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ART III. BILL OF RIGHTS  The Law of the Land. A general law, a law that hears before it
SEC. 1 DUE PROCESS
Sec. 1 of Art III guarantees 2 very important fundamental rights:
1. Due Process
2. Equal Protection
In Due Process, the wording of the Constitution was intentionally kept vague
As discussed in Ynot vs IAC, that there was an attempt during the 1934
Constitutional Convention to specifically define Due Process.
 But Delegate Jose Laurel forcefully argued against it, and he was
sustained by the convention.
 Accg. to Delegate Laurel, Due process is not like any other provisions
of 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.
 Even the SC refused to give specific definition to Due Process, because
to do so, the SC would be creating a legal straitjacket that will constrict
them from the implementation of the Constitutional guarantee as the
need arises.
Clause 39 of Magna Carta Libertatum
 No free man shall be taken or imprisoned or deceased or outlawed nor
shall we go upon him nor send upon him but by the lawful judgement
of his peers or by the law of the land.
 Did not mention Due Process, because the same was not yet
conceptualized at that time.
 But there was an almost similar concept under that clause, and it was
explained by US SC in the case of Darthmouth College vs Woodward,
citing the statement of Daniel Webster which calls the concept “the
Law of the Land”
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condemns, proceeds upon inquiry, and renders judgement only upon
trial. (but only covers the procedural due process)
Effect of violation of Due Process
 It depends on what aspect of due process is violated.
 In Aniag vs COMELEC, Aniag was claiming his right to due process was
violated because he was not granted PI. PI is essential part of criminal
due process thus procedural due process. The effect was the
invalidation of the information which means that the law which is the
basis of PI remains valid but only the procedure which violates the
procedural due process is considered as valid.
 As to Substantial Due Process, In case of Ynot vs IAC, substantial aspect
of due process deals with the intrinsic validity of the law. SC should
determine if the same complied with lawful subject-lawful means test.
 So If Substantive Due Process is violated, the law itself shall be declared
unconstitutional. If only Procedural Due Process, only the step or
procedure shall be declared invalid.
2 minimum requirement of Due process
1. Notice
2. Hearing
The concept of hearing in administrative proceedings is only the
opportunity to explain either in pleadings, position papers, memoranda
and other docs. So the right to be heard is not only limited to trial type
hearing.
For administrative agencies, one of the most important power of
administrative agencies is the power to promulgate rules and regulations.
In promulgating rules and regulations are administrative agencies are
required with the minimum requirements of notice and hearing?
 In rule making power discharging quasi-judicial power the admin
agencies must comply with the twin requisites of notice and hearing.
A.J. CHICANO, J. ALMINAR

 In case of administrative, executive, legislative, quasi-legislative, no
need for twin requirements.
 Difference rule-making power in the exercise of quasi-judicial vs
administrative, executive, legislative, quasi-legislative.
o Rule making power in exercise quasi-judicial power = order is
specific and the effect is immediate
o Administrative, executive, legislative, quasi-legislative = order
is general and prospective
What are the essential requisites of Criminal Due Process? (Alonte vs
Savellano)
1. The accused must be heard by a court of COMPETENT JURISDICTION
2. He must have been proceeded against under ORDERLY PROCESSES OF
THE LAW
3. He may be punished only after INQUIRY AND INVESTIGATION
4. There must be NOTICE to the accused
5. The accused must be given an OPPORTUNITY TO BE HEARD
6. Judgment must be rendered WITHIN THE AUTHORITY of constitutional
law
In Alonte vs Savellano, This involves a rape case in Laguna. So, when the case
was being heard in Laguna, the prosecution moved for the transfer of venue
because one of the accused is a public officer. So before the motion of the
prosecution was granted by the SC, the private offended party executed an
affidavit of desistance, so when the abovementioned was filed the SC granted
the request for the transfer of venue. When the case was transmitted to 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 whom the affidavit was signed so when the
prosecution rested its case as to the issue of voluntariness and due execution,
the judge asked the defense, whether they wish to present evidence and both
counsels of the accused said “No, your honor, we are not going to present any
evidence”. The trial court said, “are you sure that you are not going to present
any evidence?” both counsels affirmed the same. So the trial court agreed but
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warned them that if they do not present evidence, he shall promulgate his
decision based only on the evidence presented by the prosecution. So after
that the trial court rendered a decision convicting the two accused. Now the
defense counsels claims that the two accused’s due process was violated,
particularly the right to hearing. Was it correct?
 The answer is YES. Because the right to hearing in that case is only
specific. The right to hearing as to the voluntariness and due execution
of the affidavit of desistance.
 So the waiver of the right to be heard on a specific issue, is not a waiver
of the right to be heard on other issues.
 What the defense counsels waive is the right to be heard on the
voluntariness and due execution but as to the culpability, as to the
innocence of the accused the defense still has the right to present
evidence.
Cardinal Primary Rules of Due Process in Administrative Proceedings:
1. Right to hearing – which includes the right of the party
interested/affected to present his own case and to adduce evidence in
support thereof.
2. The tribunal must consider the evidence presented.
3. The tribunal must have something to support its decision.
4. The evidence must be substantial. What is substantial evidence? 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 made known to the parties.
6. That the tribunal must consider the case based on an independent
consideration of the facts and the law and not only accept the views of
the subordinate in arriving at a decision.
7. Lastly, the administrative agency must render the decision that the
parties would know the issues involved and the reason for the decision.
(Ang Tibay)
Due Process in School Disciplinary Investigation:
A.J. CHICANO, J. ALMINAR

1. The students must be informed in writing of the nature and the cause
of accusation against them.
2. The respondent students should be given the opportunity to explain
with assistance of counsel, if so desired.
3. Must have the right to be informed of the evidence against them.
4. The students have the right to present their own evidence
5. The investigating committee must consider the evidence of the
students.(Ateneo vs Judge Capulong)
What is the relevance of Void-for-Vagueness Rule to the right to Due Process?
 In the cases of Spouses Romualdez vs COMELEC as well as the case of
Southern Hemisphere vs Anti-Terrorism Council, the SC explained the
concept of Void-for-vagueness as well as Overbreadth Doctrine. The SC
said that a statute suffers from the defect of Void-for-Vagueness if it
lacks comprehensible standards that men of common intelligence
must necessarily guess its meaning and differ as to its application. The
SC said that there are 2 reasons why laws which are void for being
vague are unconstitutional.
 First, SC said it deprives the person particularly those targeted by it a
fair notice of the conduct to avoid.
 Secondly, it gives the law enforcement officers charged with the
implementation of the law an unbridled discretion and thereby
becoming a flexing of government muscle.
How about Overbreadth Doctrine?
 The SC said meanwhile decrees that governmental purpose to prevent
or regulate an activity which is subject to state regulation may not be
achieved by mean that sweep unnecessarily and broadly and thereby
encroaching or invading protected areas of freedom.
 In SPARK vs QC, this involving 3 curfew ordinance, Manila, Caloocan
and QC, among the 3, the SC struck down the Manila and Caloocan,
because the ordinance was not narrowly drawn. The ordinances
prohibits minors from getting out of the house during curfew time.
While the law enumerates certain exceptions, other certain valid
exemptions provided by the Constitution was not included. The SC said
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that even if the minors are engaged in the exercise of their religious
freedom, like simbang gabi, they are covered by the ordinances. So the
law is overbreadth for invading other protected liberties. So the minors
are prohibited from exercising their right to religious freedom during
the curfew time. The SC said that the law is too broad if it encroaches
on other protected rights.
EQUAL PROTECTION
Unlike the Due Process clause, Equal Protection clause was given a more
specific meaning.
 Persons and things similarly situated shall be treated alike both as to
the rights conferred and the liabilities imposed.
It is not always easy in determining what to apply between Due Process and
Equal Protection in some cases
 Because both are potent tools in order to challenge governmental acts.
 The SC in the case of Biraogo vs PTC laid down the standard.
o Arbitrariness in general = Due Process
o Unjust or illegal/Illegal Discrimination = Equal Protection
The Equal Protection Clause is against 2 evils:
1. Against undue favor or class/individual legislation
2. Against unjust discrimination or oppression of inequality
Is there a difference between a law that discriminates and a law that only
allows discrimination?
 In People vs Vera, a case involving the different application of the
Probation Law depending on the appropriation of funds for the salary
of the Probation officers.
 While on its face there is nothing wrong or discriminatory with the law
itself. It does not escape the reality that it allows discrimination by
allowing a province to appropriate funds and other province not to
appropriate the same, with that regard, accused that is similarly
situated but living in different provinces will not be treated similarly.
A.J. CHICANO, J. ALMINAR

So in that regard, the SC said that there is no difference between a law
that discriminates and a law that allows discrimination, both violate the
equal protection clause.
 In the case of Yik Woo vs Hopkins, the US SC said that though the law
itself is fair on itself and impartial in appearance yet if applied by public
officers with an evil eye and an unequal hand so as to make
discriminations to persons with similar circumstances material to their
rights violation of substantial justice is still within the prohibition of the
Constitution.
 So again, even if the law is not discriminatory but the law allows
discrimination it is also violative of the Constitutional guarantee.
Ordinarily, Equal Protection of the law applies when the law does not apply
equally or uniformly. Can the law be challenged for violative of the equal
protection of the law because the law applies equally?
 Yes, in the case of Villegas vs Hiu Chiong Tsai Pao Ho, in Manila there
is an ordinance which imposes employment fee of 50 pesos for all
aliens who want to work. The regulation imposes uniform employment
fee for all aliens without regards to their condition, whether rich or
poor, full time or part time or etc. So the SC declared constitutional
that regulation for failure to recognize material differences.
 So the uniform application of the law to persons not similarly situated
also violate the equal protection of the law.
 Because equal protection of the law only requires equality among
equals.
So the Constitution does not prohibit classification or grouping of persons
 So classification is the grouping of persons or things that are similar in
certain particulars but different from others in the same particulars.
 The same characteristics that bind the group is the same characteristics
that sets them apart from other groups.
Does the Constitution accept all kinds of classification?
 No, the Constitution only accepts reasonable classification.
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 The 4 requisites of reasonable classification are:
o The classification must rest on substantial distinction
o The classification must be germane to the purpose of the law
o The reasonableness of the classification must not be limited to
existing conditions only, and;
o The law must apply equally to all members of the same class.
So let’s take the first 2. What is a substantial distinction that could be a basis of
reasonable classification? In the case of Inchong vs Hernandez, the SC said that
the Retail Trade Law, which allows the American nationals and corp are allowed
to engage in retail trade but other foreign nationals are not allowed. The SC
sustained the validity of the said allowance, because there is a material
difference between American and other foreign nationals, because the case
was decided under the 1935 Constitution where we have a parity provision
based on the parity treaty. Under these parity provision of the 1935 Consti,
American citizens and American Constitutions shall also have the right to
exploit and use the natural resources in the Philippines. In that regard,
citizenship can be a valid distinction that could be the basis for reasonable
classification.
 How about age? Can age be a basis of classification? In the case of
SPARK vs QC, the SC said yes, the curfew ordinances applies only to
minors, so the SC said that classification according to age is based on
substantial distinction.
 How about gender? In the case of PASEI vs Drilon, where a
governmental act of DO 1 series of 1988 issued by Sec. Drilon imposing
provisional ban on deployment of female domestic helpers in some
countries in the Middle East. So the SC said that the classification based
on gender is based on substantial distinction, particularly so that the
purpose of the order is to protect the women.
 How about degree or level of civilization? In People vs Cayat, involves
a law that prohibits possession and use of intoxicating spirits which are
non-traditional to non-Christian tribes. The use of non-Christian tribe
does not refer to religious orientation but to civilization. Because at the
enactment of the law the data according to Congress showed that
members of these communities who are exposed to non-traditional
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drinks become more violent, so the SC sustained the classification of
the law based on degree of civilization.
 Can we now say that applying the doctrine of stare decisis whenever
law classifies according to any of the 4, we can apply the previous
rulings of the SC in the previous cases that they are reasonable?
o No, the reasonableness of classification shall be taken from the
context of the law involved and the factual circumstances. So
the doctrine of stare decisis does not apply in determining
reasonable classification.
o So which means that if in the future law the Congress used age
as a basis of classification we cannot say that in SPARK vs QC it
can be considered as reasonable classification. The
reasonableness of the classification shall rest on the factual
circumstances of that law.
In the case of PASEI vs Drilon, the SC laid down a general guideline in
determining reasonableness of classification based on this factors. So the SC
cited Justice Fernando, “when a classification is based on distinctions that
make real differences such as infancy, sex, level of civilization or citizenship,
the better rule is to allow their validity only if the young/old, the women, the
indigenous people and the Filipinos are singled out for favorable treatment”
So if the classification is intended to discriminate against them based on the
classification the law shall be considered as unconstitutional.
 In one case, International School Alliance of Educators vs Quisumbing,
this is a case involving professors of the international school, which
pays professors based on citizenship. Filipino professors are paid lower
than expats or foreign professors. So while the SC did not apply Equal
Protection Clause in striking the regulation as discriminatory, because
Equal Protection is available only against the government, so
international school is a private school, equal protection does not
apply. But the SC applied a similar provision under the labor code,
“equal pay for equal work”.
 But if we reverse the situation? What if the Filipinos were paid more
than the foreign professors? Is this valid? The answer is yes. Because
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now the Filipinos are being singled out for favorable treatment but not
if it is intended to discriminate them.
So the next requisite is that the reasonableness of the classification must not
be limited by existing conditions only.
BONUS REGARDING THE APPLICATION OF PLAIN VIEW DOCTRINE
Remember in the case of People vs. Del Rosario, remember that a
search warrant was issued for the search and seizure of shabu and other drug
paraphernalia, but during the service of the warrant, the police officer
accidentally stumbled upon an unlicensed firearm. So do we apply Plain View
Doctrine in that case? SC said “NO” because the 3 requisites for the application
of the seizure of evidence in plain view are not present. While the police
officers have a right to be there, they discovered the evidence while
inadvertently through the opening cabinets, drawers and other enclosures.
This is the reason why the seizure of evidence in plain view cannot be applied.
Seizure of evidence in plain view requires that the evidence must be in plain
view, it must not be discovered through the opening of drawers and other
enclosures.
SECTION 3 – RIGHT TO PRIVACY
The SC said to be entitled to the right of privacy, the actor must show
that he has exhibited and expectation of privacy and that expectation of privacy
should be considered as reasonable.
Remember that in the case of People vs. Marti, the SC said that the bill
of rights can only be invoked against the government. So remember the
statement of Fr. Bernas. Fr. Bernas said that the bill of rights governs the
relationship between the individual and the State. It is not concerned with the
relations between two private individuals. So what the bill of rights does is to
create forbidden zones of privacy and inaccessible by any power holder.
A.J. CHICANO, J. ALMINAR

So does that mean that the entire bill of rights, from sections 1-22 are only
directed against the government and cannot be violated by a private
individual?
 Zulueta vs. Court of Appeals, so we can take a distinction between
Marti and Zulueta.
 In Zulueta vs. CA, the wife of the petitioner, went to the clinic of her
doctor husband. Then She opened the drawers and took some pictures
and other correspondences to be used in the civil action that she filed
against her husband. At that time, she was with her mother. So the
petitioner moved to suppress the evidence procured by the wife inside
his clinic without his consent. The wife said that the right to privacy can
only be invoked against the government; she said that she is not a
government official, so the constitutional provision does not apply to
her. The SC did not agree. The SC said that the intimacy between the
husband and wife do not justify any of them from breaking the drawers
and cabinets of the other and in ransacking them of taking evidence of
marital infidelity. SC said that a person, by contracting marriage does
not shed his or her integrity for his right to privacy and the
Constitutional guarantee is ever available to him or her. In the case of
Zulueta vs. CA, the SC 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 3 creates a zone of privacy of one’s person,
house, papers and effects against the government intrusion. While section 3 of
article 3, creates a zone of privacy on one’s communication and
correspondence against any person, whether the government or private
individual. There may be an instance when an evidence may have the
characteristic of paper and a communication. So paper is covered by section 2,
communication is covered by section 3. To be specific, a letter is both a paper
and a communication. If a letter is procured by the private individual, without
the consent of the owner, do we apply section 2? Or do we apply section 3?
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Can we say that, that letter is a paper. Since that letter is a paper, we can use
section 2, and section 2 can only be violated by the government since it is a
private individual who procured the letter, the letter is admissible, applying
People vs. Marti. On the other hand, can we say that, that letter is also a
communication? So since it is a communication, it is covered by section 3. And
according to the SC in Zulueta vs. CA, section 3 can also be violated by private
person. Therefore, inadmissible.
How do we reconcile this? Can we say that section 2 or section 3 is applicable?
Or can we say that both are applicable.
 Answer is, both are applicable. So that single evidence is admissible and
inadmissible at the same time. How could that be possible? The
admissibility or inadmissibility of that evidence depends on the
purpose of that evidence.
 If that letter is offered as an object evidence, section 2 shall apply. So
if the only purpose is to show that there is a letter, section 2 will apply.
So which means, admissible, because it is a private individual who
obtained that letter.
 If that letter is being offered as a documentary evidence, meaning the
proponent will prove the contents of that letter, we apply section 3 of
article 3 because in that regard, that is a communication and 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 SC in Zulueta vs. CA.
Apart from the Constitution, laws also create zones of privacy. The Civil
Code, particularly on the law on torts makes it actionable on the prying into the
privacy of one’s neighbor. The IPC also creates a zone of privacy for trade
secrets. The Bank Secrecy Law also creates zones of privacy by making it private
banking transactions. The Data Privacy Act also creates zones of privacy. Also,
the Anti-Wiretapping Act.
A.J. CHICANO, J. ALMINAR

Supposing during a lecture, one of the participants present recorded
the lecture. Do the person conducting the lecture have a cause of action
under RA 4200? Can he say that his right to privacy was violated and this
constitutes a violation of RA 4200.
 This question was answered in the case of Navarro vs. CA. In this case,
the discussion between the victim and the police officer was being
recorded by the companion of the victim because the victim and the
companion are reporters. Before that incident, the victim and the
companion went to a club where it is notorious for showing cultural
shows. During the show, the victim took pictures when cultural dancers
start to take off something from her costume. When the bouncer noted
that the victim was taking pictures, they were asked to leave. The
victim refused and they were forcibly taken out of the premises. They
went immediately to the police precinct to report. When they went to
the police precinct, the police officers were doing their routine activity
at night during duty. So the police officers, when the victim and his
companions arrived there, were doing their usual thing. They were
drinking. When the police officers learned about the incident, the
police officers said: “Kilala mo ba kung sino may ari nun?” Then the
owner of the club arrived. This is the time that they’re having this
heated argument, and the police officer punched the accused and died.
The discussion between the police officer and the victim was tape
recorded by the companion without their knowledge. So while it is not
raised as an issue in the case of Navarro vs. CA, the SC discussed
whether RA 4200 was violated. SC said “NO”. RA 4200 prohibits the
unauthorized recording of private communication. So the SC said that,
that is not a private communication. The conversation happened inside
the police precinct. At the time the conversation happened, there are
other persons around. So which means that the two parties did not
intend the communication to be private. So since it is not a private
communication, it is not covered by RA 4200.
Supposing the private communication was recorded without the
knowledge of the other party by one of the parties to that private
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communication. Supposing A and B were having private communication or
discussion and B recorded the private communication, is RA 4200 violated?
 So this was the issue in the case of Ramirez vs. CA. So the SC said “YES”,
there is a violation of RA 4200 because the law does not distinguish
who may violate the law, because section 1 of RA 4200 expressly
provides that: “It shall be unlawful for any person not being authorized
by all the parties of the private communication…” So the SC said that
the use of the word “any”, means it applies even to the private 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 extension
telephone line.
 Gaanan vs. IAC. In this case, the petitioner and private respondent
were discussing 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 and the plaintiff said: “Can you go to the
other line and listen to our discussion.” But the other party does not
know that the lawyer is listening to the other line. So when the other
party discovered that the lawyer was listening without his consent, he
filed a complaint for violation of RA 4200. The SC, this does not
constitute violation of RA 4200, because extension telephone line is
not one of those enumerated under the law, which can be used in
violating the law. So the catch all phrase, “any other device or
arrangement, howsoever called” cannot be applied because the
extension telephone lines is not similar to those first mentioned.
Because this phrase shall only be interpreted to mean, similar as those
first mentioned under the principle of ejusdem generis. So the SC said
that since it is not one of those enumerated, it cannot be covered by
the law, under the principle in criminal law – nullum crimen nulla poena
sine lege.
A.J. CHICANO, J. ALMINAR
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administrative sanction against the erring public officer. So in a non-
exclusionary principle jurisdiction, it is as if the court will tell the police: “Give
me the evidence, but next time do not do it.” That’s how it is applied in non-
exclusionary principle.

Since the overhearing of the discussion between the two parties in

that case did not constitute violation of RA 4200, can the plaintiff present the
The SC, in Stonehill vs. Diokno, said that the SC has abandoned the
lawyer to prove the matters they have discussed? Because it does not
non-exclusionary doctrine because of that statement by Judge Learnhand.
constitute criminal act.
Because according to Judge Learnhand, only in case the prosecution which
itself controls the seizing officers knows that it cannot be profit by their
wrong will the wrong be repressed. So which means that as long as the
 Answer is “NO”. Because, while it does not constitute a criminal act, it prosecution knows that it can profit or benefit from violation of the
constitutes a violation of section 3 of article 3. Paragraph 2 of section constitution, they will continue to violate it. But until the prosecution knows
3 provides that: “Any evidence obtained in violation of this and the
that they cannot benefit from it, the violation will stop. This is now the
preceding section shall be inadmissible in evidence for any purpose, in
exclusionary provision of the constitution.
any proceeding.” So 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 that right to privacy is inadmissible in evidence. SECTION 4 – FREEDOM OF EXPRESSION

Section 4 of the Constitution protects 5 very important constitutional

Paragraph 2 of section 3 of article 3 is known as an exclusionary rights. So we have:
principle. But remember that exclusionary principle only deals with the primary
evidence. In exclusionary principle, the evidence, which was obtained in
violation of the constitution, shall be rendered inadmissible. While any other 1. The Right to Free Speech;
evidence derived from that primary source is rendered inadmissible under 2. Free Expression;
the doctrine of fruit of the poisonous tree. So the exclusionary principle deals 3. Free Press;
with the tree, the fruit of the poisonous tree doctrine deals with the fruit. But 4. Free Assembly; and
section 3 of article 3, note, says: “Any evidence obtained in violation”. So which 5. Free Petition.
means that it is not only limited to primary evidence, but also derivative
evidence. All evidence, whether primary or derivative evidence. Prior to the These are the five cognate rights under section 4, article 3.
consitutionalization of the exclusionary doctrine, in this jurisdiction, we have
applied the non-exclusionary doctrine under the Moncado Ruling that the
criminal cannot just be allowed to go scoot-free because the constable has
They are so important that in the case of Bayan vs. Ermita, the SC said
blundered. So under the non-exclusionary doctrine, courts will still admit in that the first point to mark is that the right to Free Assembly and Petition
evidence, obtained in violation of the constitution, but impose criminal or
together with the Right to Free Speech, Expression and The Press, are the
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rights that enjoy primacy in the realm of constitutional protections for these
constitute the very bonds of a functional governmental polity without which
all other right would be meaningless and unprotected. So the SC was saying in
Bayan vs. Ermita that without section 4 of Article 3, all other rights under Article
3, from section 1 to section 22 would become meaningless; without article 4 of
section 3, all other rights under 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, they deserve one provision each.
 This question was answered by the SC in Reyes vs. Bagatsing. The SC,
citing Justice Rutledge, said that it is not by accident or coincidence that
the right to free speech is coupled with the same constitutional
provision as the right to free press, assembly ands petition, as well as
expression because these rights are not identical, they are inseparable.
So the SC said, they cannot be separated, they must be treated
together.
We have learned in the case of People vs. Marti that Section 2 Article
3 can only be used against the government. But we have learned in the case
of Zulueta vs. Ca, that Section 3 can be used even against private intrusions.
How about section 4? Is sections 4 available against violations by private
individuals? Or is section 4 only available only against the government?
 Answer is, it is only available only against the government. This is
expressly provided for in the constitution itself. In the first five words
of section 4, article 3, the constitution says: “No law shall be passed”
So which means that these constitutional guarantees is only a
prohibition against the government not to enact a law. So which means
that private acts are not covered by section 4 of article 3.
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If private acts are not covered by section 4 or article 3, then why in two
cases particularly, the case of PBM Employees Association vs. PBM and
Malabanan vs. Ramento, the SC discussed the primacy of these constitutional
rights. In PBMEA vs. PBM, this involves the Philippine Blooming Mills, a factory,
and all the workers of PBM participated in an assembly against Pasig Police,
and all those who participated in the assembly were dismissed. In Malabanan
vs. Ramento, this involves Gregorio Araneta School. Gregorio Araneta School
is a private school and the students who participated in that assembly and their
leaders were suspended for one academic year because of the assembly that
they have conducted in excess of the activities authorized by the school. In both
cases, the entities involved are private entities.
But why did the SC apply the constitutional guarantees under section
4 or article 3?
 The constitutional guarantee under section 4 can only be invoked
against the government. But he SC discussed the importance of the
right to assembly and petition in these cases only to determine the
reasonableness of the penalties. The SC said in PBMEA vs. PBM, that
the employees are 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 vs, Ramento, the students are just
engaged in the exercised of their constitutional right. So to suspend
them for one year is too heavy. The government is not saying that the
establishment violated the rights to free assembly and petition. The SC
is just saying that the imposition of penalty is unreasonable. So that
means that the SC recognized that these rights can only be invoked
against the government.
In the case of Diocese of Bacolod vs. COMELEC. This is the case
involving the tarpaulin posted by the Diocese of Bacolod. After the passage of
RH 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
A.J. CHICANO, J. ALMINAR

the two tarpaulins because they exceed the allowable size allowed for election
propaganda. So they filed a petition with the SC. In this case of Diocese of
Bacolod vs. COMELEC, the SC dissected section 4 by defining the extent of this
constitutional provision:
1. The first phrase interpreted by the SC is the phrase “No law”. So
the question raised before the SC is that what does “law” mean?
Does law mean legislative act? So, if we say that the word law
under section 4 refers to legislative act, and if we are going to
transpose this word to the constitution, the constitution would
read “No legislative act should be passed abridging the freedom of
speech”. The SC said “NO”. The word law under section 4 applies
to all governmental acts. So it applies to the act of the mayor, as
in Primicial vs. Fugoso; the Resolution of the COMELEC, in SWS vs.
COMELEC; and also the letter of the law department of the
COMELEC in Diocese of Bacolod vs. COMELEC. So law under section
4 applies to all governmental acts.
2. The next part interpreted by the SC is the word “Expression”. In
1987 Constitution, this is the first time that 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. Expression not included. So
the word “Expression” was proposed to be inserted in section 4,
article 3 of the constitution by a very famous commissioner of the
Constitutional Commission, it was Commissioner Lino Brocka.
According to him, expression is more expansive than speech. The
Constitutional Commission, through Fr. Bernas, as the chairman of
the committee, accepted the proposal because according to him,
“Yes! We can include that because it will expand the constitutional
guarantee.” So according to the SC, the speech is not only limited
to vocal communication. Conduct is sometimes considered a
mode of communication, often times referred to as “symbolic
speech”. Such that when the speech and non-speech elements
are combined together in the same course of conduct, the
communicative element of the speech may be said to be
sufficient to bring into play the right to freedom of expression.
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The SC said, the right to freedom of expression, therefore, applies
to the entire continuum of the speech, from the utterances made,
to the conduct enacted and even to inaction itself as a manner of
symbolic communication. The SC said, now that the Constitution
is broader in scope because of the inclusion of the word,
“Expression”.
3. In the same case, Diocese of Bacolod vs. COMELEC, the SC
discussed several theories and schools of thought that strengthen
the need to protect the basic right to free speech and the other
cognate rights under section 4, article 3. If you read these six
schools of thought, you will already understand all free speech
cases.
The six schools of thought are:
a.) The first refers to the right to participate in public affairs,
including the right to criticize government actions. This is
the so-called Theory on Deliberative Democracy. So
under this theory, open, substantial and ethical dialogue
on public affairs is a critical, and indeed, the defining
feature of a democratic polity. It includes a collective
decision making with the participation of all who may be
affected by the decision. It is anchored on the principle
that the cornerstone of every democracy is that
sovereignty resides in the people. So the Theory on
Deliberative Democracy has evolved to making the
government accountable. So according to the SC, speech
that promotes dialogue on public affairs or airs out
grievances for political discontent should thus be
protected and encouraged. In that case, the SC cited
Justice Brandise. According to Justice Brandise, it his
hazardous to discourage thought, hope and imagination.
According to him, that fear breeds repression, that
repression breeds hate, that hate menaces stable
government and that the path to safety lies in the
opportunity to discuss publicly and truthfully the
supposed grievances and the proposed remedies. In line
A.J. CHICANO, J. ALMINAR

with this, Fr. Bernas in the same case, also said that speech
may be said to be intricately linked with the freedom itself
as the right to think is the beginning of the freedom, and
speech must be protected from the government because
freedom is the beginning of thought. That’s how important
speech is. If freedom starts with the right to think, the right
to think starts from speech. Which means that speech is
the basic right that creates freedom. Under the political
theory on deliberative democracy, criticisms on
government actions is a protected speech. But the the SC
said in the case of Diocese of Bacolod that to be considered
as a protected speech, the criticism must be specific and
constructive, not only a generalized denouncement on
the entire government system.
In US vs. Bustos. This case involves a Justice of the Peace in Pampanga.
In this case, an administrative complaint was filed against a Justice of the Peace.
According to the accused in this case, the Justice of the Peace was demanding
goose, chickens, and anything of value for favorable decision. But the complaint
against the Justice of the Peace was dismissed. When the case was dismissed,
the Justice of the Peace filed a criminal complaint for libel against the
complainant in the administrative complaint. The SC said that the interest of
the society and the maintenance of good government demand full discussion
of public affairs, complete liberty to comment in 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 may suffer under a hostile or unjust
accusations but the wounds can be assuaged with the balm of good and clear
conscience. SC said public officers should not be too thin-skinned, in relation to
the comments on their official acts. Only then can the dignity and intelligence
of the individual be exalted. In that statement, free speech through criticism
was likened to a scalpel. The purpose of the scalpel is to reveal the disease in
order for the doctor to cure it. The same way in criticizing a public official. In a
protective speech though 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
view of curing it. This is the protected speech. Not a generalized condemnation
of the entire government system to be considered as a protected speech.
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Is criticism, as a protected speech, applicable as well as to judicial
officers? Can people, in the exercise of their right to free speech through
criticism, say that the judges and justices are thieves? Can we do that? But
can we say that members of Congress are thieves?
 Yes! Definitely! So truth is as defense in libel. Under the protected
speech, an individual can criticize members of Congress.
May criticisms applicable to members of Congress be applied as well
to members of the SC? If we can call members of the Congress as thieves, can
we also say members of the SC are thieves? Can we say that owing to the
dignity and honor of the positions of the members of the SC, all criticisms
against the members of the SC can be couched in respectful manner? Can we
say that while we cannot call them thieves, we can definitely call them
honorable thieves?
 This was answered by the SC in US vs. Bustos. SC said that the
guarantees of free speech, press, assembly and petition includes the
right to criticize judicial conduct. The SC said, the administration of
justice is a matter of vital public concern. If the people cannot criticize
a judge or a justice in the same manner as any other public officer,
public opinion will be effectively muzzled. So attempted terrorization
of public opinion on the part of the judiciary is a tyranny of the bases
sword. The SC said that the Sword of Damocles in the hands of the
judge does not hang suspended over the head of the individual who
there asserts his prerogatives as a citizen and to stand bravely against
any public official. The SC said that it is not only a right, but also a duty
of every citizen to criticize their government officials including judicial
officers.
A.J. CHICANO, J. ALMINAR
 12
In another case, in the case of People vs. Alarcon, the SC made a
distinction between permissible criticisms against judicial officers. In this case,
Aside from government officials, are there any other groups of
the accused published an article and he is a condemning the decision of the
individuals who also enjoy lesser right to privacy?
RTC of Pampanga convicting the accused in robbery case, farmers. So he
published an article and the judgment of conviction is still pending with the CA.
The SC said that there must be some distinctions between criticisms on
terminated cases, and criticisms on pending cases. Insofar as terminated cases,  Public Figures! In Ayer vs. Judge Capulong, this case involves the film,
free for all. Whatever can be used for any other public officer can also be used Four-Day Revolution. In this film, it depicts EDSA Revolution 1. Enrile,
who was a private citizen at that time, filed a TRO for the showing of
against justices and judges; but for pending decision, there must be some
the film because according to him, it violated his right to privacy,
degree of restraint. SC said that newspaper publications tending to impede,
because he was depicted in the film. According to SC, “NO”. Enrile,
obstruct, embarrass or influence the courts in administering justice in pending while not a public officer at that time, is a public figure. The Supreme
cases may constitute contempt, which may be summarily punished by the Court defined who is a public figure. SC said that public figure means a
court. So, insofar as terminated cases, any degree of criticism available to other person who, by his fame, accomplishment, mode of living, or by
public officers can be used against them. adopting a profession or calling, which gives the people a legitimate
interest in his doings, his affairs and his character, has become a public
figure or public personage. In short, a public figure is a celebrity.
In the case of People vs. Alarcon, remember that the case is still
pending with the CA when the article was issued. Can we say that, that is a 3 Reasons why public figures enjoy lesser right to privacy:
criticism on a pending case?

1.) They have sought publicity and consented to it – therefore, they

 SC said “NO”. The criticism is against the RTC, and insofar as the RTC is cannot complain when they receive it;
concerned, that is already a terminated case because the RTC judge can 2.) Being public figures, their life, their affairs, their doings have
no longer be influenced. Similarly, the CA cannot take action on that become issues or matters of public concern and can no longer be
because it is not he CA that is being criticized, and the CA is not the regarded as their own private business;
agent of the RTC. In order to be considered as finally terminated, it 3.) The press has the constitutional duty to inform the people of
does not necessarily mean that the case is already final and executory. matters of public concern, including the life of public figures.
It only requires that the decision being criticized can no longer be
changed by the public officer being criticized.
The two groups individuals who enjoy lesser right to privacy – public
officers and public figures.
In US vs. Bustos, People vs. Alarcon, the SC recognized the right of the
citizens to criticize government officers. Which means that government officers
can be the subject of public discussions even ridicule. So they cannot invoke
the right to privacy when people talk about their activities.

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Aside from these, are there any other groups of individuals who may more than they believe the very foundations of their
be subjected to public discussions and even criticisms? Meaning, persons who conduct. That the ultimate good desired is better reached
are not public officers or public figures. in the free trade in the market. That the best test of truth
is the power of the thought to get itself accepted in the
marketplace of ideas and the truth is the only ground upon
which their wishes can be carried out. The way it works is
 This was answered by the SC in the case of Borjal vs CA. In this case,
that the exposure of other’s opinion to another allows the
petitioner Borjal is a writer and he has a column in the newspaper,
individual to consider tests and even develop his own
Jaywalker. In his column, which is an editorial, he discussed in a blind
conclusion. So the SC said in Diocese of Bacolod that a free,
item, he said that there is this self-proclaimed EDSA Hero who goes
open, and dynamic marketplace of ideas is constantly
around soliciting donations. Feeling alluded to the editorial, Wenceslao
shipping new ones. So this promotes stability in change
filed a criminal complaint for libel against Borjal. According to
where the recurring points may crystalize and the weaker
Wenceslao, Borjal cannot publicly discuss his activities because he is
one may develop. Under the marketplace of ideas, it is like
not a public officer. He may be a consultant of the FNLTC, but he is not
a UFC Event, where all the opinions are thrown in the ring,
a public officer and he has not yet achieved the status of being a
whoever emerges as the victor is the ultimate truth.
celebrity. Therefore, according to Wenceslao, he cannot be the subject
Because in our system of government, there is no ultimate
of a public discussion. SC said “NO”. The SC said even if you are not a
truth. One’s truth should be able to compete with other’s
public figure, even if you are not a public official, people can talk about
truth. Once that truth prevails, then it is considered as the
your activities if you are involved in a public issue. So private
ultimate truth.
individuals involved in a public issue can be the subject of public
discussion without violating the right to privacy.
In this regard, the SC said in Iglesia ni Cristo vs. CA. This is the case
where the show of Iglesia ni Kristo was rated “X” by the MTRCB. So it was given
Of recent event, we can say that people in the exercise of the right to
an “X” rating. The SC said that when the luxury of time permits, speech should
free speech can discuss the activities of, for example Mr. Arvin Balag. Arvin
be met with more speech for it is the spark of colliding ideas and the heat of
Balag is a member of that fraternity in UST involved in that hazing incident,
opposing interest that can fund the embers of truth. So which means that in a
which resulted to the death of one of the neophytes, Mr. Castillo. While Mr.
democratic institution, there is no truth. The only ultimate truth is that people
Balag is not a public officer, he is not a public figure either, not yet a celebrity,
will die and they have to pay taxes. In order to be considered as a truth, it must
but he is involved in a public issue. Therefore, the citizens, or the people can
be able to compete with other truths. That is the marketplace of ideas.
talk about his life, people can talk about his activities without violating the right
to privacy because he is involved in a public issue.

c.) The third school of thought requires that free speech

must be encouraged because it enhances human dignity.
b.) The second school of thought is that free speech must be
In the case of PBMEA vs. PBM, the SC compared the right
encouraged under the concept of marketplace of ideas.
to assembly and petition to the property rights of the
The Marketplace of Ideas was articulated by Justice
employer because the employer was complaining. The
Holmes. According to him, men have realized that time has
employer said that: “We have agreed that the first shift
upset many fighting faiths, they may come to believe even
THE SBCA BILL OF RIGHTS PRIMER G3 REVIEW NOTES 2018-2019 A.J. CHICANO, J. ALMINAR

should not participate in the assembly, but still they
proceeded, that’s why I dismissed them. It interrupted my
operations.” The SC, in order to determine whose right
should prevail, compared the property rights of the
employer and the rights of the employee to assembly and
petition. The SC said that the rights under section 4 of
article 3 including the right to assembly and petition are
human rights. 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. While property rights, the SC said, may
prescribe. Human rights, under section 4 of article 3 are
imprescriptible. Another proof that section 4 of article 3 is
superior over property rights is that property rights can be
regulated, as long as there is a lawful subject and lawful
means. While rights under section can be regulated, lawful
subject and lawful means are not enough. There must be a
clear and present danger, or a substantial governmental
interest under the O’Brian Test in order to regulate or
restrict the exercise of the right to free speech, in order to
regulate these human rights. These are the reasons why
the SC said that the rights under section 4 are primary over
property rights.
d.) Free speech is a marker of group identity. Speech
according to the SC should be protected as a vehicle to find
those who shared the same ideas and goals to group
together and to move for common objective. This is why
free speech should be protected.
e.) The free speech is supposed to protect the individuals
and the minorities against majoritarian abuses
perpetrated within the democratic system. According to
James Madison, there are 2 vulnerable groups. First is the
citizenry at large who may be oppressed by despotic public
official; second would be the minorities who may be
oppressed by the dominant function of the electorate that
obtained the power for their own selfish interest. The SC
said that free speech is not intended to protect the
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14
majority because the majority does not need any
protection. Free speech is intended for the minority views,
for the unpopular views because this is the opinion that
needs protection. In this regard, the statement of Justice
Holmes is also applicable because according to Justice
Holmes: “The right to free speech exist not so much for the
thought that agrees with us, as for the though we detest.
It is for this purpose that the right to free speech must be
protected in order to encourage individuals to voice their
opinions.
f.) The last school of thought is the Safety Valve Theory. This
theory was decreed by the SC in Reyes vs. Bagatsing.
Because in the case of Diocese of Bacolod expounding the
ruling of the SC in Reyes vs. Bagatsing, the SC compared
the society to a dam. The SC said that the society
accumulates anger, frustrations, negative feeling, ill-will
against the government. If there is no safety valve where
the people can vent their frustrations, there would come a
point that the society can no longer contain these feelings.
And the only way to vent out these angers is to explode.
Like the dam according to the SC. If there is no valve in
order to regulate the flow of water, once the dam meets
the spilling point, it will explode. So free speech should be
protected in order to allow the people to vent their
frustrations, so that it will not result to violence. The SC
said that non-violent manifestation of dissent reduces the
likelihood of violence. This is also the reason why the SC
issued a warning in Reyes vs. Bagatsing.
In Reyes vs. Bagatsing, this is the case involving the assembly and
petition in front of the US Embassy. Former Justice JBL Reyes filed the petition
in order that they may be allowed to hold the assembly and petition in front of
US Embassy. They were allowed. The SC in this case said that it must be
remembered that the Bill of Rights is the Child of the Enlightenment. SC said
that back of the guarantee of free speech lay faith in the power of an appeal to
reason by all the peaceful means of gaining access to the mind. It was in order
to avert force and explosions due to restriction upon rational modes of
A.J. CHICANO, J. ALMINAR

communication that the right to free speech is 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 SC 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 for them to express
their dissent but through violence. This is how important free speech is.
6 Schools of Thought in Free Speech
1.) The right to participate in public affairs, including the right to
criticize government actions. This is the so-called Theory on
Deliberative Democracy;
2.) Free speech must be encouraged under the concept of
marketplace of ideas;
3.) Free speech must be encouraged because it enhances human
dignity;
4.) Free speech must be encouraged because it enhances human
dignity;
5.) The free speech is supposed to protect the individuals and the
minorities against majoritarian abuses perpetrated within the
democratic system; and
6.) the Safety Valve Theory.
Like any other constitutional rights, the rights under section 4 of article
3 can also be regulated. But as we have said in the case of PBMEA vs. PBM, the
requirements for a valid regulation for section 4 is different from regulation of
property rights. Not all speeches have the same degree of protection. The SC
compared political speeches from commercial speeches in Diocese of Bacolod
vs, COMELEC. SC said that a commercial speech is a speech that does nothing
but to promote commercial transactions; while political speech is both
intended and received as contribution in discussing public affairs and the SC
said that the core of the right to free speech is political speech. So which
means that political speech enjoy greater protection than commercial
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15
speech. Although commercial speech are also protected, political speeches
enjoy greater protection.
The SC, in the case of Diocese of Bacolod, insofar as political speech is
concerned, said that the degree of permissible regulation should also depend
on the nature of the regulation, whether the regulation is content based or
content neutral.
 Regulation is content-based when it regulates the substance of the
speech or the speaker.
 Regulation is content-neutral if it only regulates the incidents of
speech – the time, place, and manner of speech.
In content-based regulation, the applied test is Clear and Present
Danger Test. For content-based regulation, the government bears a heavy
burden to show that the speech brings out a clear and substantive evil which
the State has the right to prevent. In the absence of an evil, both substantial
and imminent, the state cannot regulate this political speech. The SC said in the
case or Reyes vs. Bagatsing, as well as in Primicial vs. Fugoso that Dangerous
Tendency Test is not enough. The SC said that fear of serious injury alone
cannot justify regulation of the right to free speech. The SC said that men
feared witches and burned women but it is the purpose of the speech to free
men from the bondage of a rational fear. In order to regulate a political speech,
and if the regulation is content-based, the content-based regulation must pass
the clear and present danger test.
On the other hand, if the regulation is only content-neutral, it only
needs to pass the intermediate test under the O’Brian Test.
Under the O’Brian Test, there are four conditions. A governmental
action is valid when:
A.J. CHICANO, J. ALMINAR
 16
1.) It is within the constitutional power of the government; Miller vs. California, enumerated three tests in determining the nature of the
2.) It furthers an important or substantial governmental interest; literature, whether obscene or wholesome.
3.) When the suppression of the right to free speech is incidental only;
4.) The incidental suppression to the right to free speech is no more
than is what is necessary in order to achieve the legitimate purpose
Under the Miller vs. California Test, the Courts will determine:
of the government.
1.) Whether the work, taken as a whole, from the point of view of an
average man, applying contemporary community standards will
If all these requisites are present, then the government can regulate
appeal to the prurient interest;
the political speech. Not all speeches as well are protected. There are speeches 2.) Whether the work depicts or describes in a patently offensive
which are unprotected. manner, sexual conduct as defined by state law;
3.) Whether the work, taken as a whole, lacks serious literary, artistic,
political, scientific value.
In the case of SWS vs. COMELEC, this is the case involving the
prohibition of the release of survey results. 15 days for national and 7 days for
These are the tests enumerated by the SC in Miller vs. California, as
local election. The SC said that there are several speeches which are not
applied in the case of Pita vs. CA.
protected, citing Chaplinsky vs, New Hampshire. The SC said that the lewd, the
obscene, the profane, the libelous, insulting and fighting words and words
which by their mere utterance insight immediate breach of peace are
In Pita vs. CA, the literature involved is Pinoy Playboy. The mayor of
unprotected speeches. Which means that these are not covered by section 4
Manila, ordered the confiscation of Pinoy Playboy in the news stand, magazine
of article 3.
stand, and the mayor burned the copies. The SC did not make a categorical
declaration as to the nature or Pinoy Playboy. Why? Because the SC said, the
determination of obscenity must be based on the literature involved. It
Obscenity. Pita vs. CA. The SC had the occasion what does obscenity
cannot be determined based on past issues or subsequent issues. It must be
mean. In the end, the SC cannot give a categorical definition of obscenity. The
determined as to the literature involved. Unfortunately, said the SC, all the
SC said that there must be guidelines that must be implemented by the courts
copies of the literature were burned. Therefore, there is nothing to be
in determining characteristic of the literature, whether it is obscene or whether
considered and there can not be a basis for our decision because everything
it is wholesome. Here, the SC discussed the evolution of the concept of
were burned. In this case, the SC only provided for the guidelines, and it said
obscenity. From People vs. Kottinger case to Gonzales vs. Katigbak to Miller vs.
that in the end, obscenity is to be determined by the courts applying these
California. In the case of People vs. Kottinger, even isolated passages can be
standards.
used in order to declare an act as obscene. Under the Kottinger Test, a
literature is obscene if it has a corrupting tendency. So if the tendency of the
material is to corrupt the mind of those who are exposed to this literature. In
Assembly and Petition
the case of Gonzales vs. Katigbak, the SC applied the dominant theme test.
Which means that isolated passages alone shall not be enough, the dominant
theme of the literature should be the determinative factor. Then the SC, in
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Assembly and Petition are considered as necessary consequences of
republican institution. They are deemed complimentary with the right to free
speech. Assembly only means that persons have the right to meet peaceably
for consultation services; while Petition means that the person can apply to the
government without fear of penalty for redress of grievances.
In the case of Primicias vs. Fugoso, the SC 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 public assemblies. This
was also echoed by the SC in Reyes vs. Bagatsing.
Do students have the right to exercise the right to assembly and
petition?
 This is one of the issues in the case of Malabanan vs. Ramento. The SC,
in this case, said that students also have a right to exercise assembly
and petition because according to the SC, citing Justice Portas in Tinker
vs. Demonay, that students do not shed their constitutional rights at
the school house gates. But assembly of students must not materially
disrupt class work, and it should not involve substantial disorder or
invasion on the rights of other students, as well as the teaching staff.
How about employees in the private sectors? Do they have a right to
Assembly and Petition?
 This issue was resolved by the SC in PBMEA vs. PBM. Again, the right
to assembly and petition enjoys primacy in the realm of constitutional
protection because they are not only civil rights but also political rights.
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In Bayan vs. Ermita, this case involves the Calibrated Pre-emptive
Response. President Arroyo issued a memorandum declaring that police
officers engaged in regulating public assemblies under BP 880, should use CPR
instead of the standard of conduct provided for under BP 880 – Maximum
Tolerance. So the SC 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 CPR is the same as that provided for
under BP 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 the public assembly. The SC said “NO”. If the
law says this standard, then the president cannot change it. Because according
to the SC, the standard required by BP 880 is the standard required by law, and
the president has no authority to modify a law. Since the CPR is not the degree
of standard required by BP 880, the SC said that it must be struck down as a
darkness that shrouds freedom. In that regard, the SC invalidated the CPR.
In the case of Bayan vs. Ermita, the petitioners contended that BP 880
is content-based regulation because according to them, BP 880 used the term
“lawful”, “opinion”, “petitioning”, and according to them these terms only
apply to the opposition, to those opposing the government. The SC said “NO”.
The SC said that the use of the terms “lawful” only means that only peaceful
activities are protected by the constitution. So unlawful activities do not
enjoy constitutional protection. The words “opinion”, “petitioning” refer to
any subject matter and it does not only cover those against the government.
In that regard, the SC, considered BP 880 as a content-neutral regulation. In the
case of Bayan vs. Ermita, the SC noted that more that 20 years after the
effectivity of BO 880, there are only 2 local government units that has
established a respective freedom parks because under the law, the local
government units are required to establish their respective freedom parks
within 6 months from the effectivity of BP 880. But 20 years later, the SC noted
that there are only two LGUs that have established their respective freedom
parks. One is Cebu in Fuente de Osmeña and another, Manila, but the freedom
park in Manila – the Sunken Garden – was converted into a golf course. This
impelled the SC to issue a warning to all LGUs to establish their respective
A.J. CHICANO, J. ALMINAR

freedom parks within 30 days from the finality of the decision in Bayan vs.
Ermita, under pain that should they fail to provide for their respective freedom
parks, all public parks within the city limits or within the territorial limits of the
LGUs shall be considered as freedom parks where no permit is required.
SECTION 5 – FREEDOM OF RELIGION
Section 5 of Article 3 guarantees two constitutional rights:
1.) The non-establishment of religion; and
2.) The free exercise of religion.
In the 2003 decision of the SC in the case of Estrada vs. Escritor. This
case involves a case where a court stenographer was charged administratively
because she was living with a man who is not her husband. Both the
respondent and her partner are married to other partners. The respondent and
her partner belong to Jehovah’s Witness and Watch Tower and Tract Bible
Society. Under these religious organizations, the cohabitation of members who
are not married is allowed as long s they execute a declaration of pledging
faithfulness and either or both of the parties suffer legal impediment for them
to get married. So while the husband of the respondent is already dead, the
wife of his partner is still alive. Which means that they cannot get married
because of that legal impediment. That’s why the organization only allows the
cohabitation of the parties as long as there is a legal impediment. So since the
respondent in that case is a public officer, she was charged for having a gross
immoral life.
In this case, the SC discussed the free-exercise clause and the non-
establishment clause of the constitution. The SC in its 2003 decision said that
these two constitutional guarantees are always in conflict. They cannot co-
exist. Its either the non-establishment clause will prevail or the free-exercise
clause that will prevail. The explained it by saying that under the non-
establishment clause, it is a guarantee that the State shall not do anything that
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will influence religion because under the non-establishment clause, the stance
of the government is always neutrality. It cannot do anything that will influence
religion under the non-establishment clause.
While under the free-exercise clause, the government must ensure
that the people can enjoy the right to religious profession - which means that
the government must do anything possible within its power in order that the
citizens can enjoy religious freedom.
In the case of Estrada vs, Escritor, the non-establishment clause, is an
obligation of inaction – the government should not do anything that will
influence religion; while the free-exercise clause, in an obligation of action –
the government must perform all things possible to insure religious freedom of
the citizens. This is the reason why the SC said they that they cannot co-exist.
One cannot be applied but not both.
But in the 2006 resolution of Estrada vs. Escritor, the SC clarified its
earlier statement. The SC said that, actually, they can co-exist. Because
according to the SC, both the non-establishment and the free-exercise clause
of section 5 of article 3, are intended to deny the government the power to
influence religious belief.
In short, according to the SC:
1.) The non-establishment clause only prohibits the government from
inhibiting religious beliefs with rewards for religious beliefs and/or
practices;
2.) The free-exercise clause prohibits the government from inhibiting
religious beliefs with penalties for religious beliefs and practices.
A.J. CHICANO, J. ALMINAR

In other words, the SC said that both constitutional guarantees intend
to deny the government the power to use either carrot or stick in influencing
religious beliefs and practices but these two constitutional guarantees are not
intended to serve different masters. They are intended to achieve the same
objective – not to 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 the case of Aglipay vs. Ruiz, the SC 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 view or
concept. Theistic in the sense that the center of the belief to be
considered as a religion must be 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 Supreme Being,
that is a religion, under that definition.
In the case of Estrada vs. Escritor, the SC went to the etymology of the
word “religion”. SC said that the word religion came from middle-English word
“Religioun”, and it also comes from a Latin word, “Religion”, and a Latin term,
“Religio” and all these words mean bond between man and God. That is the
etymology of the word religion. Which means that, etymologically, the word
religion is indeed a theistic concept. But in the case of Estrada vs. Escritor, the
SC extended the concept of religion even to non-theistic belief. According to
the SC, a system of belief, a philosophy may be considered as a religion if it
complies with the four requisites. Citing US vs. Seeger.
In US vs. Seeger, this is different from People vs. Lagman anad Soza.
Because in US vs. Seeger, the accused here was charged for his refusal to be
drafter in the Vietnam War, and he invoked religious freedom. During the
conference with the government authority, he was asked whether he is part of
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any religion and he said: “No, I’m not part of any religion but I believe in the
universal goodness of man, and I believe that it is against one’s conscience to
take one man’s life.” The issue there is whether that is a religion, because in
the US, the military service laws allows the conscientious objectors to be
exempted from the military service as distinguished from our military service
act. In the case of People vs. Lagman and Soza, remember that the two accused
in those cases, they do not want to render military service because it is against
their religion to kill, so they invoked religious freedom. In People vs. Lagman
and Soza, the SC said, without violating the Constitution, a person may be
compelled by force, if need be, against his will, against his pecuniary interest,
and against his religious belief to take his place in the ranks of the army of this
country and risk the chance of being shot at its defense. Meaning, regardless
of personal or religious conviction, all citizens may be required to render
military or civil service. That is in Lagman and Soza. But in US vs. Seeger, the
accused here was granted in his motion not to be enlisted in the military for
the Vietnam War because of his religious belief. The distinction is that in the
US, the law exempts religious or conscientious objectors from military service,
unlike in the Philippines. Here, it is mandatory for all, regardless of religious
belief. This is also the basis of Casious Clay, Mohammad Ali, in being exempted
to be drafted in Vietnam War. He said that: “I have no fight with them, they
have not called me nigger.” This is the basis of Ali and other celebrities in order
not to be drafted in the military service.
The requisites for a system of belief or philosophy to be considered
as a religion, according to the SC in Estrada vs. Escritor, the philosophy to be
considered as a religion must involve:
1.) Belief in God or some parallel belief that occupies a central place
in the believer’s life – which means that it is either belief in God or
something else – it may be belief in way of life like karma, in Zen
Buddhism. These may be considered as religion even if the
centrality of this philosophy is not God;
2.) It must involve a moral code transcending personal belief;
A.J. CHICANO, J. ALMINAR

3.) It must involve demonstrable sincerity;
4.) That it must involve associational ties.
The non-establishment clause of religion is strengthened by the
separation of church and state under section 6 of article 2. The wall of
separation has two concepts. In the case of Estrada vs. Escritor, the SC said that
wall of separation could either be taken from the concept of:
1.) Separationist approach, or
2.) Benevolent neutrality approach.
Separationist Approach could either be:
1. Strict separationist; or
2. Strict Neutrality
What is a Strict Separationist?
 In Strict Separationist, there is an absolute impregnable wall that
separates church and the state. Under a strict separation, activities of
the church should only be done by the church; activities of the state
should only be done by the state. Under a strict separation, roads built
by their government cannot be used for religious processions. They
must build their own roads – that is strict separation.
What is Strict Neutrality?
 Strict Neutrality is that religion cannot be used as a basis to favor or
discriminate religion. Which means that whatever applies to a secular
activity should also be applied to religious activity. No difference at
all. If employees may be required to work on a Saturday, this regulation
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should apply even to those who belong to a religious organization who
cannot work on a Saturday because of religious belief.
Benevolent Neutrality Approach
The other wall of separation, according to the SC in Estrada vs. Escritor,
is Benevolent Neutrality. This Benevolent Neutrality is a wall of
accommodation, because under this wall of separation, a religious practice can
be accommodated or exempted from the coverage of mandatory law, either
it is criminal, civil or administrative.
Benevolent Neutrality can either be: Mandatory or Permissive.
 Mandatory Benevolent Neutrality is an accommodation or exemption
of religious activity based on the constitution. One example of
Mandatory Benevolent Neutrality is paragraph 3 of section 28 of Article
6 – exempting properties used for religious purposes – that is a
mandatory benevolent neutrality because it is the constitution itself
that grants accommodation.
 Permissive Benevolent Neutrality is the exemption of religious activity
because of public policy.
One example of Permissive Benevolent Neutrality is the case involving
Victoriano vs. Elizalde Rope Workers’ 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 in a particular bargaining unit
may be compelled to become member of the union under the union security
clause. But the law was amended under RA 3350, which exempts members of
religious organization that do not allow their members to be affiliated with a
union. They are exempted from the security clause. In essence, while it is not
based on the constitution, it is not based on religious freedom, it is only based
on public policy. This is permissive benevolent neutrality.
A.J. CHICANO, J. ALMINAR

What kind of wall of separation is mandated by the constitution?
 It is a benevolent neutrality wall of separation.
Under the Constitution, particularly section 29 of Article 6, public
funds or properties cannot be used for religious purposes. Does that mean
that any use of public fund or property for an activity that has some religious
color is prohibited by the constitution?
 Aglipay vs. Ruiz and Garces vs. Estenzo. Aglipay vs. Ruiz is the case
involving the commemorative stamps when the 33rd International
Eucharistic Congress was held in the Philippines. In Garces vs. Estenzo,
the LGU of Ormoc purchased a wooden image of a patron saint, Señor
San Vicente Ferrer in order to be used in celebration of the town fiesta,
because Saint Vicente Ferrer is the patron saint of that LGU. In both
cases, the SC sustained the use of public funds or property.
In Garces vs. Estenzo, the SC is saying that funds were not public
because they were collected from solicitations from private persons.
Nonetheless, the funds were collected by public officers using official time.
Therefore, they partake the nature of public funds. But even if they will be
considered as public funds, the SC still sustained the use of these funds for the
purchase of the wooden image.
In Aglipay vs. Ruiz, the appropriation of the funds for the release of the
commemorative stamps. According to the SC, not all use of public funds for
activities have 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. The appropriate test in order to determine whether use of public
funds or property for activities that have some religious color is the lemon
test, which was laid down by the US SC in the case of Lemon vs. Kirksman.
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Under the Lemon Test, in order to validly use public funds or property
for activities that have some religious color, it is required:
1.) That the activity must have some secular legislative purpose;
2.) It neither promotes nor prohibits religion; and
3.) It does not foster excessive entanglement with religion.
As long as these three tests are satisfied, use of public funds or
property for activities that have some religious color is constitutionally
permissible.
Religious Freedom
 In the case of INC vs. CA, the SC said that there are two aspects of
religious freedom.
The two aspects are:
1.) Freedom to believe; and
2.) The Freedom to act on one’s belief.
The SC distinguished these aspects of religious freedom. The SC said
that Freedom to believe is absolute; the other one is subject to regulation.
Remember in the case of INC vs. CA, the shows of INC were given an
“X-rating”. According to INC, the MTRCB has no authority to screen and review
its television shows because they were recorded and issued in the exercise of
religious freedom. In essence, INC is saying that once the religious organization
invokes religious freedom, they will be already outside the regulatory powers
of the government.
A.J. CHICANO, J. ALMINAR

 The SC said “NO”. The SC, citing Justice Frankfurter, said that the
provisions on religious freedom under the constitution terminated
this abilities but it did not create new liberty. So it grants religious
liberty but not civil immunity. The SC said that the essence of this
constitutional guarantee is freedom from conformity with the religious
dogma but not freedom from conformity to law because of religious
dogma. So which means that once a religious activity violates a law,
the state can interfere.
In the case involving Ang Dating Daan and Iglesia ni Kristo, in the
television show of Ang Dating Daan, Bro. Eli Soriano said that members of
Iglesia ni Cristo are being killed inside the church. The members of INC filed a
libel complaint against Bro. Eli Soriano. According to Bro. Eli Soriano, the courts
cannot interfere because this is between Ang Dating Daan and INC. According
to Bro. Eli Soriano, when the issue is between two religious organizations, the
courts cannot interfere.
 The SC said “NO”. The issue involved here is violation of law, not who
has a better doctrine. In that regard, the Court said that when the
exercise of religion destroys, the court cannot stand still. It must
interfere.
In the case of Estrada vs. Escritor, the SC determined whether the
arrangement between the respondent and her partner is morally permissible.
The first question sought to be resolved by the SC is what standard 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?
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 The SC said that the standard to be applied shall be secular morality,
not religious because courts are courts of law. Since courts are courts
of law, they can apply no standard other than the law. So which means
that applying legal standards, the arrangement between the
respondent and her partner is secularly immoral.
Now, since the SC has now resolved the character of the
arrangement, can it be exempted from the coverage of the administrative
code or the ethical standards of public officer, and the RPC for adultery and
concubinage?
 The SC applied the Compelling State Interest Test viewed from
Benevolent Neutrality in determining whether a religious practice can
be exempted from the coverage of mandatory laws.
 Under the Compelling State Interest Test, there must be three
questions that must be answered. If all the three questions are
answered in the affirmative, the governmental regulation can be
applied to the religious activity. If one of the questions is answered no,
the governmental regulation cannot be applied to the religious
activity and therefore, exempted. In Estrada vs. Escritor, the
government regulation sought to be applied are the RPC for adultery
and concubinage; the Admin Code; the ethical standards of public
officers. These are the three state regulations sought to be applied to
the extra-marital cohabitation of the respondent and her partner.
The three questions are:
1.) Has the statutes or have the statutes or laws created a burden on
the religious freedom (do the RPC, Admin Code, or Ethical Code
create a burden on the practice of the respondent to maintain her
A.J. CHICANO, J. ALMINAR
 23
cohabitation to her partner? – YES! Because the respondent has to of the patriotic oath, and salute to the flag. The SC said that the object
choose what to follow. Either to follow the law, or her religion. So of the Admin Code requiring mandatory singing of the National
the exercise of his religious freedom is burdened with the Anthem, Reciting the Patriotic Oath, and salute to the flag, is to
governmental acts); inculcate in the children love of country, love of heroes - patriotism.
2.) The second question, the reason why it is called a Compelling The SC said that if that is the objective of the Admin Code, is it the only
State Interest Test is that, is there a sufficiently compelling state way to achieve its purpose? Is the only way to achieve that purpose is
interest involved to justify the infringement on religious
to compel students to attend the flag ceremony, or is there any other
freedom? While the SC said in the case of Estrada vs. Escritor
way? SC said there are other least intrusive means like teaching them
(2006) – NO - that the government, through the SolGen failed to
establish a sufficiently compelling state interest in order to justify in class. SC said that since there are other least intrusive means, the
the infringement of the religious freedom. According to SC, a requirement of mandatory singing and recitation is not the least
generalized statement of principles is not enough. There must be intrusive means.
specific interest that must be established by the government to
show that there is a need to regulate the activity. (Let’s us assume
for the sake of argument that the preservation of the sanctity of Applying Ebralinag in Estrada vs. Escritor. Is the application of the
marriage, the integrity of public service are compelling state Administrative Code, the RPC, the Ethical Code for public officers, the only
interest. Let’s say that it is answered yes. For purposes of the third way to achieve the legitimate purpose of the government to preserve the
question, assume that the second question is answered in the sanctity of marriage, to preserve the dignity of public office, or is there
affirmative)
another way?
3.) Did the State, in achieving its legitimate government interest,
used the least intrusive means so as not to interfere with the
religious freedom, no more than necessary to achieve its
purpose? Did the State use its least intrusive means? By “use of There is other way definitely. Therefore, it is not the least intrusive
least intrusive means” mean that the governmental action is the means. To become the least intrusive means, the government regulations or
only way in order to achieve its purpose. the interference of the religious activities is the only way where the
government can achieve its legitimate purpose.
In order to understand this standard better, let’s take the case
of Ebralinag vs. Division Superintendent of Schools, Cebu City.
In the case of Estrada vs. Escritor, the SC exempted the activity of the
Ebralinag also involved the same religious organization, Jehova’s
respondent from the coverage of the RPC, Admin Code, and Ethical Code for
Witness. In Ebralinag, the students who belong to the Jehova’s Witness
public officers. The questions were not answered in the affirmative. The second
were expelled because they refused to sing the National Anthem, they
question was answered in the negative, and even assuming, for the sake of
refused to salute the Philippine Flag because it is against their religion,
argument that it was answered in the affirmative, the third question will still
because in Jehova’s Witness, they cannot sing the National Anthem,
not be the least intrusive means to achieve the legitimate purpose of the
they cannot salute the flag, they cannot recite the patriotic oath, so
government.
they were expelled because there is a provision under the old Admin
Code requiring mandatory singing of the National Anthem, recitation

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SECTION 6 – LIBERTY OF ABODE AND TRAVEL
Section 6 refers to the Liberty of Abode and Right to Travel. Under the
first sentence of section 6, the liberty of abode shall not be impaired, except
upon lawful order of the court.
Does that mean that the only valid restriction of the liberty of abode is lawful
order of the court? Is there any other valid regulation of the liberty of abode?
 Yes, there is! The Constitution specifically says, “The liberty of abode
and of changing the same within the limits prescribed by law.” So which
means that aside from 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 deliberation of the Constitutional Commission, the members of
the Constitutional Commission specifically split liberty of abode and right to
travel in order to prevent the practice of “Hamletting”. What is “Hamletting”?
 It is the isolation of a particular community from the rest of the
country, so that the insurgents may be flushed out. The members of
the Constitutional Commission said that if we will retain the previous
wording of the 1973 Constitution, then the practice of “hamletting” by
President Marcos can still be continues. This is the reason why they
separated the liberty of abode from the right to travel.
In the case of Marcos vs. Manglapus, this is the case where the
petitioner filed a petition to be allowed to return to the Philippines. So in this
case, the SC said that there are only two activities covered by the right to travel.
The right to travel only covers:
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1.) The right to leave the Philippines and go to another country; and
2.) The right to travel and the freedom of movement within the
Philippines.
These are the only activities covered by the right to travel.
The right to return to the Philippines from a foreign country is not
included in the right to travel. But in the case of Marcos vs. Manglapus, the SC
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 the universal
convention of human rights, and the international convention on civil and
political rights. These conventions are generally accepted principles of general
law. Therefore, under the Doctrine of Incorporation, they are deemed part of
our legal system.
Whether it is a right to travel, or a right to return to one’s country,
nonetheless, it is protected by the Constitution. The SC said that yes, it is a
constitutionally guaranteed right; 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. But the right
to return to one’s country can be regulated as long as the regulation is not
arbitrary. Which means that the level of protection and the level of regulation
is different as between the two rights because had the SC 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 vs.
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.
A.J. CHICANO, J. ALMINAR

Remember in the case of Marcos vs. Manglapus, the petitioners were
only prevented from returning to the Philippines because of an order of the
president. That is not the law contemplated under section 6 of article 3. The
law contemplated under this provision 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 the president is valid because it is not arbitrary. The SC
showed at that time, there are still risks from Marcos loyalists and the
Philippines is still under a vulnerable state. So the SC said that definitely, the
order of the president to prevent them from returning to the Philippines is
not arbitrary. That is a valid restriction or regulation of the right to return to
one’s country, but not the right to travel.
In Genuino vs. Delima, this is the case involving the HDO, ADO, WLO
that may be issued by the Secretary of Justice through Department Order
Circular No. 41. Ironically, the D.O. Circular No. 41 was promulgated during the
administration of President Arroyo. This is also the same regulation used by the
then Secretary Delima to prevent President Arroyo from leaving the
Philippines, in order to seek medical attention. The Sec. of Justice issued the
WLO, and the WLO is the same as the HDO because WLO also prevents the
person subject of the WLO to leave the Philippines without clearance from the
Secretary of Justice. This is one of the reasons why D.O. Circular No. 41 was
declared unconstitutional because of the vagueness. There is no difference
between HDO, WLO, ADO, therefore, it suffers from the defect of being
vague. As to the constitutionality of the order, the SC said that the Secretary of
Justice 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 Justice
has no authority to restrict the freedom to travel, the Secretary of Justice
cannot issue HDO, WLO, ADO.
In the case of Manotoc vs. CA, this case was decided under the 1973
Constitution. Under the 1973 Constitution, the liberty of abode and the right
to travel are just treated in one sentence. Under the 1973 Constitution, the
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liberty of abode and of travel shall not be impaired, except upon lawful order
of the court, or in the interest of national security, public safety, public health.
Under the 1973 Constitution, administrative agencies can validly restrict the
right to travel. In Manotoc vs. CA, the order was issued by the court as a
condition of the right to bail. He was not allowed to leave the Philippines
because it is a condition under the right to bail that he shall make himself
available whenever required by the court. He challenged the order of the court
restricting his right to travel. The SC said that this is inherent in the powers of
the courts of justice to enforce its will on parties to the 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. Therefore, he may
no longer be bound to comply with the orders of the court because of the
territoriality of judicial processes.
In Silverio vs. CA, the petitioner argued that while courts can restrict
the right to travel under the 1986 Constitution, courts can only do so in the
interest of national security, public safety or public health. According to the
petitioner in Silverio, courts cannot restrict the right to travel for any other
reason. The SC said “NO”. The power of the court to restrict the right to travel
as a condition of bail did not change either under the 1973 1935 or in the 1987
Constitutions. This is an inherent limitation on the right to travel.
In the case of Leave Division Office of the Administrative Services,
OCA vs. Heusdens, the respondent is a court stenographer and she applied for
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 an administrative sanction. While it was not raised as an issue, the
SC discussed the authority of the SC to regulate the right to travel of the
employees of the judiciary. There is no law that authorizes the OCA to restrict
the right to travel. Definitely, the restriction on that case impairs the liberty of
movement of officers in the Judiciary. Is it constitutional?
A.J. CHICANO, J. ALMINAR

 SC said in LDOAS-OCA vs. Heusdens that the memorandum circular
issued by the SC did not violate the constitutional guarantee of the
right to travel because this is only an administrative restriction. It is a
restriction issued by an employer to its employees. Under this
restriction, employees can still leave but they have to face the
consequences of their acts. Because as an employer, the SC has the
duty to ensure that the activities of the courts will not be impaired by
the absence of the employee.
SEC. 7. RIGHT TO INFORMATION
Did the Constitution guarantee the right to information? Because if your sec.
7 of Art 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. So can we say that the Constitution does not guarantee the right
to information, the constitution only recognizes it?
 So this issue was resolved in the case of Legaspi vs CSC, which involves
a case where a certain information were requested by the petitioners
from the CSC, so they were requesting for the civil service eligibility of
some health officers. So the CSC claim that these are confidential
information these cannot be publicly disclosed. And secondly the CSC
also was in the position that the right to information as well as the
guarantee of full public disclosure are not self-executing, because of
the phrase “as may be provided” in both Sec. 7 of Art III and Sec 28 Art
II starts with a phrase “subject to reasonable conditions as provided by
law”, so in both provisions the CSC was in the opinion that there is a
need for a legislative act in order for the guarantees become operative.
 So the characteristic of sec 7 whether it guarantees or merely
recognizes, the SC said in the case of Legaspi vs CSC, that every right of
the people recognized as fundamental there lies a corresponding
obligation on the part of those who govern to respect and protect that
right
 So that recognition of the right to information carries with it the
obligation on the part of the government to protect that right, so same
with guarantee. That is a commitment that the government will
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recognize, that the government will protect it, the government will
respect it.
 As to the characteristic of Sec 28 of Art II and Sec 7 of Art VII, the SC
said that both provisions are self-executing provisions, they do not
need implementing legislations, SC 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 full public
disclosure, not to the right to information which means that the policy
full public disclosure, the right to information become operative upon
the ratification of the constitution without need of any enabling
legislation.
So may the administrative agencies who are custodians of information
imbued with public interest restrict/prohibit the disclosure of the
information?
 So this is the main issue in the case of Legaspi vs CSC, whether CSC, an
administrative agency in charge with the information relative to the
civil service eligibility of certain professional.
 So the SC said that administrative agencies does not have the power to
prohibit, admin agencies only have the right or the power to regulate.
Regulate does not include restriction or prohibition outright.
 SC said that reasonable regulations that may be implemented by the
agencies should be;
o 1.) to the extent that any damage to or loss of the documents
maintained by them shall be avoided,
o 2.) to the extent that the examination of the information shall
not interfere with the performance of their other functions and
o 3.) to the extent that persons who are equally entitled to the
exercise of the right may be respected.
 So these are the 3 regulation that may be implemented by
administrative agencies which are custodians of the information
imbued with public interest or public concern.
A.J. CHICANO, J. ALMINAR

In Legaspi vs CSC, the SC said that before the right to information becomes
demandable, before the policy of full public disclosure becomes operative,
there are 2 questions that must be answered by the courts.
 1. Whether the information/transaction is one of public concern or of
public interest,
 2. Whether there is a law prohibiting its disclosure
So the SC said that public interest like public concern is a term that eludes
exact definition, but both term embrace a wide spectrum of subject matter
which the people may want to know either because:
 A.)These directly affect their lives or
 B.) The information is such a character that will naturally arouse the
interest of an ordinary citizen.
So note that there must be a distinction between an information of public
concern/public interest to mere curiosity. There must be some legitimate
objective for the information.
 While an individual can demand a right to information and invoke the
guarantee of full public disclosure in order to compel the President
Duterte to disclose the status of his health. Even without Art. VII of the
constitution mandating that the president, if he is seriously ill must
inform the public even without that constitutional provision, under the
guarantee of full public disclosure, the people have a right to know
whether he is terminally ill or not. That is part of the right to
information that is covered by the guarantee of full public disclosure
and the right to information.
 But a citizen just because he has the interest over the subject matter
cannot demand under the right to information or the guarantee of full
public disclosure that he be given information over the sex life of the
President. While it satisfies curiosity it does not have a LEGITIMATE
PUBLIC OBJECTIVE for that information.
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 So, because the 2 standards given by Legaspi vs CSC said that it is a
matter of concern or of public interest if it affect the life of the
individual OR it arouses his interests. So that the 2nd standard must be
taken within the context of legitimate public objective. So not merely
curiosity.
Are all information imbued with public interest or public concern subject to
disclosure if there is no law prohibiting the disclosure?
 In Chavez vs PCGG, this is the case involving the demand for the
disclosure of the concessions between the government and the Marcos
family because there was a plea bargaining agreement.
 So the petitioners want to know, what are the concessions, the
government say confidential.
 So the SC said that while the constitutional guarantee of the right to
information requires that the information be disclosed if it one of
public interest or public concern and when there is no law prohibiting
its disclosure, there are certain types of information which by their very
nature are CONFIDENTIAL in character, which means that even without
any law prohibiting the disclosure of this information the government
can validly withheld the information.
 So the SC in this case identified 4 groups of information that cannot be
even if there is no law prohibiting its disclosure.
o 1. The first one pertains to national security matters and other
intelligence information.
 So military secrets are included, correspondence with
representatives are also included under this groups of
information which is shielded from public examination
o 2. Trade secrets and banking transactions.
 These transactions are private in character, these are
proprietary in character so therefore they cannot be
publicly disclosed.
o 3. Criminal Matters
 Does this refer to criminal cases? No, this refers to law
enforcement activities.
A.J. CHICANO, J. ALMINAR
 28
 So information regarding apprehension, detention, information of those government owned and controlled corporation
and prosecution of persons who violated criminal laws even if they are performing proprietal functions are also considered as
cannot be publicly disclosed until the actual arrest, one of public interest or public concern particularly so that the funds
actual detention and actual prosecution. of GSIS are coming from contributions of government official.
 So which means that the confidentiality of this  The 2nd question is that is the demand of the petitioner to be given list
information is only limited for a particular period.So an of names of persons or members of the congress who are able to
individual cannot go to PDEA and ask the PDEA to secure clean loans a valid demand under the right to information. The
disclose who its targets are for the month of SC said NO, that is not valid while the information is one of public
November. concern or public interest the right to information does not include the
 BUT if the operation has been conducted, an right to demand for list, summaries and abstracts, the right to
individual, in the exercise of its right to information, information is only a right to demand access to the information but the
can demand disclosure. So an individual can go to custodian CANNOT be required to provide for summaries or abstract.
PDEA and ask what happened in the operation las The person invoking the right to information himself must prepare the
August. list and etc.
o 4. Other confidential information. This includes:
Relative to the documents and activities of the SC, the SC laid down rules in
 Information obtained by public officer in the exercise
the matter of request for the production of documents and attendance of
of their official functions
court officials and employees in the impeachment trial of CJ Corona, so the
 Internal deliberations of SC
SC said that insofar as documents and proceedings of the SC, these are the
 Closed door cabinet meetings
rules, the SC said that the following are confidential in character:
 Executive sessions of both houses of Congress
1. Court actions, such as result of the raffle of the cases and the actions
taken by the court on each case included in the court’s agenda on
The right to information and the guarantee of full public disclosure extends matters and cases pending before it.
to government owned and controlled corporations with original charter  Because in the case of the impeachment of CJ Corona, the
regardless whether they are performing governmental or proprietal function. prosecution was demanding for the minutes of the raffle of the
cases. SC said NO, that’s confidential. Only the parties and their
 This is the learning in the case of Valmonte vs Belmonte Jr., in this case,
counsel are entitled to the information, so which means that
remember that the petitioners here are reporters media practitioners
the result of the raffle of the cases can only be disclosed to the
and they were demanding from the GSIS information about loan
parties and their counsels. Exception to the exception, which
transactions, and they were demanding list of names of members of
means that even the parties and their counsels are not entitled
Batasang Pambansa, now Congress, belonging to PDP Unido Laban who
when the case or matter disciplinary involving judges and
are able to secure clean loans thru the intercession or marginal notes
justices and bar matters involving lawyers, and in criminal
of former first lady Imelda Marcos.
cases when the penalty is life imprisonment and higher. So in
 So the 1st question is that, is the information of the GSIS regarding loan
these cases, even the parties and their counsels are not
transactions covered by the right to information. The SC said YES,
entitled to the result of their cases
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2. Court deliberations or deliberations of the members of the court in
session on cases and matters pending before the court, are also
privileged and confidential.
 So the public cannot demand the minutes of the deliberations
because these are considered privileged and confidential.
3. Court records which are pre-decisional and deliberative, under the
deliberative process privilege.
 So a communication or a transaction is predecisional according
to the SC as the term implies if it precedes the decision to
where it relates, in short, a communication is predecisional
when it is made in an attempt to reach a conclusion.
 So which means that the notes of the justices cannot be
publicly disclosed because this are predecisional
communication.
 A communication on the other hand is deliberative, under the
deliberative process privilege, if it is part of the give and take
of the negotiation process.
 And the SC said that the ultimate test in determining whether
a communication is deliberative is when the disclosure of the
information will discourage a candid discussion/opinion
among the members of the SC. So if it the disclosure of the
communication will discourage candid opinion then it is a
deliberative communication insulated from public
examination.
4. Confidential information obtained by justices, judges, officers and
employees of the judiciary in the exercise of their official function.
 This is in line with RA 6713 or the Code of Act Conduct and
Ethical Standards of Public Officials and Employees.
 Members of the Judiciary who violate these rule may be
subjected to penal or administrative sanctions.
5. Court records or records of cases which are still pending decision.
 This is under the rule on subjudice, so under this rule, records
of pending cases cannot be publicly disclosed until they are
publicly issued.
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So when is a decision, when is a resolution publicly/officially
issued? It is officially issued when the final copy of the decision
or resolution is placed inside the envelope, addressed to the
parties and transmitted to the records section division. So once
that the envelope is transmitted to the records section
division, then the decision/resolution is officially promulgated.
 So remember several years ago, a member of the SC was
denied of his retirement benefits because of the disclosure of
an unpromulgated decision, meaning not yet signed.
6. Under the doctrine of comity and interdepartmental courtesy, the
highest officials of each department are exempted from the
compulsory processes of the other.
 So which means that highest officials of one department
cannot be compelled by compulsory writs, like sub poena to
attend the internal proceedings of the other.
 So when it comes to the executive, the only person covered is
the President, and by extension, according to the SC in Neri vs
Senate and Senate vs Ermita, by extension the Executive
Secretary. Only the President and by extension the ES are
covered by the executive privilege.
 But when it comes to the SC, not only the CJ is covered by this
doctrine but ALL the 15 justices of the SC are covered by the
doctrine of comity and interdepartmental courtesy. So which
means that even the associate justices cannot be compelled to
attend the internal proceedings of the other department.
 How about the Congress? Are all members of congress covered
by it? Or only the speaker or senate president are the only ones
covered? Answer is ALL MEMBERS OF THE 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. The last rule is that these privileges belong to the SC as an institution.
 So which means that no associate justice or even the CJ, no
judge can validly waive the privilege. Because remember in the
impeachment trial of the former CJ Corona, then associate
A.J. CHICANO, J. ALMINAR

justice, now former CJ Sereno, wants to attend. So Justice
Sereno, during that time said that no more sup poena, I will
attend. But the SC said NO, nobody can waive the privilege
character of this information or communication but the SC en
banc. It is only the SC as an institution that can waive the
confidentiality of these communications and transactions.
So these are the rules in so far as the transactions and the documents of the SC
are concerned.
SEC 8. RIGHT TO FORM ASSOCIATIONS
Under Sec 8, we are not able to distinguish the difference between strikes
and assembly and petition.
 Let’s take 2 cases, in the case of PBM Employees Association vs PBM,
the factory workers stopped working, they walked out of the factory,
they engaged in a concerted action and the SC said that the activity is
an assembly and petition, in the case of SSS Employees Association vs
CA however, public school teachers went out of their classrooms they
engaged in the concerted activity and the SC called that activity as
strike. So what’s the difference? Because in both cases there is work
stoppage, in both cases the persons involved are employees, and in
both cases they both engaged in a concerted action. But in PBM the SC
said, that activity is an assembly and petition and in the SSS case, the
SC said that the activity was a strike. So how do we determine whether
a concerted action of employees is an assembly and petition on the one
hand and strike on the other hand?
 The first standard in determining the nature of the activity of the
concerted activity is the relationship between the speaker and the one
invoking the right, and second is what are the grievances raised during
the assembly.
 In a strike the participants and the recipient of the grievances are
employers and employee. So the one raising the grievances are the
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employees and the one who are the subject of the grievances is the
employer.
 In assembly and petition, the one raising the issue is a citizen and the
recipient of the grievance is the government as an institution, not as an
employer.
 And the more determinative factor is the grievances raised. In a strike
the grievances are employer-employee related issues like better
benefits, better working conditions and other employment benefits.
Because in the case of SSS, the teachers were demanding better pay,
so the SC said that this is a strike. But in the PBM case, the employees
in that case were denouncing the abuses of Pasig police, so which
means that issues were not employer-employee related.
SEC 12. CUSTODIAL INVESTIGATION
What is a custodial investigation?
 The SC in People vs Judge Ayson, citing Miranda vs Arizona, Custodial
Instigation (CI) means any questioning initiated by law enforcement
officer after a person has been taken into custody or otherwise
deprived of his right of movement in any significant way.
The extent of cover SEC 12 is broader than Miranda Rights (Miranda vs
Arizona).
 Because in Sec 12 of Art III, the right to counsel is mandatory either in
the conduct of investigation or in the waiver of the conduct, but in
Miranda, as long as the person is informed of his right, it is sufficient
There are 2 acts in order to place a person under Custodial Investigation
1. Taken into custody
2. Deprived of Freedom of Action in some significant way
Requisites to consider the proceedings as Custodial Investigation
A.J. CHICANO, J. ALMINAR

1. When a person is taken into custody or deprived of freedom of
movement
2. The one who takes him to custody is law enforcement officer
3. The law enforcement officer starts to ask question
4. And the question is specific as to the offense which is the subject of the
investigation (People vs Bolanos)
What is the reason why sec 12 of Art III guarantees the rights of a person in
custodial investigation?
 To preclude the slightest use of coercion by the Govt, but not to
prevent the accused but not to prevent the accused from freely and
voluntarily telling the truth.
 So Spontaneous statement made under ordinary circumstances are not
part of CI. Particularly so, when the confession was not illicited thru
questioning. (People vs Andan)
 In the same case, the SC said that the exclusionary rule is premised on
the presumption that the defendant is thrust in an unfamiliar
atmosphere and runs thru menacing police interrogation procedure
where the potentially of compulsion, physical or psychological, is
forcefully apparent.
 To protect the accused from any compulsion that may result in self-
incriminating statements without full warnings of his constitutional
rights.
What are the rights of a person in CI?
1. The continuing right to be silent and of counsel (waivable)
2. Right to be informed of right to remain silent and of counsel
3. Right not to be subjected to torture, force, violence, threat,
intimidation or any other means which vitiate his free will.
4. Right to have evidence obtained in violation of his constitutional rights
inadmissible in evidence.
Can the accused his rights under Sec 12 Art III?
 No, not all
 Only the right to remain silent and the right to counsel
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 So, even if the waiver is made in writing and made in front of counsel,
the accused cannot waive his right to be informed.
 The accused cannot also waive his right not to be subjected to torture.
It is incumbent upon the prosecution to show that all the rights of the person
under CI has been afforded (People vs Pinlac)
 Upon failure to do so, the judge can suppress the evidence.
 Or even on appeal, the justices may declare the evidence presented by
the prosecution relative to the CI inadmissible as evidence.
Who may conduct CI?
 Only law enforcement officers (LEO)
 A LEO is one who is charged with duty to arrest criminals and duty to
investigate violations of general laws.
 PNP, NBI, Bureau of immigration agents (People vs Ho Wai Pang),
Mayor (People vs Andan)
May a private individual be considered as LEO?
 In People vs Andan, media covered the confession. And after the same,
the reporters continued to interview the accused and the accused
consistently admitted to media reporters his guilt.
 SC said the reporters are no LEO, no duty to investigate and to order
the detention. And no indication that they have acted under control
and supervision of LEO.
 Which implies that even a private person can be LEO, if that private
person acted under the direction and control of LEO.
 If the reporters were instructed by Police officers to ask questions, and
the reported were able to secure confession. That is part of CI.
 How about auditors of COA? SC said no. in Vallo vs Sandiganbayan, the
SC said that the function of auditors is to determine the proper use of
public funds.
Is Police line up procedure? Is it part of CI?
 There are two streams of decisions w/c regards police up.
A.J. CHICANO, J. ALMINAR

 In Gamboa vs Cruz, the SC said the uncounseled identification is not
yet part of CI. This is still a general inquiry. The police officer did not
ask anything to the accused.
 In contrast, in People vs Makam, That police line-up held in the
hospital where the victim is confined is deemed already part of CI.
Because the CI begun when the LEO interrogated the accused in the
factory prior to the line-up. Any identification following the start of CI
becomes part of it. Thus, the uncounseled identification at the hospital
is considered inadmissible as evidence.
If the rights of the person under CI were violated, is he entitled to acquittal?
 No, In Ho Wai Pang vs People the SC said that indeed the rights of the
accused were violated because they were not afforded the right to be
informed upon failure to provided translator for the accused, but, the
SC still sustained the conviction because there is an independent
evidence enough to establish the guilt of the accused beyond
reasonable doubt.
In CI, confession is not only limited to verbal admission.
 It also includes signing the inventory (People vs Won Cheng)
 Includes re-enactment (People vs Pinlac)
 Technically it confession in CI includes verbal communication, acts and
signature.
Res Gestae in CI
In the case of People vs Dy, where the accused confessed that he shot
a tourist in Boracay and that the gun he used was still inside the resto,
the SC the statement is admissible, because it is part of res gestae.
 Res Gestae vs IRS. The admissibility of IRS is limited to establish the
existence of the statement. While part of the res gestate also admits
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the truthfulness of the statement. The res gestate means “things
done”, which means that the statements is parts of the things done.
 In that regard the statement of Police Officer, saying that the accused
told him that he shot a tourist and location of the gun is admissible as
evidence and exception to the hearsay rule.
Under the case of Ho Wai Pang, violation of the right of the accused under sec
12 of Art III only excludes confessions obtained during CI.
 Thus evidence independent of CI is admissible in evidence.
Supposing a passenger arrives the PH, and interviewed by Bureau of
Immigration agent and he was asked if he was carrying illegal drugs and he
said “Yes”. Because of the confession the Immigration Officer searched his
outer clothing and found illegal drugs inside his pocket. So can we say that
only the confession is inadmissible but the drugs obtained admissible?
 No, both the confession and the evidence obtained based on the
confession is also inadmissible as evidence.
 The SC said in the case of People vs Alicando, confession and all
derivative evidence is the extent which may the inadmissibility be
applied. Any evidence obtained in violation of Sec. 12 of Art. III,
however far removed from the primary source is excluded in evidence.
This is the application of the fruit of poisonous fruit doctrine.
Under RA 7438, the term Custodial Investigation was extended even to the
practice of the Police Officers of issuing invitation to a person who is
investigated of a crime of which he is a suspect.
Under the Constitution, for a valid waiver of the right to remain silent and to
have counsel, it is required:
1. The waiver must be in writing
2. The signing of the same be done in the presence of counsel
A.J. CHICANO, J. ALMINAR
 33
RA 7438 provides additional condition for the admissibility of the evidence  All kinds of Bail are subject to the mandatory conditions under Sec. 3.
obtained during CI: Under Rule 114, the mandatory conditions to right to bail are:
o 1. The undertaking shall be effective upon approval and unless
1. The custodial investigation report must be in writing and signed by the
sooner cancelled shall remain in force at all stages of the case
accused.
until the promulgation of judgement by the RTC whether the
2. The extrajudicial confession of the accused must be in writing and
case was originally filed in or appealed to it.
signed by him. Which means verbal confession is inadmissible.
o 2. That the accused shall appear before the proper court
3. Such confession must be signed in the presence of his counsel, of in the
whenever required by the court or by the rules of court.
absence of such, upon a valid waiver, can be signed in the presence of:
o 3. The consequence of his failure to appear. The failure of the
a. any of the parents,
accused to appear during trial despite due notice and without
b. any of the elder brothers and sisters,
justification shall be deemed a waiver to his right to be present
c. spouse,
thereat, in such case trial shall proceed in absentia.
d. municipal mayor,
o 4. That the bondsman shall surrender the accused for the
e. municipal judge,
execution of the final judgement
f. school district supervisor,
g. and the priest or minister of the gospel chosen by him. 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
If the extrajudicial confession is not signed in the presence of the counsel or
granted bail? Because the object of bail is to give provisional liberty. So can
any of the persons mentioned in RA 7438, that extrajudicial confession is
the court say that provisional liberty presupposes that the accused is in
inadmissible in evidence.
detention?
These are additional requirements for the admissibility of extrajudicial
 Answer is “NO”. No need to wait for detention. An accused may post
confessions obtained during CI.
bail even if he is not yet in detention by voluntarily submitting himself
to the custody of law enforcement officer.
 So if the accused learned that there is already a warrant of arrest, no
Sec 13. RIGHT TO BAIL
need for him to wait for the service of the warrant of arrest. He may
Bail under Rule 114 has been defined as: submit himself to the custody of the law enforcement officers and then
post bail. So in that regard, he may be spared from the humiliation of
 A security given by the person who is in custody of the law furnished being arrested.
by him or a bondsman to guarantee his appearance as required under
conditions provided for under the Rules of Court. Ordinarily Bail is granted only to an accused, charged with a crime. Can bail
 And under the Rules of Court there are 4 forms of Bail: be imposed to a person not an accused or not even a party to the proceeding?
o Property Bond
 “Yes”, Under Rule 119 of the Rules of Court (Trial), a bail may be
o Corporate Surety
required in order to secure the attendance of a material witness.
o Cash Bond
o Recognizance

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 So which means that bail in that rule is not a right bail is an obligation.
A material witness can be compelled, may be required to post bail to
insure his appearance during the trial.
Bail as a matter of right vs Bail as a matter of discretion
There are 2 kinds of Bail under Sec. 4 and 5 of Rule 114.
 Bail could either be a matter of right and a matter of discretion.
 And sec 4 of Rule 114 enumerates 3 instances when bail is a matter of
right. So the rules of courts say that bail is a matter of right:
o 1. Before or after conviction of by the MTCs
 So which means that an accused charged with an
offense cognizable by the MTC is entitled to bail as a
matter of right even after conviction.
o 2. before conviction of RTC of an offense not punishable by life
imprisonment, RP or death.
 Aside from the 2, is there any other instance when
right to bail is a matter of right? Note that Sec. 13 or
Art III, the Constitution says, “All persons are entitled
to Bail” the constitution only excludes certain persons
charged with a crime from the right to bail.
 So which means that a person is entitled to bail unless
he falls under the exception and under the exception
there are 2 conditions to deny a person his right to bail.
1. 1. The person is accused of an offense
punishable by RP, LI or death
2. 2. The evidence of guilt is strong
 If one of these 2 conditions is absent, Bail is a matter
of right. So let’s take out the first condition, penalty of
the offense charged, if the accused is charged of an
offense not punishable by those 3 and it is before
conviction, bail is a matter of right, regardless of the
evidence of guilt, even if the evidence of guilt is
overwhelming bail is a matter of right before the
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conviction of the RTC or even after the conviction by
the MTC.
 Let’s put in condition number 1 and remove
requirement number 2, the accused is charged with an
offense punishable with imprisonment and death but
the evidence of guilt is not strong, bail is a matter of
right.
 So this is the 3rd instance when bail is a matter of right.
 So to recap when bail is a matter of right:
1. Before or after the conviction by the MTC
2. Before the conviction of the RTC of an offense
NOT punishable RP, LI or death
3. Before conviction by the RTC of an offense
punishable by RP, LI or death AND the
evidence of guilt is strong.
o Bail is a matter of right under these 3
circumstances.
 In sec. 5 of Rule 113, the SC only enumerated one
instance of bail as a matter of discretion, so the SC said
that Bail is a matter of discretion after conviction by
the RTC of an offense not punishable by RP, LI or death.
 So after conviction bail is a matter of discretion. So is
there any other instance when bail is a matter of
discretion aside from that?
 “Yes”, before conviction, Bail is a matter of discretion
when the accused is charged with an offense
punishable by reclusion perpetua, life imprisonment
or death.
So it is not correct to say that there are non-bailable offenses, because all
offenses are bailable. The only reason why there are accused in some
offenses which are not allowed to post bail is because of the weight of the
evidence of guilt.
 So even offenses punishable by RP is bailable when the evidence of
guilt is not strong.
A.J. CHICANO, J. ALMINAR

So going back to bail as a matter of discretion, bail is a matter of discretion
before conviction of an offense punishable by RP, LI or death.
 The discretion of the court lies in the determination of weight of
evidence of guilt.
 So in determining the weight of the evidence of guilt, it is mandatory,
according to the SC in the case Basco vs Rapatalo to hold a hearing. So
in the hearing the court will conduct a summary determination of
evidence of guilt. So the discretion of the court will only be applied with
the determining whether the evidence of guilt is strong or weak.
 So if the accused is charged with the offense which is punishable by RP,
LI or death, and before conviction the court holds a hearing to
determine the weight of evidence of guilt and after hearing the court
determines that the weight of evidence of guilt is strong, discretion
ceases. The court has no choice but to DENY the application for bail.
 If after such hearing the court determines that the weight of the
evidence of guilt is not strong, discretion ceases, the court has no
choice but to GRANT the application for bail. So which means that
discretion only lies on the determination of weight of evidence of guilt.
 So the SC cautioned in the case of Basco vs Rapatalo. This is the case
where the accused is charged with an offense punishable by RP, he was
in detention and then, several months later the parents of the victim
were surprised to see accused in their town, and discovered that the
judge granted bail without conducting a hearing. So the SC said “NO”,
hearing is mandatory in order to determine the weight of the evidence
of guilt and secondly to determine the reasonable amount of bail under
Sec. 9 or Rule 114.
 So the SC said in that case that discretion when applied by a court of
justice means DISCRETION GOVERNED BY RULE, it must not be
arbitrary, vague or fanciful, but regular and legal. So it must not be
based in humor according to the SC.
So are hearings or applications for bail subject to the 3-day notice rule?
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 In Baylon vs Sison, the trial court believes that hearings for application
for bail are exempted from the 3-day notice rule because according to
the trial court judge time is of the essence because the accused is in
detention. So the motion for bail must be heard at the earliest possible
opportunity.
 The SC said “NO”, because according to the SC, citing the case of Basco
vs Rapatalo, there are 4 obligations of the court whenever an
application for bail is filed:
1. To inform the prosecution of the hearing of the application for
bail or to require the prosecution to submit a
recommendation.
2. To conduct hearings in order to allow the court to exercise its
reasonable discretion.
3. To determine the weight of evidence of guilt; and lastly
4. If the weight of evidence of guilt is not strong, discharge the
accused and if the evidence of guilt is strong, then deny the
application for bail.
 So these are the 4 obligations of the court whenever an application for
bail is filed.
 So going back to the 3 day notice rule, the SC said in Baylon vs Sison,
that to deny the 3 day notice rule to the prosecution would be a denial
as well of the right to prepare for the presentation of evidence to
establish the weight of evidence of guilt. So this is a violation of the
right to due process of the prosecution. So the SC said, the right to
hearing particularly the cases when bail is a matter of discretion is
mandatory. The 3-day notice rule is also mandatory to afford the
prosecution to prepare the presentation of evidence.
If you were asked whether the member of the Armed Forces of the
Philippines are entitled to bail? What is your categorical answer? So if that is
only the question, If AFP is entitled to bail? Yes or No?
 Answer is “YES”, that is the categorical answer to that question. Note,
that the Constitution says that all persons without exception, without
qualification.
A.J. CHICANO, J. ALMINAR

 So the ruling of the SC in Comendador vs De Villa, should be taken from
the context of that case, while the SC said in that case that members of
the AFP do not have the right to bail, this has reference to court martial
proceedings. So which means that if the question is if the AFP is entitled
to bail, the answer is YES only as an exception when they are charged
before the court martial proceedings
 So the SC explained the peculiar character of the Military. So the SC
said that in military the members are more entitled to speedy
disposition of cases because they are not entitled to the right to bail,
so in that regard, a good example is Sen. Trillanes in so far as the coup
d etat charges in the RTC, bailable but as to the GCM proceeding in the
general court martial, not bailable. So a same act can be a basis of a
General Court Proceeding or a proceeding under the RPC but the
proceeding under the RPC he in entitled to bail, and in GCM he cannot
post bail because GCM is not criminal proceedings.
In determining whether bail is a matter of discretion or a matter of right, we
have learned that the material considerations are based on the:
1. Penalty of the offense
2. And the weight of evidence of guilt
In determining whether bail is a matter of discretion or a matter of right, what
penalty should the court consider? Considering 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 applied? Supposing at the time that the criminal information was
filed the penalty of the offense charged is RP but during the application for
bail the law was amended and the penalty was reduced to prision mayor, so
what penalty shall be determined whether bail is a matter of discretion or as
a matter of right?
 This was answered by the SC in the case of People vs Judge Donato, so
regarding rebellion so at that time of the filing of the information,
rebellion is punished by RP to death but during the application for bail
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it was reduced to prision mayor so the SC said that it is penalty at the
time of the application for bail that shall be the basis in determining
whether bail is a matter of right or discretion. So which means in that
case the SC granted the application for bail regardless of the weight of
evidence of guilt because the penalty at that time of the application for
bail is the determinative factor.
So can we now say that the penalty at the time of the application for bail is
the determinative factor? Do you agree or not? Why?
 The answer is “I DO NOT AGREE”. Because the abovementioned
statement is taken only from the context of People vs Donato, when
the law lowered the penalty.
 Let’s say the situation is reversed, at the time of the filing of the
criminal information the penalty is Prision Mayor, at the time the
pendency of the application for bail, the law was amended increasing
the penalty, so can you still say that the penalty at the time of the
pendency of the application for bail should be the basis?
 NO MORE, because that becomes ex post facto.
 So the correct categorical answer what penalty in cases of difference
the penalty at the time of the filing of the criminal information and at
the time of the filing of the application for bail. The categorical answer
is the LOWER PENALTY. Always the lower penalty that should govern in
determining the nature of the application for bail.
May Sec. 13 or Article III be applied in non-criminal proceeding like
deportation, quarantine, extradition?
 Answer is NO. Sec 13 if Art III is only exclusive to criminal cases.
 But the right to bail can be granted not under Sec. 13 but under Sec. 1
of Art. III, the right to due process.
 Sec 13 of Art III is exclusive to criminal proceedings because the
provisions require:
o The penalty for the offense charged
o The evidence of guilt is also relevant
A.J. CHICANO, J. ALMINAR

 And in non-criminal proceeding, the weight of the evidence of guilt,
the penalty of the offense charged are not relevant
 So in the cases of US vs Puruganan, and Hongkong Administrative
Region vs Olalia, the SC discussed the nature of extradition
proceedings. So extradition definitely is not a criminal proceeding, so
the SC explained the 5 postulates in extradition proceedings:
o First Postulate: SC said that extradition proceedings is a major
instrument for the suppression of crime. With the advent of
easy international travel, the SC states that the way that a state
deals with criminal action has evolved, entering into an
extradition treaty so that the criminals who may flee the
jurisdiction from the jurisdiction of the local court may demand
the return of the person in the state so that justice may be
served.
o Second Postulate: the requesting state must accord due
process the accused, so which means that in entering in an
extradition treaty a state must review the procedure of the
other state, so when the state is convinced that due process is
observed that is the only time that the state will sign the treaty,
so the signature or the ratification rather of the extradition
treaty presupposes that both parties trust the legal system of
the other.
o Third Postulate: extradition proceedings are sui generis (of its
own kind; unique). Extradition proceedings are not criminal
proceedings even if they use the mechanisms of criminal cases
because in extradition proceedings it entails arrest/detention.
But the SC said that these are not criminal proceeding because
in any extradition proceeding the penalty of the offense
charged and the weight of the evidence of guilt are not
relevant. There are only 2 issues in extradition proceedings; 1.)
Whether the application for extradition complied with the
extradition treaty, and 2.) Whether the accused is extraditable.
So these are the only 2 issues that may only be resolved in an
So we learned earlier that there are only 2 instances when Bail is a matter of
extradition proceedings, not the innocence or guilt, not the
discretion. So again to recap, Bail is a matter of discretion after conviction of
penalty of the offense charged but whether the application
the RTC of an offense not punishable by RP, LI or death and second, bail is a
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complies with the extradition treaty and whether the person
sought to be extradited is extraditable. Another proof that
extradition proceedings are not criminal cases is that in
criminal cases the quantum of proof to convict the accused is
proof beyond reasonable doubt. In extradition proceedings,
the extradition may be granted, what standard of evidence?
Not clear and convincing evidence. The standard that must be
applied by the courts in granting extradition is only PRIMA
FACIE EVIDENCE. The CLEAR AND CONVINCING EVIDENCE is
the standard to be used in determining whether the extraditee
shall be entitled to bail. So there is a difference in granting the
extradition and granting the application for bail. In granting an
application for extradition, the court must only use the
standard of prima facie evidence because the proceedings are
summary in extradition. So the prima facie evidence is used by
the court in determining whether the requesting state is
entitled to the extradition. Another proof that the extradition
is not a criminal proceeding, decisions in a criminal cases
become executory upon its finality. So, once a decision
becomes final in criminal cases it becomes executory. In
extradition proceedings, final decisions of the extradition
proceedings are not executory until the President decides. So
which means that even if the decision has already become final
the decision is not executory until the President approves it.
Because extradition according to the SC is a part of the
executive powers of the President in establishing for foreign
relations.
o Fourth Postulate: Compliance shall be in good faith.
o Fifth Postulate: There should be an underlying risk of flight. So
the SC said that the only reason why the requesting state filed
a petition is because the supposed extraditee has fled the
jurisdiction of the requesting state.
A.J. CHICANO, J. ALMINAR

matter of discretion before conviction when the accused is charged with an
offense punishable RP, LI or death, the discretion lies on the determination
of the weight of the evidence of guilt. The SC further expanded these
discretionary bail in the case of Enrile vs Sandiganbayan.
 So in this case, note that the petitioner charge with an offense
punishable by RP and the evidence of guilt is strong. So ordinarily bail
is neither a matter of right or discretionary but the SC granted tge
application for bail because of the HEALTH CONDITION of the
petitioner.
 So the SC said that regardless of stage of the proceedings, regardless
of the weight of evidence of guilt, bail is a matter of discretion when
the continued detention of the accused will pose a risk on his health.
 So the SC granted the application for bail in that case on
HUMANITARIAN CONSIDERATIONS, which means that this is another
instance of bail as a matter of discretion.
So in sec. 5 of Rule 114, the SC enumerated conditions when bail is not a
matter of right nor a matter of discretion, after the conviction by the RTC. So
note under sec. 5 of Rule 114, as a general rule, after conviction if an accused
is charged by an offense not punishable by RP, LI or death bail is a matter of
discretion except any of the 5 instances in sec 5.
 So when the penalty imposed by the trial court is more than 6 years of
imprisonment meaning 6 years and 1 day, 6 years = still discretion, but
6 years and 1 day and either one of the circumstance under sec.5 is
present, bail is not a matter of right nor a matter of discretion. The
court must deny the application for bail.
In determining whether bail is a matter of right or a matter of discretion are
attendant circumstances relevant? Aggravating-mitigating? Because in Enrile
vs Sandiganbayan, the petitioner contends that while the penalty for the
offense charged is RP the petitioner is entitled to 2 mitigating circumstances,
1.) Voluntary surrender and 2.) Above 70 years old, so according to the
petitioner the maximum imposable penalty to the petitioner under that case
is 1 degree lower than perpetua, temporal, so according to them bail is a
matter of right.
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 But the SC said NO, the aggravating-mitigating circumstances are not
relevant in determining the application for bail.
 So the determinative factor is the penalty imposed by law NOT the
penalty imposed by the trial court.
Supposing the accused is charged with an offense punishable by reclusion
perpetua and during summary hearing, the prosecution has established that
the evidence of guilt is strong but during trial he was only convicted of an
offense punishable by reclusion temporal, supposing the offense charge was
murder and during application for bail the strong evidence of guilt was
established by the prosecution, so during trial the accused was denied bail
but after the trial the court only convicted the accused to temporal, or
homicide. Can the appellate court grant the application for bail?
 YES, because now it is a matter of discretion.
 Would that not violate the constitution? Because the constitution only
says before the conviction now it is after conviction. NO, because this
rule further expands the constitutional guarantee. What will violate the
constitution is a rule that will restrict the right to bail, but expanding
the right to bail to other circumstances which are not expressly
provided for in the constitution does not violate the Constitution. But
of course the rules cannot expand it to the extent that it will violate the
constitution, so if it will not violate the constitution like in the case of
after conviction but the crime of which the accused is convicted is
already punishable by temporal, then the court can grant the
application for bail.
Sec. 14 RIGHTS OF THE ACCUSED
Section 14 of Article III is collectively called “Rights of the Accused”. So 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 Section 14 that does not
belong to the accused. That is the last one, “Trial in Absentia”.
A.J. CHICANO, J. ALMINAR

 Trial in Absentia is a right of the prosecution to continue with the
proceedings even in the absence of the accused. So which means that
trial in absentia is an exemption of the right to be heard by himself and
by counsel. So all the rest are rights of the accused.
The first right of the accused under Section 14 is the Right to Due Process.
 In the case of Alonte vs. Savellano, the SC enumerated the 4
mandatory requirements in judicial criminal proceedings.
o The first requisite in criminal due process is that the court must
be clothed with judicial power to hear and determine the
matter before it. In short, the court must have jurisdiction over
the subject matter of the controversy.
o Second is that the court must acquire jurisdiction over the
person of the accused.
o Third that the accused must be given the opportunity to be
heard.
o Lastly, that judgment must rendered only after trial.
 So, in element number one. How do courts acquire jurisdiction over the
subject matter of the controversy? Courts acquire jurisdiction over the
subject matter of the controversy by law.
 So it is the law or the Constitution that vest jurisdiction over the courts.
BP 129, RoC, establish the jurisdiction of various courts.
 How about jurisdiction over the person of the accused?
o First, by arrest.
o Second is by voluntary surrender.
What is the difference between criminal due process under Section 14 and
due process in general under section 1 of article III?
 Criminal due process applies only in criminal proceedings. Due process
in general applies to all proceedings. So, judicial, administrative, quasi-
judicial, all. But in Section 14 only criminal cases. The right to due
process is available to all parties under section 1. But the right to
criminal due process under section 14 is only available to an accused.
So only the accused can invoke section 14. Due process in general
covers both substantive and procedural. While section 14 only covers
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procedural due process. So these are the differences between due
process under section 1 and section 14 of Article III.
So, aside from the 4 requisites of criminal due process enumerated by the SC
in Alonte vs. Savellano, is there any constitutional objection to the inordinate
delay in the conduct of criminal proceedings?
 So, let’s take the case of Tatad vs. Sandiganbayan. In this case, the
petitioner was only charged with non-filing of SALN. But the
preliminary investigation lasted for more than 3 years. So what is the
effect of the inordinate delay in the conduct of the preliminary
investigation? The SC said that this violates the right to criminal due
process of the accused. This is the practice called “parking fee”. Parking
means that the case will not be acted for a very long period of time so
that after sufficient lapse of time the respondent in the Office of the
Ombudsman can file a petition to dismiss, and the petition to dismiss
based on inordinate delay is final. So this is the parking practice in the
office of the Ombudsman.
 In Tatad vs. Sandiganbayan, the public respondent argued that,
assuming for the sake of argument that there is a violation of the right
to due process, the delay in the conduct of the preliminary
investigation does not justify the dismissal of the criminal complaint
because according to the respondent even absence of preliminary
investigation is not a ground for the dismissal of the criminal complaint.
So which means that mere delay will also not justify the dismissal of
the criminal complaint. The SC disagreed. The SC said the 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 vs. COMELEC, there was no preliminary
investigation, so the only recourse is to conduct a preliminary
investigation. But the SC said insofar as delay in the preliminary
investigation, the defect is incurable. It can no longer be corrected,
because the SC said that up to date, man has not yet invented a
machine to turn back time. So, once delay happens, it can no longer be
corrected. To further conduct preliminary investigation is to aggravate
A.J. CHICANO, J. ALMINAR

the condition of the respondent. So, delay in the conduct of preliminary
investigation is worse than absence of preliminary investigation. So,
what is the wisdom behind the dismissal of the criminal complaints
because of inordinate delay in the conduct of preliminary
investigation? The legal principle behind this is the often quoted
principle in constitution that “Justice Delayed is Justice Denied” So
once the dispensation of justice is inordinately delayed, the right to
justice of the party has already suffered a violation. So in the case of
Tatad vs. Sandiganbayan, inordinate delay in the conduct 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.
 In Galman vs. Sandiganbayan, this is the case involving the
proceedings relative to the death of Senator Benigno Aquino. So this is
one of the few instances when the SC reversed a judgment of acquittal.
Because as we will discuss later when we reach Section 21, judgment
of acquittal is final. But in only few cases, like in Galman, the SC
reversed the judgment of acquittal. Because what happened according
to the SC in Galman is a mistrial or a non-trial of the century. So what
happened in Galman is that the accused here are members of the AFP
but the jurisdiction was given to the Sandiganbayan and during the
proceedings, the presiding justices of the Sandiganbayan as well as the
special prosecutor, the Tanod Bayan, were called to a secret meeting
in Malacañang. So the SC said that when the presiding justice of the
Sandiganbayan and the Tanod Bayan attended that meeting, all
semblance of impartiality are already lost. Which means that at that
time, the case is already predetermined. So the SC said that any
resistance or any degree of resistance becomes useless when they
have attended that secret meeting in Malacañang. And the SC said in
Galman vs. Sandiganbayan that the SC 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
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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. So the SC said, once the the associate justices
are under the direction of the president, then the decision to the
criminal court becomes based on the predetermination of the
president. So this violates the right to due process of the accused.
Presumption of Innocence
 Why does the Constitution play favorite? Why does the Constitution
just be neutral? No presumption of guilt, no presumption of innocent?
 So 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. Just to level the playing field, at the
very least, if it were a race, the accused will be given a head start
because the opponent is the entire government machinery. So this is
the reason why the Constitution says to level the playing field, the
accused must enjoy presumption of innocence.
Is the right to presumption of innocence available to all persons?
 Answer is “NO”. It is only available to natural persons. In the case of
Feeder Lines vs. CA, the SC denied the right to presumption of
innocence to a corporation because according to the SC, this is a right
exclusive only to natural persons.
Is the presumption of innocence a conclusive presumption?
 “NO” It is only a disputable presumption.
What is the degree of evidence necessary to destroy this constitutional
presumption?
 The standard of evidence is proof beyond reasonable doubt.
Does proof beyond reasonable doubt require absolute certainty?
 “NO” Under Rule 133, moral certainty only is required.
A.J. CHICANO, J. ALMINAR

So under Rule 133, the RoC provide that an accused in a criminal case is
entitled to an acquittal unless his guilt is shown by proof beyond
reasonable doubt. Then the RoC defined what reasonable doubt means.
Although the RoC started with the negative, so the RoC provide that
“proof beyond reasonable doubt does not mean”. So which means that
the Rules are telling what the standard “does not” mean before it says
what it means. Very usual. Like in martial law. Under the Rules of Court,
it is provided that 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.
 So this is similar to the ruling of the SC in People vs. Dramayo. In this
case, it involves a case of murder and there were 7 accused. Of the 7,
3 were acquitted, 2 were discharged as state witnesses, 2 were
convicted. The information charges all the accused with the crime of
murder in conspiracy.
 So according to the accused who were convicted, in a conspiracy, the
guilt of one extends to the others because in a conspiracy, each one of
the co-conspirator has contributed to the crime and the act of one also
extends to the other because they are in concert. The theory of the 2
accused in Dramayo is “if in conspiracy, the guilt of one is the guilt of
all, then it also follows that the innocence of one is the innocence of
all” So since 3 of the co-conspirators were declared innocent, their
innocence should also be extended to them. But the SC said “NO”,
that’s not the correct application. The SC said that yes in a conspiracy,
the guilt of one is the guilt of all and the conspiracy must also be shown
beyond reasonable doubt but once the conspiracy is shown beyond
reasonable doubt, only those who participated in the conspiracy can
be convicted. So those who did not participate in the conspiracy,
definitely, cannot be held accountable for acts they did not commit. So,
in the case of People vs. Dramayo, the SC said that by reasonable doubt
is not meant that which of possibility may arise, but it is that doubt
engendered by an investigation of the whole proof and an inability of
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the mind, after such investigation, to let the mind rest easy upon
certainty of guilt. So that is reasonable doubt.
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. So which means that there are certain doubts that can
coexist with conviction. These are “unreasonable doubts” because the
Rules only require “reasonable doubt”.
 So if the doubt is unreasonable, then it can also sustain conviction. So
it is not accurate to say that to doubt is to acquit. Only means that if
there is reasonable doubt, acquit; but if there is a doubt but it is
unreasonable, conviction is still valid.
In the case of Dumlao vs. COMELEC, the law challenged in this case is a law
that disqualifies persons convicted of acts of disloyalty from running to local
elective office. And under the law, there is a presumption that persons
charged with crimes of acts of disloyalty are prima facie deemed guilty of such
acts. So which means that, persons convicted of acts of disloyalty are
disqualified; and persons merely charged of acts of disloyalty are also prima
facie guilty and therefore, disqualified. So the issue there is, is that allowed?
To establish guilt in a law? Primarily, is it allowed to treat persons already
convicted and persons merely charged of a crime similarly? Can the law treat
them similarly?
 SC said “NO” because accusation is not synonymous with guilt. Mere
accusation should not be a basis to treat a person charged the same as
those already convicted. So to place a person who is merely accused of
a crime, in the same manner or in the same level as a person already
convicted violates the presumption of innocence. But that does mean
that laws that establishes presumption of guilt unconstitutional? So,
particularly, the law on malversation. Under the law on malversation,
if an accountable officer failed to fully account all the funds entrusted
to his care, there is a presumption of malversation, there is
presumption of guilt. Is that law unconstitutional? Because it does not
establish innocence, it establishes guilt. Under the RoC, flight,
A.J. CHICANO, J. ALMINAR

establishes a prima facie evidence of guilt. Is that unconstitutional?
Because instead of establishing a presumption of innocence, it
establishes a presumption of guilt. So the SC said that there may be
laws, there may be RoC that can establish a presumption of guilt as long
as the presumption is based on human experience and there is a
rational connection between the facts established and the facts
ultimately presumed therefrom. So as long as these two conditions are
present, then laws that presume or that establishes presumption of
guilt is also valid and constitutional. Again, in Dumlao vs. COMELEC, the
SC said that to treat persons merely charged of an offense the same as
persons already convicted violates the presumption of innocence.
Let’s take Marquez vs. COMELEC. Here, the implementing rules and
regulations of the LGC was being challenged because under the LGC, fugitives
from justice are disqualified to run for local elective office and the
implementing rules and regulations of LGC defined who are fugitives from
justice. And under the IRR, a fugitive from justice is a person who, after
conviction flees the jurisdiction in order to avoid or to evade punishment. So,
is that a valid definition of a fugitive from justice?
 SC said “NO” that is unduly circumscriptive. So, fugitive of justice must
be defined and must be interpreted to mean a person who, after
conviction, flees the jurisdiction to avoid punishment and also persons
who after having been charged avoid or evade the jurisdiction in order
to avoid prosecution.
 So, in essence, in Marquez vs. People, the SC wants to treat persons
already convicted and persons merely charged and treat them similarly
and make them fugitive from justice, therefore, disqualified from
running in local elective office.
So, how do we reconcile then, the Dumlao case and Marquez case?
 In Dumlao, the SC said, courts cannot treat persons already convicted
and persons merely charged similarly. Now in the case of Marquez, the
SC said that to define fugitive of justice to apply only to those convicted
would be unduly circumscriptive. The definition should also extend to
persons merely charged who flee to avoid prosecution. So in essence,
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in Marquez, the court wants to treat persons merely charged the same
as persons already convicted.
 So how do we reconcile it? We reconcile it in a way that in Dumalo vs.
COMELEC, the disqualification arises by mere filing of the criminal
complaint. Upon the mere filing of the criminal complaint for acts of
disloyalty, persons charged are already disqualified. In Marquez, the
mere filing of the criminal complaint does not make the respondent a
fugitive of justice. The disqualification arises from the act of flight. So
which means that the act of flight is the factor that makes him a fugitive
from justice, not merely the accusation. So the accusation coupled with
the flight. That makes him a fugitive from justice.
In one case, in Corpuz vs. People, the SC discussed the concept of equipoise
rule. But the definition of the SC of equipoise rule in Corpuz vs. People is that
if the evidence for the prosecution is evenly balanced with the evidence for
the defense, equipoise rule shall be applied in order to tilt the scales of justice
in favor of innocence. So, by that definition, it implies that equipoise rule can
only be applied when the evidence for the prosecution and the evidence for
the defense is 50:50. So, if the evidence of guilt for the prosecution is 50%,
and the evidence for the defense is also 50% for the innocence, equipoise rule
will lean towards the accused.
But supposing, the evidence of the prosecution establishing the guilt of the
accused is 99%? But the evidence of innocence of the defense is 1%-
reasonable doubt? Equipoise Rule does not apply, right? Because the
evidence for both sides are not evenly balanced. So does that mean that the
court shall convict the accused?
 “NO” As long as there is a reasonable doubt even without equipoise
rule, the scales of justice shall always be tilted in favor the innocence
of the accused because the prosecution fails to destroy the
presumption of innocence. When do we apply then, what is the
relevance then, of this equipoise rule when even if the evidence for
both sides are not evenly balanced, as long as there is a reasonable
doubt, the scales of justice shall always be tilted in favor of innocence.
A.J. CHICANO, J. ALMINAR

 Equipoise rule is an analytical tool in order to assess the probative
value of the specific evidence. So, during trial, both parties present
evidence, prosecution and the accused. And after the presentation of
all the evidence, the court will assess each evidence. It does not
necessarily follow that evidence presented by the prosecution
establishes the guilt of the accused. 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.
 So supposing, there were 2 evidence presented by the parties, and
then the first evidence, court determines or assesses, and the court
said that upon assessment, “I think that this evidence number 1
establishes the guilt of the accused by 80%.” There is a 20% that is for
his innocence. The court will consider that evidence as evidence for the
guilt of the accused. Then comes evidence number 2, the court says
that upon assessment, “it shows that it establishes the guilt of the
accused by 50% and it also establishes the innocence of the accused by
50%. NOW WE APPLY THE EQUIPOISE RULE. Equipoise rule says that if
that specific evidence establishes the guilt of the accused by 50%, and
the innocence of the accused by 50%, we apply the equipoise rule in
order to make that evidence as evidence for the innocence. So that is
how the equipoise rule apply.
Right to be heard by himself and by counsel
The right to be assisted or be represented by counsel is mandatory. This is the
learning of the SC in People vs. Holgado.
 In that case, during the arraignment, the accused appeared without
counsel, and then the court asked the accused: “Accused, do you have
a counsel or are you pleading guilty?” That was the only question of
the court. So the accused answered the question, accused said, “Your
honor, I don’t have a counsel and I am pleading guilty.” So, the question
in People vs. Holgado is whether there was a valid waiver of the right
to counsel.
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 So the SC said “NO”. In arraignment, the court has 4 obligations. (This
is before the amendment of the Rules of Criminal Procedure) So
according to the SC in People vs. Holgado, based on the old rules of
criminal procedure, if the accused appeared during arraignment
without counsel, the court has 4 obligations.
o The first obligation of the court is to inform the accused that
he has a right to be assisted by counsel before being arraigned.
o Second is to ask the accused whether he wants to be
represented by counsel.
o The third if the accused wants to be represented a counsel de
parte, he must be given by the court reasonable time to
procure the services of a counsel.
o Fourth obligation, if the accused wants to be represented by a
counsel but he cannot afford the services of a counsel, the
court must give him a counsel de oficio.
 Based on this 4 obligations of the court enumerated by the SC in the
People vs. Holgado based on the old rules of court, the appointment
of counsel de oficio and the grant of reasonable time to procure the
services of a counsel de parte depends on the desire of the accused.
Remember in the third obligation, “if the accused desires to be
represented to by a counsel of his own choice, he must be given
reasonable opportunity”. If the accused desires to be represented by
counsel but he cannot afford the services of a lawyer, he must be given
a counsel de oficio. So it 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 oficio or to give him reasonable time because
he does not want to be represented by a counsel. THAT IS THE
IMPLICATION OF THE OLD RULES.
That’s why under the new rules of criminal procedure, appointment of
counsel de oficio is MANDATORY. Except only for two circumstances. The only
circumstances when the court is dispensed with the appointment of counsel
de oficio is:
1. when it appears before the court that the accused is allowed to appear
in person because under Section 1, par. (c) of Rule 115, an accused may
A.J. CHICANO, J. ALMINAR

be allowed to represent himself in criminal proceedings if it appears
before the court that he sufficiently defend himself. So 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. That is the first circumstance.
2. When the accused desires to be represented by a counsel de parte.
These are the only circumstances when the court is excused from
appointing a counsel de oficio. If it does not fall under any of the two,
then it is mandatory for the court to appoint a counsel de oficio.
In People vs. Holgado, the SC said that in criminal cases, the accused is
entitled to be heard by himself and by counsel and the right to be heard will
be of little avail if it does not include the right to be represented by counsel.
Is the choice of counsel during trial preferred? Because the term “preferably
 Because the SC said that even the most intelligent and most intelligent
of his own choice” does not appear in section 14. The term appears in section
and educated man may have no skill in the science of law, especially in
12 – custodial investigation. Is the choice of counsel by accused during the
the rules of evidence and without counsel, he may be convicted not
trial also preferred?
because he is guilty but because he does not know how to establish his
innocence. So that’s why the SC said that as a general rule, right to
counsel during trial or during arraignment is mandatory.
But supposing that the minutes of the trial did not reflect that the court
complied with the four-fold obligation. So, let’s compare it now to Senator
Trillanes, there is nothing on record that he filed the application for amnesty.
Supposing that there is a minutes of the proceedings during the amnesty
application, but the minutes did not state that Sen. Trillanes submitted his
application.
 So this is similar to the case of People vs. Agbayani. In this case, the
minutes of the trial did not reflect that the court informed the accused
of his right; that the court asked him whether he wants to be
represented by his counsel; or he wants to be represented by a counsel
de oficio. So there is nothing on the record that state that the court
complied with its four-fold obligation. The SC said in Agbayani that “not
everything should be indicated in the record, so we can rely on the
44
presumption on the regularity in the performance of official duties. So
the SC said in People vs. Agbayani that it is incumbent upon the accused
to show that he was not accorded hi right during arraignment. But in
the absence of anything in the minutes, just because it is not reflected
in the minutes, does not necessarily mean that it did not happen. So
the SC said that it is often times less difficult to do things correctly than
to describe them correctly. So much be left to intendment and
presumptions. But that statement is only as to the absence in the
minutes, but it does not cover the non-filing of the application. So only
in the minutes. If it is not included in the minutes, it does not
necessarily mean that he did not file it, but the prosecution show that
indeed, there was no filing.
 “YES”. It is preferred but it is not exclusive. In Amion vs. Judge
Chiongson, this is an administrative case against the respondent judge.
Because during the criminal proceeding of the petitioner, the
petitioner successively moved for resetting because either his counsel
is not prepared or he change his counsel, until such time that the court
says that enough is enough, if you have no counsel now, I will appoint
a counsel de oficio. But the accused said that “no Your Honor, I want
to procure my own lawyer, I do not want to be represented by a
counsel de oficio. But the court said, “I will appoint one for purposes of
the direct examination. If you want to secure the services of your
lawyer, present him during the next hearing when he may cross-
examine the witnesses.” So, this is the reason why he filed an
administrative case against the judge because according to him, his
preference is exclusive. Once he said that he wants to be represented
by his counsel, the court has no business appointing counsel de oficio.

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 The SC said “NO”, it said that the right to be represented or the right
to choose one’s counsel does not exclude all other counsels who may
be competent and independent to represent the accused during the
trial. So the right to choose one’s counsel cannot be exercised to the
extent that it becomes arbitrary; to the extent that it will also violate
the right of the other party to due process.
Right to be informed of the nature and cause of the accusation
What are the 3 reasons why an accused, during the criminal proceedings,
have the right to be informed of the nature and causes of the accusations
against him?
 These reasons were enumerated by the SC in the case of People vs.
Quitlong. In this case, the accused here were charged with murder. The
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. So the SC said there are 3
reasons why an accused in a criminal case is entitled to be informed of
the nature and cause of accusation against him.
o 1) to furnish the accused with such a description of the charge
against him in order to enable him to prepare for his defense;
o 2) is to avail himself of the rights, particularly acquittal,
conviction that he may be entitled against further prosecution
for the same offense;
o 3) to inform the court of such facts alleged in the complaint as
will allow the court to determine whether conviction may be
had based on the allegation of facts. These are the reasons why
an accused is entitled to be informed of the nature and cause
of allegations against him.
In criminal information, the SC said that there are minimum allegations in
order to comply with the constitutional guarantee that the accused is
informed or accorded of his right to be informed of the nature and causes of
allegations against him.
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 The SC said in People vs. Quitlong, the criminal information must
contain the following in order to comply with this constitutional
mandate:
1. the name of the accused;
2. the designation given to the offense by the statue, the title
of the offense;
3. is the statement of acts or omissions complained of
constituting the offense;
4. the name of the offended party;
5. is the approximate time and date of the commission of the
offense;
6. place of the commission of the offense. So these are the
minimum allegations.
 If one of these allegations is absent, then there is a violation of the right
to be informed.
 In the case of People vs. Quitlong, charge of conspiracy must be stated
or alleged in the information in order to inform the accused that he is
not only being held accountable for his own act but also for the acts of
the other co-accused. In that regard, failure of the information to allege
conspiracy, the court cannot allow or admit any evidence establishing
this element. So in that regard, the SC disallowed the presentation
evidence 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 SC said that it is an essential element in order to afford the accused
of his right to be informed because during arraignment, this is the first
time that the accused will be informed while the prosecuting arms of
the government is being mobilized to convict him. So, even if the
criminal information is vaguely worded, the SC said that at the very
least he is informed. And more particularly, this is the reason why the
right to be assisted by counsel is mandatory during arraignment so that
the counsel may explain to the accused the allegations in the complaint
before he makes his plea. So according to the SC in Borja vs. Mendoza,
A.J. CHICANO, J. ALMINAR

the arraignment is not a useless formality. The SC said, that it is
MANDATORY.
Ordinarily, in criminal cases, in deference to the right to be informed, the
accused can only be convicted of the offense charged proven during the trial.
So which means that an accused cannot be convicted of an offense charged
which is not proven during the trial. Or similarly, the accused cannot be
convicted of the offense proven which is not charged. The accused can only
be convicted of the offense charged and proven during the trial.
That is the general rule. Is there any exception?
 “YES” So, variance between the offense charged and the offense
proven. So when there is a variance between the offense charged in
the complaint or information, and the offense proved necessarily
includes or is necessarily included in the offense charged, the accused
shall be convicted of the offense charged included in that which is
proved, or that of the offense proved included in that which is charged.
So that is under Rule 120.
 So when is an offense charged included or when does the offense
charge include the offense proved? The offense charged necessarily
includes the offense proved when some of the essential elements or
the ingredients of the offense charged constitute all the essential
elements of the offense proved. So, the example is: The offense
charged is murder, offense proven is homicide. So which means that in
such cases, the accused shall be convicted only of homicide because it
is the offense proven but 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 constitute or form part only
of the essential elements of the offense proved. Example would be:
The offense charged is theft, and the offense proved is robbery, so the
accused can be convicted of the offense charged which is included in
the offense proved.
TO MAKE IT SIMPLER, IF THERE IS A VARIANCE BETWEEN THE
OFFENSE CHARGED AND IN THE OFFENSE PROVED, AND THE OFFENSE
CHARGED INCLUDES OR IS NECESSARILY INCLUDED, THE ACCUSED SHALL
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ALWAYS BE CONVICTED OF THE LESSER OFFENSE. IT IS ALWAYS THE LESSER
OFFENSE.
 The primary consideration or the primary determination is assess first
whether 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 or is necessarily included in the offense of murder.
 So that is the first assessment that should be done. Assess whether the
2 offenses includes or is included in the other. Once it is established
that the offense includes or is included in the other, then the conviction
will be on the lesser offense. Whether it is the offense proved or the
offense charged, it is the lesser.
 In the case of Pecho vs. People, the accused was only charged of
violation of RA 3019, par. 1(e). So that was the charge in the complaint
or the information. But remember that the Anti-Graft and Corrupt
Practices Acts is a special law, so since it is a special law, there are no
attempt or frustration. This can only be violated by a consummated act.
The SC sustained the conviction of the accused for the crime of estafa
through the falsicfication of official document. Because according to
the SC, estafa is included in section 1(e) of RA 3019. So since it is
included in section 1(e) of 3019, then the accused may be convicted of
that offense even if it is not charged in the complaint because that
offense is included in the offense charged.
Supposing the variance is not between the offense charged and the offense
proved, but the title of the offense and the recital of the acts or omissions in
the body of the criminal information. Supposing the title of the offense or the
charge is violation of Section 1(g) of RA 3019, but the recital of the acts or
omission in the body of the information make out of bribery. So if the court
convicts the accused with bribery, can he claim violation of his right to be
informed?

So this was ruled by the SC in Soriano vs. Sandiganbayan. In this case,
those were the facts. The charge is violation of Section 1(g) of RA 3019,
A.J. CHICANO, J. ALMINAR

but the question is whether the preliminary investigation can be
considered as a transaction? Because 3019 violates or prohibits
transaction under those circumstances. So the SC said that definitely,
preliminary investigation cannot be considered as a transaction, but
the recital of the acts or omissions in the body or the complaint does
not make out of violation of 3019, but of the RPC.
 So which means that if there is a variance between the title and the
body of the information, the body of the information shall prevail,
without violating the right of the accused to be informed of the nature
and cause of accusation against him.
Right to Speedy, Impartial and Public Trial
Speedy Trial
 Speedy Trial means a trial conducted according to the law of Criminal
Procedure Rules and Regulations, free from vexatious, capricious and
oppressive delays. So the SC in People vs. Tee. In this case, the accused
is charged with the possession and selling of prohibited drugs or
substances. The material witness for the prosecution, who was in the
custody of the NBI, failed to appear for 20 successive hearing days,
which resulted in the cancellation of trials for a period of 2 months. The
issue there is that whether there was as violation of the right of the
accused to speedy trial. In the case of People vs. Tee, the prosecution
moved for the arrest of the accused. Two warrants of arrest were
issued by the court for the witness. But still, the NBI did not present
the witness, despite the issuance of the warrant of arrest. Then the
prosecution moved that the NBI be cited in contempt. The court also
issued, until such time that after 20 successive dates, the material
witness finally appeared.
 So, under those circumstances, is there a violation of the right to
speedy trial? SC said that the concept of speedy trial is necessarily a
relative one. So, which means that a determination of whether the
right was violated or complied with must include the assessment of
several factors.
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 The SC enumerated 5 factors that must be considered in determining
whether there was a violation of the right to speedy trial, and these
factors are:
o 1) length of the delay;
o 2) reason for the delay;
o 3) conduct of the prosecution and the defense;
o 4) the efforts exerted by the accused in asserting his rights;
o 5) Prejudice or damage caused by the accused.
 So these are the factors that must be considered by the courts in
determining whether there is a violation of the right to speedy trial.
 The SC said that there is a violation of the right to speedy trial only
under 3 circumstances:
o 1) when the proceedings are attended by vexatious, capricious
and oppressive delays;
o 2) when unjustified postponement are asked for and secured;
o 3) when without justifiable reason, a long period of time is
allowed to elapse without a party having his case tried.
 So, these are the 3 instances according to the Supreme Court in People
vs. Tee when there is a violation of the right to speedy trial. But what
is wrong with the enumeration? Because again, to recap, there is a
violation of the right if any of the enumeration are present. What is
wrong the enumeration is too general.
 These three circumstances can only constitute 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 Art. III. In order to constitute a
violation of the right to speedy trial, the enumeration shall be
accompanied by any acts of the prosecution and none of the accused.
 So this is the lacking qualification under any of the three. So under
People vs. Tee, the SC said that there was no violation of the right to
speedy trial because the delay was not attributable to the prosecution.
So the prosecution exhausted all means in order to procure the
attendance of the witness. So which means that the right of the
accused to speedy trial was not violated at the instance of the
A.J. CHICANO, J. ALMINAR

prosecution. So in that regard, the Court continued with the
prosecution.
In criminal proceedings, there are specific stages. So, preliminary
investigation, filing of criminal information, issuance of warrant of arrest,
arraignment, pre-trial, trial, promulgation of judgment, appeal. So these are
specific stages in criminal proceedings.
As the term implies, can we say that the right to speedy trial only applies
during the trial proper? So can we say that it cannot be applied to other stages
in the proceeding?
 So, this question was answered by the SC in Flores vs. People. In this
case, the trial court rendered a decision. On appeal, the appellate court
remanded the case to the court of origin because of some factual
insufficiencies. But for a long period of time, from the referral of the
court of the case to the court of origin, there was no movement. So the
issue there is whether the delay in the CA and the delay upon referral
to the trial court is part of the constitutional guarantee of the right to
speedy trial. So the SC said “NO”. The right to speedy trial only applies
during the trial stage and proceedings anterior to the trial. So which
means trial and earlier. Proceedings after the trial, no longer covered
by the right to speedy trial that is covered by a different constitutional
guarantee under section 16, but not under section 14. So SC said that
in determining whether there is a violation of the right to speedy trial,
the delay in the appellate proceedings, 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 that is part of the speedy
trial. So again, the right to speedy trial applies only during the trial
proper and proceedings before or anterior to the trial. Why? Why does
the right to speedy trial apply even for the proceedings before the trial?
 SC explained in Flores vs. People that if the proceedings prior to the
trial are delayed, necessarily, the trial itself is delayed. Because the
court cannot proceed with the trial without completing the procedures
prior to the trial. So if the procedures prior to the trial are delayed, the
trial itself delayed.
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Dismissal of the case for violation of the right to speedy trial is a final
decision. What is the remedy according to the SC for violation of the right
to speedy trial?
 There are 2 alternative remedies. So in Conde vs. Rivera, the SC said
that two remedies. Conde vs. Rivera is a case involving a midwife in
Tayabas, so several information were filed against or scheduled trial,
the prosecution will move for the cancellation of the trial and then the
court will grant it. In the case of Conde vs. Rivera, the accused there is
from the province. So she had to go to the trial court together with her
witnesses just to attend the hearing but only to see to it that the
hearing is cancelled. So, she again goes back to the province, and then
in the next resetting, the court will also cancel the hearing.
 The SC said in the case of Conde vs. Rivera that the accused was made
to dance attendance in court. So what does that mean? The court was
referring then, to the dance routine of cha-cha. Going to-going back,
then going-to and going-back. So the SC said that she should not be
made to dance attendance in court. So the accused of humble
beginning is entitled to the right to speedy trial. So the inordinate delay
caused by the prosecution in conducting the trial is a violation of the
right to speedy trial and is a ground for the final dismissal of the case.
Why? Why is dismissal of the case due to violation of the right to
speedy trial a final decision? And it is compared with dismissal due to
demurrer to evidence.
 The answer is in demurrer to evidence, demurrer to evidence is
granted upon the resting of the presentation of evidence by the
prosecution, and if the evidence is not enough to establish the guilt of
the accused beyond reasonable doubt, acquit or dismiss. So, dismissal
of the case due to demurrer to evidence is acquittal because it is based
on the merits. Why? Why on the part of dismissal due to violation of
the right to speedy trial, why is it considered as an acquittal as well?
Because, according to the SC, the only reason why the prosecution will
delay the presentation of evidence is because they do not have any
evidence at all. So that’s the reason, or the only reason according to
the SC. If they delay it, it means that they do not have any evidence. So
A.J. CHICANO, J. ALMINAR

since they do not have evidence, then dismissal of the complaint due
to violation of the right to speedy trial is also a dismissal on the merits.
Only by presumption.
 So, this is the reason. But we will discuss it more when we reach section
21. So, in the case of Conde vs. Rivera, the SC laid down the alternative
remedies. The first remedy is Habeas Corpus or Writ of Habeas Corpus,
if the accused is detained. So because his continued detention upon
the violation of his right to speedy trial constitutes illegal detention. Or,
the alternative remedy if the accused not in detention is to file for a
petition for certiorari, prohibition, mandamus to compel the dismissal
of the criminal complaint.
Impartial Trial
In criminal cases, the accused is entitled to no less than the cold neutrality of
an impartial judge.
 So, in one case, in the case of Mateo vs. Villaluz. In this case, the trial
judge hearing the case subscribed or administered the oath of a
witness. So there was a witness for the prosecution and the witness
subscribed his oath before the presiding judge. And then later on
during the trial, the witness recanted his testimony. According to the
witness, he was only forced to sign the affidavit. So the issue there is
the effect of that recantation to the authority of the judge to continue
to hear the case.
 Because under the RoC, there are only several instances when trial
court judges are required to inhibit.
o 1) relationship with the parties;
o 2) previous participation;
o 3) pecuniary interest.
 So, in the case of Mateo vs. Villaluz, the circumstance in not one of
those enumerated under the Roc when the judge is required to inhibit.
So the SC said, that in criminal cases an accused is entitled to the cold
neutrality of an impartial judge and then the SC described who is an
impartial judge.
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 The SC said that an impartial judge is one who manifests depth
commitment and concern to the cause of justice according to the legal
norms, a cerebral man who deliberately holds in check the tag and pull
of purely personal preferences which he shares with the rest of his
fellow mortals. So that’s how the SC described an impartial judge so as
distinguished to a jury in a jury system. But let’s discuss that later. In
the case of Mateo vs. Villaluz, the SC said that judges should refrain
from notarizing documents because when the witness testified that he
was forced only to sign the document, which makes the attestation of
the judge false. Because, notarization does not validate the allegation.
Notarization only signifies that the document was signed by the person
whose name is indicated in that document and it was voluntarily
signed. That is the relevance of notarization. So the SC said that when
the witness said that he was forced to sign that document, which
means, that there are only two possibilities: either the judge is lying or
he is part of that coercion. So in either case, the judge should inhibit.
Because the SC said that a judge has a both the duty to render a just
decision and the duty of rendering it in such a manner free from any
suspicion.
So a judge must not only be impartial, but also appear impartial.
 So, even if a judge renders a decision based on evidence strictly, but if
the litigants frequently see the judge socializing with the party, the
other party might harbor a suspicion that the only reason why the
judge rendered that decision is because he is close to the other party.
The SC cautioned that the judges should remove any semblance of
partiality.
 So judges must not only be impartial, but must also appear impartial.
Let’s now differentiate a judge in our judicial system and a jury.

In People vs. Teehankee, this was discussed by the SC. In this case, this
involves Claudio Teehankee, the son of CJ Teehankee. So it was a very
controversial case then in the 1990’s. During the trial, no less than
President Aquino, visited the victim, Maureen Hultman, in the hospital.
There were several protests against the accused. So according to the
A.J. CHICANO, J. ALMINAR

accused, the pervasive publicity of his trial is prejudicial. So he is
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 SC
compared a judge to a jury.
 According to the SC, unlike a jury, judges are learned in the science of
law; unlike a jury, judges can filter what passes as evidence and what
only constitute hearsay. So in that regard, judges are not required to
be isolated, unlike juries. So the SC said that the idea of an impartial
judge is not like that of a hermit who is detached from the realities of
the world. So it is impossible according to the SC to seal the minds of
the judges. So they are exposed to influences, but we can be rest
assured that they know what is an admissible evidence and what is a
hearsay evidence.
 So the SC cited the protestation of Mark Twain in the case of People vs.
Teehankee. Because Mark Twain said that when a gentleman of high
social standing, intelligence, and probity swears that testimony
given under the same oath will outweigh with him, street talk and
newspaper reports based upon mere hearsay, he is worth a
hundred jurymen who will swear to their own ignorance and
stupidity. So Mark Twain also said that 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, property of an individual in the
hands of persons who do not know the law.
 So this is the difference between the jury system and our legal
system. So in our legal system, judges are learned in the science of
law. So therefore, even if there is a pervasive publicity that does not
necessarily mean prejudicial publicity; that does not necessarily
mean that the judge is no longer impartial. So the SC applied a
standard of evidence in determining whether the pervasive
publicity constitutes prejudicial publicity, or in short, when there is
there a violation of the right to impartial trial.
 The SC applied the Totality of Circumstances Test. So under the
Totality of Circumstances Test, the person invoking the right to an
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impartial trial must show the actual prejudice. The one invoking the
right must show by direct evidence that the judge was indeed
influenced by the publicity.
Public Trial
 So, trial must also be public. So, in the case of Garcia vs. Domingo,
the SC said that the objective of public trial is to offset the danger of
conducting it in an unjust and illegal manner. So the right to a public
trial is a guard against arbitrariness. In Garcia vs. Domingo, at that
time or during that time, proceedings are held on Saturdays. So in
Garcia vs. Domingo, there was only one case in the calendar, there
were no other cases. During the hearing of the motion, it was very
hot so the judge asked the parties “do you want to conduct the
hearing in my chamber? It’s air conditioned.” So the parties said,
“Yes, judge. We can conduct the proceeding in your chamber.” So
the proceedings were held in the chamber of the judge. So the
question is does that not violate the right to public trial of the
accused?
 So the SC said that trial is public when anyone who wants to observe
how the judge conducts the proceedings in his courtroom can do so
without any qualification, to be no bar on the attendance and the
fact that he is not being related to any of the parties should not be a
basis to disqualify a person to attend the proceedings. So the SC said
that trial is public when the friends, the counsel, and the family of
the parties can attend the proceedings. But of course, the SC
recognized the reality that courtrooms can only accommodate so
much that the number of persons who may be accommodated will
only be limited to the capacity of the courtroom.
 So the SC said that in Garcia vs. Domingo, the mere fact that the
proceedings were held inside the chamber did not mean that it was
already a private proceeding. So because there was no one barred
from the proceeding, only that, it can only accommodate so much,
but nobody was prevented from attending the proceedings. So in
that regard the SC said that it is still a public trial.
Is public trial the same as publicized trial?
A.J. CHICANO, J. ALMINAR

 So, in the matter or request for live TV and radio coverage in the
proceedings in the Sandiganbayan of plunder cases of President
Estrada and In the Matter of the request for the live TV and radio
coverage in the proceedings of the multi-murder cases of Governor
Zaldy Ampatuan, the SC discussed the validity of audio-visual
recordings of court proceedings. Particularly in the case of In Re:
Ampatuan, the SC discussed the evolution of the position of the
Court in audio-visual recordings, from Aqiuno to Estrada and then
to Ampatuan. Aquino involves the libel case. Remember the case of
Soliven vs. Makasiar, there was also a request for audio-visual
recording of the trial proceedings in the criminal case of President
Aquino against Soliven, et al. (libel) but it was denied. The SC said
that in Aquino, there was outright prohibition of recording because
the basis of the ruling is that the SC said, in Aquino, that court
proceedings are not for entertainment. So therefore, no recording
allowed at all. So absolute ban of recording in Aquino. Then the SC
said that there was a glimmer of hope in Estrada. The SC allowed
audio-visual recordings for documentation purposes. Not for live
airing, but only for documentation purposes.
 Then now comes the Ampatuan case. SC said, that regulation should
be implemented, not restriction. So there must be a balance of the
interest of the accused to have an impartial trial and the right of the
public to information. So initially, the SC allowed live TV and radio
coverage of the proceedings under strict regulation. So the
recording or the publication must be from start to finish, no
annotation. So very strict. Once a network started, it must finish the
airing. So initially, the SC allowed the live TC and radio coverage of
the Ampatuan proceedings. But in the resolution of the motion for
reconsideration, the SC modified its decision. Instead of live TV and
radio coverage, it only allowed live streaming of the proceedings
inside the premises. Meaning, only those within the premises can
see the proceedings inside the courtroom, not in every one’s house,
not in every one’s bedroom. So the SC, in the case of Ampatuan,
considered the special factual circumstances of the case.
 That’s why the ruling in the case of Ampatuan is only a pro hac vice
decision. So meaning, it cannot be applied as a judicial precedent for
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future cases because the SC said that the factual circumstances of
the proceedings impels the court to allow live video streaming
because there were 57 victims, 197 accused. Both sides have listed
200 witnesses each and then their families and then the public. So
the SC said that no courtroom can accommodate this number. So
this is the reason why live video streaming allowed 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. So that
is under section 14, Article III and we said earlier that section 14 can
only be invoked by an accused. Supposing the accused wants to have a
private trial. Supposing the accused said, “Your honor, I know that the
right to public trial is my right and since it is my right, I can waive it. I
want a private trial. I want anyone who has nothing to do with my case
be excluded in the proceedings. I want only the complainant, his
counsel, public prosecutior, me and my counsel. Everybody excluded.”
So can the prosecution object? Can the prosecution demand a public
trial? Supposing the prosecution said, “Objection your honor, we are
invoking our right to public trial. “
Can the court say that “Counsel, that right does not belong you. That
right belongs to the accused.” So can the accused now insist on the
private trial?
Answer is “NO”. While the right to public trial is a right of the
accused, the prosecution also has a right to public trial not under
section 14, but under section 1. Because the right to public trial is a
guard against arbitrariness. So the prosecution also has 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 in the case of extradition proceedings,
while bail in non-criminal proceedings is not available under
section 13, bail may be granted for extradition proceedings under
section 1 of article III – Due Process. As held in Puruganan and
Olalia. And in both cases, the SC said that in order that an extraditee
may be granted bail, he must show by clear and convincing evidence
A.J. CHICANO, J. ALMINAR

that he is not a flight risk or that he will not pose a danger to the
community if released, and that there is a humanitarian, special and
compelling circumstances including as a matter of reciprocity the
judicial decisions of the highest court of the requesting state
granting the same right to extraditees in their jurisdiction. So again,
the right to public trial can be invoked by the prosecution not under
section 14 but under section 1 of Article 3. Are you still okay? Break
– 15 minutes.
BONUS TOPIC
Okay, let’s resume. There is a question here regarding the distinction
between three tests applied by the judicial courts in determining the
reasonableness of classification. So Strict Scrutiny, Intermediate
Scrutiny and Rational Relationship Test.
 The most recent case where the SC discussed these three tools was
in Samahan ng Progresibong Kabataan vs Quezon City. This is
the case involving the curfew ordinances in Manila, Caloocan and
Quezon City.
 The SC said that the difference between the three is that in the Strict
Scrutiny Test, the classification either burdens a suspect class or
affects a fundamental right including the liberties in the
Constitution. So these are the two parameters in order to determine
whether it is the appropriate test.
 On the other hand, the Intermediate Scrutiny Test is applied in the
negative. If the first one is applied when the classification burdens
a suspect class or interferes with the fundamental constitutional
right, the intermediate scrutiny test is applied when the
classification is not based on the exercise a fundamental right or
does not burden a suspect class but requires a heightened scrutiny,
particularly when the classification is based on gender and
legitimacy.
 And lastly, The Rational Relationship Test is any other
classification, which does not include 1 and 2. So how do we
distinguish this? Under the Rational Relationship test, once the
classification affects a fundamental liberty or those guaranteed by
the bill of rights, then we apply strict scrutiny test. Like in the case
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of SPARK vs. Quezon City. The curfew ordinances interfere with
the right to travel of the minors. So since the classification based on
age, minors and those who are not minors burdens or affects a
constitutional right of the minors, we apply the strict scrutiny test.
And the standard under this test is compelling state interest. So the
government must show that it has a compelling state interest in
imposing the restriction or the classification and the restriction is
narrowly drawn. So this is the standard under the strict scrutiny
test. So when the classification is not based on any fundamental
right, but based on gender and legitimacy. Say for example, under
the Paternity Law, the father of a legitimate child may enjoy
paternity leave. So which means that the paternity leave only
applies to the legitimate child of the employee. So which means that
it does not apply to illegitimate children. So the classification is
based on legitimacy and it does not involve any constitutional right.
So the applicable test here is the Intermediate Scrutiny Test. The
standard to be applied by the court under this test is heightened
scrutiny. So any other classification not based on any of the two, we
apply the Rational Relationship Test, which is the general requisite
for a reasonable classification. The classification is based distinction
is a rational connection between the distinction and the object of
the law. This is the general rule. So the exemptions to the general
rule are the strict scrutiny and the intermediate scrutiny test. So
clear on that.
As requested, I will summarize the principles that we have
discussed for yesterday and today so that you may have some reference.
Anyway, so to continue. Where were we? Confrontation?
The Right to Confrontation
 In the case of US vs. Javier, this is an old case but still the principle
is applicable and relevant even up today. This case involving Anti-
Cattle Rustling. So the accused was apprehended by police officer
Preska, and upon the arrest of the accused, police officer Preska
A.J. CHICANO, J. ALMINAR

executed an affidavit narrating how the arrest was effected. But
unfortunately, police officer Preska died prior to his presentation as
a witness. So the question is, in US vs. Javier, whether the affidavit
executed by Sgt. Preska prior to his death may be admitted in
evidence. SC said “NO” because one of the constitutional rights of
the accused is the right to confront any witness that may be
presented against him. And in the case of US vs. Javier, the SC said
that the Constitution disallows ex-parte affidavits. There are two
reasons why the right to confrontation is essential. The SC said that
the right to confront witness is necessary because cross-
examination is necessary. So which means that the Constitution
affords the accused his right to confrontation to afford him his right
to cross-examination. Secondly, the right to confrontation is
necessary in order to allow the judge to observe the department of
the witness of the witness during the presentation of the witness.
So the judge may determine whether the witness is lying or is telling
the truth, and this can only be done upon the presentation of the
witness. So in our legal system, an accused can only be hailed to
court by persons who can meet them face-to-face. So the SC said that
no accusation is admitted to be made against his back, nor is any
charge be made if it is to be made anonymously. The SC said that as
in poison-penned letters made by the persons who cannot stand by
their libel and who must be shroud their spite insecrecy. So under
the Constitution, the accused must be able to confront the
witnesses.
Supposing there is a case involving several accused. So for example,
murder and there are several co-accused. Accused 1, 2 and 3. And all
the accused demanded separate trial, which was granted by the trial
court. May the testimony of a witness in the trial of the accused
number 1 be admitted in evidence in the cases of the accused numbers
2 and 3, even without presenting again the person as witness in the
trial of accused number 2 and 3.
 This is the issue in the case of Talino vs. Sandiganbayan. SC said
“NO”, all the accused in these cases should be given the opportunity
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to exercise their right to confrontation. So the testimony of one
witness in case number 1 is not admissible in case number 2 and 3
unless the witness is again presented in the cases 2 and 3. But is
there and exemption 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?
The exemption is under Section 1(f) or Rule 115. Under Section 1(f)
or Rule 115, if there are several cases between the same parties, and
a 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 the person was able to
exercise his right of cross-examination in the further case. Just to be
clearer, supposing A and B have two cases. Or A filed two cases
against B. So the two cases arose from the issuance 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. So A, the payee, filed criminal complaint for violation of
BP22 and Estafa against B. Supposing in BP22 case, A presented the
bank manager, C, of the bank where the check was drawn in order
to prove that the owner of the check is B, nd the bank account of B
was already closed when the check was issued. So bank manager C
was presented in BP22 case. And in the BP22 case, B cross-
examined C. So in the estafa case, the testimony of C may be
admitted in evidence even without presenting C again, if, even
despite the exercise due diligence, C can no longer be located, or is
already outside of the country, or is already dead. So which means
that the fact of the ownership of the bank account testified to, by C,
in the BP22 case can be admitted in evidence in the estafa case even
if C was not able to be presented in that case. So that is the
application of Section 1(f), or Rule 115.
Right to Compulsory Processes
 There are 2 compulsory processes allowed under the RoC. So we
have subpoena duces tecum and subpoena ad testificandum. So the
term subpoena duces tecum is incomplete because subpoena duces
A.J. CHICANO, J. ALMINAR

tecum, the complete process is subpoena duces tecum et ad
testificandum. There can be no compulsory process, which will only
require the production of the document. The production of the
document carries with it an obligation on the part of the custodian
to testify. So which means that in a subpoena duces tecum, the
custodian will not just go to court and then submit the document.
The custodian will not just say, “Your Honor, this is the document
that you requested me to bring.” “NO”, he must also testify for
identification and authentication. So that’s why subpoena duces
Trial in Absentia
tecum cannot be issued without a corresponding ad testificandum.
While subpoena ad testificandum can be issued independently of
subpoena duces tecum.
 And in the case of Roco vs. Contreras, the SC enumerated two tests
that must be applied by the court in determining the propriety of
the issuance of subpoena. In the case of Roco vs. Contreras, this only
involves a BP22 case. During the trial, the accused in the BP22 case
moved for the issuance of subpoena duces tecum et ad
testificandum for the production of the ledgers and books of
account of the corporation, which is the complainant. So during the
trial, the accused demanded for the production of the records of the
complainant. So the SC said that to determine whether the request
is appropriate, we apply the definiteness test and the relevance test.
 Under the definiteness test, the documents sought to be procured
must be particularly described in the request. So that the person or
the custodian of these documents may know, or may identify the
things that he has to bring. That is under the definiteness test.
 Under the relevancy test, the subject of the subpoena must be
relevant to the proceeding.
So how do we determine whether an evidence, whether a
document sought to be produced through subpoena is relevant
under the relevancy test?
 The SC said, in Roco vs. Contreras, that an evidence is relevant if it
can establish either the guilt of the innocence of the accused. So if
the evidence sought to be procured cannot establish, or is not
necessary to establish the innocence or the guilt of the accused, that
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is not a relevant evidence. So in the case of Roco vs. Contreras, the
SC said that since the proceeding involves BP22, and the gravamen
of BP22 is only the issuance of worthless check, then the records
sought to be presented do not have any bearing at all to the guilt or
innocence of the accused. This is the reason why the SC concluded
that the only reason why the accused wants to have this documents
is to fish for evidence that he can use against the corporation. So the
SC disallowed the issuance of the subpoena.
 We said earlier that trial in absentia is not a right of the accused.
Certainly, because it is a waiver of the accused to be present during
the trial. So trial in absentia can only be done when the accused has
already been arraigned. So after arraignment, if the accused failed
to appear during the trial, and he was notified, and his failure to
appear is unjustifiable, so these are the three requisites in order
that trial in absentia may proceed. First, the accused had been
arraigned; second, he failed to appear despite due notice; third, his
failure is unjustifiable.
 So what is the effect of trial in absentia? As we said earlier there are
several specific stages in criminal proceedings. So again we have the
preliminary investigation, filing of information, warrant of arrest,
and then arraignment, pre-trial, trial, appeal. Can we say that as the
term implies, as well, trial in absentia only applies during trial?
Which means that trial shall only proceed but other stages of the
proceedings will be deferred.
 This is the issue in the case of People vs. Mapalao. So this case
involves murder, because the victim here is suspected to be a witch.
So the accused killed him, because he said that he was “kinulam”. So
after the arraignment of the accused, he escaped, and 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,
“I cannot promulgate the decision because the decisions can only be
promulgated in the presence of the accused.” Because there are
three instances when presence of the accused is mandatory.
o 1) Arraignment;
A.J. CHICANO, J. ALMINAR

o 2) During the trial, for identification;
o 3) Promulgation of judgment.
 So according to the judge, since the accused is not here, I will not
promulgate any judgment.
 But the SC said, “NO”. If an accused has been tried in absentia, the
court can render a decision or promulgate a decision even in his
absence. Trial in absentia presupposes that the accused has waived
his right to be present during the trial and if that waiver continues
up to the promulgation of judgment, the waiver applies also to the
promulgation of judgment. So how may the judge promulgate a
judgment in the absence of the accused? Because in criminal cases,
promulgation of judgment means that the judge will read the order
in the presence of the accused.
 How can the judge promulgate a decision in the absence of the
accused? The SC pointed out in People vs. Mapalao, that the court
will record the judgment in the criminal docket of the court and
then send a copy to the last known address of the accused or his
counsel. So in that regard, the judgment is already promulgated.
 So aside from the right to be present during the trial, what are the
other rights waived by the accused in trial in absentia? Because in
trial in absentia, because of the failure of the accused to appear
during the trial despite due notice and without justification, he is
deemed to have waived his right to be present during the trial.
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 continues?
 “NO”, the right to counsel is derived from the right of the accused. If
the accused has no right to be present during the trial, he cannot be
represented by any person even by his counsel. So an accused who
is tried in absentia, waives his to be present during the trial, waives
his right to be represented by counsel, and in the same manner he
waives his right to cross-examine the witnesses of the prosecution,
he waives his right to present evidence, and he also waives his right
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to appeal. So these are the rights waived by the accused when he is
tried in absentia. An accused cannot appeal in absentia.
 So the SC said in People vs. Valeriano. Valeriano is a case of
robbery in Benguet. So during the trial, one of the accused
committed suicide and others escaped from detention. So the SC
ruled in that 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. So if the accused was
not arrested or did not voluntarily surrender within the
reglemantary period, then he lost his right to appeal. So the accused
who was tried in absentia completely loses his legal standing.
Therefore, he cannot appeal the decision of the trial court.
Section 15 – Writ of Habeas Corpus
Does the Constitution allow the suspension of the Writ of Habeas
Corpus?
 The answer is “NO”. The Constitution does not allow the suspension
of the Writ. The Constitution only allows the suspension of the
privilege of the writ. So which means that there is a difference
between privilege of the writ of habeas corpus and the writ of
habeas corpus itself.
 But first, what does habeas corpus mean? Habeas Corpus literally
means “you have the body”. So this is the reason why in a writ of
Habeas Corpus, the person who is in custody of the prisoner will 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 the arrest and
detention and to explain whatever the court may require of him. So
this is a writ of habeas corpus.
 A writ of habeas corpus is a high prerogative writ. The object of the
writ of habeas corpus is to inquire into the legality of the arrest or
detention. So this is the only object of the writ of habeas corpus, to
inquire whether the detention or the arrest of the person is legal.
 The privilege of the writ of habeas corpus, on the other hand, is an
order of the court to release a person who is unduly or illegally
detained. So that’s why what may be suspended is only the privilege
A.J. CHICANO, J. ALMINAR

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. So 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, when the privilege is suspended, during the time when the
privilege is suspended, when the return shows that the petitioner
whose liberty is sought is being detained for rebellion, or offenses
inherent in evasion, then the court will defer or will dismiss the
petition because the suspension is applicable as to these offenses.
What are the basis for a valid suspension of the privilege?
 Section 15 of Article 3, as well as Section 18 of Article 7 explicitly
provide that the privilege of the writ of habeas corpus can only be
suspended in cases of invasion or rebellion when public safety
requires it. So do not be mistaken and believe that there are 3
grounds for a valid suspension of the privilege of the writ of habeas
corpus. So do not say that valid bases for suspension are invasion,
rebellion, when public safety requires it.
 The phrase “when public safety requires it” qualifies both invasion
or rebellion. So to be specific, the two grounds for a valid suspension
of the writ of habeas corpus are:
o 1) in cases of invasion, when public safety requires it;
o 2) in cases of rebellion, when public safety requires it.
 So both grounds must be qualified by the phrase “when public
safety requires it”.
Who has the authority to suspend the privilege of the writ of habeas
corpus?
 This is part of the military powers of the president under Section 18
of Article 7. So the President has the power to suspend the privilege
of the writ of habeas corpus.
And for how long can the president suspend it?
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 So he can only suspend it for a period of, maximum, 60 days.
Is it required that the suspension of the privilege of the writ of habeas
corpus, so any discussion on 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. So the suspension of the privilege of the writ of
habeas corpus, let’s discuss. Let’s go to the point. Let’s discuss Lagman vs.
Medialdea and together with Lagman vs. Pimentel, Padilla vs. Congress.
So these are the 3 most recent cases dealing with the proclamation of
martial law and the suspension of the privilege of writ of habeas corpus in
the whole Mindanao.
 The factual circumstances are the same, so President Duterte issued
a proclamation placing the entire Mindanao under martial law and
suspending the privilege of the writ of habeas corpus in the same
area. Regarding the requirement of conformity by the Congress, the
SC discussed in the cases of Lagman vs. Medialdea, Lagman vs.
Pimentel, that the proclamation of martial law and the suspension
of the privilege of the writ of habeas corpus by the president does
not need or do not need the confirmation by the Congress.
 The SC said that while the 1987 Constitution sought to restrict the
authority of the president in exercising his military power, the SC
noted that the members of the Constitutional Commission balanced
the interest of the people during these extraordinary circumstances
and the authority of the president in order to recover or to restore
peace and order.
 So the SC said that under the 1987 Constitution, the president can
no longer suspend the privilege of the writ of habeas corpus or
proclaim martial law, if there is no actual invasion or no actual
rebellion; because unlike in the 1973 Constitution, imminent threat
of invasion or imminent threat of rebellion is enough.
 Under the 1987 Constitution, it requires actual invasion, actual
rebellion and public safety requires it. So the SC said that in the
deliberations of the Constitutional Commission, it was made explicit
that the initial proclamation of martial law, suspension of the
A.J. CHICANO, J. ALMINAR

privilege of the writ of habeas corpus is 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 SC for its
implementation. Once the president suspends the privilege of
habeas corpus, once the president proclaims martial law, it is
effective without any approval on the part of the Congress.
Supposing, the approval of the Congress or conformity of the Congress
is only required when the initial proclamation of the president of the
martial law or suspension of the privilege of the writ of habeas corpus
is sought to be extended. So we said earlier that the maximum period
where the president can suspend the privilege of the writ of habeas
corpus or proclaim 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 suspended it for 30
days. Supposing on the 30th day, the president still thinks that there is
still invasion, and still public interest requires it. Can the president
extend it to another 30 days to exhaust the 60-day period? Can the
president say that, “Under the Constitution, I am given 60-day period,
so I only used the first half. So I do not need the Congress for that. I do
not need the Congress, as well for the second half because that is still
within the maximum period.”
 Answer is “NO”. So once the president suspends the privilege of the
writ of habeas corpus even for a period less than maximum 60-day
period, any further extension of that period requires the consent of
the Congress. Okay?
 And in the case of Padilla vs. 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 writ of habeas corpus
because under the second paragraph of Section 18 of Article 7, it is
expressly provided that the Congress shall, if not in session, within
24 hours convene in accordance with its rules without need of call.
According to the petitioner in Padilla, this constitutional provision
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mandates that upon the proclamation of martial law, 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 the proclamation.
 So the SC said “NO”. Convene is different from holding a session. The
paragraph 2 of section 18 or article 7 only applies when the
Congress is in recess. So if the Congress is in recess, upon the
proclamation of martial law, upon the suspension of the privilege of
the writ of habeas corpus, the Congress is required to convene. But
it is not required to hold a session. What is only required is 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, because if the Congress is
not in session, the transmittal will not be or cannot be accepted by
the Congress because it is not in session, it is in recess.
 Another issue in Padilla vs. 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,
of all its members may revoke such suspension or proclamation,
which revocation shall not be set aside by the president. So the
position of the petitioner in Padilla 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 or the proclamation of martial law.
 SC said “NO”, the Congress is only required to meet in session to
determine the factual basis of the proclamation of martial law or the
suspension of the privilege 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. Because in
these cases, in Lagman vs. Medialdea, Lagman vs. Pimentel, Padilla
vs. Congress, immediately upon the issuance of the proclamation of
martial law, both houses of Congress, independently issued a
resolution manifesting their support on the decision of the
A.J. CHICANO, J. ALMINAR

president to proclaim martial law and to suspend the privilege of
the writ of habeas corpus.
 So the SC said in Padilla, since the Congress already manifested their
intention not to revoke the suspension, then there is no need to
meet.
 So the SC in the case of Lagman vs. 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.
 Note while the powers granted to the president under section 18 of
article 7 are presented in such a way that is starts from the most
benign to the least benign. The SC said that there is nothing in the
Constitution that requires the president to respect the order in the
exercise of military power. He does not need to start from calling
out power, and then up to martial law.
 The SC said that, he has the choice to determine whether call martial
law even without suspending the privilege; proclaim martial law
even without calling out power. So the SC said that the president
cannot be restricted in the exercise of military power. He can
exercise any of those, not in succession but up to his discretion. The
SC said that in determining whether there is invasion, there is
rebellion and public safety requires it, the standard to be applied by
the president should only be probable cause.
 This is the standard that must be applied by the president to
determine whether there is invasion; this is the standard that to be
applied by the president to determine whether there is rebellion
and whether public safety requires it.
 And 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 SC 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 SC cannot determine the accuracy of the statements. Because in
the case Lagman vs. Medialdea, the petitioners are saying that the
statements of the president in the whereas clauses, as well as in the
reports to the Congress are based on false statements. The SC said
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that, “We cannot determine the accuracy, we are only here to
determine the sufficiency, not the accuracy.” So even if the
statements are wrong, the court must determine the sufficiency
based on those statements because the SC said, that the authority of
the SC in determining the sufficiency of the factual basis of
proclamation of martial law and the suspension of the privilege of
the writ of habeas corpus, shall only be based on the factual
circumstances at the time of the proclamation or suspension and
those before it.
 Events happening after the proclamation, 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 and the suspension.
 So which means that even if the statements of the president in the
proclamation proved to be false later on because of the
confirmation, that is no longer relevant insofar as the power of the
SC to determine the sufficiency of the factual basis of the SC.
In the case of Lagman vs. 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. Because
remember, in 2017, the proclamation of martial law expired in July,
then it was extended from July to December 2017, and then January
up to December 2018, the Congress again, extended the proclamation
of the martial law and the suspension of the privilege of the writ of
habeas corpus. So according to the petitioner Lagman, the extension
can only be made once.
But the SC said “NO”. The Constitution does not prohibit extension.
There is nothing in the Constitution that says that the president can
only seek one extension. The only requirement for an extension
according to the SC is rebellion, invasions persist and public safety
requires it.
 As long as these two conditions are present, the president can ask
for successive extensions. And another point by petitioner Lagman,
is that, since the president is only allowed 60 days for an initial
A.J. CHICANO, J. ALMINAR

proclamation of martial law and suspension of the privilege of the
writ of habeas corpus, extension of the suspension or proclamation
should only be for the same period. So according to him, “Extension
for one year, that’s beyond. Only 60 days, 60 days, 60 days, then 60
days.”
 The SC said “NO”, the Constitution is very clear, the Constitution
says, “for a period to be determined by Congress.” So the period of
extension is within the discretion of Congress. So, supposing the
Congress did not revoke the suspension of the privilege of the writ
of habeas corpus or the proclamation of martial law. Instead, the
Congress confirms the existence of rebellion, the Congress
existence of invasion and that public safety requires the suspension
of the privilege and the proclamation of martial law.
Can the SC revoke that determination? So supposing the president
submits the report to the Congress and the Congress confirms. The
Congress says that, “Based on the report of the president, we, in the
Senate and the House of Representatives confirm the existence of
rebellion. We, in the Senate and the House of Representatives
confirm that there is a need to suspend the privilege of the writ of
habeas corpus or to proclaim martial law.” Can the SC revoke that
proclamation or revoke that confirmation made by two coordinate
bodies?
 Under paragraph 3, “YES”. So under paragraph 3 of Section 18 of
Article 7, the SC can review the sufficiency of the factual basis. Not
only by the president in proclaiming or suspending the privilege of
the writ of habeas corpus, but the factual basis as confirmed by the
Congress in extending or in not revoking it. So which means that the
SC can overrule the confirmation by the Congress.
But can the Congress overrule the finding of the SC? Supposing, the
president submits the report to the Congress, and then the
Congress confirms the existence of rebellion and that public safety
requires it. But when a question was filed with the SC, the SC said
that there is no rebellion, there is no invasion and that public
safety does not requires it. So the SC now said, “Martial Law, it
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should be lifted. Suspension, it should be lifted.” Can the Congress
overturn that?
 “YES”. Congress can overturn it on the basis of facts subsequent to
that declaration by the SC. This is the learning in the case of Lagman
vs. Pimentel. So the SC said that definitely, the SC can overrule the
confirmation of the sufficiency of factual basis as determined by the
Congress. But again, note that the determination or the power of the
SC is limited only at the time of the suspension or proclamation and
those earlier. So which means that 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.
 So even if the SC says that there is no invasion, that public safety
does not require it, that determination is only valid up to the time
that the proclamation was made, but supervening event can be used
by the Congress to overrule the decision of the Supreme Court. So
clear on that.
In the case of Lagman vs. Medialdea, the SC discussed the nature of the
power of the SC in reviewing the sufficiency of the factual basis of the
proclamation of martial law, suspension of the privilege, or the
extension thereof because the position of the Solicitor General is that
the petition must be in accordance with Rule 65 because the
Constitution only says, “in an appropriate proceeding”.
 But the SC said “NO”, the Constitution itself provides for the process.
So any remedy, or the Constitution, the SC to begin with, the
jurisdiction or remedies are provided for by law, the Rules of Court,
or the Constitution. So that provision, particularly, par. 3, section 18
of article 7 provides for the remedy, and the Constitution says, “in a
proper remedy.”
 So that is the remedy… That is specifically the remedy. So in an
action, as said by the Constitution. Unlike Rule 65, any petition
questioning the sufficiency of the factual basis of the proclamation
of martial law and the suspension of the privilege of the writ of
A.J. CHICANO, J. ALMINAR

habeas corpus, 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.
 So 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 and the suspension of the privilege of
the writ of habeas corpus.
So we are clear in Lagman? Do you have any question of Lagman? So
we go to other points of Habeas Corpus.
 So the writ of 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 vs. 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.
So specifically, we have the Writ of Amparo. In the case of Secretary
of National Defense vs. Manalo, the SC enumerated five types of
Amparo cases. And one of the five types, because of the Amparo
cases according to the SC, as it was applied in Mexico from which
the Writ of Amparo was copied from involves five cases.
o 1) Amparo Libertad – it is equivalent to a writ of habeas
corpus;
o 2) Amparo Casacion;
o 3) Amparo Contra Leyes;
o 4) Administrativo;
o 5) Agrario. So definitely, one of these amparo cases is the
same as the writ of habeas corpus.
Supposing the president suspended the privilege of the writ of habeas
corpus, can a person who claims to be illegally detained be released
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through Amparo? So can the petitioner say that what is suspended is
only the privilege of the writ of habeas corpus.
The Constitution does not authorize the president to suspend the Writ
of Amparo. So can a person who is illegally detained, and let’s assume
that it falls under amparo cases, can he be released through writ of
amparo during the suspension of the privilege of the writ of habeas
corpus?
 Answer is “NO” because the term writ of habeas corpus under
Section 15 of Article 3, as well as Section 18 or Article 7 refers to a
remedy however it may be called. It does not refer to a Writ of
Habeas Corpus under Rule 102. It applies to any other remedy, as
long as the object of the remedy is to relieve a person of his illegal
detention because if we will say that writ of habeas corpus under
section 15 of article 3 only refers to Rule 102, the SC can easily
defeat the privilege of the president to suspend the privilege of the
writ of habeas corpus, by renaming it. So like in the case of Writ of
Amparo, the Court will just issue another Rule making it available
for a person who is illegally detained to be released, although not
calling it writ of habeas corpus. So that would be a risk that is not
contemplated under section 15 of article 3. So to better give section
15 of article 3, section 18 of article 7 substance and spirit, we have
to consider the writ of habeas corpus as a remedy, 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 by the SC in the case of Jackson vs. Macalino. In this
case, the petitioner here was facing deportation cases. So during the
deportation proceedings, he questioned the legality of his
detention. So he filed a petition for a writ of habeas corpus and
subsequently, he also filed a petition for bail.
 So the question in Jackson v. Macalino is, what is the effect of the
application for bail to the pending petition for a writ of habeas
A.J. CHICANO, J. ALMINAR

corpus? SC said, the application for bail is a recognition of the
validity of the arrest or detention. So since it has the effect of
recognizing the validity of the arrest or detention, then the petition
for the writ of habeas corpus becomes functus officio, meaning it
should be dismissed because of the recognition of the petitioner of
the legality of his arrest or detention. Under Section 13 of Article 3,
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.
 So 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, the right to bail
shall not be impaired even when the privilege of the writ of habeas
corpus is suspended.
 Let’s just assume for the sake of argument that rebellion and the
other offenses inherent in or directly connected with invasion is
punishable only by reclusion temporal and lower. So, does that
mean that provision says that the right to bail shall not be impaired
even when the privilege of the writ if habeas corpus is suspended,
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 that Constitutional provision?
 If we will subscribe to that position, that persons, even persons
arrested or detained for crimes covered by the suspension or the
proclamation can post bail, it will result in a situation when those
who are involved in rebellion in order to overthrow the government
can post bail and then upon filing bail they can resume their
activities. So in that regard, I can support the move of the president
by saying that, “If I will release them, they will post bail, I’ll just kill
them all.” Because it will be a vicious cycle. Rebels will be arrested,
post bail, then arrested, then post bail. So the president will just say,
“Let’s just kill them all.” So that provision under section 13 of article
3 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
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an exception to that general rule - when the privilege of the writ of
habeas corpus is suspended, the suspension also denies the right to
bail for those who are charged with the offenses covered by the
suspension.
 So if the suspension is for the bases of rebellion, because public
safety requires it, persons charged with rebellion can not post bail
as an exemption to the general rule. So this is an exemption. So what
happens when the privilege of the writ of habeas corpus is
suspended? All persons arrested or detained must be charged. For
how long? Or when? Three days. Within three days from their arrest
or detention. Supposing, 100 suspected rebels were arrested for
rebellion during the suspension of the privilege of the writ of habeas
corpus. So, immediately upon their arrest, the Secretary of National
Defense or his representative filed criminal charges for rebellion
against this 100 suspected rebels with the public prosecutor or
state prosecutor for preliminary investigation. Can the DND
continue the detention of these suspected rebels even beyond three
days? Answer is “NO”, because the Constitution requires judicially
charged. So mere filing of the criminal complaint before state
prosecutors, before the public prosecutors will not toll the running
of the three days. So the Constitution requires that the charge must
be filed before the court. So if the charge is only filed before the
Secretary of Justice or his authorized representative, then the
persons arrested must be released after three days. Okay? Any
question on Section 15?
You have a lecture after this? Anyway, the application of Section 16 is
just like Section 14 on Speedy Trial.
The only difference between Speedy Trial and Speedy Disposition
of Cases is that Speedy Trial only applies to an accused, while
Speedy Disposition of Cases applies to all parties whether accused,
defendant, petitioner or respondent.
 And Speedy Trial only applies to Criminal Cases, Speedy Disposition
applies to all proceedings. Speedy Trial only applies during the trial,
and proceedings anterior to the trial; Speedy Disposition of Cases
A.J. CHICANO, J. ALMINAR

applies to all stages of the proceedings, even on appeal. So these are
the differences between Speedy Trial and Speedy Disposition of
Cases.
 But like Speedy Trial, there is a violation of the right to Speedy
Disposition of Cases when the proceedings are attended by
vexatious, capricious, and oppressive delays. Another difference
between Speedy Trial and Speedy Disposition of Cases is that if the
right of the accused to speedy trial was violated, the remedy is the
dismissal of the complaint, and the dismissal is final. If the right of
the prosecution was violated, if the right of the speedy disposition
of cases was violated, the remedy is not for the dismissal of the case,
the remedy is to hasten the proceedings with the corresponding
administrative action against the judge who delayed the
proceedings. So these are the differences.
Section 17 – Right Against Self-Incrimination
Remember my dear barristers that there is no Constitutional Right to
Self-Incrimination. So the Constitutional guarantee refers to the right against
self-incrimination. So this goes as well with the right against involuntary
servitude. So the right against self-incrimination is of common law origin.
So it originated from a common law principle of nemo tenetur seipsum
accusare, which literally means that no man shall be bound to accuse himself.
And the common 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 the rock.
Thumbscrew and Rock are inquisitorial methods used during the time of
Stewarts in order to extract forced confessions from the accused.
- So a thumbscrew is a mechanical device where the fingers and the toes
of the person being investigated are placed between two metal
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objects, and as the investigator asked questions and he did not receive
the desired answer, the screw will be tightened up to the time that the
person investigated can no longer bear the pain, and he will admit
anything the investigator would want him to admit.
- Rock is also an inquisitorial method where the extremities of the
person being investigated are tied to a rope, and at the of end every
rope is a cattle, usually a horse, and as the question is being
propounded and the investigator did not obtain the desired answer,
then the rope will be tightened, so the cattle will be required to move
at opposite directions.
The constitutional guarantee against self-incrimination is grounded on two
broad grounds.
1. public policy and;
2. humanity.
Of public policy because it would be to place the witness against the
strongest temptation to commit perjury. And to humanity because it would be
to extort from the defendant’s own lips the confession of his guilt by the kind
of duress, every degree and specie of which the law abhors.
But what is the extent of this constitutional guarantee against self-
incrimination? Let’s take the case of US vs. Tan Teng. This case involves a rape
case, the victim here is a 7-year old child, and several days after the incident,
the sister of the victim found out that the victim was suffering from gonorrhea,
a sexually transmissible disease. So during investigation, the accused was
required to remove his garments and the police officers noted substance
emitting from the genital of the accused. The police officers took substance
from the genitals of the accused, had them tested, positive for gonorrhea. So
the question in Us vs. Tan Teng is the admissibility of the examination on the
substance taken from the body of the accused.
The SC in the case of US vs. Tan Teng, cited Justice Holmes in his decision
in Holt vs. US, said that the prohibition compelling a man in a criminal court to
be a witness against himself is a prohibition of the use of physical or moral
A.J. CHICANO, J. ALMINAR

compulsion, to extort communication from the accused, but not as an exclusion
of his body as an evidence when it may be material. So according to the SC in
US vs. Tan Teng, the colonel of the constitutional guarantee is against
testimonial compulsion. In another case, in the case of Villaflor vs. Summers,
the accused here is charged with adultery, and she was being compelled by the
court to undergo pregnancy examination against her will. So she was cited in
contempt for her refusal to undergo medical examination. But when the case
reaches the SC, the SC sustained the order of the trial court again citing the
ruling of the SC in US vs. Tan Teng.
In the more recent case of People vs. Judge Gallarde, the people here
filed a petition questioning the decision of the respondent judge in excluding
certain evidence, particularly the picture of the accused taken during the
custodial investigation. So the SC overruled the decision of the respondent
judge and admitted in evidence the picture, because according to the SC, purely
mechanical acts are not covered by the constitutional guarantee against self-
incrimination. Okay?
How about writing? Is writing covered by the constitutional guarantee
against self-incrimination?
- So in Beltran vs. Sampson. In this case, during preliminary
investigation, the public prosecutor required the respondent to
transcribe certain dictations for comparison with the documents,
which are subject of the offense because this is a complaint for
falsification. So the SC applied the constitutional guarantee against
self-incrimination even to writing because the SC said that writing is
more than moving the body, moving the hands, the fingers, it is not a
purely mechanical act because it requires application of intelligence
and attention.
- While the SC said in US vs. Tan Teng, the colonel of the constitutional
guarantee is only testimonial compulsion; in Beltran vs. Sampson, the
SC noted that this constitutional guarantee also extends to documents,
chattels, any other object that may produce incriminating evidence
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against the accused. So which means that an accused, say for example
in a case for adultery, cannot be compelled to produce, for example,
love letters between the accused and his paramour. So this is covered
by the constitutional guarantee.
There is an early case in 1917, the SC sustained the act of police officer in
extracting morphine from the mouth of the accused.
- So this is in the case of US vs. Ong Siu Hong. So in that case, the SC said
that the act involved is purely mechanical act, but in subsequent cases
the SC considered this as too close to the rock and screw. So which
means that there must be certain limitation on the authority of the law
enforcement officers in extracting evidence from the accused. It should
not be too invasive. So while an accused may be subjected to undergo,
for example medical examination, like in the case of Villaflor vs.
Summers, or even to submit blood sample, an accused cannot be
required to produce sperm sample. So because again, this is too
invasive. It would be too close to the rock and screw.
So is the constitutional protection the same regardless of the person invoking
the constitutional right?
- In the case of Chavez vs. CA, this question was answered by the SC.
Chavez vs. CA, involves a case of estafa, and the accused here are very
notorious during the 1960’s. So the accused here are members of the
gang known as “The Big 4”. So in the case of Chavez vs. CA, the accused
was surprised during the first hearing of the first trial for the
presentation of the evidence for the prosecution when the accused
was called as the “star witness” for the prosecution.
- So he objected, and according to the judge, the prosecution can call to
the witness stand any person even the accused, and the accused can
only invoke the right against self-incrimination when the incriminating
question was asked. But the SC said that the constitutional protection
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 all together;
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But when the person invoking the right is an ordinary witness, he cannot
refuse to take the witness stand and he can only invoke the right when the
incriminating question is asked. Why? Why the difference?
- The SC answered this question in the same case. The SC said that the
only reason why the prosecution will call the accused to the witness
stand as witness for the prosecution is to incriminate himself. That is
the only purpose of the prosecution.
- If that is the only purpose of the constitution, then there is no need to
wait for the incriminating question before he may invoke his right
against self-incrimination.
Does or is the right against self-incrimination available only during the trial?
- In the case of Beltran vs. Samson, the proceedings here is preliminary
investigation. So the SC extended the constitutional guarantee even
during the preliminary investigation because it would be absurd if the
constitutional guarantee could only be implemented during the trial,
when the public prosecutor can compel the respondent who may be
subsequently become the accused during the trial to produce
incriminating evidence during the preliminary investigation.
The right against self-incrimination is also not exclusive only to criminal
proceedings.
- So in the case of Pascual vs. Board of Medical Examiners. This is a case
involving medical malpractice. Here, the petitioner was being
compelled to testify against himself, and according to respondent, in
administrative investigation, this constitutional guarantee does not
apply. But the SC disagreed.
- The SC said that the right against self-incrimination also apply to civil
and administrative cases, which are penal in character. So since the
case involved in Pascual vs. Medical Board of Examiner is medical
malpractice, which could result in the revocation of the license of the
doctor, then the right against self-incrimination is available. Okay?
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So it is in the interest of the State to prosecute and to punish violation of
laws. And it is also in the interest of the accused to maintain confidential any
facts known to him because according to Justice Malcolm, as long as the facts
remain concealed in his bosom, he is safe, but to draw it from thence, he is
exposed to conviction.
So is there a mechanism in order to bridge the conflicting interest of the State
to prosecute and to punish violations of law and at the same time to sustain
the constitutional guarantee against self-incrimination?
- This question was answered by the SC in Mapa, Jr. vs. Sandiganbayan.
So the moderating mechanism that may be applied by the State in
order to achieve its goal of punishing and prosecuting violations of law,
and at the same time to protect the constitutional guarantee against
self-incrimination is to provide immunity statutes. So by giving the
accused immunity, he may be compelled to produce incriminating
evidence.
- So immunity statutes may either be:
o 1) transactional immunity; or
o 2) use derivative use immunity.
- In transactional immunity, the accused can no longer prosecuted for
any offense related to the testimony;
- but in use derivative use, the accused may still be prosecuted as long
as his testimony cannot be used in evidence against himself.
- So which means that a person or the accused who is granted a use
derivative use immunity may still be convicted as long as the
prosecution can establish independent evidence sufficient to establish
his guilt beyond reasonable doubt.
Section 18 – Involuntary Servitude
Involuntary Servitude has been defined as the condition of enforced
and compulsory service of one to another. So it is a condition of a person who
A.J. CHICANO, J. ALMINAR

is compelled by force, coercion, or imprisonment, against his will to labor for
another, whether or no he is paid.
Note that 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.
So which means that even if there is no physical compulsion, but if 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 that physical or bodily harm will befall upon him,
the right against involuntary servitude also extend.
So like any other constitutional rights, the right against involuntary servitude
is also subject to certain limitations.
1. One limitation is under Section 4 of Article II. Under Section 4 of Article
II, all citizens may be required, under conditions provided by law, to
render personal military or civil service.
o Remember in one case, in the case of People vs. Lagman and
Soza, the accused in this case were asking to be exempted from
the mandatory military service being required by CA No. 1 or
the National Defense Act, and they were invoking aside from
religious freedom, the right against involuntary servitude.
o So the SC overruled the objection of the accused in both cases
because according to the SC, as between the interest of the
individuals to be required to perform work against their will,
the interest of the State to maintain its existence is primordial
because the continued existence of the State is essential in
order to protect the constitution from which the constitutional
guarantee against involuntary servitude is grounded.
o So which means that if the State does not exist anymore, then
all the right s under the Constitution will be extinguished.
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o So it is essential that the existence of the State shall be
maintained in order that the Constitutional rights may be
protected. So this is one of the limitations of the constitutional
right against involuntary servitude.
2. Another exemption is the old concept of posse comitatus.
o So the concept of posse comitatus is an order allowing law
enforcement officers to summon able-bodied men to aid them
in pursuit of criminals.
o This is still effective under the Rules of Court under Rule 113.
And under Rule 113, law enforcement officers serving a
warrant of arrest can also summon any person to aid them in
the service of the warrant. So this is still applicable under the
Rules of Court.
3. Another exemption is the concept of patria potestas.
o Under the concept of patria potestas, the parents may compel
their children to perform work as a disciplinary measure.
o So which means that a child who is being required to preform
household chores can not invoke his right against involuntary
servitude because under patria potestas,
o The State recognizes the authority of the parents in imposing
discipline on their children.
4. Another exemption is naval enlistment.
o Because of the nature of this undertaking, persons who enlist
in merchant marines may be required to complete their
voyage,
o Because unlike in land-based undertaking, there is no
alternative manpower and mutiny in the high seas is also
prohibited.
o So which means that even against their will, those who have
enlisted in a merchant naval marine may be required to work
even against their will.
5. Another exemption would be “return-to-work” in cases of assumption
of jurisdiction by the Secretary of Labor over labor disputes.
o So under the Labor Code, once the Secretary of Labor 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.
A.J. CHICANO, J. ALMINAR

o So this is a valid exemption of the right against involuntary
servitude.
In one case, In Re: Petition for Writ of Habeas Corpus of Segifredo
Aclaracion, Mr. Aclaracion here is a former court stenographer. So he resigned
and transferred to another government agency, but there are pending cases
whose transcript of stenographic notes were not yet transcribed. Mr.
Aclaracion was being compelled to complete the transcription. He protested,
and according to him, he is no longer working with the judiciary, and he may
not be compelled to work against his will.
The SC overruled his argument. According to the SC, official duties
mandated by law are exempted from the coverage of the right against
involuntary servitude. So public officers, even those who are not willing to
render their service may be compelled even against their will. So this is
involuntary servitude.
Section 19 – Prohibited Punishment
The Constitution enumerates four prohibited punishments.
1. excessive fines;
2. cruel punishment;
3. degrading punishment; and
4. inhuman punishment.
So which means that it is not necessary for a punishment to have all these
characteristics. Cruel punishment is a prohibited punishment is independent
from inhuman or degrading punishment.
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But what constitutes cruelty as a prohibited punishment?
- In one case, in the case of People vs. Estoista. This is a case involving
possession of unlicensed firearm. So the accused here is the child of
the owner of the gun, and he used the firearm to hunt wild chicken. So
there was an accident while he was hunting for wild chicken, he hit one
of their laborers. So he was charged with possession of unlicensed
firearm. Under the law applicable at that time, possession of
unlicensed firearm is punishable by imprisonment of 5 to 10 years.
- But the trial court, considering the factual circumstances of the case,
did not impose even the minimum penalty. Because according to the
judge, even five-year minimum imprisonment is too much. According
to the judge, that will constitute cruel imprisonment.
- So the trial court judge imposed 1-year imprisonment. When the case
was appealed to the SC, the SC overruled the decision of the judge. SC
said that cruelty in punishment refers to cruelty inherent in the
imposition of the penalty, not the unnecessary suffering caused by the
penalty. But the SC did not delve on whether the long period of
imprisonment may constitute cruel punishment.
- So the SC said that the small transgressors are like small fish, bound to
be caught when the heavy net is not spread.
- The SC said the in cases where the judge feels that the imposition of
the minimum penalty is too harsh, the judge under the RPC is still
required to impose the minimum penalty provided for by law, with the
recommendation of the exercise of executive clemency by lowering the
penalty. So the judge in this case was required to impose the minimum
penalty provided for by law.
So we have learned when we are discussing section 14 of article 3, that in
trial in absentia, an accused who is convicted in absentia cannot appeal in
absentia because an accused who is tried in absentia loses his legal standing.
He can only appeal the judgment of conviction if within the reglemantary
period for perfecting an appeal, he is either arrested or voluntarily surrenders.
Is there an exemption to this rule?
A.J. CHICANO, J. ALMINAR

- “YES”. So the exemption is provided for by the SC in the case of People
vs. Esparas. Here, at the time the death penalty is still imposable,
because it is not yet suspended, the accused in this case was sentenced
to suffer the penalty of death. But he was tried in absentia.
- The question there is whether the death penalty imposed by the trial
court shall become final and executory because of the failure of the
accused to surrender or he was not arrested within the reglementary
period.
- SC said “NO”. When it comes to death penalty, it can only attain finality
once the SC sustained the imposition of this maximum penalty.
Because according to the SC, what is at stake in the imposition of death
penalty is the extinguishment of life. So it is incumbent upon the SC to
ensure that all imposition of death penalty is error-free.
Is death penalty only prohibited under the 1987 Constitution?
- The answer is “NO”. Death penalty is still a valid penalty but only for
specific offenses. Which means the offenses which are considered as
heinous crimes, death penalty is a valid penalty.
- So inversely, death penalty can only be considered as a prohibited
punishment if it is imposed in non-heinous crimes.
- Let’s take Echagaray vs. Sec. of Justice. In this case, the petitioner is
challenging the imposition of death penalty by lethal injection because
according to him, the imposition of death penalty by lethal injection
will entail pain, because of the administration of drugs into the
intravenous veins.
- So according to him, any penalty that inflicts pain is cruel. So therefore,
since it is cruel, it is prohibited by the Constitution. So the SC said that
in strictest sense, all penalties inflict pain whether physical, moral, and
psychological. But pain is inherent in every penalty. If pain makes the
penalty cruel, then all penalties are unconstitutional, said the SC. But
the SC said that cruelty in punishment, particularly in the imposition of
death penalty involves lingering pain or torture.
- So according to the SC, the imposition of death penalty by lethal
injection is not a cruel punishment.
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Under the 1973 Constitution, aside from cruel punishment, the
constitution prohibits unusual punishment. So the term unusual punishment
is no longer carried in the 1987 Constitution.
So what is the effect of the non-inclusion of unusual in the list of prohibited
punishment?
- The term unusual means that it is not ordinary. It is novel; it is new. So
the SC said in the case of Echagaray vs. Sec. of Justice, that the non-
inclusion of unusual punishment in the list of prohibited punishment
allows the government or the State to experiment in penology.
- So the Congress can enact a law providing for unusual punishment,
providing for a new punishment. As long as the punishment is not cruel,
it is not inhuman, it is not degrading. So under the law, unusual
punishment is allowed, as long as it is not cruel, not inhuman, not
degrading.
Section 20 – Non-Imprisonment for Debt
Like the constitutional guarantee against self-incrimination, the non-
imprisonment for debt is also based on 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.
So under the writ of capias ad satisfaciendum, the creditor may compel
the taking of the body of a debtor until he fully pays his civil obligation. So in
order to prevent this inhuman practice of taking custody over the person of the
accused the in satisfaction of a civil obligation, the Constitution expressly
prohibits the non-imprisonment for debt.
But what does the term debt mean under the Constitution?
A.J. CHICANO, J. ALMINAR

- The term debt only refers to financial obligations arising from
contracts. So which means that financial obligations arising from other
sources like law, quasi-delict, delict are not covered by the
constitutional guaranty for non-imprisonment for debt.
So let’s take BP22 from this lens.
- In the case of Lozano vs. Martinez, the petitioner challenges the
constitutionality of BP 22 because among others it imposes a
punishment of imprisonment for failure of the drawer to pay the face
value of the check. Because according to the petitioner, once the
drawer fails to pay the face value of the check, he may face criminal
punishment. And according to him, the BP22 is a bad debts law,
because what is punished here is the non-payment of obligation.
- Under the law, once the check is dishonored, the payee has the
obligation to notify the drawer and criminal liability only arises when
the drawer failed to pay within 5days from notice of dishonor.
So does that mean that what is punished by law is the non-payment of
the face value of the check within 5days?
- Let’s take two examples. Supposing A issued a check payable to the
order of B. At the time that A issued the check, he knows that the check
will be dishonored because he drew the check from a closed account.
Under the law, criminal liability shall only accrue if the drawer failed to
pay within 5 days from notice of dishonor.
- So which means that under that circumstance, A is not yet criminally
liable. So B has to notify A that the check bounced. A has 5 days to pay,
within the receipt of dishonor in order to evade criminal liability. If A
pays, no criminal liability. So criminal liability only attaches if A failed
to pay. So does that now make BP22 unconstitutional because
apparently, the criminal liability only arises for failure of the drawer to
pay within 5 days?
- Let’s take another example. Supposing A issued a check payable to the
order of B. At the time that A issued the check, he knows that the check
will be paid because he has sufficient funds in the bank. But
unfortunately, when the check fell due, A needs money because his
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mother was hospitalized, so he needs money. When B presented the
check for payment, it was dishonored and B issued a notice of dishonor
to A. But unfortunately, A is still unable to produce the amount
necessary to pay the face value of the check. He failed to pay within 5
days. Is he criminally liable?
- Under the second example, “YES” he is criminally liable, even at the
time he issued the check, he knows that it will be honored, but there
was an unfortunate incident.
- In the first example, A, even at the time he issued the check, he knows
that it will be dishonored is exempt from criminal liability because he
was able to pay the face value of the check within 5 days from notice
of dishonor. So does that make the law unconstitutional?
- Answer is “NO” because again, what is prohibited by the constitution
is the imprisonment for the failure to fulfill a financial obligation arising
from contracts. The requirement under the law to pay within 5 days
from notice of dishonor is not an obligation arising ex-contractu, it is
an obligation arising from the law itself. So since it is a legal obligation,
provided for by law, this non-compliance with this obligation may
result to imprisonment.
- So this is the same as the obligation of the father to give financial
support to the wife and the child because this is an obligation provided
for by law, non-performance of this obligation by a husband and a
father may subject him to criminal liability, even imprisonment. So the
constitutional guarantee only applies to obligations arising ex-
contractu.
Section 21 – Double Jeopardy
There are two kinds of Double Jeopardy under Section 21 of Article 3.
1. The first type of Double Jeopardy is the Double Jeopardy of punishment
for the same offense; and
2. the second one is the double jeopardy of the punishment for the same
act.
A.J. CHICANO, J. ALMINAR

In the case of People vs. Relova, the SC distinguished these two kinds
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 3 is the
traditional type of double jeopardy. So the second sentence of Section 21,
Article 3 is the double jeopardy of the punishment for the same act. It only
applies when the act is punishable by law and an ordinance.
So why is there a need to provide for a second type of double jeopardy? Is the
double jeopardy of punishment for the same offense insufficient?
- The SC said in the case of People vs. Relova, that double jeopardy of
the punishment for the same offense only applies when the two
offenses are either the same or identical. And there can be no identity
of offenses if one of the offenses is punished by the National
Government, and the other one by an ordinance. So which means that
even if the elements of the offenses are the same, if the offense is
punished by law and the national government, and the other is by the
local government, there can be no identity of offenses.
- This is the reason why there is a need to provide for he second type of
double jeopardy, or the double jeopardy of the punishment for the
same act.
- In People vs. Relova, this is a case involving theft of electricity. So in the
case, there was a contraption used by an ice plant. So the owner of that
ice plant installed a contraption that will lower the reading of the
consumption.
- So when the police officers discovered this activity, they filed a criminal
complaint for violation of an ordinance. But unfortunately, under that
ordinance, the offense shall prescribe after 2 months after the
discovery and the complaint was filed 9 months after the discovery of
the activity. So the case was dismissed because of prescription. Now,
the public prosecutor filed a second complaint for violation of the RPC
for the same act.
- The SC said “NO MORE”. It can no longer be allowed, because double
jeopardy of the punishment for the same act has already set in,
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because one is punished by an ordinance and the other is punished by
law, and falls under the second type of double jeopardy.
How do we determine whether there is identity of acts in order to constitute
double jeopardy of the punishment for the same act?
- The SC set the guideline in the case of People vs. Relova by determining
the location of the acts or series of acts.
- So that if the acts are impelled by one or single criminal design, then
the acts are identical. If the acts will give rise to a violation of a law and
a violation of an ordinance, then conviction or acquittal under either
shall constitute a bar to another prosecution for the same act.
- On the other hand, double jeopardy of the punishment for the same
offense requires identity of offenses.
- In one case, in the case of Melo vs. People, the SC applied a test in
determining whether there is identity of offenses. This is the so-called
same evidence test. Under the same evidence test, if the evidence
needed to convict an accused for one offense is the same evidence
required for the conviction of the accused on another offense, then the
two offenses are identical, under the same evidence test.
- But in the case of Melo vs. People, the SC said that the same evidence
test is inaccurate because double jeopardy of punishment for the same
offense does not require similarity of offenses, what is required by the
constitution is only identity of offenses. Which means that there is an
identity of offense even if the evidence for the conviction for one
offense is not the same as the evidence needed to convict the accused
in the second offense as long as one is an attempt or frustration of the
other, or includes or is necessarily included in the former charge or
complaint.
So what are the requisites of Double Jeopardy of punishment for the same
offense?
- Mostly, the SC enumerates four elements of double jeopardy of
punishment for the same offense. So usually, the SC said that the
requisites are:
o 1) that there must be a valid complaint or information;
A.J. CHICANO, J. ALMINAR

o
2) it must be filed before competent court;
o
3) the accused must have been arraigned or he had pleaded to
the charge;
o 4) he had been convicted, acquitted or the case against him is
dismissed without his consent.
Are these the requisites of double jeopardy of punishment for the same
offense?
- Answer is “NO”. There are only three requisites of double jeopardy of
punishment for the same offense and these three requisites are laid
down by the SC in the case of People vs. Tampal.
- In this case, the SC said that the requisites of double jeopardy of
punishment for the same offense are:
o 1) a first jeopardy must have attached prior to the second;
o 2) the first jeopardy must have been validly terminated;
o 3) the second jeopardy must be for the same offense.
- To that we may include an attempt or frustration thereof, or includes
or is necessarily included in the former charge. So these are the real
requisites of double jeopardy for punishment for the same offense.
- The requisites that we enumerated a while ago, the four requisites are
the requisites of legal jeopardy, or the requisites of the first jeopardy.
So there is a first jeopardy when there is a valid complaint or
information, it is filed before the competent court, the accused is
arraigned, and the accused is either convicted or acquitted or the case
is dismissed without his express consent.
- If these four requisites are present, then there is a legal jeopardy.
There can only be double jeopardy when either the prosecution
appeals the acquittal or files an identical offense.
Let’s discuss the four requisites of legal jeopardy.
- Supposing public prosecutor filed a criminal complaint for adultery
against A. Trial ensued and after trial, A was acquitted. Knowing that
under the RPC, concubinage, as well as private offenses can only be
initiated by the private offended spouse, can the private offended
spouse file second criminal complaint?
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- Now in his own behalf after the acquittal of the accused. Answer is
“YES” because there was no valid complaint or information. The
accused was not placed in jeopardy of being convicted in that
complaint. Because in private offenses, the charge can only be initiated
by the complaint of the private offended spouse.
- Supposing, the public prosecutor filed a criminal complaint for
homicide against A, in Manila. After trial, it was established that B was
not killed in Manila, but he was killed in Quezon City. Because of this,
the complaint was dismissed against the will of the accused. So the
accused objected to the dismissal of the complaint. Can the public
prosecutor file a second criminal complaint or information, now in
Quezon City?
- Answer is “YES”, because the Manila Court is not the court of
competent jurisdiction. So again, the accused is not placed in jeopardy
of being convicted in Manila because the court is not a competent
court, because it does not have jurisdiction over the subject matter of
the offense.
- Supposing the accused, during arraignment, pleaded guilty to the
charge. And under the Rules of Court, upon the plea of guilty, the court
may allow the accused to present evidence to establish mitigating
circumstances. But instead of presenting mitigating circumstances, the
accused presented evidence in order to prove exculpatory
circumstances or justifying circumstances, supposing he presented
evidence to prove that he acted in self-defense. And believing on the
evidence presented by the accused, the court acquitted the accused.
Can the prosecution appeal the judgment of acquittal?
- This is an actual case - in the case of People vs. Balisacan. So in this
case, the accused, after pleading guilty to the charge, presented
exculpatory evidence and he was acquitted.
- The SC reversed the judgment of acquittal. This is one of the few cases
when the SC reversed a judgment of acquittal. Because ordinarily,
judgments of acquittal are final decisions.
- So another instance when the SC reversed the judgment of acquittal is
in the case of Galman vs. Sandiganbayan. So the SC in Galman vs.
Sandiganbayan, reversed the judgment of acquittal, same as in the case
of People vs. Balisacan. The SC said that the acquittal of the accused
will not bar the filing of an appeal of the judgment of acquittal because
there was no first jeopardy yet, because there was no valid plea.
A.J. CHICANO, J. ALMINAR

- Since there was no valid plea, the accused was not placed in the risk of
being convicted in the first complaint.
So the last requisite of legal jeopardy is that the accused must either
be convicted or acquitted or the case against him was dismissed without his
express consent. As to dismissal without express consent of the accused.
Why does dismissal with the express consent of the accused would not set in
motion double jeopardy?
- This was answered by the SC in People vs. 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 charges in the compliant are not
sufficient in order to constitute the elements of the crime charged. And
the complaint was dismissed. But the prosecution appealed the
judgment of dismissal. And the accused invoked his right against
double jeopardy.
- The SC said that the dismissal was made at the instance of the accused.
Since the dismissal was made at the instance of the accused, the twin
or the sister requirement of waiver and estoppel precludes the accused
from invoking his right against double jeopardy.
- So when the dismissal of complaint is made at the instance of, or with
the express consent of the accused, it is an express waiver of his 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 is dismissed without his
express consent.
Does the finality of an acquittal rule also prohibit the filing of a motion for
Can there be double jeopardy of punishment for the same offense even if the
reconsideration?
accused is only charged with one offense?
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- Answer is “YES” When? -On appeal of judgment of acquittal. So in the
case of Philippine Savings Bank vs. Bermoy, the SC said that double
jeopardy may be invoked in three instances:
o 1) when the accused is charged with the same offense in two
separate pending cases;
o 2) when the accused is charged anew for the same offense
after he has been convicted or acquitted;
o 3) when the prosecution appeals from the judgment of the trial
court.
- So when the prosecution appeals from the judgment of the trial court,
even if there is only one offense, because the offense being elevated
to the appellate court is the same offense filed with the trial court.
- There is only one offense, right? But the SC said that there is double
jeopardy punishment of the same offense because of the principle of
right of repose, or the finality of an acquittal rule.
- So in the case of PSB vs. Bermoy, the SC said that the fundamental
philosophy highlighting the finality of an acquittal cuts deep into the
humanity of the laws and in a jealous watchfulness over the rights of
the individual when brought in an equal contest with the State.
- So the underlying idea, one that is deeply ingrained in Anglo-Saxon
System of jurisprudence is that the cannot make a repeated attempt to
convict the accused after he had been acquitted and thereby
subjecting the accused to embarrassment, expense and ordeal, as well
as enhancing the possibility that even though innocent, he may be
proven guilty.
- So according to the SC in that case, if there would be no limit to the
attempts to convict the accused, there would come a time that the
accused would just give up because of frustration, and he may be
convicted not because he is guilty, but because he is already tired to
defend himself. So the SC said that the government can not start from
the highest and then go down to the lowest, and vice versa, in the hope
that at some point, the accused will be tired to defend himself already.
This is the finality of an acquittal rule.
A.J. CHICANO, J. ALMINAR

- So this is the issue in the case of Lejano vs. People. So in this case, the
conviction of the RTC was sustained by the CA. When it was elevated
to the SC, the SC reversed the judgment of conviction and acquitted
the accused.
- The people, the prosecution filed a motion for reconsideration. Is
motion for reconsideration covered by the right against double
jeopardy?
- SC said “YES”, because motion for reconsideration also opens the
decision of acquittal. So since it has the effect of revisiting again the
judgment of acquittal, it will violate the finality of an acquittal rule.
- So in Lejano vs. People, the SC denied the motion for reconsideration
because of the constitutional guaranty against double jeopardy.
Supposing an administrative charge is filed against a judge for rendering
unjust judgment. And the SC, after hearing, dismissed the complaint because
of lack of evidence. So upon the dismissal of the administrative charge, the
complainant filed a criminal complaint before the Office of the Ombudsman.
Is there double jeopardy in that case?
- These are the factual circumstances in Icasiano vs. Sandiganbayan. SC
said in this case that double jeopardy requires that the two or the
identical offenses must be criminal in nature. So in the case, the first
complaint is administrative in character, so which means that the
dismissal of that 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.
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Is there double jeopardy?
- Answer is “NO”. There is no double jeopardy in preliminary
investigation.
- Because in order to constitute double jeopardy, there must be a legal
jeopardy, and legal jeopardy requires that there must be an acquittal,
conviction or the dismissal of the complaint without the express
consent of the accused.
- And secondly, in order to constitute legal jeopardy, the accused must
have been arraigned. In preliminary investigation, the respondent will
not be arraigned. In that regard, double jeopardy will not set in, in
preliminary investigation.
Supposing, a criminal information was filed against A for killing B. And A is
arraigned, and trial ensued. During the trial, the prosecution filed a second
criminal information against A, for murder, for killing B. Is there double
jeopardy? So in the first information, A was charged with homicide for killing B.
In the second information filed during the pendency of the homicide case, the
prosecution filed another criminal information for murder, against A, for
killing B. Double Jeopardy?
- Answer is “NO”. So this was answered by the SC in the case of People
vs. Pineda. SC said in People vs Pineda that mere pendency of two
criminal information for the same or identical offense will not set in
motion double jeopardy. There must be previous conviction, previous
acquittal, or the the dismissal of the first complaint without the express
consent of the accused. Mere pendency of the two criminal
information based on the same offense will not constitute double
jeopardy.
- But remember, we said earlier that in the case of PSB vs. Bermoy, the
SC said that there are three instances when double jeopardy may be
invoked. The first of these three circumstances is when the accused is
charged with the same offense in two separate pending cases.
A.J. CHICANO, J. ALMINAR

So how do we reconcile this statement of the SC in PSB vs. Bermoy to the
ruling of the SC in the case of People vs. Pineda?
- So the statement of the SC in PSB vs. 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.
- Because in PSB vs Bermoy, the main issue there is the appeal of the
demurrer to evidence. While in the case of People vs. Pineda, this is the
main issue of the case. Whether filing of multiple complaints against
the same accused, based on the same act or omission for identical
offenses constitute double jeopardy,
- SC said “NO”, because double jeopardy requires legal jeopardy, and in
order to constitute legal jeopardy, there must be previous conviction,
previous acquittal, or dismissal.
Section 22 – Ex Post Facto Law and Bill of Attainder
So there are six kinds of Ex Post Facto Law. The SC enumerated the
six kinds in the case of Salvador vs. Mapa. In this case, the SC said that the
six kinds of Ex Post Facto Law are:
1.) Every law that makes criminal an act when done was lawful, and
punishes such an act;
2.) Every law that aggravates a crime or makes it greater than it was
when committed;
3.) Every law that changes the punishment and inflicts a greater
punishment than the law annexed to the crime when committed;
4.) Every law that alters or changes the rules of evidence and admits
lesser evidence to convict the accused
5.) Every law which assumes to regulate civil right and remedies only
but in effect imposes a penalty to something which when done
was lawful, and lastly
6.) Every law that deprives a person of some lawful defenses he is
entitles to such as previous conviction, acquittal or the grant of
amnesty.
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 Note that the SC added grant of amnesty and the
revocation of which constitutes ex post facto law
Three characteristics of Ex post facto law
1. Criminal in nature
2. Retroactive in character
3. Prejudicial to the accused
Supposing there is case between the government and an individual and the
rules at the time of the pendency of the case require that if the government
ask for reliefs like preliminary attachment, there is a requirement for a filing of
a bond. But supposing, during the pendency of the case the rules were changed
which excepted the government from filing a bond.
May these rules apply to the pending case involving the government, without
violating the prohibition against ex post facto law?
- The answer is “YES”. This it is only remedial in character.
- So the SC in Conception vs Garcia, said that ex post facto law does
not apply to the rules of court.
So assuming that at the time of the commission of the act, the penalty for the
offense charged is a 5 years imprisonment. And before the filing of the criminal
complaint, the law was amended increasing the penalty to 10 years.
Is the amendatory law ex post facto law?
- “NO” because it is not retroactive in character.
- ex post facto law is a law that explicitly or specifically provide that is
shall apply to cases pending before the effectivity of that law.
Another characteristic is that it should be prejudicial to the accused. In the case
of People vs Donato, this is the case involving the crime of rebellion. At the
time of the filing of the information, the penalty is reclusion perpetua to death.
But during the pendency of the offense, the penalty is reduced to prision
mayor. Is the law applicable to the case in that case? SC said “YES” because it
is favorable to the accused.
Ex post facto law vs Bill of Attainder
A.J. CHICANO, J. ALMINAR

- All bill of attainders are ex post facto law. But not all ex post facto law
are bill of attainders. Because to be considered as bill of attainder, the
law must be:
1. criminal in nature,
2. it must be retroactive in application,
3. it must be prejudicial to the accused and
4. dispenses with the judicial determination of guilt.
- So if the ex post facto law makes a specific person liable without any
judicial proceedings, then that is a bill of attainder as well.
- 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 the judicial proceedings and the
penalty is death, traditionally this is bill of attainder. But if the penalty
is less than death, it is bill of pains.
- but under the constitution, it covers any law that has this
characteristic regardless of the penalty, that is the only origin of the
constitutional guarantee.
ARTICLE IV. CITIZENSHIP
In the case of David vs SET, the SC thru Justice Leonen define citizenship as, “a
legal device denoting political affiliation” according to the SC, “Citizenship is
the right to have rights and it is one’s personal and permanent membership in
a political community”
The core of citizenship according to SC is the capacity to enjoy political rights.
That is the right to participate in the government, principally through:
1. Right to vote
2. Right to hold public office, and
3. Right to petition the government for redress of grievances
Under the Constitution, particularly Sec. 1 of Art IV, there are 4 classes of
citizens. So under the Constitution, the following are citizens of the
Philippines:
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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3. Those born before January 17, 1973 of Filipino mothers who elect
Filipino citizenship upon reaching the age of majority
4. Those who are naturalized with accordance with law
Is this list exclusive?
 No, there are groups of individual who are considered as Filipino
citizens even if they are not one of those enumerated above.
 These are Foundlings.
Foundlings
 In the case of Poe-Llamanzares vs COMELEC as well as David vs SET,
according to the SC, foundlings under International law are required
to be given citizenship and under traditional international law,
foundlings are citizens of the State where they are found. And the
SC considered this rule as a generally accepted principle of
international law (GAPIL).
 So, since we have adopted the GAPIL under the doctrine of
incorporation under Sec. 2 of Art II, then this is part of our legal
system.
 But the conferment of the status of the Filipino citizenship to
foundling is only provisional, meaning it is only prima facie or
disputable.
 So, which means that if there are evidence to show that none of the
parents of the child found in the Philippines, is not a Filipino citizen,
then this presumption can be destroyed by this evidence.
 Supposing, a child of unknown parent is found in the Philippines,
and the child has blue-eyes, blonde hair, white complexion. Does
the child enjoy the presumption?
o Answer is “YES”, the child enjoys the
presumption.
o Because under the case of David vs SET, Filipino
citizenship is not about Human thoroughbred.
o There may be Caucasians who are citizens of the
Philippines
 So, in order to attack the Citizenship of the foundling, it must be
shown that none of the parent is a Filipino citizen. Mere feature of
the child is not enough. It is incumbent upon those who attack the
A.J. CHICANO, J. ALMINAR

citizenship of the child to show that none of the parent of the child
are Filipinos.
So the First group of Filipino Citizens refers to:
- Those who are Filipino citizens at the time of the adoption of the 1987
Constitution.
- So there refers to persons who are considered citizens of the
Philippines under the 1935, 1973 Constitutions.
- But prior to the 1935 constitution, citizenship can be acquired in 2
ways, because under the case of Bengzon vs HRET, citizenship can be
acquired either by:
o Naturalization or
o By birth
- Marriage as a mode of acquiring citizenship is a derivative mode of
acquisition. So it is covered by naturalization.
- Birth as a mode of acquisition of citizenship could either apply jus
saguinis or jus soli
- Jus Sanguinis refers to the “Blood relation” between the parent and the
child. The parents under this principle can transmit citizenship to the
child.
- Under the Jus Soli, the citizenship of the child is determined by the
place of birth
- So under the 1987 constitution, we apply jus sanguinis.
There has been a brief period in our history when we applied the jus soli
principle. In the case if David vs SET, the SC discussed the history of the
Filipino citizenship.
- According to the SC, during the Spanish colonization there is no such
animal called “Filipino Citizen”
- Inhabitants of the Philippines are either called, “Spanish subjects” or
“indios”
- The SC said that the first time that the term “Filipino citizen” was used
was in July 1, 1902 under the Philippine Bill of 1902.
- And under the Treaty of Paris, signed by US and Spain, on December
10, 1898, “all inhabitants of the Philippine islands who continuously
reside therein and who are Spanish subject upon the effectivity of the
Treaty of Paris, and who do not elect the option to continue to become
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a Spanish subject shall be considered as a citizen of the place where
they reside”
- So the treaty of Paris did not consider the inhabitants as citizens of the
Philippines. So again it was only in 1902 that they were called, “citizens
of the Philippines”
- So under the Philippine Bill of 1902, there is a cut-of date, April 11,
1899, what is the significance of this date? The treaty of Paris was
signed 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 were exchanged
on April 11, 1899, so this is the effectivity date of the Treaty of Paris.
- And under the Treaty of Paris, Spanish subjects have 1 year from the
effectivity of the treaty to choose whether to continue to become
Spanish subject or to become a citizen of the place where they reside.
- So from April 11, 1899, they have until April 11, 1900 to choose.
- There was a debate on the status of children who are not Spanish
subject but born on April 11, 1899 up to July 1, 1902, because these
children are not covered by the treaty of Paris, they are also not
covered by the Philippine Bill of 1902, because under this, to be
considered as a Filipino citizen under that law, the child must be a
Spanish subject as of April 11, 1899, and has resided in the Philippines,
and this includes children born from these groups of people.
- So children born from persons who are not Spanish subjects on April
11, 1899 up to July 1, 1902 are not included in the description. But in
the case of David vs SET, the SC said that Jus Soli is applicable to these
children. So children born in the Philippines on April 11, 1899 up to July
1, 1902 who are born to parents who are not Spanish subjects are also
considered as Filipino Citizens applying Jus soli.
- And the SC justified that since that time we are under American
protection then we apply the principles of the US, which is jus soli.
- How about the 1935 Constitution? Did it apply jus soli? To a limited
extent, it did also apply the jus soli principle. Because if you will look at
the Art IV of the 1935 Constitution there are 5 groups of Filipino citizens
which included those born in the Philippines of foreign parents. So
which means that children of foreign parents born in the Philippines
are citizens of the Philippines with the condition that before the
adoption of the constitution they have been elected to public office.
A.J. CHICANO, J. ALMINAR

- These provisions under the 1935 constitution was called Caram
Doctrine, why is it called such? If you look at the list of the members of
the Constitutional Convention, you would see a delegate named
Fermin Caram. Dr. Fermin Caram is the representative of Ilo-ilo and he
was born to Syrian parents, and the parents of Dr. Caram migrated to
the Philippines in order to avoid political persecution. So he was born
in ilo-ilo and he was elected in the constitutional convention. So that
provision under Art. IV of the 1935 Constitution was intended to
accommodate him. Why? In order to avoid the anomaly that a member
of the constitutional convention whose task is to write the constitution
is not a Filipino origin.
- But of course, this provision also applies to children similarly situated
to Dr. Caram.
So the Jus Soli principle is applied to a limited extent under the 1935
constitution but under the 1987 constitution, there can be no doubt that jus
soli principle is no longer applicable.
As regards foundlings, the recognition of them as Filipino citizen is based on the
presumption that one their parents is a Filipino citizen but once that
presumption is destroyed these foundlings can no longer be considered as
citizens of the Philippines
We go to the 3rd group of citizens under sec 1 of Art IV
- The child must be born before January 17, 1973. The mother of the
child must be Filipino citizen and the child must be elect Filipino
citizenship upon reaching the age of majority.
What is the relevance of January 17, 1973?
- This is the effectivity of the 1973 Constitution.
- So this refers to children born under the 1935 Constitution. Because
under the 1973 constitution, the child born to a Filipino mother is a
natural born Filipino citizen without having to perform any act to
acquire that citizenship.
- In the case of Tecson vs COMELEC, this is the case involving FPJ. The SC
discussed the evolution of children falling under the 3rd group or
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children born to Filipino mothers. So the SC discussed the difference
between children of Filipino mother under 1935, 1973 and 1987 Consti.
- According to SC, children born of Filipino mothers under the 1935
consti only have inchoate right or expectancy that they may become
Filipino citizens upon reaching the age of majority.
- Under the 1973 Consti, the Consti confers citizenship to these groups
of children without the need to perform an act.
- And the 1987 Consti, did not only consider them Filipino but even bent
backwards by considering those who were under this group under
previous constitutions as natural born. Because under the 1973
constitution the status of children born of Filipino mother who elect
Filipino citizenship would only be considered as naturalized citizen.
- Because the SC said in the case of Bengzon vs HRET, there are only 2
kinds of Filipino citizens, natural born or naturalized. There is no other
group of Filipino citizens. So which means that if a child is not a
naturalized citizen, automatically, he is a natural born citizen.
Are all children born during the 1935 Constitution of Filipino mothers
required to elect Filipino citizenship upon reaching the age of majority?
- This was answered in the case of Republic vs Chule Lim, the
respondent was born to a Filipino mother, Chinese father, under the
1935 Consti and out of wedlock, meaning illegitimate. The SC said that
the requirement under Commonwealth Act 625 requiring the election
of Filipino citizenship of children upon age of majority only applies to
legitimate children. Illegitimate children born of Filipino mothers are
natural born Filipino citizen without having the need to elect Filipino
citizenship upon reaching the age of majority. The SC added that the
citizenship of illegitimate children follows the citizenship of the
mother.
- This is in line with the 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 for the support of
the child. That’s why the illegitimate child shall follow the citizenship
of the mother.
A.J. CHICANO, J. ALMINAR
 77
Having that in mind, does that mean that a child born to a Filipino father, - The constitution says upon reaching the age of majority
American mother, out of wedlock and under the 1935 consti is considered as - What does “upon age of majority” mean? While we have already
an American citizen? lowered the age of majority from 21 to 18, the SC shall still applies the
age of majority under the 1935 constitution.
- These was the factual circumstances of Tecson vs COMELEC, FPJ was
- So in the cases of Co vs HRET and In Re: Ching, the SC said that the
born to an American mother, the father was presumed Filipino and he
occupation to elect Filipino citizenship shall start upon reaching the age
was born under the 1935 constitution out of wedlock. The SC said that
of 21. But the question is until when?
we cannot apply the traditional international law that the illegitimate
- The SC in the case of In Re: Ching, said that the election must be made
child shall follow the citizenship of the mother because the law shall be
within a reasonable time upon reaching the age of 21. And reasonable
applied if it shall accommodate citizenship or if it will accommodate a
time has been explained to mean within 3 years from attaining the age
child to become a Filipino citizen.
of majority.
- These shows the character of citizenship laws in the Philippines.
Filipino citizenship is accommodating. It will extend international law, Commonwealth Act 625 requires formal election. Can there be an informal
it will extend GAPIL in order to accommodate a child of Filipino election?
citizenship but not to deprive the child of the privilege to become a
- Let’s take the 2 cases above, the Co case and the In re ching case. The
Filipino citizen.
respondent Ong and the petitioner in Ching are both born under the
- So in the said case, the SC said, under the Consti, children born to
1935 constitution. They were both born to Filipino mothers and their
Filipino fathers are citizens of the Philippines without any
fathers are Chinese, and both of them are CPAs, both were elected in
qualifications, whether legitimate or illegitimate, they are citizens of
local election, and both participated during election.
the Philippines.
- In the case Co, the SC said that those acts are already constitutive of
- In that regard the express provision of the Constitutions shall be
election insofar as respondent Ong. But in case of petitioner Ching, the
applied rather than the GAPIL.
SC that those are not enough, so what is the difference?
Under Commonwealth Act 625 there are 3 requisites for a valid election of a - The difference is that in the case Co vs HRET, the father of respondent
Filipino citizenship: Ong was naturalized when he was still 9 year old. So which means that
applying derivative naturalization under Sec 15 of Commonwealth Act
1. The illegitimate children born of Filipino mothers, born before January
no 473, respondent Ong was considered citizen of the Philippines when
17, 1973, upon reaching the age of majority must express their
he was still a minor. So the SC said in the case of Co vs HRET, applying
intention to elect Filipino citizenship in a written statement, sworn
the ruling in In re Mallari, that informal elections applies to those who
before any officer authorized to administer oath.
are already citizens of the Philippines at the time that the election of
2. The written statement must be accompanied an oath of allegiance to
Filipino citizenship comes up.
support and defend the constitution and the government of the
Philippines. So that begs the question that why is there a need to elect Philippine
3. And lastly, it must be registered in the nearest civil registrar citizenship when they are already citizens of the Philippines.

When should the children born of Filipino mothers, before January 17, 1973 - Answer is in order to make them natural born Filipino citizen. So which
elect Philippine citizenship? mean that, had the respondent Ong in Co vs HRET did not perform
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positive acts showing implied election of citizenship, at most he will be
considered as naturalized citizen. But since he has participated in
activities reserved only for Filipinos, like entering into a profession
reserved to Filipinos, voting in the election, running for public office
where citizenship is a qualification, the SC said that these acts are no
less than binding than the formal election under Commonwealth act
no 625, so which means that in so far as children who are not yet
citizens of the Philippines at the time that they have reached the age
of 21 have to comply with the requirement of Commonwealth Act 625.
This is the circumstance in the petitioner in In re Ching.
In the case of In re Ching, the petitioner complied with the requirements of
Commonwealth Act 625 when he was already 35 years old, 14 years after the
age of 21.
- The SC said that by any stretch of interpretations, 14 years cannot be
considered as reasonable time. So the SC said that it was already too
late for petitioner Ching and the only way for him to become a Filipino
citizen is Naturalization but not thru the election.
In the case of Cabiling Ma vs Fernandez, the petitioners here are born under
the 1935 constitution. They were born to Taiwanese father, their mother is
Filipino. Upon attaining the age of 21, they executed a written statement of
election of Filipino citizenship under oath and they also subscribed to an oath
of allegiance to support and defend the constitution of the Philippines.
Unfortunately, they did not register the same with the nearest civil registry
until 35 years after attaining age of majority, so they only registered their
written statement and oath of allegiance when they were 50 years old. So the
question in Capiling Ma vs Fernandez is whether they can still be allowed to
complete the requirements under Commonwealth Act No 625. SC said yes.
Because the determinative fact of election is not the registration, because
registration only means to record or to annotate, and the only purpose of
registration is notice to the whole world and there can be acts which are also
equivalent to registration like participation activities reserved for Filipino
citizens, or introducing themselves as Filipino citizen, these shall also serve as
notice. In the case, the SC allowed the completion of requirements but there
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was a condition, SC said that as long as in the meanwhile they have performed
activities constitutive of notice which means that if in the mean time they have
not performed any acts constitutive of their election to Filipino citizenship, that
ruling of the SC would have been different.
Art IV Sec 3
Under Sec 3 of Article 4, Filipino citizenship can be lost or reacquired in
the manner provided for by law. So Commonwealth act 63 enumerates the
modes of losing Filipino citizenship, and one of these modes have been
abrogated in the advent of Sec 4 of Art 4 of the 1987 Constitution, because if
the Filipino women who marry aliens shall retain their Filipino citizenship unlike
in the Commonwealth Act no 63, this is one of the modes of losing Filipino
citizenship. One of the mode in losing Filipino citizenship is by naturalization in
a foreign country. With the advent of RA 9225, can we say that these mode of
losing Filipino citizenship has already been invalidated? Answer is NO. The
provision in CA 63 that Filipino citizenship is lost upon naturalization in a foreign
country is still applicable to naturalized Filipino citizens who subsequently is
naturalized in a foreign country because 9225 only applies to natural born
Filipino citizens. So naturalized Filipino citizens cannot avail of the benefits
under RA 9225. Under RA 9225, natural born Filipino citizens who are
naturalized in foreign country can either reacquire or retain their Filipino
citizenship upon subscribing to an oath of allegiance to support and defend the
constitution and the government of the Philippines.
So note that the 2 operative act under 9225, reacquire, retain.
Reacquire presupposes that one lost it and gets it back. 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
citizens who were naturalized in a foreign country before the effectivity of 9225
meaning before 2003. So we apply the term retention to natural born Filipino
citizens who were naturalized in a foreign country after the effectivity of 9225.
RA 9225 is a repatriation law and in the case of Altajeros vs COMELEC,
The SC said that repatriation law is curative in character and they are
A.J. CHICANO, J. ALMINAR

retroactive in application. So under RA 9225, in order for a natural born Filipino
citizen to retain his Filipino citizenship after having been naturalized in a foreign
country he has to execute an oath of allegiance to support and defend the
constitution and laws of the Philippines. Supposing A is a natural born Filipino
citizen and after the effectivity of 9225, January 1 2005 he was naturalized in
US and A can retain his Filipino citizenship by subscribing an oath of allegiance
to support and defend the constitution and laws of the Philippines. Supposing
he only subscribed to the oath of allegiance in Dec 2005, what is his status from
Jan 1 2005 to Nov 2005? He is Dual Citizen. Remember 9225 is repatriation law,
it is curative in character it is retroactive in character. A in that case is deemed
to never have lost his citizenship. So the act of subscribing to the act of
allegiance retroacts to the day that he was naturalized to the US, in that regard
he is a dual citizen all along.
Another mode of losing Filipino citizenship is express renunciation of
citizenship, and express renunciation has been defined in Yu vs Defensor-
Santiago, as renunciation made known distinctly and explicitly and not left to
inference or invitation. But in the case of Yu, remember that the petitioner here
is a former Portuguese citizen, he was naturalized in the Philippines, after he
was naturalized he renewed his Portuguese passport and he used his
Portuguese passport and introduced himself in his travel documents as a
Portuguese national so the SC considered the totality of the acts as express
renunciation. While there is no express renunciation, the SC said that the
totality of the acts are inconsistent with the retention of Filipino citizenship. So
in that regard he is deemed to have expressly renounced his Filipino citizenship.
So does that mean then that use of foreign passport would result in
express renunciation of Filipino citizenship? In the case of Maquiling vs
COMELEC, the respondent here is a natural born Filipino citizen and he was
naturalized in US and after the effectivity of 9225, he reacquired his Filipino
citizenship and after the reacquisition of his Filipino citizenship he executed an
affidavit of renunciation of his American citizenship in order that he may run
for public office because under 9225 those who would like to hold public office
either by election or appointment have to expressly renounce thru an affidavit
of renunciation their foreign citizenship but after his renunciation of citizenship
he used his American passport. So the question there is whether the use of his
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American passport of respondent Arnaldo resulted losing his Filipino
citizenship. The SC said NO, use of foreign passport is not one of the grounds
of losing Filipino citizenship, and the only effect of the use of the American
passport is that he has withdrawn his affidavit of renunciation of his foreign
citizenship. So which means that when he used his American passport he
reverted back to his status as dual-citizen. So in that regard he cannot run for
any elective office without that renunciation.
So under CA 63, citizenship can be acquired in 3 modes; 1) by
naturalization, 2) act of Congress and 3) repatriation. So act of Congress this is
when Congress enacts a law conferring Filipino citizenship to specific individual
or to identified groups of individual. Example of this is the conferring of Filipino
citizenship to Andray Blatche, so that is naturalization thru direct act of the
Congress. In the case of Frivaldo vs COMELEC, there are 2 frivaldo cases so in
the 1989 Frivaldo vs Comelec case, after naturalized in US, Frivaldo returned to
the Philippines when Marcos was ousted, and upon return to the Philippines
he resumed his activities as a Filipino citizen, he ran for public office and
according to him that resulted to his reacquisition of his Filipino citizenship but
the SC said NO, in order to reacquire a Filipino citizenship which was already
lost the applicant must comply with any of the 3 mode for reacquiring Filipino
citizenship, either by naturalization as an initial mode of acquisition of
citizenship under CA 473 or reacquisition under CA 63 by direct act of congress
or repatriation. So the mere fact that he resumed his activities as Filipino citizen
does not confer back or revert back his lost Filipino citizenship. In case of
Frivaldo vs COMELEC the SC said that this country of ours with all its difficulties
and limitations is like a jealous and possessive mother, so the SC said that once
rejected it is not quick to welcome back with eager arms its prodigal and
repentant children. So the SC said that the returning renegade must show by
an express and an equivocal act his renewal of loyalty and love. So the SC said
that mere participation of activities reserved for Filipino citizen does not
automatically confer him his lost Filipino citizenship, he has to reacquire it
either by naturalization, direct act of congress or repatriation.
In another case, the case of Labo vs COMELEC, the petitioner here is a
natural born Filipino citizen and he married an Australian citizen, and under the
law of Australia he was considered as citizen of Australia as well. But
A.J. CHICANO, J. ALMINAR

subsequent to their marriage, the marriage between them was declared null
and void for being bigamous so the theory of the petitioner is that since he lost
his Filipino citizenship by marrying an Australian national, declaration of nullity
of his marriage would have the effect of him not having lost his Filipino
citizenship at all, but the SC said NO, once you are considered citizen of another
country and you lost that citizenship that does not mean that you can
automatically get Filipino citizenship, so the SC said that Filipino citizenship is
not like a cheap commodity that you can just display when required and
suppress it when convenient, so the SC said that you have to reacquire Filipino
citizenship.
Dual Allegiance
Under Sec. 5 of Article IV, dual allegiance is declared as inimical to the
national interest and the constitution says it shall be dealt with by law.
Does dual allegiance mean dual citizenship? So the case of Mercado vs
Manzano, the issue here is the provision of RA 7160 that disqualifies dual
citizens from running for any local elective office, to the extent according to the
SC that the disqualification extends to dual citizens that provision under the
Local Government code is unconstitutional. Because what is prohibited by the
constitution is only dual allegiance. And dual citizenship happens according to
the SC in cases of conflict of laws, and the SC enumerated 3 instances when
dual citizenship may result because of conflict of laws; 1) when a child is born
to a Filipino mother/father in a place where jus soli is observed, 2) when a child
is born of Filipino mother in the philippines to a foreigner father whose laws
also considers a child a citizen of the father’s state and 3) when a Filipino is
married to a foreigner whose laws also make the Filipino spouse as the citizen
of the state. These dual allegiance resulting from conflict of laws is involuntary.
So the SC said that because of conflict of law, a person can acquire the
citizenship of 2 states. Remember that under RA 9225, natural born Filipino
citizen who are naturalized in a foreign country can retain their Filipino
citizenship by subscribing an oath of allegiance to the Philippines, but all
naturalization laws in the world concludes by taking an oath of allegiance so
which means that a Filipino citizen is naturalized in US, the naturalization in US
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shall conclude upon taking an oath of allegiance to the US, but the naturalized
citizen is US can retain his Filipino citizenship by subscribing to his oath of
allegiance to the Philippines, is that not dual allegiance because under that
circumstance that person has an allegiance to the US as well as in the
Philippines. Can we say that, that is what is prohibited by the Constitution when
a person owes loyalty to 2 states? Answer is NO, because once a person
subscribes to an oath of allegiance to the Philippines, it erases all previous
allegiances regardless of the effect of that allegiance to other states, even if
other state does not consider it as renunciation of the allegiance in that foreign
country our laws already consider that as null and void. So in the eyes of our
laws there is only one allegiance that is the allegiance to our constitution and
our laws.
So supposing the citizenship of a candidate of an elective office is being
challenged for not being a Filipino citizen and the protestant submitted
evidence to show that the candidate is an American citizen, so supposing he
presented the American passport of that person. Does that categorically show
that the person is not a Filipino citizen? This was answered by the SC in Aznar
vs COMELEC, in this case respondent Osmena was being challenged as not a
Filipino citizen and the petitioner presented his American passport to show that
he is not a Filipino citizen, but the SC said that that evidence only shows that
he is an American citizen but that does not disprove that he is not a Filipino
citizen, so by analogy SC said that if a person has 2 brothers named Mario and
Jose, proving that he has brother named Mario does not prove that he has no
brother named Jose. And in another circumstance, if a student enrolled in 2
universities, proving that he is a student of University X does not necessarily
mean that he is not enrolled in University Y, it only means that he has 2 schools.
In the case of Aznar, that only means that he is also an American citizen but
that does not mean that he is not a Filipino citizen. So according to the SC, in
order to show that he is not a Filipino citizen, the petitioner must show that
none of his parents are Filipino citizen, or that he lost his citizenship under any
modes in CA 63. In that regard the SC sustained the citizenship of respondent
Osmena.
A.J. CHICANO, J. ALMINAR
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