Consti II Q and A Reviewer

Constitutional Law II
USA JD-4B Batch 2022
POWERS OF THE STATE
Q: What are the inherent powers of the State?

A: (1) Police Power; (2) Power of Eminent Domain; and (3) Power of Taxation. [Nachura]
Q: What are the similarities of these powers?

A: [Nachura]
1. Inherent in the State, needs no express Constitutional grant;
2. Necessary and indispensable;
3. Methods by which State interfered with private property;
4. Presuppose equivalent compensation; and
5. Exercised primarily by the Legislature.
Q: Distinguish the inherent powers of the State.

A: [Nachura]
Police Power Eminent Domain Taxation
Regulated rights Liberty and property Property Property
Who exercises Only by the May be exercised by Only by the

government. private entities. Government.
Property regulated Noxious or for Wholesome and for Wholesome and for
noxious purpose. public use. public use.
Compensation Intangible Full and fair Protection given

equivalent of the and/or public
property taken. improvements.
Q: Why are these powers considered as inherent?

A: They belong to the very essence of government and without them no government can exist;
the Constitution only defines and delimits them but not grants them. [Bernas]
Q: Limitations to the exercise of Fundamental Powers of the State.

A: Generally, the Bill of Rights, although in some cases the exercise of the power prevails over
specific exercise of police power. [Nachura] In Philippine Press Institute v. COMELEC, the SC
ruled that “To compel print media companies to donate “Comelec-space” amounts to “taking” of
private personal property for public use. The extent of the taking or deprivation is not
insubstantial measured by the advertising rates ordinarily charged by newspaper publishers
whether in cities or in non-urban areas. The threshold requisites for a lawful taking of private
property for public use need to be examined here: one is the necessity for the taking; another is
the legal authority to effect the taking. The element of necessity for the taking has not been
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shown by respondent Comelec. The taking of private property for public use is, of course,
authorized by the Constitution, but not without payment of “just compensation.”
Example of exception to the general rule:

1. Quezon City v. Ericta- There is no reasonable relation between the setting aside
of at least six (6) percent of the total area of an (sic) private cemeteries for charity
burial grounds of deceased paupers and the (promotion of health, morals, good
order, safety, or the general welfare of the people. The ordinance is actually a
taking without compensation of a certain area from a private cemetery to benefit
paupers who are charges of the municipal corporation. Instead of building or
maintaining a public cemetery for this purpose, the city passes the burden to
private cemeteries.
POLICE POWER
Q: What is “police power”?
A: Police power is the most essential, insistent and least limitable of powers, extending as it
does to all the great public needs. It is the inherent and plenary power of the State which
enables it to [Ermita-Malate Hotel and Motel Operators Association Inc. v. Mayor of
Manila]. The property taken is usually noxious or intended for noxious purpose. [Nachura] The
power of promoting public welfare by restraining and regulating the use and enjoyment of liberty
and property.
Q: What are the justifications of police power?

A: salus populi est suprema lex (the welfare of the people is the supreme law) and sic utere tuo
ut alienum non laedas (use your own property in such a manner as not to injure that of another).
[Nachura / Atty. BAD]
SCOPE AND CHARACTERISTICS OF POLICE POWER
Q: What is the scope of police power?

A: Police power rests upon public necessity and upon the right of the State and of the public to
self-protection; thus its scope goes with the changing needs. [Churchill v. Rafferty]
Q: Who exercises police power?

A: National government - Legislature; but it can be delegated (with limits) to local governments.
[Nachura]
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Q: Does MMDA possess police power?
A: No, it is not a political subdivision. [MMDA v. Bel-Air Village Association]
Q: What is the scope of public use?

A: The fact that not all receive the dole out does not make it less public because the drift of the
law is in the direction of public welfare and social justice. [Binay v. Domingo]
The case is about giving burial assistance to indigents.
Q: May the State prohibit gambling?

A: Yes, pursuant to its police power. Gambling is not immoral per se. [Magtajas v. Price
Properties]
Q: Is the law ordering the closure of commercial bloodbanks valid?

A: Yes, for the protection of public health. [Beltran v. Secretary of Health]
Q: Could Police Power be bargained away through a treaty or contract?

A: No. [Stone v. Mississippi; Ichong v. Hernandez]
Q: Taxing Power as an implement of Police Power.

A: The taxing power may be used as an implement of police power. [Lutz v. Araneta; Tio v.
Videogram Regulatory Board; Gaston v. Republic Planters Bank; Osmena v. Orbos]
Q: Eminent Domain as an implement of Police Power.

A: Eminent domain may be used as an implement to attain police objective. [Association of
Small Landowners v. Secretary of Agrarian Reform]
Q: May a law enacted in the exercise of police power be given retroactive effect?
A: Yes. A law enacted in the exercise of police power to regulate or govern certain activities or
transactions could be given retroactive effect and may reasonably impair vested rights or
contracts. Police Power legislation is applicable not only to future contracts but equally to those
already in existence. Non-impairment of contracts or vested rights clauses will have to yield to
the superior and legitimate exercise of the State of the police power. [Ortigas & Co. v. CA]
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Q: Whether P.D. 957 may be applied to the mortgage contract which was executed prior
to its enactment?
A: Yes. While P.D. 957 did not expressly provide for retroactivity in its entirety, yet the same can
be plainly inferred from the unmistakable intent of the law to protect innocent lot buyers from
scheming subdivision developers. There is no violation of the non-impairment clause because
the decree is a valid exercise of the police power, and police power prevails over contracts.
[PNB v. Office of the President]
Q: May the State regulate the exercise of profession by requiring licensure

examinations?
A: Yes. While the right of workers to security of tenure is guaranteed by the Constitution, its
exercise may be reasonably regulated pursuant to the Police Power of the State to safeguard
health, morals, peace, education, order, safety and the general welfare of the people.
Consequently, persons who desire to engage in the learned professions requiring scientific or
technical knowledge may be required to take an examination as a prerequisite to engaging in
their chosen careers. [St. Luke’s Medical Center Employees Association v. NLRC]
Q: Santos, an x-ray technician employed by St. Lukes is separated from employment by

R.A. 7431 mandating the requirement of proper certificate of registration from Board of
Radio Technology as a prerequisite to practice as radiologist and/or x-ray technician. Is
Santos’ separation from employment proper?
A: Yes. The State may regulate the exercise of profession through its police power. [Id.]
Q: Can the PRC be compelled to issue licenses to practice medicine to respondents who
are board passers of Medical Licensure Exam when they have been charged of
immorality, dishonest conduct, fraud and deceit due to their test results?
A: No. It is a long established rule that a license to practice medicine is a privilege or franchise
granted by the government. It is true that this Court has upheld the constitutional right of every
citizen to select a profession or course of study subject to a fair, reasonable, and equitable
admission and academic requirements. But like all rights and freedoms guaranteed by the
Charter, their exercise may be so regulated pursuant to the police power of the State to
safeguard health, morals, peace, education, order, safety, and general welfare of the people.
Thus, persons who desire to engage in the learned professions requiring scientific or technical
knowledge may be required to take an examination as a prerequisite to engaging in their
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chosen careers. This regulation takes particular pertinence in the field of medicine, to protect
the public from the potentially deadly effects of incompetence and ignorance among those who
would practice medicine. [Professional Regulation Commission v. De Guzman]
Q: License to carry a firearm not a property right.

A: The right to bear arms is merely a statutory privilege. The license to carry a firearm is neither
a property nor a property right. It does not create a vested right. A permit to carry a firearm
outside one’s residence may be revoked at any time. Even if it were a property right, it cannot
be considered as absolute as to be beyond the reach of police power. [Chavez v. Romulo]
Q: Timber permits, mining exploration permits not irrevocable rights.

A: Like timber permits, mining exploration permits do not vest in the grantee any permit or
irrevocable right within the purview of the non-impairment and due process clauses, since the
State under its all encompassing police power, may alter, modify or amend the same in
accordance with the demands of the general welfare. [Southeast Mindanao Goldmining
Corporation v. Balite Portal Mining]
Q: License to operate a motor vehicle not a property right.

A: A license to operate a motor vehicle is not a property right, but a privilege granted by the
State in the exercise of its police power, in the interest of public safety and welfare, subject to
procedural due process requirements. The MMDA, however, is not vested with police power.
[MMDA v. Garin]
Q: R.A. 9257 or the “Expanded Senior Citizens Act of 2003” as a legitimate exercise of
police power.
A: A.O. No. 177 issued by the DOH, providing that the 20% discount of the privilege of the
senior citizens shall not be limited to the purchase of unbranded generic medicine but should
extend to both prescription and non-prescription medicine, whether branded or generic, is valid.
When conditions so demand, as determined by legislature, property rights must bow to the
primacy of police power because property rights, though sheltered by the due process clause,
must yield to the general welfare. [Carlos Superdrug Corporation v. DSWD et al.]
Q: Could the State regulate the rates imposed by a public utility, such as an electric
cooperative?
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A: Yes. [Surigao del Norte Electric Cooperative v. Energy Regulatory Commission]
WHO MAY EXERCISE
Q: Where is Police Power inherently vested?

A: Legislature. [Nachura]
Q: May Congress validly delegate police power?

A: Yes, to the president, administrative bodies, and to lawmaking bodies of LGUs.
[Nachura]
Q: Source of police power of LGUs.

A: General welfare clause. [Sec. 16, R.A. 7160; and under Secs. 391, 447, 458 and 468, R.A.
7160]
Q: Political question or judicial question?

A:
1. If exercised by the Congress- political question
2. If exercised by the LGU- judicial question [Atty. BAD]
Q: Could the President validly take over the internal management of a cooperative absent
authorization by Congress?
A: No. While police power may be validly delegated to the President by law, R.A. 6939 and P.D.
260, as amended, do not authorize the President, or any administrative body, to take over the
internal management of a cooperative. Accordingly, Memorandum Order No. 409, issued by the
President, constituting an ad hoc committee to temporarily take over and manage the affairs of
CANORECO is invalid. [CANORECO v. Torres]
Q: What are the requisites for temporary takeover of public utility?

A: [Article 12, Section 17]
1. President must be granted emergency powers;
2. Temporary and for a limited period;
3. Required by public interest;
4. Under reasonable terms and
5. Privately-owned public utility or business.
Note: there is no payment of just compensation as this is police power [Lopez v. PIATCO /
David v. Arroyo]
Q: Zoning and classification as exercise of police power.

A:The regulation by local legislatures of land use in their respective territorial jurisdiction through
zoning and classification is an exercise of police power. The power to establish zones for
industrial, commercial, and residential uses is derived from police power itself and is exercised
for the protection and benefit of residents of a locality. [Buklod ng Magbubukid v. E.M. Ramos]
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Zoning and regulation of the construction of buildings are valid exercise of the police power.
[Gancayco v. Quezon City]
The authority of a municipality to issue zoning classification is an exercise of the police power,
not the power of eminent domain.
Zoning ordinance- a local or municipal legislation which logically arranges, prescribes, defines
and apportions a given political subdivision into specific land uses as present and future
projection of needs. [Pasong bayabas Farmers Association v. CA]
Q: Legislative authority for cities to enact zoning ordinances.

A: Sec. 447, R.A. 7160
Q: The City Council of Manila enacted Ordinance No. 8027 which reclassified the
Pandacan Area from industrial to commercial, and directed the owners and operators of
businesses disallowed under the reclassification to cease and desist from operating their
businesses within six months from effectivity date of the ordinance. Most affected are
the oil companies composed of Shell, Chevron (Caltex) and Petron whose oil depots are
located therein. Is this Ordinance valid?
A: Yes. Ordinance No. 8027 was enacted for the purpose of promoting sound urban planning,
ensuring health, public safety and general welfare of the residents of Manila. The Sanggunian
was impelled to take measures to protect its residents from catastrophic devastation in case of a
terrorist attack on the Pandacan depots. Further, the zoning ordinance which reclassified the
area is reasonable and not arbitrary enactment to the oil companies because they were not
prevented nor prohibited from doing business in the city other than the now reclassified location
of the depot where such operations are no longer permitted. The power to establish zones for
industrial, commercial and residential uses is derived from the police power itself and is
exercised for the protection and benefit of the residents. The ordinance was intended to
safeguard the rights, liberty, security and safety of all the inhabitants of Manila, and not just of a
particular class. [Social Justice Society v. Atienza]
Q: These petitions are a sequel to the case of Social Justice Society v. Mayor Atienza, Jr.
(G.R. No. 156052), where the Court declared that the subject City of Manila Ordinance No.
8027, enacted during the term of Mayor Atienza, ordering the relocation and transfer of
the Pandacan oil terminals is constitutional. On 14 May 2009, during the incumbency of
former Mayor Lim, who succeeded Mayor Atienza, the Sangguniang Panlungsod enacted
Ordinance No. 8187. The new Ordinance repealed, amended, rescinded or otherwise
modified Ordinance No. 8027, Section 23 of Ordinance No. 8119, and all other Ordinances
or provisions inconsistent therewith thereby allowing, once again, the operation of
petroleum refineries and oil depots in the Pandacan area. Is the new Ordinance valid and
constitutional?
A: No. Using the same “best interest of the public” as guide, the Court noted that the Pandacan
oil depot remains as a terrorist target even if the contents have been lessened. Suffice it to state
that the objective adopted by the Sangguniang Panlungsod to promote the constituents’ general
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welfare in terms of economic benefits cannot override the very basic rights to life, security and
safety of the people. Based on the hierarchy of constitutionally protected rights, the right to life
enjoys precedence to the right to property.
Q: Does the Metro Manila Development Authority (MMDA) or its Council have police
power?
A: No. Unlike the legislative bodies of the LGUs, there is no provision in R.A. 7924 that
empowers MMDA or its council to enact ordinances, approve resolutions and appropriate funds
for the general welfare of the inhabitants of Metro Manila. Thus, MMDA may not order the
opening of Neptune St. in the Bel-Air Subdivision to public traffic as it does not possess
delegated police power. [MMDA v. Garin] Further, since MMDA does not have the power to
enact ordinances, it is liable for the illegal demolition of the petitioner’s property. [Gancayco v.
City Government of Quezon City]
Q: Is MMDA precluded from confiscating and suspending or revoking driver’s licenses?

A: No. MMDA is not precluded. While Sec. 5(f), RA 7924 does not grant the MMDA the power to
confiscate and suspend or revoke driver’s licenses without need of any other legislative
enactment, the same law vests the MMDA with the duty to enforce existing traffic rules and
regulations. Where there is a traffic law validly enacted, MMDA is not precluded and in fact is
duty-bound in the exercise of its mandate of transport and traffic management, as well as the
administration and implementation of all traffic enforcement operation [MMDA v. Garin]
Q: A petition for prohibition and mandamus was filed against the MMDA and its
Chairman, Bayani Fernando, to enjoin further implementation of the “Wet Flag Scheme”
and to compel respondents to respect and uphold the pedestrians’ right to due process
and equal protection of the law.
Petitioner contends that the Flag Scheme:

(1) has no legal basis because the MMDA’s governing body, the Metro Manila
Council, did not authorize it;
(2) violates the Due Process Clause because it is a summary punishment for
jaywalking;
(3) disregards the Constitutional protection against cruel, degrading, and inhuman
punishment; and
(4) violates “pedestrian rights” as it exposes pedestrians to various potential
hazards.
Is the Wet Flag Scheme valid?
A: Yes. Wet Flag Scheme has sufficient legal basis. All the cities and municipalities within the
MMDA’s jurisdiction, except Valenzuela City, have each enacted anti-jaywalking ordinances or
traffic management codes with provisions for pedestrian regulation. Such fact serves as
sufficient basis for respondents’ implementation of schemes, or ways and means, to enforce the
anti-jaywalking ordinances and similar regulations. The MMDA is an administrative agency
tasked with the implementation of rules and regulations enacted by proper authorities. The
absence of an anti-walking ordinance in Valenzuela City does not detract from this conclusion
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absent any proof that respondents implemented the Flag Scheme in that city. [Francicso v.
Fernando]
Q: GMA declared Executive Order (E.O.) No. 179 operational, thereby creating the MMDA
in 2003. Due to traffic congestion, the MMDA recommended a plan to “decongest traffic
by eliminating the bus terminals now located along major Metro Manila thoroughfares
and providing more and convenient access to the mass transport system.” The MMC
gave a go signal for the project. Viron Transit, a bus company assailed the move. They
alleged that the MMDA didn’t have the power to direct operators to abandon their
terminals. Is the order of the MMDA valid?
A: No. While concededly, the President has the authority to provide for the establishment of the
Greater Manila Mass Transport System, in order to decongest traffic by eliminating bus
terminals along major Metro Manila thoroughfares, E.O. No. 179, which designates MMDA as
the implementing agency for the project is ultra vires. Under the provisions of E.O. 125, as
amended, it is DOTC, not the MMDA, which is authorized to establish and implement such a
project. The President must exercise the authority through the instrumentality of the DOTC
which, by law is the primary implementing and administrative entity in the promotion,
development and regulation of networks of transportation. By designating MMDA as the
implementing agency, the President overstepped the limits of the authority conferred by law.
[MMDA v. Viron Transportation]
LIMITATIONS (TEST FOR VALID EXERCISE]
LAWFUL SUBJECT LAWFUL MEANS
The interests of the public in general, as The means employed are reasonably
distinguished from those of a particular class, necessary for the accomplishment of the
require the exercise of the power. purpose, and not unduly oppressive on
individuals. [Nachura]
The activity or property sought to be
regulated affects the general welfare; if it
does, then the enjoyment of the rights flowing
therefrom may have to yield to the interests of
the greater number. [Nachura]
Q: Requisites for the proper exercise of the police power:

A:
a. Interests of the public generally, as distinguished from those of a particular class, require
the interference of the State; and
b. The means employed are reasonably necessary for the attainment of the object sought
and not unduly oppressive upon individuals. [Lucena Grand Central Terminal v. JAC
Liner]
Q: Is a law revoking all permits to operate of gambling facilities valid?

A: Yes. In Lim v. Pacquing, it was held that P.D. 771, which expressly revoked all existing
franchises and permits to operate all forms of gambling facilities, issued by local governments,
was a valid exercise of police power. Gambling is essentially antagonistic to the objectives of
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national productivity and self-reliance; it is a vice and a social ill which the government must
minimize (or eradicate) in pursuit of social and economic development.
Q: Could DENR effectively convert existing mining leases and other mining agreements
into production-sharing agreements through Administrative Orders?
A: Yes. A.O. Nos 57 and 82 of the DENR Secretary which effectively converted existing mining
leases and other mining agreements into production-sharing agreements within one year from
effectivity, inasmuch as the subject sought to be governed by the questioned orders is germane
to the objects and purposes of E.O. 279, and that mining leases agreements granted by the
State are subject to alterations through a reasonable exercise of the police power of the State.
Q: Are the ex parte cease and desist orders issued by the Pollution and Adjudication
Board valid?
A: Yes. The ex parte cease and desist orders issued by the PAB are permitted by law and
regulations in situations such as stopping the continuous discharge of pollutive and untreated
effluents into the rivers and other inland waters. The relevant pollution control statute and
implementing regulations were enacted and promulgated in the exercise of police power. The
ordinary requirements of procedural due process yield to the necessities of protecting vital
public interests through the exercise of police power.
Q: Due to the death of one Maricris Sioson in 1991, President Aquino banned the
deployment of performing artists to Japan and other destinations. This was relaxed
however with the introduction of the Entertainment Industry Advisory Council which later
proposed a plan to POEA to screen and train performing artists seeking to go abroad.
DOLE sought a 4 step plan to realize the plan which included an Artist’s Record Book
which a performing artist must acquire prior to being deployed abroad. Is the Order of
DOLE valid?
A: Yes. Police power concerns government enactments, which precisely interfere with personal
liberty or property to promote the general welfare or the common good. A thorough review of the
facts and circumstances leading to the issuance of DOLE Order No. 3 (establishing various
procedures and requirements for screening performing artists as a prerequisite to the
processing of any contract of employment by POEA) shows that the assailed order was issued
by the SOLE pursuant to a valid exercise of the police power. [JMM Promotion and
Management, Inc. v. CA]
Q: Is the act by the COMELEC mandating the newspapers of general circulation in every
province or city to provide free print space of not less than ½ page as COMELEC space
valid exercise of police power?
A: No. Sec. 2 of COMELEC Resolution No. 2772 is not a valid exercise of police power there
being no showing of the existence of a national emergency or imperious public necessity for the
taking of print space, nor that the resolution was the only reasonable and calibrated response to
such necessity. The present case is actually an exercise of eminent domain, albeit invalid,
because the COMELEC would not pay for the space to be given to it by the newspapers.
[Philippine Press Institute v. COMELEC]
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Q: Is an ordinance requiring commercial cemetery owners to reserve 6% of the burial lots

for pauper in the City a valid exercise of police power?
A: No. This is an exercise of eminent domain which would make the City liable to pay the
owners just compensation. [City Government of Quezon City v. Ericta]
Q: An ordinance aimed at relieving traffic congestion but declaring bus terminals as

nuisance per se and ordering their closure or relocation. Does this meet the lawful
subject and lawful means test?
A: It only meets the first standard of lawful subject but not the standard of lawful means. [Lucena
Grand Central Terminal v. JAC Liner]
Q: The Office of the Ombudsman upheld the dismissal of criminal charges against
respondents local government officials who ordered and carried out the demolition of a
fishpond which purportedly blocked the flow of the Pasak River in Sasmuan, Pampanga.
Is the Office of the Ombudsman correct?
A: Yes. The Supreme Court upheld the decision of the Ombudsman. The Court agreed with the
findings of the Ombudsman that “those who participated in the blasting of the subject fishpond
were only impelled by their desire to serve the best interest of the general public.”
ADDITIONAL LIMITATIONS (WHEN EXERCISED BY DELEGATE)
Q: What are the additional limitations in the exercise of police power when exercised by
the delegate?
A:
1. Express grant by law [e.g., Secs. 16, 391, 447, 458, and 468, RA 7160, for local
government units]
2. Within territorial limits [for local governments units, except when exercised to protect
water supply]
3. Must not be contrary to law. An activity prohibited by law cannot in the guise of
regulation, be allowed; an activity allowed by law may be regulated, but not prohibited
[See: De la Cruz v. Paras (1976), City Government of Quezon City v. Ericta, Villacorta v.
Bernando (1986)].
Q: What are the requisites for an ordinance to be valid?

A:
1. Must not contravene the Constitution or a statute;
2. Must not be unfair or oppressive;
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3. Must not be partial or discriminatory;
4. Must not prohibit, but may regulate trade;
5.
6. ust not be unreasonable; and
7. Must be general in application and consistent with public policy [Solicitor General v.
Metropolitan Manila Authority].
CITY OF MANILA COMPARED WITH ERMITA-MALATE
Q: Distinguish City of Manila v. Judge Laguio and Ermita-Malate Hotel and Motel
Operations Association, Inc., v. Hon. City Mayor of Manila.
A:
City of Manila v. Judge Laguio Ermita-Malate Hotel
Blanket ban on motels, inns and similar City ordinance requiring patrons to fill up a
establishments in the Ermita-Malate area. prescribed form stating personal information
such as name, gender, nationality, age,
address and occupation before they could be
admitted to a motel, hotel or lodging house.
This earlier ordinance was precisely enacted
to minimize certain practices deemed harmful
to public morals.
Unconstitutional. Constitutional.
The enactment of the ordinance has no

statutory or constitutional authority to stand
on. Local legislative bodies cannot prohibit
the operation of sauna and massages parlors,
karaoke bars, beerhouses, night clubs, day
clubs, supper clubs, discotheques, cabarets,
dance halls, motels and inns, or order their
transfer or conversion without infringing the
constitutional guarantees of due process and
equal protection of the laws, not even in the
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guise of police power.
EMINENT DOMAIN
DEFINITION/SCOPE
Q: Definition/Scope.
A: Also known as the power of expropriation [Nachura].
Q: Legal basis.
A: [Nachura].
Section 9, Article III Private property shall not be taken for public use without
just compensation.
Section 18, Article XII The State may, in the interest of national welfare or
defense, establish and operate vital industries and, upon
payment of just compensation, transfer to public ownership
utilities and other private enterprises to be operated by the
Government.
Section 4, Article XIII The State shall, by law, undertake an agrarian reform
program founded on the right of farmers and regular
farmworkers, who are landless, to own directly or
collectively the lands they till or, in the case of other
farmworkers, to receive a just share of the fruits thereof. To
this end, the State shall encourage and undertake the just
distribution of all agricultural lands, subject to such priorities
and reasonable retention limits as the Congress may
prescribe, taking into account ecological, developmental, or
equity considerations, and subject to the payment of just
compensation. In determining retention limits, the State
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shall respect the right of small landowners. The State shall
further provide incentives for voluntary land-sharing.
Section 9, Article XIII The State shall, by law, and for the common good,
undertake, in cooperation with the public sector, a
continuing program of urban land reform and housing which
will make available at affordable cost decent housing and
basic services to underprivileged and homeless citizens in
urban centers and resettlements areas. It shall also
promote adequate employment opportunities to such
citizens. In the implementation of such program the State
shall respect the rights of small property owners.
Q: Distinguish Eminent Domain from Police Power.

A:
Police Power Eminent Domain
Police power is the power of the State to The power of eminent domain is the inherent
promote public welfare by restraining and right of the State to condemn private property
regulating the use of liberty and property. to public use upon payment of just
compensation.
General Welfare for its object. General Welfare for its object.
Eminent domain can be used as an Eminent domain can be used as an

implement of police power. implement of police power.
Property interest is merely restricted because When property interest is appropriated and
the continued use thereof would be injurious applied to some public purpose, there is need
to public interest, there is no compensable to pay just compensation.
taking.
Use of the property by the owner is limited, If somebody else acquires the use or interest
but no aspect of the property is used by of for thereof, such restriction constitutes
the benefit of the public. compensable taking [Dipidio Earth-Savers
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Multi-Purpose Association v. Gozun].
Q: Can “taking” be temporary?

A: No. [2018 Poli Notes]
Q: Does deprivation of the property need to be complete?

A: No. [2018 Poli Notes]
Q: Can voluntary offer to sell under CARP be considered as “taking”?

A: Yes. [2018 Poli Notes]
Q: What is the reckoning date for the determination of just compensation?

A: The value of the property at the time of the taking. [2018 Poli Notes] / [Eusebio v. Luis]
Q: Are damages considered in determining the value of just compensation?

A: Yes, just compensation includes not only the market value of the property but also the
consequential damages after considering the consequential benefits. [2018 Poli Notes]
Q: Is the 20% discount to senior citizens an exercise of police power or eminent domain?
A: Police power. [2018 Poli Notes] / [Manila Memorial Park et. al v. Secretary of DSWD et.
al.]
Q: What is the nature of the Tax Credit given to commercial establishments pursuant to
the Senior Citizens Act?
A: It is a form of just compensation for private property taken by the State for public use. [2018
Poli Notes] / [CIR v. Central Luzon Drug, Corp.]
Q: What is the legal interest in case there is a delay in payment of just compensation?
A: Prior to June 30, 2013 - it is 12% per annum; after June 30, 2013 - it is 6% per annum. [2018
Poli Notes]
Q: Can the private property owner file for a recovery for non-payment of just
compensation?
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A: No, but he can file for an action to compel payment plus interest. [2018 Poli Notes] /
[Eusebio v. Luis]
Q: Can the action for just compensation be barred by prescription?

A: In eminent domain cases, the owner’s action to recover the land or the value thereof does not
prescribe. [Republic v. CA cited in the case of Eusebio v. Luis] Except in Vicente Lim case -
recovery of possession was ordered.
Q: Can the owner demand repurchase once the property’s purpose has ended or was
abandoned?
A: No, it is not automatic; it still depends on the character of the expropriation. [2018 Poli
Notes] In the case of Mactan-Cebu vs. CA, there is a condition that once the public purpose
has ended or abandoned, the property will revert back to the public (landowner).
Q: Is the acquisition of an easement of a right of way within the power of eminent

domain?
A: Yes. The acquisition of an easement of a right of way falls within the purview of the power of
eminent domain [Camarines Norte Electric Cooperative v. Court of Appeals]. No cogent reason
appears why the said power may not be availed of to impose only a burden upon the owner of
the condemned property, without loss of the title or possession. It is unquestionable that real
property may, through expropriation be subjected to an easement of a right of way [Republic v.
PLDT].
Q: What court has jurisdiction over a complaint for eminent domain?

A: RTC. While the value of the property to be expropriated is estimated in monetary terms --- for
the court is duty bound to determine the amount of just compensation to be paid for the property
--- it is merely incidental to the expropriation suit [Barangay san roque v. Heirs of Franciso
Pastor].
Q: Can the court that hears the expropriation case also have jurisdiction to determine, in
the same proceedings, the issue of ownership of land sought to be condemned?
A: Yes, this is evident from Section 9, Rule 67 [Republic v. Rural Bank of Kabacan] It can
determine who is entitled to be indemnified by the expropriation. Thus, the finding of ownership
in an expropriation proceeding should not be construed as final and binding on the parties. By
16
filing an action for expropriation, the condemnor merely serves notice that it is taking title to and
possession of the property, not to prove right to possess but to prove right to compensation for
taking x x x [Republic (DPWH) v. Samson-Tatad].
Q: Does the plaintiff have a right to dismiss the expropriation complaint?

A: No, because the landowner may have already suffered damages at the start of the taking.
The plaintiff’s right in expropriation cases to dismiss the complaint has always been subject to
court approval and to certain conditions [National Power Corporation v. Pobre].
Q: What are the requisites for a valid takeover pursuant to eminent domain?
A: [Section 18, Article XII]
1. Interest of national welfare or defense;
2. Permanent takeover, transfer of ownership;
3. Payment of just compensation; and
4. Vital industries.
WHO MAY EXERCISE THE POWER
Q: Who may exercise the power of eminent domain?

A:
1. Congress, and
2. By delegation: (PALP)
a. The President,
b. Administrative Bodies,
c. LGUs, and
d. Private Enterprises performing public services [Nachura].
Q: Do LGUs have the inherent power of eminent domain?

A: No, LGUs can exercise the power only when expressly authorized by the Legislature. Section
19 of the LGC confers such power to local governments, but the power is not absolute; it is
subject to statutory requirements [Masikip v. City of Pasig (2006)]. The grant of the power of
eminent domain to LGUs under RA 7160 cannot be understood as equal to the pervasive and
all-encompassing power vested in the legislative branch of government. The power of eminent
domain must by enabling law be delegated to local governments by the national legislature, and
17
thus, can only be as broad or confined as the real authority would want it to be [ Republic vs.
CA, GR. 146587, July 2, 2002].
Q: Construction of the exercise of the right of eminent domain.

A: Strict construction will be made against the agency exercising the power [Jesus is Lord
Chirsitan School v. Municipality of Pasig].
REQUISITES FOR EXERCISE
Q: What are the requisites for the exercise of eminent domain?

A:
1. Necessity
2. Private Property
3. Taking in the Constitutional Sense
4. Public Use
5. Just Compensation [Nachura].
NECESSITY
Q: Is necessity a political question or a justiciable question?

A:
Exercised by the Legislature Political question [Municipality of Meycauayan

Bulacan v. IAC].
Exercised by a Delegate Justiciable question [Republic v. La Orden de

PP. Benedictinos (1961)].
Q: Where should the issue of the necessity of the expropriation be addressed?

A: The RTC in the course of the expropriation proceedings [Bardillon v. Barangay Masili of
Calamba, Laguna].
Note: The RTC has the power to inquire into the legality of the exercise of the right of eminent
domain and to determine whether there is a genuine necessity for it.
Q: Can the government capriciously or arbitrarily choose which private property should
be expropriated?
18
A: No [Lagcao v. Judge Labra].
PRIVATE PROPERTY
Q: Can private property already devoted to public use be expropriated by a delegate of

the legislature acting under a general grant of authority?
A: No [City of Manila v. Chinese Community].
Q: What kind of private property may be expropriated?

A:
GR ALL private property capable of ownership may be expropriated.

Even services may be subject to eminent domain [Republic v.
PLDT].
XPN 1. Money and

2. Choses in action [Republic v. PLDT].
TAKING IN THE CONSTITUTIONAL SENSE
Q: What may taking include?

A:
1. May include trespass without actual eviction of the owner,
2. Material impairment of the value of the property, or
3. Prevention of the ordinary uses for which the property was intended [Nachura].
4. Does not mean complete deprivation of property, it can be deprivation of use [Atty G].
Q: Does exercise of eminent domain always result in the taking or appropriation of title to
the expropriated property?
A: No. It may only result in the imposition of a burden upon the owner of the condemned
property, without loss of title of possession [NPC v. Gutierrez].
Q: Cases where the Supreme Court held that there was taking.
A:
19
1. Imposition of an easement of a 3-meter strip of the plaintiff’s property was considered
taking [Ayala de Roxas v. City of Manila].
2. A municipal ordinance prohibiting a building which would impair the view of the plaza
from the highway was likewise taking [People v. Fajardo].
3. Right-of-way easement that perpetually deprives defendants of their proprietary rights as
manifested by the imposition by the plaintiff upon the defendants that below said
transmission lines, no plant higher than 3 meters is allowed. Besides, the high-tension
current conveyed by the transmission lines poses continuing danger to life and limb
[NPC v. Gutierrez].
4. Taking also occurs when agricultural lands are voluntarily offered by a landowner and
approved by the Presidential agrarian Reform Council (PARC) for CARP coverage
through the stock distribution scheme (SDS). It is the PARC’s approval which should be
considered as the effective date of taking, as it was only at this time that the Government
officially confirmed the CARP coverage of these lands [Hacienda Luisita, Inc. v. PARC].
Q: What are the elements of valid “taking”?

A:
1. The government must enter private property;
2. The entry must be indefinite or permanent;
3. There is color of legal authority in the entry;
4. The property is devoted to public use of purpose; and
5. The use of the property for public use removed from the owner all beneficial enjoyment
of the property [Republic (DPWH) v. Ortigas].
Q: If the government is already in possession of the property but has yet to acquire the
title, what can it do to legitimize such possession?
A: The Republic must acquire the property by:
1. Instituting expropriation proceedings, or
2. Through negotiated sale, which has already been recognized in law as a mode of
government acquisition of private property for public purposes [Republic (DPWH) v.
Orgitas].
Q: Should the property owner file a claim for just compensation with the COA before
demanding payment?
20
A: No, he may go directly to court to demand payment [Amigable v. Cuenca].
Q: Can the owner of the property recover possession of the property from squatters,
even if he agreed to transfer the property to the Government, until the transfer is
consummated or the expropriation case is filed?
A: Yes, the owner of the property can recover possession of the property from squatters, even if
he agreed to transfer the property to the Government, until the transfer is consummated or the
expropriation case is filed [Velarma v. CA (1996)].
PUBLIC USE
Q: Concept of public use.

A: It is the general concept of meeting public need or public exigency. It is not confined to actual
use by the public in the traditional sense. The idea that “public use” is strictly limited to clear
cases of “use by the public” has been abandoned. The term “public use” has now been held to
be synonymous with “public interest”, “public benefit”, “public welfare”, and “public convenience”
[Reyes v. NHA (2003)]. Whatever may be beneficially employed for the general welfare satisfies
the requirement of public use [Estate of Salud Jimenez v. PEZA]. The meaning of “public use”
has also been broadened to cover uses which, while not directly available to the public, redound
to their indirect advantage or benefit [Heirs of Juancho Ardona v. Reyes].
Q: If only 1/2 hectare is used and only a few could actually benefit from the expropriation,
does that diminish its public use?
A: No. Public use now includes the broader notion of indirect public benefit or advantage,
including, in particular, urban land reform and house [Filstream International Inc. v. Court of
Appeals]. That only few would actually benefit from the expropriation of the property does not
necessarily diminish the essence and character of public use [Manosca v. Court of Appeals].
Q: What is required by law when eminent domain is exercised by LGUs?

A:
1. There should be an express grant of legislative authority granted by Congress, which is
Section 19, RA 7160. It states that LGUs may expropriate private property for public use,
or purpose, or welfare, for the benefit of the poor and the landless [Nachura].
21
2. It should be done in an ordinance [Municipality of Paranaque v. VM Realty Corporation].
JUST COMPENSATION
Q: What is just compensation?
A: Just compensation is the full and fair equivalent of the property taken; it is the fair market
value of the property. It is settled that the market value of the property is “that sum of money
which a person, desirous but not compelled to buy, and an owner, willing but not compelled to
sell, would agree on as a price to be given and received therefor” [Nachura].
Q: Should payment be made within a reasonable time?

A: Yes, just compensation means not only the correct amount to be paid to the owner of the
land but also payment within a reasonable time from its taking [Eslaban v. De Onorio].
Q: What is the effect if only a part of a certain property is expropriated?

A: The owner is not restricted to payment of the market value of the portion actually taken. In
addition to the (1) market value of the portion taken, he is also entitled to payment of (2)
consequential damages, if any, to the remaining part of the property. At the same time, from the
total compensation must be deducted the value of consequential benefits, if any, provided
consequential benefits shall not exceed consequential damages [National Power Corporation v.
Spouses Chiong].
Q: Where is consequential damages awarded?

A: No actual taking is necessary to grant consequential damages. If as a result of the
expropriation, the remaining property of the owner suffers from impairment or decrease in value
[Republic (DPWH) v. BPI].
Q: Can consequential damages be awarded if the entire property is being expropriated?

A: No. No consequential damages should be awarded if the entire property, and not merely a
portion, is being expropriated [Republic (DPWH) v. Soriano].
Q:What determines the fair market value of the expropriated property?

A: The character of the property and its price at the time of the taking. [LBP v. Livioco]
22
Q: What are the factors for consideration to determine just compensation?
A: (not exclusive) acquisition cost, current market value of like properties, tax value of the
condemned property, size, shape, location - these factors must be supported by documentary
evidence. [NPC v. YCLA Sugar Development Corporation] If the trial court fails to consider
these, including other relevant facts such as the zonal valuation, tax declaration and current
selling price, then the court did not judiciously determine the amount of just compensation.
[Republic (DPWH) v. Asia Pacific Integrated Steel).
Q: Is LBP a nominal party in expropriation proceedings?

A: No, LBP is an indispensable party; it has the legal personality to institute a petition for
determination of just compensation. [ Atty. Yuro / Davao Fruits Corporation v. LBP]
Q: Can the ascertainment of what constitutes just compensation be fixed by law?

A: No, it is a judicial prerogative. [EPZA v. Dulay] Legislative enactments, as well as executive
issuances, fixing or providing the method of computing just compensation are tantamount to
impermissible encroachment on judicial prerogatives. [NPC v. Sps. Zabala and Baylon]
Q: Are the courts bound by the formula under the laws in computing just compensation?
A: No, the courts may adopt other formulas in determining just compensation. [LBP v. Fortune
Savings and Loan Association]
Q: Is the appointment of commissioners necessary in eminent domain cases?

A: Generally, no. But when the principal issue is the determination of the amount of just
compensation, a trial before the commissioners is indispensable, in order to give the parties the
opportunity to present evidence on the issue of just compensation. It is a substantial right.
[Manila Electric Company v. Pineda] except in agrarian cases, it is discretionary on the part
of the special agrarian court or upon the instance of one of the parties. [RA 6657]
Q: Are the courts bound by the determination of the commissioners?

A: No. [Republic v. Santos]
Q: When can the courts substitute its own estimate of the value of the property?
A: Only for valid reasons, such as:
1. The commissioners have applied illegal principles to the evidence submitted to them;
23
2. They have disregarded a clear preponderance of evidence; or
3. Where the amount allowed is either grossly inadequate or excessive.
[NPC v. De la Cruz]
Q: What is the form of compensation in eminent domain?

A: It is only in money and no other except in agrarian reform cases where it is allowed to be in
bonds because it deals with a revolutionary kind of expropriation. [Nachuran / Association of
Small Landowners v. Secretary of Agrarian Reform]
Q: Can the rejecting landowner withdraw deposit in trust pending the determination of
the valuation of the property?
A: Yes, by rejecting and disputing the valuation of the DAR, the landowner is merely exercising
his right to seek just compensation. [LBP v. CA]
Q: What is the reckoning date for the determination of just compensation?

A: The value of the property at the time of the taking. [2018 Poli Notes] / [Eusebio v. Luis]
Q: Are damages considered in determining the value of just compensation?

A: Yes, just compensation includes not only the market value of the property but also the
consequential damages after considering the consequential benefits. [2018 Poli Notes]
Q: Who else may be entitled to just compensation?

A: Not only limited to the owner but also to those who have lawful interest in the property to be
condemned. [Knecht v. CA]
Q: When will the title pass?

A: After payment of just compensation. [Visayan Refining v. Camus] except in agrarian
reform. [MR, LBP v. CA].
Q: Can the landowner exercise ownership rights prior to payment of just compensation?
A: Yes. [Republic v. Salem]
Q: Can the private property owner file for a recovery for non-payment of just
compensation?
24
A: No, but he can file for an action to compel payment plus interest. [2018 Poli Notes] /
[Eusebio v. Luis]
Q: Can the action for just compensation be barred by prescription?

A: In eminent domain cases, the owner’s action to recover the land or the value thereof does not
prescribe. [Republic v. CA cited in the case of Eusebio v. Luis] Except in Vicente Lim case -
recovery of possession was ordered.
Q: What aspect of due process is required in the determination of just compensation?

A: Opportunity to be heard; property owners have the right to question the propriety of the
expropriation or the reasonableness of the compensation to be paid for the property. [Belen v.
CA]
WRIT OF POSSESSION
Q: When shall the plaintiff have the right to take or enter upon the possession of the real
property involved?
A:
a. Upon filing of the complaint or at any time thereafter;
b. After due notice to the defendant; and
c. Deposit with the authorized government an amount equivalent to the assessed value of
the property for purposes of taxation. [Sec. 2, Rule 67, Rules of Court]
Q: What shall the court do after the deposit is made?

A: After such deposit is made, the court shall order the sheriff or other proper officer to forthwith
place the plaintiff in possession of the property involved and promptly submit a report thereof to
the court, with service of copies to the parties. [Nachura]
Q: When does the issuance of the writ of possession become “ministerial”?

A: Upon the:
1. Filing of the complaint for expropriation sufficient in the form and substance, and
2. Deposit made by the government of the amount equivalent to the assessed value of the
property sought to be expropriated per current tax declaration. [Biglang-awa v. Judge
Bacalla]
Q: Is the determination of whether the taking of the property is for public purpose a
condition precedent before the court may issue a writ of possession?
A: No. Once the requisites are established, the issuance of the writ becomes a ministerial
matter for the expropriation court. [Francia, Jr. v. Municipality of Meycauayan]
25
Q: The Sangguniang Panlungsod of the City of Iloilo on March 7, 2001 enacted regulation
ordinance granting umbrella authority to then Mayor Mansueto A. Malabor to institute
expropriation proceedings on Lot No. 935, registered in the name of Manuela Yusay,
located at barangay Sto. Niño Norte, Arevalo, Iloilo City. On March 14, 2001, Mayor
Malabor wrote Mrs. Sylvia Yusay del Rosario, administration of the estate, making formal
offer to purchase the property for the purpose of converting the same as an on-site
relocation for the poor and landless resident of the city. With apparent refusal to sell the
property, the city represented by Mayor Jerry P. Treñas filed an expropriation case based
on the Power of State on Eminent Domain. Upon the strict compliance to the governing
rules on expropriation, the city of Iloilo argued that it is entitled to an immediate issuance
of a writ of possession. Is a hearing to determine if a writ of possession is to be issued
required before the same can be issued?
A: No. For the writ of possession to issue as a ministerial duty of the court, only two requisites in
Sec. 2, Rule 67, are necessary.
PLAINTIFF’S RIGHT TO DISMISS THE COMPLAINT IN EMINENT DOMAIN
Q: Does the plaintiff have the right to dismiss the complaint in eminent domain?
A: No. In expropriation cases, there is no such thing as the plaintiff’s “matter-of-right” to dismiss
the complaint, precisely because the landowner may have already suffered damages at the start
of the taking. The plaintiff’s right to dismiss the complaint has always been subject to (1) Court
approval and (2) to certain conditions [NPC & Pobre v. CA (2004)].
RIGHT TO REPURCHASE OR RE-ACQUIRE THE PROPERTY
Q: Does the property owner have the right to repurchase the property?
A: It depends upon the character of the title acquired by the expropriator, i.e., if land is
expropriated for a particular purpose with the condition that when the purpose is ended or
abandoned, the property shall revert to the former owner, then the former owner can re-acquire
the property [Mactan-Cebu International Airport v. Court of Appeals].
Q: Distinguish Right of the Expropriatory Authority from that of an Unpaid Seller in

Ordinary Sales.
A: In ordinary sales, the remedy of rescission may perhaps apply. Expropriation is an in rem
proceeding, and after condemnation, the paramount title is in the public under a new and
independent title [Republic v. CA. GR No. 146587 (2002)].
26
EXPROPRIATION UNDER SEC. 18, ART. XII
Q: Legal basis.
A: The State may, in the interest of national welfare or defense, establish and operate vital
industries and, upon payment of just compensation, transfer to public ownership utilities and
other private enterprises to be operated by the Government [Section 18, Article XII].
Q: Distinguish Section 17 from Section 18.

A: In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest [Section
17, Article XII].
Section 17, Article XII Section 18, Article XII
This is an exercise of police power, so there’s Eminent domain power [Batch 2018, Poli
no payment of just compensation [Lopez vs. Notes].
PIATCO, May 5, 2003; David vs. Arroyo].
Sec. 17, Art. XII, temporary takeover of public Sec. 18, Art. XII, on the other hand, in an
utility: eminent domain power
1. President must be granted emergency 1. Interest of national welfare or defense
powers 2. Permanent takeover, transfer of
2. Temporary and only for a limited ownership
period 3. Payment of just compensation
3. Required by public interest 4. Vital industries
4. Under reasonable terms
5. Privately owned public utility or
business
Q: Can PIATCO obligate the government to pay “reasonable cost for the use of the
Terminal and/or Terminal complex”?
A: No, Section 18 is an exercise of police power, there is no payment of just compensation
[Agan Jr. v. PIATCO, Baterina v. PIATCO, and Lopez v. PIATCO]. The temporary takeover by
27
the government extends only to the operation of the business and not to the ownership thereof.
As such, the government is not required to compensate the private entity-owner of the said
business as there is no transfer of ownership, whether permanent or temporary. The private
entity-owner affected by the temporary takeover cannot, likewise, claim just compensation for
the use of said business and its properties, as the temporary takeover by the government is in
exercise of the police power and not the power of eminent domain [Agan Jr. v. PIATCO].
EXPROPRIATION UNDER SECS. 4 AND 9, ARTICLE XIII
Q: Legal basis.
A:
Section 4, Article XIII Section 9, Article XIII
The State shall, by law, undertake an The State shall, by law, and for the common
agrarian reform program founded on the right good, undertake, in cooperation with the
of farmers and regular farmworkers, who are public sector, a continuing program of urban
landless, to own directly or collectively the land reform and housing which will make
lands they till or, in the case of other available at affordable cost decent housing
farmworkers, to receive a just share of the and basic services to underprivileged and
fruits thereof. To this end, the State shall homeless citizens in urban centers and
encourage and undertake the just distribution resettlements areas. It shall also promote
of all agricultural lands, subject to such adequate employment opportunities to such
priorities and reasonable retention limits as citizens. In the implementation of such
the Congress may prescribe, taking into program the State shall respect the rights of
account ecological, developmental, or equity small property owners.
considerations, and subject to the payment of
just compensation. In determining retention
limits, the State shall respect the right of small
landowners. The State shall further provide
incentives for voluntary land-sharing.
RA 6657 Comprehensive Agrarian Reform Law
Q: Is RA 6657 (CARL) an exercise of police power or eminent domain?
28
A: The Supreme Court held that to the extent that the CARL prescribes retention limits to the
landowners, there is an exercise of the police power for the regulation or private property in
accordance with the Constitution. But where to carry out such regulation, the owners are
deprived of lands they own in excess of the maximum allowed. There is also taking under the
power of eminent domain. The taking contemplated is not a mere limitation on the use of the
land, but the surrender of the title to and physical possession of the excess and all beneficial
rights accruing to the owner in favor of the beneficiary [Sta. “Rosa Realty & Development Corp.
v. Court of Appeals].
Q: What is the effect when the agrarian reform process is still incomplete such as when
the just compensation due the landowner has yet to be settled?
A: Just compensation should be determined and the process be concluded under Ra 6657
[Land Bank v. Santiago]. The fair market value of an expropriated property is determined by its
(1) character and price (2) at the time of the taking, or “time when the landowner is deprived of
the use and benefit of his property”, such as, when title is transferred in the name of the
beneficiaries [Land Bank v. Heirs of Jesus Alsua (2015)].
Q: Rules regarding the RTC-SAC determining just compensation.

A: The RTC-SAC is not granted unlimited discretion. It must consider and apply the factor
enumerated in RA 6657 and the DAR formula (that reflects these factors) as they provide the
uniform framework or structure by which just compensation for property subject to agrarian
reform is determined [Land Bank of the Philippines v. Beneci Eusebio].
Q: Purpose of Just Compensation.

A: To secure to any owner the “full and fair equivalent” of the property taken [Land Bank of the
Philippines v. Eusebio].
RA 7279 Urban Development and Housing Act of 1992
Q: Under RA 7279, what is the order of acquiring lands for socialized housing?
A:
1. Government lands;
2. Alienable lands of the public domain;
29
3. Unregistered, abandoned or idle lands;
4. Lands with the declared Areas for Priority Development, Zonal Improvement Programs
sits, Slum Improvement and Resettlement sites which have not been acquired;
5. BLISS sites which have not yet been acquired; and
6. Privately owned lands [RA 7279, City of Mandaluyong v. Francisco]].
Q: What are the conditions for the mode of expropriation?

A:
1. It shall be resorted to only when the other modes of acquisition have been exhausted,
and
2. Parcels owned by small property owners are exempt from such acquisition [RA 7279,
City of Mandaluyong v. Francisco].
Q: Who are small property owners?

A:
1. Owners of residential lands with an area not more than 300 sqm in highly urbanized
cities and not more than 800 sqm in other urban areas; and
2. They do not own residential property other than the same [RA 7279, City of
Mandaluyong v. Francisco].
BILL OF RIGHTS: IN GENERAL
DEFINITION
Q: What is the Bill of Rights?
A: The series of prescriptions setting forth the fundamental civil and political rights of the
individual, and imposing limitations on the powers of government as a means of securing the
enjoyment of those rights. The Bill of Rights is designed to preserve the ideals of liberty, equality
and security “against the assaults of opportunism, the expediency of the passion hour, the
erosion of small encroachments, and the scorn and derision of those who have no patience with
general principles” [quoted in PBM Employees Organization v. Philippine Blooming Mills
(1973)].
30
Q: What is the significance of the Bill of Rights?
A: The Bill of Rights is a guarantee that there are certain areas of a person’s life, liberty, and
property which governmental power may not touch. [Bernas]
Q: What powers of the government are limited by the Bill of Rights?

A: The inherent powers of the state - Police Power, Eminent Domain, and Taxation. [Bernas]
Q: What is the difference between the provisions on Bill of Rights and the provisions on
Social Justice?
A: Bill of Rights focuses on civil and political rights; social justice focuses on social and
economic rights. Bill of Rights are generally self-executing; social justice requires implementing
legislation. [Bernas]
Q: What is the effect of governmental actions that are in violation of the Bill of Rights?
A: Generally, any governmental actions that are in violation of the Bill of Rights are void
[Nachura].
Q: Are the provisions in the Bill of Rights self-executing?

A: Yes [Nachura].
Q: Civil Rights vs. Political Rights.

A:
Civil Rights Political Rights
Those rights that belong to every citizen of Refer to the right to participate, directly or
the state or country, or, in a wider sense, to indirectly, in the establishment or
all its inhabitants, and are not connected with administration of government [Nachura].
the organization or administration of
government. These include:
1. Right of Suffrage,
These are rights appertaining to a person by 2. Right to hold Public Office,
virtue of his citizenship in a state or 3. Right to Petition, and
community. Such term may also refer, in its 4. In general, the rights appurtenant to
general sense, to rights capable of being citizenship vis-a-vis the management
31
enforced or redressed in civil action. of government [Simon v. Commission
on Human Rights (1994)].
They include the rights to:
1. Property,
2. Marriage,
3. Equal Protection of the Laws,
4. Freedom of Contract [Nachura].
Q: Was there a time when the Bill of Rights was not operative?
A: Yes. In Republic v. Sandiganbayan, the Supreme Court held that the Bill of Rights under the
1973 Constitution was not operative from the actual and effective take-over of power by the
revolutionary government following the EDSA revolution until the adoption, on March 24, 1986,
of the Provisional (Freedom) Constitution [Republic v. Sandiganbayan, GR No. 104768, July 21,
2003].
Q: During the period when the Bill of Rights was not operative, what was the governing
law?
A: During this period, the directives and orders of the revolutionary government were the
supreme law, because no constitution limited the extent and scope of such directives and
orders. Thus, during the interregnum, a person could not invoke any exclusionary right under
the Bill of Rights, because there was neither a constitution nor a Bill of Rights at the time.
However, the protection accorded to individuals under the International Covenant on Civil
and Political Rights and the Universal Declaration of Human Rights remained in effect
during the interregnum [Republic v. Sandiganbayan, GR No. 104768, July 21, 2003].
DUE PROCESS OF LAW
ORIGIN
Q: What is the origin of Due Process?
A: By the 39th Chapter of the Magna Carta wrung by the barons from King John, the despot
promised that “no man shall be taken or imprisoned or disseized or outlawed, or in any manner
32
destroyed; nor shall we go upon him, nor send upon him, but by the lawful judgment of his peers
or by the law of the land (per legem terrae) [Nachura].
DEFINITION
Q: What is Due Process of Law?
A: “A law which hears before it condemns, which proceeds upon inquiry, and renders judgment
only after trial” [Darmouth College v. Woodward, 4 Wheaten 518]. “Responsiveness to the
supremacy of reason, obedience to the dictates of justice [Ermita-Malate Hotel & Motel
Operators Association v. City of Manila (1967)]. “The embodiment of the sporting idea of fair
play [Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 32-33].
WHO ARE PROTECTED

Q: Who are protected by the Bill of Rights?
A: Universal in application to all persons, without regard to any difference in race, color or
nationality [Smith Bell & Co. v. Natividad].
Q: Are artificial persons covered by the protection?

A: Yes, but only insofar as their property is concerned [Smith Bell & Co. v. Natividad].
Q: Are aliens covered?

A: Yes, the guarantee extends to aliens and includes the means of livelihood [Villegas v. Hiu
Chiong (1978)].
MEANING OF LIFE, LIBERTY AND PROPERTY

Q: What are the protected rights under the Bill of Rights?
A: Right to life, liberty and property. [Bernas]
Q: What is the right to life?

A: It is not just a protection of the right to be alive or to the security of one’s limb but it is the right
to a good life. [Bernas]
Q: Do the unborn have a constitutional right to life?

A: Yes. [Article 2, Section 12]
Q: What does property include?

A: All kinds of property in the Civil Code. [Bernas]
Q: Can a privilege evolve into some form of property right?
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A: Yes. [American Inter-Fashion Corporation v. Office of the President]
Note: it has been enjoyed for a long time, there was substantial investment, and it has become
the source of employment for thousands.
Q: Is one’s employment a property right?

A: Yes. [Crespo v. Provincial Board]
Q: When property is classified into historical treasures or landmarks, should such

classification be done with both procedural and substantive due process?
A: Yes because classification involves imposition of limits on ownership. [Army and Navy Club
of Manila, Inc. v. CA]
Q: Do life and property enjoy identical protection from the Constitution?

A: No, the primacy of human rights over property rights is recognized. In the hierarchy of civil
liberties, the rights of free expression and of assembly occupy a preferred position as they are
essential to the preservation and vitality of our civil and political institutions. [Bernas]
Q: Is the company policy against employees marrying employees of competitor

companies valid?
A: Yes, the company has the right to guard its trade secrets, manufacturing formulas, marketing
strategies and other confidential programs and information from competitors. [Duncan
Association of Employees v. Glaxo Wellcome.
AA: Generally, yes. But when there is no reasonable necessity for the prohibition, it is illegal.
[Star Paper v. Simbol]
Q: What is the nature of the right to collect from a pension plan?

A: Contractual or vested right which is protected by the Constitution where the pension is part of
the terms of employment. [GSIS v. Montesclaros]
Q: Is the law ordering discontinuance of pension of a retired officer if he becomes a

citizen of another country valid?
A: Yes, the pension of military retirees is purely gratuitous. [Parreno v. COA]
Q: The military detainees question the correctness of the restriction on contact visits.
A: Valid, relating to military security. Contact visits make the jail vulnerable to smuggling in
weapons, drugs, and other contrabands. [Block v. Rutherford / In the Matter of the Petition
for Habeas Corpus (2005)]
Q: Do people have the right to bear arms?

A: No. [Chavez v. Executive Secretary]
ASPECTS OF DUE PROCESS

Q: Substantive v. Procedural.
34
A:
Substantive Procedural
This serves as a restriction on the This serves as a restriction on actions of

government's law- and rule-making judicial and quasi-judicial agencies of
powers [Nachura]. government [Nachura].
The requisites are: The requisites are:

1. The interests of the public, in 1. An impartial court or tribunal
general, as distinguished from those clothed with judicial power to hear and
of a particular class, require the determine the matter before it.
intervention of the State. 2. Jurisdiction must be lawfully
2. The means employed are reasonably acquired over the person of the
necessary for the accomplishment of defendant and over the property which
the purpose, and not unduly is the subject matter of the
oppressive on individuals [Nachura]. proceeding.
3. The defendant must be given an
opportunity to be heard.
4. Judgment must be rendered upon
lawful hearing [Nachura].
Q: What are the essential requirements of procedural due process in courts?

A: [Banco Espanol Filipino v. Palanca]
1. There must be a court or tribunal clothed with judicial power to hear and determine
the matter before it;
2. Jurisdiction must be lawfully acquired over the person of the defendant or over the
property which is the subject of the proceedings;
3. The defendant must be given an opportunity to be heard; and
4. Judgment must be rendered upon lawful hearing.
Q: Does an extraditee have a right of access to the evidence against him?

A: During an executive phase, none; during judicial phase, yes. [Secretary v. Judge Lantion]
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Q: Does a teacher in a school administrative proceeding have a right to be assisted by
counsel?
A: Yes, due process demands this. [Gonzales v. NLRC and Ateneo de Davao]
Q: When is a law so “vague” as not to satisfy the due process need for notice?
A: It is vague when it lacks comprehensible standards that men “of common intelligence
must necessarily guess as to its meaning and differ as to its application.” It is repugnant to
the Constitution in two respects:
1. It violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and
2. It leaves law enforces unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.
[People v. Nazario]
Q: What is the Void-For-Vagueness Doctrine?

A: A law is facially invalid if men of common intelligence must necessarily guess at its meaning
and differ as to its application. [Romualdez v. COMELEC]
Q: What are the essential requirements of procedural due process before administrative
agencies?
A: [Fabella v. CA]
1. The right to actual or constructive notice of the institution of proceedings which may
affect a respondent’s legal rights;
2. A real opportunity to be heard personally or with the assistance of counsel, to present
witnesses and evidence in one’s favor, and to defend one’s rights;
3. A tribunal vested with competent jurisdiction and so constituted as to afford a person
charged administratively a reasonable guarantee of honesty as well as impartiality; and
4. A finding by said tribunal which is submitted for consideration during the hearing or
contained the records or made known to the parties affected.
PUBLICATION AS PART OF DUE PROCESS

Q: Is publication an indispensable part of due process?
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A: Yes. Publication is imperative to the validity of laws, presidential decrees and executive
orders, administrative rules and regulation, and is an indispensable part of due process [Tanada
v. Tuvera (1985)].
Q: What law should be applied if the latest law was not published?
A: The old law should be applied. The 1978 Rules of Practice and Procedure, and not the 1993
Revised Rules because the latter had not yet been published (although the same had already
been filed with the National Administrative Register) [Republic (National Telecommunications
Commission) v. Express Telecommunications].
APPEAL AND DUE PROCESS

Q: Is appeal a natural right?
A: No, appeal is not a natural right nor is it part of due process [Tropical Homes, Inc. v. NHA].
Q: Who grants the right to appeal?
A: Generally, it may be allowed or denied by the legislature in its discretion. But where the
Constitution gives a person the right to appeal, e.g. in the cases coming under the minimum
appellate jurisdiction of the Supreme Court [Section 5(2), Article VIII].
Q: Is appeal a part of due process?

A:
GR Appeal is not a natural right nor a part of due process [Nachura].
EX Denial of the right to appeal constitutes a violation of due process.

Where there is a statutory grant of the right to appeal, denial of that
remedy also constitutes a denial of due process [Nachura].
Q: Can the court deny the appeal due to the negligence of the accused and of his
counsel?
A: Yes, an appellant must strictly comply with the rules inasmuch as appeal is purely a statutory
right [Sajot v. Court of Appeals].
PRELIMINARY INVESTIGATION AND DUE PROCESS

Q: Is the right to preliminary investigation a constitutional right?
A: No, it is merely conferred by statute [Serapio v. Sandiganbayan].
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Q: Is the right to preliminary investigation a component of due process?
A: Yes, while the right to have a preliminary investigation before trial is statutory rather than
constitutional, it is a substantive right and a component of due process in the administration of
criminal justice [Saturnino Ocampo v. Hon Ephrem Abando]. In such a case, the right to
preliminary investigation is not merely formal or technical; to deny it to the petitioner would
deprive him the full measure of his right to due process [Yusop v. Sandiganbayan].
Q: What is a preliminary investigation

A: A preliminary investigation is held before an accused is placed on trial to secure the innocent
against hasty, malicious and oppressive prosecution, and to protect him from the trouble,
expenses and anxiety of a public trial. It is also intended to protect the State from having to
conduct useless and expensive trials. Thus, while the right is statutory rather than constitutional,
it is a component of due process in administering criminal justice [Victor Jose Tan Uy v. Office
of the Ombudsman (2008)].
Q: When is preliminary investigation required?

A:
GR A preliminary investigation is required to be conducted before the filing

of a complaint or information for an offense where the penalty
prescribed by law is imprisonment of at least 4 years, 2 months and 1
days without regard to the fine [Section 1, Rule 112, Rules on
Criminal Procedure].
EX However, when a person is lawfully arrested without a warrant

involving an offense which requires a preliminary investigation, the
complaint or information may be filed by a prosecutor without need of
such investigation provided an inquest has been conducted in
accordance with the existing rules.
In the absence or unavailability of an inquest prosecutor, the

complaint may be filed by the offended party or a peace officer directly
with the proper court on the basis of the affidavit of the offended party
or arresting officer.
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Before the complaint or information is filed, the person arrested may

ask for a preliminary investigation in accordance with the Rule, but he
must sign a waiver of the provision of Article 125 of the Revised Penal
Code, as amended, in the presence of his counsel.
Notwithstanding the waiver, he may apply for bail and the

investigation must be terminated within 15 days from its inception.
After the filing of the complaint or information in the court without a
preliminary investigation, the accused may, within 5 days from the
time he learns of its filing, ask for a preliminary investigation with the
same right to adduce evidence in his defense as provided in this Rule
[Section 7, Rule 112, Rules on Criminal Procedure].
Q: Will the absence of a preliminary investigation impair the validity of the information?
A: No. The absence of a preliminary investigation does not impair the validity of the information
or otherwise render the same defective. The denial of the motion for the reinvestigation cannot
likewise invalidate the information or oust the court of its jurisdiction [Budiongan v. De la Cruz
(2006)].
Q: What is the effect of the lack of preliminary investigation?

A: The lack of preliminary investigation is not a ground for a motion to quash; but the case must
be suspended with respect to the petitioner even if the case is already undergoing trial [Yusop
v. Sandiganbayan].
Q: Can the right to preliminary investigation be waived?

A: Yes. The right may be waived (1) expressly or (2) by failure to invoke it [Benedicto v. Court of
Appeals]. It cannot be invoked for the first time on appeal [People v. Lagao]. The right is not
waived by the filing of motion to be admitted to bail. But the right is waived when the accused
fails to invoke it before or at the time of entering a plea during arraignment [People v.
Velasquez].
Q: What is the nature of preliminary investigation conducted by the DOJ?
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A: It is merely inquisitorial; it is not a trial on the merits, and its sole purpose is to determine (1)
whether a crime has been committed and (2) whether the respondent therein is probably guilty
of the crime. It is not the occasion for the full and exhaustive display of the parties’ evidence,
and upon satisfaction of the investigation prosecutor the probable cause exists based on the
evidence presented, he may terminate the preliminary investigation and resolve the case [Judy
Ann Santos v. People].
Q: Is a preliminary investigation a quasi-judicial proceeding?

A: No, since the prosecutor in a preliminary investigation does not determine the guilt or
innocence of the respondent [Atty. Alice Odchigue-Bondoc v. Tan Tiong Bio aka Henry Tan].
Q: What is the purpose of a preliminary investigation?

A: a preliminary investigation is essentially an inquiry to determine whether (1) a crime has been
committed, and (2) whether there is probable cause that the accused is guilty thereof. The
public prosecutor determines during the preliminary investigation whether probable cause
exists; thus the decision whether or not to dismiss the criminal complaint depends on the sound
discretion of the prosecutor. Courts will not interfere with the conduct of preliminary investigation
or reinvestigation or in the determination of what constitutes sufficient probable cause for the
filing of the corresponding information against the offender [Baviera v. Paglinawagan].
Q: Policy of non-interference with the executive discretion in the determination of

probable cause.
A: The Court deems it a sound judicial policy not to interfere in the conduct of preliminary
investigation, and to allow the Executive Department, through the Department of Justice,
exclusively to determine what constitutes sufficient evidence to establish probable cause for the
prosecution of supposed offenders [Datu Andal Ampatuan v. Secretary Leila de Lima]. The
Supreme Court reiterated the policy of non-interference with the executive discretion in the
determination of probable cause. It held that a public prosecutor is afforded a wide latitude of
discretion in the conduct of preliminary investigation [Sanrio Company v. Lim].
Q: What is the possible exception to this rule of non-interference?

A: Grave abuse of discretion [Datu Andal Ampatuan v. Secretary Leila de Lima].
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Q: Is there a denial of due process if the Office of the Ombudsman refuses to furnish the
respondent with copies of the counter-affidavits of his co-respodents?
A: No. First, there is no law or rule that requires the Office of the Ombudsman refuses to furnish
the respondent with copies of the counter-affidavits of his co-respodents. Neither the Revised
Rules of Criminal Procedure nor the rules of Procedure of the Office of the Ombudsman
supports this claim. The right of the respondent is only “to examine the evidence submitted by
the complaint”. The constitutional due process requirements mandated in Ang Tibay v. CIR are
not applicable to preliminary investigations which are creations of statutory law giving rise to
mere statutory rights. Second, the petition for certiorari is premature. A pleading was not filed,
much less a motion for reconsideration. Third, the present petition for certiorari constitutes
forum shopping and should be summarily dismissed [Senator Jinggoy Ejercito Estrada v. Office
of the Ombudsman].
Q: Should the Ombudsman act promptly on complaints filed against public officials?
A: Yes. Consistent with the right of all persons to due process of law and to speedy trial, the
Constitution commands the Office of the Ombudsman to act promptly on complaints filed
against public officials. Thus, the failure of said office to resolve a complaint that has been
pending for 6 years clearly violates this mandate. In such an event, the aggrieved party is
entitled to the dismissal of the complaint [Roque v. Ombudsman].
GR Failure to act promptly on complaints filed against public

officials, the aggrieved party is entitled to the dismissal of the
complaint [Roque v. Ombudsman].
EX There is no violation when the delay is due to:

1. Complexity of the issues involved, or
2. Caused by the petitioner’s own acts, not by the inaction
of the prosecution [Socrates v. Sandiganbayan].
Q: Should the Court interfere with the Ombudsman’s discretion in the conduct of
preliminary investigation?
A: The Court does not interfere with the Ombudsman’s discretion in the conduct of preliminary
investigation. The Ombudsman’s findings are essentially factual in nature, and the Supreme
Court is not a trier of facts [Serapio v. Sandiganbayan].
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ADMINISTRATIVE DUE PROCESS
Q: Requisites of administrative due process.

A:
1. The right to a hearing, which includes the right to present one’s case and submit
evidence in support thereof;
2. The tribunal must consider the evidence presented;
3. The decision must have something to support itself;
4. The evidence must be substantial;
5. The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties;
6. The tribunal or body or any of its judges must act on its own independent consideration
of the law and facts of the controversy, and not simply accept the views of a subordinate
in arriving at a decision;
7. The Board or body should, in all controversial questions, render its decision in such a
manner that the parties to the proceeding can know the various issues involved, and the
reason for the decision rendered [Ang Tibay v. CIR].
Q: Not always trial type in administrative due process.

A:
1. Brief
2. Position paper
3. Memorandum [Atty G].
Q: When is there violation of administrative due process?

A: Absolute deprivation of opportunity to be heard [Atty G]. No violation if granted opportunity to
be heard [See Cudia vs. PMA Case].
Q: Can violation of due process be cured in administrative due process?

A: Yes. When given the opportunity to be heard, it cures the initial defect [Atty G].
Q: What does due process in quasi-judicial proceedings before the COMELEC require?
A: Notice and hearing. The proclamation of a winning candidate cannot be annulled if he has
not been notified of any motion to set aside his proclamation [Nachura]. If COMELEC issued an
order annulling the proclamation on the basis of private respondent’s allegations and the
recommendation of the law department, without giving note to the candidate proclaimed, the
order is void [Namil v. COMELEC].
EQUAL PROTECTION OF THE LAWS
Q: What is the legal basis for equal protection of the laws?
42
A: Sec. 1, Art. III: xxx nor shall any person be denied of the equal protection of the laws
Q: What is the meaning of the equal protection of the laws?

A: All persons or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. (Nachura p.139)
Q: Do natural, juridical and artificial persons enjoy this constitutional guarantee?

A: YES, as to natural and juridical persons. But with respect to artificial persons, they enjoy the
protection only insofar as the property is concerned.
Q: Can taxation make a classification?

A: Yes. In Tan v. Del Rosario, SC upheld the Constitutionality of RA 7496 limiting the allowable
deductions from gross income of single proprietorships and professionals. It was held that
uniformity of taxation does not prohibit classification, provided the requirements of valid
classification are complied with.
Q: Do citizens and aliens enjoy the same rights?

A: Generally, the Constitution places the civil rights of aliens on an equal footing with those of
citizens. But their political rights do not enjoy the same protection.
Q: When can there be a valid classification/discrimination?

A: When persons or things ostensible similarly situated may, nonetheless, be treated differently
if there is a basis for valid classification. (Nachura, p.140)
Q: Requisites of a valid classification.

A:
1. Substantial distinctions which make for real differences
2. Germane to the purpose of the law
3. Not limited to existing conditions only
4. Applies equally to all members of the same class
(Nachura)
Q: The Department of Education, Culture and Sports Issued a circular disqualifying

anyone who fails for the fourth time in the National Entrance Tests from admission to a
43
College of Dentistry. X who was thus disqualified, questions the constitutionality of the
circular. Did the circular violate the equal protection clause of the Constitution?
A: NO. The circular did not violate the equal protection clause of the Constitution. There is a
substantial distinction between dentistry students and other students. The dental profession
directly affects the lives and health of people. Other professions do not involve the same
delicate responsibility and need not be similarly treated. (1994 Bar Q, UST Quamto)
SUBSTANTIAL DISTINCTIONS
Q: Is there a substantial distinction between motorcycles and other motor vehicles?

A: Yes. In Mirasol v. DPWH GR No. 158793, SC held that there is a real and substantial
distinction between a motorcycle and other motor vehicles. Not all motorized vehicles are
created equal - real and substantial differences exist between a motorcycle and other forms of
transport sufficient to justify its classification among those prohibited from playing the toll ways.
Q: Was there a valid classification in the creation of the Philippine Truth Commission?
A: NO, it was not valid. It was invalid and unconstitutional insofar as it violates the equal
protection clause inasmuch as the focus of its inquiry is limited to the immediately preceding
administration. (Biraogo vs. PTC, GR No. 193036)
Q: Is there a valid classification in RA9262 or Anti-VAWC Law?

A: YES, there is valid classification.
The law rests on substantial distinctions. The unequal power relationship between women and
men; the fact that women are more likely than men to be victims of violence and widespread
gender bias and prejudice against women, all make for real differences justifying the
classification. (Garcia vs. Drilon, GR No. 179267, 2013)
Germane to the purpose of the law
Q: What is the meaning of “germane to the purpose of the law”?

A: The distinctions which are the bases for the classification should have a reasonable relation
to the purpose of the law. (Nachura, p.144)
Not limited to existing conditions only
Q: What is the meaning of “not limited to existing conditions only”?
44
A: Must apply to future conditions, not a one-time transaction.
Must apply equally to all members of the same class
Q: Is granting tax and duty incentives to businesses within PEZA valid?

A: YES, it is valid. The Constitution does not require absolute equality among residents; it is
enough that all people under similar circumstances or conditions are given the same privileges
and required to follow the same obligations.
In short, a classification based on a valid and reasonable standard does not violate the equal
protection clause. (Tiu vs. CA, G.R. No. 127410)
Q: What are the tests or levels of scrutiny in determining equal protection of the laws:
A: Serrano v. Gallant Maritime [G.R. No. 167614 (2009)] introduced a modification in equal
protection jurisprudence by using the three level review used in due process cases. (UP BOC)
1. Rational Basis Test
2. Intermediate Scrutiny Test
3. Strict Scrutiny Test
Rational Basis Test Intermediate Scrutiny Test Strict Scrutiny Test
The classification should bear Government must show that Requires that the
a reasonable relation to the the challenged classification classification serve a
government’s purpose or serves an important state compelling state interest and
legitimate state interest. interest and that the is necessary to achieve such
classification is at least interest. This level is used
substantially related to when suspect classifications
serving that interest. or fundamental rights are
Applicable to certain sensitive involved. (Garcia v. Drilon)
but not suspect classes;
certain important but not
fundamental
interest.
SEARCHES AND SEIZURES
Basis; Scope of the protection
45
Q: What is the specific constitutional right?
A: Sec. 2, Art. III . The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
Q: When was the right to privacy institutionalized?
A: It was institutionalized in the 1987 Constitution as a facet of the right protected by the
guarantee against unreasonable searches and seizures. But the Court acknowledged its
existence as early as Morfe v. Mutuc, 130 Phil. 415 (1968) [Jose Jesus Disini v. Secretary of
Justice (2014)].
Q: Is the right to privacy independent from the right to liberty?
A: Yes, in Morfe v. Mutuc, 130 Phil. 415 (1968) it was ruled that the right of privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional
protection [Jose Jesus Disini v. Secretary of Justice (2014)].
Q: To whom can it be invoked against?
A: Invoke against the government only. The right cannot be invoked against a private
individual or entity. [Sesbreno v. CA]
Q: Who can invoke it? Can aliens invoke it?
A: Since it is a personal right, it is invocable only by those whose rights were infringed.
Yes, aliens may invoke it. It protects all persons, including aliens (Qua Chee Gan vs.
Deportation Board).
Q: Are artificial persons entitled to the right to privacy?
A: Yes, although they may be required to open their books of accounts for examination by the
State in the exercise of police and taxing powers [Nachura, see Moncada v. People’s Court].
Q: Explain the Zones of Privacy.
A: Zones of privacy are recognized and protected in our laws. Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal
process.
It is a penumbral right formed from the shadows created by several constitutional provisions.
That is to say, the right to privacy is located within the zones created by various provisions of
46
the Constitution and various statutes which protect aspects of privacy. [Ople v. Torres,G.R. No.
127685 (1998)]
Q: What are the two constitutional guarantees that create these zones of privacy?
A:
1. The right against unreasonable searches and seizures

2. The right to privacy of communications and correspondence (Nachua, p.146)
Q: What are the two classifications of privacy?
A: 1) Decisional privacy - Right to independence in making certain decisions 2) Informational

privacy - Interest in avoiding disclosure of personal matters [Nachura, p. 146, citing Whalen v.
Roe]
Q: What are the two aspects of Informational privacy?
A: 1) right no to have private information disclosed 2) right to live freely without surveillance and
intrusion [Nachura, p. 146, citing Whalen v. Roe]
Decisional Privacy Informational Privacy
Right to independence in making certain Interest in avoiding disclosure of personal

decisions [Nachura, p. 146, citing Whalen v. matters.
Roe].
1. Right not to have private information
disclosed
2. Right to live freely without surveillance
and intrusion [Nachura, p. 146, citing
Whalen v. Roe].
Q: What is the two-fold test in determining the right to privacy?
A: 1) Subjective - actual legitimate expectation of privacy over a certain matter 2) Objective -

The person’s expectation of privacy must be one society is prepared to accept as objectively
reasonable [Nachura, p. 146, citing Disini v. Secretary of Justice]
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Subjective Test Objective Test
Where one claiming the right must have an The person’s expectation of privacy must be
actual legitimate expectation of privacy one society is prepared to accept as
over a certain matter [Nachura, p. 146, citing objectively reasonable [Nachura, p. 146,
Disini v. Secretary of Justice]. citing Disini v. Secretary of Justice].
SCOPE OF PROTECTION
Q: Scope of protection
A: All persons, including aliens, whether accused or not. Artificial persons, including aliens are
also entitled to the guarantee, although they may be required to open their books of accounts
for examination by the State in the exercise of police and taxing powers. [Moncada v. People’s
Court]
Q: Who may invoke the right against unreasonable searches and seizures?
A: The right is personal. It may be invoked only by the person entitled to it. [Stonehill v. Diokno]
Q: May the right be waived?
A: Yes, expressly or impliedly. Waiver must however be made by the person whose right is
invaded, not by one who is not duly authorized to effect such waiver. [People v. Damaso /
Article 6, NCC]
Q: Can the right be claimed against private persons?
A: No. The right applied as a distraint only against the government and its agencies tasked with
the enforcement of the law. [People v. Andre Marti]
Q: Petitioner opened an envelope addressed to the respondent and found therein a

check evidencing over pricing in the purchase of medicine. Is the check admissible in
evidence?
A: Yes. [Waterous Drug Corporation v. NLRC]
Q: The shabu in the baggage of the accused was found by private security officers of the
interisland passenger vessel who then reported the matter to the Philippine Coast Guard.
May the exclusionary rule be invoked?
A: No. The search and seizure of the suitcase and contraband items were carried out without
government intervention. [People v. Bongcarawan]
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Q: When to object to the legality of the arrest?
A: Before the accused enters his plea. Failure to do so constitutes a waiver of his right against
unlawful restraint of liberty. [People v. Codilla; People v. Penaflorida]
Some Procedural Rules
Q: Is a warrantless arrest a jurisdictional defect?
A: NO. The conspicuous illegality of the arrest cannot affect the jurisdiction of the trial court,
because even in instances not allowed by law, a warrantless arrest is not a jurisdictional defect,
and any objection is waived when the person arrested submits to arraignment without any
objection. (People vs. Del Rosario, G.R. No. 127755, 1999)
Q: Can a judge issue search warrants outside their judicial regions?
A: NOT anymore. Judges and Executive Judges may only issue search warrants WITHIN
THEIR JUDICIAL REGIONS. (Sec. 2, Rule 5 of Rules on the Use of Body-Worn Cameras in
the Execution of Warrants)
Old Rule: NCR judges may issue search warrants anywhere in the PH.
Q: Can a judge order the quashal of the warrant he issued and that was already
implemented?
A: YES. The judge may order the quashal of the warrant he issued even after the same had
already been implemented, particularly when such quashal is based on the finding that there is
no offense committed. This does not trench upon the duty of the prosecutor. The items seized
shall be inadmissible as evidence. (Solid Triangle Sales vs. Sheriff, GR No. 144309, 2001)
Only a Judge Can Issue a Warrant
Q: Who can issue a warrant?
A: Only a judge. The Constitution grants the authority to issue a warrant of arrest or search
warrant only to a judge upon fulfillment of certain basic constitutional rights (Sec. 2, Art. III)
Q: Art. 38 of the Labor Code of the Philippines grants the Sec. of Labor the authority to
issue orders of arrest, search and seizure, is it valid?
A: NO, the provision was declared unconstitutional because the Labor Secretary is not a judge.
(Salazar vs. Achacoso, G.R. No. 81510, 1990)
Q: Can the PCGG order persons to submit bank documents?
49
A: NO, since such was held to be in the nature of a search warrant which the PGCC cannot
validly issue, because PCGG is not a judge. (Republic vs. Sandiganbayan, G.R. No. 112708,
1996)
Q: Can the DOJ issue an order to restrict or block access to computer data, under the
Cybercrime Law?
A: NO. SC has declared this provision as unconstitutional since the government in effect seizes
and places the computer data under its control and disposition without a valid warrant which
only a judge can issue. (Disini vs. Secretary of Justice, G.R. No. 203335)
Q: Can administrative authorities issue warrants?
A: Only for the purpose of carrying out a final finding of a violation of law. (Morano vs. Vivo, 923
Phil. 923, 1967).
In the case of Harvey vs. Defensor-Santiago, SC upheld the validity of the arrest of pedophiles
on order of Immigration Commissioner Santiago because there was probable cause,
occasioned by months of surveillance made by CID agents against suspected pedophiles.
The requirement that probable cause is to be determined only by a judge DOES NOT EXTEND
to deportation cases which are not criminal but purely administrative in nature.
Requisites of A Valid Warrant
Q: What are the requisites of a valid warrant?
A:
a. Probable cause
b. Determination of probable cause personally by a judge
c. After examination, under oath or affirmation, of the complainant and the witnesses he
may produce [Nachurra, p.150]
d. On the basis of their personal knowledge of the facts they are testifying to
e. Particularity of description
f. Must refer to 1 specific offense (except in Drugs cases since it is special law, hence one
search warrant may be validly issued for several violations) (UP BOC)
g. Body-worn Cameras
Q: Probable Determination by Judge: Arrest v. Search
SEARCH WARRANT WARRANT OF ARREST
● In the form of searching questions and ● Personally evaluate the resolution of

answers the prosecutor and its supporting
● In writing and under oath of the evidence
complainant and his witnesses ● Not required to conduct a searching
50
● Regarding the facts personally known questions and answer inquiry of the
to them, meaning they must have complainant and his witnesses
personal knowledge
Except: On cases not requiring preliminary
investigation when it may be filed directly
before the MTC.
Q: What is probable cause for a warrant?
A: Such facts and circumstances antecedent to the issuance of the warrant that in themselves,
are sufficient to induce a cautious man to rely on them and act in pursuance thereof. (People vs.
Syjuco, 64 Phil 667)
Q: What is probable cause for a search warrant?
A: Such facts and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the objects sought in connection with the
offense are in the place sought to be searched. (Burgos vs. Chief of Staff, G.R. No. L-64261,
1984)
Q: What is probable cause for a warrant of arrest?
A: Such facts and circumstances which would lead a reasonably discreet and prudent man to
believe that the person to be arrested is probably guilty thereof [Allado v. Diokno, G.R. No.
113630 (1994)].
Q: Must a warrant refer to one specific offense?
A: GR: Yes, it must refer to one specific offense. (Asian Surety vs. Herrera, 54 SCRA 312).
Except: One search warrant may be validly issued for several violations under RA 9165, a
special law that deals with dangerous drugs and penalizes categories of offenses which are
closely related or which belong to the same class or species. (People vs. Dichoso, GR No.
101216, 1993)
Q: Can a search warrant be partially invalidated?

A: Yes. [PP v. Salanguit] Where a search warrant was issued for the seizure of shabu and drug
paraphernalia but probable cause was found to exist only with respect to the shabu, the warrant
cannot be invalidated in toto; it is still valid with respect to the shabu.
Q: How does a judge personally determine the probable cause?

A: The judge must make an exhaustive and probing examination of witnesses and the
applicant, and not merely routine or pro forma examination [Nala v. Barroso, Jr., G.R. No.
153087 (2003)].
Q: Is the judge bound by the findings of the fiscal?

A: NO. He could rely, but he is not bound. The determination of probable cause depends to a
large extent upon the finding or opinion of the judge who conducted the required examination of
the applicant and the witnesses (Kho vs. Judge Makalintal, G.R. No. 94902-06, 1999)
51
Q: Explain “after examination, under oath or affirmation, of the complainant and the
witnesses he may produce”.
A: The personal examination of the judge must not be mere routinary or pro forma, but must be
probing and exhaustive. (Nachura, p. 156)
The evidence offered by the complainant and his witnesses should be based on their own
personal knowledge and not on mere information or belief. (Cupcupin vs. People, G.R. No.
132389, 2002)
Q: What is the purpose of “particularity of description”

A: The requirement is primarily meant to enable the law enforcers serving the warrant to:
1. Readily identify the properties to be seized and thus prevent them from seizing the
wrong items
2. Leave said peach officers with no discretion regarding the articles to be seized (People
vs. Tee G.R. No. 140546-47)
Q: Why are general warrants and scatter-shot warrants void?

A: The Constitution seeks to avoid search warrants of broad and general characterization or
sweeping descriptions which will authorize police officers to undertake a fishing expedition to
seize and confiscate any and all kinds of evidence or articles relating to the offense. (Tambasen
vs. People, G.R. No. 89103, July 14, 1995)
Q: 50 John Does.
A: Void; considered as general warrants. [Pangandaman v. Casar]
Particularity in Warrants of Arrest Particularity in Search Warrants
It said to particularly describe the person to It is said to particularly describe the things to
be seized if it contains the name/s of the be seized when the description therein is as
person/s to be arrested. specific as the circumstances will ordinarily
allow.
If the name of the person to be arrested is not
known, then a John Doe Warrant may be The description of the property to be seized
issued. A John Doe warrant will satisfy the need not be technically accurate nor
constitutional requirement of particularity of necessarily precise, and its nature will
description if there are some descriptio necessarily vary according to whether the
persona which will enable the officer to identity of the property, or its character, is a
identify the accused. matter of concern.
*An undetermined amount of marijuana was

held to satisfy the requirement for particularity
of description (People vs. Tee)
Persons to be searched must also be

particularly described (People vs. Chua, G.R.
No. 149878, 2003)
Q: When does a search warrant particularly describe the things to be seized?

A:
52
1. When the description is specific as the circumstances will ordinarily allow. [People v.
Rubio]; or
2. When the description expresses a conclusion of fact, not of law, by which the warrant
officer may be guided in making the search and seizure; or
3. When the things described are limited to those which bear direct relation to the offense
for which the warrant is being issued. [Bache & Co. v. Ruiz]
Q: What should the applicant do if the articles desired to be seized have any direct
relation to the offense committed?
A: The applicant must necessarily have some evidence other than those articles, to prove said
offense; and the articles subject of search and seizure should come in handy merely to
strengthen such evidence. [Columbia Pictures v. CA]
Q: Failure to specify detailed descriptions in the warrant does not necessarily make the
warrant a general warrant.
A: The description of the property seized need not be technically accurate nor necessarily
precise, and its nature will necessarily vary according to whether the identity of the property, or
its character, is a matter of concern. The description is required to be specific only in so far as
circumstances will allow.
Q: Are search warrants severable?

A: Yes (void items will not invalidate the whole warrant). The general description of most of the
documents in the warrant - if there are others particularly described - will not invalidate the
entire warrant. Those items which are not particularly described may simply be cut off without
destroying the whole warrant. (Uy vs. BIR, G.R. No. 129651, 2000)
Q: What items may be seized?

A: Only the articles particularly described in the warrant may be seized. [nachura]
Q: The warrant authorized only the seizure of shabu and not marijuana.
A: The seizure of marijuana is unlawful. [People v. Salinhuit]
Q: The search warrant does not describe with particularity nor mention the firearm.
A: The police officers do not have the authority to seize the firearm. Even the offense of illegal
possession of firearms is malum prohibitum, it does not follow that the subject firearm is illegal
per se. Thus, inasmuch as the consent to the search was , in scope, limited to the search for
NPA rebels, the confiscation of the firearm was held invalid. [Del Rosario v. People; Veroy v.
Layague]
Q: How to be particular with the place to be the search?

A: The description of the place to be searched is sufficient if the officer with the warrant can,
with reasonable effort, ascertain and identify the place intended, and distinguish it from other
places in the community. (Laud vs. People G.R. No. 199032, 2014)
Where the search warrant authorized the search of Apartment No. 2, but the searching party
extended the search and seizure of firearms to Apartment No. 8 in the same compound, SC
invalidated the search done in Apartment No. 8 (Yousef Al Ghoul vs. CA, G.R. No. 126859,
2001)
Q: The warrant designated the place to be searched as “Abigail’s Variety Store, Apt.
1207, Area F, Bagong Buhay Ave., Sapang Palay, San Jose del Monte, Bulacan, and the
53
search was made at Apt. No. I which was immediately adjacent to the store (but an
independent unit). Is the search valid?
A: No. The place to be searched, as described in the warrant, cannot be amplified or modified
by the peace officers’ own personal knowledge of the premises or the evidence which they
adduced in support of their application for a warrant. [People v. CA]
Q: What does the Constitution require as regards particularity of warrant?

A: The Constitution requires search warrants to particularly describe not only the place to be
searched but also the persons to be searched.
Issuance of Warrant of Arrest
Q: Is the issuance of a warrant of arrest a ministerial function?

A: No. [Placer v. Villanueva]
Q: Is personal examination of the witnesses and complainant by the judge necessary in

the determination of probable cause?
A: No, it is sufficient that the judge “personally determine” the existence of the probable cause. It
is not necessary that he should personally examine the complainant and his witnesses.
[Soliven v. Makasiar]
Q: Is hearing necessary prior to the issuance of the warrant?

A: No; the judge should evaluate the report and the supporting documents submitted by the
prosecutor or require the submission of supporting affidavits of witnesses to aid him in
determining whether probable cause exists. [De los Santos-Reyes v. Montesa]
Q: What are the possible actions of the judge upon submission of the fiscal of the
resolution finding probable cause?
A: [Cruz v. Judge Areola]
1. Personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or
2. If, on the basis thereof, he finds no probable cause, he may disregard the prosecutor’s
report and require the submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion on the existence of probable cause.
Q: What is the difference between preliminary inquiry and preliminary investigation?

A: Preliminary inquiry determines probable cause for the issuance of a warrant of arrest and is
made by the judge. Preliminary investigation ascertains whether the offender should be held for
trial or released and is done by the prosecutor. [Allado v. Diokno]
Q: What are the two kinds of determination of probable cause?

A: First is the executive determination. It concerns whether there is enough evidence to support
an information being filed, done by the prosecutor.
Second is the judicial determination. It determines whether a warrant of arrest should be issued.
The judge does not act as an appellate court of the prosecutor and has no capacity to review
the prosecutor’s determination of probable cause; rather the judge makes a determination
independent of the prosecutor’s finding. (Mendoza vs. People, G.R. No. 197293, 2014)
Q: What are the requirements before an investigation judge may issue a warrant of
arrest?
54
A: a) Examination under oath and in writing, the complaint and his witnesses b) Probable cause
c) There is a need to place the respondent under immediate custody in order not to frustrate the
ends of justice [Mantaring v. Judge Roman]
Q: Can the judge rely solely on the prosecutor?

A: NO. If the judge relied solely on the certification of the prosecutor, then he cannot be said to
have personally determined the existence of probable cause, thus the issued warrant is void.
(Lim vs. Felix, G.R. No. 94054, 1991)
AA: No, the Judge can rely on the findings of the fiscal but he is not bound thereby because the
determination of the probable cause depends upon the finding or opinion of the judge who
conducted the required examination of the applicant and the witnesses. [Kho v. Macalintal]
Q: How is determination done?

A: Under Sec. 6, Rule 112
1. Within 10 days from filing of the complaint or information
2. The judge shall personally evaluate the resolution of the prosecutor and its supporting
evidence.
3. He may immediately dismiss the case if the evidence fails to establish probable cause
4. If he finds probable cause, then he shall issue a warrant of arrest or commitment order if
accused has already been arrested
5. In case of doubt as to existence of probable cause, the judge may order the prosecutor
to present additional evidence within 5 days
In the form of searching questions and answers, in writing and under oath. Mere affidavits of the
complainant and his witnesses are thus not sufficient. The examining Judge has to take
depositions in writing of the complainant and the witnesses he may produce and attach them to
the record.
Issuance of a Search Warrant
Q: Explain the procedure for the issuance of a search warrant.

A: [Sec. 4, Rule 126]
1. Judge must personally examine in the form of search questions and answers;
2. In writing and under oath ;
3. The complainant and any witnesses he may produce on facts personally known to them;
and
4. Attach to the record their sworn statements together with any affidavits submitted.
Q: Will absence of personal knowledge render the issuance of a search warrant invalid?
A: Yes, absent the element of personal knowledge by the applicant or his witnesses of the facts
upon which the issuance of the search warrant may be justified, the warrant is deemed not
based on probable cause and is a nullity, the issuance being, in legal contemplation, arbitrary.
[Sony Music Entertainment v. Judge Espanol]
Q: What is the nature of a search warrant proceeding?

A: Not a criminal action or the commencement of a prosecution. The proceeding is not one
against any person, but is solely for the discovery and to get possession of personal property.
(United Laboratories, Inc. vs. Isip, G.R. No. 163958, 2005)
55
Q: Will the failure of a judge to conform with the essential requisites of taking
depositions in writing render the search warrant void?
A: Yes, it is invalid and the fact that the objection was raised only during the trial is of no
moment, because the absence of such depositions was discovered only after the arrest and
during the trial.
Personal Determination of the Judge (Atty G. slides)

Search Warrant Warrant of Arrest
● In the form of searching questions ● Personally evaluate the resolution of

● In writing and under oath of the the prosecutor and its supporting
complainant and witnesses evidence
● Regarding the facts personally known ● Not required to conduct a searching
to them question and answer inquiry of the
complainant and his witnesses
Properties Subject to Seizure
Q: What are properties subject to seizure?

A: 1. Subject of the offense
2. Stolen or embezzled property and other proceeds or fruits of the offense
3. Property used or intended to be used as means for the commission of the offense.
TAKE NOTE: It is not necessary that the property to be searched or seized should be
owned by the person against whom the warrant is issued; it is sufficient that the property is
within the control or possession. [Burgos v. Chief of Staff, Dec. 26, 1984]
Conduct of the Search
Q: What are the requirements in conducting a search?

A: Under Sec. 7, Rule 126 of the Rules of Court:
1. No search of a house, room or any of the premises shall be made except in the
presence of the lawful occupant thereof or any member of his family:
2. Or in the absence of the latter, in the presence of two witnesses of sufficient age and
discretion, residing in the same locality.
Q: Can the police officers use force in entering the dwelling?

A: Yes, if justified by Rule 126 of the ROC. In People v. Salanguit, the occupants of the house
refused to open the door despite the fact that the searching party knocked on the door several
times, and the agents saw suspicious movements of the people inside the house. These
circumstances justified the searching party’s forcible entry, as it was done on the apprehension
that the execution of their mission would be frustrated unless they did so.
Q: The police officer side-swiped the appellant’s car which was parked outside their
house. The son of the appellant, the only one present in the house at the time, opened
56
the door and the policemen at once introduced themselves, informed Jack that they had
a warrant to search the premises, and promptly handcuffed Jack to a chair. Is the manner
lawful?
A: No. The manner in which the officers conducted the search was unlawful. [People v. Benny
Go]
Warrantless Arrests
Q: Who can effect an arrest without a warrant?
A: A peace officer or even a private person, may effect an arrest without a warrant [Sec. 5, Rule
113, ROC]
Q: What is the presumption in arrests?

A: If the arrest is without warrant, it is presumed to be unreasonable. [Atty. G]
Q: When is an arrest without a warrant lawful?
A: Sec. 5, Rule 113:
a. When in his presence, the person to be arrested has committed, is actually

committing, or attempting to commit an offense; (in flagrante delicto)
b. When an offense has in fact been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it (hot pursuit); and
c. When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.
d. When the right is voluntarily waived.
Q: Is rebellion a continuing offense?

A: Yes. [Umil v. Ramos]
Q: What is the minimal requirement for the validity of warrantless arrest?

A: Probable cause. [Big Bernas, pg. 211]
Q: What is Probable cause?

A: A reasonable ground of suspicion supported by circumstances sufficiently strong in
themselves as to warrant a reasonable man in believing the accused to be guilty. [Big Bernas,
pg. 211]
SEC. 5 (a), Rule 113: IN FLAGRANTE DELICTO
Q: What are the elements of a valid In flagrante delicto arrest?

A:
1. The person to be arrested must execute and overt act indicating that he had just
committed, is actually committing, or is attempting to commit a crime; AND
2. Such an overt act was done in the presence or within the view of the arresting
officer. [George Antiquera v. People]
57
Q: What circumstances suffice as “In his presence” to effect warrantless arrest?
A: When a police officer sees the offense, although at a distance, or hears the disturbances
created thereby, and proceeds at once to the scene thereof, he may effect an arrest without
arrest. The offense is deemed committed in his presence of or within the view of the officer [Pp
v. Sucro].
Q: Is a warrant required in an arrest made for the crime of rebellion? (Warrantless arrest
vis-a-vis continuing offense)
A: No. Rebellion is a continuing offense. Therefore, a rebel may be arrested at any time, with or
without a warrant, as he is deemed to be in the act of committing the offense at any time of the
day or night. [Umil v. Ramos]
Q: Is a warrant required in an entrapment operation?

A: No. An arrest made after an entrapment operation does not require warrant of arrest; it is
reasonable and valid under Sec. 5(a), Rule 113.
Q: Are Buy-bust operations valid in flagrante arrest?

A: Yes. The subsequent search of the person arrested and of the premises within his immediate
control is valid as an incident to a lawful arrest [Pp v. Hindoy].
Q: What is a Buy-bust operation?

A: A form of entrapment. The method is for an officer to pose as a buyer. He, however, neither
instigates nor induces the accused to commit a crime because in these cases the “seller” has
already decided to commit a crime. Since the offense happens right before the eyes of the
officer, there is no need for a warrant wither for the seizure of the goods or for the apprehension
of the offender [Big Bernas, pg 209]
Q: Is “frame-up” a valid defense in a buy-bust operation?

A: Generally, NO. Like alibi, it is viewed with disfavor, as it can easily be concocted, and thus, in
the absence of proof of any ill motive on the part of the apprehending officers, this defense will
not prosper [Pp v. Young Fung Yuen]
Exception: To prove such defenses, the evidence must be clear and convincing.
Q: When is a buy-bust not proper?

A: Instead of arresting the suspect and taking him into custody after the sale in a buy-bust
operation, the officer returned to police headquarters and filed his report. It was only in the
evening of the same day that the police, without warrant, arrested the suspect at the latter’s
house where dried marijuana leaves were found [Pp v. Rodrigueza]
Court rulings summary on INVALID IN FLAGRANTE DELICTO
Molina (pg 163, Nachura); Pp v. Accused holding a bag on board a [vehicle] not to be said
Galvez; Pp v. Conde to be committing, attempting to commit or to have
committed a crime. His response “if possible, we will
settle this”, an equivocal statement, standing alone, is not
sufficient to constitute probable cause.
58
Sy Chua Prior knowledge for 2 years of the activities of the
accused; no reason why they could not have obtained
judicial warrant
People v. Enrile Mere discovery of marked money on the person of the

accused did not mean that he was caught in the act of
selling marijuana; the marked money was not prohibited
per se.
Additional notes on Arrest made for violations of RA 9165: (Just in case magdwell ang qs ni Sir
sa drugs)
Q: What is the statutory requirement in the successful prosecution of the illegal sale and
illegal possession of dangerous drugs? Effect of noncompliance?
A: Compliance with the requirements of Chain of Custody under Section 21 of RA 9165. Non
compliance is tantamount to failure to establish the identity of the corpus delicti.
(See enumeration nos. 1-3 of Sec. 21, RA 9165 for the chain of custody requirement)
Q: What is the importance of complying with the Chain of Custody requirement?

A: It ensures the integrity of confiscated, seized and/or surrendered drugs and/or drug
paraphernalia in 4 aspects:
1. The nature of the substances or items seized;
2. The quantity of the substances or items seized;
3. The relation of the substances or items seized to the incident allegedly causing their
seizure;
4. The relation of the substances or items seized to the person/s alleged to have been in
possession of or peddling them [Pp v. Dela Cruz].
Q: Requisites for a successful prosecution for the sale of illegal drugs after a buy-bust
operation:
A:
1. The fact that the poseur-buyer received the goods from the accused; and
2. The same was presented in court as evidence.
Q: Must there be a simultaneous exchange of marked money and the prohibited drug
between the poseur-buyer and the accused?
A: No.
Q: Should the officers only use marked money in buy-bust operations?

A: Not necessarily. The failure to use marked money or to present it in evidence is not material
since the sale cannot be essentially disproved by the absence thereof. [People v. Antinero]
SEC. 5 (b), Rule 113: HOT PURSUIT
Q: What are the requirements of a valid hot pursuit?

A:
1. An offense had just been committed
59
2. Person making the arrest has probable cause to believe, based on his personal
knowledge of facts and other circumstances that the person to be arrested had
committed it [Nachura, p. 165]
Note: There is immediacy; thus, an appreciable lapse of time between the arrest and the
commission of the crime mandates that a warrant of arrest must be secured
Q: What is “Personal knowledge”?

A: Experience of an officer which gives the idea that there is probable cause that the person
caught is responsible. It has been ruled that “personal knowledge of facts” in arrests without a
warrant must be based on probable cause, which means an actual belief or reasonable grounds
of suspicion [Cadua v. CA; UP 2020].
AA: Knowledge obtained through the five senses [Atty. G].
Q: Time element.
A: There must be a large measure of immediacy between the time the offense is committed and
the time of the arrest; that, if there was an appreciable lapse of time between the arrest and the
commission of the crime, a warrant of arrest must be secured. [Nachura]
Q: Important factor in hot pursuit.

A: continuity of pursuit. [Atty. G]
Q: What if the pursuing police is not the same police who had personal knowledge of the
crime?
A: It is alright even if the pursuing police is not the actual police who had personal knowledge of
the crime as long as he was able to monitor the criminal [Atty G.,refer to Pp v. Uyboco].
Court rulings summary on INVALID HOT PURSUIT
Pp v. Del Rosario The arrest came a day after the offense was committed
and thus, the offense had not been “just” committed.
Pp v. Kimura Warrantless arrest for selling marijuana 2 days after he

escaped is invalid
Pp v. Bansil No probable cause considering that the arresting team

was only armed with the knowledge of the suspect’s
“attire” which the prosecution witness admitted during trial
that he could not remember; the team did not have
physical description of the suspect nor his name; they
were only given a specific place to search.
Pp v. Burgos No personal knowledge when the identity of the accused

was merely furnished by an informant, or when the
location of the firearm was given by the wife.
60
Court rulings summary on VALID HOT PURSUIT (sufficient personal knowledge)
Pp. v. Gerente Warrantless arrest only 3 hours after the killing was held
valid since the personal knowledge was established as to
the fact of death and facts indicating that the accused
killed the victim.
Robin Padilla v. CA There was neither supervening event nor considerable

lapse of time between the hit-and-run and the
apprehension; the policeman saw the vehicles plate
number and the dented hood and railings thereof. These
formed part of the arresting officer’s personal knowledge
of the fact that Padilla’s vehicle was the one involved in
the incident.
Pestilos v. Generoso Police officers arrived at the scene of the crime less than
one (1) hour after the alleged mauling; they found Atty.
Generoso wounded; Atty Generoso identified the
petitioners as those responsible and when confronted by
the arresting officers, they did not deny their participation.
SEC. 5 (c), Rule 113: ESCAPING PRISONER
Q: Who can be arrested without a warrant under Sec. 5, Rule 113?

A: A prisoner who has escaped from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
Q: Is it necessary that he escaped from a detention facility?

A: NO. It is not required that he escaped from a detention facility, still within the ambit of the rule
even though likod balay or likod truck as long as the criminal is already arrested. [Atty. G]
Addt’l warrantless arrest: WHEN THE RIGHT IS VOLUNTARILY WAIVED
Q: When to challenge the validity of the arrest?

A: Before he enters his plea, otherwise the objection is deemed waived.
Q: When is the right voluntarily waived?

A: Appellant is estopped from questioning the illegality of his arrest when he voluntarily
submitted himself to the jurisdiction of the court by entering his plea [Pp v. Salvatierra].
Q: What is covered by the waiver?

A: The waiver is limited to the illegal arrest; it does not extend to the search made as an incident
thereto, or to the subsequent seizure of evidence allegedly found during the search. [PP v.
Peralta]
61
Q: Is posting a bail bond constitutes waiver of any irregularity attending the arrest?
A: No. Under Sec. 26, Rule 114, Revised Rules of Crim Procedure, an application for, or
admission to bail shall not bar the accused from challenging the validity of his arrest,
PROVIDED that he raises the challenge before entering his plea. (Although in some
jurisprudence [Nachura pg. 169] it constitutes waiver.)
Warrantless Searches
Q: What are the warrantless searches as per jurisprudence?

A: (WaSIVA MIPE)
1. Right is voluntarily waived (Consented search)
2. Stop-and-Frisk (Terry Searches)
3. Searches incidental to a lawful arrest
4. Search of vessels and aircraft
5. Search of moving vehicles
6. Inspection of buildings and other premises for the enforcement of fire, sanitary, and
building regulations
7. Plain View Doctrine
8. Emergency and Exigent Circumstances (some sources include this, other don’t)
VALID WAIVER
Q: Requisites of voluntary waiver.

A: (EKI)
1. It must appear that the right exists;
2. That the person involved has knowledge, either actual or constructive, of the existence
of such right;
3. That the said person had an actual intention to relinquish the right (voluntary) [De Garcia
v. Locsin, 65 Phil 689].
Q: Who has the burden of proving that there was a consent?

A: The State by clear and convincing evidence that the necessary consent was obtained and
that it was voluntarily and freely given. [Caballes v. CA]
Q: Some cases showing valid waiver:

A:
1. People v. Omaweng- the accused, driving a vehicle, was stopped at a checkpoint, and
when the vehicle was inspected, the soldiers asked permission to see the contents of a
bag which was partially covered by a spare tire. The accused consented, and upon
inspection, the bag was found to contain marijuana.
2. People v. Lacerna- the occupants of the taxicab readily consented when the policemen
sought permission to search the vehicle.
62
3. People v. Correa- where police officers, informed that the accused would deliver
marijuana, followed the accused, then later accosted him and accused did not protest,
the SC held that there was consent.
4. People v. Cuizon- the accused gave written consent for the NBI agents to search his
bag.
5. People v. Exala- the right was deemed waived because the accused did not object to
the admissibility of the evidence during trial, and the submissive stance after the
discovery of the bag and the absence of any protest which thus confirmed their
acquiescence.
6. People v. Ramos- the SC said that the evidence for the prosecution clearly disclosed
that Ramos voluntarily allowed himself to be frisked, and that he gave the gun voluntarily
to the police. Thus, there was deemed a valid waiver.
Q: Searches of passengers at airports.

A: Every ticket issued to a passenger by the airline or air carrier concerned shall contain among
others the following condition printed thereon: “Holder hereof and his hand-carried luggages are
subject to search for, and seizure of, prohibited materials or substances. Holders refusing to be
searched shall not be allowed to board the aircraft, which shall constitute a part of the contract
between the passenger and the air carrier. [Se. 9, R.A. 6235]
Q: Warrantless search at airports upon check-in of luggage.

A: When the accused checked in his luggage as a passenger of a place, he agreed to the
inspection of his luggage in accordance with customs laws and regulations, and thus waived
any objection to a warrantless search. [People v. Gatward]
Q: Is a strip search in the ladies’ room justified in view of warrantless search to a routine
airport search?
A: Yes. [People v. Canton]
NO WAIVER
Q: Is the silence of the accused a waiver?
A: No. The silence of the accused was not construed as consent; rather, a “demonstration of
regard for the supremacy of the law.” In this case, a warrantless search was declared invalid
because there was no showing of any circumstance which constitute probable cause for the
peace officers to search the carton. Neither did the police officers receive any information or tip-
off from an informer; nor did they contend that they detected the odor of dried marijuana.
[People v. Barros]
Q: Consent given under intimidation or coercive circumstance.

A: In Aniag v. COMELEC, the SC said that, in the face of 14 armed policemen conducting the
operation, driver Arellano, being alone and a mere employee of the petitioner, could not have
marshalled the strength and the courage to protest against the extensive search conducted on
the vehicle. “Consent” given under intimidating or coercive circumstances is not consent within
the purview of the constitutional guarantee.
63
Q: Waiver must be given by the person whose right is violated.

A: In People v. Damaso, PC officers sent to verify the presence of CPP/NPA members in
Dagupan City, reached a house suspected to be rented by a rebel. Outside the house, they saw
one Luz (helper of the accused). The PC officers told Luz that they already knew that she was a
member of the NPA, and requested that they be allowed to look around. Luz consented. Inside
the house, the team found subversive materials and firearms, which Luz identified as belonging
to the accused. The Court held that the constitutional right against unreasonable searches and
seizures, ebing a personal one, cannot be waived by anyone except the person whose rights
are invaded, or one who is authorized to do so in his behalf. Here, there was no evidence that
Luz was authorized to open the house of the accused in his absence. Accordingly, the search,
as well as the seizure, was declared illegal.
Q: A woman who identified as the wife of the accused consented and voluntarily
surrendered papers belonging to the registered but absent occupant of the hotel room
upon a warrantless search of the same. It turned out later that the woman was just a
“mere manicurist.” Is there a valid waiver?
A: Yes. [Lopez v. Commissioner of Customs]
Q: Deaf-mute accused.
A: Being the subject of the search, he himself should have given consent. Added to this is the
fact that the accused is a deaf-mute who could not understand what was happening at the
moment, there being no interpreter to assist him. His seeming acquiescence to the search
without warrant may be attributable to plain and simple confusion and ignorance. [People v.
Asis]
SCOPE OF THE WAIVER

Q: Scope of the waiver.
A: In Veroy v. Layague, it was held that where permission to enter residence is given to search
for rebels, it is illegal to search the rooms therein and seize firearms without search warrant.
STOP AND FRISK

Q: What are the requisites for a valid stop and frisk to be effected?
A: The following are the requisites in People v. Sy Chua:
1. Police officer should properly introduce himself and make initial inquiries
2. Approach and restrain a person who manifests unusual and suspicious conduct
3. In order to check the latter’s outer clothing for possibly concealed weapons
4. Genuine reason or reasonable belief (reasonable suspicion) in accordance with the
police officer’s experience and the surrounding circumstances to warrant the belief
INCIDENTAL TO LAWFUL ARREST
Q: What is the rule in a valid search incidental to a lawful arrest?
64
A: The arrest must precede the search, attended with probable cause. But a search
substantially contemporaneous with an arrest can precede the arrest if the police have probable
cause to make the arrest at the outset of the search. [People v. Nuevas]
Q: What is the purpose of search and seizure incidental to a lawful arrest?

A: It is to protect the arresting officer from being harmed by the person arrested who might be
armed with a concealed weapon and to prevent the latter from destroying the evidence within
reach. [PP v. Calantiao]
Q: What is the permissible area of search in a search incidental to lawful arrest?

A: 1) The person of the accused 2) Premises or surroundings under his immediate control.
[People v. Hindoy]
SEARCH OF VESSELS AND AIRCRAFT
Q: What is the rule in the search of Vessels and Aircrafts?
A:
1) If immobile – search warrant is required. [PP v. Macarios]
2) If moving such as a fishing vessel violating fishery laws – may be seized without a warrant
because they are equipped with motors that may allow them to escape and because the seizure
is incidental to a lawful arrest. [Roldan v. Arca]
3) Upon disembarkation, there is no urgency to effect a warrantless search. [People v.

Aminnudin]
SEARCH OF MOVING VEHICLES
Q: Can an officer in a checkpoint search conduct an extensive search?
A: Yes, if the officers had reasonable or probable cause to believe that the motorist is a law
offender or they will find an instrumentality or evidence pertaining to a crime. [Nachura, p. 180]
Authorities may conduct an extensive search of a vehicle only if the “officers conducting the
search have reasonable or probable cause to believe, before the search, that either the motorist
is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the
vehicle to be searched” such as when they receive confidential reports from a reliable source or
smell marijuana in the vehicle (Caballes v. Court of Appeals, G.R. No. 136292, 15 January
2002).
INSPECTION FOR THE ENFORCEMENT OF FIRE, SANITARY, AND BUILDING

REGULATIONS
Q: What is the basis for the inspection of buildings?

A: Police power of the State; this refers to a routine inspection which, however, must be
conducted during reasonable hours. [Nachura]
65
PLAIN VIEW SEARCH
Q: Application of the plain view doctrine.

A: The doctrine applies when the police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes upon an incriminating object. [PP v. Musa]
Q: What are the requisites in a plain view search?

A:
1. Prior valid intrusion based on the valid warrantless search in which the police are
legally present in the pursuit of their official duties
2. The evidence was inadvertently discovered by the police who have the right to be
where they are
3. The evidence must be immediately apparent (immediately apparent test; nexus exists
between the viewed object and criminal activity)
4. “Plain view” justified the seizure of evidence without any further search. [People v. Musa]
Q: Some cases in stop-and-frisk (Terry Searches)

A:
1. People vs. Cogaed - The balance lies in the concept of “suspiciousness” present in the
situation where the officer finds himself. Should be the officer’s personal knowledge.
2. Terry vs. Ohio - The policeman chanced upon the accused who had reddish eyes,
walking in a swaying manner, and who appeared to be high on drugs; thus the search.
3. People vs. Chua - SC said that for a stop-and-frisk these are some guidelines:
● Police officer should properly introduce himself and make initial inquiries
● Approach and restrain a person who manifests unusual and suspicious
conduct
● Check the other clothing for possibly concealed weapons
4. Malacat vs. CA - SC held that the stop-and-frisk conducted was not valid. There was no
valid search because there was nothing in the behavior or conduct of the petitioner
which could have elicited even mere suspicion other than that his eyes were moving
fast.
SEARCH AND SEIZURE UNDER EXIGENT AND EMERGENCY CIRCUMSTANCE
Q: What are some of the cases that fall under warrantless searches under exigent or
emergency circumstances?
A:
a) Warrantless searches at the height of coup d’etat [People c. De Garcia]
b) Conduct of “areal target zoning” or “saturation drives” as an exercise of the military
powers of the President [Guanzon v. De Villa]
EXCLUSIONARY RULE
66
Q: What is the Exclusionary Rule?
A: It states that the evidence obtained in violation of Sec. 2, Art. III, shall be inadmissible for
any purpose in any proceeding [Sec. 3 (2), Art. III], because “it is the fruit of the poisoned tree.”
Q: When are objections to the legality of the search warrant and to the admissibility of
the evidence deemed waived?
A: When there is failure of the accused to object to the admissibility of evidence obtained
through an unlawful arrest and search during the trial. [Demaisip v. CA]
Q: Can the properties illegally seized be returned immediately?

A: Not necessarily. It could remain in custodia legis. [Alih v. Castro] The illegally seized goods
can be returned unless the possession of such goods is prohibited by law. [Castro v. Judge
Pabalan]
Q: Who can order the retention or release of the illegally seized properties?
A: In the case of People v. Gesmundo, for the retention of the money, the approval of the Court
who issued the warrant is necessary; in like manner, only the Court which issued the warrant
may order its release.
TAKE NOTE:
● The property illegally seized may be used in evidence in the case filed against the
officer/s responsible in the illegal seizure. [Nachura, pg. 186]
● To come under the exclusionary rule, the evidence must be obtained by government
agents and not by private individuals acting on their own. [Bernas, pg.229]
● Violation of the Bill of Rights as constitutional guarantee can be done only by public
officials. Private violations are actionable under Article 32 of the Civil Code, even if the
violation does not have a constitutional consequence such as the violation of the
exclusionary rule. [Bernas, pg. 230]
● An application for bail or the admission to bail by an accused is not considered a waiver
of his right to assail the warrant issued for his arrest or the legalities or irregularities
thereof. [Sec. 26, Rule 114 of the Revised Rules in Criminal Procedure]
● There is voluntary waiver of his constitutional protection against illegal arrest and
searches if the accused voluntarily submits himself to the jurisdiction of the court.
● Any objection concerning the issuance or service of warrant or procedure in the
acquisition by the court of the jurisdiction over the person of the accused must be made
before he enters his plea, otherwise, the objection is deemed waived.
67
PRIVACY OF COMMUNICATIONS AND CORRESPONDENCE

A: Sec. 3, Art III - (1) The privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law. (2) Any evidence obtained in violation of the preceding section shall be
inadmissible for any purpose in any proceeding.
INVIOLABILITY
Q: What are the exceptions to the inviolability of this provision?

A:
1. Lawful order of the court
2. When public safety or order requires otherwise as prescribed by law [Section 3, Article
III].
SCOPE
Q: What forms of correspondence and communications are covered by this provision?

A: It covers letters, messages, telephone calls, telegrams, and the like. [Bernas Primer, pg. 59]
The guarantee covers both tangible and intangible objects; RA 4200 - Anti-Wire-Tapping Law.
[Nachura]
Q: What does this guarantee cover?

A: The guarantee includes within the mantle of its protection:
1. Tangible objects, as well as
2. Intangible objects [Nachura, read RA 4200 Anti Wire Tapping Act].
Q: Can a person, not authorized by all parties to a private communication, secretly

record it by means of tape recorder?
A: No. RA 4200 clearly and unequivocally makes it illegal for any person, not authorized by all
parties to any private communication, to secretly record such communications by means of tape
recorder. The law does not make any distinction [Ramirez v. Court of Appeals].
Q: Is a telephone extension among the devices covered by RA 4200?

A: No. It was held that a telephone extension was not among the devices covered by this law
[Gaanan v. IAC].
Q: Can a private person who wire-tapped liable under the Anti-Wiretapping Act?
A: Yes. [Atty. G]
68
Q: Is there a right of privacy of communications and correspondence between the

husband and wife?
A: Yes. [Zulueta v. CA] In this case, the wife went to the clinic of her husband and took
documents consisting of private communications between her husband and his alleged
paramour.
Q: Do the provisions under the Bill of Rights provide protection to citizens from private
individuals?
A: No. [Waterous Drug Corporation v. NLRC]
Q: What are the grounds that a court may allow intrusion?

A: The text does not give any ground. It is submitted that the requirement of probable cause in
the preceding section (Searches and Seizures) should be followed. [Bernas, pg. 219; Bernas
Primer, pg.60]
Q: Should the order also particularly describe the communication or correspondence

sought to be seized?
A: No, but the identity of the person/persons whose communication is to be intercepted, and the
identity of the offense/offenses sought to be prevented. [Bernas, pg 220; Bernas Primer, pg. 60]
Q: What are the requisites when intrusion is made without judicial order?
A: [Bernas Primer, pg. 60]
1. It should be based upon a government official’s assessment that public safety and
order demand such intrusion.
2. The public officer’s discretion must be exercised as prescribed by law.
3. The exercise of this power by an executive officer is subject to judicial review.
Q: What is the meaning of “public order and safety”?

A: The security of human lives, liberty and property against activities of invaders,
insurrectionists, and rebels. [Bernas, pg 220]
Q: What is the effect of violation of Secs. 2 and 3(1)?

A: Any evidence obtained in violation of the mentioned provisions shall be inadmissible for any
purpose in any proceeding. [Bernas]
Q: Some cases for Privacy of Communications and Correspondence

A:
1. Ramirez vs. CA: RA 4200 (Anti-Wiretapping Act) makes it illegal for any person, not
authorized by all the parties to any private communication, to secretly record such
communications by means of tape recorder.
2. Gaanan vs. IAC: Telephone extension was not among the devices covered by Anti-
Wiretapping Act.
3. Zulueta vs. CA: The right may be invoked against the wife who went to the clinic of her
husband and there took documents consisting of private communications between her
husband and his alleged paramour.
4. Waterous Drug Corp. vs. NLRC: The Bill of Rights does not protect citizens from
unreasonable searches and seizures made by private individuals.
5. In Re: Wenceslao Laureta: Letters addressed to individual Justices of the SC in the
performance of their judicial functions, become part of the judicial record and are a
69
matter of concern for the entire Court - thus, are not covered by the constitutional
guarantee.
6. People vs. Albofera: A letter written by the accused during the trial is admissible in
evidence. It was not a result of an unlawful search, nor through an unwarranted intrusion
into the privacy of the accused.
NOTES:
● Check Anti-Money Laundering Act
Q: Can the Ombudsman investigate a bank account ?

A: There should be a lawful order from the court. [Atty. G.; Marquez vs. Ombudsman (?)]
EXCLUSIONARY RULE
Q: Can the defense be asserted by a third person?
A: No, the defense is purely personal. [Bernas]
Q: What is the exclusionary rule as regards privacy of communications and

correspondence?
A: [Sec. 3, Art 3] Any evidence obtained in violation of this or preceding section shall be
inadmissible for any purpose in any proceeding.
Q: Are letters addressed by a lawyer (of one of the parties to a case) addressed to
individual Justices of the Supreme Court in connection with the performance of their
judicial functions, covered by the right to privacy of communications and
correspondence?
A: No. They become part of the judicial record and are a matter of concern for the entire Court
--- and thus, are not covered by the constitutional guarantee [In Re: Wenceslao Laureta].
Q: Is a letter written by the accused to a witness which was produced by the witness
during trial admissible evidence?
A: Yes, it was not the result of an unlawful search, nor through an unwarranted intrusion or
invasion into the privacy of the accused. It was produced by the recipient of the letter who
identified the same. Besides, there is nothing self-incriminatory in the letter [People v. Albofera
(1987)].
FREEDOM OF EXPRESSION

A: Sec. 4, Art. III: No law shall be passed abridging the freedom of speech, of expression or of
the press, or the right of the people peaceably to assemble and petition the government for
redress of grievances.
70
SCOPE
Q: What do “speech”, “expression,” and “press” include?

A: It includes every form of expression, whether oral or written, tape or disc recorded. It also
includes movies, as well as symbolic speech (ex. Wearing an armband as sign of protest), and
peaceful picketing. [Bernas Primer, pg. 62] All modes of expression are embraced in the
guaranty. [Nachura]
ASPECTS OF FREEDOM OF EXPRESSION
1. Freedom from Censorship or Prior Restraint
Q: What is the first prohibition of the free speech and press clause?
A: Prohibition on prior restraint. [Bernas]
Q: What is prior restraint?

A: Prior restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination. [Bernas Primer, pg. 63]
Q: What are examples of prior restraint?

A:
1. A system of licensing administered by an executive officer.
2. Movie Censorship
3. An injunction against publication (a type of judicial prior restraint)
4. License tax or License Fees
Q: Some Cases of Prior Restraint

A:
1. The search, padlocking and sealing of offices of Metropolitan Mail and We Forum
resulting in discontinuance of publication. [Burgos vs. Chief of Staff]
2. The arbitrary closure of radio stations was held violative of freedom of expression.
[Eastern Broadcasting vs. Dans]
3. The Comelec prohibition against the use of taped jingles in the mobile units used in the
campaign was held to be unconstitutional, as it was in a nature of censorship. [Mutuc vs.
Comelec]
Q: When the “Hello Garci” Tapes were released, DOJ Gonzales warned all those who are
possessing and are planning to air the said tapes that they will be liable for violating the
Anti-Wiretapping Act. WON the restraint was constitutional?
A: NO. The restraint is content-based, hence it needs to pass the Clear and Present Danger
Rule even if it is broadcast media. It did not pass the test because there is no showing that the
feared violation of the anti-wiretapping law clearly endangers national security. (Chavez vs.
Gonzales, G.R. No. 168338)
Q:A docu-drama was proposed to be made by a foreign company. It will be an re-

enactment of what transpired during the EDSA Revolution. Enrile protested and stated
that he will not approve the use of his name or any of his family members. The
filmmakers agreed, thus removing Enrile from the script. But later on, Enrile filed a TRO
in order to stop the filming. WON the restraint was valid?
71
A: NO. Motion pictures are mediums for the communication of ideas and the expression of
artistic impulse. Here, the SC conducted the Balancing of Interest Test. The right to privacy of
Enrile vs. the right to freedom of expression of Ayer. The SC favored Ayer. It held that there is
no intrusion with the privacy of Enrile. He is expected to have lesser privacy because he is a
public figure. (Ayer Productions vs. Capulong and Enrile, G.R. No. L-82380, 1988)
Q: Is the prohibition of prior restraint absolute?

A: No. Although prior restraint bears a heavy presumption against constitutionality. {Bernas
Primer, pg. 63]
Q: What are the two regulations for freedom of speech?

A: Content-based regulation and content-neutral regulation. [Nachura]
Q: What is a content-based regulation?

A: The speech is subjected to clear and present danger rule. Under this rule, the evil
consequences sought to be prevented must be substantive, extremely serious and the degree
of imminence is high. There is a presumption of unconstitutionality.[Nachura]
Q: What is a content-neutral regulation?

A: Merely concerned with the incidents of the speech, or one that merely controls the time,
place, or manner, and under well-defined standards. [Newsounds Broadcasting v. Dy]
Q: What is commercial speech?

A: It is communication which “no more than proposes a commercial transaction”. Ex.
Advertisement of goods and services. [Bernas Primer, pg. 68]
Q: How can commercial speech be enjoyed?

A: The commercial speech must not be false or misleading and should not propose illegal
transactions. [Bernas Primer, pg. 68]
Q: What must be shown in order for the government to curtail commercial speech?
A: Even truthful and legal commercial speech may be regulated if:
1. The government has a substantial interest to protect;
2. The regulation advances that interest
3. It is not more extensive than is necessary to protect that interest. [Bernas Primer, pg.
68]
Q: Does the COMELEC’s power to regulate time in broadcast media and space in the
papers violate freedom of expression?
A: No. [UNIDO v. COMELEC] The objective of the prohibition was the equalizing, as far as
practicable, of the situation of rich and poor candidates by preventing the former from enjoying
undue advantage offered by huge campaign “war chests”. [National Press Club v. COMELEC]
Q: Is the prohibition on posting of decals and stickers of candidates on mobile places

(public and private) valid?
A: No; it is infringing on freedom of speech. The prohibited acts were found to present no
substantial danger to government interest. Also, since the prohibition covers private properties,
it suffers overbreadth. [Adiong v. COMELEC]
Q: Is the conduct of exit polls valid?
72
A: Yes. [ABS-CBN v. COMELEC]
Q: How can movie censorship escape unconstitutionality?

A: Through procedural due process. [Freedman v. Maryland]
Q: Is the Freedman Doctrine entirely exercised here in PH?

A: No, because of the presence of MTRCB, which classifies movies and TV shows. [Atty. G]
Q: Are religious programs subject to prior review?

A: Yes; despite the fact that the freedom of religion has been accorded a preferred status, still
this Court did not exempt INC’s religious program from MTRCB’s review power. [MTRCB v.
ABS-CBN]
2. Freedom from subsequent punishment
Q: What does freedom from subsequent punishment protect?

A: Without this assurance, people will hesitate to speak for the fear that he might be held
accountable for his speech. [Nachura]
Q: Is this freedom absolute?

A: No, the State may validly impose penal and/or administrative sanctions on the following:
1. Libel
2. Obscenity
3. Criticism of official conduct
Q: What is Libel?
A: It is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or
any act, omission, condition, status, or circumstance tending to cause dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead. [Art.
353, RPC]
Q: What is the presumption in Libel?

A: Every defamatory imputation is malicious, EXCEPT on the following:
1. A private communication made by any person to another in the performance of any
legal, moral or social duty.
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not confidential in nature, or of
any statement, report or speech delivered in said proceedings, or of any act performed
by public officers in the exercise of their functions. [Art 353, RPC]
Q: Some cases in Libel

A:
1. Baguio Midland Courier vs. CA: The public has a right to be informed on the mental,
moral, and physical fitness of candidates for public office. However, the rule only applies
to fair comment on matters of public interest.
a. Fair comment - that which is true, or if false, expresses the real opinion of the
author based upon reasonable degree of care and on reasonable grounds.
2. Jose Jesus Disini vs. Sec. of Justice: The constitutional guarantee against prior restraint
and subsequent punishment, the jurisprudential requirement of “actual malice”, and the
legal protection afforded by “privileged communications” all ensure that protected
73
speech remains guarded. As long as the expression or speech falls within the protected
sphere, the courts have the duty to ensure that the rights of the people are protected.
Q: What is Obscenity?
A: There is no perfect definition of obscenity, but Miller vs. California established basic
guidelines:
1. Whether the average person, applying contemporary standards, would find the work,
taken as a whole, appeals to the prurient interest;
a. Prurient Interest - an appeal to a morbid, degrading and unhealthy interest in sex,
as distinguished from a mere candid interest in sex.
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined in the applicable state law;
3. Whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific value.
Q: Who determines what is obscene?

A: The determination of what is obscene is a judicial function. [Pita vs. CA; Nachura, pg. 197]
Q: What is the standard employed in determining obscenity?

A: The standard to be employed in judging the harmful effects of the statements would be
those for the average child, not those for the adult. [Nachura, pg. 197]
Q: The accused exhibited for a fee nude paintings and pictures. May he be convicted for
doing so?
A: Yes. His purpose was commercial (because he had charged admission fees to the
exhibition), not merely artistic. [People v. Go Pin]
Q: “Ang Dating Daan” show was suspended because of the vulgar language of the
petitioner on the show. Is the suspension lawful?
A: Yes. The suspension did not constitute prior restraint, but partook the nature of subsequent
punishment for petitioner's statements which were contextually violative of the program’s G
rating that should be suitable for all ages, including children. [Soriano v. Laguardia]
3. Criticism of official conduct
Q: What is the rule on criticism of official conduct?

A: The individual is given the widest latitude in criticism of official conduct. The SC compared
the criticism to “scalpel that relieves the abscesses of officialdom”. [US vs. Bustos]
Q: Some cases on Criticism of Official Conduct

A:
1. People vs. Alarcon: Newspaper publications tending to impede, obstruct, embarrass, or
influence the courts in administering justice in a pending suit constitutes criminal
contempt.
2. In Re: Atty. Emiliano P. Jurado, Jr. : A publication tending to impede, obstruct,
embarrass, or influence the court and constitutes a clear and present danger to
administration of justice is not protected by the guarantee of press freedom. It is enough
that it tends to obstruct justice.
3. In Re: Column of Ramon Tulfo: Freedom of the press is subordinate to the decision,
authority, integrity, and independence of the judiciary and the proper administration of
justice.
74
4. Cagas vss. Comelec: In any event, messages addressed to the members of the Court,
regardless of media or intermediary, in connection with the performance of their judicial
functions, become part of the judicial record and are the matter of concern of the entire
Court.
4. Right of students to free speech in school premises is not absolute.
Q: Can a student be suspended or expelled based on his/her written articles?

A: The Campus Journalism Act provides that a student shall not be expelled or suspended
solely based on the articles she has written, except when such articles materially disrupts class
work or involves substantial disorder or invasion of rights of others. [Miriam College Foundation
vs. CA; Nachura, pg. 200]
TESTS OF VALID GOVERNMENT INTERFERENCE
Q: What are the tests of valid governmental interference?

A:
1. Clear and Present Danger Rule
2. Dangerous Tendency Rule
3. Balancing of Interests Rule
Q: What is the Clear and Present Danger Rule?

A: It tests whether the words are used in such circumstances and of such nature as to create a
clear and present danger that they will bring substantive evils that the State has the right
to prevent. The danger created must not only be clear and present but also traceable to the
ideas expressed.
Q: What is “substantive evil”?

A: The substantive evil must be extremely serious and the degree of imminence extremely
high before utterances can be punished. It consists not only of the obstruction of a free and fair
hearing of a particular case but also the broader evil of the degradation of the judicial system.
Q: What does “clear” mean?

A: It seems to point to a causal connection with the danger of the substantive evil arising from
the utterance questioned.
Q: What does “present” mean?

A: It refers to the time element, identified with imminent and immediate danger.
Q: What is the Dangerous Tendency Rule?

A: It tests whether the words uttered create a dangerous tendency of an evil which the State
has the right to prevent, then such words are punishable. It is sufficient if the natural
tendency and the probable effect of the utterance were to bring about the substantive
evil that the legislative seeks to prevent.
Q: What is the Balancing Interest Test?

A: When a particular conduct is regulated in the interest of public order, and the regulation
results in an indirect, conditional, or partial abridgement of speech, the duty of the courts is to
determine which of the two interests demands the greater protection under the given
circumstances.
75
ASSEMBLY AND PETITION
Q: Is the right to assemble subject to prior restraint?

A: It is not subject to prior restraint and may not be conditioned upon the prior issuance of a
permit or authorization from government authorities. However, it must be exercised in a way
that will not prejudice the public welfare.
Q: Is a permit necessary for an assembly in a public place?

A: Yes, but the permit is for the use of the public place and not for the assembly itself. [Primicias
vs. Fugoso; Reyes vs. Bagatsing]
Q: What is the test used to determine whether to give a permit or not?

A: Clear and Present Danger test.
Q: Some cases in Assembly and Petition

A:
BP 880 (Public Assembly Act) A permit to hold a public assembly is not

necessary where the meeting is to be held in
a private place, in the campus of a gov’t
owned or operated educational institution, or
in a freedom park.
If a permit is required: written application filed

in the Mayor’s office at least five days before
the meeting and shall be acted upon by two
days. The Mayor is required to hear the
applicants.
If no action from the Mayor, the permit is

deemed approved. [Atty. G]
Denial is justified only upon clear and

convincing evidence that the public assembly
will create a clear and present danger to
public safety, order, etc.
Bayan vs. Ermita BP 880 is constitutional because it is not an

absolute ban on public assemblies but a
restriction that regulates the time, place, and
manner of assemblies.
Osmena vs. COMELEC The BP 880 is constitutional.
See Nachura, pg. 202 kay super lawig
Subayco vs. Sandiganbayan The Court bewailed the use of bullets to

break up the assembly petitioning for redress
76
of grievances regarding the Escalante
massacre.
Bangalisan vs. CA The suspension/dismissal of the public school

teachers, who staged a strike was held valid.
They were not punished for the exercise of
the right to peaceful assembly and petition,
but because of their unauthorized absences
which adversely affected the students.
GSIS vs. Kapisanan ng mga Manggagawa sa Employees in the public service may not
GSIS engage in strikes or in concerted,
unauthorized stoppage of work. The rights of
the government employees are limited to the
formation of unions or associations, without
the right to strike.
Malabanan vs. Ramento; Villar vs. TIP; Non The students did not shed their constitutional
vs. Dames right to free speech in school premises with
regards to student rallies and demonstrations
PBM Employees Assoc. vs. PBM Steel Mills The right to free assembly prevails over
economic rights.
De la Cruz vs. CA The education of the youth occupies a

preferred position over - at the very least,
equated with - the freedom of assembly and
petition.
FREEDOM OF RELIGION
Q: Legal basis.
A: No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without
77
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights [Section 5, Article III].
Q: What are the two guarantees contained in Section 5?

A:
1. Non-establishment Clause;
2. Freedom of Religious Profession and Worship [Nachura].
NON-ESTABLISHMENT CLAUSE
Q: What are the constitutional provisions which support the non-establishment clause?
A:
1. It reinforces Section 6, Article II on the separation of Church and State.
2. Section 2(5), Article IX-C, a religious sect or denomination cannot be registered as a
political party.
3. Section 5(2), Article VI, no sectoral representative from the religious sector.
4. Section 29(2), Article VI, prohibition against the use of public money or property for the
benefit of any religion, or of any priest, minister, or ecclesiastic [Nachura].
EXCEPTIONS
Q: What are the exceptions?

A:
1. Section 28, Article VI, exemption from taxation of properties actually, directly, and
exclusively used for religious purposes;
2. Section 4(2), Article XIV, citizenship requirement of ownership of educational institutions,
except those established by religious groups and mission boards;
3. Section 3(3), Article XIV, optional religious instruction in public elementary and high
schools: at the option expressed in writing by the parents or guardians, religious
instruction taught within regular class hours by instructors designated or approved by the
religious authorities of the religion to which the children or wards belong, without
additional cost to the Government;
4. Section 29(2), Article VI, appropriation allowed where the minister or ecclesiastic is
employed in the armed forces, in a penal institution, or in a government-owned
orphanage or leprosarium [Nachura].
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SCOPE
Q: What is the meaning of the non-establishment clause?

A: It means that the State:
1. cannot set up a church,
2. nor pass laws which aid one religion, aid all religion, or prefer one religion over another,
3. nor force nor influence a person to go to or remain away from a church against his will or
force him to profess a belief or disbelief in any religion, etc [Everson v. Board of
Education].
Q: Is the recitation of a prayer composed by the Board of Regents by the student in

public schools in New York constitutional?
A: No. It was held unconstitutional in the “School Prayer Case” [Engel v. Vitale, 370 US 421].
Q: Does the State recognize the validity of marriages performed in conformity with the
rites of the Mohammedan religion?
A: Yes. In line with the constitutional principle of “equal treatment of all religions”, the State
recognizes their validity [Adong v. Cheong Seng Gee].
Q: Do laws that punish blasphemy or acts notoriously offensive to the feelings of the
faithful in a place devoted to religious worship or during the celebration of a religious
ceremony such as Article 133 of the RPC violate the freedom of religion?
A: No. Laws, such as Article 133 of the RPC, which punish blasphemy or acts notoriously
offensive to the feelings of the faithful in a place devoted to religious worship or during the
celebration of a religious ceremony, do not violate the freedom of religion [Nachura, p. 205].
Q: Is exlusive power of the Office of Muslim Affairs (OMA) to classify food products as
halal an enchoachment on the religious freedom of Muslim organizations?
A: Yes. Classifying food products as halal is a religious function because the standards used
are drawn from the Qu’ran and Islamic Beliefs. By giving the OMA the exclusive power to
classify food products as halal, EO 46 encroached in the religious freedom of Muslim
organizations to interpret for Filipino Muslims what food products are for for Muslim
79
consumption. Also, by arrogating to itself the task of issuing halal certifications, the State has, in
effect, forced Muslims to accept its own interpretation of the Qu’ran and Sunnah on halal food
[Islamic Da’wah Council of the Philippines v. Office of the Executive Secretary].
Q: Can the Court try a religious dispute?

A: No. Where a civil right depends upon some matter pertaining to ecclesiastical affairs, the civil
tribunal tries the civil right and nothing more [Gonzales v. Archbishop]. Where the dispute
involves the property rights of the religious group, or the relations of the members where
property rights are involved, the civil courts may assume jurisdiction [Fonacier v. CA].
Q: Is holding masses in the Quezon City Hall of Justice violative of the non-
establishment clause?
A: No, it does not violate the non-establishment clause. Allowing citizens to practice their
religion is not equivalent to a fusion of the Church and State. It is only an “accommodation”,
which is allowed by the Constitution. (In Re: Tony Valencio, A.M. No. 10-4-19-SC, 2017)
Q: What is ecclasiastical affair?

A: “One that concerns doctrine, creed or form of worship of the church, or the adoption and
enforcement within a religious association of needful laws and regulations for the government of
the membership, and the power excluding from such associations those deemed unworthy of
such membership” [Black’s Law Dictionary, 5th ed. (1979), p.460]. It involves the relationship
between the church and its members and relates to matters of faith, religious doctrines, worship
and governance of the congregation [Austria v. NLRC, Nachura p. 206].
Q: What are examples of ecclesiastical affairs which the State cannot meddle?
A:
1. Excommunication,
2. Ordination of religious ministers, and
3. Other activities to which are attached religious significance [Austria v. NLRC, Nachura
p. 206].
Q: Can the Court try a case concerning the dismissal of petitioner, a minister, for
misappropriation of denominational funds, willful breach of trust, serious misconduct
and gross and habitual neglect of duties?
80
A: Yes. In this case, what is involved is the relationship of the church as an employer and the
minister as an employee. It is purely secular and has no relation whatsoever with the practice of
faith, worship or doctrine of the church [Austria v. NLRC, Nachura p. 206].
Q: Can the Court try a case regarding the expulsion or excommunication of members or
a religious institution or organizations?
A: No. The SC held that the expulsion or excommunication of members or a religious institution
or organizations is a matter best left to the discretion of the officials, and the laws and canons of
such institution or organization. It is not for the Court to exercise control over church authorities
in the performance of their discretionary and official function. Rather, it is for the members of
religious institutions or organizations to conform to just church regulations [Taruc v. Bishop
Porfiro de la Cruz].
FREE EXERCISE CLAUSE
ASPECTS
Q: Aspects of Freedom of Religious Profession and Worship?

A:
1. Right to believe - which is absolute.
2. Right to act according to one’s beliefs - which is subject to regulation [Nachura].
Q: Can public school students refuse to salute the Philippine flag on account of their
religious scruples?
A: Yes [Ebralinag v. Division Superintendent of Schools of Cebu].
Q: Is RA 3350, which exempts members of a religious sect from being compelled to join a
labor union, even when there is an existing collective bargaining agreement with a
closed shop or union shop clause, valid?
A: Yes [Victoriano v. Elizalde Rope Workers Union].
Q: Is the right to proselytize part of religious freedom?

A: Yes [American Bible Society v. City of Manila].
81
Q: Is a City Ordinance that imposes license fees on the sale of merchandise to the sale of
religious tracts valid?
A: No [American Bible Society v. City of Manila].
Q: Does the free exercise of religious profession and worship carry with it the right to
disseminate religious information?
A: Yes, the free exercise of religious profession and worship carry with it the right to disseminate
religious information, and any restraint of such right can only be justified on the ground that
there is clear and present danger of an evil which the State has the right to prevent [Iglesia ni
Cristo v. CA]. However, in the case when petitioners who were marching along Mendiola St., in
the direction of the Malacanang, when stopped, claimed they were on their way to St. Jude
Church to attend a religious service, the SC made a finding that the petitioners were not sincere
in their profession of religious liberty and were merely using the same in order to openly express
their opposition to the government [German v. Barangan].
Q: Can the exercise of religious beliefs and profession take precedence over the right
and duty of the State as parens patriae?
A: No. In the matter of the suspension of the TV program, “Ang Dating Daan”, the SC said that
the exercise of religious beliefs and profession take precedence over the right and duty of the
State as parens patriae [Soriano v. Laguardia].
BENEVOLENT NEUTRALITY
Q: What is Benevolent Neutrality?

A: Benevolent neutrality recognizes that the government must pursue its secular goals and
interest, but at the same time, strive to uphold religious liberty to the greatest extent possible
within flexible constitutional limits. Thus, although the morality contemplated by laws is secular,
benevolent neutrality could allow for accomodation of morality based on religion, provided it
does not offend compelling state interest [Estrada v. Escritor].
Q: Why did the Court use benevolent neutrality in the case of Estrada v. Escritor?
A:
1. No compelling state interest
2. No case for adultery filed
3. Sincerity of the respondent’s in her religious belief [Atty. G]
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COMPELLING STATE INTEREST TEST
Q: What is the compelling state interest test?

A:
1. The first inquiry is whether the respondent's right to religious freedom has been
burdened.
2. The second step is to ascertain the respondent's sincerity in her religious beliefs
[Estrada v. Escritor].
LEMON TEST
Q: What is the Lemon Test?

A: The regulation is constitutional when:
1. It has a secular legislative purpose;
2. It neither advances nor inhibits religion; and
3. It does not foster an excessive entanglement with religion [Lemon v. Kurtzman].
Q: Does the order of the COMELEC to remove a tarpaulin of the church violate freedom
of religion when the tarpaulin, on its face, does not convey any religious doctrine of the
Catholic Churchs?
A: The order is valid. The enumeration of candidates on the face of the tarpaulin precludes any
doubt as to its nature as speech with political consequences and not religious speech [Diocese
of Bacolod vs. COMELEC].
Q: Does State regulations imposed on solicitations for religious purposes constitute an

abridgement of freedom of religion?
A: No. State regulations imposed on solicitations for religious purposes do not constitute an
abridgement of freedom of religion [Centeno v. Villalon].
Q: Are solicitations for religious purposes covered by PD 1564 (Solicitation Permit

Law)?
83
A: No. It does not require prior permit for DSWD when the solicitations are intended for
“charitable or public welfare purposes”. It is not within the coverage of PD 1564
[Centeno v. Villalon].
Q: Is RA 7716, insofar as the sale of religious articles, as well as their printing and
publication, is subject to VAT, unconstitutional?
A: It is constitutional [Nachura].
Q: Does the free exercise clause prohibit imposing a generally acceptable sales and use
tax on the sale of religious materials by religious organizations?
A: No [Tolentino v. Secretary of Finance].
THE RH LAW CONTROVERSY
Q: Does the State-sponsored procurement of contraceptives violate religious freedom?

A: No. The State may pursue its legitimate secular objectives without being dictated upon by
one religion. To allow religious sects to dictate policy or restrict other groups would violate the
non-establishment clause. This would cause the State to adhere to a particular religion, and
thus, amount to the establishment of a state religion. The State can, therefore, enhance its
population control program through the RH Law even if the promotion of contraceptive use is
contrary to the religious beliefs of petitioners [Imbong v. Ochoa].
Q: Are Sections 7, 23, and 24 of the RH Law, which compels a hospital or medical
practitioner to immediately refer a person seeking health care and services under the law
to another accessible health care provider despite their conscientious objections based
on religious or ethical beliefs, valid?
A: No, they violate religious belief and conviction of a conscientious objector [Imbong v. Ochoa].
Q: Is the exclusion of public health officers from being conscientious objectors, under
Section 5.24 of the IRR, violative of the equal protection clause?
A: Yes. There is no perceptible distinction between public health officers and their private
counterparts. Furthermore, the freedom to believe is intrinsic in every individual, and the
protection of this freedom remains even if he is employed in the government [Imbong v. Ochoa].
84
Q: Is Section 15, which requires would-be spouses to attend a seminar on parenthood,
family planning, breastfeeding and infant nutrition as a condition for the issuance of a
marriage license valid?
A: Yes, it is a reasonable exercise of police power. It does not violate religious freedom [Imbong
v. Ochoa, Nachura p. 211].
LIBERTY OF ABODE AND TRAVEL
Q: What is freedom of Movement?

A: It is the right to travel and the liberty of abode.
Q: What rights are protected by Section 6?

A:The right to choose a person's abode and the right to travel both at home and going out of the
country.
Q:How are these rights limited?

A:The liberty of abode may be limited only upon lawful order of the court whereas the right
to travel may be limited by administrative authorities as may be provided by law in the
interest of national security, public safety or public health.
Q: What is the limitation on Liberty of Abode?

A: Lawful order of the court.
Q: Exception; Without court order

A: [Kalipunan ng Damayang Mahihirap v. Robredo]
1. persons or entities occupy danger areas such as esteros, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways, and other public places such as sidewalks,
roads, parks, and playgrounds; and
2. persons or entities occupy areas where government infrastructure projects with available
funding are about to be implemented.
Q:What are the limitations on the Right to Travel?

A: If it concerns the interest of national security, public safety or public health, as may be
provided by law
Q: As may be provided by “Laws”; Examples

A:
1. Human Security Act (RA 9372)
2. Philippine Passport Act (RA 8239)
85
3. Bayanihan to Heal as One Act
4. Anti-trafficking of Persons Act of 2003
5. Law on Reporting of Communicable Disease
6. Migrant Workers Act (RA 8042 amended by RA 10022)
7. VAWC - TPOs, BPOs or PPOs
8. Inter-Country Adoption Act of 1995
Q: Reason why the court could restrict the right to travel of a person with a pending case
before it?
A: To effectively implement court’s jurisdiction.
Q:Is the deportation of some 170 women of ill repute to Davao on orders of the Mayor of
Manila unlawful?
A: Yes. [Villavicencio v. Lukban]
Q:Does a maid have a right to transfer to another residence even if she had not yet paid
the amount advanced for her transportation from the province?
A:Yes. Also, the employment agency was effectively detaining her because of the moral duress
exerted on her. [Caunca v. Salazar]
Q:Can the members of certain non-Christian tribes be required to reside only within a
reservation?
A:Yes. This restriction was intended to promote their better education, advancement and
protection. [Rubi v. Provincial Board of Mindoro]
Q: Can the Secretary of Labor temporarily suspend the deployment of female domestic
helpers abroad?
A: Yes, in view of the need to extend protection to those who were most prone to exploitation
and abuse by their foreign employers. [PH Assoc. Of Service Exporters v. Drilon]
Q: Can the Marcoses be refused to return to the Philippines?

A: Yes, on the ground that it would endanger national security. [Marcos v. Manglapus]
Q: Is the constitutional guarantee of the right to travel absolute?

A: No. [Office of the Court Administrator v. Judge Ignacio Macarine]
Q: Can the court validly refuse to grant the accused permission to travel abroad, even if
the accused is out on bail?
A: Yes. [Manotoc v. CA]
Q: Is the holding of the accused in a criminal case within the reach of the courts by
preventing his departure from the PH a valid restriction on the right to travel?
A: Yes, so that he may be dealt with in accordance with the law.
86
Q: What are the principles in the case of Defensor-Santiago v. Vasquez?

A:
1. The hold-departure order is but an exercise of the respondent court’s inherent power to
preserve and maintain the effectiveness of the jurisdiction over the case and over the
person of the accused;
2. By posting bail, the accused holds herself amenable at all times to the orders and
processes of the court, thus, she may be legally prohibited from leaving the country
during the pendency of the case;
3. Parties with pending cases should apply for permission to leave the country.
RIGHT TO INFORMATION
Q: What is the legal basis?

A: Sec. 7, Art. III: The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official acts,
transactions or decisions, as well as to government research data used as basis for policy
development shall be afforded to citizens.
Q: Twin provision
A: Article 2, Section 28 (Duty of government to provide the public information)
Q: What are the rights guaranteed by Sec. 7?

A:
1. Right to information on matters of public concern
2. Corollary right of access to official records and documents [Bernas Primer]
Note: These are political rights available to citizens only.
Note: Though not absolute, it was implemented by PDuts through EO 2 Series of 2016.
Considering that it is an Executive Order, it only covers the Executive Department.
Exceptions:
1. Information covered by Executive Privilege
2. Privileged information relation to national security, defense or international relations
3. Information concerning law enforcement and protection of public and personal safety
4. Information deemed confidential for the protection of the privacy of persons and certain
individuals such as minors, victims of crimes, or the accused;
5. [to be continued]
Q: What is “public concern”?
87
A: No exact definition and adjudicated by the courts on a case-by-case basis, but examples
abound in jurisprudence (e.g. peace negotiations, board exams, PCGG compromise agreement,
civil service matters) [UP 2020 pg. 158]
“Public concern” like “public interest” embraces a broad spectrum of subjects which the public
may want to know, either because these directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary citizen. [Legazpi v. CSC, G.R. L-72119]
Q: What are matters of public concern under Section 7?

A:
1. Official records
2. Documents pertaining to official acts, transactions or decisions
3. Government research data used as basis for policy development
Q: What are matters of public concern found in jurisprudence?

A:
● Loanable funds of GSIS (Valmonte v. Belmonte)
● Civil Service eligibility of sanitarian employees (Legazpi v. CSC)
● Appointments made to public officers and the utilization of public property (Gonzales v.
Narvasa)
● National board examinations such as the CPA Board Exams (Antolin v. Domondon)
● Names of nominees of partylists (Bantay Republic v. COMELEC)
● Negotiations leading to the consummation of the transaction (Chavez v. Pea and Amari)
Q: What is the scope of the right to information?

A: The right to information contemplates inclusion of negotiations leading to the consummation
of the transaction. [Chavez v. PEA]
Q: Is the right to information absolute?

A: No. Exempted information are:
1. Privileged information rooted in separation of powers,
2. Information on military and diplomatic secrets
3. Information affecting national security
4. Information on investigations of crimes by law enforcement agencies [Nos. 1-4: Chavez
v. PEA]
5. Trade secrets and banking transactions [Chavez v. PCGG, 1998]
6. Offers exchanged during diplomatic negotiations [Akbayan v. Aquino]
7. Other confidential matters (i.e. RA 6713, closed door Cabinet meetings, executive
sessions, or internal deliberations in the SC) [Chavez v. PCGG]
Q: What are the twin provisions of the Constitution that seek to promote transparency in
policy-making and in the operation of the government, as well as to provide the people
sufficient information?
88
A: Section 7, Art. III (duty to permit access to information on matters of public concerns) and
Section 28, Art. II (duty of “full public disclosure” of all transactions involving public interest).
[Nachura, pg. 214]
Q: Difference between Art. 7, Art. 3 and Sec. 28, Art 2?

A: [IDEALS v. PSALM]
Sec 7, Art III Sec. 28, Art. II

(Duty to permit access to information (Duty of full public disclosure
on matters of public concern) of all transactions involving
public interest)
Manner of acquiring Requires demand or request for one The disclosure of information
info to gain access to documents and is mandatory
papers of the agency
Matters covered Broader scope; embraces any matter Covers only transactions
contained in official communications of involving public interest
the particular agency.
Q: Can government agencies deny access to information of public concern?

A: No. While the manner of examining public records may be subject to reasonable regulation
by the government agency in custody thereof, the duty to disclose the information of public
concern, and to afford access to public records, cannot be discretionary on the part of said
agencies [Legaspi v. CSC].
Q: What is the remedy if a government agency denies access to info?

A: The constitutional duty, not being discretionary, its performance may be compelled by a writ
of mandamus in a proper case [Nachura pg. 214] [Legazpi v. CSC]
Q: Between the constitutional guarantee of freedom of the press and the right to public
information, on the one hand, and the fundamental rights of the accused, on the other
hand, which is superior?
A: Jurisprudence tells us that the right of the accused must be preferred to win.
Rationale: With the possibility of losing not only the precious liberty but also the very life of an
accused it behoves all to make absolutely certain that an accused receives a verdict solely on
the basis of a just and dispassionate judgment, a verdict that will come only after presentation of
credible evidence testified to by unbiased witnesses xxx
Q: Is the right to access court records absolute?

A: No. Access to court records may be permitted at the discretion and subject to the supervisory
and protective powers of the court, after considering the actual use or purpose for which the
request for access is based and the obvious prejudice to any parties [Hilado et al v. Reyes, GR
No. 163155].
89
Q: Do pleadings and other documents filed by parties to a case need to qualify as “public
concern” before a party is granted access?
A: Unlike court orders and decisions, pleadings and other documents filed by the parties to a
case need not be matters of public concern or interest [Hilado v. Reyes].
Q: Can the COMELEC refuse to reveal the nominees of the party-lists?

A: No, it violates the right of the people on matters of public concern. [Ba-Ra 7941 v.
COMELEC]
Q: Are trade secrets beyond the right of the people to information?

A: Yes. [Bernas]
Q: Is the proposed terms of a compromise agreement with the Marcos heirs a matter of
public concern?
A: Yes, but the matter must be a “definite proposition” and not merely on the exploratory stage.
[Chavez v. PCGG / Chavez v. PEA and AMARI]
RIGHT TO FORM ASSOCIATIONS
Q: Legal Basis?
A: Article lll, Section 8. “The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not contrary to law shall
not be abridged.”
Q: Can the right under Section 8 be impaired?

A: Yes. The right to form associations shall not be impaired except through a valid exercise of
police power; an aspect of the general right of liberty, an aspect of freedom of contract, and an
aspect of freedom of expression and of belief. [Bernas]
Q: Does the right to join covers the right not to join?

A: Yes. [Bernas]
Note: for instance, religious objectors in forming labor unions.
Q: Is automatic membership to associations a violation of the right not to join?

A: No, automatic membership is a consequence of the buyer freely buying the lot knowing that
the purchase will entail an obligation to join the association. [Bel-air Village Association v.
Dionisio]
Q: Does the right to form and join unions include the right to disaffiliate?
90
A: Yes. The right to form, or join unions or associations, includes the right to not join or
disaffiliate from the association. In the case of Volkschel Labor Union vs BLR, the right of the
labor union to disaffiliate from the labor organization is part of the right to association.
Q: Is the prohibition on managerial employees to join, assist or form any labor

organization violative of the right to associate?
A: No, the prohibition under the Labor Code of the Philippines is valid because the right
guaranteed under Section 8, Article 3 of the Constitution is subject to the condition that its
exercise for purposes not contrary to law. [United Pepsi-Cola Supervisory Union v.
Leguesma]
Rationale: conflict of interest; the managerial employee represents the management of the
company and his representation or membership to the union posed conflict of interest. [Philips
Industrial Development, Inc. v. NLRC]
Q: BP 222 prohibits barangay candidates to be represented by any political parties or

groups, is the prohibition valid?
A: Yes, the law is intended to meet a clear and imminent danger of debilitation of the electoral
process and also the danger of disenabling barangay officials from adequately performing their
function as agents of a neutral community. [Occeña v. COMELEC]
Q: Do all societies and associations enjoy the same constitutional protection?

A: No, the degree of protection an association enjoys depends on the position which the
association’s objective or activity occupies in the constitutional hierarchy of values. [Philippine
Blooming Mills Employees v. Philippine Blooming Mills]
Q: Can employees of an electric cooperative withdraw their membership from the

cooperative to join a labor union?
A: Yes. (Central Negros Electric Coperative vs Sec of Labor)
Q: Is the right to strike absolute?
A: No. Although the right to strike is not absolute, it should not be subject to certain legal
conditions as to impede its lawful exercise. It is only given to registered labor organizations.
(LABOR CODE)
Q: Do government employees have the right to form unions?

A: Yes. [Trade Union of the Philippines v. NHC]
Q: Can government employees declare a strike to enforce economic demands?

A: No. Without legislation, the right to form unions is the only guarantee to the members of CSC.
(Alliance of Government Workers vs Ministry of Labor and Employment)
Q: Is the ability to strike essential to the right to self organization?
A: No. ( Bangalisan vs CA)
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Q: Can government employees invoke the right to strike as part of the freedom of
expression and the right to peacefully assemble and petition the government for redress
of grievances?
A: No. It was rejected by the SC in the case of GSIS vs Kapisanan ng mga mangagawa sa
GSIS.
Q: Does the Anti-Subversion Act violate Sec 8, Art. lll?
A: No. The purpose of the statute was to outlaw those organizations aimed at the violent
overthrow of the government, and that the government has a right to protect itself against
subversion. (People vs Ferrer)
There is also no violation of Sec 8, Art. lll when political parties participate in the barangay
elections. Political neutrality is needed in the discharge of barangay officials’ duties.
Q: Is RA 3350 valid?
A: Yes. Workers are allowed to disassociate from or not to join a labor union despite a closed
shop agreement, if they are members of any religious sect which prohibits affiliation of their
members in any labor organization. (Occena vs Comelec)
Other acts that do not violate Sec 8, Article lll (Nachura)
● Managerial employees that are ineligible to join, assist or form a labor union.
● Those who qualify as top or middle managers are executives who receive from their
employees information that is not only confidential but also nit generally available to the
public, or their competitors or to other employees.
● Compulsory membership of lawyer in the IBP.
NON-IMPAIRMENT CLAUSE
Q: When may a law be said to have impaired the obligation of contracts?

A: A law which changes the terms of a legal contract between the parties; mode of performance,
new conditions, dispenses those expressed, or authorizes satisfaction not with the terms of the
contract. [Clemens v. Nolting]
Q: A sales tax was imposed on the seller pending the delivery of the object of contract.
Valid?
A: Yes, sales tax does not change the relationship between the parties. [Bernas]
Q: Does every impairment of the substance of a contract violate the constitution?

A: No, police power is superior to the obligations of contracts. [Bernas]
Q: Does a rehabilitation plan violate the contract clause?

A: Qualify.
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1. Merely suspends the actions for claims - no violation. [GSIS v. Kapisanan]
2. Rental is changed - violation; the amount of rental is an essential condition in any lease
contract. [Leca Realty v. Manuela Corp.]
Q: There is an existing commercial agreement with Kuwait Airways and the Philippine
Government prior to the privatization of the Philippine Airlines. When PAL was
privatized, a government panel entered into a Confidential Memorandum of
Understanding with the Government of Kuwait revoking the provisions of the commercial
agreement to the prejudice of PAL. Valid?
A: No, the government cannot prejudice private rights without due process. [Kuwait Airways v.
PAL]
Q: Does the contract clause protect public contracts?

A: Yes, i.e. franchises are contracts and therefore covered by the clause. [Bernas]
Q: Does the cancellation of a timber license constitute an impairment of the obligation of

its contract?
A: No, a timber licenses, and other licenses in the same nature, are principal instruments by
which the State regulates the utilization and disposition of forest resources to the end that public
welfare is promoted; they are merely privileges and do not vest an irrevocable right. [C&M
Timber Corporation v. Alcala citing Ysmael, Jr. & Co. v. Deputy Executive Secretary]
Q: Is a license protected by the contract clause?

A: No; a license is not a contract, it is a special privilege granted by the state. [Gonzalo Sy v.
Central Bank]
Q: Is the obligation of contracts superior to religious freedom?

A: No, the free exercise of religion is superior to contract rights. [Victoriano v. Elizalde Rope
Union]
FREE ACCESS TO COURTS
Q: Who are indigents?

A: Indigents are persons who have no property or sources of income sufficient for their support
aside from their own labor though self-supporting when able to work and in employment. [Acar
v. Rosal]
Q: What is added by the 1987 Constitution in the 1973 Constitution?

A: Free access to quasi-judicial bodies (courts only in 1973) and to “adequate legal assistance”.
[Bernas]
93
MIRANDA RIGHTS (Section 12)
Q: Legal Basis. [SCIWTIS]
A: (1) Any person under investigation for the commission of an offense shall have the right to be
silent and to have competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing informed of his right to remain in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to the rehabilitation of victims of torture or similar practices, and their families
[Section 12, Article III].
Q: What are the rights made available to a person under investigation?

A: [Bernas]
1. Right to remain silent;
2. Right to competent and independent counsel preferably of his own choice; and
3. Right to be informed of such rights.
Q: What is the reason for making the rule applicable to investigations?

A: The psychological if not physical atmosphere of the custodial investigations, in the absence
of proper safeguards, is inherently coercive. [Miranda v. Arizona]
SOURCE
Q: Source of Miranda Rights; the immediate jurisprudential antecedent of Section 12.

A: Miranda v. Arizona, 384 US 436.
WHEN AVAILABLE
Q: When are the MR available?
94
A:
1. During custodial investigation only or in-custody interrogation of accused persons
2. Refers to testimonial compulsion only [People v. Paynor].
Miranda Rights apply from the moment the investigating officer begins to ask questions
for the purpose of eliciting admissions, confessions or any information from the
accused.
CUSTODIAL INVESTIGATION
Q: What is custodial investigation?

A: Any questioning, initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way [People v. de la
Cruz].
1. The practice of issuing an invitation to a person who is investigated in connection with

an offense he is suspected to have committed. [RA 7438]
2. As soon as the investigation ceases to be a general inquiry into an unsolved crime,
and direction is then aimed upon a particular suspect who has been taken into
custody and to whom the police would then direct interrogatory questions which
tend to elicit incriminating statements [People v. Dela Cruz]
Q: When does custodial investigation begin?

A: The rule begins to operate at once as soon as the investigation ceases to be a general
inquiry into an unsolved crime, and direction is then aimed upon a particular suspect who has
been taken into custody and to whom the police would then direct interrogatory question which
tend to elicit incriminating statements [People v. de la Cruz].
Q: When are the rights under Section 12, Article III available?
A: Rights are available only during custodial investigation. The rights guaranteed in Section 12,
Article III, exist only in “custodial investigation” or “in-custody interrogation of accused persons
[People v. Judge Ayson, 175 SCRA 216]. The Miranda Rights apply only from the moment the
investigating officer begins to ask questions for the purpose of eliciting admissions, confessions
or any information from the accused [De la Torre v. Court of Appeals].
Q: Does the guarantee in Section 12 apply to a spontaneous statement?

A: It does not apply to a spontaneous statement not elicited through questioning by the
authorities but given in an ordinary manner whereby the suspect orally admitted having
committed the offense [People v. Baloloy].
Q: Does the guarantee in Section 12 apply to admissions or confessions made by a

suspect “before” he was placed under custodial investigation?
A: No. In People v. Baloloy, the narration before the Barangay Captain prior to custodial
investigation was admissible in evidence, but not the admission made before Judge Dicon,
95
inasmuch as the questioning by the judge was done after the suspect had been arrested and
such questioning already constituted custodial investigation [People v. Baloloy].
Q: Does custodial investigation include the practice of issuing an “invitation”?

A: Yes. Under RA 7438, custodial investigation shall include the practice of issuing an
“invitation” to a person who is investigated in connection with an offense he is suspected to
have committed, without prejudice to the liability of the “inviting” officer for any violation of the
law [RA 7438].
Q: The accused-appellant was convicted of the robbery with homicide and sentenced to
death. The conviction of the accused was based on the testimony of a tricycle driver who
claimed that the accused was the one who drove the tricycle, which the suspects used as
their get-away vehicle. The accused was then invited by the police for questioning and he
pointed to the location where he dropped off the suspects. When the police arrived at the
supposed hide-out, a shooting incident ensued, resulting to the death of some of the
suspects. After the incident, the accused was taken back to the precinct where his
statement was taken on May 14, 1996.However, this was only subscribed on May 22, 1996
and the accused was made to execute a waiver of detention in the presence of Ex-Judge
Talavera. It was noted that the accused was handcuffed through all this time up on
orders of the fiscal and based on the authorities’ belief that the accused might attempt to
escape otherwise. Were the Miranda Rights of the accused violated?
A: YES. It was established that the accused was not apprised of his rights to remain silent and
to have competent and independent counsel in the course of the investigation. The Court held
that the accused should always be apprised of his Miranda rights from the moment he is
arrested by the authorities as this is deemed the start of custodial investigation. In fact, the
Court included “invitations” by police officers in the scope of custodial investigations. It is evident
in this case that when the police invited the accused appellant to the station, he was already
considered as the suspect in the case. Therefore, the questions asked of him were no longer
general inquiries into an unsolved crime, but were intended to elicit information about his
participation in the crime. However, the Miranda rights may be waived, provided that the waiver
is voluntary, express, in writing and made in the presence of counsel. Unfortunately, the
prosecution failed to establish that the accused made such a waiver. [People v. Del Rosario
(1999)]
Q: The police invited two suspects for the crime of rape with homice and brought them to
the police station for questioning. However, for lack of evidence then directly linking
them to the crime, they were allowed to go home. Five days later, the two accused
returned to the police station one after another and acknowledged that they had indeed
committed the crime. Acting on their admission, the police immediately conducted an
investigation and put their questions in writing. The investigators however could not at
once get the services of a lawyer to assist the two (2) accused in the course of the
investigation because there were no practicing lawyers in the Municipality of Santol, a
remote town of the Province of La Union. The statements of the two (2) accused were
96
nevertheless taken. But before doing so, both accused were apprised in their own dialect
of their constitutional right to remain silent and to be assisted by a competent counsel of
their choice. Upon their acquiescence and assurance that they understood their rights
and did not require the services of counsel, the investigation was conducted with the
Parish Priest, the Municipal Mayor, the Chief of Police and other police officers of Santol,
La Union, in attendance to listen to and witness the giving of the voluntary statements of
the two (2) suspects who admitted their participation in the crime. Were the Miranda
Rights of the two accused violated? Are the confessions inadmissible?
A: Custodial investigation began when the accused Ordoño and Medina voluntarily went to the
Santol Police Station to confess and the investigating officer started asking questions to elicit
information and/or confession from them. At such a point, the right of the accused to counsel
automatically attached to them. In providing that during the taking of an extrajudicial confession
the accused's parents, older brothers and sisters, his spouse, the municipal mayor, municipal
judge, district school supervisor, or priest or minister of the gospel as chosen by the accused
may be present, RA 7438 does not propose that they appear in the alternative or as a substitute
for counsel without any condition or clause. It is explicitly stated therein that before the
above-mentioned persons can appear two (2) conditions must be met: (a) counsel of the
accused must be absent and, (b) a valid waiver must be executed. RA 7438 does not
therefore unconditionally and unreservedly eliminate the necessity of counsel but underscores
its importance by requiring that a substitution of counsel with the above-mentioned persons be
made with caution and with the... essential safeguards. Hence, in the absence of such a valid
waiver, the Parish Priest of Santol, the Municipal Mayor, the relatives of the accused, the Chief
of Police and other police officers of the municipality could not stand in lieu of counsel's
presence. The apparent consent of the two accused in continuing with the investigation was of
no moment as a waiver to be effective must be made in writing and with the assistance of
counsel. Consequently, any admission obtained from the two accused emanating from such
uncounselled interrogation would be inadmissible in evidence in any proceeding. [People v.
Ordono]
Q: The accused was brought to the police station and made to sign the confiscation (of
marijuana) report. Was he under custodial investigation at that moment?
A: Yes. [People v. Pasundag]
Q: Is the right to have counsel intended to stop the accused from saying anything that
may incriminate him?
A: No, it is intended to preclude the slightest coercion as would lead the accused to admit
something false; he should never prevent an accused from freely telling the truth. [PP v.
Layuso]
Q: Paraffin test; accused claims violation of his constitutional right as it was done
without the presence of a lawyer. Is the accused correct?
97
A: No, the constitutional right extends only to testimonial compulsion and not when the
body of the accused is proposed to be examined. [PP v. Gamboa]
Q: Does the presumption of regularity of official acts apply to “in custody confessions”?
A: No, the prosecution must show that the constitutional safeguards were observed in obtaining
the confession. [PP v. Tolentino]
Q: Does the constitutional guarantee apply to a reenactment of a crime?

A: Yes, reenactment is “communicative in nature” that is why it is considered as a testimonial
compulsion. [PP v. Olvis]
Q: Does the constitutional guarantee apply to a person who presented himself to the
police to surrender?
A: No. It can hardly be said that under the circumstance, the surrenderee is already ‘under
investigation’, within the meaning of the constitutional provision. [PP v. Taylaran]
Q: Does the constitutional guarantee apply to verbal confessions to a radio announcer or

media?
A: No, the constitution bars only compulsory disclosure of incriminating facts or confessions.
[PP v. Ordono]
Q: Does the rule in custodial investigation apply to private individuals?

A: No; i.e. private individual [People v. Tawat], mayor as confidant [People v. Zuela].
Q: Investigation by an administrative body, covered?

A: No, the inquiry merits only disciplinary measures against erring public officers and
employees, with the purpose of maintaining the dignity of government service. [Sebastian, Jr.
v. Garchitorena]
Q: Confession to a “bantay bayan”.

A: Covered; bantay bayan are accredited auxiliary of the PNP. [PP v. Lauga]
Q: What is the legal effect of the violation of the rights in custodial investigations?
A: Exclusionary Rule applies. Any confession or admission obtained in violation of Section 12
or Section 17 shall be inadmissible in evidence against the accused. [Section 12(3), Art. 3]
INVITATION
Note: under RA7438, the constitutional guarantee was extended to invitations. [PP v.
Domantay]
Q: Cases where there is custodial investigation due to invitation.

A:
98
1. It was held that by the time Del Rosario was “invited” for questioning at the house of the
barangay captain, he was already under custodial investigation because he was not
appraised nor made aware thereof by the investigating officers, and because the
prosecution failed to establish that Del Rosario has waived his right to remain silent, his
verbal admissions were inadmissible against him [People v. Del Rosario].
2. The SC held that the custodial investigation began when Ordono and Medina voluntarily
went to the Santol Police Station to confess, and the investigation officer started asking
questions to elicit information from them [People v. Ordono].
3. It was held that the accused should have been entitled to the Miranda rights because
even assuming that he was not yet under interrogation under that time he was brought to
the police station, his confession was elicited by a police officer who promised to help
him if he told the truth. Furthermore, when he allegedly pointed out the body of the
victim, the atmosphere was highly intimidating and not conducive to a spontaneous
response as the whole police force and nearly 100 townspeople escorted him there. Not
having the benefit of counsel and not having been informed of his rights, the confession
is inadmissible [People v. Lugod, GR No. 136253, February 21, 2002].
4. When the accused was brought to the station and made to sign the confiscation (of
marijuana) report, he was already under custodial investigation [People v. Pasudag,
GR. No. 128822, May 4, 2001].
POLICE LINE-UP
Q: Is a police line-up part of the custodial investigation?
A: No. A police line-up is not considered a part of any custodial inquest, because it is conducted
before that stage of investigation is reached [People v. Bravo, GR No. 135562, November 22,
1999]. In a police line-up, the process has not yet shifted from the investigatory to the
accusatory stage, and it is usually the witness or the complainant who is interrogated and who
gives a statement in the course of the line-up [People v. Amestuzo, GR. No. 104383, July 12,
2001].
Q: Does the accused have the right to counsel during the police line-up?
A: No. The right to counsel accrues only after an investigation ceases to be a general inquiry
into an unsolved crime and commences an interrogation aimed at a particular subject who has
been taken into custody and to whom the police would now propound questions [People v.
Piedad, GR No. 131923, December 5, 2002]. Where three eyewitnesses identified the accused
99
at the police station as the person who shot the victim at the scene of the crime, the accused
cannot claim that he was deprived of his constitutional rights even if he was without counsel at
the time, because he was not yet then under custodial investigation [People v. Dagpin].
Q: Is the accused already under custodial investigation when the out-of-court

identification conducted by the police was “after” the accused has already been pointed
out?
A: Yes. Where the accused, having become the focus of attention by the police “after” he has
been pointed to by a certain Ramie as the possible perpetrator of the crime, it was held that
when the out-of-court identification was conducted by the police, the accused was already under
custodial investigation [People v. Escordial].
Q: How is an out-of-court identification made?
A:
1. Show up - where the accused is brought face to face with the witness for identification,
2. Police line-up - where the suspect is identified by a witness from a group of persons
gathered for that purpose [People v. Escordial].
Q: Does the Miranda rights apply to police line-up or in a show-up “after” the start of
custodial investigation?
A: Yes. During custodial investigation, out-of-court identifications have been recognized as

“critical confrontations of the accused by the prosecution”, necessitating the presence of
counsel for the accused. This is because the result of these pre-trial proceedings “might well
settle the fate of the accused and reduce the trial to a mere formality”. Thus, any identification of
an uncounseled accused made in a police line-up or in a show-up after the start of custodial
investigation is inadmissible in evidence against him [People v. Escordial].
INVESTIGATIONS NOT CONSIDERED CUSTODIAL INVESTIGATION
Q: Are normal audit investigations part of custodial investigation?
A: No. Normal audit investigations are not under custodial investigation, because an audit
examiner can hardly be deemed to be the law enforcement officer contemplated in the rule
[Navallo v. Sandiganbayan].
100
Q: Are investigations conducted by the Court Administrator part of the custodial
investigation?
A: No. Because the Court Administrator is not a law enforcement officer, an investigation
conducted by him does not constitute custodial investigation within the contemplation of the
constitutional guarantee [Office of the Court Administrator v. Sumilang].
Q: Are investigations conducted by the CSC part of custodial investigation?
A: No. An investigation conducted by the Civil Service Commission involving fake eligibility is
not custodial investigation [Remolona v. Civil Service Commission].
Q: Are administrative inquiries part of custodial investigation?
A: No. An administrative inquiry conducted by the employer in connection with an

irregularity/anomaly allegedly committed by an employee is not custodial investigation; thus, a
written statement given by the employee during such inquiry is admissible in evidence [Carlos
Tanengge v. People].
Q: Is an investigation by the Assistant Accountant of MetroBank part of custodial

investigation?
A: No. Where, after an audit, the accused was summoned to appear before the Assistant
Accountant of MetroBank and, in the course of the interview, accused admitted having issued
the subject cashier’s checks without any legitimate transaction, the written confession was held
admissible in evidence inasmuch as the interview did not constitute custodial investigation
[People v. Salonga].
Q: Is a preliminary investigation part of a custodial investigation?
A: No. It was held that the counter-affidavit submitted by the respondent during preliminary
investigation is admissible in evidence, because preliminary investigation is not part custodial
investigation. The interrogation by the police, if any, would already have been ended at the time
of the filing of the criminal case in court in the public prosecutor’s office [Ladiana v. People].
Q: Is the signing by the accused of the booking sheet and the arrest report part of
custodial investigation?
101
A: No. The signing by the accused of the booking sheet and the arrest report is not part of
custodial investigation because he does not admit the commission of an offense nor confess to
any incriminating circumstance [People v. Manzano].
Q: What is a booking sheet?
A: It is no more than a record of arrest and a statement on how the arrest is made. It is
simply a police report and it has no probative value as an extrajudicial statement of the
person being detained [People v. Manzano].
Q: Is the admission of the videotaped confession proper?
A: Yes. The interview was recorded on video and it showed the accused unburdening his guilt
willingly, openly and publicly in the presence of newsmen. Such confession does not form part
of custodial investigation as it was not given to police officers but to media men in an attempt to
solicit sympathy and forgiveness from the public. There was no showing that the interview was
coerced against his will [People v. Endino].
Q: Are spontaneous statements admissible?
A: Yes. Spontaneous statements or those not elicited through questioning by a law enforcement
officer, but given in an ordinary manner where the appellant verbally admits to having committed
the offense, are admissible [People v. Guillermo].
Q: Summary of cases where the investigation was not considered custodial

investigation.
A:
1. Normal audit investigations [Navallo v. Sandiganbayan].

2. Investigation by the Court Administrator [Office of the Court Administrator v.
Sumilang].
3. An investigation conducted by the Civil Service Commission involving fake eligibility is
not custodial investigation [Remolona v. Civil Service Commission].
4. An administrative inquiry conducted by the employer in connection with an
irregularity/anomaly allegedly committed by an employee is not custodial investigation;
thus, a written statement given by the employee during such inquiry is admissible in
evidence [Carlos Tanengge v. People].
102
5. Where, after an audit, the accused was summoned to appear before the Assistant
Accountant of MetroBank [People v. Salonga].
6. Preliminary investigation is not part custodial investigation. [Ladiana v. People].
7. The signing by the accused of the booking sheet and the arrest report is not part of
custodial investigation [People v. Manzano].
8. Video taped confession given to media men willingly, openly and publicly in the
presence of newmen, these are admissible [People v. Endino].
9. Spontaneous statements are admissible [People v. Guillermo].
TESTIMONIAL COMPULSION
Q: What does the rights under Section 12 cover?
A: The rights guaranteed by Section 12 refer to testimonial compulsion only [People v.

Paynor].
MIRANDA RIGHTS
Q: What rights are available under Section 12 or the Miranda Doctrine, which a person
under custodial investigation is entitled to? [SCIWTIS]
A:
1. To remain silent.
2. To competent and independent counsel
3. To be informed of such rights.
4. Rights cannot be waived except in writing and signed by the person in the presence of
his counsel.
5. No torture, force, threat, violence, intimidation, or any other means which vitiate the
free will shall be used.
6. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited.
7. Any confession or admission obtained in violation of Section 12 or Section 17 hereof
shall be inadmissible in evidence against him [Section 12, Article III].
OUTLINE
103
RIGHT TO REMAIN SILENT
Q: What is the right to remain silent?
A: If the accused refuses to give a statement, no adverse inference shall be made from his
refusal to answer questions.
RIGHT TO A COMPETENT AND INDEPENDENT COUNSEL
Q: When should the accused have the right to counsel?

A: At all stages of the investigation [People v. Layuso].
Q: What if the accused cannot afford the services of counsel?

A: He must be provided (by the Government) with one [Nachura].
Q: What is the effect when the accused cannot afford the services of counsel or when the
preferred lawyer is not available?
A: Although the choice of the lawyer would be lodged with the police investigators, the suspect
has the final choice as he may reject the counsel chosen for him and ask for another one
[Nachura, p. 227].
Q: What does the right to counsel intend to preclude?

A: Intended to preclude the slightest coercion as would lead the accused to admit something
false [Nachura].
Q: When does the right to counsel attach?

A: The right to counsel attaches upon the start of the investigation i.e., when the investigating
office starts to ask questions to elicit information and/or confessions or admissions from the
respondent [Gamboa v. Cruz].
Q: What is the significance of the specification that the person has the right to
“competent and independent counsel preferably of his own choice”?
A: The specification is a product of military experience under the Marcos regime when the
military authorities used to make available to detainees only counsel of the military’s choice, and
presumably working also for the interest of the military. [Bernas]
Q: When is a lawyer provided by the investigators deemed engaged by the accused?

A: When the accused “never raised any objection against the appointment during the course of
the investigation and the accused thereafter subscribes to the veracity of his statement before
the swearing officer. [PP v. Jerez citing PP v. Suarez]
Q: What does the phrase “preferably of his own choice” mean?

A: The suspect has the final choice as he may reject the counsel chosen for him and ask for
another one. [PP v. Mojello]
Note: this does not mean exclusivity of choice of the accused when his preferred lawyer is not
available.
104
Q: Does the right to counsel mean that the accused must personally hire his own
counsel?
A: Not necessarily. The constitutional requirement is satisfied when a counsel is engaged by
anyone acting on behalf of the person under investigation, or appointed by the court upon
petition by said person or by someone on his behalf.
Q: Who are not deemed independent counsels?

A:
1. Special counsel, private or public prosecutor, counsel of the police, or a municipal
attorney whose interest is adverse to that of the accused. [PP v. Fabro]
2. Mayor. [PP v. Taliman]
3. Barangay captain. [PP v. Tomaquin]
4. Any other whose interest may be adverse to that of the accused. [Bernas]
Q: Is the right to counsel imperative in administrative investigations?

A: No, because these investigations are conducted merely to determine merits for disciplinary
measures of erring public officers. [Lumiqued v. Exevea]
Q: A former judge was appointed by the police. Valid?

A: No. [PP v. Jimenez]
Q: The counsel was not present at the start of the interrogation; he arrived late but had
the opportunity to read the statement and had it signed by his client. Does this comply
with the constitutional requirements?
A: No. It was initially ruled by the Supreme Court to have substantially complied with the
requirements [Estacio v. Sandiganbayan] but it was corrected later. The right is not only the
right to counsel but the right to EFFECTIVE COUNSEL; from the first moment of questioning
and all throughout. [PP v. Lucero]
Q: The accused was told that he had the right to avail the services of a counsel and the
investigators proceeded to ask questions. Valid?
A: No. [PP v. Felipe]
Q: Accused claimed that he made his extrajudicial confession without counsel. During
trial, the accused admitted that he voluntarily signed the extrajudicial statement.
Admissible?
A: Yes, the admission in open court removes the case from the in-custody rule. [PP v Marcos]
Q: After being informed of his right, the accused stated that he needed no counsel and
that he was going to tell the truth, and did not ask for a lawyer. Admissible?
A: No, confessions are ceremonies that require the presence of counsel. [Demaisip v. CA
citing the 1983 case of Morales v. Moncupa]
105
Q: Signing of Receipt of Seized Property. Proper?
A: No. This is considered as an admission which needs the presence of counsel. [PP v. de
Guzman. Signing the block of marijuana is not proper as well in the absence of counsel. [PP v.
Bagano] Writing his (accused) name in marijuana cigarettes is not proper. [PP v. Enrique, Jr.]
Q: Instances where the right to counsel is not required.

A:
1. Police line-up;
2. Paraffin test [People v. de Guzman; People v. Lamsing];
3. Photographed [Nachura].
Q: What are the “critical pre-trial stages” in the criminal process?

A:
1. Custodial investigation before or after charges have been filed; and
2. Non-custodial interrogation after the accused has been formally charged [People v.
Espanola].
Q: Does the right to counsel apply in critical stages in the pre-trial proceedings?
A: Yes [People v. Espanola].
RIGHT TO BE INFORMED OF SUCH RIGHTS
Q: What does the right to be informed contemplate?

A: Transmission of meaningful information rather than just the ceremonial and perfunctory
recitation of an abstract constitutional principle. [People v. Nicandro]
Making the accused read his constitutional rights is simply not enough. The prosecution must
show that the accused understood what he read, and that he understood the consequences of
his waiver. [People v. Canela]
The right to be informed carries with it the correlative obligation on the part of the investigator to
explain, and contemplates effective communication which results in the subject understanding
what was conveyed. The degree of explanation required will necessarily vary and depend on
the education, intelligence and other relevant personal circumstances of the person under
investigation. [People v. Agustin]
Q: “The affiant has been informed of his rights under the Constitution of the Republic of
the Philippines, and under the state of Martial Law, and the nature of the investigation,
and without violence, intimidation, force or reward the affiant declared as follows….”
Was there compliance with the law?
A: No, there is no sufficient indication that the specific rights guaranteed were communicated to
the accused. [PP v. Rojas]
Q: What is the duty of the police officer under the Miranda Doctrine?
106
A: The police officer is duty-bound to tell the person the rights to which the accused is entitled
and he must explain their effects in practical terms. [PP v. Ramos]
Q: What is the effect of not effectively communicating the rights (effects not explained)?
A: There is denial of the right, as it cannot truly be said that the person has been ‘informed’ of
his rights. [PP v. Nicandro]
RIGHTS CANNOT BE WAIVED EXCEPT IN WRITING AND SIGNED BY THE

PERSON IN THE PRESENCE OF HIS COUNSEL
Q: How to waive the rights?

A: Sec. 2(d) of RA 7438 provide that any extrajudicial confession made by a person arrested,
detained, or under custodial investigation shall be:
1. In writing and signed by such person in the presence of his counsel, or
2. If counsel is absent, upon a valid waiver and in the presence of any of the parents, older
brothers and sisters, spouse, municipal mayor, the municipal judge, district school
supervisor, priest or minister of the gospel as chosen by him [Section 2(d) of RA 7438].
Q: Valid waiver?
A:
1. In writing
2. Signed in the presence of the counsel
E.g. lawyer will not be available after signing of the waiver, the persons mentioned will assist
him in his confession
NO TORTURE, FORCE, VIOLENCE, THREAT, INTIMIDATION, OR ANY OTHER

MEANS WHICH VITIATES THE FREE WILL SHALL BE USED AGAINST HIM
Q: People vs. Bagnate, G.R. No. 133685-86, 2004

A: The following are considered factors indicating voluntariness of confessions:
1. Appellants did not present evidence of compulsion or duress or violence on their
persons
2. Where they failed to complain to the officers who administered the oaths
3. Where they did not institute any criminal or administrative action action against the
alleged intimidators for maltreatment
4. Where there appeared no marks of violence on their bodies and where they did not have
themselves examined by a reputable physician to buttress their claim [People vs.
Bagnate, G.R. No. 133685-86, 2004].
Q: Why are torture, force, etc. prohibited?

A: They vitiate the truth and they are an assault on the dignity of the person. [Bernas]
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SECRET DETENTION PLACES ARE PROHIBITED
CONFESSION/ADMISSION OBTAINED IN VIOLATION OF SECTION 12 AND

SECTION 17 ARE INADMISSIBLE IN EVIDENCE
Q: What are the two kinds of involuntary confessions?

A:
Coerced Confessions The product of third degree methods, such as

torture, force, violence, threat and
intimidation, which are dealth with in
paragraph 2 [Section 12(2), Article III].
Uncounselled Statements Given without the benefit of the Miranda

warning, which are the subject of paragraph 1
[Section 12(1), Article III].
Q: What are the fundamental requisites for an extrajudicial confession to be admissible

in evidence? [CEWVS]
A: [PP v. Deniega]
1. The confession must be voluntary;
2. The confession must be made with the assistance of competent and independent
counsel;
3. The confession must be express;
4. The confession must be in writing; and
5. The confession must be signed, or if the confessant does not know how to read and
write, thumb marked by him.
Q: Accused claims that the advice of his police-provided counsel during custodial
investigation that he would execute an extrajudicial confession if he really committed the
crime taints the confession with involuntariness. Decide.
A: A confession is not rendered involuntary merely because the defendant was told that he
should tell the truth or that it would be better for him to tell the truth. [PP v. Calvo, Jr.]
Q: Against whom are illegal confessions and admissions inadmissible?

A: Against the source of the confession or admission; he alone can ask for the exclusion.
[PP v. Ballesteros]
Q: Does an amicable settlement partake of the nature of an extrajudicial confession or

admission?
A: No, an amicable settlement is a contract between the parties within the parameters of their
mutually recognized and admitted rights and obligations [Nachura].
Q: When does the alleged infringement of the constitutional rights of the accused during
custodial investigation be relevant and material?
108
A: Only where an extrajudicial confession or admission from the accused becomes the basis of
conviction [NBI v. Judge Ramon Reyes]
Q: What rights in the matter of his testifying or producing evidence, does a person
suspected of having committed a crime and subsequently charged with its commission
have?
A:
Before the case is filed in Court [or with 1. The continuing right to remain silent
the public prosecutor, for preliminary 2. Right to counsel
investigation], but after having been taken 3. Right to be informed of the right to remain
into custody or otherwise deprived of his silent and right to counsel
liberty in some significant way, and on 4. Right not to be subjected to force, violence,
being interrogated by the police threat, intimidation or any other means which
vitiates the free will; and
5. To have evidence obtained in violation of
these rights rejected and inadmissible
[People v. Judge Ayson].
After the case is filed in Court 1. To refuse to be a witness

2. Not to have any prejudice whatsoever
result to him by such refusal
3. To testify in his own behalf, subject to
cross examination
4. And while testifying, to refuse to answer a
specific question which tends to incriminate
him for some crime other than that for which
he is being produced [People v. Judge
Ayson].
WAIVER
Q: What are the requisites for a valid waiver?

A: Must be in writing and in the presence of counsel [Section 12, Article III].
Q: What rights may be waived?

A: Right to remain silent. Right to be informed of the rights cannot be waived [Nachura].
Q: Who has the burden of proof?

A: Prosecution has the burden of proving that there was a valid waiver. The presumption that
official duty has been regularly performed cannot prevail over the presumption of innocence.
Q: What are the guidelines and duties of arresting, detaining, inviting or investigating
officers or his companions?
A:
1. The person arrested, detained, invited or under custodial investigation must be
informed in a language known to and understood by him of the reason for the
arrest and he must be shown the warrant of arrest, if any. Every other warning,
109
information or communication must be in a language known to and understood by said
person.
2. He must be warned that he has a right to remain silent and that any statement he
makes may be used as evidence against him.
3. He must be informed that he has the right to be assisted at all times and have the
presence of an independent and competent lawyer, preferably of his own choice.
4. He must be informed that if he has no lawyer or cannot afford the services of a
lawyer, one will be provided for him; and that a lawyer may also be engaged by any
person on his behalf, or may be appointed by the Court upon petition of the person
arrested or one acting on his behalf.
5. That whether or not the person arrested has a lawyer, he must be informed that no
custodial investigation in any form shall be conducted except in the presence of his
counsel or after a valid waiver has been made.
6. The person arrested must be informed that, at any time, he has the right to
communicate or confer by the most expedient means.
7. He must be informed that he has the right to waive any of said rights provided it is
made voluntarily, knowingly and intelligently, and ensure that he understood the same.
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that
it must be done in writing and in the presence of counsel, otherwise, he must be
warned that the waiver is void even if he insists on his waiver and chooses to speak.
9. The person arrested must be informed that he may indicate in any manner at any time
or stage of the process that he does not wish to be questioned with a warning that
once he makes such indication the police may not interrogate him if the same had not
yet commenced, or the interrogation must cease if it has already begun.
10. The person arrested must be informed that his initial waiver of his right to remain
silent, the right to counsel or any of his right does not bar him from involving it at
any time during the process, regardless of whether he may have answered some
question or volunteered some statements.
11. He must also be informed that any statement or evidence, as the case may be,
obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole
or in part, shall be inadmissible in evidence.
EXCLUSIONARY RULE
Q: What is the exclusionary rule?
A: Confession or admission obtained in violation of Sec. 12 and Sec. 17, shall be inadmissible
in evidence [Section 12, Article III]. Also known as Fruit of the Poisonous Tree Doctrine
[Nardone v. US].
Q: How should it be proved?
A: Violations shall be proved by clear, convincing, and competent evidence [Nachura].
Q: Is reenactment of a crime valid?
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A: Re-enactment of the crime is valid if he was informed of his constitutional rights [People v.
Luvendino].
Q: Can the exclusionary rule be waived?
A: Subject to waiver via Laches [People v. Samus]
Q: Where a bloodstained knife is found as a consequence of an uncounseled

extrajudicial confession, may the knife be admitted in evidence?
A: No. [Aballe v. PP]
Q: Uncounseled body sample extractions. Valid?

A: Yes. The constitutional guarantee prohibits the use of physical or moral compulsion to extort
communication from the accused, but not an inclusion of his body in evidence, when it may be
material. [Gutang v. PP]
Q: What is inadmissible evidence?

A: Confession or admission obtained in violation of Section 12 and Section 17, Article III, shall
be inadmissible in evidence [Article III, Section 12]. Exclusionary Rule.
CONFESSION
Q: What is a confession?
A: A confession is a declaration made voluntarily and without compulsion or inducement by
a person acknowledging that he has committed or participated in the commission of a crime
[People v. Fabro].
Q: When can a confession be admitted?

A: Before it can be admitted in evidence, the Constitution demands strict compliance with the
requirements of Section 12 and 17, Article III [People v. Fabro].
Q: Is it material where the confession was obtained?

A: It is immaterial where the confession was obtained [People v. Gomez].
Q: Is a confession given by the accused to NBI agents who visited him in a Hong Kong
prison, admissible?
A: No, it is inadmissible. The confession was still declared inadmissible in evidence [People v.
Gomez].
FRUIT OF THE POISONOUS TREE
Q: What is the Doctrine of the Fruit of the Poisonous Tree?
111
A: Once the primary source (the tree) is shown to have been unlawfully obtained, any
secondary or derivative evidence (the fruit) derived from it is also inadmissible [People v.
Alicando].
Q: If the uncounselled admission is inadmissible, should the pillow and t-shirt with
alleged bloodstains --- being evidence derived from the uncounselled confession be
admissible?
A: No, it should likewise be inadmissible [People v. Alicando].
RIGHT TO BAIL
BAIL
Q: What is the right to bail?

A: “All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
required. [Sec. 13, Art. III]
Q: Where does the right of bail emanate from?

A: From the right to be presumed innocent.
Q: What is bail?
A: It is the security given for the release of a person in custody of the law, furnished by him
or a bondsman, to guarantee his appearance before any court as required under the conditions
specified [Section 1, Rule 114, Rules of Court].
Q: Aside from release through bail, through what other means may an accused obtain
provisional liberty?
A: Through recognizance. [Bernas]
Q: What is recognizance?
A: It is an obligation of record entered into before a court guaranteeing the appearance of the
accused for trial. It is in the nature of a contract between the surety and the state. [PP v. Abner]
Recognizance is a mode of securing the release of any person in custody or detention for the
commission of an offense who is unable to post bail due to abject poverty. The court where the
case of such person has been filed shall allow the release of the accused on recognizance as
provided herein, to the custody of a qualified member of the barangay, city or municipality where
the accused resides. [RA 10389 / St. Kia Marie Pano]
Note: Requirement for Sanggunian Resolution:

a. Needed- if accused has not yet served minimum of the penalty
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b. Not needed- if accused has already served minimum, as provided by SC Administrative
Matter (*search for this*)
WHO MAY INVOKE / WHEN
Q: Who may invoke the right to bail?

A: Any person under detention, even if no charges have been filed yet. [Tehankee v.
Rovira].
Q: May a person who does not have a constitutional right to bail be released on bail?
A: Yes. The matter is discretionary with the court for good and valid reasons, unless there is a
statutory prohibition against it. [Bernas]
Q: What are the implicit limitations on the right to bail?

A: [Bernas]
1. The person claiming the right must be under actual detention. [Mendoza v. CFI]
2. The constitutional right is available only in criminal cases.
Q: Is there a right to bail in extradition cases?

A: None, the right to bail is available only in criminal cases. He should apply for bail in the court
where he will be tried. [US v. Judge Puruganan] However, the Court later ruled that bail may
be granted to a possible extraditee only upon a clear and convincing showing (1) that he will not
be a flight risk or a danger to the community, and (2) that there exist special humanitarian and
compelling circumstances. [Rodriguez v. Judge]
Q: When may it be invoked?

A: In the cases where bail is authorized, it should be granted before arraignment, otherwise,
the accused may be precluded from filing a motion to quash.
Q: Can it be waived?
A: May be waived through inaction; laches. [People v. Manes]
Q: Does a person admitted to bail necessarily have the right to leave the Philippines?
A: No. The court may prevent a person admitted to bail from leaving the country. A bail bond is
intended to make a person available anytime he is needed by the court. [Manotoc Jr. v. CA]
EXCEPTIONS
Q: What are the exceptions to the right to bail?
A:
1. When charged with an offense punishable by reclusion perpetua and evidence of guilt is
strong.
2. Traditionally, the right to bail is not available to the military [Nachura].
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DUTY OF THE COURT WHEN ACCUSED IS CHARGED WITH AN OFFENSE PUNISHABLE
BY RECLUSION PERPETUA OR HIGHER
Q: Are “life imprisonment” and “reclusion perpetua” the same?
A: No. (1) Life imprisonment is a penalty in special laws while reclusion perpetua is imposed by
the Revised Penal Code; (2) Life imprisonment does not carry accessory penalties, whereas
reclusion perpetua does; (3) Life imprisonment is indefinite, whereas reclusion perpetua is for
30 years after which the convict is eligible for pardon. [Cardines v. Rosete]
Note: the distinction is now irrelevant because Rule 114 placed them both on the same levels
as regards entitlement of bail.
Q: What is the duty of the court when the accused is charged with an offense punishable
by reclusion perpetua or higher?
A:
1. A hearing on the motion for bail must be conducted by the judge to determine whether
or not the evidence of guilt is strong.
2. Whether the motion is resolved in summary proceeding or in the course of regular
trial, the prosecution must be given the opportunity to present all the evidence that it
may wish to introduce on the probable guilt of the accused before the court resolves the
motion for bail.
3. Even if the prosecution refuses to adduce evidence, or fails to interpose an
objection to the motion for bail, it is still mandatory for the court to conduct a hearing
or ask searching and clarificatory questions from which it may infer the strength of the
evidence of guilt, or lack of it, against the accused [Baykin v. Judge Sison].
Q: Should a hearing on a petition for bail precede arraignment at all times?
A: No. The rule is that a person deprived of his liberty by virtue of his arrest or voluntary
surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or
information is filed against him. When bail is a matter of right, the accused may apply for and be
granted bail even prior to arraignment [Serapio v. Sandiganbayan]. Bail should be granted
before arraignment, otherwise the accused may be precluded from filing a motion to quash
[Lavides v. Court of Appeals].
Q: What should the court order granting or refusing bail contain?
A: It must contain a summary of the evidence for the prosecution [People v. Judge Cabral].
Q: Is the assessment of evidence presented during a bail hearing, a final assessment?
A: No. The assessment of evidence presented during a bail hearing is intended only for the
purpose of granting or denying an application for the provisional release of the accused.
Not being a final assessment, courts tend to be liberal in their appreciation of evidence. But it is
not an uncommon occurrence that an accused person granted bail is convicted in due course
[People v. Palarca (2002)].
114
MATTER OF RIGHT OR AT THE JUDGE’S DISCRETION
Q: When is bail a matter of right or discretion?
A:
Matter of Right Discretionary
1. Before or after conviction by the Upon conviction by the RTC of an offense not
Metropolitan Trial Court, Municipal Trial punishable by death or reclusion perpetua or
Court, Municipal Trial Courts in Cities, life imprisonment.
Municipal Circuit Trial Court (Jurisdiction of 6
years and below) The court, in its discretion, may allow the
accused to continue on the provisional liberty
2. Before conviction by the RTC of an offense under the same bail bond during the period to
not punishable by death or reclusion perpetua appeal subject to the consent of the
or life imprisonment [Section 4, Rule 114]. bondsman. If the court imposed a penalty
of imprisonment exceeding 6 years but
not more than 20 years, the accused shall
be denied bail, or his bail shall be cancelled
upon a showing by the prosecution, with
notice to the accused, of the following or
other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or
habitual delinquent, or has committed the
crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal
confinement, evaded sentence, or violated
the conditions of his bail without valid
justification;
(c) That he committed the offense while under
probation, parole, or conditional pardon;
(d) That the circumstances of his case
indicate the probability of flight if released on
bail; or
115
(e) That there is undue risk that he may
commit another crime during the pendency of
the appeal [Section 5, Rule 114].
Note: Sec. 5, Rule 114 applies even to

punishable with reclusion perpetua (Atty. G);
judge should consider the factors also even if
evidence of guilt is not strong
If bail is a matter of right then there is no need If bail is a matter of discretion, then hearing is
for a hearing before the grant of bail. Even if mandatory in order for the court to find out if
the judge does not like the accused, if the the evidence of guilt is really weak or it is
latter can put the required amount of bail, reasonable to deny the accused bail [Atty G].
then the judge has no choice but to order the
temporary release of the accused [Atty G].
WHEN SHALL BAIL BE DENIED
Q: When shall bail be denied?
A: When the accused is charged with a capital offense punishable by reclusion perpetua or
higher and the evidence of guilt is strong, then bail shall be denied, as it is neither a matter
of right or discretion [Padilla v. Court of Appeals].
QUANTUM OF PROOF
Q: What is the quantum of proof required to deny bail to one if he has committed an
offense punishable by Reclusion Perpetua or Life Imprisonment?
A: “Strong evidence”. It is not proof beyond reasonable doubt
1. It is called proof evident or evident proof - clear, strong evidence which leads a well-
guarded dispassionate judgment to the conclusion that the offense has been committed
as charged, the accused is the guilty agent, and that he will probably be punished
capitally if the law is administered
2. It is also called presumption great – it exists when the circumstances testified to are
such that the inference of guilt naturally to be drawn therefrom is strong, clear, and
convincing to an unbiased judgement and exclude all reasonable probability of any
other conclusion [Atty G].
116
STANDARDS OF FIXING BAIL
Q: What are the standards of fixing bail?
A:
1. Financial ability of the accused to give bail;

2. Nature and circumstances of the offense;
3. Penalty for the offense charged;
4. Character and reputation of the accused;
5. Age and health of the accused;
6. Weight of the evidence against the accused;
7. Probability of the accused appearing at the trial;
8. Forfeiture of other bail;
9. The fact that accused was a fugitive from justice when arrested; and
10. Pendency of other cases where the accused is on bail [Rule 114, Rules of Court]l.
EXTRADITION CASES
Q: Can bail be allowed to a person who is a subject of extradition proceedings?
A:
1. Puruganan ruling – bail may be granted when the applicant is not a flight risk and when
there exists special humanitarian and compelling circumstances (an exception)
2. Government of Hong Kong v. Olalia – modified the Puruganan ruling. Bail can be granted
to deportation and extradition cases considering UDHR. The following requisites must concur: i)
extraditee is not a flight risk ii) extraditee will abide with all laws and procedures.
Bail may be allowed to a person who is a subject of extradition proceedings. See U.S. vs. Judge
Purganan as modified by Rodriguez vs. Judge, February 27, 2006 [Atty G].
Q: Can a person with a pending criminal case who is out on bail be barred by the court
from travelling abroad?
A: Yes. A person with a pending criminal case who is out on bail may be barred by the court
from travelling abroad. It is not a violation of his right to travel. Simply making sure that the
court can effectively implement its jurisdiction over the person of the accused. One of the
conditions in the grant of bail is that the accused must inform the court if he is going to go to a
place outside the territorial jurisdiction of the court [Atty G] / [Manotoc Jr. vs. CA]
BAIL AND HABEAS CORPUS
Q: Can the writ of habeas corpus suspend the right to bail?
A: No. Even if the privilege of the writ of habeas corpus is suspended (Article VII, Section 18),
one who is arrested not for rebellion or invasion can be released on bail if he is arrested for a
bailable offense.
● Homicide, for instance, can be bailable as a matter of right after the arrest
117
● If arrested for rebellion, and the writ of HC is suspended, he can be released on bail if
the case is already filed in court within 72 hours [Atty G].
EXCESSIVE BAIL
Q: How do you know that the amount of bail is excessive?
A:
● Depends on the discretion of the court

● Must be guided by the guidelines in Section 9 of Rule 114 [Atty G].
Q: Why does the Constitution prohibit excessive bail?

A: Excessive bail can amount to a denial of bail. [Bernas]
WAIVER
Q: Can the right to bail be waived?
A: Yes. It is a right personal to the accused.
CONSTITUTIONAL RIGHTS OF THE ACCUSED
Q: Legal basis.
A: [IHITMC]
(1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused provided that he
has been duly notified and his failure to appear is unjustifiable [Article III, Section 14].
CRIMINAL DUE PROCESS
Q: May a judge who replaces another judge validly render a decision although he has
only partly heard the testimony of witnesses?
A: Yes. This is rooted in practical considerations. Sometimes it is an impossibility for the judge
who tried the case to be the same judicial officer to decide it; the judge who tried the case may
die, resign, or retire from the bench, before he could render judgment thereon. [PP v. Narajos
citing Villanueva v. Estenzo]
118
Q: May criminal penalties be imposed by administrative agencies?
A: No. Since administrative agencies are not bound to follow the rules of criminal procedure
they may not impose criminal penalties. [Scoty’s Department Store v. Micaller]
Q: When does publicity prejudice due process?

A: The rule is that “to warrant a finding of prejudicial publicity there must be allegation and proof
that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. [Webb v. de Leon]
Military Tribunals
Q: May the Supreme Court review decisions of military tribunals?
A: Generally, no; the SC does not review decisions of military commissions but of the Court of
Military Appeals in cases appealed to CMA by military commissions. [Buscayno & Sison v.
Military Commissions]
Q: May military commissions or tribunals have jurisdiction to try civilians for offenses
allegedly committed during martial law when civil courts were open and functioning?
A: No, Open Court Doctrine. [Olaguer v. Military Commission]
Q: The rule is that jurisdiction over a person is acquired only upon arrest. Does this
apply to military jurisdiction?
A: No. [Abdilla v. Ramos]
(Bernas: The reasoning here is unconvincing.)
INGREDIENTS OF CRIMINAL DUE PROCESS
Q: What are the ingredients of due process?
A: CON-JA
1. The accused has been heard in a court of competent jurisdiction

2. The accused is proceeded against under the orderly processes of law
3. The accused has been given notice and the opportunity to be heard
4. The judgement rendered was within the authority of a constitutional law [Meija v.
Pamaran].
UNREASONABLE DELAY IN RESOLVING COMPLAINT
Q: Is the failure of the Office of the Ombudsman to resolve a complaint that had been
pending for 6 years, a violation of the right to due process of law and speedy trial?
A: Yes. The failure of the Office of the Ombudsman to resolve a complaint that had been
pending for 6 years clearly violates the constitutional command of the Ombudsman to act
promptly on complaints and the right of the petitioner to due process of law and speedy trial. In
such an event, the aggrieved party is entitled to the dismissal of the complaint [Roque v.
Ombudsman].
119
Q: Is the unreasonable delay in the termination of the preliminary investigation by the

Tanodbayan a violation of the due process clause?
A: Yes [Cervantes v. Tanodbayan (1999) and Tatad v. Sandiganbayan, 159 SCRA 70].
Q: Is there a denial of due process when there is a “continuing investigation” that was
snarled only because of the complexity of the issues involved?
A: No. In Santiago v. Garchitorena, although the offense was allegedly committed on or before
October 17, 1988 and the information was filed only on May 9, 1991, and an amended
information filed on December 8, 1992, the delay did not constitute a denial of due process
there was a “continuing investigation” snarled only because of the complexity of the issues
involved [Santiago v. Garchitorena].
Q: Is there a violation of due process when the 6 year delay in the termination of the
preliminary investigation was caused by the petitioner's own acts and not by the inaction
of the prosecution?
A: No [Socrates v. Sandiganbayan].
IMPARTIAL COURT OR TRIBUNAL
Q: What is the quantum of proof required to disqualify a judge on the ground of bias and
prejudice?
A: The movant must prove such bias by clear and convincing evidence [Webb v. People
(1997)].
Q: In the case of Webb v. People, was there malice or bad faith on the part of the judge
when she issued the assailed rulings?
A: No. The petitioners failed to adduce any extrinsic evidence to prove that the respondent
judge was motivated by malice or bad faith on the part of the judge when she issued the
assailed rulings [Webb v. People (1997)].
Q: Is cross-examination of the accused and the witness by the trial court an indication
bias, and thus violated due process?
A: Yes [Imelda Romauldez Marcos v. Sandiganbayan, Tabuena v. Sandiganbayan,
Nachura p. 244].
120
Q: Are mere clarificatory questions of the judge to clear up dubious points and elicit
relevant evidence indicative of bias?
A: No. Where the questions propounded by the court are merely for clarification, to clear up
dubious points and elicit relevant evidence, such questioning will not constitute bias [People v.
Castillo; Cosep v. People; People v. Galleno].
Q: Where the trial court intensively questioned the witnesses and the accused
(approximately 43% of the questions asked of the prosecution witnesses and the
accused were propounded by the judge), was the questioning necessary?
A: Yes. Judges have as much interest as counsel in the orderly and expeditious presentation of
evidence and have the duty to ask questions that would elicit the facts on the issues involved,
clarify ambiguous remarks by witnesses, and address the points overlooked by counsel
[People v. Herida (2001)].
RIGHT TO A HEARING
Q: Is there a denial of due process of law when the trial court convicted the accused
(after having declared that they had waived their right to present evidence), but it was
shown that there were deviations from the regular course of trial, e.g. petitioners were
not directed to present evidence to prove their defenses nor dates set for that purpose,
and petitioners had not admitted the offense charged in the information which would
have justified any modification in the order of the trial?
A: Yes [Alonte v. Savellano].
Q: Is the re-opening of a case without giving the accused the opportunity to introduce
controverting evidence an error and denial of due process?
A: Yes [Defensor-Santiago v. Sandiganbayan].
Q: Is there a denial of due process where the trial court refused to grant the petition of
Webb to take the deposition of witnesses residing abroad, considering that the testimony
of the witnesses would be merely corroborative, the defense had already presented 57
witnesses and 464 documentary evidence, and the court had already admitted the
exhibits on which the said witnesses would have testified?
A: No [Webb v. People (1997)].
121
.
Q: Is RA 7080 (Plunder Law), as amended by RA 7659, unconstitutional?
A: No. In Joseph Ejercito Estrada v. Sandiganbayan, the Court ruled that the petitioners
failed to discharge that burden to overcome the presumption of constitutionality.
1. The law contains ascertainable standards and well-defined parameters which would
enable the accused to determine the nature of the violation. Section 2 is sufficiently
explicit in its description of the acts, conduct and conditions required or forbidden, and
prescribes the elements of the crime with reasonable certainty and particularity.
2. Section 4 does not circumvent the immutable obligation of the prosecution to prove
beyond reasonable doubt the predicate acts showing unlawful scheme or conspiracy.
The prosecution has to prove beyond reasonable doubt the number of acts sufficient to
form a combination or a series which would constitute a pattern involving an amount no
less than P50 million.
3. The legislative declaration in RA 7659 that plunder is a heinous crime implies that it is
malum in se. If the acts punished are inherently immoral or inherently wrong, they are
mala in se even if punished under special laws, particularly because in plunder the
predicate crimes are mainly mala in se [Joseph Ejercito Estrada v. Sandiganbayan].
PLEA OF GUILT TO A CAPITAL OFFENSE
Q: What are the stringent constitutional standards impelled by the due process clause
whenever the accused pleads guilty to a capital offense?
A:
1. The trial court must conduct a searching inquiry into the voluntariness of the plea and
the full comprehension of the consequences thereof;
2. The prosecution shall be required to present evidence to prove the guilt of the
accused and the precise degree of his culpability; and
3. The accused must be asked if he desires to present evidence on his behalf and
allow him to do so if he so desires [People v. Sta. Teresa (2001)]
Q: Is the procedure to be observed when the accused pleads guilty to a capital offense
mandatory?
A: Yes. It is mandatory and a judge who fails to observe with fealty the said rules commits grave
abuse of discretion [People v. Ostia (2003)].
122
STATE AND THE OFFENDED PARTY ARE ENTITLED TO DUE PROCESS
Q: Is the state and the offended party also entitled to due process of law?
A: Yes [Nachura].
Q: What is the effect of a finding by the Supreme Court that there was bias and partiality
on the part of the judge and the prosecutor?
A: The judgment of acquittal was vacated [Galman v. Pamaran].
Q: Is there a denial of due process when the public prosecutor, who was under the legal
obligation to pursue the action on the behalf of the petitioner (mother of the victim in a
rape with homicide case), reneged on that obligation and refused to perform his sworn
duty
A: Yes [Merciales v. CA].
Q: Is there a denial of due process when there is a public prosecutor who represented it
at every stage of the proceedings --- from arraignment to promulgation of the dismissal
order --- to protect its interest?
A: No [People v. Verra (2002)].
PRESUMPTION OF INNOCENCE
Q: What is the effect of presumption of innocence?

A: Every circumstance favoring the innocence of the accused must be taken into account. The
proof against him must survive the test of reason; the strongest suspicion must not be permitted
to sway judgment [People v. Austria].
AA: The principal effect of the presumption of innocence is that no person shall be convicted
unless the prosecution has proved him guilty beyond reasonable doubt. [Bernas]
Q: Is the provision of an election statute which disqualified from running for public office
any person who has committed any act of disloyalty to the State “provided that the filing
of charges for the commission of such crimes before a civil court or military tribunal
shall be prima facie evidence of such fact” constitutional?
A: No. It is unconstitutional for being violative of the presumption of innocence clause [Dumlao
v. COMELEC].
123
Q: What is the effect of inculpatory facts and circumstances that are capable of two or
more explanations, one consistent with the innocence of the accused and the other
consistent with his guilt?
A:The acquittal of the accused is inevitable [People v. Lomboy (1999)].
Q: Does the preventive suspension pendente lite violate the right to be presumed
innocent?
A: No, because preventive suspension is not a penalty. [Gonzaga v. Sandiganbayan]
Q: Does presumption of innocence preclude the State from shifting the burden of proof
to the accused?
A: The State having the right to declare what acts are criminal, within certain well defined
limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof
shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of
showing that such act or acts are innocent and are not committed with any criminal intent or
intention. [US v. Luling]
Q: Article 217 of the Revised Penal Code says that failure of an accountable officer to
produce money in his charge upon demand shall be prima facie evidence of
malversation. Does such law violate the presumption of innocence?
A: No, it is a natural inference; since it is only a prima facie presumption, the accused has the
opportunity to rebut it. [PP v. Mingoa]
Q: When does the presumption of innocence end?

A: Until the finality of the case. [Re: Judge Angeles, A.M. No. 06-9-545-RTC]
Q: Cases where the presumption of innocence was not overcome.

A:
1. The presumption of innocence was held not to be overcome by the prosecution evidence
where the victim had difficulty in identifying the accused not only during the hospital
confrontation but also in open court [People v. Alcantara].
124
2. Where the prosecution failed to present the alleged poseur-buyer, because without
the testimony of the latter. There is no convincing evidence that the accused was a
marijuana peddler and not merely a victim of instigation [People v. Tapeda].
3. Where the testimony of the prosecution is marred by inconsistencies [Layug v.
Sandiganbayan].
Q: Can the presumption of regularity of official duties by itself prevail over the
constitutional presumption of innocence?
A: The presumption of regularity of official duties cannot by itself prevail over the
constitutional presumption of innocence [People v. Martos]. It must not be the sole basis of
conviction [People v. Acuram].
Q: When will the constitutional presumption of innocence not apply?
A: It will not apply as long as there is some logical connection between the fact proved and the
ultimate fact presumed, and the inference of one fact from proof of another shall not be so
unreasonable as to be a purely arbitrary mandate. In such a case the burden is thus shifted to
the possessor of the dangerous drug to explain the absence of animus possidendi [People v.
Burton].
Q: In order that the constitutional presumption may be overcome in a prosecution for the
illegal sale of dangerous drugs, what must be proven?
A:
1. Transaction or sale took place;

2. The corpus delicti was presented as evidence;
3. The buyer and seller are identified; as to the second element, the integrity of the
corpus delicti must be preserved, and the chain of custody requirement, under RA 9165,
be followed [People v. De Guzman].
Q: What does the chain of custody ensure?
A: It ensures that there are no unnecessary doubts concerning the identity of the evidence
[People v. De Guzman].
Q: Can the seizure and custody of the drugs remain valid despite failure to comply with
the chain of custody procedure?
A: Yes. The seizure and custody of the drugs remain valid despite failure to comply with the
chain of custody procedure if:
i) the non-compliance is attended with justifiable circumstances
ii) the integrity and evidentiary value of the seized items are properly preserved
[People v. De Guzman].
125
Q: Can the constitutional presumption of innocence be overcome by contrary
presumptions?
A: Yes. It may be overcome by contrary presumptions based on the experience of human

conduct, such as unexplained flight which may lead to an inference of guilt, or the inability of an
accountable officer to produce funds or property entrusted to him which is considered prima
facie evidence of misappropriation [Nachura].
Q: Does the prima facie presumption of accountability shatter the presumption of

innocence?
A: No, even if prima facie evidence arises, certain facts still have to be proved. It must be
satisfied that the petitioner is guilty beyond reasonable doubt. And this finding must rest upon
the strength of the prosecution’s own evidence, not on the weakness, deficiency or absence of
evidence for the defense [Madarang v. Sandiganbayan, and Agullo v. Sandiganbayan].
Q: Will the presumption that the possessor of a forged or falsified document is the
author of the forgery or falsification prevail over the presumption of innocence?
A: No [Monteverde v. People].
Insert Ong v. Sandiganbayan, Nachura page 249, one paragraph only hehe.
CIRCUMSTANTIAL EVIDENCE
Q: Can circumstantial evidence warrant a conviction?
A: In order that circumstantial evidence may warrant conviction the following requisites must
concur:
1. There is more than one circumstance;

2. The facts from which the inferences are derived are proven; and
3. The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt [People v. Bato].
Q: Where the conviction is based on the circumstantial gleaned from the sole testimony
of the son of the deceased, can there be a conviction?
A: No. The prosecution’s evidence does not constitute an unbroken chain leading, beyond
reasonable doubt, to the guilt of the accused, and therefore, cannot overthrow the constitutional
presumption of innocence [People v. Bato].
EQUIPOISE RULE
Q: When is the equipoise rule applicable?
A: When the evidence adduced by both parties are evenly balanced, the constitutional
presumption of innocence should tilt the scales in favor of the accused [Corpus v. People].
WHO CAN INVOKE THE PRESUMPTION OF INNOCENCE
Q: Who can invoke the presumption of innocence?
126
A: An individual accused of a criminal case; a corporate entity has no personality to invoke the
same [Feeder International Line v. Court of Appeals].
RIGHT TO BE HEARD BY HIMSELF AND COUNSEL
Q: Where does the right to counsel proceed from?
A: The right to counsel proceeds from the fundamental principle of due process which basically
means that a person must be heard before being condemned. It is more than just the
presence of a lawyer in the courtroom or the mere propounding of standard questions and
objections. It means that the accused is amply accorded legal assistance extended by a counsel
who commits himself to the cause of the defense and acts accordingly. Tersely put, it means an
efficient and truly decisive legal assistance, and not simply a perfunctory representation
[People v. Bermas].
Q: What are the elements of the general right to be heard?

A: [Bernas]
1. The right to be present at the trial;
2. The right to counsel;
3. The right to an impartial judge;
4. The right of confrontation; and
5. The right to compulsory process to secure the attendance of witnesses.
Q: What is the scope of the right to be present at the trial?

A: It covers only the period from arraignment to promulgation of the sentence. [US v.
Beecham]. However, after arraignment, the trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is unjustifiable.
[Section 14(2), Article III]
Q: What are the conditions for waiver of the right to be present at the trial?
A: The right may be waived “provided that after arraignment he may be compelled to appear for
the purpose of identification by the witness of the prosecution, or provided he unqualifiedly
admits in open court after his arraignment that he is the person named as the defendant in the
case on trial. [PP v. Presiding Judge]
Q: When an accused waives his appearance in further proceedings and says that “he
may be identified by witnesses even in his absence”, may he still be compelled to appear
for purposes of identification?
A: Yes. In order for him to be excused completely from appearance it is not enough that he
allows himself to be identified by witnesses in his absence. He must further unqualifiedly admit
that every time a witness mentions a name by which he is known the witness is to be
understood as referring to him. [Carredo v. PP]
Q: What are the requisites of a valid trial in absentia?

A: [Parada v. Veneracion]
1. The accused has already been arraigned;
127
2. He has been duly notified of the trial; and
3. His failure to appear is unjustifiable.
Q: Does the provision on trial in absentia preclude forfeiture of bail bond under the Rules
of Court for one who jumps bail?
A: No, the provision does not lend itself to a latitudinarian construction. [PP v Judge Prieto, Jr.]
Q: Is a PAO lawyer considered an independent counsel?
A: PAO Lawyer is considered an independent counsel [Estrada v. Badoy].
Q: who are not considered independent counsels within the contemplation of the
Constitution?
A: Those whose interest are admittedly adverse to the accused, such as:
1. Special counsel,
2. Public or private prosecutor,
3. Counsel of the police,
4. Municipal Attorney [Estrada v. Badoy].
RIGHT TO COUNSEL DURING TRIAL IS NOT SUBJECT TO WAIVER
Q: Is the right to counsel during trial subject to waiver?
A: The right to counsel during trial is not subject to waiver [Flores v. Ruiz].
Q: Why is the right to counsel not subject to waiver?
A: “Even the most intelligent or educated man may have no skill in the science of law,
particularly in the rules of procedure, and without counsel, he may be convicted not because he
is guilty but because he does not know how to establish his innocence [People v. Holgado].
Q: What is the effect when the accused was represented by someone who was not a
member of the Philippine Bar?
A: The conviction of the accused in the lower court was set aside and the case remanded for a
new trial [People v. Santociles].
Q: Is failure of the record to disclose affirmatively that the trial court advised the accused
of his right to counsel sufficient ground to reverse conviction?
A: No, failure of the record to disclose affirmatively that the trial court advised the accused of
his right to counsel is not sufficient ground to reverse conviction. The trial court must be
presumed to have complied with the procedure prescribed by law for the hearing and trial of
cases, and such presumption can be overcome only by an affirmative showing to the contrary
[People v. Agbayani].
Q: Is the client bound by the mistakes of his lawyer?
128
A: Generally, yes. The client is not bound by the mistakes of his lawyer except when the
negligence or incompetence of the counsel is deemed so grosss as to have prejudiced the
constitutional right of the accused to be heard [Andrada v. People].
Q: What duty is imposed on the judge by the guarantee of the right to counsel?
A: If the defendant appears without counsel he must be informed by the court that he has a right
to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If
he desires and is unable to employ counsel, the court must assign counsel to defend him. This
is a right which the defendant should not be deprived of, and the failure of the court to assign
counsel or, after counsel has been assigned, require him to perform this duty by appearing and
defending the accused would be sufficient cause for the reversal of the case. [US v. Gimeno]
Q: What are the pre-arraignment duties of a trial judge?

A: The four-fold duties are: [Rule 116, Section 6, ROC / PP v. Agbanyani]
1. To inform the accused that he has the right to have his own counsel before being
arraigned;
2. After giving such information, to ask accused whether he desires the aid of counsel;
3. If he so desires to procure the services of counsel, the court must grant him reasonable
time to do so; and
4. If he so desires to have counsel but is unable to employ one, the court must assign
counsel de oficio to defend him.
Q: Petitioner contends that the trial court should have appointed a counsel de oficio
when his counsel consistently failed to appear for his cross-examination. Decide.
A: The duty of the court to appoint counsel de oficio for the accused who has no counsel of
choice and desires to employ the services of one is mandatory only at the time of arraignment.
No such duty exists where the accused has proceeded to arraignment and then trial with a
counsel of his own choice. [Libuit v. PP]
Q: Both the transcript of stenographic notes and the order issued by the trial judge failed
to disclose categorically that the court informed the accused of his right to counsel. Is
this sufficient ground to reverse conviction?
A: No. Presumption of regularity. [PP v. Agbayani]
Q: In times of emergency, may a person be denied the right to confer with counsel?
A: No. [Diokno v. Enrile]
Q: Convicted of rape, accused sought to withdraw his appeal to the SC on the ground
that he could not afford counsel. Should he be allowed?
A: No, he should be given counsel de oficio. [PP v. Rio]
RIGHT TO BE INFORMED OF THE NATURE AND ACCUSATION AGAINST HIM
RATIONALE
Q: What is the purpose and scope of the right to be informed?
129
A: The object of the written accusation is: [US v. Karelsen]
1. To furnish the accused with such a description of the charge against him as will enable
him to make his defense;
2. To avail himself of his conviction or acquittal for protection against a further prosecution
for the same cause;
3. To inform the court of the facts alleged, so that it may decide whether they are sufficient
in law to support a conviction, if one should be had.
REQUISITES
Q: What are the requisites?
A:
1. Information must state the name of the accused

2. The designation given to the offense by a statute
3. Statement of the facts or omission so complained constituting the offense
4. The name of the offended party
5. The approximate time (precise time only when time is a material ingredient) and date of
the commission of the offense
6. The place where the offense was committed [People v. Quitlong].
Q: Informations charges the accused of two counts of rape; however, the evidence
presented during the trial established that the accused raped the victim on six separate
occasions. May the accused be convicted of six counts of rape?
A: No, this is a violation of the right to be informed of the accusation against him. The accused
cannot be held liable for more than what he was charged with. [PP v. Ranido]
Q: Is the precise time needed to be indicated in the information?

A: No, unless the time is an essential element of the crime charged. [PP v. Bugayong]
Q: Accused is charged with two informations containing two sets of facts. May the facts
in the two informations be combined to allow a conviction for a complex crime
consisting of the allegations in the two informations?
A: No, although the trial may be joint, there should be two separate verdicts for the two
informations. To combine the two informations is a violation of his right to be informed. [PP v.
Ramirez].
VOID FOR VAGUENESS RULE
Q: What is the Void for Vagueness Rule?
130
A: The accused is denied the right to be informed where the statute itself is couched in such
indefinite language that it is not possible for men of ordinary intelligence to guess at its
interpretation and differ as to its meaning [Ejercito Estrada v. Sandiganbayan].
WAIVER
Q: Can the right to be informed of the nature and cause of the accusation be waived?
A: No. The right to be informed of the nature and cause of the accusation may not be waived
but the defense may waive the right to enter a plea and let the court enter a plea of not guilty
[People v. Dy].
POLITICAL OFFENSE DOCTRINE
Q: What is Political Offense Doctrine?
A: When common crimes are perpetuated in furtherance of a political offense, the offenses are
divested of their character as common offenses and assume political complexion [People v.
Hernandez].
AA: The political offense doctrine states that certain crimes, such as murder, are already
absorbed by the charge of rebellion when committed as a necessary means and in connection
with or in furtherance of rebellion. [J. Leonen, concurring opinion, Ocampo v. Obando]
RIGHT TO SPEEDY AND IMPARTIAL PUBLIC TRIAL
Q: Definition.
A:
Speedy Trial A trial free from vexation, capricious and oppressive delays.
But justice and fairness, not speed, are the objectives
[Nachura, see Acevedo v. Sarmiento; Martin v. Ver].
Impartial Trial The accused is entitled to the “cold neutrality of an impartial

judge” [Nachura].
Public Trial The court doors must be open to those who wish to observe
the procedure [Request for Live TV Coverage of the Trial of
Former President Joseph Estrada].
Intended to prevent possible abuses which may be committed

against the accused. The rule is not absolute [Nachura, p.
258].
SPEEDY TRIAL
Q: What is a speedy trial?
A: A trial free from vexation, capricious and oppressive delays. But justice and fairness, not
speed, are the objectives [Nachura, see Acevedo v. Sarmiento; Martin v. Ver].
131
Q: What is the accused entitled to if the trial is unreasonably delayed?
A: Accused is entitled to dismissal, equivalent to acquittal, if trial is unreasonably delayed

[Nachura, p 256]. If the accused is under detention, he is entitled to release by habeas corpus.
[Bernas].
Q: Is the right to speedy trial relative?
A: Yes, it is subject to reasonable delays and postponements arising from illness, medical
attention, body operations, etc. [People v. Ginez].
Q: When is the right to speedy trial violated?
A: Violated when the proceeding is attended by vexatious, capricious, and oppressive delays, or
when unjustified postponements of the trial are asked for and secured, or when without
justifiable motive, a long period of time is allowed to elapse without the party having his case
tried [de la Rosa v. CA].
Q: What does the right to speedy trial mean?
A: It means one that can be had as soon after indictment is filed as the prosecution can, with
reasonable diligence, prepare for trial [People v. Ginez].
Q: Is the right violated when the hearing was postponed twice and for a period of less
than two months?
A: No [People v. Tampal].
Q: What are the different interests of the defendant which the right to speedy trial are
designed to protect?
A:
1. To prevent oppressive pre-trial incarceration;

2. To minimize anxiety and concern of the accused; and
3. To limit the possibility that the defense will be impaired [Uy v. Hon. Adriano (2006)].
Q: Can the right to speedy trial be sustained if it would result in the clear denial of due
process to the prosecution?
A: No [Uy v. Hon. Adriano (2006)].
Q: Is a separate trial consonant with the right of the accused to a speedy trial?
A: Yes. A separate trial is consonant with the right of the accused to a speedy trial [Dacanay v.
People].
Q: RA 8493 [Speedy Trial Act] Periods:
A:
132
Arraignment 30 days from filing of the information or date
of surrender or appearance before the justice,
judge or court in which the charge is pending,
whichever date last occurs.
Plea of not guilty is entered The accused shall have 15 days if he enters
the plea of not guilty.
Trial within 30 days from arraignment
Period of Trial 180 days except as otherwise authorized by

the Chief Justice of the Supreme Court [RA
8493].
Q: What is RA 8493?
A: Speedy Trial Act. It is a means of enforcing the right of the accused to a speedy trial The
spirit of the law is that the accused must go on record in the attitude of demanding a trial or
resisting delay. If he does not do this, he must be held, in law, to have been waived the privilege
[Uy v. Hon Adriano (2006)].
Q: Violation of periods prescribed in RA 8493.
A: May be used as a ground to dismiss the case for violation of the right to speedy trial. Except
when the delay is allowable under the law.
Note: Dismissal is tantamount to acquittal as to not put the accused in double jeopardy.
Violation to right of speedy disposition of case if there has been no trial yet.
Q: Due to postponements of trial, the court issued a provisional dismissal with the
consent of the accused. The case was refiled and the accused interposed quashal based
on his right to speedy trial. Decide.
A: The defense is not proper, (1) there was no delay in trial, there being no indictment as yet; (2)
the consent of the accused was a waiver of right not to be prosecuted for the same offense.
[Bermisa v. CA]
Q: Complainant was not charged until after a period of one year and seven months of
detention. He asks for release on habeas corpus on the ground of denial of the right to a
speedy trial. Proper?
A: No. One begins to count the delay of the trial only after the filing of the information. Moreover,
the delay contemplated by the Constitution is an unreasonable delay. [Martin v. General Ver]
IMPARTIAL TRIAL
Q: What is an impartial trial?

A: The accused is entitled to the “cold neutrality of an impartial judge” [Nachura].
133
Q: Is publicity prejudicial to the right of the accused?
A: Pervasive publicity is not per se prejudicial to the right of the accused to a fair trial [People v.
Sanchez].
Q: Petitioner accused had been convicted of arson by the respondent judge who had
attributed to the accused the desire to destroy evidence of altercation as the motive for
arson. The same judge is now trying the accused for the same malversation. Should the
judge disqualify himself?
A: Yes. [Ignacio v. Villaluz]
Q: Where a judge conducted the preliminary investigation and made a finding of

probable cause, must he for that reason be disqualified from trying the case?
A: No, in the absence of evidence of partiality. [PP v. Sendaydiego]
Q: Appellant contends that the lack of impartiality of the judge was shown by the fact
that he intervened in the cross-examination. Decide.
A: It is not only a right but a duty of the trial judge to examine witnesses when it appears
necessary for the elucidation of the record. [PP v. Manalo]
PUBLIC TRIAL
Q: What is a Public Trial?

A: The court doors must be open to those who wish to observe the procedure [Re: Request for
Live TV Coverage of the Trial of Former President Joseph Estrada].
Q: When is trial “public”?

A: It is public when attendance is open to all irrespective of relationship to defendants. [Garcia
v. Domingo]
Q: Restriction on public trial.

A: When the evidence to be presented may be characterized as “offensive to decency or public
morals”, the preceding may be limited to friends, relatives, and counsel. [Garcia v. Domingo]
Q: On mandatory review of a death sentence, the defense is raised (for the first time) that
the right to a public trial was denied because arraignment and hearing were not in court
but in the Bilibid Prison. This was done for security reasons. Is the defense valid?
A: No (1) the public was not excluded, (2) the accused was not prejudiced, (3) the accused did
not object during trial. [PP v. Tampus]
Q: Is a public trial synonymous with a publicized trial?

A: No. It only implies that the court doors must be open to those who wish to come sit in the
available seats, conduct themselves with decorum and observe the trial process [Re: Request
for Live TV Coverage of the Trial of Former President Joseph Estrada].
134
RIGHT TO MEET WITNESSES FACE TO FACE
Q: What is the right to meet the witness face to face?
A: Right to cross-examine the complainant and the witnesses [Nachura].
Q: What is the purpose of the right of confrontation?

A: The right has a two-fold purpose:
1. To afford the accused an opportunity to test the testimony of the witnesses by cross-
examination; and
2. To allow the judge to observe the deportation of the witness.
[Bernas]
Q: The witness testified during the preliminary investigation and was extensively cross-
examined by the defense. The witness “could not be found in spite of the combined
efforts of the national and local law enforcement agencies”. May the transcripts during
preliminary investigation be admitted in evidence?
A: Yes, since the admission will be for the same criminal case and extensive opportunity for
cross-examination was already given. The witness is actually missing; no fault on either party.
[PP v. Villaluz]
Q: May an affidavit executed by a witness be admitted in evidence even if the witness is

not produced in court?
A: No, because that would violate the right to confrontation. [PP v. Ramos]
Q: What are the principal exceptions to the right of confrontation?

A: (1) The admissibility of “dying declarations”; and (2) trial in absentia under Section 14(2).
Q: The cross-examination was not finished due to time constraint, the witness was shot
dead before the appointed date for continuing the cross-examination. Admissible?
A: Yes, it was not due to the fault of any party. The rule is that so much of the testimony as has
already been covered by cross-examination should be admissible in evidence. [PP v. Seneris]
Q: Is the right to confrontation available in preliminary investigation?

A: No. It is a right available during trial which begins only upon arraignment. [Dequito v.
Arellano]
Q: Must an informant who led the police to the arrest of the accused be presented for
cross-examination?
A: No. There is no right of confrontation against informants who are not witnesses. [Bernas]
Q: Is the testimony of a witness who has not submitted himself to cross-examination

admissible?
A: No. The testimony of a witness who has not submitted himself to cross-examination is not
admissible as evidence [People v. Quidato].
135
Q: Are the affidavits of witnesses who are not presented during the trial admissible?
A: No, they are inadmissible because they are hearsay [People v. Quidato].
RIGHT TO COMPULSORY PROCESS
Q: What is the right to compulsory process?
A: It is the right to secure the attendance of witnesses and the production of evidence [Article
III, Section 14].
Q: What is a subpoena?
A: A subpoena is a process directed to a person requiring him to attend and to testify at the
hearing of trial of an action or at any investigation conducted under the laws of the Philippines,
or for the taking of his deposition [Caamic v. Galapon].
Q: What are the two kinds of subpoena?
A:
Subpoena ad testificandum To compel a person to testify [Nachura,

Roco v. Contreras (2005)].
Subpoena duces tecum To compel the production of books, record,

things or documents therein specified
[Nachura, Roco v. Contreras (2005)].
Q: Before a subpoena duces tecum may issue, what must the court first satisfy?
A:
1. Test of Relevancy - The books, documents, or other things must appear prima facie
relevant to the issue subject of the controversy;
2. Test of Definiteness - Such books must be reasonably described by the parties to be
readily identified [Roco v. Contreras (2005)].
Q: What are the requisites for compelling the attendance of witnesses and the production
of evidence?
A: Requisites:
1. The evidence is really material

2. Accused is not guilty of neglect in previously obtaining the production of said evidence
3. The evidence will be available at the time desired
4. No similar evidence can be obtained [People v. Chua, reiterating US v. Ramirez].
TRIAL IN ABSENTIA
Q: Purpose of Trial in Absentia?
136
A: The purpose of this rule is to speed up the disposition of criminal cases, trial of which could,
in the past, be indefinitely deferred, and many times completely abandoned, because of the
defendant’s escape [People v. Agbulos].
Q: When can there be promulgation of judgment in absentia?
A: There can be promulgation of judgment in absentia in view of the failure of the accused to
appear despite notice [Section 6, Rule 120 of the Revised Rules of Criminal Procedure].
Q: When is trial in absentia mandatory?
A:
1. Whenever the accused has been arraigned, notified of date/s of hearings, and
2. His absence is unjustified [Nachura p. 259, see Gimenez v. Nazareno].
Q: Does waiver of appearance or trial in absentia mean that the prosecution is thereby
deprived of the required presence of the accused for purposes of identification by its
witness?
A: No, it does not mean that waiver of appearance or trial in absentia mean that the prosecution
is thereby deprived of the required presence of the accused for purposes of identification by its
witness which is vital for the conviction of the accused [People v. Macaraeg].
Q: Even after the accused has waived further appearance, can he be ordered arrested by
the court for non-appearance upon summons to appear for purposes of identification?
A: Yes, he can be ordered arrested by the court for non-appearance upon summons to appear
for purposes of identification [Carredo v. People].
Q: When is the presence of the accused mandatory?
A: AP-TI-PS
1. During arraignment and plea;

2. During trial, for identification;
3. During promulgation of sentence, unless for a light offense wherein the accused may
appear by counsel or a representative [Nachura, p. 259].
Q: Does the accused who escapes from confinement, or jumps bail, or flees to a foreign
country, lose standing in court and is deemed to have waived his right to seek relief from
court, including the right to appeal his conviction?
A: Yes, and unless he surrenders or submits himself to the jurisdiction of the court, he is
deemed to have waived his right to seek relief from court, including the right to appeal his
conviction [People v. Mapalao].
Q: Can one who jumps bail offer a justifiable reason for his non-appearance during the
trial?
A: Never [People v. Acabal].
137
Q: After the trial in absentia, how can the court render judgment in the case and
promulgation?
A: After the trial in absentia, the court can render judgment in the case and promulgation can be
made by simply recording the judgment in the criminal docket with a copy thereof served upon
his counsel, provided that the notice requiring him to be present at the promulgation of judgment
is served through his bondsmen or warden and counsel [People v. Acabal].
Q: What is the effect of an accused who failed to appear at the promulgation of the
judgment of conviction?
A: An accused who failed to appear at the promulgation of the judgment of conviction shall:
1. Lose the remedies available against the judgment; and

2. The court shall order his arrest [Section 6, Rule 120 of the Rules of Court].
Q: Does Section 6, Rule 120 take away substantive rights?
A:No, it does not take away substantive rights; it merely provides the manner through which an
existing right may be implemented [Reynaldo Jaylo v. Sandiganbayan].
Q: Is motion for reconsideration a statutory grant or privilege?
A: Like an appeal, a motion for reconsideration is a statutory grant or privilege. As a statutory

right, the filing of a motion for reconsideration is to be exercised in the manner provided by law;
the party filing such a motion must strictly comply with the requisites laid down by the Rules
[Reynaldo Jaylo v. Sandiganbayan].
HABEAS CORPUS
Q: What is a Writ of Habeas Corpus?

A: A writ issued by a court directed to a person detaining another, commanding him to
produce the body of the prisoner at a designated time and place, with the day and cause of
his capture and detention, to do, to submit to, and to receive whatever the court or judge
awarding the writ shall consider in his behalf.
Q: What is the “Privilege of the Writ of Habeas Corpus”?
A: It is the right to have an immediate determination of the legality of the deprivation of physical
liberty. [Bernas Primer, pg. 146]
Q: What may be suspended, the writ or the privilege of the writ?
A: The writ is NEVER suspended. It always issues as a matter of course. What is suspended is
the privilege of the writ. Example: The officer making the return shows the court that the person
detained is detained for an offense. [Bernas Primer, pg. 146]
Q: Who can suspend the privilege?
138
A: The President.
Q: When may the privilege be suspended?
A: Article III, Section 15. For a suspension be considered valid, two requisites must concur:
1. The existence of actual invasion or rebellion

2. Public safety requires it
Q: What are the limitations on the power to suspend the privilege?
A: Article VII, Section 18
1. In case of invasion or rebellion, when the public safety requires it, he (the President)
may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law.
2. Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person
or in writing to the Congress.
3. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President.
4. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
5. The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without any need of a
call.
6. The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must promulgate
its decision thereon within thirty days from its filing.
7. A state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the conferment
of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
8. The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with the
invasion.
9. During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Q: Does the suspension of the Writ of Habeas Corpus suspend the right to bail?
A: No. The right of bail shall not be impaired even when the privilege of the writ of habeas
corpus is suspended. [Art. III, Section 13.]
Q: When is the Writ of Habeas Corpus available?
139
A: It secures the prisoner the right to have the cause of his detention examined and
determined by a court, and to have the issues ascertained as whether he is held under
lawful authority. It may be availed of where, as a consequence of a judicial proceeding:
a. There has been deprivation of a constitutional right resulting in the restraint of the
person;
b. The court has no jurisdiction to impose the sentence; or
c. An excessive penalty has been imposed, since such a sentence is void as to the excess
[Feria vs. CA]
d. The rightful custody of any person is withheld from the person entitled thereto. [Tijing
vs. CA]
Q: Cases where Writ of Habeas Corpus was granted:
A:
1. It was issued on the ground that moral restraint was being exerted by the employer to
prevent the housemaid from leaving. [Caunca vs. Salazar]
2. A person detained during Japanese occupation for an offense of political complexion
could demand his release of habeas corpus after the legitimate government was
restored. [Alcantara vs. Dir. of Prisons]
3. The right was accorded a person sentenced to a longer penalty than was subsequently
meted out to another person convicted of the same offense. [Gumabon vs. Dir. of
Prisons]
4. It may also be availed of in case of unlawful denial of bail.
Q: In what cases can a Writ of Habeas Corpus be not issued?
A: It will issue where the person alleged to be restrained of liberty is in the custody of an officer
under a process issued by the court which has a jurisdiction which has jurisdiction to do so.
Q: Example of cases where the Writ of Habeas Corpus was not issued
A:
1. Even if the detention is, at its inception, illegal, the issuance of a judicial process, may
prevent the discharge of a detained person. [Jackson vss. Macalino]
2. If the petitioner was under the detention pursuant to the order of arrest of
Sandiganbayan. [Serapio vs. Sandiganbayan]
3. The petitioner had already been charged and ordered deported by Bureau of
Immigration and Deportation. [Tung Chin Hui vs. Commissioner Rodriguez]
4. Where the person detained applied for and was released on bail, petition for habeas
corpus became moot and academic. [Magno vs. CA]
Q: Can the invalidity of a preliminary investigation and the prescription of the offense a
valid ground for issuance of the Writ of Habeas Corpus?
A: NO. The proper remedy is to file a motion to quash the warrant of arrest, or a motion to
quash the information based on prescription.
Q: What court can entertain petitions for Habeas Corpus?
A: All courts of competent jurisdiction. [Nachura; Angeles vs. Dir. of New Bilibid Prison]
140
SPEEDY DISPOSITION OF CASES
Q: Speedy disposition of cases.
A: All persons shall have the right to a speedy disposition of cases before all judicial, quasi-
judicial, or administrative bodies.
Q: Relation to right of the accused to speedy trial (Sec. 14, Art. III).
A: Speedy trial is a trial free from vexation, capricious and oppressive delays. But justice and
fairness, not speed, are the objectives [Nachura, see Acevedo v. Sarmiento; Martin v. Ver]. The
right to a speedy trial, as well as other rights conferred by the Constitution or statute, may be
waived except when otherwise expressly provided by law. One’s right to speedy disposition of
his case must, therefore, be asserted. Failure to assert this right would be considered a waiver.
[Barcelona v. Lim]
SPEEDY TRIAL SPEEDY DISPOSITION OF CASES
Violated only when the proceedings are Violated only when the proceedings are
attended by vexatious, capricious and attended by vexatious, capricious and
oppressive delays, or when unjustified oppressive delays, or when unjustified
postponements of the trial are asked for and postponements of the trial are asked for and
secured, or when without cause or justifiable secured, or when without cause or justifiable
motive a long period of time is allowed to motive a long period of time is allowed to
elapse without the party having his case tried. elapse without the party having his case tried.
Applies only during the trial stage. Applies during the trial stage and also when
the case has already been submitted for
decision. [Nachura]
Q: No violation of the right when the delay is not attributable to the prosecution.
A: Although it was unfortunate, that it took about 8 years before the trial of the case was
resumed, there was no delay amounting to a violation of the petitioner’s right to speedy
disposition of cases, considering that the delay was not attributable to the prosecution.
[Sambang v. General Court Martial]
Q: Periods for decisions for courts [Sec. 15, Art. VIII]
A:
141
1. Supreme Court- 24 months
2. Lower Collegiate Courts- 12 months
3. All other lower courts- 3 months
SCOPE OF THE RIGHT
Q: Cases and proceedings covered.
A: Not limited to accused in criminal proceedings but extends to all parties in cases including
civil and administrative cases, and in all proceedings, including judicial and quasi-judicial
hearings. [Cadalin v. POEA Administrator]
Q: Parties covered.
A: Any party to a case may demand expeditious action on all officials who are tasked with the
administration of justice. [Id.]
Q: Does the right extend to those in the military?
A: Yes. the right extends to ALL CITIZENS and covers the period before, during and after the
trial, affording broader protection than Sec. 14(2), Art. III, which guarantees merely the right to
speedy trial. [Abadia v. CA]
FACTORS TO CONSIDER TO ASCERTAIN WHETHER THE RIGHT HAS BEEN VIOLATED
Q: What are the factors to consider whether the right to speedy disposition of cases has
been violated?
A:
1. Length of the delay
2. Reasons for the delay
3. Assertion or failure to assert such right by the accused
4. Prejudice caused by the delay [Tilendo v. Ombudsman]
Q: Failure of the Office of the Ombudsman to resolve a complaint that has been pending
before it for 6 years.
A: Violative of its mandate and the public officer’s right. The aggrieved party is entitled to
dismissal of the complaint.
Q: Failure to seasonably assert the right.

A: Failure to seasonably assert the constitutional right to speedy disposition of cases is deemed
as a waiver of such right.
142
SELF-INCRIMINATION
Q: What is the right against self-incrimination?

A: No person shall be compelled to be a witness against himself. [Sec. 17, Article III]
Q: Admission v. Confession
A: Confession - Admission of Guilt
Admission - Admission of Fact [Atty G].
Q: What is being prohibited by Section 17?

A: Testimonial compulsion [Atty G].
Q: Are object or physical evidence protected by Section 17?

A: No [Atty G].
Q: Bolo with blood of the accused, admissible?

A: Section 17, not applicable. However, check under Section 2. If legally acquired, yes. If
unlawfully acquired, inadmissible [Atty G].
Q: Sachet in the tummy of accused/suspect, police stomped on his tummy to get him to
barf it out, admissible?
A: Violation of due process clause [Atty G].
Q: Mechanical Acts not covered by Sec. 17.

A: Acts which can be done without the deliberate exercise of the intelligence are considered not
violative of the right against self-incrimination:
a. Wearing of blood stained shirt, gloves, slippers found at the scene
b. Booking procedures after the arrest
c. Being asked his name during a police line-up
d. Saliva swab or gadget to test if you are intoxicated
e. Mandatory drug testing of students, government employees, drivers
Q: Drug test, valid?

A:
a. Students, government employees, drivers- YES, as long as random, not to harass
b. Only when charged with violation of Dangerous Drugs Act, other crimes no [Atty G].
Q: Production of Documents
143
A: This right covers the compulsory production of private books and papers that may incriminate
the owner, with more reason if it will violate the lawyer-client privilege. (Regala v.
Sandiganbayan)
Q: Who are not covered by the protection against production of incriminating

documents?
A:
a. Corporations (the right only protects natural persons persons)- subject to the visitorial
and police powers of the state and disclosure requirements of the government
b. Accountable public officers cannot claim this right if they are subjected to audit and
inspection of the books and public documents under their custody
Q: Levels of Protection
A:
ACCUSED ORDINARY WITNESS
He cannot be called by the prosecution to He cannot refuse to take the witness box,
take the witness box especially if he was issued a subpoena
If he waives his right and takes the witness While testifying, he can refuse to answer
box, he can still refuse to answer any those questions which he deems
incriminating questions asked of him on the incriminating [Atty G].
witness box
Q: State Witness
A:
1. Least guilty,
2. Prosecution has no other witness to utilize [Atty G].
Q: Effect of being a state witness?

A: Dropped from being an accused, protected already by double jeopardy, even if the accused
was acquitted. Immunity stands [Atty G].
Q: Immunity.
A:
Transactional Immunity Blanket or total immunity
A witness is completely protected from future

prosecution for crimes related to his
testimony [Section 18(8), Article XIII, CHR].
Use and Fruits Immunity It prohibits the use of the witness compelled
testimony and its fruits in connection with the
144
criminal prosecution of the witness
The witness can still be prosecuted if the

govt can obtain evidence against him which
does not come from his testimony
AVAILABILITY
Q: Availability of the right against self-incrimination.
A:
1. Criminal prosecutions
2. All other government proceedings
a. Civil actions
b. Administrative investigations
c. Legislative investigations [Nachura]
Q: Who may claim the right?

A: The accused and as well as by any witness to whom a question calling for an incriminating
answer is addressed. [Nachura]
Q: When should the right be invoked?

A:
For a witness, it may be invoked only when and as the question calling for an incriminating
answer is asked, since the witness has no way of knowing in advance the nature or effect of the
question to be put to him.
For an accused, he may not be compelled to take the witness stand, on the reasonable
assumption that the purpose of the interrogation will be to incriminate him. Same is applied to a
respondent in an administrative proceeding where the respondent may be subjected to
sanctions of a penal character, such as the cancellation of his license to practice medicine
[Pascual v. Board of Medical Examiners] or the forfeiture of property. [Cabal v. Kapunan]
SCOPE
Q: What is the scope of the right?

A: Testimonial compulsion only. The right against self-incrimination is simply against the legal
process of extracting from the lips of the accused an admission of his guilt. It does not apply
where the evidence sought to be excluded is not an incriminating question but an object
evidence.
Q: Examples of things not covered by the right.

A:
145
1. Substance emitted from the body of the accused may be received in evidence [People v.
Rondero]
2. Hair samples taken from the accused [Id.]
3. Evidence involving DNA [People v. Vallejo]
4. May be compelled to submit to fingerprinting, photographing and paraffin testing [People
v. Gallarde]
5. Examination for STD [U.S. v. Tan Teng]
6. Pregnancy test [Villaflor v. Summers]
7. Undergo ultra-violet ray examination [People v. Tranca]
Q: Does the prohibition extend to compulsion for the production of documents, papers
and chattels that may be used as evidence against the witness?
A:
General Rule: Yes.
Exception: Where the State has a right to inspect the same (under the police or taxing power).
E.g. the books of accounts of corporation [Nachura]
Q: PCGG demanded that the petitioners-- lawyers and co-accused-- would be excluded
from the case if they revealed the identity of their clients and submit the documents
related to the suspected transactions. Does this demand violate the right of the
petitioners against self-incrimination?
A: Yes. The petitioners did not have to wait until they were called to testify; they could raise the
objection because they were not merely witnesses; they were parties in the case for the
recovery of ill-gotten wealth. [Regala v. Sandiganbayan]
Q: The subpoena duces tecum is directed to government officials required to produce

official documents/public records which are in their possession or custody. Can they
invoke the right?
A: No. There would be no violation of the right against self-incrimination [Almonte v Vasquez]
Q: Can the accused be compelled to furnish a specimen of his handwriting in connection

with a prosecution for falsification?
A: No. [Beltran v. Samson]
IMMUNITY
Q: What kinds of immunity may be granted to the witness?
A:
1. Transactional immunity- that which may be granted by the CHR to any person whose
testimony or whose possession of documents or other evidence is necessary or
convenient to determine the truth in any investigation conducted by it or under its
authority, which makes the witness immune from criminal prosecution for an offense to
which his compelled testimony relates. [Sec. 18(8), Article XIII]
146
2. Use and fruit immunity- prohibits the use of the witness’ compelled testimony and its
fruits in any manner in connection with the criminal prosecution of the witness. [Galman
v. Pamaran]
WAIVER
Q: How could the right be waived?

A:
1. Directly, or by
2. Failure to invoke
Provided that the waiver is certain and unequivocal and intelligently made. Thus, the
accused who takes the witness stand and voluntarily offers testimony in his behalf may be
cross-examined and asked incriminating questions on any matter he testified to on direct
examination.
Q: Rights of a person suspected of having committed a crime and subsequently charged

with its commission in the matter of his testifying or producing evidence:
A:
a. Before the case is filed in Court (or with Public Prosec for P.I.), but after having been
taken into custody or otherwise deprived of his liberty in some significant way, and on
being interrogated by the police:
1. The continuing right to remain silent and to counsel
2. To be informed thereof
3. Not to be subjected to force, violence, threat, intimidation or any other means
which vitiates the free will
4. To have evidence obtained in violation of these rights rejected and inadmissible
b. After the case is filed in Court:
1. Refuse to be a witness
2. Not to have any prejudice whatsoever result to him by such refusal
3. To testify in his own behalf subject to cross-examination; and
4. While testifying, to refuse to answer a specific question the answer to which
tends to incriminate him for some crime other than that for which he is being
prosecuted. [Nachura]
147
NON-DETENTION BY REASON OF POLITICAL BELIEFS OR

ASPIRATIONS
Q: Legal Basis.
A: No person shall be detained solely by reason of his political beliefs or aspirations [Sec. 18(1),
Art. III].
Q: Political Belief and Aspirations
A: The right can be manifested by other rights, such as freedom of speech and expression,
freedom to associate, freedom to assemble.
Q: When does the protection apply?
A: As long as the person does not perform any overt act that could be considered punishable
under the laws of the land, then the protection applies.
INVOLUNTARY SERVITUDE
Q: What is the prohibition against involuntary servitude?
A: No involuntary servitude in any form shall exist except as a punishment for a crime whereof
the party shall have been convicted. [Sec. 18(2), Art. III]
Reinforced by Art. 272, RPC: “The penalty of prison mayor and a fine not exceeding P10,000.00
shall be imposed upon anyone who shall purchase, sell, kidnap, or detain a human being for the
purpose of enslaving him.”
Q: Exceptions
A:
1. Punishment for a crime whereof one has been duly convicted

2. Service in defense of the State [Sec. 4, Art. III]
3. Naval enlistment
4. Posse comitatus (an assembly of armed citizens recruited by law enforcers as a force
multiplier)
5. Return to work in industries affected with public interest [Kapisanan ng Manggagawa v.
Gotamco Sawmills]
6. Patria potestas (parental authority)
148
Q: Does the requirement under RH Law for private and non-government health care
service providers to render 48 hours of pro bono services amount to involuntary
servitude?
A: No. Practice of medicine is imbued with public interest. The State has the power and duty to
control and regulate it in order to protect and promote public welfare. Moreover, the law only
encourages pro bono service and except for Philhealth accreditation, no penalty is imposed
should they do otherwise. Furthermore, conscientious objectors are exempted.
PROHIBITED PUNISHMENTS
Q: RA no. 9745 (2009)
A: Cruel, inhuman and degrading punishment refers to:
a. Deliberate and aggravated treatment or punishment not included as acts of torture,

b. Inflicted by a person in authority or agent of a person in authority
c. Against a person under his custody
d. Attains a level of severity causing suffering, gross humiliation or debasement to the
latter.
Q: Severity not enough
A: Mere severity alone does not constitute cruel or unusual punishment. The penalty must be
flagrantly and plainly oppressive wholly disproportionate to the nature of the offense as to shock
the moral sense of the community [Atty G]
Q: Torture
A: Definition for Torture Act
Q: Jus Cogens
A: Peremptory norm, a principle or rule which no derogation is permitted. Not allowed in any
circumstance. Torture is jus cogens [VCLT].
Q: Command Responsibility
A: Liable as principal. Knowledge is presumed, under laws of torture, when:
1. the one who commited torture is an immediate officer

2. Torture is being repeated within the area of territory [Atty G].
[Re Command Responsibility on Torture Law: Liability as principal- “should have known”
Yet,
149
1. Did not do anything to prevent it
2. Although tried to prevent it, yet failed to punish the responsible person]
NON-IMPRISONMENT FOR DEBT
Q: Debt
A: Any civil obligation arising from contract, expressed or implied - a purely private matter
Q: If committed debt, through fraud.
A: No longer pure debt, already fraud. Liable for estafa [Atty G].
Q: Trust receipt v. Promissory Note
A:
Trust receipt (not a pure debt) Fraud/Estafa can be filed
Promissory note (pure debt) No priso [Atty G].
Q: File a criminal case, credit card?
A: No, except when obtained through fraud [Atty G].
Q: Not a violation.
A:
1. Conversion of a criminal fine into a prison term does not violate this right because in
such a case imprisonment is imposed for a monetary obligation arising from ex delictu
not ex contractu
2. A criminal case arising from violation of Trust Receipt Law is not a violation, what is
punished is dishonesty and abuse of confidence in handling money and goods (police
power)
3. May isa pa but wala ko na type [Atty G].
DOUBLE JEOPARDY
Q: Legal Basis.
150
A: No person shall be twice put in jeopardy punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to
another prosecution for the same act [Section 21, Article III].
REQUISITES
Q: What are the requisites of double jeopardy?
A:
1. Valid complaint or information.

2. Filed before a competent court.
3. To which the defendant had pleaded.
4. Defendant was previously acquitted or convicted, or the case dismissed or otherwise
terminated without his express consent [Nachura].
VALID COMPLAINT OR INFORMATION
Q: Does double jeopardy attach in preliminary investigation?
A: No [Icasiano v. Sandiganbayan].
FILED BEFORE A COMPETENT COURT
Q: Will double jeopardy attach if 6 criminal informations were erroneously filed and the
accused had already been arraigned?
A: No. Where the 6 criminal information were erroneously filed with the City Court of Lucena
(which did not have jurisdiction, as the proper court was the CFI of Quezon) even if the accused
had already been arraigned, no double jeopardy will attach in the subsequent prosecution
[People v. Puno].
Q: Will double jeopardy attach where the first information was filed in the RTC of Angeles
City but jurisdiction was with the RTC of Pampanga inasmuch as the offense was
committed in Mabalcat, Pampanga?
A: No [Cudia v. Court of Appeals].
Q: What is the effect when it becomes manifest before the judgment that a mistake has
been made in charging the proper offense?
A: The first charge shall be dismissed to pave the way for the filing of the proper offense. The
dismissal of the first case will not give rise to double jeopardy inasmuch as, in this case, it is
clear that the MTC did not have jurisdiction to try the offense of rape [Gonzales v. Court of
Appeals].
Q: Can double jeopardy be availed of when the criminal case was dismissed by the RTC
so that the appropriate information may be filed before the Sandiganbayan which has
jurisdiction?
A: No, the defense of double jeopardy cannot be availed of by the petitioner [Cunanan v. Arceo].
151
TO WHICH THE DEFENDANT HAD PLEADED
Q: Should the arraignment be valid?
A: Yes, it should be valid [Atty G].
Q: Can double jeopardy be invoked if there has not yet been arraignment?
A: No [Flores v. Joven].
Q: Can the grant of a motion to quash, filed before the accused makes his plea, be
appealed by the prosecution?
A: Yes, because the accused has not yet been placed in jeopardy [Section 9, Rule 117, Rule
of Court].
Q: What is the effect when the accused, after pleading guilty, testified to prove mitigating
circumstances?
A: The testimony had the effect of vacating his plea of guilty [People v. Balisacan].
Q: Information was dismissed before arraignment.
A: Can be appealed, first jeopardy has not yet attached [Atty G].
DEFENDANT WAS PREVIOUSLY ACQUITTED OR CONVICTED, OR THE CASE

DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS EXPRESS CONSENT
Q: What is required before the first jeopardy can be pleaded to abate a second
prosecution?
A: The Supreme Court ruled that the following is still required before the first jeopardy can be
pleaded to abate a second prosecution:
1. Prior conviction, or
2. Acquittal, or
3. Termination of the case without the express consent of the accused [People v. Judge
Pineda].
Q: Termination of the case without the express consent of the accused.
A:
1. Fiscal moved for the provisional dismissal of the case (witnesses were not present),
accused did not give consent. There is a double jeopardy. If there is consent, no double
jeopardy. Counsel for the accused should have raised violation of speedy trial because
witnesses of prosecution were not present [Atty G].
2. During pre-trial, the Prosecutor moved for the dismissal of the case. Court granted it.
The SOJ ordered the case for re-filing. Allowed? No, no express consent of the accused
[Atty G].
152
Q: Prosecutor moved for dismissal of the case for lack of jurisdiction. Accused did not
consent. Can the case be filed again?
A: Yes, no court with competent jurisdiction requisite [Atty G].
Q: Dismissal due to demurrer to evidence.
A: Tantamount to acquittal (there is already consent of accused) [Atty G].
Q: Express Consent- exceptions. DJ sets in. (Cannot file MR or appeal).
A:
1. Dismissal due to demurrer to evidence

2. After three postponements by the prosecutor due to absence of witnesses (violation to
right to speedy trial)
3. State Witness [Atty G].
Q: Is the filing of two informations or complaints charging the same offense afford the
accused in those cases the occasion to complain that he is being placed in jeopardy
twice for the same offense?
A: No. The mere filing of two informations or complaints charging the same offense does not
afford the accused in those cases the occasion to complain that he is being placed in jeopardy
twice for the same offense, for the simple reason that the primary basis of the defense of double
jeopardy is that the accused has already been convicted or acquitted in the first case or the
same has been terminated without his consent [People v. Miraflores].
Q: Cases that do not give rise to double jeopardy.
A:
1. There is no double jeopardy where the accused was sentenced on plea-bargaining

approved by the court but without the consent of the fiscal [People v. Judge Villarima].
2. Neither will double jeopardy attach where the criminal case was mistakenly dismissed by
the court during a hearing that had already been earlier cancelled and removed from the
court calendar for that day [Gorion v. Regional Trial Court of Cebu].
3. The re-taking of testimony, made necessary because the transcript of stenographic
notes was incomplete and a new judge had taken over the case, does not give rise to
double jeopardy [Guerrero v. Court of Appeals].
Q: Does the promulgation of only one part of the decision, i.e., the modified civil
indemnity liability, a bar to the promulgation of the other part, the imposition of the
criminal accountability?
A: No [Cuizon v. Court of Appeals].
Q: When is a judgment of acquittal final, unappealable, and immediately executory?
A: Upon its promulgation [Villareal v. Aliga].
153
DISMISSAL OF THE ACTION
Q: Two kinds of dismissal of the action.
A:
Permanent Dismissal A permanent dismissal of a criminal case may refer to

the termination of the case on the merits, resulting in
either the conviction or acquittal of the accused; to the
dismissal of the case because the prosecution’s failure
to prosecute; or to the dismissal thereof on the ground of
unreasonable delay in the proceedings in violation of
theright of the accused to speedy trial [Condrada v.
People (2003)].
Provisional Dismissal A provisional dismissal of a criminal case is dismissal

without prejudice to reinstatement thereof before the
order of dismissal becomes final, or to the subsequent
filing of a new information within the periods allowed
under the Revised Penal Code or the Revised Rules of
Court [Condrada v. People (2003)].
Q: Does dismissal of an action of procedural grounds give rise to double jeopardy?
A: No [Paulin v. Judge Gimenez].
EXPRESS CONSENT
Q: What is express consent?
A: Express consent has been defined as that which is directly given, either viva voce or in
writing, a positive, direct, unequivocal consent requiring no inference or implication to supply its
meaning [People v. Judge Vergara].
REVIVAL OF THE CRIMINAL CASES PROVISIONALLY DISMISSED
Q:
A:
APPEAL BY THE PROSECUTION
Q: When is appeal allowed?
154
A:
GR: no MR or appeal or petition for certiorari in acquittals or dismissal which is tantamount to

acquittal.
EX: when due process of private complainant is violated: (reopen the case)
1. Denied opportunity to present evidence

2. No violation to speedy trial because delay is reasonable
3. Dismissal is made with GAD [Atty G].
Q: Putot Case vs. Merciales Case. Comparison.
A:
CRIMES COVERED
Q: Crimes covered
A:
1. Identical offense
2. For any attempt to commit the same or frustration thereof
a. Acquitted in homicide, cannot anymore frustrated homicide
3. For any offense which necessarily includes or is necessarily included i the offense
charged in the first case
a. First charged with murder, cannot be charged again with homicide
b. First charged with acts of lasciviousness, cannot be charged again with rape
[Atty G].
DOCTRINE OF SUPERVENING EVENT
Q: What is the Doctrine of Supervening Event?
A: The accused may still be prosecuted for another offense if a subsequent development
changes the character of the first indictment under which he may have already been charged or
convicted [Nachura, p. 278].
Q: When shall the conviction of the accused not be a bar to another prosecution for an
offence which necessarily includes the offense charged in the original complaint or
information?
A: The conviction of the accused shall not be a bar to another prosecution for an offense which
necessarily includes the offense charged in the original complaint or information when:
a. The graver offense developed due to supervening facts arising from the same act or
omission;
155
b. The facts constituting the graver offense arose or were discovered only after the filing of
the former complaint or information; or
c. The plea of guilty to a lesser offense was made without the consent of the fiscal or the
offended party [Section 7, Rule 117, Rules of Court].
Needed signature for plea-bargaining:
1. Fiscal
2. Offended party or family
ROC Amendment: If proven family was given notice but no valid reason (did not appear
to sign), plea-bargaining is valid.
Q:
A:
A single act may produce two offense
Killing of a person with the use of unlicensed

firearm during period of Comelec gun ban:
two murder and violation of Comelec gun ban
Q: Exception
A: If an act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act [Atty G].
Q: Jason Ivler Case:
Following a vehicular collision in August 2004, petitioner Jason Ivler was charged before
the Metropolitan Trial Court of Pasig City (MeTC), with two separate offenses: (1)
reckless imprudence resulting in slight physical injuries for injuries sustained by
respondent Evangeline L. Ponce; and (2) reckless imprudence resulting in homicide and
damage to property for the death of respondent Ponce’s husband Nestor C. Ponce and
damage to the spouses Ponce’s vehicle.
Crimes charged: 1) reckless imprudence resulting in slight physical injuries; and 2)

reckless imprudence resulting in homicide and damage to property
On September 7, 2004, Ivler pleaded guilty to the charge in reckless imprudence resulting
in slight physical injuries and was meted out the penalty of public censure. Invoking this
conviction, Ivler moved to quash the Information of reckless imprudence resulting in
homicide and damage to property for placing him in jeopardy of second punishment for
the same offense of reckless imprudence.
A: The Supreme Court reversed the ruling of the RTC. Petitioner’s conviction in the case of
reckless imprudence resulting in slight physical injuries bars his prosecution in criminal reckless
imprudence resulting in homicide and damage to property
156
a. Reckless Imprudence is a Single Crime; its Consequences on Persons and Property are
Material Only to Determine the Penalty
Quasi-offenses penalize “the mental attitude or condition behind the act, the dangerous
recklessness, lack of care or foresight, the imprudencia punible,” unlike willful offenses
which punish the intentional criminal act. These structural and conceptual features of
quasi-offenses set them apart from the mass of intentional crimes.
b. Prior Conviction or Acquittal of Reckless Imprudence Bars Subsequent Prosecution for

the Same Quasi-offense
Once convicted or acquitted of a specific act of reckless imprudence, the accused may
not be prosecuted again for that same act. For the essence of the quasi-offense of
criminal negligence under Article 365 of the Revised Penal Code lies in the execution of
an imprudent or negligent act that, if intentionally done, would be punishable as a felony.
The law penalizes thus the negligent or careless act, not the result thereof.
EX POST FACTO AND BILL OF ATTAINDER
Q: Legal Basis.
A: No ex post facto law or bill of attainder shall be enacted [Section 22, Article III].
EX POST FACTO LAW
Q: What are the kinds of ex post facto law?
A:
1. Every law that makes criminal an action done before the passage of the law and which
was innocent when done, and punishes such action;
2. Every law that aggravates a crime, or makes it greater than it was when committed;
3. Every law that changes punishment, and inflicts a greater punishment than the law
annexed to the crime when committed;
4. Every law that alters the legal rules of evidence, and receives less or different testimony
than the law required at the time of the commission of the offense, in order to convict the
offender;
5. Every law which, assuming to regulate civil rights and remedies only, in effect imposes a
penalty or the deprivation of a right for something which when done was lawful;
6. Every law which deprives persons accused of a crime of some lawful protection to which
they have become entitled, such as the protection of a former conviction or acquittal, or
of a proclamation of amnesty [Nachura, p. 279].
Q: Characteristics of an ex post facto law.
A:
157
1. It refers to criminal matters;
2. It is retroactive in application;
3. It works to the prejudice of the accused [Nachura, p. 279].
Q: Recovery of ill-gotten wealth, violation of ex-post facto?
A: No [Atty G].
BILL OF ATTAINDER
Q: What is a bill of attainder?
A: It is a legislative act that inflicts punishment without trial [Nachura, p. 280].
Q: Meaning of punishment?
A: Not just detention or imprisonment, includes:
1. Deprivation of license,
2. Includes automatic disqualification to run for public office,
3. Includes automatic forfeiture of office, etc. [Atty G].
Q: Characteristics of a bill of attainder.
A: It substitutes legislative fiat for a judicial determination of guilt. Thus, it is only when a statute
applies either to named individuals or to easily ascertainable members of a group in such a way
as to inflict punishment on them without judicial trial that it becomes a bill of attainder.
Q: Is the Anti-Subversion Act a bill of attainder?
A: No. It simply declares that Party to be an organized conspiracy to overthrow the Government,
the term “Communist Party” is used solely for definitional purposes. It does not specify the
members for the purpose of punishment [People v. Ferrer].
158

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Constitutional Law II

USA JD-4B Batch 2022

POWERS OF THE STATE

Q: What are the inherent powers of the State?

Q: What are the similarities of these powers?

Q: Distinguish the inherent powers of the State.

Regulated rights Liberty and property Property Property

Who exercises Only by the May be exercised by Only by the

Compensation Intangible Full and fair Protection given

Q: Why are these powers considered as inherent?

Q: Limitations to the exercise of Fundamental Powers of the State.

Example of exception to the general rule:

Q: What are the justifications of police power?

SCOPE AND CHARACTERISTICS OF POLICE POWER

Q: What is the scope of police power?

Q: Who exercises police power?

Q: What is the scope of public use?

Q: May the State prohibit gambling?

Q: Is the law ordering the closure of commercial bloodbanks valid?

Q: Could Police Power be bargained away through a treaty or contract?

Q: Taxing Power as an implement of Police Power.

Q: Eminent Domain as an implement of Police Power.

Q: May the State regulate the exercise of profession by requiring licensure

Q: Santos, an x-ray technician employed by St. Lukes is separated from employment by

Q: License to carry a firearm not a property right.

Q: Timber permits, mining exploration permits not irrevocable rights.

Q: License to operate a motor vehicle not a property right.

WHO MAY EXERCISE

Q: Where is Police Power inherently vested?

Q: May Congress validly delegate police power?

Q: Source of police power of LGUs.

Q: Political question or judicial question?

Q: What are the requisites for temporary takeover of public utility?

Q: Zoning and classification as exercise of police power.

Q: Legislative authority for cities to enact zoning ordinances.

Q: Is MMDA precluded from confiscating and suspending or revoking driver’s licenses?

Petitioner contends that the Flag Scheme:

Is the Wet Flag Scheme valid?

LIMITATIONS (TEST FOR VALID EXERCISE]

LAWFUL SUBJECT LAWFUL MEANS

Q: Requisites for the proper exercise of the police power:

Q: Is a law revoking all permits to operate of gambling facilities valid?

Q: Is an ordinance requiring commercial cemetery owners to reserve 6% of the burial lots

Q: An ordinance aimed at relieving traffic congestion but declaring bus terminals as

ADDITIONAL LIMITATIONS (WHEN EXERCISED BY DELEGATE)

Q: What are the requisites for an ordinance to be valid?

CITY OF MANILA COMPARED WITH ERMITA-MALATE

City of Manila v. Judge Laguio Ermita-Malate Hotel

The enactment of the ordinance has no

Q: Distinguish Eminent Domain from Police Power.

Police Power Eminent Domain

Eminent domain can be used as an Eminent domain can be used as an

Q: Can “taking” be temporary?

Q: Does deprivation of the property need to be complete?

Q: Can voluntary offer to sell under CARP be considered as “taking”?

Q: What is the reckoning date for the determination of just compensation?

Q: Are damages considered in determining the value of just compensation?

Q: Can the action for just compensation be barred by prescription?

Q: Is the acquisition of an easement of a right of way within the power of eminent

Q: What court has jurisdiction over a complaint for eminent domain?

Q: Does the plaintiff have a right to dismiss the expropriation complaint?

WHO MAY EXERCISE THE POWER

Q: Who may exercise the power of eminent domain?