Bill of Rights by Atty. Anselmo S.

Rodiel IV
A. Concept of Bill of Rights
1. Privacy and autonomy
1. The Bill of Rights establishes the relationship of a person to the State,
and defines the rights of the individual by limiting the lawful powers of the
State. (People v Marti, 1991)
2. The Bill of Rights does not govern relationships between individuals; it
cannot be invoked against the acts of private individuals. (Remegio v
People, 2017)
1. However, the Court allowed the invocation of the right to privacy of
communication by the husband against the wife. Hence, the
documents gathered from the clinic without his consent shall be
inadmissible in evidence, as provided by Sec. 3(2), Art. III. (Zulueta v
CA, 1996)
2. In the case of Dela Cruz v. People, 779 SCRA 34 (2016), involving
civilian port personnel conducting security checks, the Supreme Court
(SC) thoroughly discussed that while the Bill of Rights under Article III
of the 1987 Constitution generally cannot be invoked against the acts
of private individuals, the same may nevertheless be applicable if such
individuals act under the color of a state-related function.
1. One of the arguments presented in the instant petition is that the
search and arrest made on petitioner were illegal and, thus, the
marijuana purportedly seized from him is inadmissible in evidence.
In this relation, it is worth noting that his arresting officers, i.e., BB
Bahoyo and BB Velasquez, are mere Bantay Bayan operatives of
Makati City. Strictly speaking, they are not government agents like
the Philippine National Police (PNP) or the National Bureau of
Investigation in charge of law enforcement; but rather, they are
civilian volunteers who act as “force multipliers” to assist the
aforesaid law enforcement agencies in maintaining peace and
security within their designated areas. Particularly, jurisprudence
described the nature of Bantay Bayan as “a group of male
residents living in [the] area organized for the purpose of keeping
peace in their community[, which is] an accredited auxiliary of the
x x x PNP.”
2. The Supreme Court (SC) is convinced that the acts of the Bantay
Bayan — or any barangay-based or other volunteer organizations
in the nature of watch groups — relating to the preservation of
peace and order in their respective areas have the color of a
state-related function. As such, they should be deemed as law
 enforcement authorities for the purpose of applying the Bill of
Rights under Article III of the 1987 Constitution to them. Miguel
vs. People, 833 SCRA 440, G.R. No. 227038 July 31, 2017.
2. Relation to human rights
1. The Universal Declaration of Human Rights, the International Covenant on
Economic, Social, and Cultural Rights, and the International Covenant on
Civil and Political Rights, suggests that the scope of human rights can be
understood to include those that relate to an individual’s social, economic,
cultural, political and civil relations. These broad concepts are equally
contemplated by the framers of the Constitution in adopting the Bill of
Rights and the creation of the Commission on Human Rights. (Simon v
CHR, 1994)
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B. Due process of law
1. Concept of right to life, liberty, and property
1. Life - this guarantees essentially the right to be alive - upon which the
enjoyment of all other rights is preconditioned. (Mamba v Bueno, 2017)
2. Liberty - the right to exist and the right to be free from arbitrary restraint
or servitude. It is not merely freedom from physical restraint but also the
right to enjoy his facilities, subject only to restraint that is necessary for
the common welfare. (City of Manila v Laguio, 2005)
3. Property - it means anything that can come under the right of ownership
and be the subject of contract.
2. Kinds of due process
1. Substantive
1. Substantive due process refers to the intrinsic validity of a law that
interferes with the person’s life, liberty, or property. Violation of
substantive due process makes the law unconstitutional.
2. Publication of laws is part of substantive due process. (Tañada v
Tuvera)
3. Requisites of substantive due process: (PRODUC - Public policy;
Regulate trade; Oppressive; Discriminatory; Unreasonable;
Contravene Constitution)
1. It must not contravene the Constitution or any statute;
2. it must be fair, not oppressive;
3. it must not be partial or discriminatory;
4. it must not prohibit but may regulate trade;
5. it must be general and consistent with public policy; and
6. it must not be unreasonable.
1. Hence, an invalid exercise of police power is unconstitutional
because it violates substantive due process. In the Bar, use
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the requisites of police power instead.

2. GITO: To determine if the substantive due process is
complied with, APPLY THE POLICE POWER TEST.
3. The same are the requisites for a valid ordinance.
4. Tests of judicial scrutiny in relation to substantive due process:
1. Strict scrutiny - there must be (1) a compelling State interest,
and (2) the means used is the least restrictive means to protect
such interest or the means chosen is narrowly tailored to
accomplish the interest.
2. Intermediate scrutiny - there must be (1) an important
governmental objective and (2) the means is substantially related
to the achievement of such objective.
3. Rational basis - the test requires only that (1) there be a
legitimate government interest and that (2) there is a reasonable
connection between it and the means employed to achieve it.
(SPARK v Quezon City, 2017)
1. Strict scrutiny - applies when it interferes with fundamental
rights, or burdens suspect classes, such as protection of
public health and safety, regulation of violent crime, the
requirements of national security and military necessity, and
respect for fundamental rights. (Commonly used test because
laws are not challenged unless fundamental rights are
violated)
2. Intermediate scrutiny - does not involve suspect classes or
fundamental rights, such as gender or legitimacy
3. Rational basis - applies to all other subjects not covered by
the first two tests.
1. In the Bar, you can use either the requisites of police
power or the tests of judicial scrutiny.
5. NOTE: The applicable requisites must change depending on the
categorial question. Do not use the tests of police power if the
question is “was due process violated.”
6. The Mayor of Davao City approved an ordinance imposing a ban
against aerial spraying of pesticides as an agricultural practice by all
agricultural entities within Davao City. The ordinance states that said
ban will take effect 3 months after the said publication in the
newspaper of general circulation. The agricultural associations, as
well as agricultural corporations, are now challenging the said
ordinance for being violative of the Due Process Clause for being
oppressive given that said corporations only has 3 months to comply
considering that the shift to another method from aerial spraying
requires large costs and long periods of time. Was there a violation of
the Due Process Clause in the implementation of the said ordinance?
 1. Yes, there is a violation of the Due Process Clause for being
oppressive. In order to declare one as a valid piece of local
legislation, it must also comply with the following substantive
requirements, namely:
1. it must not contravene the Constitution or any statute;
2. it must be fair, not oppressive;
3. it must not be partial or discriminatory;
4. it must not prohibit but may regulate trade;
5. it must be general and consistent with public policy; and
6. it must not be unreasonable.
2. The ordinance is unreasonable and oppressive in that it sets the
effectiveness of the ban at three months after publication of the
ordinance. The impossibility of carrying out a shift to another
mode of pesticide application within three months can readily be
appreciated given the vast area of the affected plantations and
the corresponding resources required therefor. Thus, the
conversion to other methods will not be completed in three
months. This would result to affected entities to face the
consequences of the ban. (Mosqueda v. Pilipino Banana Growers
& Exporters Association, G.R. No. 189185, August 16, 2016)
2. Procedural
1. Procedural due process refers to the regular methods of procedure
to be observed before one‘s life, liberty, or property can be taken
away. Violation of this makes the proceeding invalid.
2. The minimum requirements are notice and hearing. (Ynot v IAC,
1987)
3. The twin rights may be dispensed with, when there is:
1. A conclusive presumption, or
2. An urgent need for immediate action, such as:
1. Summary abatement of nuisance per se, i.e., mad dog on the
loose, pornographic materials, contaminated meat, narcotic
drugs, filthy restaurants
2. Preventive suspension of a public officer charged with
violation of AGCP
3. Cancellation of passport of a person sought fo criminal
prosecution
4. Issuance of ex parte TRO with a period of 72 hours
4. Judicial
1. Judicial power - That the impartial court or tribunal trying the
case is properly clothed with judicial power to hear and determine
the matter before it;
2. Jurisdiction over person - That jurisdiction is lawfully acquired
by it over the person of the accused;
 3. Opportunity to be heard - That the accused is given an
opportunity to be heard. To be heard does not mean verbal
arguments in court, as one may be heard also through pleadings;
4. Judgment lawful hearing - That judgment is rendered only upon
lawful hearing. (Allonte vs Savellano)
5. Administrative
1. Presentation
1. Right to present - it includes right to present one‘s case and
submit evidence to support thereof. A trial type hearing is not
necessary;
2. Independent consideration - The tribunal or body or any of
its judges must act on its own Independent consideration of
the law and facts of the controversy;
3. Consider evidence - The tribunal must consider the evidence
Presented;
2. Decision
1. Substantial evidence - Evidence presented must be
substantial, which means relevant evidence as a reasonable
mind might accept as adequate to support a conclusion;
2. Support - The decision must have something to support
itself;
3. Based evidence presented - The decision must be based on
evidence presented during hearing or at least contained in the
record and disclosed by the parties; and
4. Know the issues and reasons -The decision must be
rendered in a manner that the parties can know the various
issues involved and the reason for the decision rendered (Ang
Tibay v. Court of Industrial Relations).
3. Administrative due process cannot be fully equated with due
process in its strict judicial sense, for in the former a formal or trial
type hearing is not always necessary, and technical rules of
procedure are not strictly applied.
1. The essence of due process is to be heard, and, as applied to
administrative proceedings, this means a fair and reasonable
opportunity to explain one’s side, or an opportunity to seek a
reconsideration of the action or ruling complained of. Nestlè
Philippines, Inc. v. Benny A. Puedan, Jr., et al., G.R. No.
220617, January 30, 2017.
4. Due process in administrative proceedings does not require the
submission of pleadings or a trial-type of hearing.
1. Due process is satisfied if the party is duly notified of the
allegations against him or her and is given a chance to present
his or her defense. Furthermore, due process requires that the
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proffered defense should have been considered by the

tribunal in arriving at its decision. Bangko Sentral ng
Pilipinas v. Commission on Audit, G.R. No. 213581,
September 19, 2017.
6. Educational Institution
1. Informed charge
1. Informed writing - The students must be informed in
WRITING of the nature and cause of any accusation against
them;
2. Right to answer counsel - They shall have the right to
answer the charges against them with the assistance of
counsel, if desired:
2. Informed evidence
1. Informed evidence - They shall be informed of the evidence
against them;
2. Right to adduce evidence - They shall have the right to
adduce evidence in their own behalf; and
3. Evidence duly considered - The evidence must be duly
considered by the investigating committee or official
designated by the school authorities to hear and decide the
case (ADMU vs Judge Capulong).
7. Preliminary investigation
1. There is no law or rule requiring the investigation prosecutor to
furnish the respondent with the copies of the counter-affidavits of
co-respondents.
2. The rights of a respondent in a preliminary investigation are
limited to those granted by procedural law.
1. Justice J.B.L. Reyes, writing for the Court, emphatically
declared in Lozada v. Hernandez, that the "rights conferred
upon accused persons to participate in preliminary
investigations concerning themselves depend upon the
provisions of law, rather than upon the phrase ‘due process of
law’." This reiterates Justice Jose P. Laurel’s oft-quoted
pronouncement in Hashim v. Boncan that "the right to a
preliminary investigation is statutory, not constitutional." In
short, the rights of a respondent ina preliminary investigation
are merely statutory rights, not constitutional due process
rights.
3. Further, a preliminary investigation is not a quasi-judicial
proceeding since "the prosecutor in a preliminary investigation
does not determine the guilt or innocence of the accused.
(Bondoc v Tan, 2010)
1. Hence, it is not part of constitutional due process.
 8. Extradition
1. Neither the treaty nor the extradition law precludes these rights
from a prospective extradite. An application of the basic twin due
process rights of notice and hearing will not go against the treaty
or the implementing law (Sec. of Justice v. Lantion).
9. Deportation
1. Criminal procedure - Although a deportation proceeding does
not partake of the nature of a criminal action, considering that it is
a harsh and extraordinary administrative proceeding affecting the
freedom and liberty of a person, the constitutional right of such
person to due process should not be denied. Thus, the provisions
of the Rules of Court of the Philippines particularly on criminal
procedure are applicable to deportation proceedings (Lao Gi
Chia‖, Sr. v. CA).
10. Two criminal Informations was filed against W, X, Y, and Z charging
them with two counts of carnapping for allegedly holding up and
robbing M taking his motorcycle, Seiko watch, t-shirt, and wallet. M
was invited by the police to identify his assailants. Prior to said
presentation, M had not described his assailants to the police. At the
police station, the police presented to M four (4) persons to be
identified. M pointed to X, Y and Z as the persons who robbed him.
The RTC found X and Y guilty of carnapping on the sole basis of M’s
out-of-court identification. X filed an appeal arguing that the out-of-
court identification was not valid as it was conducted through a
police show-up, not a lineup, since only the four (4) suspects were
presented to M for identification. X argues that the procedure
conducted by the police officers in identifying the perpetrators of
the crime charged is seriously flawed and gravely violated the X's
right to due process, as it denied them their right to a fair trial to the
extent that their in-court identification proceeded from and was
influenced by impermissible suggestions. Is X correct?
1. Yes, X is correct. An out-of-court identification such as a police
show-up is inadmissible if it is tainted with improper suggestions
by police officers. Due process was not complied in the out-of-
court identification of the sole witness as it did not pass the
totality of circumstances test.
2. The court citing People v. Teehankee, Jr., stated that out-of-court
identification is conducted by the police in various ways. Courts
have fashioned out rules to assure its fairness and its compliance
with the requirements of constitutional due process. In resolving
the admissibility of and relying on out-of-court identification of
suspects, courts have adopted the totality of circumstances test
where they consider the following factors, viz: (1) the witness'
 opportunity to view the criminal at the time of the crime; (2) the
witness' degree of attention at that time; (3) the accuracy of any
prior description given by the witness; (4) the level of certainty
demonstrated by the witness at the identification; (5) the length
of time between the crime and the identification; and, (6) the
suggestiveness of the identification procedure.
3. Here, the Court ruled that the identification did not pass the
totality of circumstances test to comply with due process for the
following reasons the out-of-court identification was tainted with
improper suggestion. The Court found that the identification was
tainted with improper suggestion for the following reasons: M was
invited by the police to identify his assailants knowing that he
would meet his assailants; The police showed four people which is
the same number of people that attacked him; and, there was no
prior description of his assailants, it was highly likely that M's
identification was tainted with apparent suggestiveness (Concha
v. People, G.R. No. 208114, October 3, 2018, J. Leonen).
11. X filed a complaint against Judge Y for nullifying X’s marriage
without X even knowing about it. Based on the records, no hearing
was conducted on the case at all. Judge Y was dismissed from the
service in another case dishonesty, gross ignorance of the law, gross
misconduct, and incompetency for, among others, disposing of
nullity and annulment marriages with "reprehensible" haste. Judge Y
died on April 10, 2018 from acute respiratory failure while the
administrative complaint was pending. The Office of the Court
Administrator (OCA) recommended that the case be dismissed
because continuing would violate due process. Is the OCA correct?
1. Yes. Administrative proceedings require that the respondent be
informed of the charges and be given an opportunity to refute
them. Even after judgment is rendered, due process requires that
the respondent not only be informed of the judgment but also be
given the opportunity to seek reconsideration of that judgment.
This is the true definition of the opportunity to be heard.
2. The opportunity to be heard can only be exercised by those who
have resigned or retired. The reason is obvious: They are still
alive. Even if they cease to hold public office, they can still be
made aware of the proceedings and actively submit pleadings.
Dead respondents have no other recourse. They will never know
how the proceedings will continue, let alone submit responsive
pleadings. They cannot plead innocence or beg clemency. Death
forecloses any opportunity to be heard. To continue with the
proceedings is a violation of the right to due process (Flores-
Concepcion v. Castañeda, A.M. No. RTJ-15-2438 (Resolution),
 Sept. 15, 2020, J. Leonen).
12. Notice and hearing are the essential requirements of procedural due
process. Yet, there are many instances under our laws in which the
absence of one or both of such requirements is not necessarily a
denial or deprivation of due process.
1. The immobilization of illegally parked vehicles by clamping the
tires was necessary because the transgressors were not around at
the time of apprehension. Under such circumstance, notice and
hearing would be superfluous. Nor should the lack of a trial-type
hearing prior to the clamping constitute a breach of procedural
due process, for giving the transgressors the chance to reverse
the apprehensions through a timely protest could equally satisfy
the need for a hearing. In other words, the prior intervention of a
court of law was not indispensable to ensure a compliance with
the guaranty of due process. Valentino L. Legaspi v. City of
Cebu, G.R. Nos. 159110 & 159692, December 10, 2013.
13. R.A. 9262 is not violative of the due process clause of the
Constitution.
1. Just like a writ of preliminary attachment which is issued without
notice and hearing because the time in which the hearing will take
could be enough to enable the defendant to abscond or dispose
of his property, in the same way, the victim of Violence Against
Women and Children may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even
death, if notice and hearing were required before such acts could
be prevented. (Garcia v Drilon, 2013)
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C. Equal protection of laws
1. Concept
1. When is equal protection clause violated?
1. When the law makes a classification, when there should have been
none.
2. When the law does not make a classification, when there should have
been one.
2. Requisites for valid/reasonable classification (SGEE)
1. Substantial distinction which makes for real differences
2. Germane to the purpose of law
3. Not limited to Existing conditions
4. Applies Equally to all members of the same class.
(People v Cayat)
3. Levels of scrutiny to determine if classification/distinction is reasonable
 1. Strict scrutiny test
2. Intermediate scrutiny test
3. Rational basis test
1. The notes mentioned in substantive due process shall apply here.
2. In the Bar, if there is valid classification, we stick to the requisites.
3. In the Bar, if there is invalid classification, we stick to the requisites. In
addition, we use the levels of scrutiny to prove the absence of
substantial distinction.
4. Mendoza v People, 2011
1. RA 9903 - granting condonation to employer with delinquent contributions
or pending cases for their delinquencies and who pay their delinquencies
within 6 month from the effectivity of law.
2. Why are those who want to pay outside the period not allowed to do so?
1. There is substantial distinction between those who were able to pay
within the period and those who want to pay outside the period
2. In limiting the benefits of RA No. 9903 to delinquent employers who
pay within the six (6)-month period, the legislature refused to allow a
sweeping, non-discriminatory condonation to all delinquent
employers, lest the policy behind RA No. 8282 be undermined.
3. If you do not follow the condition provided by law, you are not entitled
to the benefits.
5. Quinto v COMELEC, 2010
1. Why are appointive officials ipso facto resigned when COC is filed, while
elective officials are not ipso facto resigned?
2. There is substantial distinction between these two officials.
3. The nature of the function of elective officials is to be engaged in partisan
political activity. The same is not true for appointive officials.
6. Goldenway v Equitabe PCI, 2013
1. Redemption period of property owners of mortgaged real property, i.e., 1
year for natural persons, while 3 months for juridical persons.
2. There is substantial distinction between juridical persons and natural
persons.
3. The property mortgaged by juridical persons are for business purposes,
while it is residential purposes for natural persons.
7. Garcia v Drilon, 2013
1. RA 9262 - VAWC, in favoring women over men as victims of violence and
abuse.
2. There are also men who are victims of abuse, so why is VAWC exclusive to
women?
3. The distinction lies on the unequal power relationship between women and
men. The fact that women are more likely than men to be victims of
violence, and the wide spread gender bias and prejudice against women
all make real differences that justify classification under the law.
 8. Imbong v Ochoa, 2014
1. Conscientious objector - government health workers are duty-bound to
follow RH law despite being offensive to their religion, while private health
workers are allowed to not follow RH law.
2. This is unconstitutional.
3. There is no substantial distinction between public health workers and
private health workers.
9. PJA v Prado
1. Why is franking privilege free for executive and legislative, while it is
onerous for judiciary?
2. There is no substantial distinction .
10. BOC Employees v Teves, 2011
1. The system of rewards and sanctions provided for under the Attrition law
for the benefit of employees of BIR and BOC.
2. The Attrition law provides that BIR and BOC employees can only have
bonuses if they meet their quotas.
3. Why is it Attrition Law is limited only to BOC and BIR, and not to other
government employees?
4. Because they perform a special function which is collect taxes, the life
blood of the government.
5. Hence, there is substantial distinction between BIR/BOC employees and
other government employees.
11. Ormoc Sugar v Treasurer of Ormoc City
1. The ordinance imposing 1% per export sale of any and all production of
sugar milled at Ormoc Sugar Co.
2. Is this invalid? Yes.
3. It is limited to existing conditions only. It does not apply to future
conditions, i.e., when other sugar companies build sugar mills in the
future.
4. Further, there is no substantial distinction between Ormoc Sugar Co, and
other sugar milling companies which will be organized in the future.
12. Serrano v Gallant, 2009
1. “Unexpired portion of his employment contract OR for 3 months for every
year of unexpired term, whichever is less.”
2. There is no substantial distinction between OFWs with less than 1 year
unexpired term, and OFWs with more than 1 year unexpired term.
3. There is no reason why those with longer unexpired term shall have a
LESSER entitlement than those with shorter unexpired term.
4. Hence, the phrase “for 3 months for every year of unexpired term” is held
unconstitutional, because it violations equal protection of law.
13. Can the Congress re-enact a law which was declared unconstitutional by the
Court?
1. No.
 2. Once the Court declares it unconstitutional, it cannot be re-enacted,
unless there is change of relations between the parties.
3. Thus, when a law or a provision of law is null because it is inconsistent
with the Constitution, the nullity cannot be cured by reincorporation or
reenactment of the same or a similar law or provision. A law or provision of
law that was already declared unconstitutional remains as such unless
circumstances have so changed as to warrant a reverse conclusion.
(Sameer v Cabiles, 2014, Leonen)
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D. Right against unreasonable searches and seizures
1. Concept of privacy (not precisely stated in Art. III)
1. The right to privacy has been concisely defined as the right to be left
alone. It has also been defined as the right of a person to be free from
unwarranted publicity, and the right to live without interference by the
public, in matters with which the public is not necessarily concerned.
(Spouses Hing v Choachuy, 2013)
2. What are included in right to privacy?
1. Locational or situational privacy - right to move without their location
being disclosed
2. Decisional Privacy – right to independence in making certain
important decisions. (Imbong v Ochoa, 2014)
3. Informational Privacy – right in avoiding of disclosure of personal
matters, i.e., private information and surveillance
(Disini v Sec. of Justice; Spouses Hing v Choachuy; Data Privacy Act)
3. How to determine if right to privacy was violated? “Reasonable
expectation of privacy”
1. The "reasonable expectation of privacy" test is used to determine if
the right to privacy was violated.
2. It involves a two-part test:
1. Subject test (individual) - the individual, by his conduct, had
expectation of privacy; and
2. Object test (society) - the society recognizes that his
expectation is reasonable. (Ople v Torres; Vivares v St Therese
College)
1. As example, 1) by posting photos viewable to friends, there is
no expectation of privacy, and 2) the society does not
recognize the expectation as reasonable. Hence, the photos
obtained shall be admissible in evidence, since the right to
privacy was not violated.
4. Intrusion, When Allowed (Gathered from right to privacy in comm/corres)
1. By lawful order of the court; or
 1. Probable cause, among others in Sec. 2, should be followed by
the court to allow intrusion.
2. Particularity of description is needed for written correspondence,
3. However, for wire-taps and the like, there is no need to describe
the content. However, identity of the person or persons whose
communication is to be intercepted, the offense or offenses
sought to be prevented, and the period of the authorization given
should be specified.
4. That a law is required before an executive officer could intrude on
a citizen’s privacy rights is a guarantee that is available only to
the public at large but not to persons who are detained or
imprisoned. Hence, pre-trial detainees and convicted prisoners
have a diminished expectation of privacy rights.
1. Hence, the items coming to or from the prisoners are subject
to reasonable measures to secure the safety of the detainee
and the jail and to prevent his escape. (Alejano v. Cabuay,
2005)
2. When public safety or order requires otherwise, as may be provided
by law. (Sec. 3(1), Art. III)
5. For public figures, the right to privacy is NOT absolute
1. A limited intrusion into a person's privacy has long been regarded as
permissible where (1) that person is a public figure and (2) the
information sought to be elicited from him or to be published about
him constitute matters of a public character.
2. The interest sought to be protected by the right of privacy is the right
to be free from the wrongful publicizing of the private affairs and
activities of an individual which are outside the realm of legitimate
public concern (Ayer Productions PTY Ltd. V. Capulong).
1. Hence, the right to privacy of a public officer is not violated if the
media publishes an article regarding anomalies in his office.
However, it is violated if the media does the same regarding his
family problems.
6. Right of privacy v Freedom of Access to Information
1. The Court held that personal matters are exempt or outside the
coverage of the people’s right to information on matters of public
concern. The data treated as “strictly confidential” under EO 420
being matters of public concern, these data cannot be released to the
public or the press. (Kilusang Mayo Uno v Director-General, NEDA,
2006)
7. Other provisions in the Constitution, laws, and rules which tackle privacy
1. Art. III, Sec. 1 – Due Process Clause
2. Art. III, Sec. 2 – Right against unreasonable searches and seizure
3. Art. III, Sec. 3 – Privacy of communication and Correspondence
 4. Art. III, Sec. 8 – Right to Form Association
5. Art. III, Sec. 6 – Liberty of Abode and travel
6. Art. III, Sec. 17 – Right Against Self Incrimination
7. The Civil Code punishes the person meddling and prying into the
privacy of another. (Art. 26, NCC)
8. Invasion of privacy is an offense in special laws like the Data Privacy
Act, the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act,
Intellectual Property Code, and Anti-Photo and Video Voyeurism Act.
9. The Rules of Court on privileged communication likewise recognize
the privacy of certain information (Ople vs Torres).
2. Concept of search
1. The Constitutional guarantee does NOT prohibit all forms of search and
seizures. It is only directed against those which are UNREASONABLE.
(Veridiano v People, 2017, Leonen)
1. To be reasonable, there must be:
1. A valid warrant, or
2. A valid warrantless search/arrest.
2. The right to be secure is available to aliens and juridical persons.
(Stonehill v Diokno)
3. The right to be secure is a personal right. It may be invoked only by the
person entitled to it. Further, it can only be waived by him. (Stonehill v
Diokno)
4. The protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals, without intervention of
police officers. (People v Marti)
1. Example is search conducted by security guards of private
establishments.
2. However, search by barangay tanod is covered by Sec. 2, because he
is an agent of person in authority.
5. As a rule, only the judge has the power to issue a warrant.
1. As an exception, the Bureau of Immigration may issue warrants to
carry out a final finding of a violation, such as a legal order of
deportation issued by the Commissioner of Immigration, in pursuance
of a valid legislation. Hence, Sec. 2 does not extend to deportation
proceedings. (Morano v Vivo)
3. Requisites of a valid warrant (PPOP)
1. Probable cause
2. Determined Personally by a Judge after examination
3. Under Oath or affirmation of the complainant and the witnesses he may
produce
4. Particularly describing the place to be searched and the person or things
to be seized. (Sec. 2, Art. III)
1. Probable cause:
 1. Probable cause is merely “probability” and not “absolute
certainty.”
2. SW - facts and circumstances that would lead a reasonably
prudent man to believe that an offense has been committed and
that the objects sought in connection with that offense are in the
place to be searched. (Sy Tan v Sy Tiong Gue, 2010)
3. WOA - facts and circumstances that would lead a reasonably
prudent man to believe that an offense has been committed by
the person sought to be arrested. (Webb v De Leon, 1995)
2. For search warrant; personal examination:
1. The personal examination under oath or affirmation must be in
writing and in the form of searching questions and answers.
1. The oath must be made in such a manner that perjury could
be charged and the affiant be held liable for damages caused.
(Alvarez vs CFI)
1. The search questions and answers must be probing and
exhaustive and not merely routinary or pro forma. (Roan v
Gonzales, 1986)
2. Further, the complainant and/or witnesses must be examined on
facts personally known to them.
3. Lastly, the judge must attach to the record the sworn statements
and the affidavits submitted. (Sec. 5, Rule 126; Prudente v Judge
Dayrit, 1989)
3. For warrant of arrest; personal evaluation:
1. The judge need not personally examine the complainant and the
witnesses he may produce.
2. It is sufficient if he personally evaluates the report and the
supporting documents submitted by the prosecutor regarding the
existence of probable cause.
3. If on the basis thereof, the judge finds no probable cause, he may
disregard the report and require the submission of supporting
affidavits to aid him in arriving in the concluding the existence of
probable cause. (Soliven v Makasiar, 1988)
1. For warrant of arrest, probable cause during preliminary
investigation can be established with hearsay evidence.
(Estrada v Ombudsman, 2015)
2. Hence, the judge may personally evaluate a fiscal’s report
containing hearsay evidence.
3. To recall, in search warrant, the complainant/witnesses must
be examined on facts personally known to them
4. Particularity
1. For search warrant:
1. It was held that the Constitution does not require the warrant
 1.
to name the person who occupies the described premises.
(Miller v Sigler)
2. The test of particularity for the place to be searched is as
follows: whether the description is sufficient and descriptive
enough to prevent a search of other premises located within
the surrounding area or community. (Diaz v People, 2020)
3. The tests of particularity of the things to be seized are as
follows: (DIRECT RELATION)
1. When the description described therein is as specific as
the circumstances will ordinarily allow;
2. When the description expresses conclusion of fact, not of
law, by which the warrant officer may be guided in making
the searches and seizures;
3. When the things described are limited to those which
bear direct relation to the offense for which the warrant is
being issued. (Bache & Co. v Ruiz, 1971; Uy v BIR, 2000)
2. For warrant of arrest
1. It is said to particularly describe the person to be seized, if it
contains some description, which will enable the officer to
identify the accused. (People v Veloso, 1925)
2. For both, the place must be particularly described.
3. What is a “general” warrant?
1. General warrant is defined as a warrant that is not particular
as to the place to be searched or the person or the property
to be seized. Hence, it gives the officer the discretion over
which place to search and the persons or properties to seize.
(World Wide Web Corporation v People, 2014)
4. What is a “scatter-shot” warrant?
1. A “scatter-shot warrant” is a search warrant issued for more
than one (1) specific offense. It also violates the constitutional
requirement of particularity. (Tambasen vs. People,1995).
5. The search warrant is merely for dangerous drugs. However, the
police officers also found a firearm in the place searched. Is the
firearm admissible as evidence?
1. No. The search warrant is limited to those things particularly
described.
2. What happens to the firearm? It would merely be confiscated
for being a contraband. (Gabriel)
5. No presumptions of regularity are to be invoked in aid of the process
when an officer undertakes to justify under it. (Uy v BIR, 2000)
6. A search warrant is severable; lack of particularity with certain things
does not render the others void. (Uy v BIR, 2000)
7. The judge issued warrant of arrest when the prosecution only
 7.
submitted the resolution and affidavits of the complainant. The
prosecutor did not attach copies of the affidavit of witnesses and the
counter-affidavit of the respondent. The judge committed grave abuse
of discretion. (Okabe v Judge Gutierrez, 2004)
4. Warrantless Searches and Seizures
1. Consented searches
1. There must be clear and convincing evidence of waiver. Otherwise,
there is no waiver. (Caballes v CA, 2002)
2. The police officer must communicate this clearly and in a language
known to the person who is about to waive his or her constitutional
rights. There must be an assurance given to the police officer that the
accused fully understands his or her rights. It is not sufficient that the
police officer introduce himself, or be known as a police officer.
People vs. Cogaed, 731 SCRA 427, G.R. No. 200334 July 30,
2014, Leonen
3. To determine if there is “consent,” the totality of the circumstances
must be determined, such as
1. the age of the defendant;
2. whether the defendant was in a public or a secluded location;
3. whether the defendant objected to the search or passively looked
on;
4. the education and intelligence of the defendant;
5. the presence of intimidating/coercive police procedures, and
others.
4. In Veridiano v People, 2017, Leonen, mere passive conformity or
silence to the warrantless search is only an implied acquiescence,
which amounts to no consent at all. The presence of intimidating/
coercive environment negates the claim that petitioner consented to
the warrantless search.
5. In People v Cogaed, 2014, Leonen, Cogaed's silence or lack of
aggressive objection was a natural reaction to a coercive environment
brought about by the police officer's excessive intrusion into his
private space. The prosecution and the police carry the burden of
showing that the waiver of a constitutional right is one which is
knowing, intelligent, and free from any coercion. In all cases, such
waivers are not to be presumed.
6. NOTE: In the Bar, lean towards NO consent, since there is always a
presence of intimidating or coercive environment brought about by
the police.
2. Search incident to lawful arrest (Rule 126, Sec. 13)
1. A person lawfully arrested may be searched for dangerous weapons
or anything which may have been used or constitute proof in the
commission of an offense without a search warrant.
 2. The cardinal rule on searches incidental to lawful arrest is that there
first be a lawful arrest before a search can be made. (Vaporoso v
People; In the Matter of Petition for Writ of Amparo of Vivan A.
Sanchez, 2019, Leonen) In other words, a valid arrest must precede
the search, the process cannot be reversed.
3. The search may be made only within the permissible area of search,
or the place within the immediate control of the person being
arrested (Espano vs CA).
1. How to determine if there is a lawful arrest? We check if there is 1)
a warrant of arrest, 2) an in flagrante delicto arrest, or 3) a hot
pursuit. If none is present, the search incidental to the arrest is
invalid because the arrest was UNLAWFUL.
2. What if the search happens first before the arrest was made? The
rule on search incident to lawful arrest shall NOT apply. For the
search to become valid, the peace officer must show that another
exception, such as stop-and-frisk, was present.
3. The phrase "within the area of his immediate control" means the
area from within which he might gain possession of a weapon or
destructible evidence. A gun on a table or in a drawer in front of
one who is arrested can be as dangerous to the arresting officer
as one concealed in the clothing of the person arrested.
4. Such warrantless search obviously cannot be made in a place
other than the place of arrest. In Espano v CA, where the accused
was outside the apartment unit and in the act of delivering to the
poseur- buyer the bag of shabu — and the apartment unit was not
even his residence but that of his girlfriend — the inside of the
apartment unit was no longer a permissible area of search, as it
could not be said to be within his reach and immediate control.
The warrantless search therein was, therefore, unlawful.
3. Stop-and-frisk
1. When there is a genuine reason (to stop-and-frisk), in light of the
police officer‘s experience and surrounding conditions, to warrant
a belief that the person detained is committing a crime. A mere
suspicion or a hunch will not validate a stop-and-frisk (Malacat vs
Court of Appeals).
2. For a valid stop and frisk search, this Court instructed in Manibag v
People that the arresting officer should have personally observed at
least two (2) or more suspicious circumstances. A reasonable
inference must be deduced from the totality of circumstances to
justify further investigation by the arresting officer. (In the Matter of
Petition for Writ of Amparo of Vivan A. Sanchez, 2019, Leonen)
Without 2 or more suspicious circumstances, the search was not
based on a genuine reason.
 3. Stop-and-frisk only extends to bodily searches or limited protective
search of outer clothing for weapons. (People v Chua)
1. Hence, the bag carried by the person searched is NOT included.
4. Search occurs BEFORE the arrest.
5. Application of Stop-and-frisk to some cases
1. In People v Cogaed, 2016, Leonen, the police officers received
information that a certain Marvin Buya would be transporting
marijuana. A passenger jeepney passed through the checkpoint
set up by the police officers. The driver then disembarked and
signaled that two (2) male passengers were carrying marijuana.
The police officers approached the two (2) men, who were later
identified as Victor Cogaed and Santiago Dayao, and inquired
about the contents of their bags. Upon further investigation, the
police officers discovered three (3) bricks of marijuana in
Cogaed's bag. In holding that the "stop and frisk" search was
invalid, this Court reasoned that "[t]here was not a single
suspicious circumstance" that gave the police officers genuine
reason to stop the two (2) men and search their belongings.
Cogaed did not exhibit any overt act indicating that he was in
possession of marijuana.
2. In Veridiano v People, 2017, Leonen, Veridiano was a mere
passenger in a jeepney who did not exhibit any act that would give
police officers reasonable suspicion to believe that he had drugs
in his possession. Reasonable persons will act in a nervous
manner in any check point. There was no evidence to show that
the police had basis or personal knowledge that would reasonably
allow them to infer anything suspicious. (Veridiano v People, 2017,
Leonen)
1. Further, this cannot be considered as a valid search in
checkpoints because in checkpoints, only VISUAL search is
allowed.
2. Lastly, this cannot be considered as an extensive search of
moving vehicle because there is no PROBABLE cause that the
passengers committed a crime.
4. Visual search at checkpoints
1. In Valmonte v. De Villa, the Court held that 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 should prevail.
2. In Valmonte v. De Villa, this Court clarified that "[f]or as long as the
vehicle is neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle is limited to a visual
search, said routine checks cannot be regarded as violative of an
 2.

individual's right against unreasonable search[es]." Thus, a search

where an "officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds, or simply looks into a
vehicle, or flashes a light therein" is not unreasonable.
3. The warrantless search of motor vehicles at checkpoints should
be limited to a visual search. Its occupants should not be
subjected to a body search (Aniag, Jr. v. Commission on Elections,
G.R. No. 104961, October 7, 1994, 237 SCRA 424).
5. Extensive searches of moving vehicles (stop-and-search)
1. The extent of routine inspections must be limited to a visual search.
Routine inspections do not give law enforcers carte blanche to
perform warrantless searches
2. However, an extensive search may be conducted on a vehicle at a
checkpoint when law enforcers have probable cause to believe that
the vehicle's passengers committed a crime or when the vehicle
contains instruments of an offense.
3. Law enforcers cannot act solely on the basis of confidential or tipped
information. A tip is still hearsay no matter how reliable it may be. It is
not sufficient to constitute probable cause in the absence of any other
circumstance that will arouse suspicion.
1. In Veridiano v People, 2017, Leonen, the extensive search
conducted by the police officers exceeded the allowable limits of
warrantless searches. They had no probable cause to believe that
the accused violated any law except for the tip they received.
They did not observe any peculiar activity from the accused that
may either arouse their suspicion or verify the tip. Moreover, the
search was flawed at its inception. The checkpoint was set up to
target the arrest of the accused.
6. Visual search and Stop-and-search
7. Stop-and-search (extensive search in moving vehicle) is different
from stop-and-frisk.
Visual Search Stop-and-search
No probable cause, just to enforce There is probable cause that the
public order passengers committed an offense
Visual search Extensive search
Stop-and-search (extensive search Stop-and-frisk
in moving vehicle)
There is probable cause that the There is genuine reason to warrant a
passengers committed an offense belief that the person is committing a
crime.
Probable cause is defined as facts and The commission of the offense need
circumstances that a reasonable not be obvious to the ordinary man,
prudent man would believe that a but a seasoned police officer.
crime has been committed by the
person sought to be arrested.
The search may extended within the The search only extends to bodily
There is probable cause that the There is genuine reason to warrant a
passengers committed an offense belief that the person is committing a
crime.
Probable cause is defined as facts and The commission of the offense need
circumstances that a reasonable not be obvious to the ordinary man,
prudent man would believe that a but a seasoned police officer.
crime has been committed by the
person sought to be arrested.
The search may extended within the The search only extends to bodily
immediate control of the person. searches or limited protective search
of the outer clothing for weapons.
There must be a lawful arrest first There must be a search first before
before there is a search. there is arrest.
8. Customs searches
1. There are reasonable searches because of heightened security. In
Dela Cruz v. People, the search conducted on the accused was
considered valid because it was done in accordance with routine
security measures in ports. (CUSTOMS search)
2. However, the rule is not available in dwelling places.
3. The Tariff and Customs Code does not require said warrant in the
instant case. The Code authorizes persons having police authority
under Section 2203 of the Tariff and Customs Code to enter, pass
through or search any land, inclosure, warehouse, store or building,
not being a dwelling house; and also to inspect, search and examine
any vessel or aircraft and any trunk, package, box or envelope or any
person on board, or stop and search and examine any vehicle, beast
or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in said cases. But in
the search of a dwelling house , the Code provides that said "dwelling
house may be entered and searched only upon warrant issued by a
judge or justice of the peace. (People vs Mago)
9. Port authorities
1. Routine baggage inspections conducted by port authorities, although
done without search warrants, are not unreasonable searches per se.
Constitutional provisions protecting privacy should not be so literally
understood so as to deny reasonable safeguards to ensure the safety
of the traveling public. (Dela Cruz v. People, G.R. No. 209387,
[January 11, 2016], Leonen)
10. Airport searches
1. RA 6235, Sec. 9 provides “Every ticket issued to a passenger by the
airline or air carrier concerned shall contain among others the
following condition printed thereon: "Holder hereof and his hand-
carried luggage(s) are subject to search for, and seizure of, prohibited
materials or substances. Holder refusing to be searched shall not be
allowed to board the aircraft," which shall constitute a part of the
 contract between the passenger and the air carrier.”
11. Conduct of aerial target zoning and saturation drives in the exercise
of military powers of the President.
12. Inspection of buildings and other premises for the enforcement of fire,
sanitary, and building regulations.
13. Search by DOLE to enforce labor law provisions
14. Plain View Doctrine
1. Requisites of Plain View Doctrine: (PIAF)
1. The executing law enforcement officer has a prior justification for
an initial intrusion or otherwise properly in a position from which
he can view a particular order;
(Prior justification for initial intrusion)
2. The officer must discover incriminating evidence inadvertently;
(Inadvertent discover)
3. It must be immediately apparent to the police that the items they
observe may be evidence of a crime, contraband, or otherwise
subject to seizure; AND
(Immediately apparent evidence of crime)
4. Plain view justified the seizure of evidence without further search.
(Without further search)
1. ILLUSTRATION: Search warrant is for more than one offense.
While implementing the warrant, the police officer saw, in
plain view, a shabu in the place searched. Is the shabu
admissible in evidence? No, because there was no prior
justification for initial intrusion on the part of the police
officer.
5. Warrantless arrests and detention
1. NOTE: The facts must clearly show for in flagrante delict arrest that there
is an OVERT ACT. If it is not clear, arrest is not valid. For hot pursuit, it is
PROBABLE CAUSE BASED ON PERSONAL KNOWLEDGE OF THE F/C. If it
is not clear, arrest is not valid.
2. Since there was no valid warrantless search, the warrantless search
was also illegal. The unlicensed .22 caliber pistol is inadmissible in
evidence (Luz v. People, G.R. No. 197788, February 29, 2012, 667
SCRA 421).
3. In flagrante delicto - When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an
offense;
4. Hot pursuit - When an offense has just been committed, and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
5. Escapee - When the person to be arrested is a prisoner who has escaped
from a penal establishment, or while being transferred from one
5.

confinement to another. (Sec. 5, Rule 113)

6. Waiver - When the right is waived by the person arrested, i.e., failure to
raise the illegality of arrest before arraignment.
7. Continuing offense - membership in organizations like the NPA and
kidnapping are continuing offenses, so a person guilty thereof can be
arrested anytime under the in flagrante principle. (Umil v Ramos, 1990)
8. Bondsmen - bondsmen may arrest the accused (Sec. 23(1), Rule 114)
9. Attempt to depart - the person released on bail attempts to depart the
Philippines without permission of the court. (Sec. 23(2), Rule 114)
1. In flagrante delicto:
1. In in flagrante delicto arrest, two (2) elements must concur: (OP)
1. The person to be arrested must execute an Overt act
indicating that he has/actually committing/attempting to
commit a crime; and
2. Such overt act is done in the Presence or within the view of
the arresting officer. (Veridiano v People, 2017, Leonen)
1. “Presence” covers all senses, i.e., touch, smell, sight, and
hearing.
2. Application of in flagrante delicto to actual cases
1. The accused did not exhibit an overt act within the view of the
police officers suggesting that he was in possession of illegal
drugs at the time he was apprehended. (People v Cogaed,
2014, Leonen)
2. He was not committing a crime at the checkpoint. Petitioner
was merely a passenger who did not exhibit any unusual
conduct. The police officers relied solely on the tip they
received, absent any overt act. (Veridiano v People, 2017,
Leonen)
3. The time of the arrest was 11:30 p.m; PO3 Martinez was 6 to
10 meters away when he saw petitioner holding a plastic
sachet; and he was looking from a tinted windshield of a van.
Instead, the petitioner was arrested because of an informant’s
tip and because he was known to PO2 Magno and Sanchez. It
is settled that "reliable information" alone is not sufficient to
justify a warrantless arrest. Hence, the arrest is invalid
because the petitioner did not perform an overt act within the
plain view of PO3 Martinez indicating that he has just
committed a crime. (Villasana v People, 2019, Leonen)
2. Hot pursuit:
1. Three (3) important elements must concur;
1. Immediacy test - Crime has “just” been committed
2. Probable cause - actual belief or reasonable grounds of
suspicion
 3. Personal knowledge - of the facts and circumstances
1. The elements must be present. Otherwise, the arrest may
be nullified, and resultantly, the items yielded through the
search incidental thereto will be rendered inadmissible in
consonance with the exclusionary rule of the 1987
Constitution. (Pestilos v Generoso, 2014)
2. “Immediacy test”
1. There must be a large measure of immediacy
between the time the offense is committed and the
time of the arrest, and if there was an appreciable
lapse of time between the arrest and the commission
of the crime, a warrant of arrest must be secured.
(People vs Del Rosario)
2. The determination of probable cause and the
gathering of facts or circumstances should be made
immediately after the commission of the crime in
order to comply with the element of immediacy.
(Pestilos v Generoso, 2014)
3. “Personal knowledge of the facts and circumstances”
1. Aside from the sense of immediacy, it is also
mandatory that the person making the arrest has
personal knowledge of certain facts indicating that
the person to be taken into custody has committed
the crime. Reliable information does not satisfy as
―personal knowledge. (People vs Del Rosario).
2. Circumstances may pertain to events or actions within
the actual perception, personal evaluation or
observation of the police officer at the scene of the
crime. (Pestilos v Generoso, 2014)
3. Thus, even though the police officer has not seen
someone actually fleeing, he could still make a
warrantless arrest if, based on his personal evaluation
of the circumstances at the scene of the crime, he
could determine the existence of probable cause that
the person sought to be arrested has committed the
crime.
4. Law enforcers need not personally witness the
commission of a crime. However, they must have
personal knowledge of facts and circumstances
indicating that the person sought to be arrested
committed it. (Veridiano v People, 2017, Leonen)
3. Waiver of illegal warrantless arrest does not include waiver of illegal
search
 1. It must be emphasized that petitioner's failure to question his
arrest before he made his plea only affects the jurisdiction of
the court over his person and does NOT bar him from raising the
inadmissibility of the illegally seized shabu.
2. A waiver of an illegal warrantless arrest does not carry with it a
waiver of the inadmissibility of the evidence obtained during the
illegal arrest. (Villasana v People, 2019, Leonen)
6. Exclusionary rule or fruit of poisonous tree
1. Evidence obtained in violation of this and the preceding Section shall be
inadmissible for any purpose in any proceeding. (Sec. 3(2), Art. III)
2. This applies not only to testimonial evidence but also to documentary and
object evidence.
7. Effects of unreasonable searches and seizures
1. To repeat, the exclusionary rule or fruit of the poisonous tree doctrine
applies.
2. Further, an unlawful search and seizure may justify:
1. The use of self-help in the form of resistance to such unlawful search
and seizure;
2. The criminal prosecution of the searching officer;
3. The civil damages against such officer; and
4. The disciplinary action against the officer by his administrative
officers. (Bautista, 2010)
8. Effects of illegal detention
1. In case the detention is without legal ground, the person arrested can
charge the arresting officer with arbitrary detention under Art. 124 of the
Revised Penal Code.
2. This is without prejudice to the possible filing of actions for damages
under Art. 32 of the Civil Code.
(In the matter of petition for issuance of writ of habeas corpus v DOJ,
2017)
9. SPO1 X and SPO1 Y saw A and B in an alley around 3 meters away. They
watched B handed A a small plastic sachet. They saw A inspect the sachet,
flicking it against the light emitted from a street light and a lamp from a
house nearby. When the police officers approached them, A and B fled. Only
A was caught. SPO1 X told A to open his hands. They found a small sachet
containing shabu, which the police officers confiscated. RTC found him guilty
beyond reasonable doubt of violating the Dangerous Drugs Act. A argued
that the evidence against him was obtained from an illegal warrantless arrest.
Decide.
1. The arrest and the search are valid. The rule that a warrantless arrest
must precede a warrantless search is not absolute. A search substantially
contemporaneous with an arrest can precede the arrest if the police have
probable cause to make the arrest at the outset of the search. In this case,
 1.

the arrest and the search were substantially contemporaneous. Thus,

what must be evaluated is whether or not the arresting officers had
probable cause for petitioner’s arrest when they made the search.
2. Here, the arresting officers saw A handed B with a small plastic sheet,
which they then inspected. Upon the officers’ approach, A and B fled.
These overt acts and circumstances were observed personally by the
arresting officers and, taken together, constitute reasonable suspicion
that A and B were violating the Dangerous Drugs Act. Thus, the search
preceded the arrest does not render invalid the search and arrest of A
(Aparante v. People, G.R. No. 205695, September 27, 2017, J. Leonen).
10. X was at the airport to catch a flight bound for Manila. Since the x-ray
machine operator at the initial security screening was not yet around, he left
the line and went outside to smoke. Airport Security Y was told by Airport
Security Z that the parking space in front of the departure area smelled like
marijuana and that he (Z) suspected that X was the one who smoked the
illegal drug. Ten minutes passed, X went back to the initial security
checkpoint carrying his check-in and cabin luggage. Afterwards, X
proceeded to the final security check where a pat down search was
conducted by Airport Security Y. A red Marlboro cigarette pack, containing
two pieces of rolled paper of what appeared to be dried marijuana leaves,
was found in X’s possession. Is there a legitimate airport search in this case?
1. No, the airport search is not valid.
2. Airport search is reasonable when limited in scope to the object of the
Anti-Hijacking program, not the war on illegal drugs. R.A. No. 6235 or the
Anti-Hijacking Law provides that an airline passenger and his hand-carried
luggage are subject to search for, and seizure of, prohibited materials or
substances and that it is unlawful for any person, natural or juridical, to
ship, load or carry in any passenger aircraft, operating as a public utility
within the Philippines, any explosive, flammable, corrosive or poisonous
substance or material. It is in the context of air safety-related
justifications, therefore, that routine airport security searches and
seizures are considered as permissible under Section 2, Article III of the
Constitution. Unlike a routine search where a prohibited drug was found
by chance, a search on the person of the passenger or on his personal
belongings in a deliberate and conscious effort to discover an illegal drug
is not authorized under the exception to the warrant and probable cause
requirement.
3. In this case, what was seized from X were two rolled sticks of dried
marijuana leaves. Obviously, they are not explosive, flammable, corrosive
or poisonous substances or materials, or dangerous elements or devices
that may be used to commit hijacking or acts of terrorism. More
importantly, the illegal drugs were discovered only during the final security
checkpoint, after a pat down search was conducted by Y, who did not act
 based on personal knowledge but merely relied on an information given by
Z that X was possibly in possession of marijuana (People v. O’cochlain,
G.R. No. 229071, December 10, 2018).
11. While on a routine patrol, PO1 X spotted a passenger jeep unusually covered
with "kakawati" leaves. Suspecting that the jeep was loaded with smuggled
goods, the PO1 X flagged down the vehicle. The jeep was driven by Z. When
asked what was loaded on the jeep, Z did not answer. Z appeared pale and
nervous. With Z's consent, PO1 X checked the cargo and discovered bundles
of aluminum/galvanized conductor wires owned by National Power
Corporation (NPC). Thereafter, Z and the vehicle with the wires were brought
to the Police Station. Z contends that the flagging down of his vehicle by PO1
X who was on routine patrol, merely on "suspicion" that "it might contain
smuggled goods," does not constitute probable cause that will justify a
warrantless search and seizure. PO1 X argues the cable wires found in Z's
vehicle were in plain view. Is PO1 X correct?
1. No. Jurisprudence is to the effect that an object is in plain view if the
object itself is plainly exposed to sight. Where the object seized was
inside a closed package, the object itself is not in plain view and therefore
cannot be seized without a warrant. However, if the package proclaims its
contents, whether by its distinctive configuration, its transparency, or if its
contents are obvious to an observer, then the contents are in plain view
and may be seized. In other words, if the package is such that an
experienced observer could infer from its appearance that it contains the
prohibited article, then the article is deemed in plain view. It must be
immediately apparent to the police that the items that they observe may
be evidence of a crime, contraband or otherwise subject to seizure.
2. In this case the cable wires were not exposed to sight because they were
placed in sacks and covered with leaves. The articles were neither
transparent nor immediately apparent to the police authorities. They had
no clue as to what was hidden underneath the leaves and branches. As a
matter of fact, they had to ask petitioner what was loaded in his vehicle. In
such a case, it has been held that the object is not in plain view which
could have justified mere seizure of the articles without further search
(Caballes v. CA, G.R. No. 136292, January 15, 2002).
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
E. Privacy of communications and correspondence
1. Concept of communications, correspondence
1. Right to privacy is discussed in Sec. 2, Art. III.
2. Forms of correspondence and communication covered:
1. Letters
2. Messages
 3. Telephone calls
4. Telegrams
5. Others analogous to the foregoing (Bernas)
2. Intrusion, when and how allowed (applies to right to privacy, in general)
1. Lawful order by the court
2. When public order or safety requires as provided by law
1. Adopt the notes mentioned above.
3. Exclusionary rule or fruit of the poisonous tree
1. Evidence obtained in violation of this and the preceding Section shall be
inadmissible for any purpose in any proceeding. (Sec. 3(2), Art. III)
2. This applies not only to testimonial evidence but also to documentary and
object evidence.
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
F. Freedom of speech and expression
1. Concept
1. Continuum of thought, speech, expression, and speech acts
1. Our Constitution has also explicitly included the freedom of
expression, separate and in addition to the freedom of speech and of
the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a
wider scope. (Diocese of Bacolod v COMELEC, 2015, Leonen)
2. The freedom of expression applies to the ENTIRE continuum of
speech, from utterances made to conduct enacted, and even inaction
itself as a symbolic manner of communication. (Diocese of Bacolod v
COMELEC, 2015)
1. Utterances made, whether written or spoken.
2. Symbolic speech/conduct/inaction, i.e., wearing of armbands as
a symbol of protest , refusing to salute the flag, sing the national
anthem, and recite the patriotic pledge. Even cancelling
celebrities is an inaction which is covered by freedom of
expression.
3. Films and TV programs (INC v CA, 1996; Gonzalez v Chariman
Katigbak)
4. Freedom as to the form of expression, i.e., the size of the
tarpaulin matters. Bigger size enhances efficiency in
communication, it underscores the importance of the message to
the reader, and it can state more messages. (Diocese of Bacolod v
COMELEC, 2015)
3. “No law shall be passed”
1. While it is true that the present petition assails not a law but an
opinion by the COMELEC Law Department, this court has applied
 1.

Article III, Section 4 of the Constitution even to governmental

acts. (Diocese of Bacolod v COMELEC, 2015, Leonen)
2. Purposes of free speech doctrines
1. Does the freedom of speech apply against private individuals? Yes.
1. In Malabanan v Ramento, the Court ruled that the students did not
shed their freedom of expression at the schoolhouse gate. While
the educational institution has academic freedom to admit or
expel students, it cannot violate the freedom of expression.
Hence, the exercise of such freedom cannot be the basis for
barring students from enrolling.
1. However, the school is not powerless to discipline students. If
the conduct materially disrupts classwork, or it involves
substantial disorder or invasion of the rights of others, the
students may be disciplined.
1. Of course, the penalty must be proportional to the
conduct, and procedural due process must be followed.
3. Balance between unbridled expression and liberty
1. Freedom of expression is not absolute, nor is it an unbridled license
that gives immunity for every possible use of language and prevents
the punishment of those who abuse this freedom. (Chavez v
Gonzales, 2008)
2. Hence, while the right has a widespread scope, it is NOT absolute. As
examples, illegal strikes, child pornography, and libel can be
restrained/punished.
2. Types of regulation
1. Prior restraint and subsequent punishment
1. Prior Restraint
1. It refers to governmental restrictions/regulations on speech/
expression/press in advance of actual publication/expression.
(Newsounds Broadcasting Network v Dy)
2. All prior restraints are presumed invalid. (Near v Minnesota, 1931)
3. There need not be total suppression.
1. Even restriction of circulation constitutes censorship.
(Grosjean v American Press Co, 1936)
4. Content-based and content-neutral regulations and their
applicable tests apply if there is prior restraint.
2. Subsequent Punishment
1. Freedom of speech includes freedom after speech. Without this
assurance, citizens would hesitate to speak for fear that they
might be provoking the vengeance of the officials they criticized.
2. Libel, and inciting to sedition/rebellion apply if there is valid
subsequent punishment.
3. Exceptions to Libel
 1. Absolute privileged communication - The speaker cannot be
punished for the speech, even if libelous.
1. No Member shall be questioned nor be held liable in any
other place for any speech or debate in the Congress or in
any committee thereof. (Sec. 11, Art. VI)
2. Qualified privileged communication - The speech is not
presumed malicious. However, the speaker may be punished
for libel if actual malice is proven.
1. Private communication in the performance of any legal,
moral, social duty
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature.
3. Statements made in judicial proceedings are qualified
privileged communication. Statements in pleadings are
included herein. (Armovit v Purisima, 1982)
4. Fair comment doctrine
1. Fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action
for libel. “Public interest” includes commentaries
about a public person in his public capacity. However,
it does not follow a public man into his private life.
(Borjal v CA, 1999; Yuchengco v Manila Chronicle,
2009)
2. Further, journalists are given leeway for honest
mistakes or imperfection in the choice of words.
(Yambot v. Tuquero, 2011)
3. After the 2010 election, Press Secretary X announced to reporter that
the opposition was planning to destabilize the administration by
releasing an audiotape conversation between President V and a high
ranking official. The DOJ also warned reporters that those who would
broadcast or publish its content could be held liable under the Anti-
Wiretapping Act. The DOJ secretary ordered the NBI to go after media
organization found to have spread the audio and printing of the
contents of the tape. The NTC also issued a press release warning
television owners and operators to observe the Anti-Wiretapping Act
and pertinent circulars.
1. What is a prior restraint?
2. M filed a petition against the DOJ secretary and the NTC to annul
void proceedings and to prevent the unlawful curtailment of
freedom of expression of the press. Decide.
1. Prior restraint refers to official governmental restrictions on
the press or other forms of expression in advance of actual
 1.

publication or dissemination. To determine if there is prior

restraint, we must distinguish between content-neutral and
content-based regulation. The former is concerned with the
incidents of speech or on that merely controls the time, place
or manner and under well-defined standards. The latter is
based on the subject matter of the utterance of the speech.
2. Petition should be granted as the acts of the DOJ secretary
and NTC constitute prior restraint on speech. The case at bar
falls on the content-based regulation because it seeks to
regulate the contents of the audio tape and not merely the
time, place or manner of its delivery. This kind of regulation
bears the presumption of unconstitutionality and must hurdle
the clear and present danger test (which is whether the words
used in such circumstances and are of such nature as to
create a clear and present danger that they will bring about
the substantive evil that congress has a right to prevent) and
must be narrowly drawn to fit the regulatory purpose with the
least restrictive means undertaken (strict scrutiny).
3. Here the presumption is not hurdled as there is no showing
that the violation of anti-wiretapping law presents a clear and
present danger. Hence, there is a prior restraint. The writs
should be issued nullifying the statements of the DOJ
secretary and freedom of expression must be upheld (Chavez
v. Gonzales, GR 168338, February 15, 2008).
4. X is the President and is among the incorporators of PTP Inc. Among
the regular writers was X who runs the one column of the newspaper.
During a congressional hearing on the transport crisis, those who
attended agreed to organize First National Conference on Land
Transportation (FNCLT) that would embody a long-term land
transportation policy. FW was elected as Executive Director. Series of
articles were written by X in his column which dealt with the alleged
anomalous activities of an “organizer of a conference” without naming
or identifying FW. Neither did it refer to the FNCLT as the conference
mentioned. FW filed a complaint against X for unethical conduct and
Libel.
1. Is X liable?
2. May the right to privacy of FW, who is not a public figure, be
restricted?
1. No, X is not liable. The speech is considered privileged. A
privileged communication is either (1) absolute - which
exempts member of congress from liability for any speech or
debate in Congress or (2) qualified. In the latter falls private
communications and fair and true reports without any
 commentary or remarks as provided in Art 354 of the RPC.
Although X’s publication fall in neither the above
classification, the Supreme Court had ruled that publications
which are privileged for reasons of public policy are protected
by the constitutional guaranty of freedom of speech. This
constitutional right cannot be abolished by the mere failure of
the legislature to give it express recognition in the statute
punishing libels.To reiterate, fair commentaries on matters of
public interest are privileged and constitute a valid defense in
an action for libel or slander. Hence X is not liable for Libel.
2. Yes, his right to privacy may be restricted. The right to privacy
of a person who is not a public figure may likewise be
restricted if he is involved in a public issue. Even assuming ex-
gratia argumenti that private respondent, despite the position
he occupied in the FNCLT, would not qualify as a public figure,
it does not necessarily follow that he could not validly be the
subject of a public comment even if he was not a public
official or at least a public figure, for he could be, as long as
he was involved in a public issue. If a matter is a subject of
public or general interest, it cannot suddenly become less so
merely because a private individual is involved or because in
some sense the individual did not voluntarily choose to
become involved. The public's primary interest is in the event;
the public focus is on the conduct of the participant and the
content, effect and significance of the conduct, not the
participant's prior anonymity or notoriety (Borjal v. Court of
Appeals, G.R. No. 126466, January 14, 1999).
2. Content based and content neutral; subject matter and incidents of
speech
1. Content-based
1. Content-based regulation refers to restrictions based on the
subject matter of the utterance or speech. Example is regulation
as to the size of tarpaulins.(Diocese of Bacolod v COMELEC,
2015, Leonen)
2. Content-based regulation is subject to clear and present danger
test and strict scrutiny test.
1. Clear and present danger test - It means that speech may
not be restrained, unless there is a clear and present danger
that the speech will likely lead to a substantial evil, which the
State has a right to prevent. (Chavez v Gonzales, 2008)
1. “Clear” means there is connection between the danger of
substantive evil and the speech.
2. “Present” means the danger is imminent/inevitable.
 2.
(Gonzales v COMELEC)
2. Strict scrutiny test - Three (3) requisites: (CLN)
1. Compelling State interest;
2. Least restrictive means; and
3. Narrowly tailored to the accomplish the interest.
2. Content-neutral
1. Content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the
speech. Example is BP 880. (BAYAN v Ermita, 2006)
2. Content-neutral regulation is subject to intermediate scrutiny test
(O’Brien Test). (CSUG)
1. Within Constitutional power of government;
2. Substantial governmental interest;
3. Interest is Unrelated to the suppression of free expression;
4. Restriction is no Greater than is essential to further the
interest.
3. Incitement and advocacy
1. Political discussion, even among those opposed to the present
administration, is protected by freedom of expression. The same
cannot be construed as subversive activities per se.
2. Further, the Constitutional guarantees of free speech and free press
do not permit the State to forbid advocacy, unless the advocacy is
directed to inciting or producing imminent lawless action. (Salonga v
Cruz Paño, 1985)
3. What is the heckler’s veto?
1. Heckler’s veto is an attempt to limit unpopular speech. This
occurs when the unpopular group’s right to freedom of speech is
curtailed or restricted by the government in order to prevent the
popular group’s behavior, i.e., outrage and violent protest due to
the unpopular speech.
2. This is presumed invalid, unless there is clear and present danger
that the speech will likely lead to substantial evil.
4. When can it be restrained?
1. Clear and Present Danger Test
2. Strict scrutiny Test/O’Brien Test
5. When can it be subsequently punished?
1. Libel
2. Inciting to sedition. (Espuelas v People, 1951)
4. Specificity of regulation and overbreadth doctrine
1. General Rule:
1. As applied challenge - A party can question the validity of a
statue only if, as applied to him, it is unconstitutional. (Southern
Hemisphere v Anti-Terrorism Council, 2010)
2. Exception:
1. Facial challenge - The “facial challenge” rule provides that the
legislation is always unconstitutional. (Imbong v Ochoa, 2014)
1. This only applies to free speech cases.
2. Penal statutes cannot be the subject of facial challenge,
unless it encroaches upon the freedom of speech. (Disini v
Secretary of Justice, 2014)
3. It can be contested by any person, because the rule on locus
standi does not apply. (Spouses Romualdez v COMELEC,
Separate Opinion, Carpio)
4. Kinds of facial challenges
1. Overbreadth doctrine
1. The doctrine provides that a regulation of speech is
void if it unnecessarily sweeps broadly and invades
protected and non-protected speech. In other
words, it prohibits more than is necessary to achieve
a compelling government interest. (Adiong v
COMELEC, 1992)
2. As example, the COMELEC resolution prohibits the
posting of decals and stickers not more than 8.5
inches in width and 14 inches in length, in any place,
whether public or private property. Is the regulation
overbroad? Yes. Because the resolution covers private
property. (Adiong v COMELEC)
3. As another example, the airport officials merely
sought to prohibit solicitation at the airport. However,
it passed a resolution prohibiting all First Amendment
activities at the airport. Hence, it was overbroad,
because it prohibited writing, speaking, wearing
campaign buttons, and other forms of protected
expression. (Board of Airport Commissioners v Jews
for Jesus, 1987)
2. Void for vagueness doctrine
1. A statue may be said to be vague when it lacks
comprehensible standards that men of common
intelligence must necessarily guess as to its
meaning and differ as to its application, that law is
deemed void.
2. Why is it void?
1. It fails to accord persons fair notice of the
conduct to avoid; and
2. It leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an
 2.

arbitrary flexing of the Government muscle.

(Estrada v Sandiganbayan, 2001)
3. As example, the provision on aiding or abetting in the
commission of cybercrime is deemed void for
vagueness, because the crime ensnares all the actors
in the cyberspace in a fuzzy way (Disini v Secretary of
Justice, 2014)
3. X, during a launching of Bible which coincide the Feast of Saint
Jerome and while Father D was reading a passage from the bible,
entered the Church clad in black suit and went to the center aisle and
emblazoned the words “DAMASO”. Commotion ensued while X uttered
“Bishops don’t involve yourself in politics! There is a separation of
church and state!” X was later charged with an information for the
offense of Offending Religious feeling as defined and penalized under
Article 133 of the RPC. X argues the unconstitutionality of the Article
133 of the RPC claiming that it violates the constitutional right to
freedom of expression and of free speech and its overbreadth and
vagueness application results in a chilling effect. Decide if whether
the law is constitutional or unconstitutional.
1. The law is not unconstitutional. As a rule, facial challenge on penal
statutes is prohibited because facial challenges are generally
applicable only to free speech, religious and other fundamental
rights. However, as an exception, a facial challenge grounded on
void-for-vagueness doctrine may be allowed when the subject
penal statute encroaches upon the freedom of expression.
2. Here, Article 133 does not regulate free speech but punishes
disruptive acts that are notoriously offensive to the feelings of the
faithful in a place of worship. It does not seek to prevent or
restrict any person from expression his political opinions or
criticism against the catholic church or any religion (Celdran v.
People, G.R. No. 220127, November 21, 2018; Southern
Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
G.R. No. 178552, October 5, 2010).
5. Speech regulation in relation to election
1. The COMELEC regulates speech during elections.
1. Regulation of speech in the context of electoral campaigns made
by candidates or members of political parties may be regulated as
to the time, place, and manner. In no situation may the speech be
prohibited on the basis of its content.
2. Regulation of speech in the context of electoral campaigns made
by NON-candidates may be regulated if it is a declarative speech
which has for its principal object the endorsement of a candidate.
Again, it may only be regulated as to the time, place, and manner.
 1. Why is the regulation limited to content-neutral, i.e., time,
place, and manner of speech? Because in speech relating to
elections, there is NO clear and present danger that the
speech will likely lead to substantial evil. Neither is there a
State interest that prevails over such speech.
3. Regulation of speech in the context of electoral campaigns made
by NON-candidates may NOT be regulated if it principally
advocates a social issue that the public must consider during the
elections. Such regulation shall be unconstitutional. (Diocese of
Bacolod v COMELEC, 2015)
1. Why can it not be regulated? Sec. 2(3), Art. IX-C provides that
the COMELEC has the power to decide all questions affecting
elections. It does not have the power to regulate speech of
non-candidates regarding social issues.
6. Speech regulation in relation to media
1. Four (4) aspects of Freedom of the Press
1. Freedom from prior restraint (all kinds of speech)
2. Freedom from subsequent punishment (all kinds of speech)
3. Freedom of access to information (right to be informed, under
Sec. 7)
4. Freedom of circulation. (Chavez v Gonzales, 2008)
2. Broadcast and radio media are subject to dual regulation.
1. First, by procuring a legislative franchise, and
2. Second, by registering and being subject to the regulations set by
the National Telecommunications Commission. (Divinagracia v
Consolidated Broadcasting System, 2009)
3. The freedom given to broadcast (movie, tv, radio) media is lesser than
the freedom accorded to print media (newspaper). What does this
mean?
1. The tests for regulation are the same for ALL forms of media, i.e.,
clear and present danger test/strict scrutiny test/O’Brien test.
2. However, broadcast media has “lesser freedom” in the context of:
a) requirements for licensing, b) allocation of airwaves since print
media does not need airwaves, c) pervasive presence in the lives
of the people, and d) accessibility to children. (Chavez v
Gonzales, 2008)
3. Judicial analysis, presumptions and levels and types of scrutiny
1. Presumption
1. As stated, a restraint to speech is presumed invalid.
2. Levels and types of scrutiny
1. Clear and present danger test - already discussed in content-based.
2. Strict scrutiny - already discussed in content-based.
3. Intermediate scrutiny (O’Brien) - already discussed in content-neutral.
4. Special topics in free expression cases
1. Hate speech
1. This is speech designed to promote hatred on the basis of race,
religion, ethnicity, or national origin. (Art. 20, International Covenant
on Civil and Political Rights)
2. This is unprotected speech.
2. Defamation and libel
1. Libel is unprotected speech.
2. The plaintiff/prosecution has the burden of proving malice.
3. Elements:
1. Defamatory
2. Malicious
3. Identifiable
4. Publication
4. “Identifiability”; Group libel
1. Defamatory remarks directed against a group of individuals are
not actionable unless the remarks are sweeping and all-embracing
as to apply to every individual in that group. (MVRS Publications v
Islamic Da’wah Council, 2003)
5. After the 2010 election, Press Secretary X announced to reporter that
the opposition was planning to destabilize the administration by
releasing an audiotape conversation between President V and a high
ranking official. The DOJ also warned reporters that those who would
broadcast or publish its content could be held liable under the Anti-
Wiretapping Act. The DOJ secretary ordered the NBI to go after media
organization found to have spread the audio and printing of the
contents of the tape. The NTC also issued a press release warning
television owners and operators to observe the Anti-Wiretapping Act
and pertinent circulars.
1. What is a prior restraint?
2. M filed a petition against the DOJ secretary and the NTC to annul
void proceedings and to prevent the unlawful curtailment of
freedom of expression of the press. Decide.
1. Prior restraint refers to official governmental restrictions on
the press or other forms of expression in advance of actual
publication or dissemination. To determine if there is prior
restraint, we must distinguish between content-neutral and
content-based regulation. The former is concerned with the
incidents of speech or on that merely controls the time, place
or manner and under well-defined standards. The latter is
based on the subject matter of the utterance of the speech.
2. Petition should be granted as the acts of the DOJ secretary
and NTC constitute prior restraint on speech. The case at bar
 2.

falls on the content-based regulation because it seeks to

regulate the contents of the audio tape and not merely the
time, place or manner of its delivery. This kind of regulation
bears the presumption of unconstitutionality and must hurdle
the clear and present danger test (which is whether the words
used in such circumstances and are of such nature as to
create a clear and present danger that they will bring about
the substantive evil that congress has a right to prevent) and
must be narrowly drawn to fit the regulatory purpose with the
least restrictive means undertaken (strict scrutiny).
3. Here the presumption is not hurdled as there is no showing
that the violation of anti-wiretapping law presents a clear and
present danger. Hence, there is a prior restraint. The writs
should be issued nullifying the statements of the DOJ
secretary and freedom of expression must be upheld (Chavez
v. Gonzales, GR 168338, February 15, 2008).
3. Sedition and speech in relation to rebellion
1. Inciting to sedition/rebellion is unprotected speech.
4. Obscenity/pornography
1. What is the test employed to determine the presence of obscenity?
1. Miller test (most recent)
1. Appeal to prurient interest - Whether to the average person,
applying the contemporary community standards, the
dominant theme of the material appeals to the prurient
interest.
2. Patently offensive - Whether the work depicts or describes,
in a patently offensive way, sexual conduct specifically
defined by the law
3. Lacks value - Whether the work lacks serious literary,
political, or scientific value. (Fernando v CA, 2006, quoting
Miller v California, 1973)
2. The authorities must apply for the issuance of a search warrant. The
proper crime to be brought in the court is Art. 201 of the RPC (Pita v
CA, 1989)
5. Commercial speech
1. Commercial speech is a separate category of speech which is not
accorded the same level of protection as other forms of expression.
However, it is still entitled to protection.
2. The requisites for a valid regulation of commercial speech are as
follows:
1. Speech must not be false, misleading, or proposing an illegal
activity
2. Government interest sought to be served by regulation must be
 2.
substantial
3. The regulation must advance government interest
4. The regulation must not be overbroad. (Central Hudson Gas v
Public Service Commission, 1980)
3. Distinguish political speech from commercial speech.
1. Political speech refers to speech "both intended and received as a
contribution to public deliberation about some issue," "fostering
informed and civicminded deliberation." It is motivated by the
desire to be heard and understood, to move people to action. It is
concerned with the sovereign right to change the contours of
power whether through the election of representatives in a
republican government or the revision of the basic text of the
Constitution. On the other hand, commercial speech has been
defined as speech that does "no more than propose a commercial
transaction" (Diocese of Bacolod v. COMELEC, G.R. No. 205728,
January 21, 2015, J. Leonen).
4. The COMELEC issued Resolution No. 6486 to implement Sec 36(g) of
RA 9165 or the Comprehensive Dangerous Drugs Act of 2002,
prescribing the rules and regulations on the mandatory drug testing of
candidates for public office in connection with the May 10, 2020
synchronized national and local elections. Pepe, a senator and a
candidate for re-election in the 2020 elections, filed a Petition to
nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 for
being unconstitutional because they impose a qualification for
candidates for senators in addition to those already provided for in the
Constitution. According to Pepe, Sec. 3, Article VI of the Constitution
only prescribes a maximum of 5 qualifications for one to be a
candidate for, elected to, and be a member of the Senate, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. He says that both the Congress and COMELEC, by
requiring a senatorial aspirant to undergo a mandatory drug test,
create an additional qualification that all candidates for senator must
first be certified as drug free. He adds that there is no provision in the
Constitution authorizing the Congress or COMELEC to expand the
qualification requirements of candidates for senator. Decide.
1. Sec. 36(g) of RA 9165 is unconstitutional. The qualifications of
Members of the Congress are exclusive, and as such, the
Congress cannot validly amend or otherwise modify these
qualification standards, as it cannot disregard, evade, or weaken
the force of a constitutional mandate, or alter or enlarge the
Constitution. In the same vein, the COMELEC cannot, in the guise
of enforcing and administering election laws or promulgating rules
and regulations to implement Sec. 36(g), validly impose
 qualifications on candidates for senator in addition to what the
Constitution prescribes.
2. Here, Sec. 36(g) of RA 9165 effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution.
It unmistakably requires a candidate for senator to be certified
illegal – drug clean, as a pre – condition to the validity of a
certificate of candidacy for senator or, with like effect, a condition
sine qua non to be voted upon and, if proper, be proclaimed as
senator-elect (SJS v. Dangerous Drugs Board, G.R. No. 157870,
November 3, 2008).
6. National emergencies
1. One of the misfortunes of an emergency, particularly, that which
pertains to security, is that military necessity and the guaranteed
rights of the individual are often not compatible. The right against
unreasonable search and seizure; the right against warrantless arrest;
and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow. (David v.
Macapagal-Arroyo, 2006)
7. Speech of public officers
1. As stated, the members of Congress have parliamentary immunity for
speech or debate made in Congress.
2. For unparliamentary conduct, members of the Congress have been or
could be censured, committed to prison, or even expelled by the votes
of their colleagues (Osmeña v. Pendatun, 1960)
5. Cognate rights
1. Freedom of assembly
1. “Assembly” means a right on the part of the citizen to meet
peaceably for consultation in respect to public affairs.
2. Like freedom of expression, it cannot be subject to prior restraint.
Hence, the exercise of the freedom cannot be conditioned upon the
prior issuance of a permit or authorization from the government
authorities. (Primicias v Fugoso, 1948)
3. However, if assembly is to be held at a public place, permit for the
use of such place, and not for the assembly itself may be validly
required. The power of local officials is merely for regulation and not
for prohibition, as an exercise of police power. (Primicias vs. Fugoso,
1948; Reyes v Bagatsing, 1983)
4. When is a permit not needed?
1. Freedom parks
2. Private places - only the consent of the property owner or the
person entitled to legal possession is needed.
1. An example is protests in private schools. (Malabanan v
Ramento)
 3. Campus of a government-owned and operated educational
institution - subject to the rules and regulations of said
institution. (Sec. 4, BP 880)
5. When can the LGU refuse to issue the permit?
1. It shall be the duty of the mayor to issue the permit unless there is
clear and convincing evidence that the public assembly will create
a clear and present danger to public order, safety, convenience,
morals or health. (Sec. 6(a), BP 880; David v Arroyo, 2006)
6. Sec. 8(3) of BP 880 provides that “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.”
1. Hence, in modifying the permit outright, Atienza gravely abused
his discretion when he did not immediately inform the IBP who
should have been heard first on the matter of his perceived
imminent and grave danger of a substantive evil that may warrant
the changing of the venue. (IBP v Mayor Atienza, 2010)
7. Meaning of “Maximum Tolerance”
1. “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.
(Section 3[c], B.P. Blg. 880)
2. Calibrated Preemptive Response (CPR)
1. Insofar as it would purport to differ from or be in lieu of
maximum tolerance, it is null and void. CPR serves no valid
purpose if it means the same thing as maximum tolerance
[Sec. 3(c), B.P. Blg. 880], and is illegal if it means something
else. Accordingly, what must be followed is maximum
tolerance, which is mandated by the law itself [Bayan v
Ermita)
8. Political rallies during the campaign period are not governed by the
Public Assembly Act, but by the Omnibus Election Code (B.P. Blg.
881).
9. Picketing during labor strikes are governed by the Labor Code, not
by the Public Assembly Act.
10. Holding of religious processions or military parades are governed by
local ordinances.
2. Freedom of association
1. “For purposes not contrary to law”
1. Unless an association or society could be shown to create an
imminent danger to public safety, there is no justification for
abridging the right to form associations.
2. The right is recognized as belonging to people, whether employed or
 2.
unemployed, and whether in the government or in the private sector.
3. Freedom of association presupposes freedom not to associate (Sta.
Clara Homeowners Association v. Gaston)
4. Freedom of association yields to the valid exercise of police power of
the State
1. To compel a lawyer to be a member of the Integrated Bar is not
violative of his constitutional freedom to associate. It did so in the
exercise of the paramount police power of the State, in order to
raise the standards of legal profession, improve the administration
of justice, and enable the Bar to discharge its public responsibility.
(In Re: Edillion)
3. Freedom of information
1. Splendid symmetry between Sec. 7, Art. III and Sec. 28, Art. II
1. Sec. 28 complements Sec. 7. The right to information guarantees
the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if
nobody demands. (Province of North Cotabato v GRP, 2008)
2. Requisites to determine if the right to information can be availed
of
1. In every case, the availability of access to a particular public
record must be circumscribed by the nature of the information
sought:
1. The nature of the information sought is a matter of public
concern;
2. The information is not exempted by law/jurisprudence from
the constitutional guarantee
3. It is not available when the purpose is unlawful or sheer, idle
curiosity. (Subido v Ozaeta)
3. “Matters of public concern”
1. The term covers subjects which the public may want to know
because;
1. The subjects directly affect their lives or,
2. The subjects naturally arouse the interest of an ordinary
citizen. (Legaspi v CSC)
4. Examples of “matters of public concern”
1. It was held that the right to information contemplates inclusion of
negotiations leading to the consummation of the transaction.
Hence, the negotiations for the compromise of the Marcoses’ ill-
gotten wealth are covered by the right, because they directly
affect the lives of the public. (Chavez v PCGG)
2. The MOA-AD is a matter of public concern, because it the
sovereignty and territorial integrity of the State directly affects the
lives of the public at large. Hence, the negotiations leading to the
 2.

consummation of the MOA-AD are covered by the right. (Province

of North Cotabato v GRP Peace Panel)
3. Other examples are:
1. Regularity of real estate transactions entered in the Register
of Deeds,
2. Need for adequate notice to the public of the various laws,
3. Civil service eligibility of a public employee,
4. Proper management of GSIS funds allegedly used to grant
loans to public officials, and
5. Identity of party-list nominees. (Province of North Cotabato v
GRP Peace Panel)
5. “Information exempted by law/jurisprudence”
1. National security matters and intelligence information.
2. Diplomatic negotiations, or inter-government exchanges prior to
the conclusion of treaties and executive agreements. The reason
is if they would be revealed before conclusion, other States will
not deal with the Philippines anymore;
3. Intellectual Property Code and other related laws
4. Secrecy of Bank Deposits Act, as amended;
5. Criminal matters, such as the apprehension, the prosecution and
the detention of criminals;
6. Other confidential information. (Chavez v. PCGG, 1998)
7. Judicial Privilege
1. Court actions such as: a) the result of the raffle of cases and
b) the actions taken by the Court on each case included in the
agenda;
2. Deliberative process privilege;
3. Confidential Information secured by justices, judges, court
personnel in the course of official functions; and
4. Records of cases that are still pending for decision, except
only for pleadings, orders and resolutions.
1. These privileges belong to the Supreme Court as an
institution, not to any justice or judge in his individual
capacity. Hence, no sitting or retired justice or judge may
claim exception without the consent of the Court. (In Re:
Production of Court Records and Document, 2012).
8. Deliberative Process Privilege
1. The privilege is not exclusive to the Judiciary . We have in
passing recognized the claim of this privilege by the two other
branches of government in Chavez v. Public Estates Authority
2. To qualify for protection under the deliberative process
privilege, the branch must show that the document is both (1)
predecisional and (2) deliberative.
 3. “Predecisional” means communications which were made in
an attempt to reach a final conclusion.
4. “Deliberative” means the give-and-take exchange of the
consultative process. (In Re: Production of Court Records and
Document, 2012)
9. Executive privilege
1. Discussed in Executive Department - Art. VII
10. Presidential communications privilege
1. Discussed in Executive Department - Art. VII
6. Unlawful or sheer, idle curiosity
1. Can the people inquire into the sex life of President Duterte? No,
because the purpose is sheer, idle curiosity. (Gabriel)
7. “Subject to such limitations as may be provided by law”;
Regulation and not prohibition
1. Government agencies CANNOT refuse access to information of
public concern. However, the manner of examining public records
CAN be subject to reasonable regulation by the government
agency. (Legaspi v. CSC)
2. Example of reasonable regulation:
1. Prescribing the manner and hours of examination so that:
1. Damage to the records may be avoided,
2. Undue interference with the duties of the custodian of the
books and documents and other employees may be
prevented, and
3. The right of other persons entitled to make inspection
may be insured. (Subido v. Ozaeta)
8. Should the State concern itself as to the motives of person seeking
access?
1. No. It is NOT the duty of public officers to concern themselves
with the motives, reasons, and objects of the persons seeking
access to the records. (Subido v. Ozaeta)
9. If the right to information is violated, what is the remedy?
1. The right may be properly invoked in a MANDAMUS proceeding.
(Legaspi v CSC)
10. This right does not include the right to compel the preparation of
lists, abstracts, etc.
1. The constitution does NOT accord them a right to compel public
officers to prepare lists, abstracts, summaries and the like in their
desire to acquire information or matters of public concern.
(Valmonte v Belmonte)
2. In short, they are merely entitled to ACCESS the information. If
they want a LIST, they should make it, and not the State.
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
G. Freedom of religion
1. Basic principles
1. Purpose
1. The twin clauses of free exercise and non- establishment express an
underlying relational concept of separation between religion and
secular government. (Bernas)
2. Concept of religion
1. The definition of religion has been expanded to include even non-
theistic beliefs such as Taoism or Zen Buddhism.
2. It has been proposed that basically, a creed must meet four (4) criteria
to qualify as religion under the First Amendment.
(BMSA); (Belief in God; Moral code; Sincerity in belief; Some
association ties)
1. There must be Belief in God or some parallel belief that occupies
a central place in the believer’s life.
2. The religion must involve a Moral code transcending individual
belief, i.e., it cannot be purely subjective.
3. A demonstrable Sincerity in belief is necessary, but the court
must not inquire into the truth or reasonableness of the belief.
4. There must be some Associational ties, although there is also a
view that religious beliefs held by a single person rather than
being part of the teachings of any kind of group or sect are
entitled to the protection of the Free Exercise Clause. (Estrada vs
Escritor)
2. Principle of separation of church and State
1. Strict separation
2. Strict neutrality
3. Benevolent neutrality
3. Non-establishment clause
1. No law->made->respecting the establishment of religion. (Sec. 5, Art. VI)
2. Lemon test; Test to Determine if the establishment clause was NOT
violated:
1. Purpose Prong - The statute has a Secular legislative purpose.
2. Effect Prong - Its Principal or primary effect is one that neither
advances nor inhibits religion (incidental is allowed)
3. Entanglement Prong - It does not foster an excessive government
Entanglement with religion. (Lemon v Kurtzman, 1971)
3. Application of the lemon test:
1. In Aglipay v Ruiz, the Director of Posts announced in the dailies of
Manila that he would order the issues of postage stamps
commemorating the celebration in the City of Manila of the Thirty-
 1.

third international Eucharistic Congress, organized by the Roman

Catholic Church. Does this violate the establishment clause? No. 1)
the purpose of the issuance of such postage stamps is secular, which
is to promote Philippine tourism; 2) the primary effect is to encourage
foreigners into visiting the Philippines. The fact that it mentions an
event organized by the Roman Catholic Church is merely incidental;
and 3) the issuance does not foster an excessive entanglement with
religion.
2. Is the tolerance by the DOJ of the holding of masses in the Hall of
Justice violative of the establishment clause? No, since there is no
law, ordinance, or circular issued by any governmental body
mandating that judicial employees must attend the Catholic masses.
The employees went to the masses at their own will. (In Re: Letter to
Tony Valenciano, 2017)
4. Sec. 29(2), Art. VI is related to establishment clause
1. No public money/property->appropriated/applied/paid/employed-
>directly or indirectly->use/benefit/support->sect/church/
denomination/priest/minister/dignitary (Sec. 29(2), Art. VI)
2. The word "apply" means "to use or employ for a particular purpose."
3. The word "appropriate" means "to prescribe a particular use for
particular moneys.
4. Thus, the words "pay" and "employ" should be understood to mean
that what is prohibited is the use of public money/property for the
sole/particular/primary purpose of benefiting any church.
5. Further, the phrase "directly or indirectly" refers to the manner of
appropriation of public money or property, not as to the direct or
incidental benefit to any church.
6. Hence, the provision does not prohibit the use of the property when
the religious character is merely incidental, and not particular/primary/
direct.
7. As examples, a public street may be used for a religious procession or
civic parade, and a public plaza may be used for a religious rally or a
political assembly. (In Re: Letter of Tony Valenciano, 2017)
5. How do we differentiate establishment clause and free exercise
clause(accommodation)?
1. Establishment entails a positive action on the part of the State.
Accommodation (free exercise), on the other hand, is passive. In the
former, the State becomes involved through the use of government
resources with the primary intention of setting up a state religion. In
the latter, the State, without being entangled, merely gives
consideration to its citizens who want to freely exercise their religion.
(In Re: Letter of Tony Valenciano, 2017)
4. Free exercise clause
 1. No law->made->prohibiting the free exercise thereof.
2. Free exercise/enjoyment->religious profession/worship->without
discrimination/preference ->forever be allowed. (Sec. 5, Art. VI)
3. There are two (2) aspects of free exercise clause:
1. Freedom to believe - this is absolute. This cannot be the subject of
regulation, because it is a mere thought.
2. Freedom to act on one’s belief - this can be the subject of
regulation, because there are external acts already.
4. What is a religious speech/expression?
1. Religious speech/expression is employed by religious communities to
pass on their knowledge, to negotiate their values and norms and to
relate to other religious and non-religious communities.
2. Hence, the constitutional guaranty of the free exercise and enjoyment
of religious profession and worship carries with it the right to
disseminate religious information. (American Bible Society v. City of
Manila)
3. Are the tarpaulins in Diocese of Bacolod v COMELEC religious
speech?
1. No. Not all acts done by those who are priests, or any other
religious make such act immune from any secular regulation. The
religious also have a secular existence. They exist within a society
that is regulated by law. (Diocese of Bacolod v COMELEC)
2. Hence, it is covered merely by freedom of speech/expression, and
NOT freedom of religion.
5. There are three (3) standards of separation:
1. Strict separation
2. Strict neutrality
3. Benevolent neutrality. (Estrada v Escritor, 2003)
6. Benevolent neutrality
1. The Philippines adhere to benevolent neutrality.
2. With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take
religion specifically into account not to promote the government's
favored form of religion, but to allow individuals to exercise their
religion without hindrance from the government. (Estrada v
Escritor, 2003)
1. The exceptions to the allowance are clear and present danger
test, and strict scrutiny test.
5. Tests to determine if the free exercise clause was violated:
1. Clear and Present Danger Test
1. This test applies if the law regulates free expression in relation to
religious freedom. (Gabriel)
 2. Strict Scrutiny Test
1. This is the usually applicable test.
3. Application of the tests to some examples:
1. Mr. A believes that Satan is his supreme being. Can the State prevent
him?
1. No, because the freedom to believe is absolute. It cannot be
subject to regulation.
2. Satanism is an organized religion. In the Philippines, some of its
believers are sacrificing people to worship their supreme being. Can
the State restrain this religious worship?
1. Yes. Under the clear and present danger rule, religious expression
can be restrained if there is clear and present danger that it leads
to a substantial evil, such as the killing of people.
3. Congress enacted a law banning Islam from being practiced in the
Philippines because it raises terrorists. Is this law valid?
1. No, because there are lesser intrusive ways to prevent terrorism.
Hence, the law is unconstitutional.
4. In American Bible Society v Manila, the Society has been distributing
and selling bibles in the Philippines. The City of Manila informed that it
was conducting a general merchandising without procuring a Mayor’s
permit/license, in violation of the City Ordinances. Was Manila
correct?
1. No. The distribution of bibles is a form of religious expression.
Under the doctrine of benevolent neutrality, religious expression
must be accommodated by the State, unless the strict scrutiny
test applies. Here, there is no compelling State interest, because
free exercise of religion is more important than raising of revenues
and regulation of businesses. Hence, the Society cannot be
ordered to procure the Mayor’s permit/license.
5. In Re: Letter of Tony Valenciano, Valenciano complained about the
holding of masses during lunch break at the basement of the Quezon
City Hall of Justice. Should the activities be stopped?
1. No. The holding of masses during lunch break is a form of
religious expression. Under the doctrine of benevolent neutrality,
religious expression must be accommodated by the State, unless
the strict scrutiny test applies. Here, there is no compelling State
interest, because public service was not disrupted by the masses
during lunch break. Hence, they should not be stopped.
6. The State must also be prohibited from meddling with the internal/purely
ecclesiastical affairs of religions.
1. Why? Internal/Purely ecclesiastical affairs of religion are covered by free
exercise clause.
2. Ecclesiastical affair involves the relationship between the church and its
 2.
members and relate to matters of faith, religious doctrines, worship and
governance of congregation.
3. Examples are proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities with attached
religious significance. (Pastor Austria v. NLRC, 1999) In short,
relationship between church/members + related to faith/doctrine/
worship/governance of congregation.
4. Civil Courts will not interfere in the internal affairs of a religious
organization except for the protection of civil or property rights. Those
rights may be the subject of litigation in a civil court, and the courts have
jurisdiction to determine controverted claims to the title, use, or
possession of church property. (Pastor Austria v. NLRC, 1999)
7. Application of purely ecclesiastical affairs against Governmental acts:
1. If the dispute is between the dismissal of an employee (janitor) and a
religious organization, the State can interfere because this is a labor
dispute (civil or property right). (Pastor Austria v NLRC, 1999) In the case,
Pastor Austria was not excommunicated from the church, but was
terminated from employment. The grounds invoked for the dismissal are
all based on Art. 282 of the Labor Code on just causes. Hence, it was a
labor dispute, and not a purely ecclesiastical matter.
2. If the dispute is between the expulsion of a priest and the religious
organization, the State cannot interfere because this is a purely
ecclesiastical affair.
8. Non-religious test clause
1. No religious test->exercise->political/civil rights. (Sec. 5, Art. III)
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
H. Liberty of abode and freedom of movement
1. Scope and limitations
1. Liberty of Abode
1. It includes the right to choose one‘s residence, and to change the
same.
2. Limitations:
1. Within the LIMITS may be prescribed by law; and
2. It may be IMPAIRED by lawful order of the court.
1. The “law” can only prescribe LIMITATIONS to the liberty of
abode. It cannot IMPAIR it. (Genuino v De Lima, 2018)
2. Right to travel (freedom of movement)
1. It refers to the right to move from one place to another
2. In the Bill of Rights, it covers:
1. The right to travel from the Philippines to another country; and
2. The right to travel within the Philippines.
 3. Limitations:
1. It can be IMPAIRED in the interest of national security, public
safety or public health (SSH), as may be provided by law.
2. It can be IMPAIRED by a lawful order of the court.
1. Unlike in liberty of abode, the right to travel may be impaired
by law in the interest of national safety, public safety, or public
health.
4. It does NOT cover the right to return to the Philippines from another
country. This third right is merely protected by International law.
(Marcos v. Manglapus)
1. In the case, the International Covenant on Civil and Political Rights
provides that no one shall be arbitrarily deprived of the right to
enter his own country. Hence, as long as the deprivation is NOT
“arbitrary,” the right to return to the Philippines can be impaired.
3. “Law” shall be restricted to statutes or legislative enactments.
(Genuino v De Lima, 2018; Zabal v Duterte, 2019) However, Leonen
disagrees with these rulings. In his opinion, “law” must extend to the
Constitution, executive acts, and administrative orders.
4. Instances where a law impaired the right to travel, in the interest of
national security, public safety, and public health:
1. The Human Security Act (national security)
2. The Philippine Passport Act of 1996 (public safety)
3. Anti- Trafficking in Persons Act (public safety)
4. Migrant Workers and Overseas Filipinos Act (public safety)
5. The curfew ordinances on minors promote juvenile safety and
prevention of juvenile crime (public safety). Hence, the ordinance can
impair the right to travel of minors.
1. Doesn’t this violate the term “law”? No, because the power of the
LGU to impose curfew ordinances was delegated by PD 603, a
law. (SPARK v QC, 2017)
2. Watch-list and HDO; Right to travel
1. When right to travel may be impaired by order of the court
1. Precautionary Hold Departure Orders
1. It is issued by the court when an ex parte petition involving crimes
where the minimum penalty is 6 years and 1 day was filed.
2. It can be applied for in court, even if the case is still pending
preliminary investigation.
2. Hold Departure Orders in petitions for custody of minors
1. To prevent the child from going abroad.
3. Watch-list order
1. Is this allowed?
1. No. The right to travel may be impaired by a law that concerns
national security, public safety or public health. Here, there is
 1.

no law providing the Secretary of Justice a power to impair

the right to travel. Hence, the rules issued by the Secretary
regarding the watchlist order are unconstitutional.(Genuino v.
De Lima, 2018)
2. In Genuino vs. Sec. De Lima, the SC declared DOJ Circular No.
41 (Authorizing the Secretary of Justice to issue Hold
Departure Orders [HDOs], Watch List Orders [WLOs], and
Allow Departure Orders [ADOs] unconstitutional as it violates
the right to travel. Under the Constitution, for the right to
travel to be impaired in the interest of national security,
public safety, or public health, there must be law (an act of
Congress). (Sec. 6, Art. III, 1987 Constitution). A mere
administrative regulation (DOJ Circular No. 41) is not a
law.
3. On the other hand, the court can validly issue watch-list
orders/HDOs.

_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
I. Eminent Domain
1. Concept
2. Just compensation
3. Abandonment of intended use and right of repurchase
1. The Court held that the expropriator has the obligation to reconvey
property expropriated but never used, on the condition that the
landowners would return the just compensation they received, plus
interest. (Heirs of Moreno v Mactan-Cebu International Airport, 2005;
Mactan-Cebu International Airport Authority v Tudtud, 2008)
4. Expropriation by LGUs
1. Already discussed in inherent powers of the State
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
J. Non-impairment of contracts
1. “No law”
1. “Law” covers municipal ordinances because these are local legislations.
(Ortigas & Co. v Feati Bank)
2. It also covers executive orders/administrative rules(quasi-legislative).
(Provincial Bus Operators Association v DOLE, 2018, Leonen)
3. However, the non-impairment clause is a limit on the exercise of legislative
power and NOT of judicial or quasi-judicial power. Hence, SEC's approval
of the Rehabilitation Plan did not impair BPI's right to contract. (China
 3.

Banking Corp v ASB Holdings, 2008)

2. “Impairing”
1. There is an impairment when:
1. The terms are changed either in the time or mode of the performance
of the obligation.
2. New conditions are imposed or
3. Existing conditions are dispensed with. (Provincial Bus Operators
Association v DOLE, 2018, Leonen)
1. The degree of diminution/change is immaterial. As long as the
original rights of either party are changed to their prejudice, there
is impairment.
3. “The obligation of contracts”
1. Timber licenses, permits and license agreements are merely privileges
granted by the State to qualified entities, and do not vest in the latter a
permanent or irrevocable rights. Hence, they are not deemed contracts.
(Oposa v Factoran)
4. Limitations on the Non-Impairment of Contracts
1. In every contract, there are two (2) implied elements aside from the
stipulation of the parties that:
1. All existing laws and the Constitution are deemed included in the
contract.
2. The contract is deemed subject to the inherent powers of the State
(police power, eminent domain, and taxation). Specifically, the non-
impairment clause yields to police power.
5. Application of limitations on the non-impairment of contracts
1. The enactment of B.P. 22 does not impair the freedom to contract. The
freedom of contract is freedom to enter into "lawful" contracts. Contracts
that contravene public policy are not lawful. (Lozano v. Martinez)
2. Granting that a law has been passed mandating cancellations or
modifications of timber licenses, the non-impairment clause is still not
violated. The reason is the law would be passed in the exercise of police
power to promote the right of the people to a balanced and healthful
ecology. (Oposa v Factoran)
3. The bus operators claim that DO No. 118-12 and MC No. 2012-001 violate
the non-impairment clause because the issuances force them to abandon
the “time-honored" employment contracts with their drivers and
conductors. Is the contention correct? No. Labor contracts are impressed
with public interest and, therefore, must yield to the common good (police
power). (Provincial Bus Operators Association v DOLE, 2018, Leonen)
6. Pedro bought a parcel of land from Smart Corporation, a realty firm engaged
in developing and selling lots to the public. One of the restrictions in the deed
of sale which was annotated in the title is that the lot shall be used by the
buyer exclusively for residential purposes. A main highway having been
 6.

constructed across the subdivision, the area became commercial in nature.

The municipality later passed a zoning ordinance declaring the area as a
commercial bank building on his lot. Smart Corporation went to court to stop
the construction as violative of the building restrictions imposed by it. The
corporation contends that the zoning ordinance cannot nullify the contractual
obligation assumed by the buyer. Was the non-impairment clause violated?
1. No. a restriction in the contract cannot prevail over the zoning ordinance,
because the enactment of the ordinance is a valid exercise of police
power. It is hazardous to health and comfort to use the lot for residential
purposes, since a highway crosses the subdivision and the area has
become commercial. (Ortigas v. Feati Bank)
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
K. Adequate legal assistance and free access to courts
1. Extended to Natural Persons Only; “To any person by reason of poverty”
1. The Constitution has explicitly premised the free exercise clause on a
person‘s poverty, a condition that only a natural person can suffer.
Extending the exemption to a juridical person on the ground that it works
for indigent and underprivileged people may be prone to abuse,
particularly by corporations and entities bent on circumventing the rule on
payment of the fees. Also, the scrutiny of compliance with the
documentation requirements may prove too time consuming and wasteful
for the courts. (In Re: Query of Mr. Roger Prioreschi)
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
L. Right against self-incrimination
1. Scope and coverage
1. Scope
1. Incriminating question means a question which tends to establish his
participation in a criminal act (Sec. 3(4), Rule 132)
2. The gist of the privilege is the restriction on "testimonial
compulsion." Hence, it applies only to evidence that is
"communicative" in essence taken under duress. (Herrera v Alba,
2005)
1. The right against self-incrimination applies only to testimonial
compulsion and production of documents, papers and chattels in
court except when books of account are to be examined in the
exercise of police power and the power of taxation. Why
documents? Because communicative in nature.
2. Writing is something more than moving the body, or the hands,
or the fingers; writing is not a purely mechanical act, because it
 2.

requires the application of intelligence and attention. (Beltran v.

Samson)
1. However, a different application shall be given whenever the
defendant, at the trial of his case, testifying in his own behalf,
denies that a certain writing or signature is in his own hand, as
he may, on cross-examination, be compelled to write in order
to compare his handwriting with the one in question.
1. Why? An accused who testifies on his own behalf waives
his right against self-incrimination.
3. An accused may be compelled to be photographed or measured,
his garments may be removed, and his body may be examined,
without violating the person’s right against self- incrimination.
4. It does not apply in object evidence. (People v. Malimit)
5. It does not exclude the body as evidence, when it may be
material. (US v. Tan Teng)
6. Morphine forced out of the mouth of the accused does not
violate the right against self- incrimination. (US v. Ong Siu Hong)
7. An order to put on a pair of pants for size was allowed. (People v.
Otadora).
8. A woman accused of adultery may be compelled to be tested for
pregnancy (Villaflor v. Summers).
9. The substance emitting from the body of the accused was
received as evidence for acts of lasciviousness (US vs. Tan
Teng)
10. Obtaining DNA samples from an accused in a criminal case or
from the respondent in a paternity case will not violate the right
against self-incrimination. (Herrera v Alba)
11. Taking of pictures of an accused even without the assistance of
counsel is not a violation. (People v. Gallarde)
12. Getting fingerprints from the witness is not covered.
13. Asking the witness to physically demonstrate something is not a
violation of the right.
2. Coverage
1. The right is available not only in criminal prosecutions, but also in all
other government proceedings, including civil actions and
administrative or legislative investigations. (Arnault v Nazareno,
1950)
2. Who may invoke the right against self-incrimination?
1. The accused in a criminal case. He may refuse to take the
witness stand altogether. This rule may apply even to a co-
defendant in a joint trial (Chavez v. CA); and
2. A witness in any suit, but only relating to an incriminating
questions asked of him in the witness stand.
 1. The right can be claimed only when an incriminating question
is actually put to the witness. It does not give a witness the
right to disregard a subpoena, decline to appear before the
court at the time appointed, or to refuse to testify altogether.
(Rosete v Lim, 2006)
2. Application
1. Effect of violation; Exclusionary Rule or Fruit of the poisonous tree
1. Evidence obtained in violation of the right against self-incrimination
shall be inadmissible.
2. Once the primary source is shown to have been unlawfully obtained,
any secondary or derivative evidence derived from it is inadmissible.
(People v. Alicando)
2. How is it violated?
1. Despite the invocation of the right by the person, the testimony
was still compelled under duress.
1. Later, by using the testimony of the witness, the police was able
to obtain other incriminating evidence.
1. Example: A was compelled against his will to testify. During
the testimony, A revealed information as to the whereabouts
of the gun used to commit the homicide, and the clothing of
the victim.
2. Answer: The testimony is inadmissible because of Sec. 12(3).
Meanwhie, the gun and the clothing are inadmissible because
of the fruit of the poisonous tree doctrine. They are pieces of
secondary evidence that were derived from the main source,
which is the testimony made under duress.
3. Waiver of the Right against self-incrimination
1. The right can be waived either directly or by failure to invoke it,
provided the waiver is certain and unequivocal and intelligently,
understandingly and willingly made.
1. The accused who voluntarily takes the witness stand may be
cross-examined and asked incriminating questions on any matter
he testified to on direct examination.
2. Hence, once the accused takes the witness stand, he waives his
right to invoke the right against self-incrimination.
3. Immunity statutes
1. Transactional Immunity Statute; Blanket Immunity
1. This statute makes the witness immune from criminal prosecution for
an offense to which his testimony relates.
2. Use and Fruit Immunity Statute
1. This statute merely prohibits the use of the witness’ compelled
testimony and its fruits in connection with the criminal prosecution of
the witness. However, it does not prevent the prosecution from
 1.

presenting independent evidence against the witness. (Mapa v.

Sandiganbayan).
3. The grant of immunity to an accused willing to testify for the government
must NOT be strictly construed against the accused. (Mapa v
Sandiganbayan)
4. QUESTION:
1. In a CIVIL CASE, the plaintiff called the defendant a hostile witness and
announced that the defendant would be asked incriminating questions in
the direct examination. When should the defendant invoke the privilege
against self- incrimination?
2. In a CRIMINAL CASE, the prosecution called the accused to the witness
stand as the first witness in view of certain facts admitted by the accused
at the pre-trial. When should the accused invoke the privilege against
self-incrimination?
3. In an administrative case for malpractice and the cancellation of license to
practice medicine filed against C, the complainant called C to the witness
stand. When should C invoke the privilege against self- incrimination?
1. As held in Bagadiong v, De Guzman, 94 SCRA 906, the defendant
should take the witness stand and object when a question calling for
an incriminating question is propounded. Unlike in proceedings which
are criminal in character in which the accused can refuse to testify,
the defendant must wait until a question calling for an incriminatory
answer is actually asked. (Suarez v. Tongco, 2 SCRA 71)
2. As held in Chavez v. Court of Appeals, 24 SCRA 663, in a criminal
case the accused may altogether refuse to take the witness and
refuse to answer any question, because the purpose of calling him as
a witness for the prosecution has no other purpose but to incriminate
him.
3. As in a criminal case, C can refuse to take the witness stand and
refuse to answer any question. In Pascual v. Board of Medical
Examiners, 28 SCRA 344, it was held that an administrative case for
malpractice and cancellation of the license to practice medicine is
penal in character, because an unfavorable decision would result in
the revocation of the license of the respondent to practice medicine.
Consequently, he can refuse to take the witness stand.
5. QUESTION:
1. Congress is considering a law against drunken driving. Under the
legislation, police authorities may ask any driver to take a "breathalyzer
test", wherein the driver exhales several times into a device which can
determine whether he has been driving under the influence of alcohol. The
results of the test can be used, in any legal proceeding against him.
Furthermore, declaring that the issuance of a driver's license gives rise
only to a privilege to drive motor vehicles on public roads, the law
 provides that a driver who refuses to take the test shall be automatically
subject to a 90-day suspension of his driver's license. Will this supposed
law violate the right against self-incrimination?
1. Requiring a driver to take a BREATHALYZER TEST does not violate his
right against self- incrimination, because he is not being
compelled to give testimonial evidence. He is merely being asked
to submit to a physical test. This is not covered by the constitutional
guarantee against self-incrimination. Thus, in South Dakota vs.
Neville, 459 U.S. 553, it was held for this reason that requiring a driver
to take a blood-alcohol test is valid.
2. As held in Mackey vs. Afontrya 443 U.S. 1, because of compelling
government interest in safety along the streets, the license of a driver
who refuses to take the breathalyzer test may be suspended
immediately pending a post- suspension hearing, but there must be a
provision for a post-suspension hearing. Thus, to save the proposed
law from unconstitutionally on the ground of denial of due process, it
should provide for an immediate hearing upon suspension of the
driver's license. The proposed law violates the right against
unreasonable searches and seizures. It will authorize police authorities
to stop any driver and ask him to take the breathalyzer test even in the
absence of a probable cause.
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
M. Rights of persons under custodial investigation
1. Availability
1. When is a person under investigation for the commission of an offense,
i.e., custodial investigation?
1. Custodial investigation means any questioning by law enforcement
after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way. (People v Cabanada,
2017)
(Questioning + law enforcement + person deprived freedom)
2. The rights under Sec. 12, Art. III are available when the investigation is
no longer a general inquiry unto an unsolved crime but has begun to
focus on a particular suspect/person. (People v Andan)
(No longer general inquiry + begun to focus on a particular suspect/
person)
3. Custodial investigation shall include the practice of issuing an
"invitation" to a person who is investigated in connection with an
offense he is suspected to have committed, without prejudice to
the liability of the "inviting" officer for any violation of law. (Sec. 2, RA
7438)
 (Issuing invitation + suspected to have committed)
4. Police lineup is NOT custodial investigation
1. As a rule, a police lineup is NOT part of the custodial
investigation. (People v Pepino, 2016)
2. Why? Because the person invited to the police lineup is still not
suspected to have committed an offense. (Gamboa v Cruz) In
other words, he is still not under investigation for the commission
of the offense.
5. Confessions MADE VOLUNTARILY AND SPONTANEOUSLY are not
covered by the rights on custodial investigation.
1. To be under custodial investigation, there must be a questioning
done by law enforcement officers.
2. In People v Andan, it is true that the mayor has operational
supervision and control over the local police. However, Andan’s
confession to him was not made in response to any interrogation
or questioning by the mayor. Andan himself spontaneously, freely,
and voluntarily sought the mayor for a private meeting, and
confessed to the crime. Hence, the uncounselled confession is
admissible because it was not made under custodial investigation.
3. In People v. Dy , Dy just went to the police station, and made an
oral confession declaring that "he had shot a tourist" and that the
gun he had used in shooting the victim was in his bar which he
wanted surrendered to the Chief of Police is competent evidence
against him. The declaration of an accused acknowledging his
guilt of the offense charged may be given in evidence against him
(Sec. 29, Rule 130, Rules of Court).
6. Questioning by media; Not custodial investigation
1. To be under custodial investigation, it must be a law enforcement
officer who interrogated/questioned the accused.
2. Appellant's confessions to the media were likewise properly
admitted. The confessions were made in response to questions by
news reporters, not by the police or any other investigating
officer. Further, the media professionals did not act under the
direction and control of the police. We have held that statements
spontaneously made by a suspect to news reporters on a
televised interview are deemed voluntary an are admissible in
evidence. (People v Andan, 1997; People v Guillermo, 2004)
7. Audit investigation; Not custodial investigation
1. To repeat, it must be a law enforcement officer who interrogated/
questioned the accused.
2. A person under normal audit investigation is not under custodial
investigation, because an audit examiner can hardly be deemed to
be the law enforcement officer contemplated in the rule. (Navallo
 2.

v Sandiganbayan)
8. Administrative proceedings -
1. In custodial investigation, the person is under investigation for the
commission of an offense.
2. The rights under custodial investigation are not available in
administrative proceedings. (People v. Judge Ayson)
1. Hence, the uncounselled admission of a person to be used in
an administrative proceeding shall be admissible.
1. An example is an administrative proceeding with the
Bureau of Immigration.
2. In other words, uncounselled admission is only inadmissible in
criminal proceedings.
2. Requisites
1. What are the rights under Sec. 12, Art. III?
1. Right to be informed of the following rights
2. Right to remain silent
3. Right to independent and competent counsel, preferably of his own
choice
4. Right to be provided with counsel, if he cannot afford the services of
one
5. Not to be subjected to force, violence, threat or intimidation which
vitiates free will;
6. Confessions or admissions obtained in violation of these rights are
inadmissible in evidence.
2. Right to be informed of these rights
1. “The right to be informed contemplates the transmission of a
meaningful information rather than just the ceremonial and
perfunctory recitation of an abstract constitutional principle. As a
rule, therefore, it would not be sufficient for a police officer just to
repeat to the person under investigation the provisions of the
Constitution. He is duty -bound to tell the person his rights and
explain their effects in practical terms. (People v. Pinlac)
2. Hence, he shall be informed of his rights, in a language known to and
understood by him. (RA 7438)
3. Waiver of the right to be informed; not allowed
1. Only the right to remain silent and the right to counsel may be waived,
but not the right to be informed of these rights. (People v. Fabro)
4. Extrajudicial confession while under custodial investigation; when is it valid
1. Any extrajudicial confession made by a person under custodial
investigation shall be:
1. in writing and signed by such person; and
2. a) in the presence of his counsel or
b) in the latter's absence,
 1. Upon a valid waiver, and
2. In the presence of ANY of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal judge,
district school supervisor, OR priest or minister of the gospel
as CHOSEN by him; (PES-MJSP)
3. Waiver
1. When is there a valid waiver?
1. The waiver shall be in writing and signed by such person in the
presence of his counsel; otherwise the waiver shall be null and void
and of no effect. (Sec. 2(d), RA 7438)
2. Valid extrajudicial confession (in sum)
1. Writing + Presence of counsel
2. Writing + Absence of counsel + Valid waiver + Presence of any of
PES-MJSP
1. NOTE: Since a valid waiver requires the presence of counsel, this
latter part is unimportant.
3. Valid waiver
1. Writing + Presence of counsel also
4. Burden of proving a valid waiver; Prosecution
1. The burden of proving that there was valid waiver rests on the
prosecution. The presumption that official duty has been regularly
performed cannot prevail over the presumption of innocence. (People
v Mamaril)
4. Exclusionary Rule or Fruit of the Poisonous Tree
1. Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him. (Sec. 12(c), Art. III)
2. It is not only the uncounseled confession (poisonous tree/primary) that is
condemned as inadmissible, but also evidence derived therefrom (fruit/
secondary).
1. In the case of People v. Alicando, the pillow and the T-shirt with the
alleged bloodstains were evidence derived from the uncounselled
confession illegally extracted by the police from the appellant. Such
pillow and T-shirt are also inadmissible in evidence.
5. X’s motorcycle was stolen. He reported the incident to the police. X provided
the police of Official Receipt (OR) of registration and the Certificate of
Registration (CR) and other proof of ownership. The following day, the police
officers received a report that there was a suspicious person with something
tucked in his waist at the public market. The report eventually resulted in the
arrest of Y for the illegal possession of firearm. He was, thereafter, subjected
to a search of his body and of the bag allegedly found in his possession. Inside
the bag, the arresting officer found an assortment of documents, including
photocopies of the OR and CR of X's stolen motorcycle. At the Police Station,
Marvin was asked regarding the documents discovered in his bag. Marvin
 responded voluntarily, informing the police that the motorcycle was in the
possession of Z. At the time, V, the mother of X, was also at the police station
and she asked Y about the registration of the subject motorcycle found in his
possession, to which Y replied by confessing his guilt. In convicting Y, the RTC
relied on Y’s voluntary admission to the police and to V, the mother of X. Is the
RTC correct?
1. No. Y was already under custodial investigation, having been placed in the
custody of the police, or deprived of his freedom of action in a significant
manner. Thus, when the police officers asked Y regarding the discovery of
the motorcycle's registration documents in his possession, Y's right to
counsel automatically attached. Furthermore, his answer constitutes an
implied admission of guilt, which should have been done in writing, with
the assistance of his counsel, or after a valid waiver of these rights.
2. The confession to V, a private party, is not within the scope of the
constitutional and statutory limitations on extrajudicial confessions. This
notwithstanding, the Court should still inquire upon the voluntariness of
the confession. The prosecution must establish that the accused spoke
freely, without inducement of any kind, and fully aware of the
consequences of the confession. In the present case, the Court cannot
determine the voluntariness of Y's supposed confession to V because it
was not reduced into writing or recorded in another manner. The Court
can only rely on the testimony of V as to the substance of Y's confession.
Aside from her testimony, there is no independent evidence that
establishes the voluntariness and substance of Y's alleged extrajudicial
confession (Porteria v. People, G.R. No. 233777, March 20, 2019).
_______________________________________________________________________________________
_______________________________________________________________________________________
____________________
N. Rights of the accused
1. Criminal due process
1. Jurisprudence acknowledges that due process in criminal proceedings, in
particular, require: (JPHH)
1. That the court or tribunal trying the case is properly clothed with
Judicial power to hear and determine the matter before it;
2. That jurisdiction is lawfully acquired by it over the Person of the
accused;
3. That the accused is given an opportunity to be Heard; and
4. That judgment is rendered only upon lawful Hearing.
2. Bail
1. When is bail a matter of right?
1. All persons in custody shall be admitted to bail as a matter of right,
with sufficient sureties, or released on recognize as prescribed by law
or this Rule (a) before or after conviction by the Metropolitan Trial
 1.

Court, Municipal Trial Court, Municipal Trial Court in Cities, or

Municipal Circuit Trial Court, and (b) before conviction by the Regional
Trial Court of an offense not punishable by death, reclusion perpetua,
or life imprisonment. (Sec. 4, Rule 114)
2. Before conviction by the RTC of an offense punishable by death,
reclusion perpetua, life imprisonment but the evidence of guilt is not
strong.
2. When is bail a matter of discretion?
1. After conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment. (Sec. 5,
Rule 114)
3. When must bail be denied?
1. Before conviction by the RTC of an offense punishable by death, rp, li
when the evidence of guilt is not strong.
2. After conviction by the RTC of an offense punishable by death, rp, li
1. However, answer this illustration. Mr. A is charged with plunder. Is
bail a matter of right? No, it is a matter of discretion.
4. The right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended.
1. How does this happen?
1. President BBM suspended the privilege of the writ of habeas
corpus due to the supposed rebellion in the Philippines. Mr. A was
arrested for rebellion. Allegedly, Mr. A is one of the low-ranking
members of the rebel group and the penalty prescribed by law is
reclusion temporal. His counsel applied for bail. Should bail be
granted?
1. Yes. Under the Constitution, right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is
suspended. Further, bail is a matter of right before conviction,
for a crime with a prescribed penalty that is not reclusion
perpetua, life imprisonment, or death. Thus, the application
for bail must be granted.
2. To prevent confusion, writ of habeas corpus is issued if a person is
deprived of liberty without legal cause, such as court orders,
processes, and/or a criminal charge. Meanwhile, bail is issued for the
temporary liberty of a person who at least has a complaint-affidavit
filed by the police against him before the prosecutor’s office.
1. Basis? Rule 114, Sec. 17(c) - Any person in custody who is not yet
charged in court may apply for bail with any court in the province,
city, or municipality where he is held.
1. This means, even though there is still no formal charge before
the court, there must be a complaint filed by the police before
the prosecutor’s office, so that the court will have a basis for
 1.

determining whether bail is a matter of right or discretion.

2. Thus, before the police is able to file this complaint, the
accused cannot apply for bail.
1. Would this amount to abuse of rights? No, because of Art.
125 of the RPC on delay in the delivery of detained
persons to the proper judicial authorities. the police will
be charged with this if he does not file the proper
complaint with the prosecutor’s office.
1. What does delivery mean? It means delivery of the
information to the Court.
5. Excessive bail shall not be required.
1. Why? Because it would be tantamount to denial of right to bail.
6. Hearing is ALWAYS NECESSARY for application for bail, whether it is a
matter of right or of discretion.
1. Why? Because even if bail is a matter of right, a hearing is still
necessary in order to determine the correct amount of bail.
7. QUESTION:
1. An lnformation for qualified theft was filed against X for allegedly
stealing a motor vehicle. The penalty prescribed by law for the charge
is reclusion perpetua. The Judge eventually arraigned X. However,
instead of ordering the X's commitment the Judge allowed X to go
home. The next day, X filed a Petition for Bail. During the bail hearing,
the Judge found the filing thereof premature and issued a warrant of
arrest against X. X was detained. Thereafter, the Judge scheduled the
bail hearing. During bail hearing, the prosecution made no objection or
comment to the oral manifestation of the defense counsel. Thus, the
Judge declared the Petition for Bail submitted for resolution. On even
date, the Judge issued an Order granting the bail petition. Is the
Judge correct?
1. No. The Court has always stressed the indispensable nature of a
bail hearing in petitions for bail. Where bail is a matter of
discretion, the grant or the denial of bail hinges on the issue of
whether or not the evidence on the guilt of the accused is strong
and the determination of whether or not the evidence is strong is
a matter of judicial discretion which remains with the judge. In
order for the judge to properly exercise this discretion, [the judge]
must first conduct a hearing to determine whether the evidence of
guilt is strong. This discretion lies not in the determination of
whether or not a hearing should be held, but in the appreciation
and evaluation of the weight of the prosecution's evidence of guilt
against the accused. (Extra Excel International Phllippines, Inc. v.
Cajigal, A.M. No. RTJ-18-2523, June 06, 2018).
8. Is bail a matter of right in deportation proceedings?
 1. NO. Aliens in deportation proceedings, as a rule, have no inherent
right to bail (Prentis v. Manoogian, 16 F. 2d. 422; U.S. ex rel. Papis v.
Tomlinson, 45 F. Supp. 447; U.S. ex rel. Iaonnis v. Garfinkle 44 F.
Supp. 518); and it has been held that a person arrested or detained
cannot be released on bail, unless that right is granted expressly by
law (Bengzon v. Ocampo, et al., 84 Phil. 611). Section 37(9) (e) of the
Philippine Immigration Act of 1940 (Com. Act No. 613, as amended)
provides that:
2. "Any alien under arrest in a deportation proceeding may be released
under bond or under such other conditions as may be imposed by the
Commissioner of Immigration."
3. Note that this provision confers upon the Commissioner of
Immigration the power and discretion to grant bail in deportation
proceedings, but does not grant to aliens the right to be released
on bail. The use of the word "may" in said provision indicates that the
grant of bail is merely permissive and not mandatory or obligatory on
the part of the Commissioner. The exercise of the power is wholly
discretionary (U.S. ex rel Zapp et al. vs. District Director of
Immigration and Naturalization, 120 F. 2d. 762; Ex parte Perkov, 45 F.
Supp 864; Colyer v. Skeffington 265 F. 17).
9. Is bail a matter of right in extradition proceedings?
1. NO. If bail can be granted in deportation cases,, the Court sees no
justification why it should not also be ed in extradition cases – clearly
the right of a prospective extraditee to apply for bail must be viewed
in light of the various treaty obligations of the Philippines concerning
respect for the promotion and protection of human rights.
2. Extradition has thus been characterized as the right of a foreign
power, created by treaty, to demand the surrender of one accused or
convicted of a crime within its territorial jurisdiction, and the
correlative duty of the other state to surrender him to the demanding
state. It is not a criminal proceeding. Even if the potential extraditee is
a criminal, an extradition proceeding is not by its nature criminal, for it
is not punishment for a crime, even though such punishment may
follow extradition. It is sui generis, tracing its existence wholly to
treaty obligations between different nations. It is not a trial to
determine the guilt or innocence of the potential extraditee. Nor is
it a full-blown civil action, but one that is merely administrative in
character. Its object is to prevent the escape of a person accused or
convicted of a crime and to secure his return to the state from which
he fled, for the purpose of trial or punishment.
3. But while extradition is not a criminal proceeding, it is characterized
by the following: (a) it entails a deprivation of liberty on the part of the
potential extraditee and (b) the means employed to attain the
 3.

purpose of extradition is also "the machinery of criminal law." This

is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition
Law) which mandates the "immediate arrest and temporary
detention of the accused" if such "will best serve the interest of
justice." We further note that Section 20 allows the requesting state
"in case of urgency" to ask for the "provisional arrest of the
accused, pending receipt of the request for extradition;" and that
release from provisional arrest "shall not prejudice re-arrest and
extradition of the accused if a request for extradition is received
subsequently."
4. Obviously, an extradition proceeding, while ostensibly administrative,
bears all earmarks of a criminal process. A potential extraditee may
be subjected to arrest, to a prolonged restraint of liberty, and
forced to transfer to the demanding state following the
proceedings. "Temporary detention" may be a necessary step in the
process of extradition, but the length of time of the detention should
be reasonable.
5. An extradition proceeding being sui generis, the standard of proof
required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of
preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative
cases cannot likewise apply given the object of extradition law which
is to prevent the prospective extraditee from fleeing our jurisdiction. In
his Separate Opinion in Purganan, then Associate Justice, now Chief
Justice Reynato S. Puno, proposed that a new standard which he
termed "clear and convincing evidence" should be used in
granting bail in extradition cases. According to him, this standard
should be lower than proof beyond reasonable doubt but higher than
preponderance of evidence. The potential extraditee must prove by
"clear and convincing evidence" that he is not a flight risk and will
abide with all the orders and processes of the extradition court.
(Government of Hong Kong v. Olalia)
1. In short, it is a matter of discretion because the extraditee must
prove by clear and convincing evidence that he is not a flight risk
and will abide to the orders and processes of the Philippine court.
2. The main difference between deportation and extradition is the
Commission of BI grants bail in deportation, while extradition
court grants bial for extradition.
3. Presumption of innocence
1. Presumption of innocence must be overcome by proof beyond reasonable
doubt. (People v. Dramayo)
2. The right to presumption of innocence can be invoked only by an
2.
individual accused of a criminal offense; a corporate entity has no
personality to invoke the same. (Feeder International Line v. Court of
Appeals)
3. Presumption of Innocence Prevails Over Presumption of Regularity of
Performance of Duty
1. The presumption of regularity of performance of official duty stands
only when no reason exists in the records by which to doubt the
regularity of the performance of official duty. And even in that
instance the presumption of regularity will not be stronger than the
presumption of innocence in favor of the accused. Otherwise, a mere
rule of evidence will defeat the constitutionally enshrined right to be
presumed innocent. The presumption of regularity in the performance
of duty could not prevail over the stronger presumption of innocence
favoring the accused. Otherwise, the constitutional guarantee of the
accused being presumed innocent would be held subordinate to a
mere rule of evidence allocating the burden of evidence. Where the
proof adduced against the accused has not even overcome the
presumption of innocence, the presumption of regularity in the
performance of duty could not be a factor to adjudge the accused
guilty of the crime charged. People vs. Arposeple, G.R. No. 205787,
November 22, 2017
4. Does prima facie evidence violate the presumption of innocence of the
accused?
1. No. The establishment of a prima facie case does not take away the
presumption of innocence. It only rebuts and controls it. (Bautista v
Sarmiento, 1985; People v Mingoa, 1953)
2. The constitutional presumption of innocence is not violated when
there is a logical connection between the fact proved and the
ultimate fact presumed. (Fuentes v Senate, 2018, Leonen)
3. Section 14 , paragraph 4 of the Anti-Hazing Law, which provides that
an accused's presence during a hazing is prima facie evidence of his
or her participation, does not violate the constitutional presumption of
innocence. Why? There is such logical connection. This disputable
presumption is also not a bill of attainder.
5. Reasonable Doubt
1. It is doubt engendered by an investigation of the whole proof and an
inability to let the mind rest easy upon the certainty of guilt. (People v.
Dramayo)
6. Proof Beyond Reasonable Doubt
1. Proof beyond reasonable doubt does not mean such a degree of proof
as, excluding possibility of error, produces absolute certainty. Only
moral certainty is required, or that degree of proof which produces
conviction in an unprejudiced mind. (Rules of Court, Rule 133, Sec. 2)
7. Circumstantial Evidence
1. In People v. Bato, the Supreme Court held that in order that
circumstantial evidence may warrant conviction, the following
requisites must concur: (OFC)
1. There is more than One circumstance;
2. The Facts from which the inferences are derived are proven; and
3. The Combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
1. “Facts from which the inferences are derived are proven”
1. What is the inference? A killed B. What are the facts from
which the inference was derived? The circumstantial
evidence.
8. Equipoise Rule
1. The equipoise rule is applicable only where the evidence of the parties
is evenly balanced, in which case the constitutional presumption of
innocence should tilt the scales in favor of the accused. (Corpus v.
People)
9. X and her co-accused had been charged with violating the Anti-Hazing
Law, or Republic Act No. 8049, for the death of Y due to injuries Y
allegedly sustained during the initiation rites of the Tau Gamma Phi
Fraternity. X is a member of the fraternity's sister sorority, Tau Gamma
Sigma, and was allegedly present at the premises during the initiation
rites. X assails the constitutionality of the provision of RA No. 8049 in so
far as it penalizes a mere member not of the fraternity or sorority, who was
merely present on the occasion of the so-called initiation rites but had not
witnessed, much less participated in any wrong doing, is presumed/
considered as principal, for whatever acts committed by any member or
members, considered as "hazing" punishable under the law, and is
presumed/considered to have failed to take any action to prevent the
same from occurring. X contends that this legal provision violates the
constitutional right of the accused to be presumed innocent until the
contrary is proved. Is X correct?
1. No, X’s is not correct. Section 14, paragraph 4 of the Anti-Hazing Law,
which provides that an accused's presence during a hazing is prima
facie evidence of his or her participation, does not violate the
constitutional presumption of innocence. A finding of prima facie
evidence does not shatter the presumptive innocence the accused
enjoys because, before prima facie evidence arises, certain facts have
still to be proved; the trial court cannot depend alone on such
evidence, because precisely, it is merely prima facie. It must still
satisfy that the accused is guilty beyond reasonable doubt of the
offense charged. Exceptionally, under R.A. No. 8049, the participation
of the offenders in the criminal conspiracy can be proven by the prima
 facie evidence due to their presence during the hazing, unless they
prevented the commission of the acts therein. (Fuertes v. Senate of
the Philippines, G.R. No. 208162, January 7, 2020, J. Leonen)
4. Right to be heard
1. Right to present evidence and to be present at the trial. It includes the
right to testify in one‘s favor and the right to be given time to call
witnesses. If accused of two offenses, he is entitled to a trial of each case,
and it is error for the court to consider in one case the evidence adduced
against him in another;
5. Assistance of counsel
1. Before arraignment
1. Under this provision, when a defendant appears without attorney, the
court has four (4) important duties to comply with:
1. It must inform the defendant that it is his right to have attorney
before being arraigned;
2. After giving him such information the court must ask him if he
desires the aid of an attorney;
3. If he desires and is unable to employ attorney, the court must
assign counsel de oficio to defend him; and
4. If the accused desires to procure an attorney of his own the court
must grant him a reasonable time therefor. (People v. Holgado;
Sec. 6, Rule 116)
2. During trial; The right to counsel is not waiveable
1. The right to counsel during the trial is NOT subject to waiver, except if
the accused is allowed by the court to defend himself. (Rules of Court,
Rule 116, Sec. 6)
2. Regardless of the desire of the accused, the court should appoint
counsel to represent the accused.
3. Preference in the Choice of Counsel; Cannot be so absolute and arbitrary
1. Such preferential discretion CANNOT be absolute and arbitrary as
would make the choice of counsel refer exclusively to the predilection
of the accused and thus make the pace of criminal prosecution
entirely dictated by the accused to the detriment of the eventual
resolution of the case. (Amion v. Judge Chiongson)
6. Right to be informed of the nature and cause of accusation
1. Purposes of Right to be Informed
1. To enable the accused to make his defense;
2. For protection against further prosecution for the same cause; and
3. To determine if the facts alleged are sufficient in law to support a
conviction. (U.S. v. Karelsen)
2. Accused Cannot Waive the Right to be Informed
1. The right CANNOT be waived for reasons of public policy.
2. Hence, an indictment must fully state the elements of the specific
 2.
offense alleged to have been committed. Otherwise, the accused
cannot be convicted of the crime charged. (People v. Flores)
3. Can the accused invoke the right against double jeopardy if he would
later be indicted for the same offense?
1. No, because there was no valid information or valid plea, since the
information did not charge any offense.
7. Right to speedy, impartial, and public trial
1. Speedy
1. The concept of speedy trial is necessarily relative.
2. This only applies to criminal cases, since the provision says “trial.”
3. “Balancing test” - A determination as to whether the right has been
violated involves the weighing of several factors such as:
1. the length of the delay,
2. the reason for the delay,
3. the conduct of the prosecution and the accused,
4. the efforts exerted by the defendant to assert his right, and
5. the prejudice and damage caused to the accused.
4. The right to speedy trial is violated if there is INORDINATE DELAY,
such as: (VUW)
1. When the proceedings are attended by Vexatious, capricious, and
oppressive delays;
2. When Unjustified postponements are asked for and secured; or
3. When Without cause or justifiable motive a long period of time is
allowed to elapse Without the party having his case tried. (People
v. Tee)
5. Remedy in Case of Violation of Speedy Trial
1. The accused is entitled to dismissal of the case, and, if he is
under detention, to release by habeas corpus.
2. Moreover, this is equivalent to acquittal and is a bar to another
prosecution for the same offense. (Flores v. People)
6. Right to Speedy Trial Cannot Be Invoked When it Violates Due Process
Entitled to the Prosecution
1. The right to speedy trial cannot be invoked where to sustain the
same would result in a clear denial of due process to the
prosecution. It should not operate in depriving the State of its
inherent prerogative to prosecute criminal cases. (Uy v. Hon.
Arsenio P. Adriano).
7. Waiver of Right to Speedy Trial
1. One‘s failure to timely question the delay in the trial to a case
would be an implied acceptance of such delay and a waiver of
the right to question the same. (Uy v. Hon. Arsenio P. Adriano).
8. For further notes, read the right to speedy disposition of cases.
2. Impartial
 1. The accused is entitled to the cold neutrality of an impartial judge.
(Mateo, Jr. v. Villaluz).
2. The right of an accused to a fair trial is not incompatible to a free
press. To be sure, responsible reporting enhances an accused‘s right
to a fair trial. Hence, their mere exposure to publications and publicity
stunts does not per se fatally infect their impartiality. (People v.
Teehankee, Jr.)
3. Public
1. A trial is public when anyone interested in observing the manner a
judge conducts the proceedings in his courtroom may do so. (Garcia
v. Domingo).
2. However, the public may be excluded when the evidence to be
presented in the proceeding may be characterized as offensive to
decency or public morals, i.e., rape cases.
3. A public trial is not synonymous with a publicized trial;
1. Public trial only implies that court doors must be open to those
who wish to come. It does not mean that the hearings can be
broadcasted in radio or TV coverage. (Re: Request for Radio-TV
Coverage of the Trial in the Sandiganbayan of the Plunder Cases
Against the Former President Estrada).
4. Relate public trial to sub judice rule
1. The sub judice rule restricts comments and disclosures
pertaining to the judicial proceedings in order to avoid
prejudging the issue, influencing the court, or obstructing the
administration of justice. This applies to litigants, witnesses, and
the public in general.
2. Hence, even though the trial is public, those who saw the trial
cannot comment on it, if it will prejudge the issue, influence the
court, or obstruct the administration of justice.
8. Right of confrontation
1. Two-fold purpose of this right:
1. To afford the accused an opportunity to test the testimony of the
witness by cross-examination; and
2. To allow the judge to observe the deportment of the witness (U.S. v.
Javier).
2. The testimony of a witness who has not submitted himself to cross-
examination is not admissible in evidence.
1. The affidavits of witnesses who are not presented during the trial, and
thus, are not subjected to cross-examination are inadmissible because
they are hearsay (U.S. v. Javier).
2. Further, it is settled that if a separate trial is allowed to one of two or
more defendants, his testimony therein imputing guilt to any of the
co- accused is not admissible against the latter, who was not able to
 2.

cross-examine him (Talino v. Sandiganbayan).

3. No right of confrontation during the preliminary investigation
1. The right to confrontation is available only during trial, which begins
only upon arraignment. Thus, an accused is not entitled as a matter of
right to be present during the preliminary examination nor to cross-
examine the witnesses presented against him before his arrest.
(Dequito v. Arellano)
4. Right to confrontation is not absolute, as there are exceptions to it, such
as:
1. Dying declarations
2. Trial in absentia
3. The testimony or deposition of a witness deceased or unable to
testify, given in a former proceeding, judicial or administrative,
involving the same parties and subject matter, may be given in
evidence against the adverse party who had the opportunity to cross-
examine him.
5. Waiver of Right to Cross-Examination
1. Right to cross- examination may be waived expressly or impliedly.
Thus, where a party has had the opportunity to cross -examine a
witness but failed to avail himself of it, he necessarily forfeits the right
to cross-examine and the testimony given on direct examination of the
witness will be received or allowed to remain in the record (De la Paz
v. Intermediate Appellate Court).
9. Compulsory process
1. Subpoena ad testificandum
1. It is a process directed to a person requiring him to attend and to
testify at the hearing or the trial of an action, or at any investigation
conducted by competent authority, or for the taking of his deposition
(Rules of Court, Rule 21, Sec. 1).
2. Subpoena duces tecum
1. It is a process directed to a person requiring him to bring with him any
books, documents or other things under his control (Rules of Court,
Rule 21, Sec. 1).
2. Failure to obey the process is punishable as contempt of court; if
necessary, the witness may even be arrested so he can give the
needed evidence.
3. The requisites for subpoena duces tecum are:
1. Relevancy test - the books, documents or other things requested
must appear prima facie relevant to the issue subject of the
controversy; and
2. Definiteness test - such books must be reasonably described by
the parties to be readily identified. (Roco v. Contreras)
10. Trial in absentia
1. When available
1. Trial in absentia is mandatory upon the court whenever the accused
has been arraigned, notified of date/s of hearing, and his absence is
unjustified (People v. Judge Salas).
2. Hence, despite of the word “may” in the provision, trial in absentia is
MANDATORY.
2. Requisites for Trial in Absentia (ANF)
1. The accused has already been Arraigned;
2. He has been duly Notified of the trial; and
3. His Failure to appear is unjustified (People v. Mapalao).
3. Effects of Trial in Absentia
1. There is a Waiver of the right to present evidence;
2. The prosecution can Present evidence even if the accused fails to
appear; and
3. The accused cannot Present evidence in his behalf
4. The accused cannot Cross-examine the witnesses of the prosecution
5. The court can Decide without the accused‘s evidence.
4. Does trial in absentia violate the presumption of innocence?
1. No. Trial in absentia is not violative of the right to be presumed
innocent because the judgment may not necessarily result in
conviction. The judgment will still be based on the evidence presented
as the prosecution. (Jimenez v. Nazareno)
5. Does trial in absentia violate the right to criminal due process?
1. No. There is no violation of the right to due process because he was
given the opportunity to be heard. (Jimenez v. Nazareno)
6. How is the judgment promulgated in trial in absentia
1. One who jumps bail can never offer a justifiable reason for his non-
appearance during the trial. Accordingly, after the trial in absentia, the
court can render judgment in the case and promulgation can be made
by simply recording the judgment in the criminal docket with a copy
thereof served upon his counsel, provided that the notice requiring
him to be present at the promulgation of judgment is served through
his bondsmen or warden and counsel (People v. Valeriano).
7. Presence of the Accused, When Mandatory (AIP)
1. During Arraignment and plea (Rules of Court, Rule 116, Sec. 1).
2. During trial, for Identification, unless the accused has already
stipulated on his identity during the pre-trial and that he is the one
who will be identified by the witnesses as the accused in the criminal
case; or
3. During Promulgation of sentence, unless for a light offense/fails to
appear without justifiable cause. (Rule 120, Sec. 6)
8. Right to appeal
1. The right to appeal is NOT a constitutional right. It is a right derived
 1.
from statutes. (Sandoval)
2. An accused who escapes from confinement, or jumps bail, or flees to
a foreign country, loses his standing in court, and unless he
surrenders or submits himself to the jurisdiction of the court, he is
deemed to have waived his right to seek relief from the court,
including the right to appeal his conviction (People v. Mapalao).
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O. Right to the speedy disposition of cases
1. The right to speedy disposition of cases applies to ALL proceedings
1. It is not limited to the accused in criminal proceedings but extends to all
parties in ALL cases, including civil and administrative cases, and in all
proceedings, including judicial and quasi-judicial hearings (Lopez, Jr. v.
Ombudsman).
2. The right to speedy disposition of cases is most commonly invoked in
fact-finding investigations and preliminary investigations by the Office
of the Ombudsman since neither of these proceedings form part of the
actual criminal prosecution. (Cagang v Sandiganbayan, 2018, Leonen)
2. Remedy in case of violation of the right to speedy disposition of cases
1. In case of violation of the right to a speedy disposition of cases, the
remedy for violation of said right is dismissal obtained through
mandamus. (Roque v. Ombudsman)
3. Concept
1. The concept of speedy disposition is relative. There is no hard-and-fast
mathematical rule on the reckoning of time involved and facts peculiar to
each case must be taken into account.(Republic v Sandiganbayan, 2020,
Leonen)
2. “Balancing test” - A determination as to whether the right has been
violated involves the weighing of several factors such as:
1. the length of the delay,
2. the reason for the delay,
3. the conduct of the prosecution and the accused,
4. the efforts exerted by the defendant to assert his right, and
5. the prejudice and damage caused to the accused. (Republic v
Sandiganbayan, 2020, Leonen)
1. However, the balancing test was not used in Republic. Instead, the
summary of rules in Cagang v Sandiganbayan was used.
4. How is the right to speedy disposition of cases violated?
1. The right to speedy disposition of cases is violated only when there is
inordinate delay.
5. Summary of Rules in Cagang and Republic
1. First, the right to speedy trial may only be invoked in criminal
1.
prosecutions against courts of law. The right to speedy disposition of
cases, however, may be invoked before any tribunal, whether judicial,
quasi-judicial, or administrative.
2. Second, for purposes of speedy disposition of administrative cases, a
case is deemed initiated upon the filing of a formal complaint prior to a
conduct of a preliminary investigation.
1. The period for fact-finding investigations prior to the filing of the
complaint shall not be included in the determination of whether there
has been inordinate delay.
2. Why? Because the investigations are not yet ADVERSARIAL against
the accused.
3. Third, courts must first determine which party carries the burden of
proof.
1. If the right is invoked within the given time periods, the defense has
the burden of proving that the right was justifiably invoked.
2. If the delay occurs beyond the given time period, the prosecution has
the burden of justifying the delay.
1. If the defense has the burden of proof, it must prove
1. first, whether the case is motivated by malice, i.e., politically
motivated or utter lack of evidence; AND
2. second, that the defense did not contribute to the delay, i.e.,
delaying tactics, failing to appear despite summons, filing
needless motions, or requesting unnecessary postponements.
(Republic v Sandiganbayan, 2020, Leonen)
2. Once the burden of proof shifts to the prosecution, the
prosecution must prove
1. first, that it followed the prescribed procedure in the conduct
of preliminary investigation and in the prosecution of the case;
2. second, that the complexity of the issues and the volume of
evidence made the delay inevitable; AND
3. third, that no prejudice was suffered by the accused as a
result of the delay.
4. Fourth, determination of the length of delay is never mechanical. Courts
must consider the entire context of the case. Exceptions:
1. Solely motivated by malice - the case would automatically be
dismissed without need of further analysis of the delay.
2. Waiver/acquiescence to the delay, i.e., the right must be timely
raised.
5. Fifth, the right to speedy disposition of cases or the right to speedy trial
must be timely raised. The respondent or the accused must file the
appropriate motion upon the lapse of the statutory or procedural periods.
Otherwise, they are deemed to have waived their right to speedy
disposition of cases. (Cagang v Sandiganbayan, 2018, Leonen)
_______________________________________________________________________________________
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P. Right against excessive fines and cruel, degrading, and inhuman
punishments
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Q. Non-imprisonment for debts
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R. Right against double jeopardy
1. Requisites; scope
1. Double jeopardy for the same offense
1. Requisites to Properly Invoke the Defense of Double Jeopardy: (ATS)
1. First jeopardy has Attached
2. First jeopardy has been Terminated
3. There is a second Jeopardy (Cudia v CA, 1998)
2. First Jeopardy must have attached
1. A valid Information has been filed
2. Before a Court of Competent jurisdiction
3. After a valid Arraignment
4. A valid Plea has been entered (Cerezo v People, 2011)
3. First Jeopardy has been terminated
1. The accused has been Acquitted
2. Convicted; or
3. The case was dismissed or otherwise Terminated without his
express consent (Cerezo v People, 2011)
4. Second Jeopardy must have attached
1. There is identity of offenses when the second offense: (SAFII)
1. Is the Same offense;
2. An Attempt to commit the said offense;
3. A Frustration of the said offense;
4. Any offense which necessary Includes the first offense
charged; or
5. Any offense which is necessarily Included in the first offense
charged. (Teehankee v Madayag, 1992)
1. Doctrine of Supervening Events; No double jeopardy
despite identity of offenses
1. Conviction of the accused for the first offense shall
not bar another prosecution for the second offense
which necessarily includes or is necessarily included
 1.

the first offense when: (SDP)

1. Graver offense developed due to supervening
events arising from the same act or omission;
(Doctrine of supervening events)
2. Facts constituting the graver offense arose or
discovered only after the filing of the former
complaint or information; and
3. Plea of guilty to a lesser offense was made
without the consent of prosecutor or offended
party (Rules of Court, Rule 117, Sec. 7).
2. Double jeopardy for the same act
1. First jeopardy has attached
1. same
2. The crime charged must be a violation of an ordinance.
2. First jeopardy has been terminated
1. same
3. There is second jeopardy
1. The crime charged must be a violation of penal statute.
2. There is identity of acts.
1. What is the test to determine identity of acts?
1. When the acts of the accused as set out in the two
informations are so related to each other in time and
space as to be reasonably regarded as having taken place
on the same occasion. (People v Relova, 1987)
2. Limitations
1. Preliminary investigations; No double jeopardy
1. Double jeopardy does not attach, when the first action is
administrative in nature. Likewise, double jeopardy does not attach in
preliminary investigations (Icasiano v Sandiganbayan)
2. Why? Because the first jeopardy never attached, i.e., there is no valid
information.
2. What is the nature of quasi-offense under the RPC vis-a-vis the right
against double jeopardy?
1. Reckless imprudence is a crime in itself, and not only a manner of
committing a crime.
2. Since the careless act is single, whether the injurious result should
affect one or several persons, the offense remains one and the same,
and cannot be split into different crimes.
3. Hence, prior conviction for simple negligence bars the subsequent
prosecution for reckless imprudence. (Ivler v San Pedro, 2010)
3. Court of competent jurisdiction; Ceased to be “competent” if due process
was violated
1. The lower court that rendered the judgment of acquittal was not
 1.
competent as it was ousted of its jurisdiction when it violated the right
of the prosecution to due process. In effect the first jeopardy was
never terminated, and the remand of the criminal case for further
hearing and/or trial before the lower courts amounts merely to a
continuation of the first jeopardy, and does not expose the accused to
a second jeopardy. (Galman v Sandiganbayan)
4. Dismissal of criminal case with express consent/at the instance of
accused
1. General rule:
1. Dismissal with the express consent or upon motion of the accused
does NOT result in double jeopardy. Why? Estoppel.
2. Exceptions:
1. Dismissal is based on insufficiency of evidence; or
2. Denial of the right to speedy trial (Philippine Savings Bank v.
Bermoy); or
3. Dismissal with prejudice, i.e., prescription (People v Relova)
5. Reconsideration and Appeal from Acquittal
1. General rule:
1. An acquittal is final and unappealable on the ground of double
jeopardy, whether it happens in the trial court level or before the
Court of Appeals. Hence, an appeal or motion for reconsideration
shall be prohibited.
2. Exceptions:
1. When the court that absolved the accused gravely abused its
discretion, resulting in loss of jurisdiction. In such case, the State
may assail the decision by petition for certiorari under Rule 65.
(Lejano v People)
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S. Right against involuntary servitude
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T. Ex post facto laws and bills of attainder
1. Ex Post Facto Law
1. An ex post facto law is a RETROACTIVE law that makes a previous act
criminal, although it was not criminal at the time it was committed.
2. Characteristics: (CRP)
1. It refers to criminal matters;
2. It is retroactive in application; and
3. It is prejudicial to the accused.
3. Kinds of Ex Post Facto Laws
 1. Law making an act criminal which was not so before its passage;
2. Law aggravating the penalty for a crime committed before its passage;
3. Law inflicting a greater or more severe penalty;
4. Law altering the legal rules of evidence and allowing the receipt of
less or different testimony than what the law required at the time of
commission, in order to convict
accused;
5. Law assuming to regulate civil rights and remedies only, in effect
imposes a penalty of deprivation of right for something which when
done was lawful; and
6. Law depriving accused of some lawful protection to which he had
been entitled, such as protection of a former conviction or acquittal,
or a proclamation of amnesty (U.S. v. Diaz-Conde).
2. Bill of Attainder
1. It is a legislative act (law) that inflicts punishment without trial. It
substitutes legislative fiat for a judicial determination of guilt.
2. For a law to be considered a bill of attainder, it must be shown to contain
all of the following: "a specification of certain individuals or a group of
individuals, the imposition of a punishment, penal or otherwise, and the
lack of judicial trial."
1. The most essential of these elements is the complete exclusion of
the courts from the determination of guilt and imposable penalty
3. The RPC provides that the failure of the accountable public officer to
account for public funds is a prima facie evidence of malversation. Is this a
bill of attainder?
1. No, because there is still a judicial trial. The prima facie evidence
merely shifts the burden of evidence from the prosecution to the
accused. The accused can still rebut that presumption during trial.