V.

EQUAL PROTECTION CLAUSE

1. Article III, Section 1
2. Article II. DECLARATION OF PRINCIPLES AND STATE POLICIES
a. Section 14. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.
b. Section 22. The State recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and development.
3. Article IV. Citizenship
4. Article XII. NATIONAL ECONOMY AND PATRIMONY
a. Section 2.
b. Section 22

DEFINITION:
1. It is a specific constitutional guarantee of the Equality of the Person
2. The equality it guarantees is legal equality or, the equality of persons before the law.
3. Under which, each individual is dealt with as an equal person in the law,
4. Which does not treat person differently because of
a. who he is or
b. what he is or
c. what he possesses.
5. The goddess of justice is portrayed with a blindfold, not because she must be hindered in seeing
where the right lies,
6. But that she may not discriminate against suitors before her, dispensing instead an even handed
justice to all.

EQUAL – can have different meanings; very subjective; perception differs on where we come from

 EQUAL PROTECTION requires that All persons or things similarly situated (based on gender,
race, nationality, age, etc) to be treated alike both as to rights conferred and responsibilities
imposed.

Application of EP Clause
1. Natural persons
2. Juridical persons

 Artificial persons are entitled to the protection only insofar as their property is concerned

Equality vs Equity
Equality Equity
Treating everyone equally by giving them the Treating everyone equitably, by giving each one
same support. different support to level off the playing field,.

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EQUALITY AMONG EQUALS.

 In law, point of reference must be established, because it is difficult to identify all persons, thus, some
laws violate equal protection of law clause.
 EP does not require universal application of the laws, that is, it cannot operate on all the people
without distinction. If so, it would result in UNEQUAL PROTECTION. If people are not similarly
situated, the law is not required to provide for equality among them.
 As such, EP allows CLASSIFICATION.

STANDARDS FOR JUDICIAL REVIEW

1. Whether the State was justified in making a classification at all.

Three (3) Kinds of Scrutiny

rational basis scrutiny Strict scrutiny intermediate scrutiny
The classification should bear a In which a legislative In which the government must
reasonable relation to the classification which show that the challenged
government’s purpose impermissibly interferes with the classification serves as an
exercise of a fundamental right important state interest and that
or operates to the peculiar the classification is at least
advantage of a suspect class is substantially related to serving
presumed unconstitutional. The that interest. Applicable to
burden is upon the government certain sensitive but not suspect
to prove that the classification is classes; certain important but
necessary to achieve a not fundamendal interest
compelling state interest and
that it is the least restrictive
means to protect such interest.
It is applied when the
classification has a suspect
basis.
(The govenment need only show (The government must show that (The government must show that
that the challenged classification is the challenged classification serves the challenged classification serves
rationally related to serving a a compelling state interest and that an important state interest and that
legitimate state interest.) the classification is necessary to the classification is at least
 Classification must be serve that interest.): substantially related to serving that
reasonable Fundamental right is the issue; interest.):
digging further
Minimum scrutiny applies to all A. Suspect Classifications: Quasi-Suspect Classifications:
classifications other than those 1. Race 1. Gender
involving suspect and quasi-suspect 2. National Origin 2. Illegitimacy
classifications 3. Religion
4. Alienage

 The SC shoots this down.

B. Classifications Burdening
Fundamental Rights
1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as
Fundamental

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 rational basis scrutiny intermediate scrutiny Strict scrutiny
requires only that the purpose of the requires that the purpose of the requires that the legislative or
legislative or executive act not be legislative or executive act be an executive acts purpose be a
invidious or arbitrary, and that the important governmental interest and compelling state interest and that
acts classification be reasonably that the acts classification be the acts classification be narrowly
related to the purpose. significantly related to the tailored to the purpose.
purpose. Intermediate scrutiny has
applied to legislative or executive applied to classifications based on triggered in two situations: (1)
acts that have the general nature of gender and [Link] where the act infringes on a
economic or social welfare rationale for this higher level of fundamental right; and (2) where
legislation. scrutiny is that gender and the acts classification is based on
illegitimacy classifications race or national origin.
historically have resulted from
invidious discrimination.
While purporting to set limits, However, compared to strict While strict scrutiny purports to be
rational basis scrutiny in practice scrutiny, intermediate scrutiny’s only a very close judicial
results in complete judicial presumption of invidious examination of legislative or
deference to the legislature or discrimination is more readily executive acts, for all practical
executive. Thus, a legislative or rebutted, since benign motives are purposes, an act subject to strict
executive act which is subject to more likely to underlie scrutiny is assured of being held
rational basis scrutiny is for all classifications triggering unconstitutional.
practical purposes assured of being intermediate scrutiny.
upheld as constitutional.

2. Whether the classification was valid.

CLASSIFICATION IN LAW

 The grouping of persons or things similar to each other in certain particulars and different from all
others in these same particulars. Given this, a law is not invalid because of simple inequality.
 But classification must be reasonable, which means that …

Four (4) Requisites of Valid Classification

1. It should be based on substantial distinctions which makes for real differences

2. It must be germane [relevant] to the purpose of the law
3. It must Not be limited to existing conditions only [duration]; and
4. It must apply equally to each member of the class.

substantial distinctions  Given existing divide, e.g., gender, age

 To be valid (to justify differences in treatment; that there is no
discrimination; there no preferential treatment, and there is
no infringement of equal protection clause), distinction must
be substantial.
 as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him
[justifies the application of law].
 There must be basis for the classification, not random.
 Physical differences can be the basis of a valid classification.
relevance to the purpose  Be sure that the classification is important to the law you are
of the law making, e.g. Anti-Violence against Women and Children,
maternity leave
duration  The classification must be enforced not only for the present
but as long as the problem sought to be corrected continue to
exist.

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  To be reasonable, the classification should be applicable to
future conditions as well.
 Need to envision everything down the line; if things change, would
the law remain valid?
 Think of every situation that might arise
 ALTERED CIRCUMSTANCES, .e.g, view on divorce
Applicability to all  The classification will be regarded as invalid if all the members of
the class are not similarly treated, both as to the rights conferred
and obligations imposed.
 Can’t have UNEQUAL treatment in the same class

 If classification is reasonable, the law may operate only on some and not all of the people
without violating the equal protection clause.
 It guarantees equality, not identity of rights.
o That nobody will be accorded special privileges
o What it prohibits is unequal treatment within the same class

Characteristics of Classification
1. Definitive
2. Measurable

Affirmative Action – giving some sectors who have less preferential treatment, e.g., 50%-50% male-
female quota in the Philippine General Hospital, top ten of each high school go to UP.

Philippine Cases
1. People vs. Cayat Equal protection does not prohibit classification, but the classification must
be reasonable. Cite the 4-pronged test.
2. International Giving higher pay to foreign hires than Filipinos of equal rank is
School Alliance of unconstitutional.
Educators vs 1. The principle of “equal pay for equal work” requires that persons who
Quisumbing work with substantially equal qualification, skill, effort and responsibility,
under similar conditions, should be paid similar salaries.
2. Salaries should not be used as an enticement to attract foreign-hires to
the prejudice of local-hires.
3. The dislocation factor and limited tenure affecting foreign-hires are
adequately compensated by certain benefits accorded them which are
not enjoyed by local-hires such as housing, transportation, shipping
costs, taxes and home leave travel allowances.
3. Quinto vs Comelec The law that prescribes that an appointive officials who files a certificate of
candidacy is considered resigned does not apply to elected officials.
1. They do not belong to the same class.
2. Appointed officials can be replaced.
3. Elected officials cannot be replaced.
4. Biraogo vs Truth The Truth commission tasked to investigate graft and corruption committed
Commission during the Arroyo Administration is violates equal protection for focusing only
of what happened during the arroyo administration,
5. Pichay vs Odesa
6. Ladlad vs Comelec Anti-discriminatory
7. Ormoc Sugar Imposing a tax on a particular company is discriminatory against the same,
Central vs Ormoc particularly when another company arises in the future.
City
8. Remman
9. Phil. Judges Assoc
vs Prado

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VI. FREEDOM OF SPEECH AND EXPRESSION
 Freedom of speech – sensitive, depends on which side you’re in
 “unprotected speech” – all opinions are welcome; everybody has an opinion

HIERARCHY OF RIGHTS (Doctrine of Preferred Freedom)

[Phil Blooming Mills…]
 While the Bill of Rights also protects property rights, the primacy of human rights over property rights
is recognized...
 In the hierarchy of civil liberties, the rights of free expression [and speech] and of assembly
occupy a preferred position…
 The superiority of these freedoms over property rights is underscored by the fact that a mere
reasonable or rational relation between the means employed by the law and its object or purpose —
that the law is neither arbitrary nor discriminatory nor oppressive — would suffice to validate a law
which restricts or impairs property rights.
 But a constitutional or valid infringement of human rights requires a more stringent criterion, namely
existence of a grave and immediate danger of a substantive evil which the State has the right to
prevent.

Eight (8) RIGHTS AIMED AT INSURING THE FREE AND EFFECTIVE COMMUNICATION OF IDEAS:
1. Freedom of speech and expression [Section 4]
2. Freedom of the press [Section 4]
3. Freedom of assembly [Section 4]
4. Freedom of petition [Section 4]
5. Freedom of religion [Section 5]
6. The right to access information on matters of public concern [Section 7]
7. The right of association [Section 8]
8. The right not to be detained solely by reason of one’s political beliefs and aspiration [Section 18(1)]

Freedom of The doctrine on freedom of speech was formulated primarily for the protection of
speech and “core” speech, i.e. speech which communicates political, social or religious
ideas. These enjoy the same degree of protection. Commercial speech, however,
expression does not.

A right but it is not ABSOLUTE. It must be exercised within the bounds of law,
morals, public policy and public order, and with due regard for others’ rights. Thus,
obscene, libelous, and slanderous speeches are not protected by the guarantee. So
are seditious and fighting words that advocate imminent lawless conduct.

In 1919, Justice Holmes filed a dissent in Abrams vs. United States in which he
created the powerful and enduring "marketplace of ideas" metaphor to
encapsulate the concept of freedom of speech. In the marketplace metaphor, ideas
compete against one another for acceptance - with the underlying faith that truth will
prevail in such a free and open encounter… that the best test of truth is the power
of the thought to get itself accepted in the competition of the market… In a true
marketplace of ideas, the ability of the government to regulate communications is
strictly limited.

The case of Diocese of Bacolod vs Comelec provides the rationale to protect the
right to FOE:
1. Deliberative democracy – It is the right of the people to participate in public
affairs, including the right to criticize government actions. Speech that promotes
dialogue on public affairs, or airs out grievances and political discontent, should
thus be protected and encouraged.

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2. Marketplace of ideas - Free speech should be encouraged under the concept of
a market place of ideas.
3. Free speech involves self-expression that enhances human dignity. This right is
a means of assuring individual self-fulfillment, among others
4. Expression is a marker for group identity.
5. the Bill of Rights, free speech included, is supposed to protect individuals and
minorities against majoritarian abuses perpetrated through the framework of
democratic governance. and
6. Free speech must be protected under the safety valve theory. In order to avoid
this situation and prevent people from resorting to violence, there is a need for
peaceful methods in making passionate dissent. Free speech must, thus, be
protected as a peaceful means of achieving one’s goal, considering the
possibility that repression of nonviolent dissent may spill over to violent means
just to drive a point.

Facial Challenge
a facial challenge is a challenge to a statute in court, in which the plaintiff alleges
that the legislation is always, and under all circumstances, unconstitutional, and
therefore void. The U.S. Supreme Court has created a notable exception to the
prohibition against third-party standing. Under the exception, a petitioner may
mount a facial challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute. To mount a facial challenge, a
petitioner has only to show violation under the assailed statute of the rights of third
parties not before the court. This exception allowing facial challenges, however,
applies only to statutes involving free speech. The ground allowed for a facial
challenge is overbreadth or vagueness of the statute.

It is contrasted with an as-applied challenge, which alleges that the statute may be,
in part, unconstitutional, in redress of specific and particular injury. The as applied
approach embodies the rule that one can challenge the constitutionality of a statute
only if he asserts a violation of his own rights. The rule prohibits one from
challenging the constitutionality of the statute based solely on the violation of the
rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.

Overbreadth Doctrine
A statute is overbroad where it operates to inhibit the exercise of individual
freedoms guaranteed by the constitution, such as the freedom of religion or speech.
When it includes within its coverage not only unprotected activity but also activity
protected by the constitution.

It applies both to free speech cases and penal statutes. However, a facial challenge on
the ground of overbreadth can only be made in free speech cases because of its chilling
effect upon protected speech.

This principle applies more to felonies or offenses which conflict with the freedom of
expression and association such as prosecution for libel, inciting to rebellion or
sedition, and violation of the Election Code

Chilling Effect:
The rationale for this exception allowing a facial challenge is to counter the chilling
effect on protected speech that comes from statutes violating free speech. A person
who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply refuse to speak to avoid being charged of a crime. The
overbroad or vague law chills him into silence.

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Modes of Expression
1. Language
a. Written
b. Spoken
2. Symbolic

Two (2) Forms of Abridgement of freedom of the expression.

(1) freedom from prior restraint or censorship;
(2) freedom from punishment subsequent to publication;

What are considered protected speech:

Protected speech includes every form of expression, whether oral, written, tape or
disc recorded. It includes motion pictures as well as what is known as symbolic
speech such as the wearing of an armband as a symbol of protest. Peaceful
picketing has also been included within the meaning of speech.

prior restraint subsequent punishment

means freedom from censorship or refers to the assurance that citizens
governmental screening of what is can speak and air out their opinions
politically, morally, socially, and without fear of vengeance by the
artistically correct. In here, persons government. Subsequent chastisement
and the media are freed from total has the effect of unduly curtailing
suppression or restriction by the expression, and thus freedom
government of what could be therefrom is essential to the freedom of
disseminated, and prevents the speech and the press.
government from being a subjective
arbiter of what is acceptable and not.
Although the system of prior restraint The State, however, can validly
is presumed unconstitutional, it is impose subsequent punishment under
allowed under the following the following instances:
instances:[24] 1. Libel which is the most common
1. Undue utterances in time of war; form of subsequent punishment,
2. Actual obstruction or unauthorized refers to a public and malicious
dissemination of military imputation of a crime, vice or
information; defect, real or imaginary or any act
3. Obscene publication; and or omission, status tending to
4. Inciting to rebellion. cause dishonor, discredit or
contempt of a natural or juridical
person, or blacken the memory of
one who is dead;
2. Obscenity which includes works
(taken as a whole) appealing to
prurient interest or depicting sexual
conduct as defined by law or
lacking of serious literary, artistic,
political or scientific value;
3. Criticism of official conduct made
with actual malice; and
4. School articles which materially
disrupt class work or involves
substantial disorder or invasion of
rights of others

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 As a constitutional principle the
doctrine that, with some narrow
exceptions, the government could not
censor or otherwise prohibit a
publication in advance, even though
the communication might be
punishable after publication in a
criminal or other proceeding. (Near vs
Minnesota)

Restraint upon these freedoms may either be content-based or content-

neutral

Two (2) Kinds of Restrictions

content-based regulation content-neutral regulation
Based on the subject matter of the Concerned with the Incidents of the
utterance or speech; speech or one that merely controls the
time, place or manner, and under well
defined standards
Aimed at the contents or idea of the Intends to regulate the time, place and
expression; to control what the speaker manner of the expression under well-
may say defined standards tailored to serve a
compelling state interest, without
restraint on the message of the
expression; to control when or where
the speaker may speak.
Example: when the government Example: when the government
prohibits speeches against the regulates the manner of posting
President, in which case the restriction campaign advertisements, in which
is on the speech itself. case the restriction is on the manner the
right is made.
Appropriate test: clear and present Appropriate test: intermediate approach
danger test
inasmuch as the restraint is only
This is to give the government a heavy regulatory and does not attack the
burden to show justification for the speech directly.
imposition of such prior restraint which
bears a heavy presumption of
unconstitutionality.

Speech Plus: Symbolic Speech

is recognized as being protected under the First Amendment as a form of speech,
but this is not expressly written as such in the document. It involves the
communication of ideas through the combination of language and action—
such as the burning of a draft card while stating opposition to the military—
as opposed to purespeech, which involves the use of written or oral words alone.

Like any other mode of expression, speech plus may be

entitled to protection from interference by the government pursuant to the guarantee
of the First Amendment to the
Constitution, depending upon the nature of the expression, the circumstances in
which it is expressed, and the danger it
poses to society. Speech plus is often called speech plus conduct.

Page 8 of 35
 Advocacy of Abstract Doctrine
We do not believe that mere membership in the Communist Party or in the CLO
renders the members liable either of rebellion or of conspiracy to commit rebellion,
because mere membership and nothing more merely implied advocacy of abstract
theory or principle without any action being induced thereby; and that such
advocacy becomes criminal only if it is coupled with action or advocacy of action,
namely actual rebellion or conspiracy to commit rebellion, or acts conducive thereto
or evincing the same.
Imminent Action/Direct Incitement/National Security

Freedom from Punishment

Tests to Determine When Right Maybe Suppressed
1. Dangerous Tendency Test – which provides that if a speech is capable of
producing a substantive evil which the State is mandated to suppress or
prevent, even if it did not materialize, the State is justified of restricting the right.
This rule has already been abandoned;
2. Clear and Present Danger Test –which is a more libertarian rule, provides that
the finding out of substantive evil is not enough to suppress the right. Rather
the substantive evil must have clear and present danger type depending on the
specific circumstances of the case. This rule is consistent with the principle of
“maximum tolerance” and is often applied by the Court in freedom of expression
cases;
3. Balancing of Interest - which provides that when there is conflict between a
regulation and freedom of speech, the court has the duty to determine which of
the two demands greater protection;
4. Grave but improbable danger - which was meant to supplant the clear and
present danger test, determines whether the gravity of the evil, less its
improbability to happen, can justify the suppression of the right in order to avoid
the danger;
5. Direct Incitement Test - which determines what words are uttered and the
likely result of the utterance, that is, whether or not they will directly incite or
produce imminent lawless action.
Free Speech and Suffrage

Use of Private Property as a Forum for other’s speech

Content-Neutral Test
O’Brien Test - which provides that when “speech” and “non-speech” elements are
combined in the same course of conduct, a sufficiently important government
interest that warrants the regulation of the “non-speech” element can also justify
incidental limitations on the speech element;
Hierarchy of Speech
1. Religious Speech – FoE, FoR
2. Political Speech – FoE
3. Academic
4. Artistic
5. Commercial Speech – [not protected speech]
Freedom of
the press

Freedom of 1. Meaning. Freedom of assembly refers to the right to hold a rally to voice out
assembly grievances against the government.

Page 9 of 35
 2. Freedom not Subject to Prior Restraint. As a rule, freedom of assembly is not
subject to prior restraint or prior issuance of permit by government authorities.
Nevertheless, it must be exercised in such a way that will not to prejudice public
welfare. Freedom of assembly is reinforced by Batas Pambansa Blg. 880,
otherwise known as the Public Assembly Acts of 1985, which basically provides
the requirements and procedure for holding rallies. It also implements the
observance of “maximum tolerance” towards participants of rallies consistent
with the clear and present danger test.

3. Permit Requirement. Under the said law, permit is required to hold a rally. It
must be emphasized, however, that the permit is not a requirement for the
validity of the assembly or rally, because the right is not subject to prior
restraint. Rather, the permit is a requirement for the use of the public place.

4. When Permit not Required. Permit is not required if the rally is held in a private
place, in a campus of a state college or university, or in a freedom park, in
which case only coordination with the police is required. If the application for
permit is not acted upon by the mayor within two working days, then the same
is deemed granted.

5. Political rally during election is regulated by the Omnibus Election Code, not by
BP 880.

Rules on assembly in public places:

1. Applicant should inform the licensing authority of the date, the public place
where and the time when the assembly will take place.
2. The application should be filed ahead of time to enable the public official
concerned to appraise whether there are valid objections to the grant of the
permit or to its grant, but in another public place. The grant or refusal should be
based on the application of the Clear and Present Danger Test.
3. If the public authority is of the view that there is an imminent and grave danger
of a substantive evil, the applicants must be heard on the matter.
4. The decision of the public authority, whether favorable or adverse, must be
transmitted to the applicants at the earliest opportunity so that they may, if they
so desire, have recourse to the proper judicial authority.

Rules on assembly in private properties:

Only the consent of the owner of the property or person entitled to possession
thereof is required.

Freedom of HECKLER'S VETO

petition A heckler's veto occurs when an acting party's right to freedom of speech is
curtailed or restricted by the government in order to prevent a reacting party's
behavior. The common example is that of demonstrators (reacting party) causing a
speech (given by the acting party) to be terminated in order to preserve the peace.

Constitutional law prohibits heckler’s veto where an audience member claims to be

provoked into a violent response, thus censoring the speaker when the authorities
ask him to stop to restore order.
Arroyo government’s Calibrated Preemptive Response policy is unconstitutional.
CPR bans rallies without permits and authorizes government’s agents to respond to
such assemblies accordingly. the Court ordered the government to stop using the
CPR policy and “strictly observe the requirements of maximum tolerance.”

Page 10 of 35
Freedom of
religion
The right to 1. Constitutional Provision. Section 7, Article III provides that “the right of the people
access to information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or
information decisions, as well as to government research data used as basis for policy
on matters development, shall be afforded the citizen, subject to such limitations as may be
of public provided by law.”
concern 2. Scope and Limitation. The right guarantees access to official records for any
lawful purpose. However, access may be denied by the government if the
information sought involves: (a) National security matters, military and diplomatic
secrets; (b) Trade or industrial secrets; (c) Criminal matters; and (d) Other
confidential information (such as inter-government exchanges prior to consultation
of treaties and executive agreement, and privilege speech).

The right of 1. Constitutional Provision. Section 8, Article III provides that “the right of the
association people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be
abridged.”

2. Who may Exercise the Right. The right of association may be exercised by the
employed or the unemployed and by those employed in the government or in
the private sector. It likewise embraces the right to form unions both in the
government and private sector. The right of civil servants to unionize is
expressly provided in Section 2(5), Article IX-B: “The right to self-organization
shall not be denied to government employees.” The right of labor in general to
unionize is likewise provided in Section 3, Article XIII: “[The State] shall
guarantee the rights of all workers to self-organization, collective bargaining
and negotiations, and peaceful concerted activities, including the right to strike
in accordance with law.”

3. Right to Strike not Included. The right to form associations or to self-

organization does not include the right to strike. Thus, public school teachers do
not enjoy the right to strike even if they are given the constitutional right of
association. The terms and conditions of employment in the Government,
including in any political subdivision or instrumentality thereof and government
owned and controlled corporations with original charters, are governed by law
and the employees therein shall not strike for purposes of securing changes.

The right not

to be
detained
solely by
reason of
one’s
political
beliefs and
aspiration

Unprotected Speech
1. obscenity/pornography I know it when I see it; subjective; subjected to community standards;
need to check previous standards of community during that time.

Page 11 of 35
 Miller Test
1. Whether “the average person, applying contemporary community
standards”, would find that the work, taken as a whole, appeals to
the prurient interest,
2. Whether the work depicts or describes, in a patently offensive way,
sexual conduct or excretory functions[ specifically defined by
applicable state law,
3. Whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
2. Libel/defamation, Truth is the best defense.

Puts onus on the victim to prove reckless disregard of truth

Actual Malice Test: in order to justify a conviction for criminal libel

against a public figure, it must be established beyond reasonable doubt
that the libelous statements were made or published with actual malice,
meaning knowledge that the statement was false or with reckless
disregard as to whether or not it was true.

A newspaper especially one national in reach and coverage, should be

free to report on events and developments in which the public has a
legitimate interest with minimum fear of being hauled to court by one
group or another on criminal or civil charges for libel, so long as the
newspaper respects and keeps within the standards of morality and
civility prevailing within the general community.

The Court reasoned that free and open debate about the conduct of
public officials was more important than occasional, honest factual
errors that might hurt or damage officials’ reputations. Some students
will agree, citing the chilling effect it would have on a free press if
newspapers had to check the veracity of all statements about public
officials, even those in paid advertisements. Criticism of public officials
(which can be almost impossible to prove or disprove) could be
silenced as a result. Furthermore, the press freedom protected by the
First Amendment was intended to protect citizens’ ability to discuss
political matters and check government abuse. Others may disagree
with the Court, saying that newspapers have a responsibility to check
every fact they print.
3. Infringes upon right to Prominent public persons must prove actual malice on the part of the
privacy – PUBLIC news media in order to prevail in a libel lawsuit. Actual malice is the
FIGURE DOCTRINE knowledge of falsity or reckless disregard of whether a statement is
true or false. The public figure doctrine makes it possible for publishers
to provide information on public issues to the debating public,
undeterred by the threat of liability.

A limited intrusion into a person’s privacy has long been regarded as

permissible where that person is a public figure and the information
sought to be elicited from him or to be published about him constitute of
a public character.
4. Fighting Words, does not protect fighting words, which are those that inherently cause
Offensive words harm or are likely to result in an immediate disturbance.

5. Hate speech Inciting violence, deep-seated hate

6. Seditious speech Advocating unlawful doctrine, bringing down the government; political
dissenters

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7. Advertising Commercial speech (government protected)
Commercial speech is communication which involves only the commercial
interest of the speaker and the audience, such as advertisements.

Commercial speech is entitled to constitutional protection.

Commercial speech may be required to be submitted to a government

agency for review to protect public interests by preventing false or
deceptive claims.

Four Requirements (Bernas)

1. Xxx
2. Xxx
3.
8. Speech in special
places

9. Freedom of the press

10. Freedom of Assembly Freedom of assembly is reinforced by Batas Pambansa Blg. 880,
and Petition otherwise known as the Public Assembly Acts of 1985, which
basically provides the requirements and procedure for holding
rallies. It also implements the observance of “maximum tolerance”
towards participants of rallies consistent with the clear and present
danger test.

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VII. PRIVACY OF COMMUNICATION AND CORRESPONDENCE

1. Subject of the Right. Invasion of communication and correspondence is one kind of search.
However the subject of search is not a tangible object but an intangible one, such as
telephone calls, text messages, letters, and the like. These forms of communication and
correspondence may be intruded into by means of wiretapping or other means of electronic
eavesdropping. What the constitution prohibits is government intrusion, by means of
wiretapping or electronic eavesdropping, into the privacy of communication without a lawful
court order or when public safety and order does not demand.

2. Rule. As a rule, the government cannot intrude into the privacy of communication and
correspondence. The exceptions are: (a) when the court allows the intrusion, and (b) when
public safety and order so demands.

Anti-Wire Tapping Act 1. R.A. 4200 or the Anti-Wire Tapping Act, as a reinforcement of
privacy of communication, is a law which prohibits a person not
authorized by all the parties to any private communication, to wire
tap or use any devise to secretly overhear, intercept, record, or
communicate the content of the said communication to any person.
2. Wire tapping or the use of record may be permitted in civil or
criminal proceedings involving specified offenses principally
affecting national security, and only with previous authorization by
the court which must comply with the requirements of a warrant.
The authority is effective only for sixty days.
3. The law does not distinguish between a party to the private
communication or a third person. Hence, both a party and a third
person could be held liable under R.A. 4200 if they commit any of
the prohibited acts under R.A. 4200 (Ramirez v. Ca)
4. The use of a telephone extension to overhear a private
conversation is not a violation of R.A. 4200 because it is not similar
to any of the prohibited devices under the law. Also, a telephone
extension is not purposely installed for the purpose of secretly
intercepting or recording private communication. (Gaanan v. IAC,
145 SCRA 112)

RA 10173, or the Data protects individuals from unauthorized processing of personal

information that is (1) private, not publicly available; and (2) identifiable,
Privacy Act, where the identity of the individual is apparent either through direct
attribution or when put together with other available information.

5 elements:
1. Appointing a Data Protection Officer
2. Conducting a privacy impact assessment
3. Creating a privacy knowledge management program
4. Implementing a privacy and data protection policy
5. Exercising a breach reporting procedure

The Anti-Photo and was passed as a solution to prevent the proliferation of scandals the
most notable of which is the the one which involved Dr. Hayden Kho,
Video Voyeurism Act of Dr. Maricar Reyes as well as actress Katrina Halili. The law itself
2009 provides that its main objective is to penalize acts that will destroy the
honor, integrity and dignity of a person.

Page 14 of 35
 The Human Security Act otherwise known as Republic Act No. 9372, was enacted by the
13th Congress of the Philippines. The law took effect on July 15, 2008,
(HSA) of 2007 providing a legal framework for the government’s anti-terrorism strategy
and security policies.
National ID Cases
Writ of Habeas Data The writ of habeas data is a remedy available to any person whose
right to privacy in life, liberty, or security is violated or threatened to be
violated by an unlawful act or omission of a public official or employee,
or of a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home, and
correspondence of the aggrieved party.

The judicial remedy, approved on Jan. 22, 2008, and which took effect
on Feb. 2, 2008, was crafted amid an alarming rise in the number of
forced disappearances and extrajudicial executions, including the
murders of leftist militants and journalists during the Arroyo
administration.

The writ of habeas data functions as an independent remedy as well as

a complement to the writs of habeas corpus and amparo—both of
which are aimed at protecting the right to life, liberty and security,
especially of victims of politically motivated crimes.

Read Vivares vs STC.

REASONABLE EXPECTATION OF PRIVACY TEST

In the 1967 case of Katz v. United States, the US Supreme Court held that the act
of FBI agents in electronically recording a conversation made by petitioner in an
enclosed public telephone booth violated his right to privacy and constituted a
search and seizure. Because the petitioner had a reasonable expectation of privacy
in using the enclosed booth to make a personal telephone call, the protection of the
Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice
Harlan, it was further noted that the existence of privacy right under prior decisions
involved a two-fold requirement:
1. first, that a person has exhibited an actual (subjective) expectation of privacy;
and
2. second, that the expectation be one that society is prepared to recognize as
reasonable (objective).[32]

Page 15 of 35
VIII. FREEDOM OF RELIGION AND NON-ESTABLISHMENT OF
RELIGION

Separation of Church Article II. DECLARATION OF PRINCIPLES AND STATE POLICIES

and the State
Section 6. The separation of Church and State shall be inviolable.

Article VI. THE LEGISLATIVE DEPARTMENT

Section 29 (2). No public money or property shall be appropriated, applied,
paid, or employed, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution, or system of religion, or of
any priest, preacher, minister, or other religious teacher, or dignitary as
such, except when such priest, preacher, minister, or dignitary is assigned to
the armed forces, or to any penal institution, or government orphanage or
leprosarium.

Free Exercise of Distinction between the clauses (School District v. Schempp, 374 US
Religion 203)
1. The non-establishment clause does not depend upon any showing
of direct governmental compulsion. It is violated by the enactment of
laws which establish an official religion whether those laws operate
directly to coerce non-observing individuals or not. The test of
compliance with the non-establishment clause can be stated as
follows: What are the purposes and primary effect of the
enactment? If either is the advancement or inhibition of religion, the
law violates the non-establishment clause. Thus, in order for a law to
comply with the non-establishment clause, two requisites must be
met. First, it has a secular legislative purpose. Second, its primary
effect neither advances nor inhibits religion.

2. The free exercise of religion clause withdraws from legislative

power the exertion of any restraint on the free exercise of religion. In
order to show a violation of this clause, the person affected must
show the coercive effect of the legislation as it operates against him in
the practice of his religion. While the freedom to believe (non-
establishment) is absolute, the moment such belief flows over into
action, it becomes subject to government regulation.

Non establishment Non-establishment Clause

clause 1. Constitutional Provision. Section 5, Article III provides that “no law shall be
made respecting an establishment of religion, or prohibiting the free exercise
thereof.”

2. Explanation. The non-establishment clause holds that the State cannot

set up a church or pass laws aiding one religion, all religion, or preferring
one over another, or force a person to believe or disbelieve in any religion. In
order words, it prohibits the State from establishing an official religion. It
discourages excessive government involvement with religion and manifest
support to any one religious denomination. Manifestly, the clause is rooted in
the principle of separation of church and state.

3. Particular Prohibitions. In particular, the non-establishment clause

prohibits, among others, prayers of a particular denomination to start a class
in public schools, financial subsidy of a parochial school, display of the ten

Page 16 of 35
commandments in front of a courthouse, law prohibiting the teaching of
evolution, mandatory reading of the bible, and using the word “God” in the
pledge of allegiance.

4. Exceptions to the Prohibition. The clause, however, permits the

following:

(a) Tax exemption on property “actually, directly and exclusively used” for
religious purposes;

(b) Religious instruction in sectarian schools and expansion of educational

facilities in parochial schools for secular activities;

(c) Religious instruction in public schools, elementary and high school, at the
option of parents or guardians expressed in writing, within regular class
hours by designated instructors, and without additional costs to the
government;

(d) Financial support given to priest, preacher, minister, or dignitary assigned

to the armed forces, penal institution or government orphanage or
leprosarium;
(e) Government sponsorship of town fiestas which traditions are used to be
purely religious but have now acquired secular character; and

(f) Postage stamps depicting Philippines as the venue of a significant

religious event, in that the benefit to religious sect is incidental to the
promotion of the Philippines as a tourist destination.

Requisites for government aid to be allowable:

1. It must have a secular legislative purpose;
2. It must have a primary effect that neither advances nor inhibits
religion;
3. It must not require excessive entanglement with recipient institutions.

Tests to Determine whether Governmental Act Violates Freedom of

Religion
1. Different tests are used to determine if there are governmental violations
of non-establishment clause and free exercise clause. On the on
hand, Lemon Test is used to determine whether an act of the
government violates the non-establishment clause. Under this test, a law
or a governmental act does not violate the clause
a. when it has a secular purpose,
b. does not promote or favor any set of religious beliefs, and
c. does not get the government too entangled with religion.

2. On the other hand, Compelling State Interest Test and Clear and
Present Danger Test are used to determine whether there is violation of
free-exercise clause.
a. Compelling state interest test is used to determine if the interests
of the State are compelling enough to justify intrusion into an
individual’s freedom of religion. Under this test, government
infringement is justified if the burden it creates on freedom of religion
is due to a sufficiently compelling state interest and the means used
to attain its purpose is the least intrusive.
b. Clear and present danger test is used to determine whether the
circumstance are of such nature as to create a clear and present

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 danger that will bring about a substantive evil which the state has the
right to prevent.

3. Example. In one case, the Court held that expulsion from school is
unjustified if is based on the conflict between religious beliefs and school
practices (saluting the flag). The expulsion violates the right of children
to education. Using the clear and present danger test, the Court held
that the danger of disloyalty which the government is trying to prevent
may be the very same thing that it advocates if expulsion is validated.
Times have changed. Freedom of religion is now recognized as a
preferred right.

Two Aspects of Freedom of Religion

Freedom of religion has two aspects:
1. the freedom to believe. The first aspect is in the realm of the mind, and
as such it is absolute, since the State cannot control the mind of the
citizen. Thus, every person has the absolute right to believe (or not to
believe) in anything whatsoever without any possible external restriction
by the government. The aspect refers to the externalization of belief as it
is now brought out from the bosom of internal belief. Since it may affect
peace, morals, public policy, and order, the government may interfere or
regulate such aspect of the right.

2. the freedom to act on one’s belief . The second aspect is expressed in

Section 5, Article III, thus “… The free exercise and enjoyment of
religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.”

Benevolent neutrality recognizes that government must pursue its secular

goals and interests but at the same time strives to uphold religious liberty to
the greatest extent possible within flexible constitutional limits. Thus,
although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it
does not offend compelling state interests. (Estrada v. Escritor, A.M. No. P-
02-1651. August 4, 2003, Justice Puno)

The compelling state interest test involves a three-step process.

1. First, has the statute created a burden on the free exercise of religion?
2. Second, is there a sufficiently compelling state interest to justify this
infringement of religious liberty?
3. Third, has the State, in achieving its legitimate purposes, used the least
intrusive means possible, so that free exercise has not been infringed
any more than necessary to achieve its legitimate goal?

Conscientious Objector Test

A conscientious objector is someone who sincerely claims the right to refuse
to perform military service and salute a flag on the grounds of freedom of
thought, conscience, and/or religion. He may be granted exemption from
military service or from saluting the flag if he establishes that his objection is
“sincere,” based on “religious training and belief,” and not arbitrary.

Unusual Religious
beliefs and practices

Page 18 of 35
Religious Solicitations
Under Presidential Decree No. 1564, also known as the Solicitation Law, permit is required before
solicitations for “charitable and public welfare purposes” may be carried out. The purpose of the law
is to protect the public from fraudulent solicitations. Nonetheless, permit is no longer required if the
solicitation is for “religious purposes.” Fraud is much less in religion. If the law is extended to
religion, then it becomes unconstitutional; it constitutes restriction on freedom of religion as
resources necessary for maintenance are deprived of churches.

IX. SEARCHES AND SEIZURES

Scope. The protection extends to all persons, aliens or citizens, natural or juridical. It is a personal
right which may be invoked or waived by the person directly affected against unreasonable arrests or
searches by the government and its agencies. It cannot, however, be invoked against private
individuals.

1. Search Warrant Rules of Court. Rule 126 (Search and Seizure)

Section 1. Search warrant defined. — A search warrant is an order in writing

issued in the name of the People of the Philippines, signed by a judge and
directed to a peace officer, commanding him to search for personal property
described therein and bring it before the court.

Revised Penal Code

Art. 129. Search warrants maliciously obtained and abuse in the service of
those legally obtained. — In addition to the liability attaching to the offender for
the commission of any other offense, the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period and a fine not
exceeding P1,000 pesos shall be imposed upon any public officer or employee
who shall procure a search warrant without just cause, or, having legally
procured the same, shall exceed his authority or use unnecessary severity in
executing the same.

If search warrant was illegal obtained, you can file MOTION TO QUASH.

General warrants are those that do not particularly describe the place to be
searched or the persons or things to be seized. They are unconstitutional
because the sanctity of the domicile and privacy of communication and
correspondence of individuals are placed at the mercy, caprice, and passion of
peace officers.

2. Requisites for Rules of Court. Rule 126 (Search and Seizure)

the issuance of Section 4. Requisites for issuing search warrant. — A search warrant shall not
a Search issue except
warrant 1. upon probable cause in connection with one specific offense
2. to be determined personally by the judge
3. after examination under oath or affirmation of the

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 4. [personal knowledge of the] complainant and the witnesses he may
produce, and
5. particularly describing the place to be searched and the things to be seized
which may be anywhere in the Philippines.

3. Exclusionary 1. The exclusionary rule states that any evidence unlawfully obtained is
Rule/ Fruit of the inadmissible as evidence before the courts. This is based on Section 3(2),
Poisonous Tree Article III which provides that any evidence obtained in violation of right to
Doctrine. privacy of communication or right to due process of law shall be
inadmissible for any purpose in any proceeding. The same rule is applied to
any evidence taken in violate of R.A. 4200.

2. The rule is also called Fruit of the Poisonous Tree Doctrine. The name of
the doctrine metaphorically describes what happens to an “evidence” (fruit)
taken through “unlawful means” (poisonous tree). The evidence-fruit is
discarded because it may infect or destroy the integrity of the case and
forfeit the purpose of the law.

3. For example, if police officers search a house without a search warrant and
the same does not fall under any of the instances of a valid warrantless
search, the evidence obtained even if material in the case cannot be
admitted in court. Or if police officers wiretap a conversation without court
authorization, the recorded conversation shall be excluded as an evidence
in court. Thus, the evidences are said to be fruits of a poisonous tree.

4. Inevitable the law that states evidence that was found using illegal means could still be
Discovery admissible in court if the evidence would have been found eventually anyway
using legal means. Inevitable discovery basically means that the officers would
have found the evidence legally eventually.
5. Private Governmental Interference
Searches
Vessel Security Officer
6. Nature of the Personal right that can be waived
Right Protected;
waiver of
protected right
7. Scope of HE REVISED RULES OF CRIMINAL PROCEDURE
Protection Rule 126
Section 2. Court where application for search warrant shall be filed.
Section 3. Personal property to be seized.
Section 6. Issuance and form of search warrant.
Section 7. Right to break door or window to effect search.
Section 9. Time of making search.
Section 10. Validity of search warrant.

Section 11. Receipt for the property seized.

Section 12. Delivery of property and inventory thereof to court; return and
proceedings thereon.

A violation of this section shall constitute contempt of court.

8. Enhanced
Senses and
Reasonable

Page 20 of 35
 expectation of
privacy
9. Probable Cause i. Concept of Probable Cause in Search Warrant

For the issuance of a search For the issuance of a warrant of

warrant: arrest:

Probable cause would mean such Probable cause refers to such facts
facts and circumstances which would and circumstances which would lead
lead a reasonably discreet and a reasonably discreet and prudent
prudent man to believe that an man to believe that an offense has
offense has been committed and that been committed by the person
the objects sought in connection with sought to be arrested.
the offense are in the place to be
searched.

Note: Probable cause for the

issuance of a search warrant does
NOT require that the probable guilt of
a specific offender be established,
unlike in the case of a warrant of
arrest.

ii. Determining Probable Cause Person Authorized

iii. How is determined – personal examination by searching complainant

and witnesses

That the judge “personally” determines the probable cause means that “he
personally evaluates the report and the supporting documents submitted by
the public prosecutor regarding the existence of the probable cause,” or, if the
same is insufficient, “require additional evidence to aid him in arriving at a
conclusion as to the existence of probable cause.” Thus, personal
determination does not mean that he must personally examine the complainant
and his witnesses. He may rely on reports and evidence submitted to him, on
the basis of which he determines the existence of probable cause and orders
the issuance of warrant. What is prohibited is to rely solely on the
recommendation of the prosecutors without doing any determination on his
own;

iv. Description of the things to be seized

The property subject to search includes those used in the commission of the
offense, stolen or embezzled and other proceeds or fruits of the offense, or
used or intended to be used in the commission of the offense.

1. A search warrant may be said to particularly describe the things to be

seized when the description therein is as specific as the
circumstances will ordinarily allow or
2. When the description expresses a conclusion of fact – not of law –
by which the warrant officer may be guided in making the search and
seizure or

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 3. When the things described are limited to those which bear a direct
relation to the offensefor which the warrant is being issued (Bache and
Co. v. Ruiz, 37 SCRA 823).

v. Things that may be seized

Rules of Court. Rule 126 (Search and Seizure)

Section 3. Personal property to be seized. — A search warrant may be issued
for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense.

vi. Form and content of warrant; lifetime

vii. Validity of warrant

viii. Rules on DNA evidence AM No. 06-11-5-SC

([Link]

10. Warrantless i. Search Incident to a lawful arrest

searches
THE REVISED RULES OF CRIMINAL PROCEDURE
Rule 126 (Search and Seizure)
Section 13. Search incident to lawful arrest. — 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.

1. When a valid arrest precedes the search or contemporaneous with it, and
2. the search is limited to the immediate vicinity of the place of arrest, for
purposes of securing dangerous objects and effects of the crime

 IF ARREST IS ILLEGAL, SUBSEQUENT SEARCH IS ILLEGAL

 CAN’T DO THE REVERSE, YOU CAN’T DO WARRANTLESS
ARREST FIRST AND THEN SEIZED AN ITEM

ii. Warrantless Searches

A search is valid even without a warrant, under the following instances:

(a) Search as an incident to a lawful arrest. When a valid arrest precedes the
search or contemporaneous with it, and the search is limited to the
immediate vicinity of the place of arrest, for purposes of securing dangerous
objects and effects of the crime;
(b) Consented search. When the right has been voluntarily waived by person
who has a right, aware of such right, and has an actual intention to
relinquish such right;
(c) Plainview search. When prohibited articles are within the sight of an officer
who has the right to be in a position to that view;
(d) Visual search at checkpoints. When the search at stationary checkpoints is
pre-announced, and limited to a visual search only;
(e) Terry search. When a police officer, in interest of effective crime prevention,
performs a “stop-and-frisk” or patting of outer clothing for dangerous
weapons, after observing a suspicious conduct on the part of a citizen;

Page 22 of 35
(f) Search of moving vehicles, vessels, and aircrafts for violation of laws;
(g) Inspection of buildings and other premises for the enforcement of fire,
sanitary, and building regulations; and
(h) Search in airports and other populous places.

a. Computers
b. Cellphones
c. Consented search/written consent
d. Peaceful submission not consent to search
e. Effect of voluntary surrender

f. Stop and frisk

When a policeman observes suspicious activity which leads him to believe that
a crime is about to be committed, he can investigate the suspicious looking
person and may frisk him for weapons as a measure of self-protection. Should
he find, however, a weapon on the suspect which is unlicensed, he can arrest
such person then and there for having committed an offense in the officer’s
presence.

g. Airport searches and disembarking from vessels – for security;

voluntary consent

h. Customs officers
i. Moving vehicles/hot pursuit

A. The pursuit of the offender by the arresting officer must be continuous from
the time of the commission of the offense to the time of the arrest.

B. There must be no supervening event which breaks the continuity of the

chase.

j. Roadblocks and checkpoints – for the protection of people when crime

is committed along national highways and major streets

If they sense something, they can do more than visual checks.

k. Checkpoints
l. Plain view doctrine

REQUIREMENTS FOR SEIZURE OF EVIDENCE IN PLAIN VIEW

1. There was a prior valid intrusion based on the valid warrantless arrest in
which the police were legally present pursuant of their duties;
2. The evidence was inadvertently discovered by the police who had the right
to be where they were;
3. The evidence must be immediately apparent; and
4. Plain view justified seizure of the evidence without further search.

m. Private SEARCHES
n. Extraordinary circumstances

Page 23 of 35
X. RIGHTS OF THE ACCUSED

1. Arrest i. Definition

THE REVISED RULES OF CRIMINAL PROCEDURE

Rules of Court. Rule 113 (Arrest)

Section 1. Definition of arrest. —

Section 2. Arrest; how made. —

Section 3. Duty of arresting officer. —

Section 4. Execution of warrant. —

Section 6. Time of making arrest. —

Administrative Arrests – only the JUDGE has the power

Exceptions:
1. In cases of deportation, where the State expels an undesirable alien from
its territory, court intervention and proceedings are not required.
Nonetheless, the alien’s constitutional rights are still preserved because
they are given fair trial and administrative due process. Important to note is
that no probable cause is required in deportation proceedings. It is the
Commissioner of Immigration or any officer designated by him, not the
judge, who issues the administrative warrant, after determination by the
Board of Commissioners of the existence of a ground for deportation.
2. Administrative authorities to enforce final and executory orders, .e.g,
individuals held in contempt during Congressional or Senate hearing.

Probable Cause
Judicial Determination Executive Determination
3. one made by the judge to 1. is one made during preliminary
ascertain whether a warrant of investigation.
arrest should be issued against 2. It is a function that properly
the accused. pertains to the public prosecutor
4. The judge must satisfy himself who is given a broad discretion to
that based on the evidence determine whether probable cause
submitted, there is necessity for exists and to charge those whom
placing the accused under he believes to have committed the
custody in order not to frustrate crime as defined by law and thus
the ends of justice. should be held for trial.
5. If the judge finds no probable 3. Otherwise stated, such official has
cause, the judge cannot be the quasi-judicial authority to
forced to issue the arrest warrant. determine whether or not a
criminal case must be filed in
court.
4. Whether or not that function has
been correctly discharged by the
public prosecutor, i.e., whether or

Page 24 of 35
 not he has made a correct
ascertainment of the existence of
probable cause in a case, is a
matter that the trial court itself
does not and may not be
compelled to pass upon.

ii. With a warrant

THE REVISED RULES OF CRIMINAL PROCEDURE

Rule 112 (Preliminary Investigation)

Section 6. When warrant of arrest may issue. —

i. When warrant of arrest not necessary. — A warrant of arrest shall not

issue if the accused is already under detention pursuant to a warrant
issued by the municipal trial court in accordance with paragraph (b) of this
section, or if the complaint or information was filed pursuant to section 7 of
this Rule or is for an offense penalized by fine only. The court shall then
proceed in the exercise of its original jurisdiction. (6a)

iii. Requirements in the issuance of an arrest warrant

THE REVISED RULES OF CRIMINAL PROCEDURE

Rule 112 (Preliminary Investigation)

Section 8. Records. —

(a) Records supporting the information or complaint. — An information or

complaint filed in court shall be supported by the affidavits and counter-
affidavits of the parties and their witnesses, together with the other
supporting evidence and the resolution on the case.

(b) Record of preliminary investigation. — The record of the preliminary

investigation, whether conducted by a judge or a fiscal, shall not form part
of the record of the case. However, the court, on its own initiative or on
motion of any party, may order the production of the record or any its part
when necessary in the resolution of the case or any incident therein, or
when it is to be introduced as an evidence in the case by the requesting
party.

a. Probable Cause

Probable cause refers to such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested.

b. By Regional Trial Court

THE REVISED RULES OF CRIMINAL PROCEDURE

Section 6. When warrant of arrest may issue. —

(a) By the Regional Trial Court. — Within ten (10) days from the filing of the
complaint or information, the judge shall personally evaluate the resolution of
the prosecutor and its supporting evidence. He may immediately dismiss the

Page 25 of 35
 case if the evidence on record clearly fails to establish probable cause. If he
finds probable cause, he shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested pursuant to a warrant issued
by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. In case
of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and
the issue must be resolved by the court within thirty (30) days from the filing
of the complaint of information.

c. Inferior Court

THE REVISED RULES OF CRIMINAL PROCEDURE

Rule 112 (Preliminary Investigation)

Section 6. When warrant of arrest may issue. —

(b) By the Municipal Trial Court. — When required pursuant to the second
paragraph of section 1 of this Rule, the preliminary investigation of cases
falling under the original jurisdiction of the Metropolitan Trial Court, Municipal
Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court
may be conducted by either the judge or the prosecutor. When conducted by
the prosecutor, the procedure for the issuance of a warrant or arrest by the
judge shall be governed by paragraph (a) of this section. When the
investigation is conducted by the judge himself, he shall follow the procedure
provided in section 3 of this Rule. If the findings and recommendations are
affirmed by the provincial or city prosecutor, or by the Ombudsman or his
deputy, and the corresponding information is filed, he shall issue a warrant of
arrest. However, without waiting for the conclusion of the investigation, the
judge may issue a warrant of arrest if he finds after an examination in writing
and under oath of the complainant and his witnesses in the form of
searching question and answers, that a probable cause exists and that there
is a necessity of placing the respondent under immediate custody in order
not to frustrate the ends of justice.

d. Examine complaints and witnesses

e. Not mandatory to issue warrant
2. Warrantless i. Old Rule
Arrest
1985 Rules on Criminal Procedure. Rule 113 (Arrest)

ii. New Rule

THE REVISED RULES OF CRIMINAL PROCEDURE

Rule 113 (Arrest)

Section 5. Arrest without warrant; when lawful. —

iii. John Doe warrants

A “John Doe” warrant can satisfy the requirement of particularity of description if

it contains a descriptio personae such as will enable the officer to identify the
accused (People v. Veloso, 48 Phil. 159)

Page 26 of 35
 iv. Special rule for juveniles in conflict with law
v. Invitation
3. Rights of the i. Criminal due process
accused
ii. Custodial investigation

Custodial investigation refers to any questioning initiated by law enforcement

officers after a person has been taken into custody. The rights are available
when the person interrogated is already treaded as a particular suspect and the
investigation is no longer a general inquiry into an unsolved crime. However,
during this stage, no complaint or criminal case has been filed yet. As such, the
person suspected to have committed a crime is not yet an accused, since no
case was instituted against him.

Miranda Rights
Constitutional Provision. Section 12, Article III enumerates the rights of a
person under custodial investigation for the commission of an offense, to wit:

1. Right to remain silent,

2. right to have a competent and independent counsel preferably of his own
choice,
3. right to free legal services if he cannot afford one, and the
4. right to informed of these rights. These rights cannot be waived except in
writing and in the presence of counsel;

5. Right against the use of torture, force, violence, threat, intimidation, or any
other means which vitiate his free will. Prohibition against secret detention
places, solitary, incommunicado, or other similar forms of detention;

6. Exclusion of any confession or admission obtained in violation of this

provision or the right against self-incrimination as evidence against him;
and

7. Sanctions against violators and compensation for rehabilitation of victims.

Rights of the accused: Article III, Section 12, 13, 14, and 16

Extrajudicial Confession

1. Meaning. Extrajudicial confession refers to a confession or admission of

guilt made outside (extra) the court (judicial). It is a critical area of study in
Constitutional Law. With respect to the present provision, it refers to a
confession given during a custodial investigation, which is not judicial in
nature. Under the Miranda Rights, a person may waive his right to remain
silent and admit the charge against him because anything that he says may
be used against him. However, the waiver or confession must be valid to be
admissible as evidence against him.

2. Requisites for Validity. For an extrajudicial confession to

be valid and admissible as evidence in court, it must be:

a. voluntary;
b. made in the assistance of a competent and independent counsel;
c. express; and
d. in writing.

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 iii. Duty of police during custodial investigation

Article III. Section 12

R.A. No. 7438, AN ACT DEFINING CERTAIN RIGHTS OF PERSON

ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL
AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING
OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF

Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation;

Duties of Public Officers.

(b) Any public officer or employee, or anyone acting under his order or his
place, who arrests, detains or investigates any person for the commission of an
offense shall inform the latter, in a language known to and understood by him,
of his rights to remain silent and to have competent and independent counsel,
preferably of his own choice, who shall at all times be allowed to confer
privately with the person arrested, detained or under custodial investigation. If
such person cannot afford the services of his own counsel, he must be
provided with a competent and independent counsel by the investigating officer.

(c) The custodial investigation report shall be reduced to writing by the

investigating officer, provided that before such report is signed, or thumbmarked
if the person arrested or detained does not know how to read and write, it shall
be read and adequately explained to him by his counsel or by the assisting
counsel provided by the investigating officer in the language or dialect known to
such arrested or detained person, otherwise, such investigation report shall be
null and void and of no effect whatsoever.

(d) Any extrajudicial confession made by a person arrested, detained or under

custodial investigation shall be in writing and signed by such person in the
presence of his counsel or in the latter's absence, upon a valid waiver, and 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; otherwise, such extrajudicial
confession shall be inadmissible as evidence in any proceeding.

iii. Rights of the accused under custodial investigation (1)

Article III. Section 12 (1), (2)

R.A. No. 7438, AN ACT DEFINING CERTAIN RIGHTS OF PERSON

ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL
AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING
OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF

Sec. 2. Rights of Persons Arrested, Detained or Under Custodial Investigation;

Duties of Public Officers.

(a) Any person arrested detained or under custodial investigation shall at

all times be assisted by counsel.

(e)Any waiver by a person arrested or detained under the provisions of Article

125 of the Revised Penal Code, or under custodial investigation, shall be in

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writing and signed by such person in the presence of his counsel; otherwise the
waiver shall be null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be

allowed visits by or conferences with any member of his immediate family, or
any medical doctor or priest or religious minister chosen by him or by any
member of his immediate family or by his counsel, or by any national non-
governmental organization duly accredited by the Commission on Human
Rights of by any international non-governmental organization duly accredited by
the Office of the President. The person's "immediate family" shall include his or
her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and guardian or ward.

iv. Consequences of violation

Article III. Section 12 (3)

R.A. No. 7438, AN ACT DEFINING CERTAIN RIGHTS OF PERSON

ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL
AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING
OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF
Section 4. Penalty Clause. –

(a) Any arresting public officer or employee, or any investigating officer, who
fails to inform any person arrested, detained or under custodial
investigation of his right to remain silent and to have competent and
independent counsel preferably of his own choice, shall suffer a fine of Six
thousand pesos (P6,000.00) or a penalty of imprisonment of not less than
eight (8) years but not more than ten (10) years, or both. The penalty of
perpetual absolute disqualification shall also be imposed upon the
investigating officer who has been previously convicted of a similar
offense.

(b) The same penalties shall be imposed upon a public officer or employee, or
anyone acting upon orders of such investigating officer or in his place, who
fails to provide a competent and independent counsel to a person
arrested, detained or under custodial investigation for the commission of
an offense if the latter cannot afford the services of his own counsel.

(c) Any person who obstructs, prevents or prohibits any lawyer, any member
of the immediate family of a person arrested, detained or under custodial
investigation, or any medical doctor or priest or religious minister chosen
by him or by any member of his immediate family or by his counsel, from
visiting and conferring privately with him, or from examining and treating
him, or from ministering to his spiritual needs, at any hour of the day or, in
urgent cases, of the night shall suffer the penalty of imprisonment of not
less than four (4) years nor more than six (6) years, and a fine of four
thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any security officer with
custodial responsibility over any detainee or prisoner may undertake such
reasonable measures as may be necessary to secure his safety and prevent
his escape.

v. Right to be heard (2)

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 vi. Right to counsel; waiver (3)
vii. Competent and independent counsel; counsel of choice
viii. [Right to know the] Nature and cause of accusation (4)

WHAT IS A BILL OF PARTICULARS?

A defendant in a criminal case who believes that he is not sufficiently
informed of the crime with which he is charged and is not in a position to defend
himself properly and adequately could move for a bill of particulars or
specifications.

Purpose: It is to allow the accused to prepare for his defense

ix. Compliance with requirements [right to be] to inform person

detained of rights (5)

Not waivable
x. Police lineup

Not yet part of custodial investigation

xi. Proof of voluntariness of confession

xii. Exceptional cases on uncounseled confessions not held to be excluded

4. Rights to Trial i. Trial
ii. Trial in absentia

 trial in absentia is allowed only if the accused has been validly arraigned.
 The accused may waive the right to be present at the trial by not showing
up. However, the court can still compel the attendance of the accused if
necessary for identification purposes. Exception: If the accused, after
arraignment, has stipulated that he is indeed the person charged with the
offense and named in the information, and that any time a witness refers to
a name by which he is known, the witness is to be understood as referring
to him.
 While the accused is entitled to be present during promulgation of
judgement, the absence of his counsel during such promulgation does not
affect its validity.

i. Concept of speedy trial (6)

Republic Act (RA) 8493 (Speedy Trial Act of 1998), fixed a period of 30 days
from the filing of the information to the conduct of an arraignment of the
accused. In no case shall the entire trial period exceed 180 days (or six
months) from the first day of trial.

Factors used in determining whether the right to a speedy trial has been
violated.
1) Time expired from the filing of the information
2) Length of delay involved
3) Reasons for the delay
4) Assertion or non-assertion of the right by the accused
5) Prejudice caused to the defendant.

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 ii. Concept of public trial (7)

The attendance at the trial is open to all irrespective of their relationship to the
accused. However, if the evidence to be adduced is “offensive to decency or
public morals”, the public may be excluded.

The right of the accused to a public trial is not violated if the hearings are
conducted on Saturdays, either with the consent of the accused or if failed to
object thereto.

iii. Right of confrontation (8)

Failure of the accused to cross-examine a witness
If the failure of the accused to cross-examine a witness is due to his own fault
or was not due to the fault of the prosecution, the testimony of the witness
should be excluded.

iv. Right to be presumed innocent (9)

v. Right against self-incrimination (10)

The first right, against self-incrimination [Article III, Section 17], is accorded to
every person who gives evidence, whether voluntarily or under compulsion of
subpoena, in any civil, criminal or administrative proceedings. The right is not to
“be compelled to be a witness against himself.” It prescribes an “option of
refusal to answer incriminating questions” and not a prohibition of inquiry. It
simply secures to a witness, whether he or she be a party, the right to refuse to
answer any particular incriminating question, i.e., one to which has a tendency
to incriminate him or her for some crime. However, the right can be claimed
only when the specific question, incriminatory in character, is actually put to the
witness. It cannot be claimed at any other time. It does not give a witness the
right to disregard a subpoena, to decline to appear before the court at the time
appointed or to refuse to testify altogether. The right against self-incrimination is
not self-executing or automatically operational. It must be claimed. If not
claimed, by or in behalf of the witness, the protection does not come into play. It
follows that the right may be waived, expressly or impliedly, as by a failure to
claim it at the appropriate time” (People v. Ayson, at pp. 27-28).

5. Bail iii. Definition

Revised Rules on Criminal Procedure. Rule 114 (Bail)

Section 1. Bail defined. — Bail is the security given for the release of a person
in custody of the law, furnished by him or a bondsman, to guarantee his
appearance before any court as required under the conditions hereinafter
specified. Bail may be given in the form of corporate surety, property bond,
cash deposit, or recognizance.

Section 3. No release or transfer except on court order or bail. — No person

under detention by legal process shall be released or transferred except upon
order of the court or when he is admitted to bail. (3a)

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 iv. Right to bail (11)
Revised Rules on Criminal Procedure. Rule 114 (Bail)

Section 4. Bail, a matter of right; exception. — 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 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.

v. Matter of Discretion

Revised Rules on Criminal Procedure. Rule 114 (Bail)

Section 5. Bail, when discretionary. —

Section 6. Capital offense defined. —

Section 7. Capital offense of an offense punishable by reclusion perpetua or

life imprisonment, not bailable. —

Section 8. Burden of proof in bail application. —

Section 24. No bail after final judgment; exception.

vi. Double Jeopardy

The requisites of double jeopardy are:

1. A valid complaint or information;
2. Filed before a competent court;
3. To which the defendant has pleaded; and
4. The defendant was previously acquitted or convicted or
5. the case dismissed or otherwise terminated without his express
consent.

When
1. unjustified dismissal
2. motion to quash
3. absence of jurisdiction
4. demurrer to evidence
5. supervening event

IX. ACADEMIC FREEDOM

Article XIV. EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE AND SPORTS

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Section 1. The State shall protect and promote the right of all citizens to quality education at all
levels, and shall take appropriate steps to make such education accessible to all.

Section 5. (2) Academic freedom shall be enjoyed in all institutions of higher learning.

1. WHO MAY TEACH

2. WHAT MAY BE TAUGHT
3. HOW WILL IT BE TAUGHT
4. WHO MAY BE ADMITTED
5. POWER TO DISCIPLINE THE FACULTY AND STUDENTS

IX. EX POST FACTO AND BILL OF ATTAINDER

Meaning of Ex Post Facto Law

1. Constitutional Provision. Section 22, Article III provides that “no ex post facto law or bill of
attainder shall be enacted.”

2. An ex post facto law is one which:

(a) Makes criminal an act done before the passage of the law which was innocent when
done, and punishes such an act;
(b) Aggravates a crime, or makes it greater than it was, when committed;
(c) Changes the punishment and inflicts a greater punishment than the law annexed to
the crime when committed;
(d) Alters the legal rules of evidence, and authorizes conviction upon less or different
testimony than the law required at the time of the commission of the offense;
(e) Assuming to regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and
(f) Deprives a person accused of a crime of some lawful protection to which he has
become entitled, such as the protection of a former conviction or acquittal, or a
proclamation of amnesty.

3. Applicable only in Criminal Cases. The constitutional prohibition applies only in criminal
cases.
i. One of the characteristics of criminal law is prospectivity in which only crimes
committed after the enactment of a penal are punishable.
ii. It cannot retroact and punish acts which were not yet criminalized before its passage.
The basic rule is that before an act may be considered an offense or crime, it must
first be defined as a crime and a penalty must be imposed for it under a law passed
by the legislative body.
iii. An act therefore is not a crime if there is no law punishing it. In the same vein, a
person does not commit a crime, no matter how apparently illegal it is, if there is no
law defining and punishing it. It is for this reason that an ex post facto law is not
allowed because it criminalizes what was not yet a crime during its commission.

Meaning of Bill of Attainder

1. Definition. A bill of attainder is “a legislative act which inflicts punishment without trial. Its
essence is the substitution of a legislative for a judicial determination of guilt.”[93]

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2. Two Kinds of Bill of Attainder: (a) the bill of attainder proper which involves the legislative
imposition of death penalty, and (b) bill of pains and penalties which involves imposition of
a lesser penalty.

3. Reason for Prohibition. The prohibition against bill of attainder is an implementation of the
principle of separation of powers. The legislature cannot bypass the judiciary by enacting a
law that punishes an act without need of judicial proceedings. The legislative department
should be confined to its law-making function; it cannot encroach the authority of the courts
by prescribing a law that directly adjudges guilt without judicial determination.

4. Example. In one case, the Court held that the Anti-Subversion Law (R.A. 1700) is not a bill
of attainder. The law declared the Communist Party of the Philippines (CPP) a clear and
present danger to Philippine security, and thus prohibited membership in such organization.
It is not a bill of attainder because it does not define a crime, but only lays a basis for the
legislative determination that membership in CPP and any other organization having the
same purposes is a crime. It does not automatically secure judgment by mere membership.
In operation, the law does not render unnecessary judicial proceedings. The guilt of the
individual members of subversive groups must still be judicially established.

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[Link]
danger+the+danger+must+be+traceable+to+the+ideas+expressed&source=bl&ots=MzUeoD4dgh&sig=B
VNEvq1fIJRk5ZOLzkiPblb9qYg&hl=fil&sa=X&ved=0ahUKEwjupd2tx-
TZAhWMHpQKHeWNBxEQ6AEIJDAA#v=onepage&q&f=false

[Link]

[Link]

Special Topics
1. Ombudsman defying President Duterte order to suspend Deputy Ombudsman
2. Anti-dynasty
3. Martial law decision – read dissenting and main opinion.. theory of OSG

4. Free market ideas of Roque

According to him, if there were no fake news, people would not really get to know what
true news is. Roque suggests that there should just be a “free marketplace of ideas”—that
is to say, a free or unregulated market for news, where society simply allows fake news to
compete with true news.

News is not about subjectivity. It is about telling the truth. You can’t lie.
News and Opinion – these are two different things.

In 1919, Justice Holmes filed a dissent in Abrams vs. United States in which he created the powerful
and enduring "marketplace of ideas" metaphor to encapsulate the concept of freedom of speech.
In the marketplace metaphor, ideas compete against one another for acceptance - with the
underlying faith that truth will prevail in such a free and open encounter… that the best test of truth is
the power of the thought to get itself accepted in the competition of the market… In a true
marketplace of ideas, the ability of the government to regulate communications is strictly limited.

5. Rappler Issue

6. Constitutional Assembly – Arturo de Castro

a. Asking for declaratory relief – RTC jurisdiction only
b. If Congress would vote jointly or separately
c. Judicial review – 4 requirements
7. Quo Warranto

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