Such requirement is a valid exercise of the police power, because the activities in which labor
organizations, associations and union or workers are engaged affects public interest, which should be
protected. Furthermore, the obligation to submit financial statements, as a condition for the non-
cancellation of a certificate of registration is a reasonable regulation, for the benefit of the members of
the organization, considering that the same generally solicits funds or membership, as well as
oftentimes collects, on behalf of its members, huge amounts of money due to them or to the
organization.

 People v. Hernandez, 99 Phil. 515 (1956).

 BERNAS: ISSUE: As to communist and similar organizations, the question that has provoked
discussion is whether mere membership in such organizations may be made punishable as a criminal
offense. The question was answered seminally in People v. Hernandez, RULING: where the Supreme
Court said: We do not believe that mere membership in the Communist Party or in the CLP renders the
members either of rebellion or of conspiracy to commit rebellion, because mere membership and
nothing more merely implies advocacy of abstract theory or principle without any action being induced
thereby; and that such advocacy becomes criminal only if it is coupled with action or advocacy of
action, namely actual rebellion or conspiracy to commit rebellion, or acts conducive thereto or evincing
the same. On the other hand, membership in the HMB (Hukbalahap) implied participation in actual
uprising or rebellion to secure, as the Huks pretend, the liberation of the peasants and laboring class
from thralldom. By membership in the HMB, one already advocates uprising and the use of force, and
by such membership he agrees or conspires that force be used to secure the ends of the party. Such
membership, therefore, even if there is nothing more, renders the member guilty of conspiracy to
commit rebellion punishable by law.
 United Pepsi-Cola Supervisory Union (UPSU) v. Laguesma, G.R. No. 122226, March
25,1998. BERNAS: ISSUE. A significant decision is United Pepsi-Cola Supervisory Union (UPSU) v.
Laguesma, where the dispute was about the right of association of managerial employees. The first
sentence of Article 245 of the Labor Code provides that: "Managerial employees are not eligible to join,
assist or form any labor organization." The Petitioner-Union contended that this provision contravened
the constitutional right to form associations. RULING. The validity of the ban, however, was upheld
because the "right guaranteed in Art. III, §8 is subject to the condition that its exercise should be for
purposes 'not contrary to law.' In the case of Art. 245, there is a rational basis for prohibiting
managerial employees from forming or joining labor organizations." Id. Philips Industrial Development,
Inc. v. NLRC, 210 SCRA 399 (1992) stated the rationale thus: "because if these managerial employees
would belong to or be affiliated with a Union, the latter might not be assured of their loyalty to the
Union in view of evident conflict of interest. The Union can also become company-dominated with the
presence of managerial employees in the Union membership."

10
 Government employees' right to form unions is guaranteed by Article III, Section 8 The
right of the people, including those employed in the public and private sectors, to form unions,
associations, or societies for purposes not contrary to law shall not be abridged; Article IX, B,
Section 2 (5) The right to self-organization shall not be denied to government employees; and
Article XIII, Section 3. It shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the right to strike in
accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a
living wage. They shall also participate in policy and decision-making processes affecting their rights
and benefits as may be provided by law. 

Section 9. Private property shall not be taken for public use without just compensation.

 The constitutional provisions on eminent domain are Article III, Section 9, Article XII,
Section 18 (public utilities), Article XIII, Section 4 (land reform), and Article XVIII, Section 22 (idle
or abandoned agricultural lands)

 Article XII, Section 18 - The State may, in the interest of national welfare or defense, establish and
operate vital industries and, upon payment of just compensation, transfer to public ownership
utilities and other private enterprises to be operated by the Government.
 Article XIII, Section 4 - The State shall, by law, undertake an agrarian reform program founded on
the right of farmers and regular farmworkers who are landless, to own directly or collectively the lands
they till or, in the case of other farmworkers, to receive a just share of the fruits thereof. To this end,
the State shall encourage and undertake the just distribution of all agricultural lands,
subject to such priorities and reasonable retention limits as the Congress may prescribe,
taking into account ecological, developmental, or equity considerations, and subject to the
payment of just compensation. In determining retention limits, the State shall respect the right of
small landowners. The State shall further provide incentives for voluntary land-sharing.
 Article XVIII, Section 22 - At the earliest possible time, the Government shall expropriate idle or
abandoned agricultural lands as may be defined by law, for distribution to the beneficiaries of the
agrarian reform program.

 The right of eminent domain is understood to be the ultimate right of the sovereign power to
appropriate, not only public but the private property of all citizens for public purpose. BERNAS: It is a
power inherent in sovereignty. Hence, it is a power which need not be granted by any fundamental
law. In other words, the provisions now generally found in modem constitutions of civilized countries
to the effect that private property shall not be taken for public use without compensation have their
origin in the recognition of a necessity for restraining the sovereign and protecting the individual.
 The exercise of the power of eminent domain is by tradition lodged with the executive. The
power, however, must be granted by the legislature. BERNAS: Once authority, however, has been
given to the executive, "expropriation proceedings may be maintained upon the exclusive initiative of
the [executive] without the aid of any special legislative authority other than that already in the statute
books. Put differently: Once authority is given to exercise the power of eminent domain, the
matter ceases to be wholly legislative. The executive authorities may then decide whether
the power will be invoked and to what extent.
 The power of eminent domain may also be conferred upon municipal governments and
other government entities. BERNAS: The scope of such delegated power is necessarily narrower
than that of the delegating authority and must be sought in the terms of the delegation itself. As to
delegated rights to private entities operating public utilities, the exercise of the delegated
authority and the prescribed mode of procedure being in derogation of general right and conferring
upon the public utility corporation exceptional privileges with regard to the property of others of which
it may have need, must be construed strictly in favor of private property.
 As to the legislature, the power is inherent. For government agencies, local governments and
public utilities, it is only a delegated power. BERNAS: This distinction has important legal
consequences both with respect to the scope of the power and with respect to the scope of judicial
review of the exercise of the power. In the hands of Congress the scope of the power is, like the
scope of legislative power itself, plenary. It is as broad as the scope of police power itself. It can thus
reach every form of property which the State might need for public use. The delegated power of
eminent domain of local governments is strictly speaking not a power of eminent but of
inferior domain — a share merely in eminent domain. Hence, it is only as broad as the eminent
authority would allow it to be.
 City of Manila v. Chinese Community of Manila, 40 Phil. 349 (1919). BERNAS: FACTS AND
ISSUE. At issue in the case was authority over a portion of a Chinese cemetery which had been
11
 established under authority of the Spanish Governor-General and "founded and maintained by the
spontaneous and fraternal contribution of their protector, merchants and industrialists." It was a
cemetery "adjusted to the taste and traditional practices of those born and educated in China" and
authorized by the Spanish government as a mark of recognition of the civic contribution of Chinese
nationals." The city was seeking to expropriate a portion of the property in order to open a street
through the cemetery. Did the city have authority to do it? RULING. The Court asserted that a
cemetery open to the public was already in public use "and no part of the ground could be taken
for other public uses under a general authority”. And general authority is all that the City of
Manila could show. Hence, it was without authority to expropriate the property. But the Court
said that "if the legislature under proper authority should grant the expropriation of a certain or
particular parcel of land for some specified purpose, the courts would be without authority to enquire
into the purpose of the legislation. And that is what the legislature did; it authorized the City of Manila
to expropriate the specific parcel of property — which accounts for the present extension of Rizal
Avenue across what once was a portion of the Chinese cemetery. 
 Constitutional limitations on the exercise of the power: public use and just compensation. 
 Requisites for the exercise  are: (1) there is "taking" of private property; (2) the taking must be
for "public use"; (3) there must be just compensation
 Public use: Any appropriating ofprivate property by the state for purposes of great advantage to the
community, is taking for public use. BERNAS: public use means public usefulness, utility, or
advantage, or what is productive of general benefit, so that any appropriating of private property by
the state under its right of eminent domain, for purposes of great advantage to the community, is a
taking for public use. This is the concept that has been accepted in Philippine jurisprudence. The scope
of the power of eminent domain has become as broad as the expansive and ever expanding scope of
police power itself.

 Mataas na Lupa Tenants v. Dimayuga, 130 SCRA 30, June 25, 1984. TRANSCRIBE: The
taking of  private property for subdivision or resale for land reform is for public use. ESCRA: P.D. No.
1517 entitled “Proclaiming Urban Land Reform in the Philippines and Providing for the Implementing
Machinery Thereof” was enacted and became effective on June 11, 1978 and Proclamation No. 1967
was issued on May 14, 1980 as an implementing law. This decree, which is firmly based on
Section 6, Article II of the new Constitution, undoubtedly adopts and crystallizes the
greater number of people criterion when it speaks of tenants and residents in declared
urban land reform zones or areas without any mention of the land area covered by such
zones. The focus, therefore, is on people who would stand to benefit and not on the size of
the land involved.
 Sumulong vs. Guerrero. Expropriation for socialized housing is for public use.
 Coscolluela v. Court of Appeals, 164 SCRA 393 (1988). Expropriation for the construction of irrigation
systems to make water available for farmers is for public use.
 Manosca v. Court of Appeals, GR No. 106440, January 29, 1996. PRIMER: The expropriation
of the birthplace of Felix Y. Manalo, founder of Iglesia ni Kristo, for the purpose of preserving it as a
historical landmark, was upheld as for "public use" under the broadened definition of public use.
Moreover, the non-establishment objection was answered by the argument that whatever benefits the
adherents of Iglesia would reap would only be incidental to the public historical purpose.
 Just compensation: It is the just and complete equivalent of the loss which the owner of the thing
expropriated has to suffer by reason of the expropriation. PRIMER: Just compensation includes not
only the correct determination of the amount to be paid to owner of the land but also the payment for
the land within a reasonable period of time from its taking. BERNAS: The compensation given to the
owner is just if he receives for his property a sum equivalent to its "market value." "Market value"
has been described in a variety of ways. It is the "price fixed by the buyer and seller in the open
market in the usual and ordinary course of legal trade and competition; the price and value of the
article established or shown by sale, public or private, in the ordinary way of business; the fair value of
property as between one who desires to purchase and one who desires to sell; the current price; the
general or ordinary price for which property may be sold in that locality.
 A statutory determination of just compensation would be only a prima facie assessment.
In the end, the final determination of just compensation will have to be made by the court. 
 Who are entitled to just compensation? - It is not the owner alone. PRIMER: All whose rights
might be affected by the taking by the state.
 When the filing of the case coincides with the taking, the value of the property expropriated is
determined as of the time of the filing of the complaint for expropriation. BERNAS: The general rule is
that the value must be that as of the time of the filing of the complaint for expropriation. (Section 4,
Rule 67, Rules of Court). The filing of the case generally coincides with the taking. When, however, the

12
 filing of the case comes later than the time of taking and meanwhile the value of the property has
increased because of the use to which the expropriator has put it, the value is that of the time of the
earlier taking. Otherwise the owner would gain undeserved profit. But if the value increased
independently of what the expropriator did, then the value is that of the later filing of the case."
Moreover, between the time payment is due and the actual payment, legal interest accrues
 Republic v. Sarabia, GR No. 157847, August 25, 2005. When there is taking before the filing of
the proceedings. compensation for the property expropriated must be determined as of the time the
expropriating authority takes possession thereof and not as of the time of the institution of the
proceedings. 
 DPWH vs. Tecson, GR No.179334, July 1, 2013. Latches and prescription do not apply against
action for compensation in expropriation proceedings. ESCRA: When a property is taken by the
government for public use, jurisprudence clearly provides for the remedies available to a landowner.
The owner may recover his property if its return is feasible or, if it is not, the aggrieved owner may
demand payment of just compensation for the land taken. For failure of respondents to
question the lack of expropriation proceedings for a long period of time, they are deemed to have
waived and are estopped from assailing the power of the government to expropriate or the public use
for which the power was exercised. What is left to respondents is the right of compensation.
The trial and appellate courts found that respondents are entitled to compensation.

 Republic of the Philippines v. Heirs of Borbon and CA, GR No. 165354, January 12, 2015.
Just compensation in expropriations for land reform can be less than market value. ESCRA: In
view of the discontinuance of the proceedings and the eventual return of the property to the
respondents, there is no need to pay “just compensation” to them because their property would not be
taken by National Power Corporation (NAPOCOR). Instead of full market value of the property,
therefore, NAPOCOR should compensate the respondents for the disturbance of their
property rights from the time of entry in March 1993 until the time of restoration of the possession
by paying to them actual or other compensatory damages.
 Expropriation for resale to landless: The Guido-Baylosis cases under the 1935 Constitution. 
 Guido Ruling. BERNAS: Hence, the size of the land expropriated, the large number of
people benefited, and the extent of the social and economic reform secured by the
condemnation must be such as to clothe the expropriation with the character of public
interest and public use. Such requirement is satisfied when the lands expropriated are large
estates, trusts in perpetuality, and land that embraces a whole town or city. Thus, the Court
concluded: The condemnation of a small property in behalf of 10, 20 or 50 persons and their families
does not inure to the benefit of the public to a degree sufficient to give the use public character.
 Reyes Ruling. BERNAS: Involved in this case was a mere two hectare lot, of which more than a half
were fishponds. The lot formed a part of a bigger area occupied from time immemorial by various
individuals. The expropriation was made in favor of four families. Justice Pablo penned the decision;
two other Justices concurred; and two more concurred in the result. The thrust of Justice Pablo's
opinion was away from the land-size norm set by Guido. Although the small lot was considered by the
Court to be part of a bigger area of friar land, the emphasis was not on the size of the land but on the
requirements of social amelioration.
 Baylosis Ruling. BERNAS: At issue was the expropriation of 67 hectares of agricultural land
consisting of several smaller lots belonging to various owners. The land had formerly formed part of a
huge estate. The tenants and occupants of the land for whom expropriation proceedings had been
instituted had been, by themselves and by their ancestors, occupying, clearing and cultivating the land
for many years. It was also claimed that the situation was far from peaceful because of
misunderstandings between landlords and tenants. The Supreme Court, reversing a lower court
ruling in favor of expropriation, returned to the Guido rule that "Section 4, Article XIII of the
Constitution had reference only to large estates, trusts in perpetuity, and lands that embrace a whole
town or a large portion of a town or city.” It rejected the argument that "as long as any land formerly
formed part of a landed or large estate, it may, regardless of its present area, be still subject to
expropriation under Section 4, Article XIII.
 In Tuason vs. Land Tenure Administration (1970), the "area test" was rejected. BERNAS: J.M. Tuason
Co.,Inc. v. Land Tenure Administration revived the neglected argument of Justice J.B.L. Reyes found in
his dissent in Baylosis and rejected the "undue stress on property rights" found in Justice
Montemayor's argument in Guido. Emphasis was placed on the fact that the Constitution speaks of
"lands" and not "landed estates". The "area test" was rejected

13
ON JUDICIAL REVIEW: BERNAS: The following aspects of the exercise of the power have been
subjected to judicial scrutiny: (1) the adequacy of the compensation, (2) the necessity of the taking,
and (3) the "public use" character of the purpose of the taking.

 Judicial review of the valuation of the property made by assessors is proper. Even when
there is a statutory determination of just compensation due, the courts may still review its adequacy.
BERNAS: when there is a statutory determination of the just compensation due, the courts may still
review the adequacy of even such determination.
 Judicial Review of the exercise of the power of eminent domain: 

 When expropriation is not done directly by legislative authority, review is proper.   

 When the expropriation is exercised by the legislature itself, it is not subject to judicial review.

 Res judicata: The right to exercise the power is absolute and unfettered by a prior judgment.
BERNAS: When once the right to expropriate has been denied the state in a specific case, it does not
mean that the state may not come back to the same property. "The very nature of the eminent
domain, as an inherent power of the State, dictates that the right to exercise the power be
absolute and unfettered by a prior judgment or res judicata. The scope of eminent domain is
plenary and, like police power, can 'reach every form of property which the State might need for public
use.'" However, the impropriety of res judicata "does apply to specific issues decided in a previous
case. For example, a final judgment dismissing an expropriation suit on the ground that there was no
prior offer precluded another suit raising the same issue; it cannot, however, bar the State or its agent
from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its
power of eminent domain over the same property. 
 Didipio Earth Savers v. Secretary, GR No. 157882, March 30, 2006. BERNAS: Where the
entry into private property is not just a simple right- of-way, which is ordinarily allowed under the
provisions of the Civil Code, but the entry is for purposes of conducting mining activities such as
exploration, extraction and processing of minerals, there already is compensable taking. All these will
definitely oust the owners or occupants of the affected areas the beneficial ownership of their lands.
 Republic v. Andaya, GR No. 160656, June 15, 2007. BERNAS: When the right of way enforced
by the state results in making adjoining property unusable, just compensation is due.
 NPC v. San Pedro, GR No. 170945, September 26, 2006. BERNAS: Where the nature and effect
of the installation of the 230 KV Mexico-Limay transmission lines results in the imposition of limitation
against the use of the land for an indefinite period, there is compensable taking.
 Salas v. Jarencio, 46 SCRA 734, 1972. BERNAS: FACTS. When R.A. No. 4118 converted the
land, which was situated in Manila, into alienable land of the state and provided for its subdivision and
resale to the occupants, the City of Manila objected to the statute as a deprivation of municipal
property without proper compensation. RULING. Upholding the statute, the Supreme Court, after a
narration of the history of communal lands under Spanish Law, concluded: It may, therefore, be laid
down as a general rule that regardless of the source or classification of land in the possession of a
municipality, excepting those acquired with its own funds in its private or corporate capacity, such
property is held in trust for the State for the benefit of its inhabitants, whether it be for governmental
or proprietary purposes. It holds such lands subject to the paramount power of the legislature to
dispose of the same, for after all it owes its creation to it as an agent for the performance of a part of
its public work, the municipality being but a subdivision or instrumentality thereof for purposes of local
administration. Accordingly, the legal situation is the same as if the State itself holds the property and
puts it to a different use.
 Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334, 1968. BERNAS: If
the property is owned by the municipality (meaning municipal corporation) in its public and
governmental capacity, the property is public and Congress has absolute control over it. But if the
property is owned in its private or proprietary capacity then it is patrimonial and Congress has no
absolute control. The municipality cannot be deprived of it without due process and payment of just
compensation
 The power of eminent domain by local governments: Section 19 of the Local Government Code
(RA 7160). A local government unit may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public use, or purpose or welfare for the benefit
of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the
Constitution and pertinent laws: Provided, however, That the power of eminent domain may not

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 be exercised unless a valid and definite offer has been previously made to the owner, and
such offer was not accepted: Provided, further, That the local government unit may immediately
take possession of the property upon the filing of the expropriation proceedings and upon making a
deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property
based on the current tax declaration of the property to be expropriated: Provided, finally, That, the
amount to be paid for the expropriated property shall be determined by the proper court ,
based on the fair market value at the time of the taking of the property.

The essential requisites of the exercise: (1) there must be an ordinance authorizing the
expropriation; (2) the power must be exercised for public use; (3) with just compensation and; (4)
there must be an offer previously made and the same was not accepted.

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