CONSTITUTIONAL LAW

CHAPTER I – FUNDAMENTAL POWERS OF THE STATE

 (Police Power)

1.            Define:

police power—is the power vested in the legislature by the Constitution to make, ordain, establish all
manner of wholesome and reasonable laws for the good and welfare of the State and its people.
(ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967)

The basic purposes of police power are:

a.            to promote the general welfare, comfort and convenience of the people;(ASSOCIATION OF
SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil. 85
b.            to promote and preserve public health; (VILLANUEVA VS. CASTANEDA, September 21,
1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF HEALTH, 50 Phil.
595—apprehend and confine lepers in a leprosarium)

PROFESSIONAL REGULATIONS COMMISSION VS. ARLENE DE GUZMAN, ET AL., June 21, 2004
POLICE POWER/Public Health; THE RIGHT TO PRACTICE A PROFESSION
Facts:

After the Professional Regulations Commission (PRC) released the names of successful examinees
in the Medical Licensure Examination, the Board of Medicines observed that the grades of the 79
Fatima College of Medicine  successful examinees  were unusually and exceptionally high in the two
(2) most difficult subjects of the exam, i.e., Biochemistry and Obstetrics and Gynecology.

The Board then issued Resolution No. 19 withholding the registration as physicians of all the
examinees from Fatima College of Medicine. Compared with other examines from other schools, the
results of those from Fatima were not only incredibly high but unusually clustered close to each
other. The NBI  Investigation found that the “Fatima examinees gained early access to the test
questions.”

On July 5, 1993, the respondents-examinees filed a petition for mandamus before the RTC of Manila
to compel the PRC  to give them their licenses to practice medicine. Meanwhile on July 21, 1993, the
Board of medicine issued Resolution No. 21 charging the respondents of immorality, dishonest
conduct, fraud and deceit and recommended that the test results of the Fatima Examinees be
nullified.

On December 19, 1994, the RTC of Manila promulgated its decision ordering the PRC to allow the
respondents to take the physician’s oath and to register them as physicians. The same was
appealed by the PRC to the Court of Appeals which sustained the RTC decision.
Hence, this petition.

Held:

It must be stressed that the power to regulate the practice of a profession or pursuit of an
occupation cannot be exercised by the State in an arbitrary, despotic or oppressive manner.
However, the regulating body has the right to grant or forbid such privilege in accordance with
certain conditions.

But like all rights and freedoms guaranteed by the Constitution, their exercise may be regulated
pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety,
and general welfare of the people. As such, mandamus will not lie to compel the Board of Medicine
to issue licenses for the respondents to practice medicine.

RA 2382 which prescribes the requirements for admission to the practice of medicine, the
qualifications of the candidates for the board examination, the scope and conduct of the
examinations, the grounds for the denying of the issuance of a physician’s license, or revoking a
license that has been issued. It is therefore clear that the examinee must prove that he has fully
complied with all the conditions and requirements imposed by law and the licensing authority to be
granted the privilege to practice medicine. In short, he shall have all the qualifications and none of
the disqualifications. The petition is therefore granted.

c.            to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195; TAXICAB
OPERATORS VS. JUINIO, 119 SCRA 897 )
d.            to maintain and safeguard peace and order; (GUAZON VS. DE VILLA)
e.            to protect public morals; (DE LA CRUZ VS. PARAS, 123 SCRA 569; ERMITA MALATE
HOTEL VS. CITY MAYOR, July 31, 1967; JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS.
VILLEGAS, February 13, 1983)
f.             to promote the economic security of the people. (ichong vs. hernandez, 101 Phil. 11155)
Not a valid exercise of police power:
a.            CITY GOVERNMENT OF QC VS. ERICTA, 122 SCRA 759; (6%)
b.            YNOT VS. IAC, 148 SCRA 659; the Director of Animal Industry or the Chairman if the
National Meat Commission “may dispose of the carabeef to charitable agencies as he may deem fit”.
This is oppressive and unreasonable since the owner is denied due process of law and he is given so
much discretion as the law is not complete in itself nor is there a standard to guide the official.
c.            DE LA CRUZ VS. PARAS, 123 SCRA 569
power of eminent domain
power of taxation

2.            Differences and similarities

Didipio earth savers multi purpose association vs. denr sec.  Elisea gozu, et al., 485 scra 586
Chico-Nazario, J.

1.            The power of eminent domain is the inherent right of the State to condemn or to take
private property for public use upon payment of just compensation while police power is the power
of the state to promote public welfare by restraining and regulating the use of liberty and property
without compensation;

2.            In the exercise of police power, enjoyment of a property is restricted because the continued
use thereof would be injurious to public welfare. In such case, there is no compensable taking
provided none of the property interests is appropriated for the use or for the benefit of the public.
Otherwise, there should be compensable taking if it would result to public use.

3.            Properties condemned under police power are usually noxious or intended for noxious
purpose; hence , no compensation shall be paid. Likewise, in the exercise of police power, property
rights of private individuals are subjected to restraints and burdens in order to secure the general
comfort, health and prosperity of the state.

While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. Taking may include trespass without actual eviction of the
owner, material impairment of the value of the property or prevention of the ordinary uses for which
the property was intended such as the establishment of an easement.

As such, an imposition of burden over a private property through easement (by the government) is
considered taking; hence, payment of just compensation is required. The determination of just
compensation, however, is a judicial function (EPZA vs. Dulay, 149 SCRA 305) and initial
determinations on just compensation by the executive department and Congress cannot prevail over
the court’s findings.

Finally, service contracts with foreign corporations is not prohibited under the 1987 Philippine
Constitution with foreign corporations or contractors would invest in and operate and manage
extractive enterprises, subject to the full control and supervision of the State; this time, however,
safety measures were put in place to prevent abuses of the past regime.

3.            Limitations in the exercise of said powers

4.            Tests for a valid exercise of police power

a.            the interests of the public, not mere particular class, require the exercise of police power;
(LAWFUL SUBJECT)
b.            the means employed is reasonably necessary for the accomplishment of the purpose and
not unduly oppressive to individuals. (LAWFUL MEANS). In short, the end does not justify the means.

5.            Read:
a.            JMM Promotions vs. CA, 260 SCRA 319

b.            ERMITA-MALATE HOTEL VS. MAYOR OF MANILA, July 31, 1967;

c.            ICHONG VS. HERNANDEZ, 101 Phil. 1155

d.            CHURCHILL VS. RAFFERTY, 32 Phil. 580

e.            PEOPLE VS. POMAR, 46 Phil. 447

f.             US VS. TORIBIO, 15 Phil. 85

g.            VELASCO VS. VILLEGAS, February 13, 1983

h.            ILOILO ICE & COLD STORAGE VS. MUNICIPAL COUNCIL, 24 Phil. 471

i.              AGUSTIN VS. EDU, 88 SCRA 195

j.             YNOT VS. IAC, 148 SCRA 659

RESTITUTO YNOT VS. THE ITERMEDIATE APPELLATE COURT, G.R. No. 74457,March 20, 1987
Cruz, J.
Facts:
1.   On January, 13, 1984, Ynot transported six carabaos by using a pumpboat from Masbate to Iloilo.
The six carabaos, were, however, confiscated by the Police Station Commander of Baratoc Nuevo,
Iloilo for alleged violation of Executive Order No. 626-A which prohibits the inter-provincial
transporting of carabaos and carabeefs which does not comply with the provisions of
Executive No.626;

2.   That Section 1 of the said law provides that “henceforth, no carabaos regardless of age, sex
physical condition or purpose and no carabeef shall be transported from one province to another.
The carabao or carabeef transported in violation of the said law shall be subjected to confiscation
and forfeiture by the government to be distributed to charitable institution and similar institutions as
the Chairman of the National meat inspection Commission may see fit in the case of the carabeef,
and to deserving farmers through the dispersal of the Director of Animal Industry, in the   case of
carabaos;

3.   Ynot filed a suit for recovery and the carabao were returned to him upon the issuance of a writ of
replevin upon his filing of a supersede as bond in the amount of P12,000.00;

4.   After trial of the case, the Judge upheld the validity of the act of the Police Station Commander in
confiscating the carabaos. Ynot was ordered to returned the carabaos but since he could not do so,
the court ordered the confiscation of the bond. The court refused to rule on the constitutionality of
the said Executive Order on the ground of lack of authority to do so and also because of its
presumed validity;

5.   The petitioner appealed to the IAC but the said court upheld the decision of the Trial Court.
Hence this petition for review on certiorari before the Supreme Court where YNOT claimed that the
penalty of confiscation is INVALID the same was imposed without according the owner the right to
be heard before a competent and impartial tribunal as guaranteed by due process.

Issues:

1.   May a lower court (like the MTC, RTC, of the Court of Appeals) declare a law unconstitutional?

2.   Is Executive Order No. 626-A constitutional?

Sub-issues under this are:

a. Was it a valid police power measure?

b. Was there an undue delegation of legislative power?

Held:
1.   While the lower courts should observe a becoming modesty in examining constitutional question,
THEY ARE NOT PREVENTED FROM RESOLVING THE SAME WHENEVER WARRANTED, subject only
to review by the supreme court. This is so because under Section 5,[2(a)], Art. VIII, of the 1987
Constitution provides that the Supreme Court has the power to “review, revise, reverse, modify or
affirm on appeal” or certiorari as the rules of court may provide, final judgements and orders of the
lower courts in all cases involving the constitutionality of certain measures. This simply means that
lower courts may declare whether or not a law is constitutional.
2.   In order that a measure or law may be justified under the police power of the state, it must
meet two tests:
     a. the subject must be lawful; and
    b. the means employed is lawful.

Since the prohibition of the slaughtering of carabaos except where they are at least 7 years old when
male and at least 11 years old when female is in furtherance of the public interest since said
carabaos are very useful to the work at the farm, it is conceded that the Executive Order meets the
first test—- it has  lawful subject.

But does the law meets the second requisite or test which is lawful method?

Executive Order No. 626-A imposes an absolute ban not on the slaughtering of carabaos BUT ON
THIER MOVEMENT, providing that “no carabao regardless of age, sex, physical condition or purpose
and no carabeef shall be transported from one province to another.” The reasonable connection
between the means employed and the purpose sought to be achieved by the question measure is
missing. We do not see how the prohibition of the  inter-provincial transport can prevent their
indiscriminate slaughter considering that they can be killed any where, with no less difficulty in one
province than in the other. Obviously, retaining a carabao in one province will not prevent their
slaughter there, any more than moving them to another province will make it easier to kill them there.

The law is unconstitutional because it struck at once and pounced upon the petitioner without giving
him a chance to be heard, thus denying him the centuries-old guarantee of elementary fair play.

Since  the Executive Order in question is a penal law, then violation thereof should be pronounce not
by the police BUT BY A COURT OF JUSTICE, WHICH ALONE WOULD HAVE HAD THE AUTHORITY TO
IMPOSE THE PRESCRIBED PENALTY, AND ONLY AFTER TRIAL AND CONVICTION OF THE ACCUSED.

Also, there is no reasonable guidelines or bases of the Director of Animal Industry or the Chairman
of the NATIONAL Meat Inspection Commission in the disposition of the carabaos or carabeef other
than what “they  may see fit” which is very dangerous and could result to opportunities for partiality
and abuse, and even graft and corruption.

The Executive Order is, therefore, invalid  and unconstitutional and not a valid police power measure
because the METHOD EMPLOYED TO CONSERVE CARABAOS IS NOT REASONABLY NECESSARY TO
THE PURPOSE OF THE LAW AND, WORSE IS UNDULY OPPRESSIVE. DUE PROCESS IS VIOLATED
BECAUSE THE OWNER OF THE PROPERTY CONFISCATED IS DENIED THE RIGHT TO BE HEARD IN
HIS DEFENSE AND IS IMMEDIATELY CONDEMNED AND PUNISHED. THE CONFERMENT ON THE
ADMINISTRATIVE AUTHORITIES (like the police) OF THE POWER TO ADJUDGE THE GUILT OF THE
SUPPOSED OFFENDER IS A CLEAR ENCROACHMENT OF JUDICIAL FUNCTIONS AND MILITATES
AGAINST THE DOCTRINE OF SEPARATIION OF POWERS.

Also, there is undue delegation of legislative power to the officers mentioned therein  (Director of
Animal Industry and Head of the National Meat Commission) because they were given unlimited
discretion in the distribution of the property confiscated.

k.            TAXICAB OPERATORS VS. BOT, 119 SCRA 597

l.              BAUTISTA VS. JUINIO, 127 SCRA 329

MARY CONCEPCION-BAUTISTA VS. ALFREDO JUINIO, ET AL,  127 SCRA 329

Fernando, C.J
Facts:

1. On May 31, 1979, President Marcos issued Letter of Instruction No. 869 prohibiting  the use of
private motor vehicles with H (Heavy Vehicles) and EH (Extra Heavy Vehicles) on week-ends and
holidays from 12:00 a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday
to 5:00 a.m. of the day after the holiday. Motor vehicles of the following classifications are however,
exempted:
1. S—-service;

2. T—-Truck;

3. DPL–Diplomatic;

4. CC—Consular Corps; and

5. TC—Tourist Cars

2. On June 11, 1979, the then Commissioner of Land Transportation, ROMEO EDU issued Circular No.
39 imposing “the penalties of fine, confiscation of vehicle and cancellation of registration on owners
of the above-specified found violating such letter of Instructions”;

3. Bautista is questioning the constitutionality of the LOI and the Implementing Circular on the
grounds that:

a. The banning of H and EH vehicles is unfair, discriminatory, and arbitrary and thus contravenes the
EQUAL PROTECTION CLAUSE; and

b. The LOI denies the owners of H and EH vehicles of due process, more specifically of their right to
use and enjoy their private property and of their freedom to travel and hold family gatherings,
reunions, outings on week-ends and holidays, while those not included in the prohibition are enjoying
unrestricted freedom;

c. The Circular violates the prohibition against undue delegation of legislative power because the LOI
does not impose the penalty of confiscation.

HELD:

1. It must be pointed out that the LOI was promulgated to solve the oil crisis which was besetting the
country at that time. It was therefore a valid police power measure to ensures the country’s
economy as a result of spiralling fuel prices. In the interplay of Bautista’s right to due process and
the exercise of police power by the State, the latter must be given leeway. The police power is
intended to promote public health, public morals, public safety  and general welfare.

2. The petitioners’ claim that their right to equal protection was violated is without basis. This is so
because there is a valid classification in this case. Definitely, Heavy and Extra-Heavy vehicles
consume more gasoline that the other kinds of vehicles and it is but proper to regulate the use of
those which consumes more gasoline. If all the owner of H and EH vehicles are treated in the same
fashion, or whatever restrictions cast on some in the group is held equally binding on the rest, there
is no violation of the equal protection clause.

3. The penalty of “impounding” the vehicle as embodied in Circular No. 39 has no statutory basis.
Therefore, it is not valid being an “ultra vires”.

m.          ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY OF AGRARIAN REFORM, 175

SCRA 343

n.            DECS VS. SAN DIEGO, 180 SCRA 533

o.            VILLANUEVA VS. CASTANEDA, September 21, 1987

5-a. Not a valid exercise of police power

CITY GOVERNMENT OF QUEZON CITY VS. ERICTA, 122 SCRA 759

Reference:
Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)
College of Law
University of the Cordilleras

CONSTITUTIONAL LAW
CHAPTER II— DUE PROCESS
Section 1—NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE
PROCESS OF LAW, NOR SHALL ANY PERSON BE DENIED EQUAL PROTECTION OF THE LAWS.
Kinds of Due Process:
a.            substantive due process—requires the intrinsic validity of the law in interfering with the
rights of the person to life, liberty or property. In short, it is to determine whether it has a valid
governmental objective like for the interest of the public as against mere particular class.
b.            Procedural due process—one which hears before it condemns as pointed out by Daniel
Webster.
Due process is a law which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE)
1.            Requisites of “judicial due process”.
a.            BANCO ESPANOL VS. PALANCA, 37 Phil. 921
Requisites:

1.            There must be an impartial court or tribunal clothed with judicial power to hear and decide
the matter before it;

2.            Jurisdiction must be lawfully acquired over the person of the defendant or over the property
subject of the proceedings;

3.            The defendant must be given the opportunity to be heard;

4.            Judgment must be rendered only after lawful hearing.

a. GALMAN VS. PAMARAN (the 1st case)

b.            IMELDA MARCOS VS. SANDIGANBAYAN, October 6, 1998

IMELDA R. MARCOS VS. SANDIGANBAYAN, G.R. No. 126995, October 6, 1998

Purisima, J.
Facts:
1.            On  June 8, 1984, IMELDA MARCOS and JOSE DANS, as Chairman and  Vice Chairman of
the Light Railway Transit Authority (LRTA) entered into a Lease Contract with the Philippine
General Hospital Foundation (PGHFI) involving an LRTA property  in Pasay City for P102,760.00
per month for 25 years;
2.            On June 27,1984, the PGHFI subleased the said property for P734,000.00 per month to
the Transnational Construction Corporation represented by one Ignacio Jumenez;
3.            After   petitioner’s husband was deposed as President of the Philippines, she and Dans
were charged of alleged violation of Section 3 [g] of RA 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act before the Sandiganbayan;
4.            After trial , the First Division of the Sandiganbayan failed to comply with the legal
requirement that all the 3 justices must be unanimous in its Decision because Justice
Garchitorena and Justice Jose Balajadia voted for the conviction of both accused while Justice
Narciso Atienza voted to acquit them;
5.            Thereafter, Justice Garchitorena as Presiding Justice issued Administrative Order No.
288-93 constituting a Special Division of  five and designating Justices Augusto Amores and
Cipriano del Rosario;
6.            On September 21, 1993, Justice Amores wrote Justice Garchitorena that he be given 15
days his Manifestation. On the same date, however, Justice Garchitorena   dissolved the division
of 5 allegedly because he and Justice Balajadia had agreed to the opinion of Justice del Rosario;
7.            On September 24, 1993, a Decision was rendered convicting the  petitioner and Dans of
violation of Sec. 3 [g] of RA 3019;
8.            On June 29, 1998, the Third Division of the Supreme Court by a vote of 3-2 affirmed the
conviction of the petitioner but acquitted DANS;
9.            Petitioner then filed a Motion for Reconsideration and at the same time prayed that her
Motion be heard by the Supreme Court en banc claiming that her right to  due process of law, both 
substantive and procedural, was violated:
a.             as a result of the fact that she was convicted as a result of the alleged disparity of the
rentals agreed upon with PGHFI and the subsequent sub-lease contract between PGHFI and
Transnational Construction Corporation; and
b.            the First Division convicted her after Justice Garchitorena  dissolved the Special Division
of 5 after a lunch in a Quezon City restaurant where they agreed to convict her in one case and
acquit her in her other cases. The said meeting was attended by another  justice who is not a
member of the First Division or the Special Division in violation of the Rules of the Sandiganbayan
which requires that sessions of the court shall be done only in its principal office in Manila and
that only justices belonging to the division should join the deliberations.
Held:
The petitioner is hereby acquitted.
1. The great disparity between the rental price of the lease agreement signed by the petitioner
(P102,760.00 per month)  and the sub-lease rental (P734,000.00 per month) does not necessarily
render the monthly rate of P102,760.00 manifestly and grossly disadvantageous to the
government in the absence of any evidence using rentals of adjacent properties showing that the
rentals in the property subject of the lease agreement  is indeed very low. NO EVIDENCE
WHATSOEVER WAS PRESENTED BY THE PROSECUTION REGARDING THE RENTAL RATE OF
ADJACENT PROPERTIES.. As such,  the prosecution failed to prove the guilt of the petitioner  
reasonable doubt.
2. The court notes likewise the bias and prejudice of Presiding Justice Garchitorena against the
petitioner as shown by his  leading, misleading and baseless hypothetical questions of said justice
to RAMON F. CUERVO, witness for the petitioner. Said justice asked 179 questions to the witness
as against the prosecutor who cross-examined the witness which was 73. Said number of
questions could no longer be described as “clarificatory questions”. Another ground therefore for
the acquittal of the petitioner is that she was denied IMPARTIAL TRIAL before the Sandiganbayan.
This is one reason why the case could no longer be remanded to the Sandiganbayan especially so
that the other Sandiganbayan Justices in the Special Division of 5 have retired. There is therefore
no compelling reason why the case should still be remanded to the lower court when all the
evidence are already with the Supreme Court.
(NOTE: The vote was 9-5 for Acquittal. CJ Narvasa, Justices Regalado, Davide, Jr., Romero, and
Panganiban voted for conviction while Justice Vitug was the only Justice who voted for the return
of the case to the Sandiganbayan “to allow the corrections of the perceived ‘irregularities’ in the
proceedings below.)
c.            DBP VS. CA, January 29, 1999
d.            MATUGUINA VS. CA, 263 SCRA 490
e.            PEOPLE VS. CA, 262 SCRA 452
f.             JAVIER VS. COMELEC, 144 SCRA 194
 
                  JAVIER VS. COMELEC
       G.R. No.L- 68379-812, September 22, 1986
FACTS:

1.   The petitioner Evelio Javier and the private respondent Arturo Pacificador were candidates in
Antique for the Batasang Pambansa election in May 1984;

2.   Alleging serious anomalies in the conduct of the elections and the canvass of the election
returns, Javier went to the COMELEC to prevent the impending proclamation of his rival;

3.   On May 18, 1984, the Second Division of the COMELEC directed the provincial board of
canvassers to proceed with the canvass but to suspend the proclamation of the winning candidate
until further orders;

4.   On June 7, 1984, the same Second Division ordered the board to immediately convene and to
proclaim the winner without prejudice to the outcome of the petition filed by Javier with the
COMELEC;

5.   On certiorari with the S.C. the proclamation made by the Board of Canvasser was set aside as
premature, having been made before the lapse of the 5 – day period of appeal, which the petitioner
seasonably made;

6.   On July 23, 1984 the Second Division itself proclaimed Pacificador the elected assemblyman of
Antique.

ISSUE:

Was the Second Division of the COMELEC, authorized to promulgate its decision of July 23, 1984
proclaiming Pacificador the winner in the election ?

APPLICABLE PROVISIONS OF THE CONSITUTION:

The applicable provisions of the 1973 Constitution are Art. XII-C, secs. 2 and 3, which provide:

“Section 2. Be the sole judge of all contests relating to the election, returns and qualifications of all
members of the Batasang Pambansa and elective provincial and city officials.”

“Section 3. The Commission on Elections may sit en banc or in three divisions. All election casesa
may be heard and decided by divisions except contests involving members of the Batasang
Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election
cases shall be decided within ninety days from the date of their submission for decision.”

CONTENTIONS OF THE PARTIES:

Petitioner:
The proclamation made by the Second Division is invalid because all contests involving members of
the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc.
Respondents:
Only “contests” need to be heard and decided en banc, all other cases can be – in fact, should be –
filed with and decided only by any of the three divisions.

There is a difference between “contests” and “cases” and also a difference between “pre-
proclamation controversies” and “election protests”. The pre-proclamation controversy between the
petitioner and the private respondent was not yet a contest at the time and therefore could be validly
heard by a mere division of the Commission on elections, consonant with Sec. 3. The issue at that
stage was still administrative and could be resolved by a division.

HELD:

a.   The S.C. decided to resolve the case even if the Batasang Pambansa had already been abolished
by the Aquino government, and even if Javier had already died in the meantime. This was because of
its desire for this case to serve as a guidance for the future. Thus it said: “The Supreme Court is not
only the highest arbiter of legal questions but also the conscience of the government. The citizen
comes to us in quest of law but we must also give him justice. The two are not always the same.
There are times when we cannot grant the latter because the issue has been settled and decision is
no longer possible according to law. But there are also times when although the dispute has
disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act,
then, not only for the vindication of the outraged right, though gone, but also for the guidance of and
as a restraint upon the future.”

b.   The S.C. held on the main issue that in making the COMELEC the sole judge of all contests
involving the election, returns and qualifications of the members of the Batasang Pambansa and
elective provincial and city officials, the Constitution intended to give it full authority to hear and
decide these cases from beginning to end and on all matter related thereto, including those arising
before the proclamation of the winners.

The decision rendered by the Second Division alone was therefore set aside as violative of the
Constitution. The case should have been decided en banc.
c.   Pre-proclamation controversies became known and designated as such only because of Sec.
175 of the 1978 Election Code. The 1973 Constitution could not have therefore been intended to
have divided contests between pre and post proclamation when that Constitution was written in
1973.

d.   The word “contests” should not be given a restrictive meaning; on the contrary, it should receive
the widest possible scope conformably to the rule that the words used in the Constitution should be
interpreted liberally. As employed in the 1973 Constitution, the term should be understood as
referring to any matter involving the title or claim of title to an elective office, made before or after
the proclamation of the winner, whether or not the contestant is claiming the office in dispute.

e.   There was also a denial of due process. One of the members of the Second Division,
Commissioner Jose Opinion was a law partner of Pacificador. He denied the motion to disqualify
him from hearing the case. The Court has repeatedly and consistently demanded “the cold neutrality
of an impartial judge” as the indispensable imperative of due process. To bolster that requirement
we have held that the judge must not only be impartial but must also appear to be impartial as an
added assurance to the parties that his decision will be just.

FELICIANO and MELENCIO-HERRERA, concurring:

All election contests involving members of the Batasang Pambansa must be decided by the
Commission on Elections en banc  under Secs. 2 and 3 of Art. XII-C of the 1973 Constitution. These
sections do not distinguish between “pre-proclamation” and “post-proclamation” contests nor
between “cases” and “contests”.

g.            AZUL VS. CASTRO, 133 SCRA 271

h.            PADERANGA VS. AZURA, 136 SCRA 266
i.             DAVID VS. AQUILIZAN, 94 SCRA 707
j.             LORENZANA VS. CAYETANO, 78 SCRA 485 (respondent was not a party to the ejectment
case) so to enforce the decision on her violates her right to due process of law
k.            ZAMBALES CHROMITE MINING VS. CA, 94 SCRA 261
l.             ANZALDO VS. CLAVE, 119 SCRA 353
m.          SINGSON VS. NLRC, 273 SCRA 258
n.            ANZALDO VS. CLAVE, 119 SCRA 353
o.            MAYOR ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245
 
MAYOR BAYANI ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245
Vitug, J.
Mayor Alonte of Binan, Laguna was charged of rape before Branch 25, RTC of Laguna. However, as
a result of a petition for a transfer of venue filed by the prosecution and granted by the SC, his
case was transferred to RTC Branch 53, Manila, presided over by the respondent judge.
After the petitioner’s arraignment, the prosecution submitted an AFFIDAVIT OF DESISTANCE
signed by the private complainant JUVIE-LYN PUNONGBAYAN where she prayed for the
withdrawal of the case because she is no longer interested in pursuing the same with no intention
of re-filing the said case in the future.
Pending resolution of the said motion to withdraw, the petitioner filed a motion for bail. The same
was not resolved despite several motions filed by the petitioner to resolve the same.
On December 17, 1997, counsel for the petitioner, ATTY. PHILIP SIGFRID FORTUN, received a
notice from the respondent judge notifying him of the promulgation of the decision in this case
despite the fact that the prosecution and the defense have not presented their evidence in court.
On December 18, 1997, the respondent judge issued a Decision convicting the petitioner of rape
and sentenced to suffer a penalty of RECLUSION PERPETUA.
Issue:
Whether or not the petitioner was denied his right to due process of law.
Held:
In order that an accused in a criminal proceedings is deemed to have been given the right to due
process of law, the following requisites must be complied with before a decision is rendered:
1.            the court or tribunal trying the case is clothed with jurisdiction to hear and determine the
matter before it;
2.            that jurisdiction was lawfully acquired by it over the person of the accused;
3.            that the accused is given the opportunity to be heard; and
4.            that judgment is rendered only upon lawful hearing (PEOPLE VS. DAPITAN, 197 SCRA 378)
The act of the respondent judge in rendering a decision without even giving the petitioner the right
to adduce evidence in his behalf is a gross violation of his right to due process of law.  The
Decision rendered is NULL AND VOID for want of due process.

p.            DBP VS. CA, January 29, 1999

2.            Procedural due process before administrative bodies

a.            TIBAY VS. CIR, 69 Phil. 635

          Requisites:
a.            the right to a hearing which includes the right to present evidence;
b.            the tribunal must consider the evidence presented;
c.            the decision must have something to support itself;
d.            the evidence must be substantial;
e.            the decision must be based on the evidence presented during the hearing;
f.             the tribunal or body must act on its own independent consideration of the law or facts;
g.            the board or body shall in all controversial questions, render its decision in such a manner
that the parties to the proceedings can know the various issues involved.

b.            AMERICAN TOBACCO VS. DIRECTOR,  67 SCRA 287

c.            MANILA ELECTRIC COMPANY VS. NLRC, 263 SCRA 531

d.            DELGADO VS. CA, November 10, 1986

If an accused was represented by a non-lawyer during the trial (though he thought that he was a
lawyer), his right to due process was violated and therefore entitled to a new trial.

3.            Procedural due process in disciplinary actions against students

Academic freedom; due process in disciplinary actions involving students

DE LA SALLE UNIVERSITY VS. COURT OF APPEALS, HON.WILFREDO D. REYES, in his capacityas

Presiding Judge of Branch 36, Regional Trial Court of Manila, THE COMMISSION ON
HIGHEREDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS, ALVIN AGUILAR,
JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTO VALDES, JR., G.R. No. 127980, 
December 19, 2007
REYES, R.T., J.:
THE FACTS:
PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes,
Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU)
and College of Saint Benilde (CSB)[1][1] Joint Discipline Board because of their involvement in an
offensive action causing injuries to petitioner James Yap and three other student members of
Domino Lux Fraternity.

On  March 29, 1995,   James Yap was eating his dinner alone in Manang’s Restaurant near La Salle,
when he overheard two men bad-mouthing and apparently angry at Domino Lux.  He ignored the
comments of the two. When he arrived at his boarding house, he mentioned the remarks to his two
other brods while watching television. These two brods had earlier finished eating their dinner at
Manang’s. Then, the three, together with four other persons went back to Manang’s and confronted
the two who were still in the restaurant.  By admission of respondent Bungubung in his testimony,
one of the two was a member of the Tau Gamma Phi Fraternity.  There was no rumble or physical
violence then.

After this incident, a meeting was conducted between the two heads of the fraternity through the
intercession of the Student Council.  The Tau Gamma Phi Fraternity was asking for an apology. 
“Kailangan ng apology” in the words of respondent Aguilar.  But no apology was made.
On March 25, 1995, Ten minutes before his next class at 6:00 p.m.,   James Yap went out of the
campus using the Engineering Gate to buy candies across Taft Avenue.  As he was about to re-cross
Taft Avenue, he heard heavy footsteps at his back.  Eight to ten guys were running towards him.  He
panicked.  He did not know what to do.  Then, respondent Bungubung punched him in the head with
something heavy in his hands – “parang knuckles.”  Respondents Reverente and Lee were behind
Yap, punching him.  Respondents Bungubung and Valdes who were in front of him, were also
punching him.  As he was lying on the street, respondent Aguilar kicked him.  People shouted;
guards arrived; and the group of attackers left. Yap could not recognize the other members of the
group who attacked him.  With respect to respondent Papio, Mr. Yap said “hindi ko nakita ang mukha
niya, hindi ko nakita sumuntok siya.”  What Mr. Yap saw was a long haired guy also running with the
group.

The mauling incidents were a result of a fraternity war.  The victims, namely: petitioner James Yap
and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the “Domino Lux Fraternity,”
while the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard
Reverente and Roberto Valdes, Jr. are members of “Tau Gamma Phi Fraternity,” a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint[2][7] with the Discipline Board of DLSU
charging private respondents with “direct assault.”  Similar complaints[3][8] were also filed by Dennis
Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente.  Thus,
cases entitled “De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105),
James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee
(EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)”
were docketed as Discipline Case No. 9495-3-25121.
The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar,
Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to
answer. Private respondents filed their respective answers.[4][9]

Said notices  issued by De La Salle Discipline Board uniformly stated as follows:

Please be informed that a joint and expanded Discipline Board had been constituted to hear and
deliberate the charge against you for violation of CHED Order No. 4 arising from the written
complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.
You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00 a.m. at
the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your
behalf.  You may be assisted by a lawyer when you give your testimony or those of your witnesses.
On or before April 18, 1995, you are further directed to provide the Board, through the Discipline
Office, with a list of your witnesses as well as the sworn statement of their proposed testimony.
Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the
sworn statement of their proposed testimony will be considered a waiver on your part to present
evidence and as an admission of the principal act complained of.

During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed
the common defense of alibi. No full-blown hearing was conducted nor the students allowed to
cross-examine the witnesses against them.

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution[5][18] finding private
respondents guilty.  They were meted the supreme penalty of automatic expulsion,[6][19]pursuant to
CHED Order No. 4.[7][20]  The dispositive part of the resolution reads:

WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (AB-
BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and
RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby
orders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him of the
charge.

I  S S U E 

Were private respondents accorded due process of law because there was no full-blown hearing nor
were they allowed to cross-examine the witnesses against them?

H E L D:
Private respondents’ right to due process of law  was not violated.
In administrative cases, such as investigations of students found violating school discipline, “[t]here
are withal minimum standards which must be met before to satisfy the demands of procedural due
process and these are: that (1) the students must be informed in writing of the nature and cause of
any accusation against them; (2) they shall have the right to answer the charges against them and
with the assistance if counsel, if desired;       (3) they shall be informed of the evidence against them;
(4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be
duly considered by the investigating committee or official designated by the school authorities to
hear and decide the case.”[8][66]
Where a party was afforded an opportunity to participate in the proceedings but failed to do so, he
cannot complain of deprivation of due process.[9][67]  Notice and hearing is the bulwark of
administrative due process, the right to which is among the primary rights that must be respected
even in administrative proceedings.[10][68]  The essence of due process is simply an opportunity to be
heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an
opportunity to seek reconsideration of the action or ruling complained of.[11][69]  So long as the party is
given the opportunity to advocate her cause or defend her interest in due course, it cannot be said
that there was denial of due process.[12][70]
A formal trial-type hearing is not, at all times and in all instances, essential to due process – it is
enough that the parties are given a fair and reasonable opportunity to explain their respective sides
of the controversy and to present supporting evidence on which a fair decision can be based.[13][71]  “To
be heard” does not only mean presentation of testimonial evidence in court – one may also be heard
through pleadings and where the opportunity to be heard through pleadings is accorded, there is no
denial of due process.[14][72]

Private respondents were duly informed in writing of the charges against them by the DLSU-CSB
Joint Discipline Board through petitioner Sales.  They were given the opportunity to answer the
charges against them as they, in fact, submitted their respective answers.  They were also informed
of the evidence presented against them as they attended all the hearings before the Board. 
Moreover, private respondents were given the right to adduce evidence on their behalf and they did. 
Lastly, the Discipline Board considered all the pieces of evidence submitted to it by all the parties
before rendering its resolution in Discipline Case No. 9495-3-25121.

Private respondents cannot claim that they were denied due process when they were not allowed to
cross-examine the witnesses against them.  This argument was already rejected inGuzman v.
National University[15][73] where this Court held that “x x x the imposition of disciplinary sanctions
requires observance of procedural due process.  And it bears stressing that due process in
disciplinary cases involving students does not entail proceedings and hearings similar to those
prescribed for actions and proceedings in courts of justice.  The proceedings in student discipline
cases may be summary; and cross examination is not, x x x an essential part thereof.”
GUZMAN VS. NU, 142 SCRA 706
 
                 GUZMAN VS. NATIONAL UNIVERSITY
                 G.R. No. L-68288, July 11, 1986
FACTS:

Petitioners who are students of the National University were barred from enrolment. The school
claims that their scholastic standing is poor and that they have been involved in activities that have
disrupted classes and had conducted mass actions without the required permits.

HELD:

a.   It is apparent that despite the accusations of alleged violations hurled by the school against the
petitioners, the fact is that it had never conducted proceedings of any sort to determine whether or
not petitioners-students had indeed led or participated “in activities within the university premises,
conducted without prior permit from school authorities, that disturbed or disrupted classes therein”.

Also apparent is the omission of respondents to cite any duly published rule of theirs by which
students may be expelled or refused re-enrollment for poor scholastic standing.

b.   Under the Education Act of 1982, students have the right “to freely choose their field of study
subject to existing curricula and to continue their course therein up to graduation, EXCEPT in case of
academic deficiency, or violation of disciplinary regulations.”

The petitioner were denied of this right, and were being disciplined without due process, in violation
of the admonition in the Manual of Regulations for Private Schools that “no penalty shall be imposed
upon any student except for cause as defined in *** (the) Manuel and/or in the school rules and
regulations as duly promulgated and only after due investigation shall have been conducted. It has
already been held in Berina vs. Philippine Maritime Institute, 117 SCRA 581, that it is illegal of a
school to impose sanctions on students without conducting due investigation.

c.   Of course, all schools have the power to adopt and enforce its rules. In fact the maintenance of
good school discipline is a duty specifically enjoined on every private school. The Manual of
Regulations for Private Schools provides that:

“* * The school rules governing discipline and the corresponding sanctions therefor must be clearly
specified and defined in writing and made known to the students and/or their parents or guardians.
Schools shall have the authority and prerogative to promulgate such rules and regulations as they
may deem necessary from time to time effective as of the date  of their promulgation unless
otherwise specified.”

d.   The imposition of disciplinary sanctions requires observance of procedural due process. Due
process in disciplinary cases involving students:

a. need not entail proceedings and hearing similar to those prescribed for actions and proceedings
in court of justice;

b. the proceedings may be summary;

c. cross-examination is not an essential part thereof.

But the S.C. said that the following minimum standards must be met to satisfy the demands of
procedural due process:

1.   the students must be informed in writing of the nature and cause of any accusation against them;
     2.   they shall have the right to answer the charges against them, with the assistance of counsel;
     3.   they shall be informed of the evidence against them;
     4.   they shall have the right to adduce evidence in their own behalf;
     5.   the evidence must be duly considered by the investigating committee or official designated by
the school authorities to hear and decide the case.

a.            BERINA VS. PMI, September 30, 1982

Due process in the dismissal of employees

   Requisites of Due Process before the NLRC

1.            Notice; and

2.            Hearing

a.            MGG  Marine Services vs. NLRC, 259 SCRA 664

b.            Philippine Savings Bank vs. NLRC, 261 SCRA 409

c.            RAYCOR AIR CONTROL VS. NLRC, 261 SCRA 589

d.            WALLEM MARITIME SERVICES VS. NLRC, 263 SCRA 174

e.            SAMILLANO VS. NLRC, 265 SCRA 788

f.             STOLT-NIELSEN VS. NLRC, 264 SCRA 307

g.            GARCIA VS. NLRC, 264 SCRA 261

4.            Effect of a Motion for Reconsideration to violation of the right to due process

a.            CASUELA VS. OFFICE OF THE OMBUDSMAN, 276 SCRA 635

b.            CORDENILLO VS. EXECUTIVE SECRETARY, 276 SCRA 652

5.            In administrative proceedings, does due process require that a party be assisted by counsel
and be able to cross-examine the witnesses?
LUMIQUED VS. EXENEA, 282 SCRA 125
          There is no law, whether the Civil Service Act or the Administrative Code of 1987, which
provides that a respondent in an administrative case should be assisted by counsel in order that the
proceedings therein is considered valid. Not only, that, petitioner herein was given the opportunity
several times to engage the services of a lawyer to assist him but he confidently informed the
investigators that he could protect himself.
Administrative Due Process
ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No. 166809, April 22, 2008
THE FACTS:

Petitioner is the Regional Director of the Commission on Human Rights (CHR) Region I, whose office
is located in San Fernando City, La Union.  Respondent employees of the CHR Region I filed an
Affidavit-Complaint dated October 2, 1998 against petitioner alleging that he denied them the use of
the office vehicle assigned to petitioner, that petitioner still claimed transportation allowance even if
he was using the said vehicle, and that he certified that he did not use any government vehicle, when
in fact he did, in order to collect transportation allowance.

Respondent filed his answer denying  the allegations against him.

After a fact-finding investigation, the CSC Proper in CSC Resolution No. 99-1360 dated July 1, 1999
charged petitioner with Dishonesty and Grave Misconduct for using a government vehicle in spite of
his receipt of the monthly transportation allowance and for certifying that he did not use any
government vehicle, when in fact, he did, in order to receive the transportation allowance.
Pertinent portions of the formal charge read:

1.       That despite the regular receipt of Erece of his monthly Representation and Transportation
Allowance (RATA) in the amount of P4,000.00, he still prioritizes himself in the use of the office
vehicle (Tamaraw FX) in spite of the directive from the Central Office that he cannot use the service
vehicle for official purposes and at the same time receive his transportation allowance;

2.       That Erece did not comply with the directive of the Central Office addressed to all Regional
Human Rights Directors, as follows: ‘to regularize your receipt of the transportation allowance
component of the RATA to which you are entitled monthly, you are hereby directed to immediately
transfer to any of your staff, preferably one of your lawyers, the memorandum receipt of the
vehicle(s) now still in your name;’

3.       That he certified in his monthly liquidation of his RATA that he did not use any government
vehicle for the corresponding month, which is not true because he is the regular user of the
government vehicle issued to CHR-Region I.

The foregoing facts and circumstances indicate that government service has been prejudiced by the
acts of Erece.

WHEREFORE, Romeo L. Erece is hereby formally charged with Dishonesty and Grave Misconduct. 
Accordingly, he is given five (5) days from receipt hereof to submit his Answer under oath and
affidavits of his witnesses, if any, to the Civil Service Commission-Cordillera Administrative Region
(CSC-CAR).  On his Answer, he should indicate whether he elects a formal investigation or waives his
right thereto.  Any Motion to Dismiss, request for clarification or Bills of Particulars shall not be
entertained by the Commission.  Any of these pleadings interposed by the respondent shall be
considered as an Answer and shall be evaluated as such.  Likewise, he is advised of his right to the
assistance of counsel of his choice.[16][4]

After a formal investigation of the case, the CSC issued Resolution No. 020124, dated January 24.
2002, finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service
and penalizing him with dismissal from the service.

Petitioner filed a petition for review of the CSC Resolution with the CA.

In the Decision promulgated on January 7, 2005, the CA upheld the CSC Resolution, the dispositive
portion of which reads:

WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed Resolutions of the
Civil Service Commission are hereby AFFIRMED.[17][5]

Hence, this petition.

I S S U E:

Petitioner raised the issue of violation of his right to due process because he was denied the right to
cross-examine the respondents on their affidavit-complaint.

H e l d:

Petitioner contends that he was denied due process as he was not afforded the right to cross-
examine his accusers and their witnesses.  He stated that at his instance, in order to prevent delay in
the disposition of the case, he was allowed to present evidence first to support the allegations in his
Counter-Affidavit.  After he rested his case, respondents did not present their evidence, but moved to
submit their position paper and formal offer of evidence, which motion was granted by the CSC over
his (petitioner’s) objection.   Respondents then submitted their Position Paper and Formal Offer of
Exhibits.

Petitioner submits that although he was allowed to present evidence first, it should not be construed
as a waiver of his right to cross-examine the complainants.  Although the order of presentation of
evidence was not in conformity with the procedure, still petitioner should not be deemed to have lost
his right to cross-examine his accusers and their witnesses.  This may be allowed only if he
expressly waived said right.

The Court agrees with the CA that petitioner was not denied due process when he failed to cross-
examine the complainants and their witnesses since he was given the opportunity to be heard and
present his evidence. In administrative proceedings, the essence of due process is simply the
opportunity to explain one’s side.[18][6]
Velez v. De Vera[19][7]   held:

Due process of law in administrative cases is not identical with “judicial process” for a trial in court
is not always essential to due process.  While a day in court is a matter of right in judicial
proceedings, it is otherwise in administrative proceedings since they rest upon different principles. 
The due process clause guarantees no particular form of procedure and its requirements are not
technical.  Thus, in certain proceedings of administrative character, the right to a notice or hearing
are not essential to due process of law.  The constitutional requirement of due process is met by a
fair hearing before a regularly established administrative agency or tribunal. It is not essential that
hearings be had before the making of a determination if thereafter, there is available trial and
tribunal before which all objections and defenses to the making of such determination may be raised
and considered.  One adequate hearing is all that due process requires. . . .

The right to cross-examine is not an indispensable aspect of due process.  Nor is an actual hearing
always essential. . . . [20][8]

The dismissal of the petitioner from the government is valid.

Reference:
Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)
College of Law
University of the Cordilleras
[1][1]  College of Saint Benilde is an educational institution which is part of the De La Salle System.
[2][7]  Id. at 127.
[3][8]  Id. at 128-129.
[4][9]  Id. at 130-133.
[5][18] Id. at 139-150.
[6][19] Manual of Regulations for Private Schools (1992), Sec. 77(c) provides that expulsion is “an
extreme penalty of an erring pupil or student consisting of his exclusion from admission to any
public or private school in the Philippines and which requires the prior approval of the Secretary.  The
penalty may be imposed for acts or offenses constituting gross misconduct, dishonesty, hazing,
carrying deadly weapons, immorality, selling and/or possession of prohibited drugs such as
marijuana, drug dependency, drunkenness, hooliganism, vandalism, and other serious school
offenses such as assaulting a pupil or student or school personnel, instigating or leading illegal
strikes or similar concerned activities resulting in the stoppage of classes, preventing or threatening
any pupil or student or school personnel from entering the school premises or attending classes or
discharging their duties, forging or tampering with school records or school forms, and securing or
using forged school records, forms and documents.”
[7][20] Rollo, pp. 151-153.
[8][66] Guzman v. National University, G.R. No. L-68288, July 11, 1986, 142 SCRA 699, 706-707.
[9][67] Bautista v. Court of Appeals, G.R. No. 157219, May 28, 2004, 430 SCRA 353.
[10][68] Globe Telecom, Inc. v. National Telecommunications Commission, G.R. No. 143964, July 26,
2004, 435 SCRA 110.
[11][69] Valiao v. Court of Appeals, G.R. No. 146621, July 30, 2004, 435 SCRA 543.
[12][70] Barza v. Dinglasan, Jr., G.R. No. 136350, October 25, 2004, 441 SCRA 277.
[13][71] Seastar Marine Services, Inc. v. Bul-an, Jr., G.R. No. 142609, November 25, 2004, 444 SCRA
140.
[14][72] Batul v. Bayron, G.R. Nos. 157687 & 158959, February 26, 2004, 424 SCRA 26.
[15][73] Supra note 66, at 706.
[16][4]     Id. at 35-36.
[17][5]     Id. at 34.
[18][6]     Velez v. De Vera, A.C. No. 6697, July 25, 2006, 496 SCRA 345.
[19][7]     Id. at  387-388.
[20][8]     Emphasis supplied.
 CONSTITUTIONAL LAW
CHAPTER III – THE EQUAL PROTECTION CLAUSE
…nor shall any person be denied the equal protection of the laws.

1. The scope of the equal protection clause, 95 SCRA      420

2.  Equal protection of the law, 13 SCRA 266

3. Requisites for a valid classification-

Read:

1.            People vs. Cayat, 68 Phil. 12

a.            There must be real and substantial distinctions;

b.            It must be germane tot he purposes of the law;

c.            It must not be limited to existing conditions only; and

d.            It must apply equally to all members of the same class.

2. Read again, Association of Small Landowners vs.  Sec. of Agrarian reform, July 14, 1989

4. Equal protection in general-

Read:

1.            P. vs. Vera, 65 Phil. 56

2.            TIU VS. CA, 301 SCRA 278  (There is real and substantial distinction between business
inside  the Subic Special Economic Zone and outside wherein those inside are exempt from other
taxes as a result of the policy of the government to accelerate the development of the portion of
Subic left by the Americans)

3.            MELDA MARCOS VS. CA, 278 SCRA 843

4.            HIMAGAN VS. PEOPLE, October 7, 1994

The fact that policemen charged with a criminal offense punishable by more than 6 years are to be
suspended during the entire duration of the case unlike other government employees is valid since it
rests on valid classification because policemen carry weapons and the badge of the law which can
be used to harass or intimidate witnesses against them.

2-A  Gumabon vs. Director of Prisons, 37 SCRA 420

2-b. PANFILO LACSON VS. SANDIGANBAYAN, January 20, 1999

2-b-1. BASCO VS. PAGCOR, May 14, 1991

No violation of the equal protection clause if Congress would legalize cock-fighting and horse racing
since police power could regulate gambling.

1.            PHILIPPINE JUDGES ASSOCIATION VS. PRADO, November 11, 1993

There is no valid distinction for a law removing the franking privilege of the judiciary while leaving the
same to the Executive and Legislative despite the fact that there is considerable volume of mails
from the courts. Loss of revenue is not a valid ground unless it would be withdrawn to all
government offices.

FRANCISCO TATAD vs.  THE SECRETARY OF DEPARTMENT OF ENERGY, G. R. No. 124360,

November 5, 1997

 
EDCEL LAGMAN, JOKER ARROYO, ENRIQUE GARCIA, WIGBERTO TANADA,  FLAG HUMAN RIGHTS
FOUNDATION vs. HON. RUBEN TORRES, HON. FRANCISCO VIRAY, PETRON, FILIPINAS SHELL and
CALTEX PHILIPPINES, G.R. No. 127867, November 5, 1997.
PUNO, J.
These petitions challenge the constitutionality of Republic Act No. 8180 entitled “An Act
Deregulating the Downstream Oil Industry and for Other Purposes”. RA   8180 seeks to end  26
years of  government regulation of the downstream  oil industry.
The facts:

1.            Prior to 1971, no government agency  was regulating the oil industry. New players were free
to enter the oil market without any government interference. There were four (4) refining companies
at that time.  SHELL, CALTEX, BATAAN REFINING COMPANY and FILOIL MARKETING and six (6)
petroleum marketing companies: ESSO, FILOIL, CALTEX, GETTY, MOBIL and SHELL;

2.            In 1971, the country was driven to its knees by the crippling oil crisis and in order to remedy
the same,  the OIL INDUSTRY COMMISSION ACT was enacted  REGULATING the oil industry ;

3.            On November 9, 1973, then President Marcos  created the Philippine national Oil
Corporation (PNOC) t break the control of the foreigners to the oil industry. It  acquired ownership of
ESSO Philippines and Filoil and likewise bought controlling shares of the Bataan Refining
Corporation. PNOC then operated under the business name PETRON CORPORATION and for the first
time, there was a Filipino presence in the Philippine oil market;

4.            In 1984, Pres. Marcos through section 8 of PD 1956 created the OIL PRICE STABILIZATION
FUND (OPSF) to cushion the effects of frequent changes in the price of oil caused by the exchange
rate adjustments or increase of the world market prices crude oil and imported petroleum products;

5.            By 1985, only three (3) oil companies were left operating in the country. These are: CALTEX,
FILIPINAS SHELL and PNOC;

6.            In May, 1987, Pres. Corazon Aquino signed Executive Order No. 172 creating the ENERGY
REULATORY BOARD to regulate the business of importing, exporting, shipping, transporting,
processing, refining, marketing and distributing energy resources “WHEN WARRANTED AND ONLY 
WHEN PUBLIC NECESSITY REQUIRES”. The Board was empowered to “fix and regulate the prices of
petroleum products and other related merchandise;

7.            In March, 1996, Congress enacted RA 8180 deregulating the Oil Industry not later than
March, 1997. The law requires that the implementation of the regulation, shall as far as practicable
be made at a time WHEN THE PRICES OF CRUDE OIL AND PETROLEUM PRODUCTS IN THE WORLD
ARE DECLINING AND WHEN THE EXCHANGE RATE OF THE PESO IN RELATION TO THE US DOLLAR;
IS STABLE;

8.            On February 8, 1997, Executive Order No. 372  was issued by President Fidel  Ramos 
implementing full deregulation ON THE GROUND THAT THE OPSF FUND HAS BEEN DEPLETED;

9.            The petitioners questioned the constitutionality of RA 8180 on the following grounds:

a.            Section 5 of RA 8180 violates the equal protection clause of the Constitution;
b.            The imposition of different tariff rates does not deregulate the oil industry and even bars the
entry of other players in the oil industry but instead effectively protects the interest  of the oil
companies with existing refineries. Thus, it runs counter to the objective of the law “to foster a truly
competitive market”; The inclusion of  Sec. 5 [b]  providing for tariff differential violates Section 26 [1]
of Art. VI of the 1987 Constitution which requires  every law to have only one subject which should
be expressed in the title thereof;

c.            Section 15 of RA 8180 and EO No. 392 are unconstitutional  for undue delegation of
legislative power to the President and the Secretary of Energy;

d.            EO 392 implementing the full deregulation of the oil industry is unconstitutional since it is
arbitrary and unreasonable since it was enacted due to the alleged depletion of the OPSF fund, a
condition which is not found in RA No. 8180;

e.            Section 15  of RA 8180  is unconstitutional for it allows the formation of a de facto cartel
among three existing oil companies in violation of the Constitution prohibiting against monopolies,
combination in restraint of trade and unfair competition.

The provisions of the law being questioned as unconstitutional are Section 5 [b] and Section 15
which provide:

“Section 5 [b] Any law to the contrary notwithstanding and starting with the effectivity of this Act,
tariff duty shall be imposed and collected on imported crude oil at the rate of 3% and imported
refined petroleum products at the rate of seven (7%) percent, except fuel oil and LPG, the rate for
which shall be the same; Provided, that beginning on January 1, 2004, the tariff rate on imported
crude oil and refined petroleum products shall be the same; Provided, further, that this provision 
may be amended only by an Act of Congress.”

xxx

“Section 15. Implementation of  full deregulation. Pursuant to Section 5 [e] of RA 7638, the DOE,
upon approval of the President, implement full deregulation of the downstream oil industry not
later than March, 1997. As far as practicable, the DOE shall time the full deregulation when the
prices of crude oil and petroleum products in the world market are declining and when the
exchange rate of the peso in relation to the US dollar is stable.”
The issues are:
Procedural Issues:

a.            Whether or not the petitions raise justiciable controversy; and

b.            Whether or not  the petitioners  have the standing to question the validity of the subject law
and executive order.
Substantive Issues:

a.            Whether or not Section 5 of RA 8180 violates the one title—one subject requirement of the
Constitution;

b.            Whether or not Section 5 of RA 8180 violates the equal protection clause of the Constitution;

c.            Whether section 15 violates the  constitutional prohibition on undue delegation of legislative
power;

d.            Whether or not EO 392 is arbitrary and unreasonable; and

e.            Whether or not RA 8180 violates the constitutional prohibition against monopolies,
combinations in restraint of trade and unfair competition.

HELD:

1.            Judicial power includes not only the duty of the courts to settle controversies involving
rights but also the duty to determine  whether or not there has been grave abuse of  discretion
amounting to lack or excess of jurisdiction on the part of any agency or branch of the government.
The courts, as guardians of the Constitution, have the inherent  authority to determine whether a
statute enacted by the legislature transcends the limit imposed by the fundamental law. When the
statute violates the Constitution, it is not only the right  of the judiciary to declare such act as
unconstitutional and void.

2.            The question of locus standi must likewise fall . As held in KAPATIRAN NG MGA
NAGLILINGKOD SA PAMAHALAAN NG PILIPINAS, INC. VS. TAN, it was held that:

“Objections to taxpayer’s suit for lack of sufficient personality, standing, or interest are , however, in
the main procedural matters. CONSIDERING THE IMPORTANCE OF THE CASES TO THE PUBLIC,
AND IN KEEPING WITH THE COURT’S DUTY TO DETERMINE WHETHER OR NOT THE OTHER
BRANCHEDS OF GOVERNMENT HAVE KEPT THEMSELVES WITHIN THE LIMITS OF THE
CONSTITUTION AND  THE LAWS AND THAT THEY HAVE NOT ABUSE THE DISCRETION GIVEN TO
THEM, THE COURT HAS BRUSHED ASIDE TECHNICALITIES OF PROCEDURE AND HAS TAKEN
COGNIZANCE OF THESE PETITIONS.”

There is no disagreement on the part of the parties as to the far-reaching importance of the validity
of RA 8180. Thus, there is no good sense in being hyper-technical on the standing of the petitioners
for they pose issues which are significant to our people and which deserve our forthright resolution.

3.            It is contended that Section 5[b[ of RA 8180 on tariff differentials violates the Constitutional
prohibition requiring every law to have only one subject which should be expressed in its title. We do
not concur with this contention. As a policy, the Court has adopted a liberal construction of the one
title—one subject rule. We have consistently ruled that the title need not mirror, fully index or
catalogue all contents and minute details of a law. A law having a single general subject indicated in
the title may contain a number of provisions, no matter how diverse they may be, so long as they are
not inconsistent with or foreign to the general subject, and may be considered in furtherance of such
subject by providing for the method and means of carrying out the general subject. We hold that
Section 5 providing for tariff differential is germane to the subject  of RA 8180 which is the
deregulation of the downstream oil industry.

4.            The contention that there is undue delegation of legislative power when it authorized the
President to determine when deregulation starts is without merit. The petitioners claim that the
phrases “as far as practicable”, “decline of crude oil prices in the world market” and “stability of the
peso exchange rate to the US dollar” are ambivalent, unclear and inconcrete in meaning and could
not therefore provide the “determinate or determinable standards” which can guide the President in
his decision to fully deregulate the oil industry. The power of Congress to delegate the execution of
laws has long been settled by this Court in 1916 in the case of COMPANIA GENERAL DE TABACOS
DE FILIPINA VS. THE BOARD OF PUBLIC UTILITY COMMISSIONERS WHERE IT WAS HELD THAT:

“The true distinction is between the delegation of power to make the law , which necessarily involves
a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid
objection can be made.”

wo tests have been  developed to determine whether the delegation of the power to execute laws
does not involve the abdication of the power to make law itself. We delineated the metes and
bounds of these tests in EASTERM SHIPPING LINES VS. POEA, thus:

There are two accepted tests to determine whether or not there is a valid delegation of legislative
power , viz: the completeness test and the sufficiency of standard test. Under the first test, the law
must be complete in all its terms and conditions when it leaves the legislative such that when it
reaches the delegate, the only thing he will do is enforce it. Under the sufficient standard test, there
must be adequate guidelines or limitations in the law to map out the boundaries of the delegate’s
authority and prevent the delegation from running riot. BOTH TESTS ARE INTENDED TO PREVENT A
TOTAL TRANSFERENCE OF LEGISLATIVE AUTHORITY TO THE DELEGATE, WHO IS NOT ALLOWED
TO STEP INTO THE SHOES OF THE LEGISLATURE AND EXERCISE A POWER ESSENTIALLY
LEGISLATIVE.”

The validity of delegating legislative power is now a quiet area in our constitutional landscape
because such has become an inevitability in light of the increasing complexity of the task of
government. In fact, in HIRABAYASHI VS. UNITED STATES, the Supreme Court through Justice
ISAGANI CRUZ held that  “even if the law does not expressly pinpoint the standard, THE COURTS
WILL BEND BACKWARD TO LOCATE THE SAME ELSEWHERE IN ORDER TO SPARE THE STATUTE; IF
IT CAN, FROM CONSTITUTIONAL INFIRMITY.”
5.            EO  No. 392 failed  to follow faithfully the standards set by RA 8180 when it considered the
extraneous factor of depletion of the OPSF Fund. The misapplication of this extra factor cannot be
justified. The executive is bereft of any right to alter either by addition or subtraction the standards
set by RA 8180 for it has no power to make laws. To cede to the executive the power to make laws
would invite tyranny and to transgress the separation of powers. The exercise of delegated power is
given a strict scrutiny by courts for the delegate is a mere agent whose action cannot infringe the
terms of the agency.

6.            Section 19 of Article XII of the Constitution provides:

“The state shall regulate or prohibit monopolies when the public interests so requires. No
combinations in restraint of trade or unfair competition shall be allowed.”

A monopoly  is a privilege or peculiar advantage vested in one or more persons or companies,

consisting of the exclusive  right or power to carry on a particular business or trade, manufacture a
particular article or control the sale or the whole market structure in which one or  only a few firms
dominate the total sales of a product or service. On the other hand, a combination in restraint of
trade is an agreement or understanding between two or more persons, in the form of contract, trust,
pool, holding company, for the purpose of unduly restricting  competition, monopolizing trade and
commerce in  a certain commodity, controlling its production, distribution and price or otherwise
interfering with freedom of trade without statutory authority. Combination in restraint of  trade refers
to means while monopoly refers to the end.

Respondents  aver that the 4% tariff differential is designed to encourage new entrants to invest in
refineries. They stress that the inventory requirement is meant to guaranty continuous domestic
supply of  petroleum and to discourage fly-by-night operators. They also claim that the prohibition
against predatory pricing is intended to protect prospective entrants.

The validity of the assailed provisions of RA 8180 has to be decided in the light of the letter and
spirit of Section 19, Art. XII of the Constitution. While the Constitution embraced free enterprise as
an economic creed, it did not prohibit per se the operation of monopolies which can, however,  be
regulated in the public interest. This distinct free enterprise system is dictated by the need to
achieve the goals of our national economy as defined under Section 1, Art. XII of the Constitution
which are: more equitable distribution of opportunities, income and wealth; a sustained increase in
the amount of goods and services produced by the nation for all, especially the underprivileged. It
also calls for the State to protect Filipino enterprises against unfair and trades practices.

The provisions on 4% tariff differential, predatory pricing and inventory requirement blocks the entry
of other players and give undue advantage to the 3 oil companies resulting to monopolies or unfair
competition. This is so because it would take billions for new players to construct refineries, and to
have big inventories. This would effectively prevent new players.
In the case at bar, it cannot be denied that our oil industry is operated and controlled by an oligopoly
(dominated by a handful of players) and a foreign oligopoly at that. As the dominant players, SHELL,
CALTEX & PETRON boast of  existing refineries of various capacities. The tariff differential of 4%
works to their immense advantage. Yet, this is only one edge on tariff differential. THE OTHER EDGE
CUTS AND CUTS DEEP IN THE HEART OF THEIR COMPETITORS. IT ERECTS HIGH BARRIERS TO NE
PLAYERS. New players in order to equalize must build their refineries worth billions of pesos. Those
without refineries had to compete with a higher cost of 4%.They will be competing on an uneven
field.

The provision on inventory widens the advantage of PETRON, SHELL AND CALTEX against
prospective new players. The three (3) could easily comply with the inventory requirement in view of
their numerous storage facilities. Prospective competitors  again find compliance oft his
requirement  difficult because of prohibitive cost in constructing new  storage facilities. The net
effect would be to effectively prohibit the entrance of new players.

Now comes the prohibition on predatory pricing or “selling or offering to sell any product at a price
unreasonably below the industry average cost so as to attract customers to the detriment of the
competitors”. According to HOVENKAMP:

“The rationale for predatory pricing is the sustaining of losses today that will give a firm monopoly
profits in the future. The monopoly profits will never materialize, however, if the market is flooded
with new entrants as soon as the successful predator attempts to raise its price. Predatory pricing
will be profitable only if the market contains significant barriers to new entry.”

Coupled with the 4% tariff differential and the inventory requirement, the predatory pricing is a
significant barrier which discourage new players to enter the oil market thereby promoting unfair
competition, monopoly and restraint of trade which are prohibited by the Constitution.

Reference:
Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)
College of Law
University of the Cordilleras
________________________

2-d.LACSON VS. SANDIGANBAYAN, January 20, 1999

3. Taxicab Operators vs. BOT, September 30,l982

4. Bautista vs. Juinio,127 SCRA 329

5. Dumlao vs. COMELEC, 95 SCRA 392

6. Villegas vs. Hiu, 86 SCRA 270

7. Ceniza vs. COMELEC, 95 SCRA 763

8. UNIDO vs. COMELEC, 104 SCRA 38

9. Nunez vs. Sandiganbayan, 111 SCRA 433(Read also the dissenting opinion of Justice Makasiar

10. Sison vs. Ancheta, 130 SCRA 654

11. Citizens Surety vs. Puno, 119 SCRA 216

12. Peralta vs. COMELEC, 82 SCRA 30

13. Hawaiian-Phil. Co. vs. Asociacion, 151 SCRA 306

14. Ormoc Sugar Co. vs. Ormoc City, 22 SCRA 603

15. Flores vs. COMELEC, 184 SCRA 484

 CONSTITUTIONAL LAW
CHAPTER IV – THE SEARCH AND SEIZURE PROVISION

Section 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372,
Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically
suspended one (1) month before and two (2) months after the holding of any election)

Sec. 18. Period of detention without judicial warrant of arrest.- The provisions of Article 125 of the
Revised Penal Code, notwithstanding, any police or law enforcement personnel, who, having been
duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with
or suspected of the crime of terrorism or the crime of  conspiracy to commit terrorism shall,
WITHOUT INCURRING ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED
PERSONS TO THE PROPER JUDICIAL AUTHORITIES, DELIVER SAID CHARGED OR SUSPECTED
PERSON TO THE PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF THREE (3) DAYS counted
from the moment said charged or suspected person has been apprehended or arrested, detained,
and taken into custody by the said  police, or law enforcement personnel: Provided, That the arrest
of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the
surveillance under Section 7 and examination of bank deposits under Section 27 pf this Act.

The police or law enforcement personnel concerned shall, before detaining the person suspected of
the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest
the place where the arrest took place at any time of the day or night. It shall be the duty of the judge,
among other things, to ascertain the identity of the police or law enforcement personnel  and the
person or persons they have arrested and presented before him or her, to inquire of them the
reasons why they have arrested the person and determine by questioning and personal observation
whether or not the subject has been  subjected to any physical, moral or psychological torture by
whom and why. The judge shall then submit a written report of what he/she had observed when the
subject was brought before him to the proper court that has jurisdiction over the case of the person
thus arrested.

The judge shall forthwith submit his report within 3 calendar days from the time the suspect was
brought to his/her residence or office.

Immediately after taking custody  of a person charged with or suspected of the crime of terrorism or
conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the
judge of the court nearest the place of apprehension or arrest; provided, That where the arrest is
made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at
the residence of the judge nearest the place where the accused was arrested. The penalty of 10
years and 1 day to 12 years imprisonment shall be imposed upon the police or law enforcement
personnel who fails to notify any judge as provided in the preceding paragraph.

Section 19. Period of Detention in the event of an actual or imminent terrorist attack.- In the vent of
an actual or imminent terrorist attack,, suspects may not be detained for more than three days
without the written approval of a municipal, city, provincial or regional official of a Human Rights
Commission, or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the
Court of Appeals nearest the place of arrest. If the arrest is made during Saturdays, Sundays or
holidays, or after office hours, the arresting police of law enforcement personnel shall bring the
person thus arrested to the residence of any of the officials mentioned above that is nearest the
place where the accused was arrested. The approval in writing of any of the said officials shall be
secured by the police or law enforcement personnel concerned within five days after the date of the
detention of the persons concerned; Provided, however, That within three days after the detention
the suspects whose connection with the terror attack or threat is not established, shall be released
immediately.
Section 26 provides that persons who have been charged with terrorism or conspiracy to commit
terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:
 Detained under house arrest;
 Restricted from traveling; and/or
 Prohibited from using any cellular phones, computers, or other means of communications with
people outside their residence.

Section 39. Seizure and Sequestration.- The deposits and their outstanding balances, placements,
trust accounts, assets, and records in any bank or financial institution, moneys, businesses,
transportation and communication equipment, supplies and other implements, and property of
whatever kind and nature belonging:

 To any person charged with or suspected of the crime of terrorism or conspiracy to commit
terrorism;
 to a judicially declared and outlawed terrorist organization or group of persons;
 to a member of such judicially declared and outlawed organization, association or group of
persons,

-shall be seized, sequestered, and frozen in order to prevent their use, transfer or conveyance for
purposes that are inimical to the safety and security of the people or injurious to the interest of the
State.

The accused or suspect may withdraw such sums as are reasonably needed by his family including
the services of his counsel and his family’s medical needs upon approval of the court. He or she may
also use any of his property that is under seizure or sequestration or frozen because of his/her
indictment as a terrorist upon permission of the court for any legitimate reason.

Section 40. The seized, sequestered and frozen bank deposits…shall be deemed property held in
trust by the bank or financial institution and that their use or disposition while the case is pending
shall be subject to the approval of the court before which the case or cases are pending.
Section 41. If the person suspected as terrorist is acquitted after arraignment or his case dismissed
before his arraignment by a competent court, the seizure…shall be lifted by the investigating body or
the competent court and restored to him without delay. The filing of an appeal or motion for
reconsideration shall not stay the release of said funds from seizure, sequestration and freezing.

If convicted, said seized, sequestered and frozen assets shall automatically forfeited in favor of the
government.

Requisites of a valid search warrant

Read:

a. Essentials of a valid search warrant,145 SCRA          739

b. Validity of a search  warrant and the admissibility  of  evidence obtained in          violation thereof.

c.  The place to be searched as indicated in the warrant is controlling

            PEOPLE VS. CA, 291 SCRA 400

Narvasa, CJ
In applying for a search warrant, the police officers had in their mind the first four (4) separate
apartment units at the rear of ABIGAIL VARIETY STORE in Quezon City to be the subject of their
search. The same was not, however, what the Judge who issued the warrant had in mind, AND
WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN THE SEARCH WARRANT. As such, any
evidence obtained from the place searched which is different from that indicated in the search
warrant is inadmissible in evidence for any purpose and in any proceeding.
This is so because it is neither licit nor fair to allow police officers to search a place different from
that stated in the warrant on the claim that the place actually searched—although not that
specified in the search warrant—is exactly what they had in view when they applied for the warrant
and had demarcated in their supporting evidence. WHAT IS MATERIAL IN DETERMINING THE
VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE
APPLICANTS HAD IN THEIR THOUGHTS, OR HAD REPRESENTED IN THE PROOFS THEY
SUBMITTED TO THE COURT ISSUING THE WARRANT.  As such, it was not just a case of “obvious
typographical error”, but a clear case of a search of a place different from that clearly and without
ambiguity identified in the search warrant.
NOTE: Very Important: Where a search warrant is issued by one court and the criminal action base
don the results of the search is afterwards commenced in another court, IT IS NOT THE RULE
THAT A MOTION TO QUASH THE WARRANT (or to retrieve the things seized) MAY BE FILED ONLY
IN THE ISSUING COURT—SUCH A MOTION MAY BE FILED FOR THE FIRST TIME IN EITHER THE
ISSUING COURT OR THAT IN WHICH THE CRIMINAL PROCEEDING IS PENDING.

d. Validity of a warrantless search and seizure as a result of an informer’s tip. Note the two (2)
conflicting decisions of the Supreme Court.

PEOPLE VS. ARUTA, 288 SCRA 626

On December 13, 1988, P/Lt. Abello of the Olongapo PNP was tipped off by an informer that Aling
Rosa would be arriving from Baguio City  the following day with a large volume of marijuana. As a
result of the tip,  the policemen waited for a Victory Bus from Baguio City near the PNB Olongapo,
near Rizal Ave. When the accused got off, she was pointed to by the informer. She was carrying a
traveling bag at that time. She was not acting suspiciously. She was arrested without a warrant.
The bag allegedly contained 8.5 kilos of marijuana. After trial, she was convicted and imposed a
penalty of life imprisonment.
Issue:
Whether or not the marijuana allegedly taken from the accused is admissible in evidence.
Held:
             Warrantless search is allowed in the following instances:
1.            customs searches;
2.            searches of moving vehicle;
3.            seizure of evidence in plain view;
4.            consented searches;
5.            search incidental to a lawful arrest; and
6.            stop and frisk measures.
The above exceptions to the requirement of a search warrant, however, should not become
unbridled licenses for law enforcement officers to trample upon the conditionally guaranteed and
more fundamental right of persons against unreasonable search and seizures. The essential
requisite of probable cause must still be satisfied before a warrantless search and seizure can be
lawfully conducted. In order that the information received by the police officers may be sufficient
to be the basis of probable cause, it must be based on reasonable ground of suspicion or belief a
crime has been committed or is about to be committed.
The marijuana obtained  as a result of a warrantless search is inadmissible as evidence for the
following reasons:
a.            the policemen had sufficient time to apply for a search warrant  but they failed to do so;
b.            the accused was not acting suspiciously;
c.            the accused’s identity was previously ascertained so applying for a warrant should have
been easy;
d.            the accused in this case was searched while innocently crossing a street
Consequently, there was no legal basis for the police to effect a warrantless search of the
accused’s bag, there being no probable cause and the accused’s not having been legally arrested.
The arrest was made only after the accused was pointed to by the informant at a time when she
was not doing anything suspicious. The arresting officers do not have personal knowledge that the
accused was committing a crime at that time.
            Since there was no valid warrantless arrest, it logically follows that the subsequent search
is similarly illegal, it being not incidental to a lawful arrest. This is so because if a search is first
undertaken, and an arrest effected based on the evidence produced by the search, both such
search and arrest would be unlawful, for being contrary to law.
This case is similar tot he case of PEOPLE VS. AMINNUDIN,  and PEOPLE VS. ENCINADA.
PEOPLE VS. MONTILLA, 284 SCRA 703
            On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the Dasmarinas,
Cavite PNP were informed by an INFORMER that a drug courier would be arriving in Barangay
Salitran, Dasmarinas, Cavite, from Baguio City, with an undetermined amount of marijuana. The
informer likewise informed them that he could recognize said person.
            At about 4 in the morning of June 20, 1994, the appellant was arrested by the above-named
police officers while alighting from a passenger jeepney  near a waiting shed in Salitran,
Dasmarinas, Cavite, upon being pointed to by the informer. The policemen recovered 28 kilos of
dried marijuana leaves. The arrest was without warrant.
            The trial court convicted the appellant for transporting marijuana based on the testimonies
of the Above-named police officers without presenting the alleged informer.
Issue:
            Was the warrantless arrest valid?
Held:
            The accused claims that the warrantless search and seizure is illegal because the alleged
information was received by the police on June 19, 1994 and therefore, they could have applied for
a search warrant. The said contention is without merit considering that the information given by
the informer is too sketchy and not detailed enough for the obtention of the corresponding arrest
or search warrant. While there is indication that the informer knows the courier, the records do not
show that he knew his name. On bare information, the police could not have secured a warrant
from a judge.
            Furthermore, warrantless search is allowed in the following instances:
1.            customs searches;
2.            searches of moving vehicle;
3.            seizure of evidence in plain view;
4.            consented searches;
5.            search incidental to a lawful arrest; and
6.            stop and frisk measures.
Since the accused was arrested for transporting marijuana, the subsequent search on his person
is justified. An arresting officer has the right to validly search and seize from the offender (1)
dangerous weapons; and (2) those that may be used  as proof of the commission of the offense.
In the case at bar, upon being pointed to by the informer as the drug courier, the policemen
requested the accused  to open and show them the contents of his bag and the cartoon he was
carrying and he voluntarily opened the same and upon cursory inspection, it was found out that it
contains marijuana. Hence the arrest.
The accused insists that it is normal for a person traveling with a bag and cartoon which should
not elicit the slightest suspicion that he was committing a crime. In short, there was no probable
cause for these policemen to think that he was committing a crime.
The said contention was considered without merit by the Supreme Court considering the fact that
he consented to the search as well as the fact that the informer was a reliable one who had
supplied similar information to the police in the past which proved positive.
(NOTE: The SC held that the non-presentation of the informer does not affect the case for the
prosecution because he is not even the best witness. He is merely a corroborative witness to the
arresting officers. )
JUSTICE PANGANIBAN:
To say that “reliable tips” from informers constitute probable cause for a warrantless arrest or
search IS A DANGEROUS PRECEDENT AND PLACES IN GREAT JEOPARDY THE DOCTRINES LAID
DOWN IN MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA 1; PEOPLE
VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE,
220 SCRA).
The case is similar to the case of People vs. Encimada where the appellant was searched without
a warrant while disembarking from a ship on the strength of a tip from an informer received by the
police the previous afternoon that the appellant would be transporting prohibited drugs. The
search yielded a plastic package containing marijuana. On Appeal, the SC reversed the decision of
conviction and held that Encinada did not manifest any suspicious behavior that would necessarily
and reasonably invite the attention of the police.

ELI LUI, ET AL. VS. MATILLANO, May 27, 2004

Right against unreasonable searches and seizures; Mission Order does not authorize an illegal
search. Waiver of the right against an unreasonable search and seizure.

In search of the allegedly missing amount of P45,000.00 owned by the employer, the residence of a
relative of the suspect was forcibly open by the authorities by kicking the kitchen door to gain entry
into the house. Thereafter, they confiscated different personal properties therein which were
allegedly part of those stolen from the employer. They were in possession of a mission order but
later on claimed that the owner of the house gave his consent to the warrantless search.  Are the
things admissible in evidence? Can they be sued for damages as a result of the said warrantless
search and seizure?

Held:

The right  against unreasonable searches and seizures is a personal right which may be waived
expressly or impliedly. BUT A WAIVER BY IMPLICATION CANNOT BE PRESUMED. There must be
clear and convincing evidence of an actual intention to relinquish the right. There must be proof of
the following:

a.            that the right exists;

b.            that the person involved had knowledge, either constructive or actual, of the existence of
said right;

c.            that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and intelligently in order that the said is to be
valid.

The search was therefore held illegal and the members of the searching party held liable for
damages in accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP Garments vs.
CA.

e.  General or roving warrants

Read:

1.            Stonehill vs. Diokno,June 19,1967

Concepcion, C.J.

The petitioners are questioning the validity of a total of 42 search warrants issued on different dates
against them and the corporations in which they are officers, directing the peace officer to search
the persons above-named and/or the premises of their offices, warehouses and to seize and take
possession of the following personal property, to wit:

“Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals,

typewriters and other documents or papers showing all business transactions including
disbursement receipts, balance sheets and profit and loss statements”

since they are the subject of the offense of violating the CENTRAL BANK LAWS, TARIFF AND
CUSTOMS LAWS, INTERNAL REVENUE CODE AND THE REVISED PENAL CODE.

The petitioners claim that the search warrants are void being violative of the Constitutional provision
on search and seizure on the ground that:

a. The search warrants did not particularly describe the documents, books and things to be seized;

b. cash money not mentioned in the warrant were actually seized;

c. The warrants were issued to fish evidence in the deportation cases against them;

d. the searches and seizures were made in an illegal manner;

e. the things seized were not delivered to the court to be disposed of in a manner provided for by law.

Issue:

Were the searches and seizures made in the offices and residences of the petitioners valid?

a. As to the searches made on their offices, they could not question the same in their personal
capacities because the corporations have a personality separate and distinct with its officers. An
objection to an unlawful search and seizure IS PURELY PERSONAL AND CANNOT BE AVAILED OF
BY THIRD PARTIES. CONSEQUENTLY, THE PETITIONERS MAY NOT VALIDLY OBJECT TO THE USE
IN EVIDENCE AGAINST THEM OF THE DOCUMENTS, PAPERS AND THINGS SEIZED FROM THE
OFFICES AND PREMISES OF THE CORPORATIONS, TO WHOM THE SEIZED EFFECTS BELONG, AND
MAY NOT BE INVOKED BY THE CORPORATE OFFICERS IN PROCEEDINGS AGAINST THEM IN THEIR
INDIVIDUAL CAPACITY.

b. As to the documents seized in the residences of the petitioners, the same may not be used in
evidence against them because the warrants issued were in the nature of a general warrant for
failure to comply with the constitutional requirement that:

1. that no warrant shall issue but upon probable cause, to be determined by the judge in the manner
set forth in said provision; and

2. that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. They were issued
upon applications stating that the natural and juridical persons therein named had committed a
violation of Central bank Laws, Tariff and Customs Laws, Internal revenue Code and Revised Penal
Code. IN OTHER WORDS, NO SPECIFIC OFFENSE HAD BEEN ALLEGED IN SAID APPLICATIONS. THE
AVERMENTS THEREOF WITH RESPECT TO THE OFFENSE COMMITTED WEREABSTRACT. AS A
CONSEQUENCE, IT WAS IMPOSSIBLE FOR THE JUDGE WHO ISSUED THE WARRANTS TO HAVE
FOUND THE EXISTENCE OF PROBABLE CAUSE, FOR THE SAME PRESUPPOSES THE
INTRODUCTION OF COMPETENT PROOF THAT THE PARTY AGAINST WHOM IT IS SOUGHT HAS
PERFORMED PARTICULAR ACTS, OR COMMITTED SPECIFIC OMISSIONS, VIOLATING A GIVEN
PROVISION OF OUR CRIMINAL LAWS.

2. Bache vs. Ruiz, 37 SCRA 823

3. Secretary vs. Marcos, 76 SCRA 301

4. Castro vs. Pabalan, April 30,l976

5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for estafa, falsification, tax evasion and
insurance fraud is a general warrant and therefore not valid)

6. Collector vs. Villaluz, June 18,1976

7. Viduya vs. Verdiago, 73 SCRA 553

8. Dizon vs. Castro, April 12, 1985

9. People vs. Veloso, 48 Phil. 169

1.            TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101. “A SCATTER-SHOT
WARRANT is a search warrant issued for  more than one specific offense like one for estafa,
robbery, theft and qualified theft”)

f. Define probable cause. Who determines probable cause?

a.            ROBERTS VS. CA, 254 SCRA 307

b.            DE LOS SANTOS VS. MONTESA, 247 SCRA 85

VICENTE LIM,SR. AND MAYOR SUSANA LIM

VS.HON. N. FELIX (G.R. NO. 99054-57)
EN BANC
 GUTIERREZ, JR.  J.
Facts:

Petitioners are suspects of the slaying of congressman Moises Espinosa, Sr. and three of his
security escorts and the wounding of another. They were initially charged, with three others, with the
crime of multiple murder with frustrated murder. After conducting a preliminary investigation, a
warrant of arrest was issued on July 31, 1989. Bail was fixed at P200,000.

On September 22, 1989, Fiscal Alfane, designated to review the case, issued a Resolution affirming
the finding of a prima facie case against the petitioners but ruled that a case of Murder for each of
the killing of the four victims and a physical injuries case for inflicting gunshot wound on the survivor
be filled instead against the suspects. Thereafter, four separate informations to that effect were
filed with the RTC of Masbate with no bail recommended.

On November 21, 1989, a motion for change of venue, filed by the petitioners was granted by the SC.
It ordered that the case may be transferred from the RTC of Masbate to the RTC of Makati.

Petitioners then moved that another hearing ba conducted to determine if there really exists a prima
facie case against them in the light of documents showing recantations of some witnesses in the
preliminary investigation. They likewise filed a motion to order the transmittal of initial records of the
preliminary investigation conducted by the municipal judge of Barsaga of Masbate. These motions
were however denied by the court because the prosecution had declared the existence of probable
cause, informations were complete in form  in substance , and there was no defect on its face.
Hence it found it just and proper to rely on the prosecutor’s certification in each information.

ISSUE:

Whether or not a judge may issue a warrant of arrest without bail by simply relying on the
prosecutions certification and recommendation that  a probable cause exists?

     Held:

1.  The judge committed a grave abuse of discretion.

In the case of Placer vs. Villanueva, the sc ruled that a judge may rely upon the fiscal’s certification
of the existence of a probable cause and on the basis thereof, issue a warrant of arrest. However,
the certification does not bind the judge to come out with the warrant of arrest. This decision
interpreted the “search and seizure” provision of the 1973 Constitution. Under this provision, the
judge must satisfy himself of the existence of probable cause before issuing a warrant of order of
arrest. If on the face of information, the judge finds no probable cause, he may disregard the fiscal’s
certification and require the submission of the affidavits of witness to aid him at arriving at a
conclusion as to the existence of a probable cause. This has been the rule since U.S vs. Ocampo and
Amarga vs. Abbas.

2.  In the case of Soliven vs. Makasiar, decided under the 1987 Constitution, the Court noted that the
addition of the word personally after the word determined and the deletion of the grant of authority
by the 1973 Constitution to issue warrants to other respondent officers as to may be authorized by
law does not require the judge to personally examine the complainant and his witness in his
determination of probable cause for the issuance of a warrant of arrest.What the Constitution
underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the
existence of probable cause. Following established doctrine and procedures, he shall:

(1)  personally evaluate the reports and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue a warrant of arrest;

(2)  If on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and
require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as
to the existence of probable cause.

3.    The case of People vs. Honorable Enrique B. Inting reiterates the following doctrines:

(1)  The determination of probable cause is a function of the judge. It is not for the Provincial Fiscal
or Prosecutor nor for the Election Supervisor to ascertain. Only the judge alone makes this
detemination.

(2)  The preliminary inquiry made by the prosecutor does not bind the judge. It merely assist him to
make the determination of probable cause. The judge does not have to follow what the prosecutor’s
present to him. By itself, the prosecutor’s certification of probable cause is ineffectual. It is the
report, the affidavits, the transcripts of stenographic notes, and all other supporting documents
behind the prosecutor’s certification which are material in assisting the judge to make his
determination.

(3)  Preliminary inquiry should be distinguished from the preliminary investigation proper. While the
former seeks to determine probable cause for the issuance of warrant of arrest, the latter ascertains
whether the offender should be held for trial or be released.

4.     4.  In the case of Castillo vs. Villaluz, the court ruled that judges of RTC no longer have authority
to conduct preliminary investigations: This authority was removed from them by the 1985 Rules on
Criminal Procedure, effective on January 1, 1985.

5.      In the present case, the respondent judge relies solely on the certification of the prosecutor.
Considering that all the records of the investigation are in Masbate, he has not personally
determined the existence of probable cause. The determination was made by the provincial
prosecutor. The constitutional requirement had not been satisfied.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and
reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the
warrant of arrest against the petitioners. There was no basis for the respondent judge to make his
personal determination regarding the existence of probable cause from the issuance of warrant of
arrest as mandated by the Constitution. He could not have possibly known what has transpired in
Masbate as he had nothing but a certification. Although the judge does not have to personally
examine the complainant and his witnesses (for the prosecutor can perform the same functions as
commissioner for taking of evidence) there should be a report and necessary documents supporting
the Fiscal’s bare certification. All of these should be before the judge.

1. Amarga vs. Abbas, 98 Phil. 739

1-a. 20th Century Fox vs. CA, 164 SCRA 655

1-b. Quintero vs. NBI, 162 SCRA 467

1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No. 83578, March 16,    1989

SOLIVEN VS. MAKASIAR, 167 SCRA 393

The word “personally” after the word determined does not necessarily mean that the judge should
examine the complainant and his witnesses personally before issuing the search warrant or warrant
of arrest but the exclusive responsibility on the part of said judge to satisfy himself of the existence
of probable cause. As such, there is no need to examine the complainant and his witnesses face to
face. It is sufficient if the judge is convinced of the existence of probable cause upon reading the
affidavits or deposition of the complainant and his witnesses.

1-e. Pendon vs. CA, Nov. 16, 1990

1-f. P. vs. Inting, July 25, 1990

1-g. Umil vs. Ramos, et al., July 9, 1990 with the Resolution of the Motion for Reconsideration in
November, 1991

1-h. Paderanga vs. Drilon, April 19, 1991

2. Department of Health vs. Sy Chi Siong,               Inc., GR No. 85289, February 20, 1989

2-a. P. vs. Villanueva, 110 SCRA 465

2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the power to determine probable insofar
as the issuance of a warrant of arrest is concerned)

3. Tolentino vs. Villaluz,July 27,1987

4. Cruz vs. Gatan, 74 SCRA 226

5. Olaes vs. P., 155 SCRA 486

1.            Geronimo vs. Ramos, 136 SCRA 435

7.JUAN PONCE ENRILE VS. JUDGE JAIME SALAZAR, ET AL., G.R.NO. 92163, June 5, 1990
Due process; right to bail; warrant of arrest
(Note: This might be useful also in your Criminal Law)
Narvasa, J.

On February 27, 1990, Senator Juan Ponce Enrile was arrested by law enforcement officers led by
NBI Director Alfredo Lim on the strength of a warrant of arrest issued by the respondent judge, HON.
JAIME SALAZAR, Regional trial Court, Branch 103, Quezon City in Criminal Case No. 90-10941. The
warrant was issued on an information signed and filed earlier in the day by Senior State Prosecutor
AURELIO TRAMPE charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio
Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed
during the period of the failed coup attempt from November 29 to December 10, 1990. Senator
Enrile was taken to and held overnight at the NBI Headquarters on Taft Ave., Manila, WITHOUT BAIL,
NONE HAVING BEEN RECOMMENDED IN THE INFORMATION AND NONE FIXED IN THE WARRANT
OF ARREST.
On February 28, 1990, petitioner through counsel filed a petition for Habeas Corpus alleging that he
was deprived of his constitutional rights in being, or having been:

a. held to answer for a criminal offense which does not exist in the statute books;

b. charged with a criminal offense in an information for which no complaint was initially filed or
preliminary investigation was conducted, hence, he was denied due process;

c.  denied the right to bail; and

d.  arrested or detained on the strength of  warrant issued without the judge who issued it first
having personally determined the existence of probable cause.

HELD:

The parties’ oral and written arguments presented the following options:

1. Abandon the Hernandez Doctrine and adopt the dissenting opinion of Justice Montemayor  that
“rebellion cannot absorb more serious crimes”;

2. Hold Hernandez Doctrine applicable only to offenses committed in furtherance, or as necessary

means for the commission, of rebellion, BUT NOT TO ACTS COMMITTED IN THE COURSE OF A
REBELLION WHICH ALSO CONSTITUTE COMMON CRIMES OF GRAVE OR LESS GRAVE CHARACTER;

3. Maintain Hernandez Doctrine as applying to make rebellion absorb all other offenses committed
in its course, whether or not necessary to its commission or in furtherance thereof.

1. On the first option, 11 justices voted AGAINST abandoning Hernandez. Two members felt that the
doctrine should be re-examined. In view of the majority, THE RULING REMAINS GOOD LAW, ITS
SUBSTANTIVE AND LEGAL BASES HAVE WITHSTOOD ALL SUBSEQUENT CHALLENGES AND NO
NEW ONES ARE PRESENTED HERE PERSUASIVE ENOUGH TO WARRANT A COMPLETE REVERSAL.
This is so because of the fact that the incumbent President (exercising legislative  powers under the
1986 Freedom Constitution) repealed PD No. 942 which added a new provision of the Revised Penal
Code, particularly Art. 142-A which sought to nullify if not repealed the Hernandez Doctrine. In thus
acting, the President in effect by legislative fiat reinstated the Hernandez as a binding doctrine with
the effect of law. The Court can do no less than accord it the same recognition, absent any
sufficiently powerful reason against so doing.

2. On the second option, the Supreme Court was unanimous in voting to reject the same though four
justices believe that the arguments in support thereof is not entirely devoid of merit.

3. With the rejection of the first two options, the Hernandez Doctrine remains a binding doctrine
operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as unintended effect of an activity that
constitutes rebellion.

On the issues raised by the petitioner:

a. By a vote of 11-3, the Court ruled that the information filed against the petitioner does in fact
charge an offense despite the objectionable phrasing that would complex  rebellion with murder and
multiple frustrated murder, that indictment is to be read as charging SIMPLE REBELLION. The
petitioner’s contention that he was charged with a crime that does not exist in the statute books,
WHILE TECHNICALLY CORRECT SO FAR AS THE COURT RULED THAT REBELLION MAY NOT BE
COMPLEXED WITH OTHER OFFENSES COMMITTED ON THE OCCASION THEREOF, MUST
THEREFORE BE DISMISSED AS A MERE FLIGHT OF RHETORIC. Read in the context of Hernandez,
the information does indeed charge the petitioner with a crime defined and punished by the Revised
Penal Code: SIMPLE REBELLION.

b. Was the petitioner charged without a complaint having been initially filed and/or preliminary
investigation conducted? The record shows that a complaint for simple rebellion against petitioner
was filed by the NBI Director and that based on the strength of said complaint a preliminary
investigation was conducted by the respondent prosecutors culminating in the filing of the
questioned information. THERE IS NOTHING INHERENTLY IRREGULAR OR CONTRARY TO LAW IN
FILING AGAINST A RESPONDENT AN INDUCTMENT FOR AN OFFENSE DIFFERENT FROM WHAT IS
CHARGED IN THE INITIATORY COMPLAINT, IF WARRANTED BY THE EVIDENCE DEVELOPED
DURING THE PRELIMINARY INVESTIGATION.

c. The petitioner claims that the warrant issued is void because it was issued barely one hour and
twenty minutes after the case was raffled to the respondent judge which could hardly gave him
sufficient time to personally go over the voluminous records of the preliminary investigation. Also,
the petitioner claims that the respondent judge issued the warrant for his arrest without first
personally determining the existence of  probable cause by examining under oath or affirmation the
complainant and his witnesses, in violation of Art. III, Section 2, of the Constitution. This Court has
already ruled that it is not unavoidable duty of the judge to make such a personal examination, it
being sufficient that he follows established procedure by PERSONALLY EVALUATING THE REPORT
AND THE SUPPORTING  DOCUMENT SUBMITTED BY THE PROSECUTOR. MEREBY BECAUSE SAID
RESPONDENT JUDGE HAD WHAT SOME MIGHT CONSIDER ONLY A RELATIVELY BRIEF PERIOD
WITHIN WHICH TO COMPLY WITH THAT DUTY , GIVES NO REASON TO ASSUME THAT HE HAD
NOT, OR COULD NOT HAVE, SO COMPLIED; NOR DOES THAT SINGLE CIRCUMSTANCE SUFFICE TO
OVERCOME THE LEGAL PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED.

d. Petitioner also claims that he is denied of his constitutional right to bail. In the light of the Court’s
affirmation of Hernandez as applicable to petitioner’s case, and of the logical and necessary
corollary that the information against him should be considered as charging only the crime of simple
rebellion which is bailable before conviction, THAT MUST NOW BE ACCEPTED AS A CORRECT
PROPOSITION.
NOTES:

This might be useful also in your Remedial Law.

Was a petition for Habeas Corpus before the Supreme Court the appropriate vehicle for asserting a
right to bail or vindicating its denial?

The Supreme Court held that the criminal case before the respondent judge is the normal venue for
invoking the petitioner’s right to have provisional liberty pending trial and judgment. The correct
course was for the petitioner to invoke that jurisdiction by filing a petition to be admitted to bail,
claiming a right to bail per se or by reason of the weakness of the evidence against him. ONLY
AFTER THAT REMEDY WAS DENIED BY THE TRIAL COURT SHOULD THE REVIEW JURISDICTION OF
THE SUPREME COURT BE INVOKED, AND EVEN THEN, NOT WITHOUT FIRST APPLYING TO THE
COURT OF APPEALS IF APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.

Even assuming that the petitioner’s premise that the information charges a non-existent crime would
not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse
would have been a motion to quash brought in the criminal action before the respondent judge.

g. Warrantless searches and seizures–when valid or not. Is “Operation Kapkap” valid?

Read:

PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 scra 174
Warrantless search and seizure
Cruz, J.
Facts:

1. On August 8, 1987, the Western Police District received a telephone call from an informer that
there were three suspicious-looking persons at the corner of Juan Luna and North Bay Blvd., in
Tondo, Manila;

2. When the surveilance team arrived therein, they saw the accused “looking from side to side” and
“holding his abdomen”. They approched these persons and identified themselves as policement that
is why they tried to ran away because of the other lawmen, they were unable to escape;

3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated from the accused and
several days later, an information for violation of PD 1866 was filed against him;

4. After trial, Mengote was convicted of having violated PD 1866 and was sentenced to
sufferreclusion perpetua based on the alleged gun as the principal evidence. Hence this automatic
appeal.
Issue:
Was there a valid warrantless search and seizure?

Held:

There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible
in any proceeding for any purpose. That is the absolute prohibition  of Article III, Section 3 [2], of the
Constitution. This is the celebrated exclusionary rule based on the justification  given by  Justice
Learned Hand that “only in case the prosecution, which itself  controls the seizing officials, knows
that it cannot profit  by their wrong will the wrong be repressed.”

Section 5,  Article 113 of  the Rules  of Court  provides:

Sec.  5. Arrest without warrant; when lawful.-  A peace officer or private person may, without warrant,
arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an  offense has in fact just  been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it;  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.

x  x  x

          We have carefully examined the wording of this Rule and cannot see how we we can agree
with the prosecution.

Par. (c) of Section 5 is  obviously inapplicable as Mengote was not an escapee from a penal
institution when he was arrested. We therefore confine ourselves to determining  the lawfulness of
his arrest under either  Par. (a) or Par. (b) of this Section.

Par. (a) requires that the person be arrested (1) after he has  committed or while he is actually
committing or is at least attempting to commit an offense, (2) in the presence of the arresting
officer.

These requirements have not been established in the case at bar. At the time of the arrest in
question, the accused-appellant was merely “looking from side to side”  and “holding his abdomen,”
according to the arresting officers themselves. There was apparently no offense that had just  been
committed or was being actually committed  or at least being attempted by  Mengote in thie
presence.
The Solicitor  General  submits that the actual  existence  of an offense was not necessary  as long
as Mengote’s  acts created  a reasonable suspicion  on the part of the arresting officers and induced
in them the belief that an offense had been committed and that accused-appellant had committed it”.
The question is, What offense? What offense  could possibly have been suggested by a person
“looking from side to side” and  “holding his abdomen” and in  aplace not exactly  forsaken.

These are certainly not sinister acts. And the setting of the arrest  made them less so, if at all. It
might have been different if Mengote had been apprehended at an unholy hour and in a  place where
he  had  no reason to be, like a darkened alley at 3 o’clock in the morning. But he was arrested at
11:30 in the morning  and in  a  crowded street  shortly after alighting from a passenger jeep  with
his companion.He was not skulking in the shadows but walking in the clear light of day. There was
nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other  hand, there could  have  been a number of  reasons, all of them innoent, why hiseyes
were darting from  side to sideand he was holding his  abdomen. If they excited suspicion in the
minds of the arresting officers, as the prosecution suggests, it has nevertheless  not  been shown
what their suspicion was all about.

xxx

          The case before us is different because there was nothing to support the arresting  officers’
suspicion other than Mengote’s darting eyes and his hand on his abdomen. By no stretch of the
imagination could it have been inferred from these acts that  an offense had just been committed, or
was  actually being committed, or was at least being attempted  in their presence.

This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402 where the Court held that  a warrantless
arrest of the accused was unconstitutional. This was effected while he was coming  down the vessel,
to all appearances no less innocent than the other disembarking passengers. He had  not 
committed nor was actually committing  or attempting to commit an offense  in the presence of the
arresting officers. He was not even acting suspiciously. In short, there was no probable cause that,
as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no  less stringent requirements have also not been satisfied.
Theprosecution has not shown that at the time  of Mengote’s arrest an offense had in fact been
committed and that the arresting officers had  personal knowldge of facts indicating that Mengote
had committed it.  All they had was hearsay information from the  telephone caller, and  about a
crime that had yet  to   bem committed.

xxx

  Before these events, the peace  officers   had no knowledge even of  Mengote’s  identity,  let  alone  
the  fact that he was  involved in  the  robbery of  Danganan’s house.
In  the landmark case  of  People vs. Burgos, 144  SCRA 1, this  Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing,
or is about to commit an offense must have personalknowledge of that fact. The offense must also
be committed in his presence or within his view. (SAYO vs. CHIEF OF POLICE, 80 Phil. 859).

xxx

          In arrests without a warrant under Section 6(b), however, it is not enough that there is
reasonable ground to believe that the person to be arrested has committed a crime. A crime must in
fact or actually have been committed first. That a crime has actually been committed is an essential
precondition. It is not enough to suspect that a crime may have been committed. The fact of the
commission of the offense must be undisputed. The test of reasonable ground applies only to the
identity of the perpetrator..

This doctrine was affirmed  in Alih vs. Castro, 151 SCRA 279, thus:

If the arrest  was  made under Rule 113,  Section 5, of the Rules of Court in connection with a crime
about to be committed, being committed,  or  just  committed, what was that crime? There is no
allegation in the record of such a  falsification. Parenthetically, it  may be observed that  under the
Revised Rule  113, Section 5(b), the officer making the arrest must have personal knowledge of the
ground therefor as  stressed in the recent case of  People vs.  Burgos.

It would be a  sad day, indeed, if any person could be summarily arrested and searched just because
he is holding  his abdomen,  even if it be possibly because of a stomach-ache, or  if a peace officer
could clamp handcuffs on any person with a shifty look on suspicion that  he may have committed a
criminal act is actually committing or   attempting it. This simply  cannot be done in  a free society.
This is not a police state where order   is exalted over liberty or, worse, personal malice on the part
ofthe arresting officer may be  justified  in the name of security.

xxx

          The court feels that if the  peace officers had been  more mindful of the provisions of the Bill of
Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they
allowed their over zealousness  to get the better of them, resulting in their disregard     of the
requirements of a valid search and seizure  that rendered inadmissible the evidence they had
invalidly seized.

This should be a lesson to other  peace officers. Their impulsiveness may be the very  cause   of the
acquittal of persons who deserve to be convicted, escaping the clutches of  the law, because,
ironically  enough, it  has not been observed by those  who are supposed to  enforce it.

When illegal arrest is deemed waived.

Warrantless arrest; no personal knowledge of the arresting officer

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.

The policeman  arrested the accused-appellant on the basis solely of what Reynaldo Castro had told
him and not because he saw the accused-appellant commit the crime charged against him. Indeed,
the prosecution admitted that there was no warrant of arrest issued against accused-appellant when
the latter was taken into custody. Considering that the accused-appellant was not committing a
crime at the time he was arrested  nor did the arresting officer have any personal knowledge of facts
indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment, the accused-appellant waived his
right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A
WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER
THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE
OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER
THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE
GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.
g-1. Warrantless Search and seizure by a private person. (Valid since the constitutional provision is
not applicable to him; when it is not valid)

Read:

1.            PEOPLE VS. MENDOZA, 301 SCRA 66

Warrantless searches and seizures by private individuals
2. SILAHIS INTERNATIONAL HOTEL, INC. VS. ROGELIO SOLUTA, ET AL., 482 SCRA 660
Carpio-Morales, J.

The petitioner suspects that the respondents who are officers of the Silahis International Hotel
Union were using the Union Office located inside the hotel in the sale or use of marijuana, dollar
smuggling, and prostitution. They arrived at the said conclusion through surveillance.

In the morning of January 11, 1988, while the respondent union officer was opening the Union Office,
security officers of the plaintiff entered the union office despite objections thereto by forcibly
opening the same. Once inside  the union office they started to make searches which resulted in the
confiscation of  a plastic bag of marijuana. An information for violation of the dangerous drugs act
was filed against the respondent before the RTC of Manila which acquitted them on the ground that
the search conducted was illegal since it was warrantless and without consent by the respondents.

After their acquittal, the respondents filed a case for Malicious Prosecution against the petitioner for
violation of Art. 32 of the Civil Code. After trial, the  Regional Trial Court held that petitioners are
liable for damages as a result of an illegal search. The same was affirmed by the Court of Appeals.
Issue:

Whether the warrantless search conducted by the petitioners (private individual and corporation) on
the union office of the private respondents is valid.

Held:

The search is not valid and they are civilly liable under Art. 32 of the Civil Code. The fact that the
union office is part of the hotel owned by the petitioners does not justify the warrantless search. The
alleged reports that the said union office is being used by the union officers for illegal activities does
not justify their acts of barging into the said office without the consent of the union officers and
without a search warrant. If indeed there was surveillance made, then they should have applied for a
search warrant.

The ruling in People vs. Andre Marti is not applicable here because in Marti, a criminal case, the
issue was whether an act of a private individual, allegedly in violation of one’s constitutional rights
may be invoked against the State. In other words, the issue in Marti is whether the evidence obtained
by a private person acting in his private capacity without the participation of the State, is admissible.

3.  PEOPLE OF THE PHILIPPINES VS. ANDRE MARTI

G.R. NO. 81561, January 18, 1991
Warrantless Search and seizure
by a private person
Bidin, J.
FACTS:

Andre Marti and his common-law wife, Shirley Reyes went to Manila Packaging and Export
Forwarders to send four (4) packages to Zurich, Switzerland. Anita Reyes, owner of the place (no
relation to Shirley), received said goods and asked if she could examine and inspect it. Marti refused.
However later, following standard operating procedure, Job Reyes, co-owner and husband of Anita
opened the boxes for final inspection, before delivering it to the Bureau of Customs and/or Bureau of
Posts.

Upon opening, a peculiar odor emanated from the box that was supposed to contain gloves. Upon
further perusal, he felt and saw a dried leaves inside the box. Job Reyes then brought samples to the
NBI, he told them that the boxes to be shipped were still in his office. In the presence of the NBI
agents, Reyes opened the box and discovered that the odor came from the fact that the dried leaves
were actually those of the marijuana flowering tops.

Two other boxes,marked as containing books and tabacalera cigars; also revealed bricks or case-
like marijuana leaves and dried marijuana leaves respectively.

Marti was later invited by the NBI to shed light on the attempted shipment of the dried leaves.
Thereafter an information was filed against the appellant for violating RA 6425 or the Dangerous
Drugs Act. The Special Criminal Court of Manila convicted accused Marti of violatingsec.21(b) of
said RA.
ISSUES:

1. Did the search conducted by a private person, violate accused’s right against unreasonable
searches seizures and invocable against the state?

2.  Was the evidence procured from the search admissible?

Held:

1. No, constitutional protection on search and seizure is imposable only against the state and not to
private persons.

Since Art. III,2 of the 1987 constitution is almost verbatim from the United States constitution, the
SC may consider US Fed. SC cases as likewise doctrinal in this jurisdiction. Hence, in US cases, the
constitutional provision against unreasomable searches and seizure was intended as a restraint
upon the activities of the sovereign authority and NOT intended against private persons. If a search
was initiated by a private person the provision does not apply since it only proscribes government
action. This view is supported by the deliberations by the 1986 Constitutional Commission.

In short, the protection against unreasonable searches and seizures cannot be extended to acts
comitted by private individuals so as to bring it within the ambit of alleged unlawful intrusion.

Case at bar will show that it was Job Reyes` initiative that perpetrated the search. He opened the
packages and took the samples to NBI. All the NBI agents did was to observe and look in plain sight.
This did not convert it to a search as contemplated by the constitution.

2. Yes, since the search was valid, the evidence from therein is admissible evidence.

Art.III [2], on the admissibility of evidence in violation of the right against unreasonable searches and
seizures, likewise applies only to the government and its agencies and not to private persons.

(U.S. cases cited: Burdeau v. McDowell  (256 us 465 [1921], state v. Bryan (457 p 2d 661 [1968],
Walker v. state (429 s.w 2d 121 [1969]), Barnes v. us (373 F 2d 517  [1967]), Chadwick v. state (329
sw 2d 135).

VALID WARRANTLESS SEARCH AND SEIZURE:

1.            Search made incidental to a valid arrest

a.            Moreno vs. Ago Chi, 12 Phil. 439

b.            PEOPLE VS. ANG CHUN KIT, 251 SCRA 660

c.            PEOPLE VS. LUA, 256 SCRA 539

d.            PEOPLE VS. Figueroa, 248 SCRA 679

e.            NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid arrest must be done at
the place where the accused is arrested. As such, if  accused was arrested while inside a jeepney,
there is no valid search incidental to a valid arrest if she will be brought to her residence and
thereafter search the said place)

f.             ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the street during a buy-bust
operation, the search of his house nearby is not a valid search incidental to a valid arrest)

PEOPLE VS. GO, 354 SCRA 338

Where the gun tucked in a person’s waist is plainly visible to the police, no search warrant is
necessary and in the absence of any license for said firearm, he may be arrested at once as he is in
effect committing a crime in the presence of the police officers. No warrant is necessary in such a
situation, it being one of the recognized exceptions under the Rules.

As a consequence of the accused’s valid warrantless arrest inside the nightclub, he may be lawfully
searched for dangerous weapons or anything which may be used as proof of the commission of an
offense, without a search warrant in accordance with Section 12, Rule 126. This is a valid search
incidental to a lawful arrest.

In fact, the subsequent discovery in his car which was parked in a distant place from where the
illegal possession of firearm was committed [after he requested that he will bring his car to the
Police Station after his warrantless arrest) , of a drug paraphernalia and shabu, CANNOT BE SAID TO
HAVE BEEN MADE DURING AN ILLEGAL SEARCH. As such, the items do not fall under the
exclusionary rule and the unlicensed firearms, drug paraphernalia and the shabu, can be used as
evidence against the accused.

2.            Search of moving vehicles

a.            Carrol vs. US, 267 US 132

b.            PEOPLE VS. LO HO WING, et al.

(G.  R.  No. 88017) January 21, 1991

c.            MUSTANG LUMBER VS. CA, 257 SCRA 430

d.            PEOPLE VS. CFI, 101 SCRA 86

e.            PEOPLE VS. MALMSTEDT198 SCRA 401

f.             PEOPLE VS. LO HO WING, 193 SCRA 122

FACTS:

In July 1987, the Special Operations Group of the CIS received a tip from one of its informers about
an organized group engaged in importation of illegal drugs and smuggling of contraband items. To
infiltrate the crime syndicate, they recruited confidential men and “deep penetration agents” under
OPLAN SHARON 887. One such agent was Reynaldo Tia  (the dicharged/accused). As an agent, he
submitted regular reports of undercover activities of suspected syndicates. CAPTAIN PALMERA,
head of oplan sharon 887, in turned informed the Dan

gerous Drugs Board of Tia’s activities.

Tia was introduced to his co-accused Lim Cheng Huat by another agent named George. Lim wanted
a male travelling companion for his business trips abroad. Tia offered his services and was hired by
Lim. Later, Tia was introduced to Peter Lo (alias of accused/appellant Lo Ho Wing), the later turning
out to be Tia’s intended companion.

Appellant Lo Ho Wing and Tia left for Hongkong on October 4, 1987. Tia telephoned Capt. Palmera
that they would return to the Philippines on October 6. From Hongkong, the two proceeded to
Guangzhou in mainland China. There, appeallant Lo Ho Wing bought six (6) cans of tea.Tia saw
these 6 bags when they were opened for examination. That evening, they went to Lo Ho Wing’s room
and he saw two other men with him. One was fixing the tea bags, while the other was burning a
substance on a piece of aluminum foil using a lighter. Appellant Lo Ho Wing joined the second man
and sniffed the smoke emitted by the burning substance. When Tia asked Lo Ho Wing what cargo
they would bring to Manila, the latter replied that they would be bringing Chinese drugs.

The next day en route to Manila, customs examiners inspected the bags containing the tin cans of
tea. Since the bags were not closely examined, appellant Lo Ho Wing and Tia were cleared. In Manila,
They were met by Lim Cheng Huat. Appelant Lo Ho Wing and Tia boarded a taxi from the airport and
loaded their luggage in the taxi’s compartment. Lim Cheng Huat followed them in another taxi.

Meamwhile, a team composed by Capt. Palmera positioned themselves in strategic areas around
the airport. The CIS men who first saw Lo Ho and Tia followed them. Along Imelda Avenue, the CIS
car overtook the taxi ridden by Lo Ho Wing and Tia , forcing the taxi driver to stop his vehicle. The
CIS team asked  the taxi driver to open the baggage compartment. The CIS team asked permission
to search their luggage.

A tin can of tea was taken out of the compartment. Sgt. Cayabyab of the CIS pried the lid open  and
pressed it in the middle to pull out the contents. Crystalline white powder resmbling crushed alum
came out. Suspecting the crystalline powder to be a dangerous drug, he had the three travelling bags
opened for inspection. All the bags threshed out a total of six tin cans. Tia and appellant were taken
to the CIS headquarters for questioning. Meanwhile, the second taxi carrying Lim Cheng Huat sped
in attempt to escape. However, they were later captured.

Samples from the bag tested positive for metamphetamine. The three suspects were indicted for
violating Art. III, sec.15 of the Dangerous Drug Act. Appellant Lo Ho Wing and Lim Cheng Huat were
sentenced to suffer life imprisonment and to pay a fine of P25,000 each. Reynaldo Tia was
discharged as a state witness. The trial court gave full credence to the testimonies of government
agents since the presumption of regularity in the performance of official duties were in their favor.
ISSUES:

1.  Was the warrantless search valid?

2. Are the effects taken admissible as evidence?

HELD:

1. This is a case of search on a moving vehicle which is one of the well-known exceptions to the
valid warrantless search and seizure. To stilol get a search warrant from a judge would allow the
accused go scot-free.

2. Since the search and seizure are valid, the evidence obtained is admissible as evidence in any
proceeding.

3.            Seizure of goods concealed to avoid duties/taxes (Valid)

a.            Papa vs. Mago, 22 SCRA 857

b.            Pacis vs. Pamaran, 56 SCRA 16

c.            HIZON VS. CA, 265 SCRA 517

d.            PEOPLE VS. QUE, 265 SCRA 721

4.            Seize of evidence in plain view

a.            Harris vs. US, 390 US 234

b.            PEOPLE VS. DAMASO, 212 SCRA 547

c.            PEOPLE VS. VELOSO, 252 SCRA 135

d.            PEOPLE VS. LESANGIN, 252 SCRA 213

5.            When there is waiver of right or gives his consent;

a.            De Garcia vs. Locsin, 65 Phil. 689

b.            Lopez vs. Commissioner, 65 SCRA 336

c.            PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid waiver to a warrantless
search, the waiver or consent  should be given by the person affected, not just anybody. Example:
The landlady could not give a valid consent to the search of a room occupied by a tenant. Said
tenant himself should give the consent in order to be valid. The doctrine in Lopez vs. Commissioner
to the effect that it could be given by any occupant of a hotel room being rented by the respondent is
deemed abandoned)
d.            VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house allowed the policemen to
enter his house because they are searching for rebel soldiers but when inside the house, they
instead seized an unlicensed firearm, there is no consent to a warrantless search)

6.            STOP AND FRISK.

a.            People vs. Mengote, June, 1992

b.            PEOPLE VS. POSADAS, 188 SCRA 288

c.            MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several suspicious looking
men at dawn who ran when they went near them. As the policemen ran after them, an unlicensed
firearm was confiscated. The search is valid)

d.            MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to validate warrantless
arrest)

6. EDDIE GUAZON, ET AL. VS. MAJ. GEN. RENATO DE VILLA, ET AL., GR NO. 80508, January 30,
1990
Warrantless searches;
 “zonings” and “saturation drives”
Section 17, Art. VII of the Constitution
Gutierrez, Jr.,  J.
Facts:

This is a petition for Prohibition with preliminary injunction to prohibit military and police officers
from conducting “Areal target zonings” or “saturation drive” in Metro Manila particularly in places
where they suspect that the subversives are hiding. The 41 petitioners claim that the saturation
drives conducted by the military is in violation of their human rights because with no specific target
house in mind, in the dead of the night or early morning hours, police and military officers without
any search warrant cordon an area of more than one residence and sometimes the whole barangay.
Most of them are in civilian clothes and w/o nameplates or identification cards; that the raiders
rudely rouse residents from their sleep by banging on the walls and windows of their homes,
shouting, kicking their doors open (destroying some) and ordering the residents to come out; the
residents are herded like cows at the point of high powered guns, ordered to strip down to their
briefs and examined for tattoo marks; that while examination of the bodies of the men are being
conducted, the other military men conduct search and seizures to each and every house without
civilian witnesses from the neighbors; some victims complained that their money and other
valuables were lost as a result of these illegal operations.

The respondents claim that they have legal authority to conduct saturation drives under Art. VII, Sec.
17 of the Constitution which provides:

The respondents would want to justify said military operation  on the following constitutional
provisions:

     The President shall be the Commander-in-Chief of all the armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion

xxxxxx

The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws are faithfully executed.

Held:

There can be no question that under ordinary circumstances, the police action of the nature
described by the petitioners would be illegal and blatantly violative of the Bill of Rights. If the military
wants to flush out subversive and criminal elements, the same must be consistent with the
constitutional and statutory rights of the people. However, nowhere in the Constitution can we see a
provision which prohibits the Chief Executive from ordering the military to stop unabated criminality,
rising lawlessness and alarming communist activities. However, all police actions are governed by
the limitations of the Bill of Rights. The government cannot adopt the same reprehensible methods
of authoritarian systems both of the right and of the left. This is so because Art. III, Section 3 of the
Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA 687 and Century Fox vs.
Court of Appeals, 164 SCRA 655. Also, it must be pointed out that police actions should not be
characterized by methods that offend one’s sense of justice (Rochin vs. California, 342 US 165).

The Court believes it highly probable that some violations were actually committed. But the remedy
is not to stop all police actions, including the essential and legitimate ones. A show of force is
sometimes necessary as long as  the rights of people are protected and not violated. However, the
remedy of the petitioners is not an original action for prohibition since not one victim complains and
not one violator is properly charged. It is basically for the executive department and the trial courts.
The problem is appropriate for the Commission of Human Rights.

The petition was therefore remanded to the Regional Trial Courts of Manila, Malabon and Pasay City
where the petitioners may present evidence supporting their allegations so that the erring parties
may be pinpointed and prosecuted. In the meantime, the acts violative of human rights alleged by
the petitioners as committed during the police actions are ENJOINED until such time as permanent
rules to govern such actions are promulgated.

********************

Cruz, Padilla and Sarmiento, JJ. , Dissenting

The ruling of the majority that the petitioners are not proper parties is a specious pretext for inaction.
We have held that technical objections may be brushed aside where there are constitutional
questions that must be met (RODRIGUEZ VS. GELLA, 92 PHIL. 603; TOLENTINO VS. COMELEC, 41
SCRA 702; PHILCONSA VS. JIMENEZ, 65 SCRA 479; EDU VS. ERICTA, 35 SCRA 481; GONZALES VS.
COMELEC, 27 SCRA 835; LAGUNZAD VS. CA, 154 SCRA 199; DEMETRIA VS. ALBA,148 SCRA 208).
Lozada was in fact an aberration.

Where liberty is involved, every person is a proper party even if he may not be directly injured. Each
of us has a duty to protect liberty and that alone makes him a proper party. It is not only the owner of
a burning house who has the right to call the firemen.

Section 2, Art. III of the constitution is very clear: Unreasonable searches and seizures of whatever
nature and for whatever purpose is prohibited.

Saturation drives are NOT AMONG THE ACCEPTED INSTANCES WHEN A SEARCH OR AN ARREST
MAY BE MADE WITHOUT A WARRANT. THEY COME UNDER THE CONCEPT OF  THE FISHING
EXPEDITIONS STIGMATIZED BY LAW AND DOCTRINE X X X I submit that this court should instead
categorically and emphatically that these saturation drives are violative of human rights and
individual liberty and should be stopped immediately. While they may be allowed in the actual theater
of military operations against the insurgents, the Court should also make it clear that Metro Manila
is not such a battleground.

7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL
and RENATO VILLANUEVA. MANOLITA UMIL and NICANOR DURAL, FELICITAS SESE VS. FIDEL
RAMOS, ET AL. and companion cases, G.R. No. 81567, July 9, 1990 (An NPA may be arrested
without warrant while sleeping or being treated in a hospital because his being a communist rebel is
a continuing crime)

h. If the judge finds that there’s probable cause, must he issue a warrant of arrest as a matter of
course? See the distinctions.
Read:

1.            SAmulde vs. Salvani, September 26,  1988 (No because a warrant is issued in order to have
jurisdiction of the court over the person of an accused and to assure the court of his presence
whenever his case is called in court. As such, if the court believes that the presence of the accused
could be had even without a warrant of arrest, then he may not issue said warrant. Note: This case
involves a minor offense)
2.            GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed  is a serious one like that
obtaining in this case for murder, the  Judge must issue a warrant of arrest after determining the
existence of probable cause)

i. Searching questions

Read:

DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC 33,
Manila & People of the Philippines, GR No. 82870, December 14, 1989 (En Banc)
Search and seizure; requirements/requisites of a valid search warrant; searching questions
Padilla, J.

This is a petition to annul and set aside the Order of respondent Judge DENYING the motion of the
petitioner to quash Search Warrant No. 87-14 as well as its Order denying the petitioner’s Motion for
Reconsideration.

Facts:

1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action Division
(ISAD) of the Western Police District (WPD) filed with the Regional Trial Court of Manila, Branch 33,
presided by the respondent Judge, an application for the issuance of a Search Warrant for violation
of PD 1866 against the petitioner;

2. In his application for search warrant, P/Major Dimagmaliw alleged that:

“1. That he has been informed and has good and sufficient reasons to believe that NEMESIO
PRUDENTE who may be found at the Polytechnic University of the Philippines x x x has in his control
or possession firearms, explosives, hand grenades and ammunition intended to be used as the
means of committing an offense x x x;

“2. That the undersigned has verified the report and found it to be a fact x x x “.

In support of said application, P/Lt. Florencio Angeles executed a “Deposition of Witness dated
October 31, 1987 .

3. On November 1, 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200
WPD operatives led by Col. Edgar Dula Torre and Major Maganto;

4. On November 2, 1987, Ricardo Abando, a member of the searching team executed an affidavit
alleging that he found in the drawer  of a cabinet inside the wash room of Dr. Prudente’s office a
bulging brown envelope with three live fragmentation hand grenades separately with old newspapers;

5. On November 6, 1987, the petitioner moved to quash the search warrant on the grounds that:

a. the complainant’s lone witness, Lt. Angeles had no personal knowledge of the facts which formed
the basis for the issuance of the search warrant;

b. the examination of said witness was not in the form of searching questions and answers;

c. the search warrant was a general warrant, for the reason that it did not particularly describe the
place to be searched and that it failed to charge one specific offense; and

d. the warrant was issued in violation of Circular No. 19 of the Supreme Court in that the
complainant failed to allege that the issuance of the search warrant on a Saturday was urgent.

6. On March 9, 1986, the respondent judge denied the motion to quash and on April 20, 1988, the
same judge denied petitioner’s motion for reconsideration. Hence this petition.

Issue:

Was the Search Warrant issued by the respondent judge valid? Was there probable cause?

Held:

a. For a valid search warrant to issue, there must be probable cause, which is to be determined 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.
The probable cause must be in connection with one specific offense and the judge must, before
issuing the warrant, personally examine in the form of searching questions and answers, in writing
and under oath, the complainant and the witnesses he may produce, on facts personally known to
them and attach to the record their sworn statements together with any affidavits submitted.

The “probable cause” for a valid search warrant, has been defined “as such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has been
committed, and that the objects sought in connection with the offense are in the place sought to be
searched”. (Quintero vs. NBI, June 23, 1988). This probable cause must be shown to be within the
personal knowledge of the complainant or the witnesses he may produce and not based on mere
hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS. ADDISON, 28 PHIL.
566).
In his affidavit, Major Dimagmaliw declared that “he has been informed” that Nemesio Prudente “has
in his control and possession” the firearms and explosivees described therein, and that he “has
verified the report and found it to be a fact.” On the other hand, Lt. Angeles declared that as a result
of continuous surveillance for several days, they “gathered information’s from verified sources” that
the holders of said firearms and explosives are not licensed t possess them. It is clear from the
foregoing that the applicant and his witness HAD NO PERSONAL KNOWLEDGE OF THE FACTS AND
CIRCUMSTANCES which became the basis for issuing the questioned search warrant, but acquired
knowledge thereof only through information from other sources or persons.

Despite the fact that Major Dimagmaliw stated in his affidavit that “he verified the information he
had earlier received and found it to be a fact, YET THERE IS NOTHING IN THE RECORD TO SHOW OR
INDICATE HOW AND WHEN SAID APPLICANT VERIFIED THE EARLIER INFORMATION ACQUIRED BY
HIM AS TO JUSTIFY HIS CONCLUSION. He might have clarified this point if there had been
searching questions and answers, but there were none. In fact, the records yield no questions and
answers, whether searching or not, vis-a-vis the said applicant.

In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test must be complied with in an
application for search warrant or in a supporting deposition based on personal knowledge or not-

“The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is
whether it was drawn in a manner that perjury could be charged thereon and the affiant be held liable
for damage caused. The oath required must refer to the truth of the facts within the personal
knowledge of the applicant of a search warrant and/or his witnesses, not of the facts merely
reported by a person whom one considers to be reliable.”

Tested by the above standards, the allegation of the witness, Lt. Angeles, do not come up to the level
of facts based on his personal knowledge so much so that he cannot be held liable for perjury for
such allegations in causing the issuance of the questioned search warrant.

Besides, respondent judge did not take the deposition of the applicant as required by the Rules of
Court. As held in Roan vs. Gonzales, 145 SCRA 694, “mere affidavits of the complainant and his
witnesses are thus insufficient. The examining judge has to take the depositions in writing of the
complainant and the witnesses he may produce and attach them to the record.”

b. There was also no searching questions asked by the respondent judge because as shown by the
record, his questions were too brief and short and did not examine the complainant and his
witnesses in the form of searching questions  and answers. On the contrary, the questions asked
were leading as they called for a simple “yes” or “no” answer. As held in Quintero vs. NBI, June 23,
1988, “the questions propounded are not sufficiently searching to establish probable cause. Asking
of leading questions to the deponent in an application for search warrant and conducting of
examination in a general manner would not satisfy the requirements for the issuance of a valid
search warrant.”
The Court avails of this decision to reiterate the strict requirements for determination of probable
cause in the valid issuance of a search warrant as enunciated in earlier cases. True, this
requirements are stringent but the purpose is to assure that the constitutional right of the individual
against unreasonable search and seizure shall remain both meaningful and effective.

c. The rule is, that a description of a place to be searched is sufficient if the officer with the warrant
can with reasonable effort ascertain and identify the place intended (P VS. VELOSO, 48 PHIL. 180).
In the case at bar, the warrant described the place to be searched as the premises of the PUP, more
particularly the offices of the Department of Science and Tactics as well as the Office of the
President, Nemesio Prudente.

There is also no violation of the “one specific offense” requirement considering that the application
for a search warrant explicitly described the offense: illegal possession of firearms and
ammunitions under PD 1866.

d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for a guideline, departure from
which would not necessarily affect the validity of the search warrant provided the constitutional
requirements are complied with.

a.            HUBERT WEBB VS. DE LEON, 247 SCRA 650

Read also:

1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his knowledge from an informant, the
same is not valid)

2. Luna vs. Plaza, 26 SCRA 313

3. De Mulata vs. Irizari, 62 SCRA 210

4. Marinas vs. Siochi, 104 SCRA 423

5. Roan vs. Gonzales, 145 687

6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants and witnesses should be attached
to the record of the case)

7. Corro vs. Lising, 137 SCRA 541

8. Nolasco vs Pano, 147 SCRA 509

9. Burgos vs. Chief of Staff, 133 SCRA 800

10. P. vs. Burgos, September 14,1986

11. P. vs. Aminnudin Y Ahni, July 6,1988

12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the affidavits of witnesses are mere
generalities, mere conclusions of law, and not positive statements of particular acts, the warrant is
not valid)

13. Aberca vs. Ver, April 15,1988

2.            Panganiban vs. Cesar, 159 SCRA 599

3.            PENDON VS. CA, November 16, 1990. (When the questions asked to the applicant for a
search warrant was pre-typed, the same is not valid since there could have been no searching
questions)

j. Warrantless searches and seizures–when valid or not.

Read:

1. RICARDO VALMONTE VS. GEN RENATO DE VILLA,              GR No. 83988, September 29, 1989
Warrantless searches and seizures;
validity of checkpoints
Padilla, J.
Facts:

1. On January 20, 1987, the National Capital Region District Command (NCRDC) was activated with
the mission of conducting security operations within its area of responsibility for the purpose of
maintaining peace and order. As part of its duty to maintain peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela, Metro Manila.

Petitioners claim that because of these checkpoints, the residents of Valenzuela, MM are worried of
being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition
of the military authorities manning the checkpoints considering that their cars and vehicles are being
subjected to regular searches and check-ups, especially at night or dawn, without the benefit of a
search warrant and/or court order.

2. On July 9, 1988 at dawn, the apprehensions of the residents of Valenzuela increased because
Benjamin Parpon, the supply officer of the Municipality of Valenzuela was gunned down in cold
blood by the military men manning the checkpoints for ignoring or refusing to submit himself to the
checkpoint and for continuing to speed off inspite of several warning shots fired in the air.

Issue:

Whether or not the existence of said checkpoints as well as the periodic searches and seizures
made by the military authorities without search warrant valid?
Held:

Petitioners’ concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal.

Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A
reasonable search is not to be determined by any fixed formula but is to be resolved according to
the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on
a public fair grounds (People vs. Case, 190 MW 289), or simply looks into a vehicle (State vs. Gaina,
97 SE 62), or flashes a light therein (Rowland vs. Commonwealth, 259 SW 33), these do not
constitute unreasonable search.

The setting up of checkpoints in Valenzuela, Metro Manila may be considered as security measure
to effectively maintain peace and order and to thwart plots to destabilize the government.  In this
connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the
insurgency movement, so clearly reflected in the increased killings in cities of police and military
men by NPA’s “sparrow units,” not to mention the abundance of unlicensed firearms.

BETWEEN THE INHERENT RIGHT OF THE STATE TO PROTECT ITS EXISTENCE AND PROMOTE
PUBLIC WELFARE AND AN INDIVIDUAL’S RIGHT AGAINST A WARRANTLESS SEARCH WHICH IS
HOWEVER REASONABLY CONDUCTED, THE FORMER SHALL PREVAIL.

True, the manning of these checkpoints by the military is susceptible of abuse by the men in uniform,
in the same manner that all governmental power is susceptible to abuse. BUT , AT THE COST OF
OCCASIONAL INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO THE CITIZEN, THE
CHECKPOINTS DURING THESE ABNORMAL TIMES ARE PART OF THE PRICE WE PAY FOR AN
ORDERLY SOCIETY AND PEACEFUL COMMUNITY.

Finally, it must be emphasized that on July 17, 1988, the military checkpoints in Metro Manila were
temporarily lifted and a review and refinement of the rules in the conduct of the police and military
manning the checkpoints upon order of the NCRDC Chief.

Cruz and Sarmiento, JJ., dissenting:

The bland declaration by the majority that individual rights must yield to the demands of national
security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the
State even if asserted on the ground of national security.

RESOLUTION  ON  THE MOTION  FOR RECONSIDERATION, JUNE  15, 1990

Very  Important:
     The Supreme Court in its Resolution of the Motion for Reconsideration dated 15 June, 1990,
held that military and police checkpoints are not illegal as these measures to protect the
government and safeguards the lives of the people. The checkpoints are legal as where the
survival of the organized government is on the balance, or where the lives and safety of the people
are in grave peril. However, the Supreme Court held further that the military officers manning the
checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY SEARCH.

Read also the RESOLUTION  ON  THE MOTION  FOR RECONSIDERATION dated JUNE 15, 1990, 185
SCRA 665

Read also:

1-a. Rizal Alih vs. Gen. Castro, June 23,1987

1-b. P s. Cendana, October 17, 1990

1-c. P. vs. Castiller, August 6, 1990

1-d. P. vs. Olaes, July 30, 1990

2. Papa vs. Mago, 22 SCRA 857

3. Roldan vs. Arca, 65 SCRA 336

4. P. vs. CFI, 101 SCRA 86

5. Pacis vs. Pamaran, 56 SCRA 16

6. Lopez vs. Commisioner, 65 SCRA 336

7. P vs. Cruz, 165 SCRA 135

8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA              152

9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search if a NARCOM officer arrests the
person who owns a bag which contains marijuana which he found out when he smelled the same.
Here , there is a probable cause since he was personal knowledge due to his expertise on drugs)

2.            PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was given by the police the
amount of P100.00, he went to buy marijuana from the accused then return to the police
headquarters with said article. Thereafter, the policemen went to arrest the accused without warrant.
The arrest is not valid since it does not fall under Section 5 Rule 113)

Likewise, after securing a search warrant authorizing the seizure of shabu and its paraphernalia and
instead, an unlicensed firearm was seized instead, said gun is inadmissible in evidence.
k. May a non-judicial officer issue a warrant of  arrest? (NO)

Read:

1.            Harvey vs. Miriam Defensor-Santiago, June 26,1988

2.            Moreno vs. Vivo, 20 SCRA 562

3.            Lim vs. Ponce de Leon, 66 SCRA 299

4.            HORTENCIA SALAZAR VS. HON TOMAS ACHACOSO, G.R. NO. 81510, March 14, 1990 (En
banc)

5.            Presidential Anti_Dollar Salting Task Force vs.  CA, March 16, 1989

l. Properties subject to seizure

Read:

1. Sec. 2, Rule 126,1985 Rules on Crimial Procedure, as amended

2. ESPANO VS. CA, 288 SCRA 558

m. Warrantless searches and arrests

Read:

1. P. vs. Bati, August 27, 1990

1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February 9, 1989

1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 &               137 SCRA 647

1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs. Aminnudin, July 6, 1988, supra)

1-d. Posadas vs. CA, Aug. 2, 1990

1-e. P. vs. De la Cruz

1-f. P. vs. ortiz, Dec. 3, 1990

1-g. Rolito Go vs. CA, Feb. 11, 1992

1-h. People vs. Mati, January 18, 1991

2. Morales vs. Ponce Enrile, 121 SCRA 538

2-a. P vs. Burgos, 144 SCRA 1

2-b. People vs. de la Cruz, 184 SCRA 416

2-c. Gatchalian vs. Board, May 31, 1991

2-d. People vs. Sucro, March 18, 1991

2-e. PEOPLE VS. SOLAYAO, 262 SCRA 255

2-f. PEOPLE VS. CUISON, 256 SCRA 325

2-g. PEOPLE VS. DAMASO, 212 SCRA 547

2-h. OPOSADAS VS. CA, 258 SCRA 188

2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)

3. Sec. 6, Rule 113, 1985 Rules on Criminal Procedure, as amended

n. Effect posting bail or entering a plea during the arraignment, if the arrest was  illegal. (The alleged
illegality of the arrest is deemed waived upon posting of the bond by the accused)

PEOPLE VS. GALVEZ, 355 SCRA 246

Mendoza, J.
           The policeman  arrested the accused-appellant on the basis solely of what Reynaldo Castro
had told him and not because he saw the accused-appellant commit the crime charged against
him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-
appellant when the latter was taken into custody. Considering that the accused-appellant was not
committing a crime at the time he was arrested  nor did the arresting officer have any personal
knowledge of facts indicating that accused-appellant committed a crime, his arrest without a
warrant cannot be justified.

However, by entering a plea of not guilty during the arraignment, the accused-appellant waived his
right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A
WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER
THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE
OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER
THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE
GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.

Read:

1.            Callanta vs. Villanueva, 77 SCRA 377

2.            PEOPLE VS. NAZARENO, 260 SCRA 256

3.            FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222

4.            PEOPLE VS. NAZARENO, 260 SCRA 256

5.            PEOPLE VS. LAPURA, 255 SCRA 85

6.            PEOPLE VS. SILAN, 254 SCRA 491

o . Penalty for illegal arrest

Read:

Palon vs. NAPOLCOM, May 28, 1989

p. Judicial pronouncements on illegally seized          evidence, 106 SCRA 336

q. The exclusionary rule,155 SCRA 494

n. What is the status of a document obtained through subpoena?

Read:

Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990

r. Search warrant for pirated video tapes

1.            Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly pirated tape should be
presented before the judge in order to convince him of the existence of probable cause)

2.            COLUMBIA PICTURES VS. CA, 261 SCRA 144

LATEST CASES ON SEARCH AND SEIZURES

UY VS. BIR, 344 SCRA 36
          The following are the requisites of a valid search warrant:
1.            The warrant must be issued upon probable cause;
2.            The probable cause must be determined by the judge himself and not by applicant or any
other person;
3.            In determining probable cause, the judge must examine under oath and affirmation the
complainant and such  witnesses as the latter may produce; and
4.            The warrant issued must particularly describe the place to be searched and the person or
things to be seized.
            A 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. Search warrants are not issued on loose, vague or doubtful basis of fact,
nor on mere suspicion or belief. In this case, most of the items listed in the warrants fail to meet
the test of particularity, especially since the witness had furnished the judge photocopies of the
documents sought to be seized. THE SEARCH WARRANT IS SEPARABLE, AND THOSE ITEMS NOT
PARTICULARLY DESCRIBED MAY BE CUT OFF WITHOUT DESTROYING THE WHOLE WARRANT.

PEOPLE VS. VALDEZ, 341 SCRA 25

            The protection against unreasonable search and seizure covers both innocent and guilty
alike against any form of highhandedness of law enforces.
            The “plain view” doctrine,  which may justify a search without warrant, APPLIES ONLY
WHERE THE POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE AGAINS THE ACCUSED, BUT
INADVERTENTLY COMES ACROSS AN INCRIMINATING OBJECT.
            Just because the marijuana plants were found in an unfenced lot does nor prevent the
appellant from invoking the protection afforded by the Constitution. The right against
unreasonable search and seizure is the immunity of one’s person, which includes his residence,
papers and other possessions. For a person to be immune against unreasonable searches and
seizures, he need not be in his home or office, within a fenced yard or private place.

PEOPLE VS. BAULA, 344 SCRA 663

            In case of consented searches or waiver of the constitutional guarantee against obtrusive
searches, it is fundamental that to constitute waiver, IT MUST APPEAR THAT THE RIGHT EXISTS;
THE PERSONS INVOLVED HAD KNOWLEDGE, EITHER ACTUAL OR CONSTRUCTIVE, of the existence
of such right. The third condition did not exist in the instant case. Neither was the search incidental
to a valid warrantless arrest. (PEOPLE VS. FIFUEROA, July 6, 2000) An alleged consent to a
warrantless search and seizure cannot be based merely on the presumption of regularity in the
performance of official duty. THE PRESUMPTION BY ITSELF, CANNOT PREVAIL AGAINST THE
CONSTITUTIONALLY PROTECTED RIGHTS OF AN INDIVIDUAL, AND ZEAL IN THE PURSUIT OF
CRIMINALS CANNOT ENNOBLE THE USE OF ARBITRARY METHODS THAT THE CONSTITUTION
ITSELF ABHORS.
Reference:
Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)
College of Law
University of the Cordilleras
 CONSTITUTIONAL LAW
CHAPTER V – THE RIGHT TO PRIVACY

Section 3. The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise as prescribed by law.

Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

Read:

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372,
Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically
suspended one (1) month before and two (2) months after the holding of any election).

Please observe the procedure in obtaining the “The Warrant [or Order] of Surveillance”, not found in
the 1987 Philippine Constitution.
SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING OF COMMUNICATIONS OF
SUSPECTS OR CHARGED OF TERRORISM
Section 7. Surveillance of suspects and interception and recording of communications. The
provisions of RA 4200 (Anti-Wiretapping Law) to the contrary notwithstanding, a police or law
enforcement official and the members of his team may, upon a written order of the Court of Appeals,
listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other
surveillance equipment or intercepting and tracking devices, or with the use of any other suitable
ways or means for that purpose, any communication, message, conversation, discussion, or spoken
or written words between members of a judicially declared and outlawed terrorist organization,
association, or group of persons or of any person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications between lawyers and
clients, doctors and patients, journalists and their sources and confidential business
correspondence shall not be authorized.

Section 8. Formal Application for Judicial Authorization.- The written order of the authorizing
division of the Court of Appeals to track down, tap, listen, intercept, and record communications,
messages, conversations, discussions, or spoken or written words of any person suspected of the
crime of terrorism or the crime of conspiracy to commit terrorism, shall only be granted by the
authorizing division of the Court of Appeals UPON AN EX-PARTE written application of a police or
law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council
created in Section 53 of this Act to file such ex-parte application, and upon examination under oath
and affirmation of the applicant and the witnesses who may produce to establish:
 That there is probable cause to believe based on personal knowledge of facts and circumstances
 that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being
committed, or is about to be committed;
 That there is probable cause to  believe based on personal knowledge of facts and circumstances
that evidence which is essential to the conviction of any charged or suspected person for, or to the
solution or prevention of any such crimes, will be obtained; and
 That there is no other effective means readily available for acquiring such evidence.
Sec. 9. Classification and Contents of the Order of the Court. The written order granted by the
authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same,
the original application of the applicant, including his application to extend or renew, if any, and the
written authorizations of the Anti-Terrorism Council shall be deemed and are hereby declared as
classified information: Provided, That the person being surveilled or whose communications, letters,
papers, messages, conversations, discussions, spoken or written words and effects have been
monitored, listened to, bugged or recorded by law enforcement authorities has the right to be
informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or
she intends to do so, the legality of the interference before the Court of Appeals which issued said
written order. The written order of the authorizing division of the court of Appeals shall specify the
following:
 The identity, such as name and address, if known, of the charged of suspected persons whose
communications, messages, conversations, discussions, or spoken or written words are to be
tracked down, tapped, listened to, intercepted or recorded and, in case of radio, electronic, or
telephone (whether wireless or otherwise) communications, messages, conversations,
discussions, or spoken or written words, the electronic transmission systems or the telephone
numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations if
the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully
known, such person shall be subject to continuous surveillance  provided there is reasonable
ground to do so;
 The identity (name and address, and the police or law enforcement organization) of the members
of his team judicially authorized to track down, tap, listen to, intercept, and record the
communications, messages, conversations, discussions, or spoken or written words;
 The offense or offenses committed, or being committed, or sought to be prevented; and
 The length of time which the authorization shall be used or carried out.
Section. 10. Effective Period of Judicial Authorization.  Any authorization granted by the authorizing
division of the court of Appeals…shall only be effective for the length of time specified in the written
order of the authorizing division of the Court of Appeals, which shall not exceed 30 days from the
date of receipt of the written order of the authorizing division of the court of Appeals by the
applicant police or law enforcement official.

The CA may extend or renew the said authorization for another non-extendible period, which shall
not exceed 30 days from the expiration of the original period…The ex-parte application for renewal
has been duly authorized by the Anti-terrorism Council in writing.

If no case is filed within the 30-day period, the applicant police or law enforcement official shall
immediately notify the person subject  of the surveillance, interception, and recording of the
termination of the said surveillance, interception and recording. [Penalty to be imposed on the police
official who fails to inform the person subject of surveillance of the termination of the surveillance,
monitoring, interception and recording shall be penalized to 10 years and 1 day to 12 years.

Section 15. Evidentiary Value of Deposited Materials. Any listened to, intercepted, and recorded
communications, messages, conversations…WHICH HAVE BEEN SECURED IN VIOLATION OF THE
PERTINENT PROVISIONS OF THIS ACT, SHALL ABSOLUTELY NOT BE ADMISSIBLE AND USABLE AS
EVIDENCE AGAINST ANYBODY IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE, OR
ADMINISTRATIVE INVESTIGATION, INQUIRY, PROCEEDING, OR HEARING.
JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS, ACCOUNTS,  AND RECORDS OF
SUSPECTED OR CHARGED TERRORISTS

Section 27. judicial authorization required to examine bank deposits, accounts and records.

The justices of CA designated as special court to handle anti-terrorism cases after satisfying
themselves of the existence of probable cause in a hearing called for that purpose that:

 A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
 Of a judicially declared and outlawed terrorist organization or group of persons;
 Of a member of such judicially declared and outlawed organization, association or group of
persons, may authorize in writing any police or law enforcement officer and the members of his
team duly authorized in writing by the anti-terrorism council to:

1.            examine or cause the examination of, the deposits, placements, trust accounts, assets, and
records in a bank or financial institution; and

2.            gather or cause the gathering of any relevant information about such deposits, placements,
trust accounts, assets, and records from a bank or financial institution. The bank or financial
institution shall not refuse to allow such examination or to provide the desired information, when so
ordered by and served with the written order of the Court of Appeals.

Sec. 28. Application to examine deposits, accounts and records.

The written order of the CA authorizing the examination of bank deposits, placements, trust
accounts, assets and records:

 A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
 Of a judicially declared and outlawed terrorist organization or group of persons;
 Of a member of such judicially declared and outlawed organization, association or group of
persons, in a bank or financial institution-

-SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE CA UPON AN EX-PARTE

APPLICATION TO THAT EFFECT OF A POLICE OR LAW ENFORCEMENT OFFICIAL who has been duly
authorized by the Anti-Terrorism Council to file such ex-parte application and upon examination
under oath or affirmation of the applicant and his witnesses he may produce to establish the facts
that will justify the need and urgency of examining and freezing the bank deposits, placements, trust
accounts, assets and records:

 Of A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
 Of a judicially declared and outlawed terrorist organization or group of persons;
 Of a member of such judicially declared and outlawed organization, association or group of
persons.
Section 35. Evidentiary value of deposited bank materials.- Any information, data, excerpts,
summaries, notes, memoranda, work sheets, reports or documents acquired from the examination
of the bank deposits, placements, trust accounts, assets and records of:
 A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
 Of a judicially declared and outlawed terrorist organization or group of persons;
 Of a member of such judicially declared and outlawed organization, association or group of
persons,

-which have been secured in violation of the provisions of this Act, shall absolutely not be admissible
and usable as evidence against anybody in any judicial, quasi-judicial, legislative or administrative
investigation, inquiry, proceeding or hearing.

1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502 SCRA 419

2. ZULUETA VS. CA, February 10, 1996

The wife forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks
and greeting cards  of his alleged paramours. Thereafter, she used the same in their legal separation
case. Said documents are inadmissible in evidence. This is so because the intimacies of husband
and wife does not justify the breaking of cabinets to determine marital infidelity.

3. OPLE VS. TORRES, July 23, 1998

Puno, J.
Facts:

          On December 12, 1996, then President FIDEL V. RAMOS issued Administrative Order No. 308
entitled “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.

The AO seeks to have all Filipino citizens and foreign residents to have a Population Reference
Number (PRN) generated by the National Statistics Office (NSO) through the use of BIOMETRICS
TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1.            The establishment of the PRN without any law is an unconstitutional usurpation of the
legislative powers of the Congress of the Philippines;
2.            The appropriation of public funds for the implementation of the said AO is unconstitutional
since Congress has the exclusive authority to appropriate funds for such expenditure; and

3.            The AO violates  the citizen’s right to privacy protected by the Bill of Rights of the
Constitution.

Held:

1.            The AO establishes a system of identification that is all-encompassing in scope, affects the
life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a
law passed by Congress that implements it, not by an Administrative Order issued by the President.
Administrative Power,  which is supposed to be exercised by the President, is concerned with the
work of applying policies and enforcing orders as determined by  proper governmental organs. It
enables the President to fix a uniform standard of administrative efficiency and check the official
conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is 
not appropriate to be covered by an Administrative Order. An administrative order is an ordinance
issued by the President which relates to specific aspects in the administrative operation of the
government. It must be in harmony with the law and should be for the sole purpose of implementing
the law and carrying out the legislative policy. The subject of AO 308 therefore is beyond the power
of the President to issue and it is a usurpation of legislative power.

2.            The AO likewise violates the right to privacy since its main purpose is to provide a “common
reference number to establish a linkage among concerned agencies through the use of BIOMETRICS
TECHNOLOGY. Biometry is the science of the application of statistical methods to biological facts; a
mathematical analysis of a biological data. It is the confirmation of an individual’s identity through a
fingerprint, retinal scan, hand geometry or  facial features. Through the PRN, the government offices
has the chance of building a huge and formidable information base through the electronic linkage of
the files of every citizen. The data, however, may be gathered for gainful and useful government
purposes; but the existence of this vast reservoir of personal information constitutes a covert
invitation to misuse, a temptation that may be too great for some of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms how these informations
gathered shall be handled. It does not provide who shall control and access the data and under what
circumstances and for what purpose. These factors are essential to safeguard the privacy and
guaranty the integrity of the information. The computer linkage gives other government agencies
access to the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST LEAKAGE OF
INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL PROGRAMS OF THE PARTICULAR
COMPUTER SYSTEM IS BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY, CAN
MAKE USE OF THE DATA FOR WHATEVER PURPOSE, OR WORSE, MANIPULATE THE DATA STORED
WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that personal information gathered
about our people will be used only for specified purposes thereby violating the citizen’s right to
privacy.

KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 &
June 20, 2006

BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20,
2006
Carpio, J.

President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that mandates the
Adoption of a Unified, Multi-purpose Identification System by all Government Agencies in the
Executive Department. This is so despite the fact that the Supreme Court held in an En Banc
decision in 1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative Order No.
308[National computerized Identification Reference System] issued by then President Fidel V.
Ramos that the same is unconstitutional because “a national ID card system requires legislation
because it creates a new national data collection and  card issuance system, where none existed
before”. The Supreme Court likewise held that EO 308 as unconstitutional for it violates the citizen’s
right to privacy.

Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is unconstitutional on
two (2) grounds:

a.            usurpation of legislative powers; and

b.            it infringes on the citizen’s right to privacy

Held:

The said Executive Order No. 420 does not violate the citizen’s right to privacy since it does not
require all the citizens to be issued a national ID as what happened in AO 308. Only those dealing or
employed with the said government entities who are required to provide the required information for
the issuance of the said ID.

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,  October 17, 2006, 504 SCRA 704
Sandoval-Gutierrez, J.
The Facts:
On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution
No. 455 (Senate Res. No. 455),[1][4] “directing an inquiry in aid of legislation on the anomalous losses
incurred by the Philippines Overseas Telecommunications Corporation (POTC),  Philippine
Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation
(PHC) due to the alleged improprieties in their operations by their respective Board of Directors.”
On May 8, 2006, Chief of Staff  Rio C. Inocencio, under the authority of Senator Richard J. Gordon,
wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of
the resource persons in the public meeting jointly conducted by theCommittee on Government
Corporations and Public Enterprises and Committee on Public Services.  The purpose of the public
meeting was to deliberate on Senate Res. No. 455.[2][6]
On May 9, 2006, Chairman Sabio and other commissioners of the PCGG declined the invitation
because of prior commitment.[3][7] At the same time, they invoked Section 4(b) of           E.O. No.
1 earlier quoted.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in
his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises
where he was detained.

Hence, Chairman Sabio filed with the Supreme Court a petition for habeas corpus against the
Senate Committee on Government Corporations and Public Enterprises and Committee on Public
Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members.
I S S U E S:

Is the investigation conducted on the petitioners violative of their right to privacy?

H E L D:

The claim of immunity is without merit.

Zones of privacy are recognized and protected in our laws.[4][46]  Within these zones, any form of
intrusion is impermissible unless excused by law and in accordance with customary legal process.
The meticulous regard we accord to these zones arises not only from our conviction that the right to
privacy is a “constitutional right” and “the right most valued by civilized men,”[5][47] but also from our
adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be
subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of
the law against such interference or attacks.”[6][48]
Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that
explicitly create zones of privacy. It highlights a person’s “right to be let alone” or the “right to
determine what, how much, to whom and when information about himself shall be
disclosed.”[7][49]   Section 2  guarantees  “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.”   Section 3 renders  inviolable  the  “privacy  of  communication and
correspondence” and  further  cautions  that  “any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any proceeding.”
In evaluating a claim for violation of the right to privacy, a court must determine whether a person
has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been
violated by unreasonable government intrusion.[8][50]   Applying this determination to these cases, the
important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation
exhibit a reasonable expectation of privacy?; and second, did the government  violate  such 
expectation?
The answers are in the negative. Petitioners were invited in the Senate’s public hearing to deliberate
on Senate Res. No. 455, particularly   “on the anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation
(PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in
the operations by their respective board of directors.”   Obviously, the inquiry focus on petitioners’
acts committed in the discharge of their duties as officers and directors of the said corporations,
particularly Philcomsat Holdings Corporation. Consequently, they have no reasonable expectation
of privacy over matters involving their offices in a corporation where the government has interest.
Certainly, such matters are of public concern and over which the people have the right to
information.
This goes to show that the right to privacy is not absolute where there is an overridingcompelling
state interest.   In Morfe v. Mutuc,[9][51] the Court, in line with Whalen v. Roe,[10][52] employed the rational
basis relationship test when it held that there was no infringement of the individual’s right to privacy
as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the
opportunities for official corruption, maintain a standard of honesty in public service, and promote
morality in public administration.[11][53] In Valmonte v. Belmonte,[12][54] the Court remarked that as public
figures, the Members of the  former Batasang Pambansa enjoy a more limited right to privacyas
compared to ordinary individuals, and their actions are subject to closer scrutiny.  Taking this into
consideration, the Court ruled that the right of the people to access information on matters of public
concern prevails over the right to privacy of financial transactions.  
Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC,
ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials
are compelling reasons for the Senate to exact vital information from the directors and officers of
Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it
in crafting the necessary legislation to prevent corruption and formulate remedial measures and
policy determination regarding PCGG’s efficacy.  There being no reasonable expectation of privacy
on the part of those directors and officers over the subject covered by Senate Res. No. 455, it
follows that their right to privacy has not been violated by respondent Senate Committees.
Let it be stressed at this point that so  long as the constitutional rights of witnesses, like Chairman
Sabio and his Commissioners,  will be respected by respondent Senate Committees, it their duty to
cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The
unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the
Congress and its Committees, and to testify fully with respect to matters within the realm of proper
investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio
Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG’s nominees to Philcomsat
Holdings Corporation, as well as its directors and officers, must comply with theSubpoenae Ad
Testificandum issued by respondent Senate Committees directing them to appear and testify in
public hearings relative to Senate Resolution No. 455.
Reference:
Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)
College of Law, University of the Cordilleras
Baguio City
[1][4]      Annex “E” of the Petition in G.R. No. 174318.
[2][6]      Annex “F” of the Petition in G.R. No. 174318.
[3][7]      Annex “G” of the Petition in G.R. No. 174318.
[4][46]     Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772.
[5][47]               See Morfe v. Mutuc  No. L-20387, January 31, 1968, 22 SCRA 424.
[6][48]     Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of
the International Covenant on Civil and Political Rights.
[7][49]     Constitutional and Legal Systems of ASEAN Countries, Sison, Academy of ASEAN Law and
Jurisprudence, 1990, at 221, citing I.R. Cortes, The Constitutional Foundations of Privacy, 7 (1970).
[8][50]     Burrows v. Superior Court of San Bernardino County, 13 Cal. 3d 238, 529 P 2d 590 (1974).  
See Katz v. United states (1967), 389 U.S. 347, 350-352, 88 S. Ct. 507, 19 L. Ed. 2d 576;People v.
Krivda (1971) 5 Cal. 3d 357, 364, 96 Cal. Rptr. 62, 486 P. 2d 1262; 8 Cal. 3d 623-624,105 Cal. Rptr.
521, 504 P. 2d 457. INSERT  Herrera’s Handbook on Arrest, Search and Seizure.
[9][51]     Supra.
[10][52]    429 U.S. 589 (1977).
[11][53]    Justice Puno, Lecture on Legislative Inquiry and Right to Privacy, p. 60.
[12][54]    170 SCRA 256 (1989)

CONSTITUTIONAL LAW
CHAPTER VI – FREEDOM OF SPEECH, PRESS, EXPRESSION, etc.

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for the redress of
their grievances.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372,
Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically
suspended one (1) month before and two (2) months after the holding of any election)
Section 26 provides that persons who have been charged with terrorism or conspiracy to commit
terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:
 Detained under house arrest;
 Restricted from traveling; and/or
 Prohibited from using any cellular phones, computers, or other means of communications with
people outside their residence.

1. Rule on criticisms against acts of public officers

Read:

1. Espuelas vs. People, 90 Phil. 524

2. US vs. Bustos, 37 Phil. 731 (A public official should not be  onion-skinned with reference to
comments upon his official acts. The interest of the government and the society demands full
discussion of public affairs)

3. P. vs. Perez, 45 Phil. 599

4. Mercado vs. CFI, 116 SCRA 93

2. Freedom of the press, in general

Read:

BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT OF APPEALS & RAMON LABO, JR., 444
SCRA 28 [November 25, 2004]
Freedom of Expression; the public has the right to be informed on the mental, moral and physical
fitness of candidates for public office.
FACTS:

1.            In the January 3, 1988 issue of the Baguio Midland Courier (BMC),  Cecille Afable, the Editor-
in-Chief, in her column “In and Out of Baguio”  made the following comments:

“Of all the candidates for Mayor of Baguio City), Labo has the most imponderables about him.
People would ask: “can he read and write”? Why is he always talking about his Japanese father-in-
law? Is he really a Japanes Senator or a barrio Kapitan? Is it true that he will send P18M aid to
Baguio? Somebody wanted to put an advertisement of Labo in the Midland Courier but was refused
because he has not yet paid his account of the last time he was a candidate for Congress. We will
accept all advertisements for him if he pays his old account first.”

2.            In the same column, Cecille Afable wrote the following comments in her  January 10, 1988
column at the Courier:
“I heard that the ‘Dumpty in the Egg’ is campaigning for Cortes. Not fair. Some real doctors are also
busy campaigning against Labo because he has not also paid their medical services with them.
Since he is donating millions he should also settle his small debts like the reportedly insignificant
amount of P27,000 only. If he wins, several teachers were signifying to resign and leave Baguio
forever, and Pangasinan will be the franca-liqua of Baguio.”

3.            As a result of the above articles, Ramon Labor, Jr. filed a complaint for Damages  before the
regional trial Court of Baguio City as he claimed said articles were libelous. He likewise filed a
separate criminal complaint before the Office of the City Prosecutor of Baguio but was dismissed;

4.            Labo claimed that the said articles were tainted with malice because he was allegedly
described as “Dumpty in the Egg”  or one “who is a failure in his business” which is false because he
is a very successful businessman or to mean “zero or a big lie”;  that he is a “balasubas” due to his
alleged failure to pay his medical expenses;

The petitioners, however, were able to prove that Labo has an unpaid obligation to the Courier in the
amount of P27,415.00  for the ads placed by his campaigners for the 1984 Batasang Pambansa
elections;

The Regional Trial Court, Branch 6, Baguio City, in its Decision dated June 14, 1990 dismissed Labo’s
complaint for damages on the ground that the article of petitioner Afable was privileged and
constituted fair comment on matters of public interest as it dealt with the integrity, reputation and
honesty of private respondent Labo who was a candidate for Mayor of Baguio City;

On January 7, 1992, the Court of Appeals reversed the RTC Decision and ordered the petitioners to
pay Ramon Labo, Jr.  damages in the total amount of P350,000.00 after concluding that the “Dumpty
in the Egg” refers to no one but Labo himself.

Hence, the Petition to the Supreme Court.

ISSUES:

1.            Was Labo the “Dumpty in the Egg” described in the questioned article/

2.            Were the articles subject of the case libelous or privileged/

HELD:
1.            The Court of Appeals is wrong when it held that Labo is the “Dumpty in the Egg” in the
questioned article. This is so because the article stated that “The Dumpty in the Egg is campaigning
for Cortes”, another candidate for mayor and opponent of Labo himself. It is unbelievable that Labo
campaigned for his opponent and against himself. Although such gracious attitude on the part of
Labo would have been commendable, it is contrary to common human experience. As pointed out by
the petitioners, had he done that, it is doubtful whether he could have won as City Mayor of Baguio in
the 1988 elections, which he actually did. In line with the doctrine in BORJAL VS. CA, 310 SCRA 1,
that ‘it is also not sufficient that the offended party recognized himself as the person attacked or
defamed, but it must be shown that at least a 3rd person could identify him as the object of the
libelous publication’, the case should be dismissed since Labo utterly failed to dispose of this
responsibility.
2.            Labo claims that the petitioners could not invoke “public interest” to justify the publication
since he was not yet a public official at that time. This argument is without merit since he was
already a candidate for City mayor of Baguio. As such, the article is still within the mantle of
protection guaranteed by the freedom of expression provided in the Constitution since it is the
public’s right to be informed of the mental, moral and physical fitness of candidates for public office.
This was recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909] and the case
of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254where the US Supreme Court held:

“…it is of the utmost consequence that the people should discuss the character and qualifications of
candidates for their suffrages. The importance to the State and to society of such discussions is so
vast, and the advantages derived so great, that they more than counterbalance the inconvenience of
private persons whose conduct may be involved, and occasional injury to the reputations of
individuals must yield to the public welfare, although at times such injury may be great. The public
benefit from publicity is so great and the chance of injury to private character so small, that such
discussion must be privileged. “

Clearly, the questioned articles constitute fair comment on a matter of public interest as it dealt with
the character of the private respondent who was running for the top elective post in Baguio City at
that time.

            2. PABLITO V. SANIDAD VS. COMELEC,

   G.R. NO. 90878, January 29, 1990
 
Freedom of expression and of the press
(Note: Unanimous en banc decision)
Medialdea, J.
 
Facts:

1. On October 23, 1989, RA 6766, entitled “AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE
CORDILLERA AUTONOMOUS REGION” was enacted into law;

2. Pursuant to said law, the City of Baguio and Provinces of Benguet, Abra, Mt. Province, Ifugao and
Kalinga-Apayao, all comprising the autonomous region shall take part in a plebiscite originally
scheduled for December 27, 1989 but was reset to January 30, 1990 specifically for the ratification
or rejection of the said act;
3. By virtue of the 1987 Constitution and the Omnibus Election Code (BP 881), the Comelec issued
Comelec Resolution No. 2167, Section 19 of which provides:

“Section 19. Prohibition on columnist, commentators or announcers.- During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer
or personality shall use his column or radio or television time to campaign for or against the
plebiscite issues.”

4. On November 20, 1989, petitioner PABLITO V. SANIDAD who is a columnist (“OVERVIEW”) for the
Baguio Midland Courier, a weekly newspaper circulated in the City of Baguio and the Cordilleras, filed
a petition for Prohibition with prayer for the issuance of a temporary restraining order or a writ of
preliminary injunction against the Comelec to enjoin the latter from enforcing Section 19 of
resolution No. 2167. Petitioner claims that the said provision is violative of his constitutional
freedom of expression and of the press and it also constitutes a prior restraint because it imposes
subsequent punishment for those who violate the same;

5. On November 28, 1989, the Supreme Court issued a temporary restraining order enjoining the
respondent from enforcing Section 19 of Resolution No. 2167;

6. On January 9, 1990, Comelec through the Solicitor General filed its Comment and moved for the
dismissal of the petition on the ground that Section 19 of Resolution No. 2167 does not absolutely
bar the petitioner from expressing his views because under Section 90 and 92 of BP 881, he may still
express his views or campaign for or against the act through the Comelec space and airtime.

Held:

What is granted by Art. IX-C of the Constitution to the Comelec is the power to supervise and
regulate the use and enjoyment of franchises, permits or other grants issued for the operation of
transportation or other public utilities to the end that equal opportunity, time and space, and the right
to reply, including reasonable, equal rates therefor, for public information campaigns and forums
among candidates are insured. The evil sought to be prevented by this provision is the possibility
that a franchise holder may favor or give undue advantage to a candidate in terms of advertising
time and space. This is also the reason why a columnist, commentator or announcer is required to
take a leave of absence from his work during the campaign period if he is a candidate.

HOWEVER, NEITHER ARTICLE IX-C OF THE CONSTITUTION NOR SECTION 11(B), 2ND PAR. OF RA
6646 CAN BE CONSTRUED TO MEAN THAT THE COMELEC HAS ALSO BEEN GRANTED THE RIGHT
TO SUPERVISE AND REGULATE THE EXERCISE BY MEDIA PRACTITIONERS THEMSELVES OF THEIR
RIGHT TO  EXPRESSION DURING THE PLEBISCITE PERIODS. Media practitioners exercising their
freedom of expression during the plebiscite periods are neither the franchise holders nor the
candidates. In fact, there are no candidates in a plebiscite.

While it is true that the petitioner is not absolutely barred from campaigning for or against the
Organic Act, said fact does not cure the constitutional infirmity of Section 19, Comelec Resolution
No. 2167. This is so because IT IS STILL A RESTRICTION ON HIS CHOICE OF THE FORUM WHERE
HE MAY EXPRESS HIS VIEW.

Plebiscite issues are matters of public concern and importance. The people’s right to be informed
and to be able to freely and intelligently make a decision would be better served by access to an
unabridged discussion of the issues, INCLUDING THE FORUM. The people affected by the issues
presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right
to expression may be exercised.

ACCORDINGLY, Section 19 of Comelec Resolution No. 2167 is hereby declared

UNCONSTITUTIONAL.

Read also:

1.            In re: Ramon Tulfo,March 19, 199

2.             In re: Atty. Emil Jurado, July 12, 1990

3.            Burgos vs. Chief of Staff, 133 SCRA 800

4.            Corro vs. Lising, 137 SCRA 448

5.            Babst vs. NIB, 132 SCRA 316

6.            Elizalde vs. Gutierrez,76 SCRA 448 (In order that any news item relating to a judicial
proceeding will not be actionable, the same must be [a] a true and fair report of the actual
proceedings; [b] must be done in good faith; and [c] no comments nor remarks shall be made by
the writer}

7.             Policarpio vs. Manila Times, 5 SCRA 148

8.            Lopez vs. CA, 34 SCRA 116

9.            New York Times vs. Sullivan,376 U.S.254

10.          Liwayway Publishing vs. PCGG, April 15,l988

3. Freedom of expression in general

    Read:
1.            RANDY DAVID VS. ARROYO, May 3, 2006, 489 SCRA 160;
2.            Adiong vs. Comelec, March 31, 1992 (putting of decals and stickers in one’s car is within
the protected freedom of expression)
3.            National Press Club vs. Comelec, March 5, 1992. Real also the dissenting and separate
opinions of the justices. (Preventing campaigns through radio, TV and newspapers is valid in order
to even the playing field between rich and poor candidates)
4.            Zaldivar vs. Sandiganbayan, GR No. 7960-707 &          Zaldivar vs. Gonzales, GR No. 80578,
February          1, 1989
5.            Eastern Broadcasting vs. Dans,137 SCRA 628
6.            Newsweek vs. IAC, 142 SCRA 171
7.             Kapisanan vs. Camara Shoes, 11 SCRA 477
8.            IN RE: Atty. Tipon, 79 SCRA 372
9.            Lacsa vs. IAC, May 23,1988
10.         Kapunan vs. De Villa, December 6, 1988

4. Not within the protection of the freedom of     expression clause of the Constitution

1. Obscenity; test of

Read:

a. P. vs. Kottinger, 45 Phil. 352

a.            P vs. GO PIN, August 8, 1955

Tests:
a.            Whether the average person applying to contemporary community standards would find
the  work appeals to prurient interest;
b.            Whether the work depicts or describes a patently offensive sexual conduct;
c.            Whether the work as a whole lacks serious literary , artistic, political or scientific value.

c. Miller vs. California, 37 L. Ed. 2d 419

d. Ginsberg vs. New York,390 U.S. 629

e. Pita vs. CA, 178 SCRA 362 (A City Mayor may not order the warrantless seizure of magazines
which he believes to be obscene; otherwise, he will become the complainant, prosecutor and judge
at the same time. He should obtain a search warrant from a judge)

2. Libel or slander; test of-

Read:

a. Lopez and Manila Times cases, supra

b. Quisumbing vs. Lopez, 96 Phil. 510

3. Cases undersub-judice
Read:

a. P. vs. Alarcon, 69 Phil. 265

5. Freedom of assembly and to petition the government      for redress of grievances

GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51

Freedom of public school teachers to peaceably assemble and petition the government for redress
of grievances; right of public school teachers to form union.
            The petitioners admitted that they participated in concerted mass actions in Metro Manila
from September to the first half of October, 1990 which temporarily disrupted classes in Metro
Manila but they claimed that they were not on strike. They claimed that they were merely exercising
their constitutional right to peaceably assemble and petition the government for redress of their
grievances. Thus, they may not be penalized administratively.
HELD:
The issue of whether or not the mass action launched by the public school teachers during the
period from September up to the 1st half of October, 1990 was a strike or not has been decided in the
case of MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION VS. LAGUIO, 200 SCRA 323 where it
was held that “these mass actions were to all intents and purposes a strike; they constituted a
concerted and unauthorized stoppage of, or absence from, work which it was the teachers’ duty to
perform, undertaken for essentially economic reasons.”

It is undisputed fact that there was a work stoppage and that petitioners’ purpose was to realize
their demands by withholding their services. The fact that the conventional term “strike” was not
used by the striking employees to describe their common course of action is inconsequential, SINCE
THE SUBSTANCE OF THE SITUATION, AND NOT ITS APPEARANCE, WILL BE DEEMED
CONTROLLING.

Despite the constitutional right to form associations under the Constitution, employees in the public
service may not engage in strikes, mass leaves, walkouts and other forms of mass actions that will
lead to temporary stoppage or disruption of public service. The right of government employees to
organize IS LIMITED TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT
INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA 619)

The petitioners are not therefore entitled to their salaries during their suspension because the
general proposition is that a public official is not entitled to any compensation if he had not rendered
any service.

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP),  and

GABRIELA vs.EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO
ATIENZA, Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen.
VIDAL QUEROL, and Western Police District Chief Gen. PEDRO BULAONG,  G.R. No. 169848, May,
 2006
AZCUNA, J.:

The Facts:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838, allege that they are citizens and taxpayers of
the Philippines and that their rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas
Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,
who allege that they were injured, arrested and detained when a peaceful mass action they held on
September 26, 2005 was preempted and violently dispersed by the police.  They further assert that
on October 5, 2005, a group they participated in marched to Malacañang to protest issuances of the
Palace which, they claim, put the country under an “undeclared” martial rule, and the protest was
likewise dispersed violently and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881, allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of “Calibrated Preemptive Response” (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members.  They further allege that on October 6,
2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España
Avenue in front of the University of Santo Tomas and going towards Mendiola bridge.  Police
officers blocked them along Morayta Street and prevented them from proceeding further.  They were
then forcibly dispersed, causing injuries on one of them. Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6,
12, 13(a), and 14(a), as well as the policy of CPR.  They seek to stop violent dispersals of rallies
under the “no permit, no rally” policy and the CPR policy recently announced.
B.P. No. 880, “The Public Assembly Act of 1985,” provides:
Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And
Petition The Government [And] For Other Purposes.

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title . – This Act shall be known as “The Public Assembly Act of 1985.”
Sec. 2.  Declaration of policy. – The constitutional right of the people peaceably to assemble and
petition the government for redress of grievances is essential and vital to the strength and stability
of the State.  To this end, the State shall ensure the free exercise of such right without prejudice to
the rights of others to life, liberty and equal protection of the law.
Sec. 3.  Definition of terms. – For purposes of this Act:

(b)      “Public place” shall include any highway, boulevard, avenue, road, street, bridge or other
thoroughfare, park, plaza square, and/or any open space of public ownership where the people are
allowed access.

(c)      “Maximum tolerance” means the highest degree of restraint that the military, police and other
peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

Sec. 4.  Permit when required and when not required.–  A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place.  However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.
Sec. 5.  Application requirements.–  All applications for a permit shall comply with the following
guidelines:

1.            The applications shall be in writing and shall include the names of the leaders or organizers;
the purpose of such public assembly; the date, time and duration thereof, and place or streets to be
used for the intended activity; and the probable number of persons participating, the transport and
the public address systems to be used.

2.            The application shall incorporate the duty and responsibility of applicant under Section 8
hereof.

3.            The application shall be filed with the office of the mayor of the city or municipality in
whose jurisdiction the intended activity is to be held, at least five (5) working days before the
scheduled public assembly.

4.            Upon receipt of the application, which must be duly acknowledged in writing, the office of
the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place
in the city or municipal building.

Sec. 6.  Action to be taken on the application. –

1.            It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit
unless there is clear and convincing evidence that the public assembly will create a clear and
present danger to public order, public safety, public convenience, public morals or public health.
2.            The mayor or any official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which, the permit shall be deemed
granted.  Should for any reason the mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the applicant on the premises of  the
office of the mayor and shall be deemed to have been filed.

3.            If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant who
must be heard on the matter.

4.            The action on the permit shall be in writing and served on the applica[nt] within twenty-four
hours.

5.            If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.

6.            In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the
Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its
decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the
same.  No appeal bond and record on appeal shall be required.  A decision granting such permit or
modifying if in terms satisfactory to the applicant shall be immediately executory.

7.            All cases filed in court under this section shall be decided within twenty-four (24) hours
from date of filing.  Cases filed hereunder shall be immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.

8.            In all cases, any decision may be appealed to the Supreme Court.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21,
2005, shown in Annex “A” to the Petition in G.R. No. 169848, thus:

Malacañang                       Official

Manila, Philippines               NEWS

Release No. 2                                       September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duty constituted authorities, we have
instructed the PNP as well as the local government units to strictly enforce a “no permit, no rally”
policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the
land as well as ordinances on the proper conduct of mass actions and demonstrations.

The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance.  The
authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of
people and inciting them into actions that are inimical to public order, and the peace of mind of the
national community.

Unlawful mass actions will be dispersed.  The majority of law-abiding citizens have the right to be
protected by a vigilant and proactive government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of
a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the
Constitution and the International Covenant on Civil and Political Rights and other human rights
treaties of which the Philippines is a signatory.

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of
the presence or absence of a clear and present danger.  It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought.  Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government.  The words “lawful cause,” “opinion,”
“protesting or influencing” suggest the exposition of some cause not espoused by the government. 
Also, the phrase “maximum tolerance” shows that the law applies to assemblies against the
government because they are being tolerated.  As a content-based legislation, it cannot pass the
strict scrutiny test.

            Furthermore, the law delegates powers to the Mayor without providing clear standards.  The
two standards stated in the laws (clear and present danger and imminent and grave danger) are
inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and
therefore B.P. No. 880 cannot put the prior requirement of securing a permit.  And even assuming
that the legislature can set limits to this right, the limits provided are unreasonable:  First, allowing
the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too
comprehensive.  Second, the five-day requirement to apply for a permit is too long as certain events
require instant public assembly, otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before
the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. 
Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably
assemble.

I s s u e s:

1.            On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)
and 14(a) thereof, and Republic Act No. 7160:

1.            Are these content-neutral or content-based regulations?

2.            Are they void on grounds of overbreadth or vagueness?

3.            Do they constitute prior restraint?

4.            Are they undue delegations of powers to Mayors?

5.            Do they violate international human rights treaties and the Universal Declaration of Human
Rights?

2.            On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):

1.            Is the policy void on its face or due to vagueness?

2.            Is it void for lack of publication?

3.            Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6,
2005?

H e l d:

Petitioners’ standing cannot be seriously challenged.  Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and
parks.  They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional
guarantee.  Respondents, on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4.  No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in
the realm of constitutional protection.  For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected.  As
stated in Jacinto v. CA, the Court, as early as the onset of this century, in U.S. v. Apurado  already
upheld the right to assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the government for
a redress of grievances and, for that matter, to organize or form associations for purposes not
contrary to law, as well as to engage in peaceful concerted activities.  These rights are guaranteed
by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of
Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements
defending and promoting the people’s exercise of these rights.  As early as the onset of this century,
this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far
as to acknowledge:

“It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their
irresponsible followers.  But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to
the prosecuting authorities.  If instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefore, but the utmost discretion must be
exercised in drawing the line between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising.”

Again, in Primicias v. Fugoso, the Court likewise sustained the primacy of freedom of speech and to
assembly and petition over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute.  InPrimicias,
this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
constitutions of democratic countries.  But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society.  The power to regulate the exercise of such and other
constitutional rights is termed the sovereign “police power,” which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people.  This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils enact ordinances for purpose

Reyes v. Bagatsing further expounded on the right and its limits, as follows:    

It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the denial of a permit.  The Constitution is quite
explicit:  “No law shall be passed abridging the freedom of speech, or of the press, or the right of the
people peaceably to assemble and petition the Government for redress of grievances.”  Free speech,
like free press, may be identified with the liberty to discuss publicly and truthfully any matter of
public concern without censorship or punishment.  There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, prosecution for sedition, or
action for damages, or contempt proceedings unless there be a “clear and present danger of a
substantive evil that [the State] has a right to prevent.”  Freedom of assembly connotes the right of
the people to meet peaceably for consultation and discussion of matters of public concern.  It is
entitled to be accorded the utmost deference and respect.  It is not to be limited, much less denied,
except on a showing, as is the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent.  Even prior to the 1935 Constitution, Justice
Malcolm had occasion to stress that it is a necessary consequence of our republican institutions
and complements the right of free speech.  To paraphrase the opinion of Justice Rutledge, speaking
for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or
coincidence that the rights to freedom of speech and of the press were coupled in a single
guarantee with the right of the people peaceably to assemble and to petition the government for
redress of grievances.  All these rights, while not identical, are inseparable.  In every case, therefore,
where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine
the effects of the challenged governmental actuation.  The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of
a character both grave and imminent, of a serious evil to public safety, public morals, public health,
or any other legitimate public interest.

3. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better
expressed than in this excerpt from an opinion of Justice Frankfurter:  “It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment.  Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to
the mind.  It was in order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope.  But utterance in a
context of violence can lose its significance as an appeal to reason and become part of an
instrument of force.  Such utterance was not meant to be sheltered by the Constitution.”  What was
rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a
context of violence.  It must always be remembered that this right likewise provides for a safety
valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing
climate of opinion.  For if the peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative.  Nor is this the sole reason for the expression of
dissent.  It means more than just the right to be heard of the person who feels aggrieved or who is
dissatisfied with things as they are.  Its value may lie in the fact that there may be something worth
hearing from the dissenter.  That is to ensure a true ferment of ideas.  There are, of course, well-
defined limits.  What is guaranteed is peaceable assembly.  One may not advocate disorder in the
name of protest, much less preach rebellion under the cloak of dissent.  The Constitution frowns on
disorder or tumult attending a rally or assembly.  Resort to force is ruled out and outbreaks of
violence to be avoided.  The utmost calm though is not required.  As pointed out in an early
Philippine case, penned in 1907 to be precise, United States v. Apurado:  “It is rather to be expected
that more or less disorder will mark the public assembly of the people to protest against grievances
whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule,
will be the disciplinary control of the leaders over their irresponsible followers.”  It bears repeating
that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided.  To give free rein to one’s destructive urges is to call for condemnation. 
It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

There can be no legal objection, absent the existence of a clear and present danger of a substantive
evil, on the choice of Luneta as the place where the peace rally would start.  The Philippines is
committed to the view expressed in the plurality opinion, of 1939 vintage of, Justice Roberts in
Hague v. CIO:  “Whenever the title of streets and parks may rest, they have immemorially been held
in trust for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.  Such use of the streets
and public places has, from ancient times, been a part of the privileges, immunities, rights and
liberties of citizens.  The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but must not, in the guise of
respondents, be abridged or denied.”  The above excerpt was quoted with approval in Primicias v.
Fugoso.  Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or parks and streets are outside the commerce
of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality.  Reference
was made to such plaza “being a promenade for public use,” which certainly is not the only purpose
that it could serve.  To repeat, there can be no valid reason why a permit should not be granted for
the proposed march and rally starting from a public park that is the Luneta.

4.       Neither can there be any valid objection to the use of the streets to the gates of the US
embassy, hardly two blocks away at the Roxas Boulevard.  Primicias v. Fugoso has resolved any
lurking doubt on the matter.  In holding that the then Mayor Fugoso of the City of Manila should
grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: 
“Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire,
312 U.S., 569.  In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no
parade or procession upon any ground abutting thereon, shall be permitted unless a special license
therefor shall first be obtained from the selectmen of the town or from licensing committee,’ was
construed by the Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid.  And the Supreme Court of the
United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the
State Supreme Court, held that ‘a statute requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is
construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses,
to a consideration of the time, place, and manner of the parade or procession, with a view to
conserving the public convenience and of affording an opportunity to provide proper policing, and
are not invested with arbitrary discretion to issue or refuse license, * * *.  “Nor should the point made
by Chief Justice Hughes in a subsequent portion of the opinion be ignored: “Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized society maintaining public order
without which liberty itself would be lost in the excesses of unrestricted abuses.  The authority of a
municipality to impose regulations in order to assure the safety and convenience of the people in the
use of public highways has never been regarded as inconsistent with civil liberties but rather as one
of the means of safeguarding the good order upon which they ultimately depend.  The control of
travel on the streets of cities is the most familiar illustration of this recognition of social need. 
Where a restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil
right which in other circumstances would be entitled to protection.”

xxx

          6.       x x x The principle under American doctrines was given utterance by Chief Justice
Hughes in these words:  “The question, if the rights of free speech and peaceable assembly are to be
preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to
the relations of the speakers, but whether their utterances transcend the bounds of the freedom of
speech which the Constitution protects.”  There could be danger to public peace and safety if such a
gathering were marked by turbulence.  That would deprive it of its peaceful character.  It is true that
the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or
not a permit would be granted.  It is not, however, unfettered discretion.  While prudence requires
that there be a realistic appraisal not of what may possibly occur but of what may probably occur,
given all the relevant circumstances, still the assumption – especially so where the assembly is
scheduled for a specific public place – is that the permit must be for the assembly being held there. 
The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme
Court, is not to be “abridged on the plea that it may be exercised in some other place.”

xxx

          8.       By way of a summary.  The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place.  If it were
a private place, only the consent of the owner or the one entitled to its legal possession is required. 
Such application should be filed well ahead in time to enable the public official concerned to
appraise whether there may be valid objections to the grant of the permit or to its grant but at
another public place.  It is an indispensable condition to such refusal or modification that the clear
and present danger test be the standard for the decision reached.  If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must be heard on the
matter.  Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the
earliest opportunity.  Thus if so minded, they can have recourse to the proper judicial authority.  Free
speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values.  It cannot be too strongly stressed that on the judiciary, — even
more so than on the other departments – rests the grave and delicate responsibility of assuring
respect for and deference to such preferred rights.  No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitiously termed by Justice Holmes “as the sovereign
prerogative of judgment.”  Nonetheless, the presumption must be to incline the weight of the scales
of justice on the side of such rights, enjoying as they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983, 125 SCRA 553, 569)
8. By way of a summary.  The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it will take place.  If it were
a private place, only the consent of the owner or the one entitled to its legal possession is required. 
Such application should be filed well ahead in time to enable the public official concerned to
appraise whether there may be valid objections to the grant of the permit or to its grant but at
another public place.  It is an indispensable condition to such refusal or modification that the clear
and present danger test be the standard for the decision reached.  If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must be heard on the
matter.  Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the
earliest opportunity.  Thus if so minded, they can have recourse to the proper judicial authority.
B.P. No. 880
 Sec. 4.  Permit when required and when not required.–  A written permit shall be required for any
person or persons to organize and hold a public assembly in a public place.  However, no permit
shall be required if the public assembly shall be done or made in a freedom park duly established by
law or ordinance or in private property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election campaign period as provided for by
law are not covered by this Act.
Sec. 5.  Application requirements.–  All applications for a permit shall comply with the following
guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or organizers; the
purpose of such public assembly; the date, time and duration thereof, and place or streets to be
used for the intended activity; and the probable number of persons participating, the transport and
the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose
jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled
public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city
or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the
city or municipal building.

Sec. 6.  Action to be taken on the application. –

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit
unless there is clear and convincing evidence that the public assembly will create a clear and
present danger to public order, public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working
days from the date the application was filed, failing which, the permit shall be deemed granted. 
Should for any reason the mayor or any official acting in his behalf refuse to accept the application
for a permit, said application shall be posted by the applicant on the premises of  the office of the
mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil
warranting the denial or modification of the permit, he shall immediately inform the applicant who
must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after receipt of the same.  No appeal
bond and record on appeal shall be required.  A decision granting such permit or modifying it in
terms satisfactory to the applicant shall be immediately executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from
date of filing.  Cases filed hereunder shall be immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies.  This was adverted
to in Osmeña v. Comelec,[1] where the Court referred to it as a “content-neutral” regulation of the
time, place, and manner of holding public assemblies.[2]
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies[3] that would use public places.  The reference to “lawful cause” does not make it
content-based because assemblies really have to be for lawful causes, otherwise they would not be
“peaceable” and entitled to protection.  Neither are the words “opinion,” “protesting” and “influencing”
in the definition of public assembly content based, since they can refer to any subject.  The words
“petitioning the government for redress of grievances” come from the wording of the Constitution,
so its use cannot be avoided.  Finally, maximum tolerance is for the protection and benefit of all
rallyists and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order,
public safety, public convenience, public morals or public health.  This is a recognized exception to
the exercise of the right even under the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights.

Neither is the law overbroad.  It regulates the exercise of the right to peaceful assembly and petition
only to the extent needed to avoid a clear and present danger of the substantive evils Congress has
the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard –
the clear and present danger test stated in Sec. 6(a).  The reference to “imminent and grave danger
of a substantive evil” in Sec. 6(c) substantially means the same thing and is not an inconsistent
standard.  As to whether respondent Mayor has the same power independently under Republic Act
No. 7160[4] is thus not necessary to resolve in these proceedings, and was not pursued by the
parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through
the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at
any time:

Sec. 15.  Freedom parks. – Every city and municipality in the country shall within six months after the
effectivity of this Act establish or designate at least one suitable “freedom park” or mall in their
respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion
where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the
freedom parks within the period of six months from the effectivity this Act.

The Court now comes to the matter of the CPR.  As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything
other than the maximum tolerance policy set forth in B.P. No. 880.  This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:

The truth of the matter is the policy of “calibrated preemptive response” is in consonance with the
legal definition of “maximum tolerance” under Section 3 (c) of B.P. Blg. 880, which is the “highest
degree of restraint that the military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same.”  Unfortunately, however, the phrase “maximum
tolerance” has acquired a different meaning over the years.  Many have taken it to mean inaction on
the part of law enforcers even in the face of mayhem and serious threats to public order.  More so,
other felt that they need not bother secure a permit when holding rallies thinking this would be
“tolerated.”  Clearly, the popular connotation of “maximum tolerance” has departed from its real
essence under B.P. Blg. 880.

It should be emphasized that the policy of maximum tolerance is provided under the same law which
requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit,
and which recognizes certain instances when water cannons may be used.  This could only mean
that “maximum tolerance” is not in conflict with a “no permit, no rally policy” or with the dispersal
and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is.  Our law enforcers
should calibrate their response based on the circumstances on the ground with the view to
preempting the outbreak of violence.

Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum
tolerance I clearly was not referring to its legal definition but to the distorted and much abused
definition that it has now acquired.  I only wanted to disabuse the minds of the public from the
notion that law enforcers would shirk their responsibility of keeping the peace even when confronted
with dangerously threatening behavior.  I wanted to send a message that we would no longer be lax
in enforcing the law but would henceforth follow it to the letter.  Thus I said, “we have instructed the
PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all
persons violating the laws of the land . . . unlawful mass actions will be dispersed.”  None of these is
at loggerheads with the letter and spirit of Batas Pambansa Blg. 880.  It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly.   For this reason, the so-called
calibrated preemptive response policy has no place in our legal firmament and must be struck down
as a darkness that shrouds freedom.  It merely confuses our people and is used by some police
agents to justify abuses.  On the other hand, B.P. No. 880 cannot be condemned as unconstitutional;
it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the
time, place and manner of assemblies.  Far from being insidious, “maximum tolerance” is for the
benefit of rallyists, not the government.  The delegation to the mayors of the power to issue rally
“permits” is valid because it is subject to the constitutionally-sound “clear and present danger”
standard.

WHEREFORE, the petitions are GRANTED in part,  and Calibrated Preemptive Response (CPR),

insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULLand VOID and
respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVEthe requirements
of maximum tolerance.
 Read:

1. Right of assembly..31 SCRA 734 and 742

2. Evangelista vs. Earnshaw, 57 Phil 255

3. Primicias vs. Fuguso, 80 Phil. 71

4. De la Cruz vs. Ela, 99 Phil. 346

5. Navarro vs. Villegas, 31 SCRA 731

6. Philippine Blooming Mills Case,51 SCRA 189

7. Reyes vs. Bagatsing, 125 SCRA 553;see         guidelines

8. Ruiz vs. Gordon, 126 SCRA 233

9. Villar vs. TIP, 135 SCRA 705

10. Malabanan vs. Ramento, 129 SCRA 359

11. Carpio vs. Guevara, 106 SCRA 685

12. Nestle’ Phils. vs. Sanchez, 154 SCRA 542

13. Arreza vs. Araneta University Foundation, 137          SCRA 94

6. Freedom from prior restraint

  Read:

1. Gonzales vs. Kalaw Katigbak, 137 SCRA 717

2. New York Times vs. U.S., 403 U.S. 713 (Any system of prior restraints of expression comes to this
Court bearing a heavy presumption against its validity)

3. Near vs. Minnesota, 283 U.S. 697

4. Times Film vs. City of Chicago, 365 U.S. 43

5. Freedman vs. Maryland, 380 U.S. 51

5.            Clear and present danger and dangerous tendency rule (whether the words used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that the State has the right to prevent)
7-a. Dangerous tendency rule (If the words uttered create a dangerous tendency which the State
has the right to prevent, then such words are  punishable)
  Read:

1. Cabansag vs. Fernandez, 102 Phil. 152

2. Read again the Reyes and Ruiz cases, supra

3. Read again Zaldivar vs. Sandiganbayan, GR No.          7960-707& Zaldivar vs. Gonzales, GR
No.          80578, February 1, 1989

8. The balancing-of-interest test (When a particular conduct is regulated in the interest of the
public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the
duty of the courts is to determine which of the 2 conflicting interests demand greater protection
under the circumstances presented.)

Read:

AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET AL., 160 SCRA 861

Read also:
1. Lagunzad vs. Gonzales, 92 SCRA 476

2. Gitlow vs. New York, 268 U.S. 652, including           the criticism on this test by Justice Holmes

3. See also Zaldivar case above

Reference:
Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)
College of Law, University of the Cordilleras
Baguio City
[1]         G.R. No. 132231, March 31, 1998, 288 SCRA 447.
[2]         Ibid, p. 478.
[3]         Except picketing and other concerted action in strike areas by workers and employees
resulting from a labor dispute, which are governed by the Labor Code and other labor laws; political
meeting or rallies held during any election campaign period, which are governed by the Election Code
and other election related laws; and public assemblies in the campus of a government-owned and
operated educational institution, which shall be subject to the rules and regulations of said
educational institution. (Sec. 3[a] and Sec. 4 of B.P. No. 880).
[4]         The Local Government Code.  Specifically, Section 16 stating the general welfare clause, thus:
Sec. 16.  General Welfare. – Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the promotion of the general
welfare.  Within their respective territorial jurisdictions, local government units shall ensure and
support among other things, the preservation and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their residents, maintain
peace and order, and preserve the comfort and convenience of their inhabitants.
 CONSTITUTIONAL LAW
CHAPTER VII – THE NON-ESTABLISHMENT OF RELIGION CLAUSE

Section 5.  No law shall be made respecting the establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
ESTRADA VS. SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution of the Motion for Reconsideration),
408 SCRA 1
Puno, J.

Respondent is the Court interpreter of RTC Branch 253, Las Pinas City. Complainant requested for
an investigation  of respondent for living with a man not her husband while she was still legally
married and having borne a child within this live-in arrangement. Estrada believes  that Escritor is
committing a grossly immoral act which tarnishes the image of the judiciary, thus she should not be
allowed to remain employed  therein as it might appear that the court condones her act.

Respondent admitted she started living with Luciano Quilapio, Jr. more than 20 years ago when her
husband was still alive but living with another woman. She likewise admitted having a son with
Quilapio but denies any liability for alleged grossly immoral conduct because:

 She is a member of the Jehovah’s Witnesses and the Watch Tower Society;
 That the conjugal arrangement was in  conformity  with their religious beliefs;
 That the conjugal arrangement with Quilapio has the approval of her congregation.

Escritor likewise claimed that she had executed a “DECLARATION OF PLEDGING FAITHFULNESS” in
accordance with her religion which allows members of the Jehovah’s witnesses who have been
abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting
union moral and binding within the congregation all over the world except in countries where divorce
is allowed.

HELD:

Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption
from the law based on her fundamental right to religion. The Court recognizes that state interests
must be upheld in order that freedoms—including religious freedom—may be enjoyed. IN THE AREA
OF RELIGIOUS EXERCISE AS A PREFERRED FREEDOM, HOWEVER, MAN STANDS ACCOUNTABLE
TO AN AUTHORITY HIGHER THAN THE STATE, and so the stateinterest sought to be upheld must
be so compelling that its violation will erode the very fabric of the state that will also protect the
freedom. In the absence of a showing that the state interest exists, man must be allowed to
subscribe to the Infinite.

Escritor was therefore held not administratively liable for grossly immoral conduct.
  FREEDOM OF RELIGION

–                      Any specific system of belief, worship or conduct, often involving a code of ethics and
philosophy.

–                      A profession of faith to an active power that binds and elevates man to his Creator.

The existence of a Divine being is not necessarily inherent in religion; the Buddhists espouses a way
of life without reference to an omnipotent God.

“Strong fences make good neighbors”. The idea is to delineate the boundaries between two
institutions and prevent encroachments by one against the other.

The doctrine cuts both ways. It is not only the State that is prohibited from interfering in purely
ecclesiastical affairs; the Church is likewise barred from meddling  in purely secular matters.

 
NON-STABLISHMENT CLAUSE:
It simply means “that the State cannot set up a church; nor pass laws which aids one religion; aid all
religion, or prefer one religion over another nor force nor influence a person to go to or remain away
from church against his will; or force him to profess a belief or disbelief; that the State cannot openly
or secretly participate in the affairs of any religious organization or group and vice versa” (EVERSON
VS. BOARD OF EDUCATION, 330 US 1)

This clause seeks to protect:

Voluntarism—must come into existence through the voluntary support of its members;
Insulation from political process—growth through voluntary support of its members will not take
place if there is intervention from the State.
There will be no violation of the non-establishment clause if:

1. the statute has a secular legislative purpose;

2. its principal or primary effect is one that neither advances nor inhibits religion; and

3. it does not foster an excessive government entanglement with religion. (LEMON VS. KURTZMAN,
403 US 602)
 
The government is neutral  and while protecting  all, it prefers none and disparages none. “All” here
applies both to the believer and the non-believer. FREEDOM OF RELIGION INCLUDES FREEDOM
FROM RELIGION; THE RIGHT TO WORHIP INCLUDES THE RIGHT NOT TO WORSHIP.

SCHOOL PRAYER CASE (ENGEL VS. VITALE, 370 US 421)

“It is unconstitutional for a school to require the students to recite  a prayer composed by the Board
of Regents at the starts of the day’s class. “It is no part of the business of government to compose
official prayers for any group of the American People.”

 
SCHOOL DISTRICT OF ABINGTON VS. SCHEMPP, 374 US 203

It is unconstitutional for a law to require  that at least 10 verses from the Holy Bible  be read daily
without comment because the same constitute a religious exercise which violates the non-
establishment clause.

BOARD OF EDUCATION VS. ALLEN, 392 US 236

A law requiring the Board of Education to lend textbooks free of charge to all students from grades 7
-12 of parochial school. This is constitutional since it is not the parochial school which gets the
benefits but the parents.

EVERSON  VS. BOARD OF EDUCATION, 330 US 1

The law authorizing reimbursement of transportation expenses of school children going to and from
parochial schools is not violative of the non-establishment clause because it will be the parents who
get benefits, not the parochial  school.

RIGHT TO RELIGIOUS PROFESSION AND WORSHIP HAS TWO ASPECTS:

a.            Freedom to believe; and
b.            Freedom to act.

IN the first, such freedom is absolute. He may indulge in his own theories about life and death;
worship any god he chooses, or none at all. He may not be punished even if he cannot prove what he
believes.

In the second, if the individual externalizes what he believes, his freedom to do so becomes subject
to the authority of the State. This is so because religious freedom can be exercised only with due
regard to the rights of others. Example: “Go forth and multiply—cannot marry several times just to
comply.

PEOPLE VS. LAGMAN & ZOSA, 38 O.G. 1676

Avoiding military duties based on religious grounds is not allowed in the Philippines because of
Section 4, Article II—The state is the protector of the people and it is the prime duty  of the people to
defend the State and in the fulfillment of this duty, the State may call  all citizens to render military or
civil service.

IN RE SUMMERS, 325 US 561

The act of the Illinois Supreme Court denying admission to the bar because of his refusal to take in
good faith an oath to support the Constitution of the State of Illinois which requires mandatory
service in the military in times of war was reversed by the US Supreme Court stating that this
constitutes a violation of the 1st Amendment which guarantees religious freedom.

1.  Religious freedom in relation to impairment of            contracts and the right to join
associations,36            SCRA 445

2. Read:

1. Aglipay vs. Ruiz, 64 Phil. 201

2. Garces vs. Estenzo, 104 SCRA 510

3. INK vs. Gironella, 106 SCRA 1

4. American Bible Society vs. City of Manila, 101         Phil. 398

5. Gerona vs. Sec. of Education, 106 Phil. 11

6. Pamil vs. Teleron, November 20, 1978

7. Victoriano vs. Elizalde Rope, 59 SCRA 54

1.            German vs. Barangan, 135 SCRA 514

ROEL EBRALINAG, ET AL VS. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, March 1,

1993
Grino–Aquino, J.
 
Facts:

1. The petitioners are high school and grade schools students enrolled in the different public schools
of the Province of Cebu and who belong to the religious group known as the Jehovah’s Witnesses;

2. That they rrefused to take part in the flag ceremony which includes playing by a band or singing
the Philippine National Anthem, saluting the Philippine Flag and reciting the patriotic pledge because
they considered the flag as an image and they should not worship it except GOD;

3. That because of their refusal to perform the foregoing acts as required by RA 1265 of July 11,
1955 and by Department Order No. 8 dated July 21, 1955 of the DECS making the flag ceremony
compulsory in all educational institutions, they were expelled by the respondent school authorities.

Hence this petition.

Issue:

May the petitioners be expelled for refusing to salute the flag, recite the patriotic pledge or sing the
national anthem in order to follow their religious beliefs?

Held:
The same issue was raised in Gerona vs. Secretary of Education, 106 Phil. 2 (1959) and Balbuna vs.
Secretary of Education, 110 Phil. 150 (1960) where the SC held that:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national
sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution
guarantee and protect. Under a system of complete separation of church and state in the
government, the flag is utterly devoid of any religious significance.

The law, RA 1265 was likewise incorporated in Executive Order No. 297, September 21, 1988.

Our task is extremely difficult for the 30-year old decision of this Court in GERONA upholding the
salute law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled
with.

The idea that one may be compelled to salute the flag, sing the national anthem, and recite the
patriotic pledge, during flag ceremony on pain of being dismissed from one’s job or be expelled in
school, IS ALIEN TO THE CONSCIENCE OF THE PRESENT GENERATION OF FILIPINOS WHO CUT
THEIR TEETH ON THE BILL OF RIGHTS WHICH GUARANTEES THEIR RIGHTS TO FREE SPEECH AND
THE FREE EXERCISE OF RELIGIOUS PROFESSION AND WORSHIP (Section 5, Art. III, 1987
Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest
protection among human rights, for it involves the relationship of man and his Creator (Chief Justice
Fernando’s separate opinion in German vs. Barangan, 135 SCRA 530).

The right to religious profession has a two-fold aspect, vis., freedom to believe and freedom to act
on one’s belief. The first is absolute as long as the belief is confined within the realm of the thought.
The second is subject to regulation where the belief is translated into external acts that affect the
public welfare.

The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according the Former Chief justice Teehankee in his dissenting opinion in German vs. Baranagan) is
the existence of a grave and present danger of a character both grave and imminent, of a serious
evil to public safety, public morals, public health or any other legitimate public interest, that the State
has the right and duty to presvent. Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified since they are not doing anything that could warrant their
expulsion since during flag ceremonies, they just quietly stand at attention to show their respect for
the rights of others who choose to participate in the solemn proceedings.

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, we upheld the exemption of the
members of the Iglesia ni Kristo from the coverage of the closed-shop agreement between the labor
union and the company because it would violate the teaching of their church not to join any labor
group.

We hold that a similar exemption may be accorded to the Jehovah’s Witnesses with regard to the
observance of the flag ceremony out of respect to their religious beliefs, however “bizarre” those
beliefs may seem to others.

Reference:
Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)
College of Law, University of the Cordilleras
Baguio City
 CONSTITUTIONAL LAW
CHAPTER VIII – THE CONSTITUTIONAL RIGHT TO TRAVEL
 
Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public health, as may be provided by law.
NOTE: THE APPLICABLE PROVISION OF THE HUMAN SECURITY ACT ON THE RIGHT TO TRAVEL
Section 26 provides that persons who have been charged with terrorism or conspiracy to commit
terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:
 Detained under house arrest;
 Restricted from traveling; and/or
 Prohibited from using any cellular phones, computers, or other means of communications with
people outside their residence.

Upon application of the prosecutor, the suspect’s right to travel shall be limited to the municipality or
city where he resides or where the case is pending, in the interest of national security and public
safety. Travel outside of said municipality or city, without the authorization of the court, shall be
deemed a violation of the terms and conditions of the bail which shall then be forfeited as provided
in the Rules of Court.

These restrictions shall be terminated upon acquittal of the accused; or the dismissal of the case
filed against him; or earlier upon the discretion of the court or upon motion of the prosecutor.

1. The constitutional as well as human right to travel,    129 SCRA

2. Read:

FERDINAND MARCOS, ET AL. VS. HON. RAUL MANGLAPUS, ET AL., G.R. NO. 88211, September 15,
1989 and the Resolution of the Motion for Reconsideration dated  October 27, 1989

Right to travel; liberty of abode and “right to return”

En banc
 
Cortes, J.

This is a petition for mandamus and prohibition asking the Supreme Court to Order the respondents
to issue travel documents to the petitioners and to enjoin the implementation of the President’s
decision to bar their return to the Philippines.

The case for the petitioners is founded on the assertion that their right to return to the Philippines is
guaranteed by the following provisions of the Constitution:
Section 1. No person shall be deprived of life liberty or property without due process of law, nor shall
any person  be denied equal protection of the laws.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except in the interest of national security, public safety or public health, as may be
provided by law.

The petitioners contend that the President has no power to impair the liberty of abode of the
Marcoses because only the Courts may do so “within the limits prescribed by law”. Nor may the
President impair the right to travel because no law has authorized her to do so.

Also, the petitioners claim that under international law, particularly the Universal Declaration of
Humjan Rights guaranteed the right of the Marcoses to return to the Philippines. Thus:

Art. 13 (1) Everyone has the right to freedom of movement and residence within the borders  of each
state.

(2) Everyone has the right to leave any country, including his own, AND TO RETURN TO HIS
COUNTRY.

Likewise, under the International Covenant on Civil and Political Rights, which had been ratified by
the Philippines, provides:

Art. 12

4) No one shall be arbitrarily deprived of the right to enter his own country.

The respondents argue that the issue in this case involves a political question which is therefore
beyond the jurisdiction of the Court. Furthermore, they argue that the right of the state to national
security prevails over individual rights, citing Section 4, Art. II of the 1987 Philippine Constitution.

Issue:

Whether or not, in the exercise of the powers granted in the Constitution, the President may prohibit
the Marcoses from returning to the Philippines.

The sub-issues, which could help in the determination of the main issue, are:

1. Does the President have the power to bar the Marcoses to return to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former Pres. Marcos and his family from
returning to the Philippines, in the interest of national security, public safety or public health, has the
President made a finding that the return of the petitioners to the Philippines is a clear and present
danger to national security, public welfare or public health. And if she has made that finding, have
the requirements of due process been complied with in making such finding? Has there been prior
notice to the petitioners?

Held:

It must be emphasized that the individual right involved in this case is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel connote.
Essentially, the right to return to one’s country, a totally distinct right under international law,
independent  from, though related to the right to travel. Thus, even the Universal declaration of
Human Rights and the International Covenant on Civil and Political Rights treat the right to freedom
of movement and abode within the territory of the state, the right to leave a country and the right to
enter one’s country as separate and distinct rights.

THE RIGHT TO RETURN TO ONE’S COUNTRY IS NOT AMONG THE RIGHTS SPECIFICALLY
GUARANTEED BY THE BILL OF RIGHTS, WHICH TREATS ONLY OF THE LIBERTY OF ABODE AND
THE RIGHT TO TRAVEL, BUT IT IS OUR WELL-CONSIDERED VIEW THAT THE RIGHT TO RETURN
MAY BE CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW, UNDER
OUR CONSTITUTION, IS PART OF THE LAW OF THE LAND.
To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the  President’s
RESIDUAL POWER to protect the general welfare of the people.

The court cannot close its eyes to present realities and pretend that the country is not besieged by
the insurgency, separatist movement in Mindanao, rightist conspiracies to grab power, etc. With
these before her, the President cannot be said to have acted arbitrarily, capriciously and whimsically.

Lastly, the issue involved in the case at bar is not political in nature since under Section 1, Art. VIII of
the Constitution, judicial power now includes the duty to “determine whether or not  there has been a
grave abuse of discretion amounting to lack of jurisdiction on the part of any branch or
instrumentality of the government.”

NOTE:

The main opinion was concurred in by 7 justices (CJ Fernan,  Narvasa, Melencio-Herrera, Gancayco,
Grino-Aquino, Medialdea and Regalado) or a total of 8 justices in voting in favor of DISMISSING the
petition. Seven justices filed separate dissenting opinions (Gutierrez, Jr., Cruz, Paras, Feliciano,
Padilla, Bidin and Sarmiento).

***********************

Gutierrez, Jr., J., dissenting.

With all due respect for the majority in the Court that the main issue in this case is not one of power
but one on RIGHTS. If he comes home, the government has the power to arrest and punish him but
does it have the power to deny him his right to come home and die among familiar surroundings? x x
x The government has more than ample powers under existing laws to deal with a person who
transgresses the peace and imperils public safety. BUT THE DENIAL OF TRAVEL PAPERS IS NOT
ONE OF THOSE POWERS BECAUSE THE BILL OF RIGHTS SAY SO. THERE IS NO LAW PRESCRIBING
EXILE IN FOREIGN LAND AS THE PENALTY FOR HURTING THE NATION.

1. The fears expressed by its representatives were based on mere conjectures of political and
economic destabilization without any single piece of concrete evidence to back up their
apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist “factual bases for the
President’s decision” to bar Marcos’s return. That is not my recollection of the impressions of the
Court after the hearing.

2. Silverio vs. CA, April 8, 1991

Read also:

1. Caunca vs. Salazar, 82 Phil. 851

2. Kwong vs. PCGG, December 7,l987

3. Manotoc vs. CA, 142 SCRA 149

1.   Petitioner Ricardo Manotoc, Jr. has 6 criminal cases for estafa pending against him. In said
cases he was admitted to bail with the FGU Insurance Corporation as surety.

He is also involved in a case pending before the Securities and Exchange Commission.

2.   The SEC requested the Commissioner on Immigration not to clear petitioner for departure
pending disposition of the case involving him. The same was granted by the Commissioner.

3.   Petitioner subsequently filed before the trial courts a motion entitled “motion for permission to
leave the country” stating as ground therefor his desire to go to the United States, “relative to his
business transactions and opportunities”.

4.   The motion was denied by the lower courts and the matter was elevated to the Court of Appeals
which also denied the same. Petitioner brings the matter to the S.C. claiming his constitutional right
to travel and also contending that having been admitted to bail as a matter of right, neither the
courts which granted him bail nor the SEC would have jurisdiction over his liberty.

HELD:
Petition denied.

a.   A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is a
necessary consequence of the nature and function of a bail bond. The condition imposed upon
petitioner to make himself available at all times whenever the court requires his presence operates
as a valid restriction on his right to travel.

b.   “x  x  x the result of the obligation assumed by appellee to hold the accused amenable at all
times to the orders and processes of the lower court, was to prohibit the accused from leaving the
jurisdiction of the Philippines, because, otherwise, said orders and processes will be nugatory, and
inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that of
the Philippines they would have no binding force outside of said jurisdiction.”(People vs. Uy Tuising,
61 Phil. 404 (l935)

c.   To allow the petitioner to leave the Philippines without sufficient reason would place him beyond
the reach of the courts.

d.   Petitioner cites the Court of Appeals case of People vs. Shepherd (C.A.-G.R. No. 23505-R, Feb. 13,
1980) as authority for his claim that he could travel. The S.C. held however that said case is not
squarely on all fours with the case at bar. Unlike the Shepherd case, petitioner has failed to satisfy
the courts of the urgency of his travel, the duration thereof, as well as the consent of his surety to
the proposed travel.

e.   It may thus be inferred that the fact that a criminal case is pending against an accused does not
automatically bar him from travelling abroad. He must however convince the courts of the urgency
of his travel, the duration thereof, and that his sureties are willing to undertake the responsibility of
allowing him to travel.

4. Villavicencio vs. Lukban, 39 Phil. 778

5. Roan vs. Gonzales, supra.

6. Salonga vs. Hermoso, 97 SCRA 121

7. Read also the Ferdinand Marcos Cases of August         & October, 1989

Reference:
Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)
College of Law, University of the Cordilleras
Baguio City