Consti Law 2010 Updates Gorospe

NOTES, UPDATES AND TEASERS
CONSTITUTIONAL LAW * (Bar Review 2010)

University of Santo Tomas
RENE B. GOROSPE
Constitutional Law, in the context of these notes, it refers only to the Bill of
Rights. Accordingly, on some other aspects of constitutional law as a broad term
and expansive subject, resort must be had to some other sources and materials.
These notes are to be taken as a quick reference to general ideas and recent
decisions which light up and enliven the study of the subject. They presuppose that
one has at least done his or her homework through the years and these are just
reminders of what were, ticklers of recent application of rules and principles, and
an invitation to an exploration of what may lie beyond. The study of law is best
had if enjoyed. These notes are intended to be both informative and entertaining.
Reviewees are also entitled to fun even while preparing to take on the Bar exams.
As had been writ: “A judicial decision does not have to be a bore.”1 Neither must a
Bar review material be. It need not be a bland presentation of what has been. It
might as well pick brains and prick some civic conscience in preparation for
eventual practice and life as a responsible particle of sovereignty. So, here’s to
humoring the Bar exams.2 There’s nothing as unnerving as approaching a problem from
Caveat: While most of the materials here are taken from cases, caution should be
exercised in looking at the notes as some are personal views designed to make the
principle or rule discussed more interesting through side comments, musings and
other asides. Utmost discernment, discipline and discretion are thus advised to
avoid any misunderstandings. Attempt had been made to carefully proofread
everything but it almost always happens that despite best efforts errors will still
crop up. Well, as Justice Kennedy observed in his dissenting opinion in Groh v.
Ramirez, 540 U.S. 551 (2004), at 568: “We all tend toward myopia when looking for
our own errors. Every lawyer and every judge can recite examples of documents that
they wrote, checked, and doublechecked, but that still contained glaring errors.”
Murphy’s Law, anyone?
1 2 *
Francisco v. Permskul, 173 SCRA 324 (1989)
The justices themselves are not beyond humoring the study of law and all its quirks
and esoteric twists and turns, as could be seen by their occasional references to
matters more mundane as a manner of making the legal aspects easier to grasp and
appreciate. In Camid v. Office of the President, 448 SCRA 711 (2005), the Court
spoke of what might have been memories about a movie from years, and years, and
years ago. The Court introduced the case in this wise: “This Petition for
Certiorari presents this Court with the prospect of our own Brigadoon – the
municipality of Andong, Lanao del Sur which like its counterpart in filmdom, is a
town that is not supposed to exist yet is anyway insisted by some as actually alive
and thriving. Yet unlike in the movies, there is nothing mystical, ghostly or
anything even remotely charming about the purported existence of Andong.” So where,
when and whatever is Brigadoon? The Court explained that it is a 1954 film based on
the well-known eponymous Broadway musical by Alan Jay Lerner and Frederick Loewe.
The plot pertains to a magical Scottish town touted to appear once every hundred
years on some otherworldly plain according to legend.
University of Santo Tomas Faculty of Civil Law Bar Review 2010
Parenthetically, and by way of an excursive exercise in the tiring and tedious

travails of reviewing, it might also be helpful and reassuring to note that writing
in the Court does not stop Justices from humming a tune or simply warbling a song
into their decisions, as what the Court did in Pamatong v. Commission on Elections,
427 SCRA 96 (2004), where we find this line: “Owing to the superior interest in
ensuring a credible and orderly election, the State could exclude nuisance
candidates and need not indulge in, as the song goes, ‘their trips to the moon on
gossamer wings.’” The line, from the song, “Just One of Those Things,” must have
been swaying in Justice Tinga’s mind or the melody wafting in the air as he wrote
the ponencia in that case.
And, you might as well take note of Palaganas v. People, 501 SCRA 533 (2006), where
the Court opened up humming with lines from “My Way” to say that it was not the
first time that the songvis-à-vis An Arsenal Of Arms coming to blows! (The A
Library Of Liberties had triggered violent behavior resulting in people Court went
on to give appropriate credits – that the music is by Paul Anka and that the song
was popularized by Frank Sinatra. Now, even decisions could be sources of musical
trivia.) As for the apostles of Bacchus, one might as well pay heed to what the
Court said in People v. Glino, 539 SCRA 432 (2007): “BEWARE of drunk passengers.
They pose danger to life and limb. Merely talking to them or telling
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CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)
Page 2 of 103
a perspective of trepidation. March on with confidence, head up high, a smile on

your face and faith in yourself. The Bar exercise is just a good opportunity to
prove and improve yourself. It is not an adversary but an ally, and even if it
were, it is one that you can persuade and convince to become a lifelong friend.
THE FUNDAMENTAL POWERS AND THE BILL OF RIGHTS

Governance is the art and science of carefully balancing the competing needs,
concerns, wants, desiderata and values of society, all demanding acceptance and
preeminence. Insofar as the government and the people are concerned, their
interests may every now and then clash or compete for preeminence, for which a
careful weighing of various considerations has to be done to ensure that the
demands of authority do not lead to slavery and the claims of liberty do not end up
in anarchy.3 Or, in the words of a more recent case, “[o]nce again, the Court is
faced with an age-old but persistently modern problem. How does the Constitution of
a free people combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?”4 Months later, the
Court once
them to sit properly can be fatal, . . .” The U.S. Supreme Court is also not beyond
recognizing the message of songs, particularly “Imagine” by John Lennon. The Court
reproduced the entire lyrics in Pleasant Grove City v. Summum, 555 U.S. ___ (2009),
noting: “Others may think of the lyrics of the Lennon song that obviously inspired
the mosaic and may ‘imagine’ a world without religion, countries, possessions,
greed, or hunger.” Or, they could as well be into literature – words melodious
without the tunes – as when the Court, in pointing out the importance of affording
protection to one’s employment, noted: “As Shylock declared, ‘you take my life,
when you do take the means whereby I live.’ (Shakespeare, The Merchant of Venice)”
(n. 26, Anonymous v. Radam, 541 SCRA 12 [2007]) In Orocio v. Roxas, 562 SCRA 347
(2008), the Court opened with lines from Sharepeare’s Hamlet, Act III, SceneI,
Lines 56-72 – “To be, or not to be: that is the question. . . .” (Well, what are
you: to be, or not to be, a lawyer?) Being in the Court does not also have to lead
to loss of memory about stories told and learned during one’s salad days. Who can
forget, for instance, memories of the transformation of the “ugly duckling”? “This
Motion for Partial Judgment and to Dismiss Petition is truly an odd duckling of a
pleading, which unfortunately did not blossom into a swan but from it instead
emerged an even uglier duck – the 6 September 2002 Order, . . .” (Republic v.
Nolasco, 457 SCRA 400 [2005]) In the same way, taking the Bar examinations need not
make you a different person from what you really are. You can study and prepare for
– and pass – the Bar while enjoying the experience and the opportunity which you
may only have to go through but once in your life. Savor the moment as you may
never pass this way again. But if you were more concerned with food – something
never far away when reviewing for the Bar exams – note the exchange between Chief
Justice Roberts and Justice Scalia in Washington State Grange v. Washington State
Republican Party, 552 U.S. ___(No. 06-713, 18 March 2008), a case involving a law
that allegedly infringed the associational rights of political parties. The former,
in support of his concurring opinion said: “Assuming the ballot is so designed,
voters would not regard the listed candidates as ‘party’ candidates, any more than
someone saying ‘I like Campbell’s soup’ would be understood to be associated with
Campbell’s.” In response, the latter in his dissent wrote: “[T]here is simply no
comparison between statements of ‘preference’ for an expressive association and
statements of ‘preference’ for soup. The robust First Amendment freedom to
associate belongs only to groups ‘engage[d] in “expressive association,”’ Dale, 530
U.S., at 648. The Campbell Soup Company does not exist to promote a message, and
‘there is only minimal constitutional protection of the freedom of commercial
association, . . .’” Furthermore, he said: “If we must speak in terms of soup,
Washington’s law is like a law that encourages Oscar the Grouch (Sesame Street’s
famed bad-taste resident of a garbage can) to state a ‘preference’ for Campbell’s
at every point of sale, while barring the soup company from disavowing his
endorsement, or indeed using its name at all, in those same crucial locations.
Reserving the most critical communications forum for statements of ‘preference’ by
a potentially distasteful speaker alters public perceptions of the entity that is
‘preferred’; and when this privileged connection undermines not a company’s ability
to identify and promote soup but an expressive association’s ability to identify
and promote its message and its standard bearer, the State treads on the
constitutionally protected freedom of association.” Ahh, food, politics and garbage
characters.
Or, if you are fond of the art of cooking – and preparing the meat for that purpose
– to be better expressed in a menu of legal issues, how about this line from Chief
Justice Puno’s dissent in Neri v. Senate Committee on Accountability of Public
Officers and Investigations, 549 SCRA 77 (2008)? “A holistic view of the doctrine
of executive privilege will serve as a hermeneutic scalpel to excise the fat of
information that does not fall within the ambit of the privilege and to preserve
only the confidentiality of the lean meat of information it protects in the
particular setting of the case at bar.”
3 4
See Calalang v. Williams, 70 Phil. 726 (1940)
A Library Of Liberties vis-à-vis An Arsenal Of Arms
David v. Macapagal-Arroyo, 489 SCRA 160 (2006), referencing the writings of the
Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who propounded universal
impermanence and that all things, notably opposites are interrelated.
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more declared: “The true role of Constitutional Law is to effect an equilibrium

between authority and liberty so that rights are exercised within the framework of
the law and the laws are enacted with due deference to rights.”5 On the side of
authority, you have the inherent and fundamental powers of the government – police
power, eminent domain, and taxation – powers by which its goals may be enforced and
implemented. On the other end, you have the guarantees and safeguards found in the
Bill of Rights. And, in this regard the Court has held that “[i]n the complex but
exquisite scheme laid down by the Constitution, the Bill of Rights occupies a
position of primacy, way above the articles on governmental power.”6 And in this
interplay between power and authority, on one hand, and liberty and freedom, on the
other, note must be taken of the fact that just like anything else, values,
concepts and weights change through time. What may have been recognized as outside
the domain of State regulation in the past would no longer be so immune from
governmental interference in later years.7 As was said in one case, “What was
‘robbery’ in 1874 is now called ‘social justice.’”8
A.
THE FUNDAMENTAL POWERS
These fundamental powers are inherent in the national government, exercised by the
legislature, and are only bestowed upon others, like the local government units, as
a result of delegation. In the exercise of police power, there must be compliance
with the requirements of legitimate ends being accomplished through legitimate
means.9 As for the power of condemnation, the Constitution already provides the
allowable standards for its exercise – public use and just compensation.10
Taxation, of course, must not be exercised in an unreasonable, oppressive and
confiscatory manner.11 Or, in the language of Philippine Health Care Providers,
Inc. v. Commissioner of Internal Revenue, 600 SCRA 413 (2009), “[l]egitimate
enterprises enjoy the constitutional protection not to be taxed out of existence.”
Also, it must not be forgotten that the exercise of the power of taxation
constitutes a deprivation of property under the due process clause, and the
taxpayer’s right to due process is violated when arbitrary or oppressive methods
are used in assessing and collecting taxes.12 1. Mirasol v. Department of Public
Works and Highways, 490 SCRA 318 (2006) Streets, roads and highways provide means
by which a person can move about and reach places. But not because they are there
does it mean that just anyone in any kind of vehicle can use them. Thus, the
University of Santo Tomas Limited Access Highway Act (R.A. No. 2000) and
Administrative Order No. 1 (AO 1) under which
Faculty of Civil Law Bar Review 2010
5 6
Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530

SCRA 341 (2007)
People v. Rapeza, 520 SCRA 596 (2007), penned by Justice Tinga. This is a
reiteration of his earlier ponencia in People v. Tudtud, 412 SCRA 142 (2003), where
it was held: “The Bill of Rights is the bedrock of constitutional government. If
people are stripped naked of their rights as human beings, democracy cannot survive
and government becomes meaningless. This explains why the Bill of Rights, contained
as it is in Article III of the Constitution, occupies a position of primacy in the
fundamental law way above the articles on governmental power.”
7 8 9
See People v. Pomar, 46 Phil. 440 (1924) Bengzon v. Drilon, 208 SCRA 133 (1992)
Ynot v. IAC, 148 SCRA 659 (1987) Article III, §9
10 11 12
See Reyes v. Almanzor, 196 SCRA 322 (1991) Yamane v. BA Lepanto Condominium
Corporation, 474 SCRA 258 (2005)
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certain contraptions for traveling may not be allowed to use the express ways. In
this case, those using motorcycles complain about their exclusion from tollways.
The Court declared: “The use of public highways by motor vehicles is subject to
regulation as an exercise of the police power of the state. The police power is
far-reaching in scope and is the ‘most essential, insistent and illimitable’ of all
government powers. The tendency is to extend rather than to restrict the use of
police power. The sole standard in measuring its exercise is reasonableness. What
is ‘reasonable’ is not subject to exact definition or scientific formulation. No
all-embracing test of reasonableness exists, for its determination rests upon human
judgment applied to the facts and circumstances of each particular case.” The rules
involved here are not unreasonable restrictions. They are precautionary measures to
which toll way users must adhere, rules designed to ensure public safety and the
uninhibited flow of traffic within limited access facilities. The prohibition of
certain types of vehicles is but one of these. The purpose of these rules and the
logic behind them are quite evident. The special purpose for which a toll way is
constructed necessitates the imposition of guidelines in the manner of its use and
operation. On the issue of “best” solutions as a guide in determining validity of
the exercise of police power, the Court said: “Arguably, prohibiting the use of
motorcycles in toll ways may not be the ‘best’ measure to ensure the safety and
comfort of those who ply the toll ways. However, the means by which the government
chooses to act is not judged in terms of what is ‘best,’ rather, on simply whether
the act is reasonable. The validity of a police power measure does not depend upon
the absolute assurance that the purpose desired can in fact be probably fully
accomplished, or upon the certainty that it will best serve the purpose intended.
Reason, not scientific exactitude, is the measure of the validity of the
governmental regulation. Arguments based on what is ‘best’ are arguments reserved
for the Legislature’s discussion. Judicial intervention in such matters will only
be warranted if the assailed regulation is patently whimsical.” Further, the Court
said: “Police power does not rely upon the existence of definitive studies to
support its use. Indeed, no requirement exists that the exercise of police power
must first be conclusively justified by research. . . . Scientific certainty and
conclusiveness, though desirable, may not be demanded in every situation.
Otherwise, no government will be able to act in situations demanding the exercise
of its residual powers because it will be tied up conducting studies.” In not
allowing bikers to use the tollways, is not the restriction oppressive? No, the
Court said. “There is nothing oppressive in being required to take a bus or drive a
car instead of one’s scooter, bicycle, calesa, or motorcycle upon using a toll
way.” You can use the highways but you should neither be a nuisance nor a road hog.
Others also need to pass. 2. Social Justice Society v. Atienza, Jr., 517 SCRA 657
(2007)
University of Santo can only comply and implement it. Here If an ordinance says
something to be done, then the mayorTomas the City Council of Manila passed Faculty
of Civil Lawarea where the oil depot of the big an ordinance reclassifying an
petroleum companies was located from industrial to commercial. That meant that the
oil terminals had Bar Review 2010 to go. A timetable was provided but after some
time the oil depot was still there. Accordingly, the petition to compel the mayor
to abide by the ordinance. Can it prosper? The Court gave a resounding “yes.” It’s
well within the police power of the city. The objective of the ordinance is to
protect the residents from the catastrophic devastation that will surely occur in
case of a terrorist attack on the Pandacan Terminals “No reason exists why such a
protective measure should be delayed.”
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On motion for reconsideration, stood pat on its earlier position. “The ordinance
was intended to safeguard the rightsA Library Of and safety of all the inhabitants
of Manila Arms just of a particular to life, security Liberties vis-à-vis An
Arsenal Of and not class. The depot is perceived, rightly or wrongly, as a
representation of western interests which means that it is a terrorist target. As
long as there is such a target in their midst, the residents of Manila are not
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safe. It therefore became necessary to remove these terminals to dissipate the

threat.” With regard to zoning ordinances, the Court expounded: “A zoning ordinance
is defined as a local city or municipal legislation which logically arranges,
prescribes, defines and apportions a given political subdivision into specific land
uses as present and future projection of needs. As a result of the zoning, the
continued operation of the businesses of the oil companies in their present
location will no longer be permitted. The power to establish zones for industrial,
commercial and residential uses is derived from the police power itself and is
exercised for the protection and benefit of the residents of a locality.” In coming
up with a new zoning ordinance, would that not result in some “taking” for which
there should be compensation? “In the exercise of police power, there is a
limitation on or restriction of property interests to promote public welfare which
involves no compensable taking.” Thus, “[t]he restriction imposed to protect lives,
public health and safety from danger is not a taking. It is merely the prohibition
or abatement of a noxious use which interferes with paramount rights of the
public.” Nobody else acquires the use or interest therein, hence there is no
compensable taking. 3. Pharmaceutical and Health Care Association of the
Philippines v. Duque III, 535 SCRA 265 (2007) Of breastfeeding, breastmilk
substitutes and advertisements. To what extent may the Department of Health, in
promoting the health and nutritious needs of children, regulate the businesses
which promote breastmilk substitutes as acceptable alternative to mother’s milk?
“Health is a legitimate subject matter for regulation by the DOH (and certain other
administrative agencies) in exercise of police powers delegated to it. The sheer
span of jurisprudence on that matter precludes the need to further discuss it.
However, health information, particularly advertising materials on apparently non-
toxic products like breastmilk substitutes and supplements, is a relatively new
area for regulation by the DOH.” Accordingly, “the DOH's power under the Milk Code
to control information regarding breastmilk vis-a-vis breastmilk substitutes is not
absolute as the power to control does not encompass the power to absolutely
prohibit the advertising, marketing, and promotion of breastmilk substitutes.”
Implementing rules and regulations imposing labeling requirements and limitations
such as that there be a statement that there is no substitute to breastmilk, and
that there be a statement that powdered infant formula may contain pathogenic
microorganisms and must be prepared and used appropriately, as well as a
prohibition against health and nutrition claims of increased emotional and
intellectual abilities of the infant and young child are consistent with the Milk
Code. “These provisions of the Milk Code expressly forbid information that would
imply or create a belief that there is any milk product equivalent to breastmilk or
which is humanized or maternalized, as such University of Santo Tomas information
would be inconsistent with the superiority of breastfeeding.” Correct information
as to infant Faculty of and welfare. feeding and nutrition is infused with public
interest Civil Law Nonetheless, in this case while the Court held the authority of
DOH to control information regarding Bar Review 2010 breastmilk vis-a-vis
breastmilk substitutes and supplements and related products cannot be questioned,
it declared that the DOH, in imposing an absolute prohibition on advertising,
promotion, and marketing, the same went beyond its authority since the same was not
within the provisions of the Milk Code itself. 4. Metropolitan Manila Development
Authority v. Viron Transportation Co., Inc., 530 SCRA 341 (2007) Some change but
still remain the same – oxymorons, anyone? A Library Of Liberties vis-à-vis An
Arsenal Of Arms Here the Court noted that the deteriorating traffic conditions way
back in 1969 “have remained
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unchecked and have reverberated to this day. Traffic jams continue to clog the
streets of Metro Manila, bringing vehicles to a standstill at main road arteries
during rush hour traffic and sapping people’s energies and patience in the
process.” Accordingly, the ever-pressing need to address the problem. This took the
form of E.O. 179, “Providing for the Establishment of Greater MANILA MASS TRANSPORT
SYSTEM,” designating MMDA as implementing agency, with mandate to eliminate bus
terminals along major thoroughfares of Metro Manila, particularly EDSA, and a
provision for mass transport terminal facilities. Is E.O. 179 valid? Unfortunately,
no. “The authority of the President to order the implementation of the Project
notwithstanding, the designation of the MMDA as the implementing agency for the
Project may not be sustained. It is ultra vires, there being no legal basis
therefor.” It is the DOTC, and not the MMDA, which is authorized to establish and
implement such a project. It is simply that the MMDA is not vested with police
power. What about if the DOTC instead of the MMDA which was designated as the
implementing arm? Still, the Court said that it failed to see how the prohibition
against the existence of terminals can be considered a reasonable necessity to ease
traffic congestion in the metropolis. On the contrary, the elimination of the bus
terminals brings forth the distinct possibility and the equally harrowing reality
of traffic congestion in the common parking areas, a case of transference from one
site to another. What then? “Less intrusive measures such as curbing the
proliferation of ‘colorum’ buses, vans and taxis entering Metro Manila and using
the streets for parking and passenger pick-up points, as respondents suggest, might
even be more effective in easing the traffic situation. So would the strict
enforcement of traffic rules and the removal of obstructions from major
thoroughfares.” In short, “the elimination of the terminals does not satisfy the
standards of a valid police power measure.” 5. Carlos Superdrug Corp. v. Department
of Social Welfare and Development (DSWD), 526 SCRA 130 (2007) Speaking of retirees,
can the State, in promoting the health and welfare of a special group of citizens,
impose upon private establishments the burden of partly subsidizing a government
program? Yes, the Court declared, upholding in the process the constitutionality of
§4(a) of the Expanded Senior Citizens Act of 2003 (R.A. No. 9257, amending R.A.
7432), which considered the twenty percent (20%) discount given by drugstores to
senior citizens as tax deductions and no longer as tax credits. The Court
acknowledged that treating the discount as tax deduction does not offer full
reimbursement of the senior citizen discount, thus, not meeting the definition of
just compensation.13 Nevertheless, it could be justified as a police power measure.
“The Senior Citizens Act was enacted primarily to maximize the contribution of
senior citizens to nation-building, and to grant benefits and University of Santo
Tomas privileges to them for their improvement and well-being as the State
considers them an integral part of our society. The law is a legitimateFaculty of
Civil Law similar to the power of eminent exercise of police power which, domain,
has general welfare for its object.” Accordingly, “[w]hen the conditions so demand
as determined by the legislature, property Bar Review 2010 rights must bow to the
primacy of police power because property rights, though sheltered by due process,
must yield to general welfare.” But should not the exercise of police power be
within bounds, i.e., neither unreasonable or confiscatory? Yes, but it must be duly
proved. “Police power as an attribute to promote the common good would be diluted
considerably if on the mere plea of petitioners that they will suffer loss of
earnings and capital, the questioned provision is invalidated. Moreover, in the
absence of evidence
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“Just compensation is defined as the full and fair equivalent of the property taken
from its owner by the expropriator. The measure is not the taker’s gain but the
owner’s loss. The word just is used to intensify the meaning of the word
compensation, and to convey the idea that the equivalent to be rendered for the
property to be taken shall be real, substantial, full and ample.” (Carlos Superdrug
Corp.)
13

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demonstrating the alleged confiscatory effect of the provision in question, there

is no basis for its nullification in view of the presumption of validity which
every law has in its favor.” Further, the Court noted that it is unfair for the
drug stores to criticize the law because they cannot raise the prices of their
medicines given the cutthroat nature of the players in the industry. It is a
business decision on the part of petitioners to peg the mark-up at 5%. Inasmuch as
pricing is a property right, they cannot reproach the law for being oppressive,
simply because they cannot afford to raise their prices for fear of losing their
customers to competition. In fine, “[w]hile the Constitution protects property
rights, petitioners must accept the realities of business and the State, in the
exercise of police power, can intervene in the operations of a business which may
result in an impairment of property rights in the process. Moreover, the right to
property has a social dimension. . . . [T]he right to property can be relinquished
upon the command of the State for the promotion of public good.” 6. City Government
of Quezon City v. Bayan Telecommunications, Inc., 484 SCRA 169 (2006) The issue
here is the liability of Bayantel to pay real estate taxes imposed on its
properties used in the pursuit of its business. Under its revised franchise,
Congress exempted Bayantel’s properties actually, directly and exclusively used in
its business as a telecommunications company from local property taxation. The
Court said that, in spite of what may have been said about the constitutional grant
of the taxing power to local government units, “the basic doctrine on local
taxation remains essentially the same . . . . ‘[T]he power to tax is [still]
primarily vested in the Congress.’” In other words, “[w]hile the system of local
government taxation has changed with the onset of the 1987 Constitution, the power
of local government units to tax is still limited.” The Court put the issue in this
perspective: “In net effect, the controversy presently before the Court involves,
at bottom, a clash between the inherent taxing power of the legislature, which
necessarily includes the power to exempt, and the local government’s delegated
power to tax under the aegis of the 1987 Constitution.” Moreover, the Court has
upheld the power of Congress to grant exemptions over the power of local government
units to impose taxes. As the Court wrote in Philippine Long Distance Telephone
Company, Inc. (PLDT) v. City of Davao, 363 SCRA 522 (2001): “‘Indeed, the grant of
taxing powers to local government units under the Constitution and the LGC does not
affect the power of Congress to grant exemptions to certain persons, pursuant to a
declared national policy. The legal effect of the constitutional grant to local
governments simply means that in interpreting statutory provisions on municipal
taxing powers, doubts must be resolved in favor of municipal corporations.’” 7.
Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue, 541 SCRA
316 (2007)
University of Santo Tomas Can a taxpayer, who obtained in good faith and for value
Tax Credit Certificates (TCCs), and after Faculty be Civil Law having paid its tax
liabilities by means of TCCs,of subsequently made to pay the same amounts again if
it turns out that the said TCCs had been fraudulently issued and transferred? The
Court said no. Bar Review 2010
“TCCs are immediately valid and effective after their issuance.” Accordingly, “a
tax payment through a TCC cannot be both effective when made and dependent on a
future event for its effectivity. Our system of laws and procedures abhors
ambiguity.” In short, “[t]he transferee in good faith and for value may not be
unjustly prejudiced by the fraud committed by the claimant or transferor in the
procurement or issuance of the TCC. . . . It is not only unjust but well-nigh
violative of the constitutional right not to be deprived of one’s property without
due process of law. Thus, a re-assessment of tax liabilities previously Library Of
Liberties vis-à-vis An in good faith Arms value is utterly A paid through TCCs by a
transferee Arsenal Of and for confiscatory, more so when surcharges and interests
are likewise assessed.”
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Then, harking back to the traditional attribution of destructive power to the

taxing prerogative, the Court said: “The power of taxation is sometimes called also
the power to destroy. Therefore it should be exercised with caution to minimize
injury to the proprietary rights of a taxpayer. It must be exercised fairly,
equally and uniformly, lest the tax collector kill the ‘hen that lays the golden
egg.’” 8. Planters Products, Inc. v. Fertiphil Corporation, 548 SCRA 485 (2008) LOI
No. 1465, issued by then President Marcos, imposed a Capital Recovery Component
(CRC) of P10.00 on each bag of fertilizer sold by fertilizer importers and mother
companies in the Philippines, = which amount was to be paid to Planters Products,
Inc. until it shall have become viable. Fertiphil was one of those who had to pay
the CRC, but after the EDSA Revolution in 1986 it stopped paying the same. Instead
it filed suit to recover what it had paid. Can it recover? Or, was the imposition
justified by either the power ot taxation or police power. The Court said, neither
police power nor taxation could be validly invoked to justify LOI 1465. The refund
must have to be made. “The P10 levy under LOI No. 1465 is too excessive to serve a
mere regulatory purpose. The levy, no doubt, was a big burden on the seller or the
ultimate consumer.” Also, “[a] plain reading of the LOI also supports the
conclusion that the levy was for revenue generation.” In this regard, “[a]n
inherent limitation on the power of taxation is public purpose. Taxes are exacted
only for a public purpose. They cannot be used for purely private purposes or for
the exclusive benefit of private persons. The reason for this is simple. The power
to tax exists for the general welfare; hence, implicit in its power is the
limitation that it should be used only for a public purpose. It would be a robbery
for the State to tax its citizens and use the funds generated for a private
purpose.” Further, the Court added: “When a tax law is only a mask to exact funds
from the public when its true intent is to give undue benefit and advantage to a
private enterprise, that law will not satisfy the requirement of ‘public purpose.’”
Then, for a final dig at the measure itself, the Court declared: “We find it
utterly repulsive that a tax law would expressly name a private company as the
ultimate beneficiary of the taxes to be levied from the public. This is a clear
case of crony capitalism.” LOI 1465 could not also be justified as a police power
measure because it did not promote public interest but simply that of one ailing
private corporation. 9. St. Luke’s Medical Center Employee’s Association-AFW
(SLMCEA-AFW) v. National Labor Relations Commission, 517 SCRA 677 (2007) Here, the
right to security of tenure earlier earned came into conflict with a law
subsequently passed requiring a qualification that was not present when the
employee started working. Santos, an Associate in Radiologic Technology graduate,
got employed at St. Luke’s Hospital in 1984 as an X-Ray Technician. Then came R.A.
7431 (Radiologic Technology of 1992) which requires that no person shall University
x-ray technologist without practice or offer to practice as a radiology and/orof
Santo Tomas having obtained the proper Faculty of Civil Law certificate of
registration from the Board of Radiologic Technology. St. Luke’s notified all
radiologic practitioners to comply with RA 7431. Santos failed to comply and
eventually lost her job. The Court held: “While the right of workers to security of
tenure is guaranteed by the Constitution, its exercise may be reasonably regulated
pursuant to the police power of the State to safeguard health, morals, peace,
education, order, safety, and the general welfare of the people. Consequently,
persons who desire to engage in the learned professions requiring scientific or
technical knowledge may be required to take an examination as a prerequisite to
engaging in their chosen careers.” The rationale for the regulation of medicine
applies as well in the field of radiologic and x-ray technology.14
Bar Review 2010

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Cf. Garcia, Jr. v. Salvador, 518 SCRA 568 (2007). In this case, an employee who was
seeking regularization had to undergo a medical examination. She was misdiagnosed
as suffering from Hepatitis B. W hen she informed her father, the latter suffered a
heart attack. The employee also got separated from her employment. Subsequent tests
disclosed the error. The
14

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B. BILL OF RIGHTS
Taking up the cudgels for liberty are the guarantees contained basically in the
Bill of Rights. As the Court observed in People v. Legaspi, 331 SCRA 95 (2000), the
Bill of Rights is the mechanism for the delicate balance between governmental power
and individual liberty, without which man is stripped of his humanity and society
becomes a putrid dump of lost lives. “The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. One’s right to life, liberty, and property,
to free speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the outcome of no
elections.”15 The bundle of freedoms and liberties guaranteed by the Bill of Rights
is essentially directed against the State and its agencies and instrumentalities
only. It could not be invoked against private persons.16 Nevertheless, even as it
is true that “[t]he Constitution cannot control such [private] prejudices, but
neither can it tolerate them. Private biases may be outside the reach of the law,
but the law cannot, directly or indirectly, give them effect.”17 And, even as there
might be no constitution following a revolution, if the new dispensation does not
repudiate the country’s adherence to the international instruments in which it is
signatory, the guarantees found in the Bill of Rights might still be available,
like the exclusionary rule.18 1. Yrasuegui v. Philippine Airlines, Inc., 569 SCRA
467 (2008) Here, a flight steward was separated from the service for having failed
to abide by the weight limit, which the Court found to be well within the valid
prerogatives of the airline relative to the necessities of the business. One of the
arguments of the employee was predicated on the equal protection clause, claiming
that others similarly situated were not dismissed but given some other positions.
The Court said: “[I]n the absence of governmental interference, the liberties
guaranteed by the Constitution cannot be invoked. Put differently, the Bill of
Rights is not meant to be invoked against acts of private individuals. Indeed, the
United States Supreme Court, in interpreting the Fourteenth Amendment, which is the
source of our equal protection guarantee, is consistent in saying that the equal
protection erects no shield against private conduct, however discriminatory or
wrongful. Private actions, no matter how egregious, cannot violate the equal
protection guarantee.” 2. Atienza, Jr. v. Commission on Elections, – SCRA – (G.R.
No. 188920, 16 February 2010)
University of Santo Tomas Can members of a political party claim denial of Civil
Law their expulsion from the party? No, Faculty of due process in
the Court said. The requirements of administrative due process do not apply to the
internal affairs of Bar Review 2010 political parties. The due process standards
set in Ang Tibay cover only administrative bodies created
employee was then rehired. Nonetheless, she and her father sued the medical
technologist for gross negligence. The Court found for them, awarding them = 50,000
as moral damages, P 50,000 as exemplary damages, and P 25,000 as attorney’s fees. P
= = Lesson to be learned? Understand properly the question for a misappreciation or
misdiagnosis of the problem is a sure avenue to a wrong answer. Right answers start
with correct premises.
15 16 17 18
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A Library Of Liberties vis-à-vis An Arsenal Of See People v. Marti, 193 SCRA 57

(1991) and Serrano v. NLRC, 323 SCRA 445 (2000).
Palmore v. Sidoti, 466 U.S. 529 (1984) See Republic v. Sandiganbayan, 407 SCRA 10
(2003)
West Virginia State Board of Education v. Barnette, 319 US 624 (1943)
Arms
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by the state and through which certain governmental acts or functions are
performed. “Although political parties play an important role in our democratic
set-up as an intermediary between the state and its citizens, it is still a private
organization, not a state instrument. The discipline of members by a political
party does not involve the right to life, liberty or property within the meaning of
the due process clause. An individual has no vested right, as against the state, to
be accepted or to prevent his removal by a political party. The only rights, if
any, that party members may have, in relation to other party members, correspond to
those that may have been freely agreed upon among themselves through their charter,
which is a contract among the party members. Members whose rights under their
charter may have been violated have recourse to courts of law for the enforcement
of those rights, but not as a due process issue against the government or any of
its agencies.” Then, the Court added: “But even when recourse to courts of law may
be made, courts will ordinarily not interfere in membership and disciplinary
matters within a political party. A political party is free to conduct its internal
affairs, pursuant to its constitutionally-protected right to free association.”
C.
DUE PROCESS
Due process might as well provide a sort of a “Swiss Army Knife” guarantee given
its adaptability and flexibility as a legal argument. The Due Process Clause is a
handy legal tool for the protection of the valued rights to life, liberty and
property, and all other freedoms and liberties that inhere or adhere to them. It
provides both a safeguard to ensure fairness in the proceedings that may be taken
towards the deprivation of any liberty or property interests, or the impairment of
any other right or freedom, as well as the guarantee of reasonableness in the
enactment of laws and other regulations which impact life, liberty and property.19
Person includes both citizens and aliens, natural and juridical. It may not
encompass, however, the foetus, or the unborn child20 though the 1987 Constitution
has thought it advisable to provide protection for the unborn together with his
mother.21 As for life, liberty and property, while all of these are protected, the
extent of the care and importance they get are not the same – some things are
simply worth much more than others. Thus, when property rights come into conflict
with human rights, the former must give way to the latter.22 “[W]hen freedom of the
mind is imperiled by law, it is freedom that commands a momentum of respect; when
property is imperiled, it is the lawmakers’ judgment that commands respect. This
dual standard may not precisely reverse the presumption of constitutionality in
civil liberties cases, but obviously it does set up a hierarchy of values within
the due process clause.”23 And, more recently, the CourtUniversity of Santo Tomas
of constitutionally protected also stated that, “based on the hierarchy rights, the
right to life enjoys precedence overof Civil Law Faculty the right to property. The
reason is obvious: life is irreplaceable, property is not. When the state or LGU’s
exercise of police power clashes with a few individuals’ right to property, the
former should prevail.”24 Bar Review 2010
Take for instance what the Court said in regard to annulment of judgments:
“Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a
final judgment or order of an RTC may be based ‘only on the grounds of extrinsic
fraud and lack of jurisdiction,’ jurisprudence recognizes denial of due process as
additional ground therefor.” (Benatiro v. Heirs of Evaristo Cuyos, 560 SCRA 478
[2008])
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See Roe v. Wade, 410 U.S. 113 (1973) The State “shall equally protect the life of
the mother and the life of the unborn from conception.” (Art. II, §12)
A v. PBM Co., Inc., 51 SCRA 184 (1973) PBM Employees Org.Library Of Liberties vis-
à-vis
Tolentino v. Secretary of Finance, 235 SCRA 630 (1994) Social Justice Society v.
Atienza, Jr., 545 SCRA 92 (2008)
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And, if there is a hierarchy of rights, there is also a hierarchy of evidentiary

values which calls into play the guarantee of the Due Process Clause if the
inappropriate quantum of proof is demanded by the adjudicator in a particular
proceeding.25 Relevant to the chore of weighing conflicting values are so-called
standards of review, those instruments of measurement for validity of rules and
regulations, adjustable and flexible depending on the interests involved. As for
property, aside from those normally owned, it must not be overlooked that a final
judgment vests in the prevailing party a right recognized and protected by law
under the due process clause of the Constitution – it is a vested interest which
the government should recognize and protect, and of which the individual could not
be deprived arbitrarily without committing an act of injustice.26 Public office is
not property, and one cannot insist on staying in office if the office has already
been abolished. But to the extent that one’s right to security of tenure may be
implicated, to that extent may due process be called upon for assistance. Unduly
long preventive suspension could also be assailed on due process grounds.27
Licenses, while merely in the nature of a privilege, are not also insulated from
the checking effects of the Due Process Clause, especially if abuse attended their
withdrawal or discontinuance.28 The mere fact that one’s claim to something might
be based on a privilege and not a right is not determinative of the appropriateness
of invoking due process – reliance on the “right privilege dichotomy” has long been
denigrated by leading lights in administrative law as “too crude for consistent
application” by courts.29 “Under traditional form of property ownership, recipients
of privileges or largesses from the government could be said to have no property
rights because they possessed no traditionally recognized proprietary interest
therein. . . . But the right-privilege dichotomy came to an end when courts
realized that individuals should not be subjected to the unfettered whims of
government officials to withhold privileges previously given to them. Indeed to
perpetuate such distinction would leave the citizens at the mercy of State
functionaries, and worse, threaten the liberties protected by the Bill of
Rights.”30 Sight must not be lost of the fact that the Clause has two faces or
components – the procedural and the substantive. The former is essentially directed
at officers who adjudicate while the latter is directed basically at those who
enact the laws. The first refers to the guarantees of fairness in the process of
determining whether a right, liberty or freedom is to be impaired or otherwise
taken away while the latter goes to the very power of the authorities to come up
with rules and other strictures under which man may live and enjoy the blessings of
a civilized society, including the price that he has to pay to stay. Then again, it
must not also be forgotten that procedural due process operates differently under
University of Santo Tomas changing circumstances. “Classic procedural due process
issues are concerned with what kind of notice Faculty of Civil Law and what form of
hearing the government must provide when it takes a particular action.”31 Or, as
stated in another case: “Procedural due process requires a determination of what
process is due, when it is due, Bar Review 2010
25 26 27 28
Manalo v. Roldan-Confesor, 215 SCRA 808 (1992)
Manotok Realty, Inc. v. CLT Realty Development Corporation, 476 SCRA 305 (2005) See
Layno, Sr. v. Sandiganbayan, 136 SCRA 536 (1985) and Deloso v. Sandiganbayan, 173
SCRA 409 (1989)
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“[P]ilotage as a profession has taken on the nature of a property right.” (Corona

v. United Harbor Pilots Association of the Philippines, 283 SCRA 31 [1997])
29 30 31
A Library Of Liberties vis-à-vis An Mabuhay Textile Mills Corporation v. Ongpin,

141 SCRA 437 (1986)
City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)
Arsenal Of Arms
Terminal Facilities and Services Corporation v. Philippine Ports Authority, 378

SCRA 82 (2002)
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and the degree of what is due.”32 What may be required for purposes of judicial
proceedings would not be the same in administrative proceedings.33 Those that
satisfy the requirements of due process in the investigation of local appointive
officials would not suffice for elective officials,34 and so on. It has also been
held that where the trial court simply considered the person and past performance
of the witness, and decided on this basis that he was a credible witness, rather
than look at the merits of his testimony, such act, by itself, was a major error, a
violation of due process – a court must always decide on the basis of the evidence
presented, not on the basis of any other extraneous consideration not before it.35
On substantive due process, the discussions made by the Court in Estrada v.
Sandiganbayan, 369 SCRA 394 (2001), are quite instructive and edifying. It
explained the “void-for vagueness” doctrine as “most commonly stated to the effect
that a statute establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that specie of
legislation that is utterly vague on its face, i.e., that which cannot be clarified
either by a saving clause or by construction.” A statute or act may be said to be
vague when it lacks comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In such instance,
the statute is repugnant to the Constitution in two (2) respects – it violates due
process for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion
in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle. And what about the overbreadth doctrine? This doctrine decrees that “a
governmental purpose may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms.” If one’s purpose is simply to
roast a pig, then he need not have to burn the barn. Justice Mendoza, concurring,
also elucidated on the meaning, importance and relevance of the socalled standards
of review or levels of scrutiny, those yardsticks used by the courts to determine
the constitutionality of statutes impairing protected rights, liberties and
freedoms. Determining whether there is sufficient justification for the
government’s action depends very much on the level of scrutiny used.36 This simply
means that “if the liberty involved were freedom of the mind or the person, the
standard for the validity of governmental acts is much more rigorous and exacting,
but where the liberty curtailed affects what are at the most rights of property,
the permissible scope of regulatory measures is wider.” Thus, under deferential
review, laws are upheld if they rationally further a legitimate governmental
interest, without courts seriously inquiring into the substantiality of such
interest and examining the alternative means by which the objectives could be
achieved. Under intermediate review, the substantiality of the governmental
interest is seriously looked into and the availability of less restrictive
alternatives are considered. Under strict scrutiny, the focus is on the presence of
compelling, rather than substantial governmental interest and on the absence Santo
Tomas University of of less restrictive means for achieving that interest. Strict
scrutiny is a judicial standard for determining the quality and the amount of
governmental interest Faculty of Civil Law brought to justify the regulation of
fundamental freedoms. It is used today to test the validity of laws dealing with
the regulation of speech, gender,Reviewfacial challenges are allowed for this
purpose.37 Bar or race and 2010
32 33 34 35 36 37
Secretary of Justice v. Lantion, 343 SCRA 377 (2000) Cf. Banco Español-Filipino v.
Palanca, 37 Phil. 921 (1918) and Ang Tibay v. Court of Industrial Relations, 69
Phil. 635 (1940) Joson v. Torres, 290 SCRA 279 (1998) People v. Sanchez, 569 SCRA
194 (2008)
City of Manila v. Laguio, Jr., 455 SCRA 308 (2005) In League of Cities, 571 SCRA
263 (2008), we also find this in n. 23:
“The rational basis test is the minimum level of scrutiny that all government
actions challenged under the equal protection clause must meet. The strict scrutiny
test is used in discriminations based on race or those which result in violations
of fundamental rights. Under the strict scrutiny test, to be valid the
classification must promote a compelling state interest. The intermediate scrutiny
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The Court has also declared: “[C]onstitutional due process demands a higher degree
of clarity when infringements on life or liberty are intended. . . . In the matter
of statutes that deprive a person of physical liberty, the demand for a clearer
standard in sentencing is even more exacting.”38 If one were to have a better
appreciation of these “standards of review,” why not try to reminisce about the law
school years where classroom sessions were either a bore, moments of trepidation
and incessant prayers or occasions for hilarious incidents, courtesy of members
other than the ones enjoying the fun? A student’s preparations for each subject
then were generally dictated by the kind of professors he or she might have had –
whether members of terrorist cells or the soft and kind apostles of nonviolence and
charity. Another way of looking at it, of course, is to see how those who graduated
with honors are feeling the pressure to perform well in the Bar – they should be
better than the rest, or so it would logically seem to be. Otherwise, for what
reason did they graduate with better distinctions than the rest if not their
assumed and presumed more exemplary qualifications? (Of course, for others, beating
such favored crop is a vindication of sorts – nothing could be sweeter than being
an underdog and trumping everyone, then showing up proud and confident in front of
professors who saw no promise in them when still students.) Due Process guarantees
have far-reaching consequences and ramifications. Due process has been utilized to
assail acts of government which impinge on valued rights, liberties and freedoms.
In the United States, for instance, it has been implicated in the right of a woman
to have an abortion,39 and likewise attempted – unsuccessfully – to justify a claim
to a right to suicide.40 Elsewhere, it has been referred to in relation to the
rights to counsel,41 information,42 equal protection,43 public trial,44 need for
courts to explicitly state the factual and legal bases for their judgments,45
reasonableness of presumptions,46 and even the right not to be subjected to
excessive exemplary damages.47 It has also been considered in connection with
expropriations,48 the determination of the voluntariness and admissibility
discriminations based on gender or illegitimacy of children. Under the intermediate

scrutiny test, the classification must be substantially related to an important
government objective. Laws not subject to the strict or intermediate scrutiny test
are evaluated under the rational basis test, which is the easiest test to satisfy
since the classification must only show a rational relationship to a legitimate
government purpose. See Erwin Chemerinsky, Constitutional Law, Principles and
Policies, 2nd Edition, pp. 645-646.”
38 39 40 41
People v. Bon, 506 SCRA 168 (2006) See Roe v. Wade, 410 U.S. 113 (1973) See
Washington v. Glucksberg, 521 U.S. 702 (1997)
E.g., People v. Bermas, 306 SCRA 135 (1999); People v. Santocildes, Jr., 321 SCRA
310 (1999); and, People v. Liwanag, 363 SCRA 62 (2001). In People v. Ferrer, 406
SCRA 658 (2003), the Court declared: “The right to counsel proceeds from the
fundamental principle of due process which basically means that a person must be
heard before being condemned. The due process requirement is part of a person’s
basic rights; it is not a mere formality that may be dispensed with or performed
perfunctorily.”
42 43
Tañada v. Tuvera, 136 SCRA 27 (1985) and 146 SCRA 446 (1986)
Philippine Judges Association v. Prado, 227 SCRA 703 (1993). (“The equal protection
of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has
nonetheless been embodied in a separate clause in Article III, Sec. 1, of the
Constitution to provide a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to
cut it down is the equal protection clause.”)
44 45 46 47
Re Oliver, 333 U.S. 257 (1948) Tot v. United States, 319 U.S. 463 (1943)
Yao v. Court of Appeals, 344 SCRA 202 (2000)
See BMW of North America, Inc. v. Gore, Jr., 517 U.S. 559 (1996); Cooper
Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); and, State
Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003).
48
Visayan Refining Co. v. Camus, 40 Phil. 550 (1919)

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of extrajudicial confessions,49 as well as the reasonable doubt standard in

criminal cases.50 It has likewise been invoked to justify the compelled production
of relevant presidential materials as against a generalized assertion of executive
privilege.51 Court access by prisoners is also considered part of the guarantee.
“The constitutional guarantee of due process of law has as a corollary the
requirement that prisoners be afforded access to the courts in order to challenge
unlawful convictions and to seek redress for violations of their constitutional
rights. This means that inmates must have a reasonable opportunity to seek and
receive the assistance of attorneys.”52 Further, inordinate reliance on technical
rules of procedure may also offend the guarantee.53 Nevertheless, caution should
also be had in trying to use it for it could as soon lend itself to noticeable
misuse. Depending on how well one may wield the due process argument, he may find
an ally or just an illusory companion.54 In one case, the Supreme Court opened its
opinion with this observation: “It has not escaped the attention of the Court that
when a party runs out of arguments, or never had any to begin with, it usually
pleads a denial of due process. The plea may impress at first glance, what with all
its plaintive invocation of the Bill of Rights, but it does not often succeed upon
closer examination.”55 In another case, it concluded with this observation: “The
Court is not unaware of the practice of some lawyers who, lacking plausible support
for their position, simply claim a denial of due process as if it were a universal
absolution. The ground will prove unavailing, and not surprisingly since it is
virtually only a pro forma argument. Due process is not to be bandied like a
slogan. It is not a mere catch-phrase. As the highest hallmark of the free society,
its name should not be invoked in vain but only when justice has not been truly
served.”56 Lately, the Court also observed: “The Court shall not fake naiveté of
the prevalent practice among lawyers who, for lack of better argument to bolster
their position, engage in waxing lyrical to ‘a denial of due process.’”57 1.
Republic v. Cagandahan, 565 SCRA 72 (2008) Most persons may simply take whatever
may come their way, specially in regard to the gender that nature may have blessed
– or cursed – them with. Others may want to take matters into their own hands.
Here, Cagandahan, Jennifer and female at birth, is afflicted with the condition
called Congenital Adrenal Hyperplasia (CAH), or intersexuality. As she grew up, she
also developed the attributes of being male. Biologically, nature endowed her with
a mixed (neither consistently and categorically female nor consistently and
categorically male) composition. She has female (XX) chromosomes but her body
system naturally produced high levels of male hormones (androgen). As a result, he
now has ambiguous genitalia and the phenotypic features of a male. Before the
Court, she wants to have correction of her birth certificate to reflect changes in
her gender and name – male and Jeff. Can he be accommodated?
University of Santo Tomas Faculty or Civil Law The Court said yes. It is a
recognition of her ofhis liberty to choose what she or he really is. “CAH Bar
Review 2010
See Dickerson v. United States, 530 U.S. 428 (2000) In Re Winship, 397 U.S. 358
(1970) United States v. Nixon, 418 U.S. 683 (1974) Procunier v. Martinez, 416 U.S.
396 (1974), at 419. See Banaga v. Majaducon, 494 SCRA 153 (2006) See Office of the
Court Administrator v. Floro, Jr., 486 SCRA 66 (2006)
is one of many conditions that involve intersex anatomy. During the twentieth
century, medicine adopted
49 50 51 52 53 54 55 56 57
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Arsenal Of Arms
A of Labor and Employment, 196 vis-à-vis An Bautista v. Secretary Library Of

Liberties SCRA 470 (1991)
Pacific Timber Export Corporation v. National Labor Relations Commission, 224 SCRA
860 (1993) NEECO II v. National Labor Relations Commission, 469 SCRA 169 (2005)
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the term ‘intersexuality’ to apply to ‘human beings who cannot be classified as

either male or female. The term is now of widespread use. According to Wikipedia,
intersexuality ‘is the state of a living thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex characteristics are determined to be
neither exclusively male nor female. An organism with intersex may have biological
characteristics of both male and female sexes.’” The Court explained: “In deciding
this case, we consider the compassionate calls for recognition of the various
degrees of intersex as variations which should not be subject to outright denial.
‘It has been suggested that there is some middle ground between the sexes, a “no-
man’s land” for those individuals who are neither truly ‘male’ nor truly
‘“female”’.” The current state of Philippine statutes apparently compels that a
person be classified either as a male or as a female, but this Court is not
controlled by mere appearances when nature itself fundamentally negates such rigid
classification.” The Court concluded: “Ultimately, we are of the view that where
the person is biologically or naturally intersex the determining factor in his
gender classification would be what the individual, like respondent, having reached
the age of majority, with good reason thinks of his/her sex. Respondent here thinks
of himself as a male and considering that his body produces high levels of male
hormones (androgen) there is preponderant biological support for considering him as
being male. Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.” In short, to the person with CAH belongs the
human right to the pursuit of happiness and of health, and to him should belong the
primordial choice of what courses of action to take along the path of his sexual
development and maturation, and in absence of evidence to show that classifying him
as male will harm other members of society, the Court will affirm as valid and
justified his position and his personal judgment of being a male.58 2. Board of
Medicine v. Ota, 558 SCRA 234 (2008) Here, the Board of Medicine and Professional
Regulation Commission refused to grand a license to Ota, a Japanese who took
medical education in the Philippines and who thereafter passed the Board exam, on
the ground that there is no real reciprocity between Japan and the Philippines –
conditions for practice in Japan are not practical or attainable (practically
impossible for a Filipino), and that, in any event, the grant is discretionary with
Board. “It must be stressed however that the power to regulate the exercise of a
profession or pursuit of an occupation cannot be exercised by the State or its
agents in an arbitrary, despotic, or oppressive manner. A political body which
regulates the exercise of a particular privilege has the authority to both forbid
and grant such privilege in accordance with certain conditions. As the legislature
cannot validly bestow an arbitrary power to grant or refuse a license on a public
agency or officer, courts will generally strike University of Santo Tomas down
license legislation that vests in public officials discretion to grant or refuse a
license to carry on Faculty of Civil Law some ordinarily lawful business,
profession, or activity without prescribing definite rules and conditions for the
guidance of said officials in theBar Review 2010 * “Nowhere in said statutes [R.A.
No. exercise of their power.” 2382 (Medical Act of 1959) and P.D. 223 (Creating the
PRC)] is it stated that the foreign applicant must show that the conditions for the
practice of medicine in said country are practical and attainable by Filipinos.
Neither is it stated that it must first be proven that a Filipino has been granted
license and allowed to practice his profession in said country before a foreign
applicant may be given license to practice in the Philippines.” In other words,
“[i]t is enough that the laws in the foreign country permit a Filipino to get
license and practice therein. Requiring respondent to prove first that a Filipino
has
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This is to be distinguished from Silverio v. Republic, 537 SCRA 373 (2007), where
the petitioner wanted correction of his birth certificate to reflect the effects of
his sex change through sex reassignment surgery. He wanted to change his name from
Rommel to Mely, and from male to female. The Court said that there is no law which
allows such corrections.
58

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already been granted license and is actually practicing therein unduly expands the
requirements provided for under R.A. No. 2382 and P.D. No. 223.” 3. Parreño v.
Commission on Audit, 523 SCRA 390 (2007) When do retirement benefits accrue and
become vested rights? And, what is the nature of the retirement benefits of
military men? Section 27 of P.D. No. 1638, as amended by PD 1650, withdraws pension
benefits of retired military men who have lost their Philippine citizenship. Is
this not a violation of the right to due process, particularly on non-deprivation
of property? “PD 1638, as amended, does not impair any vested right or interest of
petitioner. Where the employee retires and meets the eligibility requirements, he
acquires a vested right to the benefits that is protected by the due process
clause. At the time of the approval of PD 1638 and at the time of its amendment,
petitioner was still in active service. Hence, petitioner’s retirement benefits
were only future benefits and did not constitute a vested right. . . . It is only
upon retirement that military personnel acquire a vested right to retirement
benefits.” And what is the nature of the retirement benefits of military men?
“[T]he retirement benefits of military personnel are purely gratuitous in nature.
They are not similar to pension plans where employee participation is mandatory,
hence, the employees have contractual or vested rights in the pension which forms
part of the compensation.” 4. Kuwait Airways Corporation v. Philippine Airlines,
Inc., 587 SCRA 399 (2009) The Philippine Government, through the Civil Aeronautics
Board, or any of its officials, cannot unilaterally terminate an air agreement
between a private Philippine air carrier and a foreign airline. The Court
acknowledged that the CAB has ample power under its organizing charter, to compel
Philippine Airlines to terminate whatever commercial agreements the carrier may
have. However, it noted that this is not a case where the CAB had duly exercised
its regulatory authority over a local airline in order to implement or further
government air policy. “What happened instead was an officer of the CAB, acting in
behalf not of the Board but of the Philippine government, had committed to a
foreign nation the immediate abrogation of Philippine Airlines’s commercial
agreement with Kuwait Airways. And while we do not question that ability of that
member of the CAB to represent the Philippine government in signing the CMU, we do
question whether such member could have bound Philippine Airlines in a manner that
can be accorded legal recognition by our courts.” The Court then went on to state
that, “We, as magistrates in a functioning democratic State with a fully fleshed
Bill of Rights and a Constitution that emphatically rejects ‘l’etat cest moi’ as
the governing philosophy, think not. There University of Santo Tomas is nothing to
prevent the Philippine government from utilizing all the proper channels under law
to Faculty of Civil Law enforce such closure, but unless and until due process is
observed, it does not have legal effect in this jurisdiction. Even granting that
the ‘agreement’ between the two governments or their representatives Bar Review
2010 creates a binding obligation under international law, it remains incumbent for
each contracting party to adhere to its own internal law in the process of
complying with its obligations. The promises made by a Philippine president or his
alter egos to a foreign monarch are not transubstantiated by divine right so as to
ipso facto render legal rights of private persons obviated. . . . The President or
his alter egos do not have the legal capacity to dictate insuperable commands to
private persons. And that undesirable trait would be refuted on the President had
petitioner’s position prevailed, since it is imbued with the presumption that the
commitment made to a foreign government becomes operative without complying A
Library Of Liberties vis-à-vis An Arsenal Of Arms with the internal processes for
the divestiture of private rights.”
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5. Republic v. Caguioa, 536 SCRA 193 (2007) When you abuse a certain privilege,
then don’t be surprised if the same is suddenly yanked from you. This has something
to do with the enactment of R.A. No. 9334 which withdrew tax exemptions for
entities at Subic Special Economic and Freeport Zone (SBF) relative to importations
of cigars, cigarettes, distilled spirits, fermented liquors and wines due to
alleged smuggling activities spawned by the privilege. “The rights granted under
the Certificates of Registration and Tax Exemption of private respondents are not
absolute and unconditional as to constitute rights in esse – those clearly founded
on or granted by law or is enforceable as a matter of law. These certificates
granting private respondents a ‘permit to operate’ their respective businesses are
in the nature of licenses, which the bulk of jurisprudence considers as neither a
property nor a property right. The licensee takes his license subject to such
conditions as the grantor sees fit to impose, including its revocation at pleasure.
A license can thus be revoked at any time since it does not confer an absolute
right. While the tax exemption contained in the Certificates of Registration of
private respondents may have been part of the inducement for carrying on their
businesses in the SBF, this exemption, nevertheless, is far from being contractual
in nature in the sense that the non-impairment clause of the Constitution can
rightly be invoked.” The withdrawal here was seen as a valid police power measure.
“Smuggling in whatever form is bad enough; it is worse when the same is allegedly
perpetrated, condoned or facilitated by enterprises hiding behind the cloak of
their tax exemption privileges.” 6. Manotoc v. Court of Appeals, 499 SCRA 21 (2006)
In an action in personam, personal service is the preferred mode of notifying him.
If such could not be done, substituted service of summons may be resorted to, but
then since “it is extraordinary in character and in derogation of the usual method
of service,” such mode or service “must faithfully and strictly comply with the
prescribed requirements and circumstances authorized by the rules. Indeed,
‘compliance with the rules regarding service of summons is as much important as the
issue of due process as of jurisdiction.’” 7. Anonymous v. Radam, 541 SCRA 12
(2007) Speaking of birth certificates, what’s wrong with anonymous or unknown
authors, a.k.a. fathers? Radam, a court utility worker, was charged with immorality
for having a child outside marriage. In her explanation, she admitted that she and
her boyfriend, who had a pending application to migrate to Canada, had a mutual
plan to remain unmarried. The Office of the Court Administrator recommended
exoneration but submitted that Radam should be held liable for Conduct Unbecoming
and fined for University “unknown” Tomas stating in the birth certificate that the
father wasof Santo when she knew all along who it was. The Court agreed that she
should could not be held liable as charged.59 But, could she be found guilty
The Court held that “[f]or purposes of determining administrative responsibility,
giving birth out of wedlock is not per se immoral under civil service laws. For
such conduct to warrant disciplinary action, the same must be ‘grossly immoral,’
that is, it must be so corrupt and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree.” Thus, “[f]or a particular
conduct to constitute ‘disgraceful and immoral’ behavior under civil service laws,
it must be regulated on account of the concerns of public and secular morality. It
cannot be judged based on personal bias, specifically those colored by particular
mores. Nor should it be grounded on ‘cultural’ values not convincingly demonstrated
to have been recognized in the realm of public policy expressed in the Constitution
and the laws. At the same time, the constitutionally guaranteed rights (such as the
right to privacy) should be observed to the extent that they protect behavior that
may be frowned upon by the majority.” Otherwise stated, “two things may be
concluded from the fact that an unmarried woman gives birth out of wedlock: (1) if
the father of the child is himself unmarried, the woman is not ordinarily
administratively liable for A Library immoral conduct. It may be a not-so-ideal
situation and may cause complications for both mother disgraceful and Of Liberties
vis-à-vis An Arsenal Of Arms and child but it does not give cause for
administrative sanction. There is no law which penalizes an unmarried mother under
those circumstances by reason of her sexual conduct or proscribes the consensual
sexual activity between two unmarried persons. Neither does the situation
contravene any fundamental state policy as expressed in the Constitution, a
document that accommodates various belief
59
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for conduct unbecoming? No, for that would run afoul of due process. Radam was
indicted only for alleged immorality for giving birth out of wedlock. It was the
only charge of which she was informed. Thus, the recommendation of the OCA that she
be held administratively liable in connection with an entry in the birth
certificate of her son came like a thief in the night. It was unwarranted. She was
neither confronted with it nor given the chance to explain it. To hold her liable
for a totally different charge of which she was totally unaware will violate her
right to due process. The essence of due process in an administrative proceeding is
the opportunity to explain one’s side, whether written or verbal. This presupposes
that one has been previously apprised of the accusation against him or her. Here,
Radam was deprived of both with regard to her alleged unbecoming conduct in
relation to a certain statement in the birth certificate of her child. Then, the
Court said: “Unless the constitutional guarantee of due process is a mere
platitude, it is the Court’s duty to insist on its observance in all cases
involving a deprivation, denigration or dilution of one’s right to life, liberty
and property.” 8. Civil Service Commission v. Colanggo, 553 SCRA 640 (2008) In this
case, it was discovered that there were significant irregularities in Colanggo’s
documents – photographs attached to Professional Board Examination for Teachers
(PBET), application form and picture seat plan did not resemble Colanggo, and
signature on PBET form markedly different from that affixed on his personal data
sheet (PDS), i.e., someone other than he filed his PBET application and still
another took the exam on his behalf. As a consequence, he was charged with
dishonesty and conduct prejudicial to the best interest of the service. After a
formal hearing, the Civil Service Commission dismissed him. The Court of Appeals
reversed, however, holding that photocopies of PBET application form, picture plan
and PDS should have been authenticated. The Supreme Court held otherwise.
“Administrative rules of procedure are construed liberally to promote their
objective and to assist parties in obtaining just, speedy and inexpensive
determination of their respective claims and defenses.” The CSC, in investigating
complaints against civil servants, is not bound by technical rules of procedure and
evidence applicable in judicial proceedings. Accordingly, the CSC correctly
appreciated the photocopies of PBET application form, picture seat plan and PDS
(though not duly authenticated) in determining whether there was sufficient
evidence to substantiate the charges against Colanggo who did not even object to
the veracity of their contents but merely disputed their admissibility on the
ground that they were not authenticated. 9. Geronga v. Varela, 546 SCRA 429 (2008)
In this case, Geronga, an Engineer in Cadiz City, was charged with 1) Unjust
Vexation, Contempt, Insubordination, Conduct Unbecoming a Public Officer, and Alarm
and Scandal (Administrative Case University of Santo Tomas No. 96-04); and 2) Grave
Misconduct and Engaging in Partisan Political Activity (with 2 other Faculty of
Civil Law respondents) (Administrative Case No. 96-05). The matter was referred by
the mayor to the City Legal Officer for investigation. After investigation, it was
recommended that Geronga be dismissed for Grave Bar Review 2010 Misconduct in Adm.
Case No. 96-04, and dismissed as well, together with others charged with him, in
the other case for grave misconduct and partisan politics. Both recommendations
were approved by the mayor and dismissed Geronga and the others. Without assistance
of counsel, Geronga filed notice to appeal to CSC, then, still without assistance
of counsel, filed a Joint Memorandum (together with another respondent in Adm. Case
No. 96-05), in which he discussed Administrative Case No. 96-05
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systems irrespective of dogmatic origins. (2) If the father of the child born out
of wedlock is himself married to a woman other than the mother, then there is a
cause for administrative sanction against vis-à-vis An Arsenalsuch aArms
‘disgraceful and immoral A Library Of Liberties either the father or the mother. In
Of case, the conduct; consists of having extramarital relations with a married
person. The sanctity of marriage is constitutionally recognized and likewise
affirmed by our statutes as a special contract of permanent union. Accordingly,
judicial employees have been sanctioned for their dalliances with married persons
or for their own betrayals of the marital vow of fidelity.”
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only, and completely omitted reference to Administrative Case No. 96-04. The CSC
ordered the reinstatement of all 3 respondents, but on motion for reconsideration,
the CSC reconsidered in regard to Geronga since his dismissal in Adm. Case No. 96-
04 was not appealed. The Court, after noting that there is a material difference
between a mere recommendation to dismiss an employee and an administrative
decision/resolution sentencing him with dismissal since it is not the
recommendations which are the proper subject matter of an appeal to the CSC, but
the decision/resolution of dismissal rendered by the disciplining authority,
pointed out that in the Notice of Appeal which Geronga filed, he distinctly stated
that what he was appealing to the CSC is his dismissal as contained in the mayor’s
Memorandum Order approving the recommendations of the City Legal Officer. By so
doing, he effectively included in his appeal not just Administrative Case No. 96-05
but also Administrative Case No. 96-04. Therefore, it was error to conclude that
Administrative Case No. 96-04 had become final and executory for failure of
petitioner to appeal the same to the CSC. “Unfortunately for petitioner, the CA and
CSC did not anymore look into the merits of the decision in Administrative Case No.
96-04 simply because he raised no issue or argument against it. Understandably, the
CA and CSC could not be faulted for doing so; they were merely adhering to a basic
rule that in any proceeding, a party who fails to cite specific grounds or raise
particular arguments is deemed to have waived them. Such rule, however, is not
sacrosanct. It yields to the imperatives of equity, which often arise in
administrative cases where at stake is the security of tenure of labor, the
protection of which no less than the Constitution guarantees. Deprivation of
security of tenure may be justified only for the causes specified and in the manner
prescribed by law. Should there be doubt in the legality of either cause or mode of
dismissal, public interest demands the resolution of the doubt wholly on its
substance, rather than solely on technical minutiae.” So what now? “While
petitioner, unaided by legal counsel, may have omitted to raise specific grounds
against the decision insofar as Administrative Case No. 96-04 is concerned, it
cannot be denied that he intended to appeal from it. The least he deserves then is
a scrutiny of the legal and factual bases of his dismissal.” And, the Court further
pointed out: “As it turns out, upon review, said decision, insofar as it relates to
Administrative Case No. 96-04, is patently void.” How come? “Two fundamental
requirements of due process in administrative cases are that a person must be duly
informed of the charges against him; and that he cannot be convicted of an offense
or crime with which he was not charged. A deviation from these requirements renders
the proceeding invalid and the judgment issued therein a lawless thing that can be
struck down anytime. In the present case, the records of Administrative Case No.
96-04 reveal that petitioner was dismissed for an act which was not alleged in the
administrative charge filed against him.” The conclusion which the City Legal
Officer which Del Pilar arrived at in his recommendation, and which became the
basis of the dismissal of Geronga, has no bearing whatsoever on the offenses with
University of Santo Tomas which the latter was charged underFaculty Complaint nor
to the incidents/acts described therein. the Sworn of Civil Law Rather, the
conclusion pertains solely to the alleged defamatory statements which Geronga made
in his Letter-Answer to the Sworn Complaint. Nowhere in the records of
Administrative Case No. 96-04 does Bar Review 2010 it appear that petitioner was
charged with grave misconduct, or that he was held to answer for his alleged
defamatory statements in his letter. Thus, the recommendation and the dismissal
order were issued in utter contempt of the right of petitioner to due process. Both
are void ab initio and should be treated as inexistent. The mayor could not have
approved and adopted a void recommendation. “In effect, there was nothing for
petitioner to appeal from in Administrative Case No. 96-04.”
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Is it then all good news for Geronga? No, not really. The Court added: “That said,
however, the A Library Of 98-V-05 and the December 1, 1997
Resolution/Recommendation nullity of Memorandum Order No. Liberties vis-à-vis An
Arsenal Of Arms leaves Administrative Case No. 96-04 unresolved. Although the Court
may already decide said case
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based on the records before us, the better policy is for us to defer to the
prerogative granted under Section 17, Rule 3 of the Rules of Court, to the primary
disciplining authority, the incumbent mayor of Cadiz City, whether or not to pursue
said administrative case.” Well, if anything, the case could be good news for
aspiring lawyers – it highlights the pitfalls of trying to do away with their
services. 10. Uy v. Office of the Ombudsman, 556 SCRA 73 (2008) What’s In a Name?
In the plunder case against former President Estrada and others, included among
those charged was one Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr. Tan (with
address at Valenzuela City or Mandaluyong City). In time, there was request for
issuance of a warrant of arrest against Victor Jose Tan Uy [with address in Cebu]
alias Eleuterio Tan, Eleuterio Ramos Tan or Mr. Uy, based allegedly on positive
identification made through photographs, as early as the Senate Impeachment Trial
Estrada, as well as on the Sworn Statement of Ma. Caridad Manahan-Rodenas executed
before Atty. Roxas of the Fact Finding and Intelligence Bureau of the Office of the
Ombudsman (“FFIB”) (“identification documents”). Petitioner sought the conduct of
preliminary investigation as to him which the Sandiganbayan granted. The Ombudsman
then issued an Order requiring the petitioner to file his counter-affidavit, the
affidavits of his witnesses, and other supporting documents. Attached to the Order
were the Complaint-Affidavit in OMB-0-00-1756 and the NBI Report in OMB-0-00-1720.
After the petitioner filed his counter-affidavit in which he pointed out that he
was not among those charged, the OMB required him to appear for clarificatory
hearing but he did not, claiming that there was no need for it. In the resolution
that the OMB subsequently issued, it found probable cause against petitioner. Thus,
petitioner was constrained to assail the same before the Supreme Court, alleging
grave abuse of discretion for, among other, having relied on evidence and findings
that were never part of the complaints-affidavits or their supporting documents
served upon him, and which were never adduced or presented in the course of the
preliminary investigation conducted. Specifically, he claimed that the “duty of the
Ombudsman is to determine the existence of probable cause based on the evidence
presented, not to fill up the deficiencies of the complaint, nor to remedy its
weaknesses.” The Court agreed. “At the core of the present controversy is the
regularity, in the context of accepted standards of due process, of the Ombudsman’s
conduct of the Sandiganbayan-ordered preliminary investigation.” The standards that
at the very least assume great materiality and significance are those enunciated in
the leading case of Ang Tibay v. Court of Industrial Relations which instructively
tells us – in defining the basic due process safeguards in administrative
proceedings – that the decision (by an University of Santo Tomas administrative
body) must be rendered on the evidence presented at the hearing, or at least
contained Faculty of Civil Law in the record and disclosed to the parties affected.
“[T]he petitioner was never identified in the previous preliminary investigation to
be the person identified by assumed names or aliases in the supporting Bar Review
2010 complaint-affidavits; hence, a new preliminary investigation should be
conducted to identify him as the person who, using the aliases Eleuterio Tan,
Eleuterio Ramos Tan or Mr. Uy, opened and withdrew from the Landbank account in the
course of a series of acts collectively constituting the crime of plunder. The
critical evidence linking the petitioner to the plunder case is his identification
through the identification documents. This notwithstanding and quite inexplicably,
the identification documents – despite the fatal infirmity the Sandiganbayan found
in the first preliminary investigation – were once again not given to the
petitioner in the subsequent Sandiganbayan-ordered preliminary investigation to
inform him of his alleged links to the A Library Ofthe complaint-affidavits.”
Arsenal Of Arms charges under Liberties vis-à-vis An
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Further, the Court added: “That the petitioner may have actual prior knowledge of
the identification
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documents from proceedings elsewhere is not a consideration sufficiently material

to affect our conclusion. Reasonable opportunity to controvert evidence and
ventilate one’s cause in a proceeding requires full knowledge of the relevant and
material facts specific to that proceeding. One cannot be expected to respond to
collateral allegations or assertions made, or be bound by developments that
transpired, in some other different although related proceedings, except perhaps
under situations where facts are rendered conclusive by reason of judgments between
the same parties – a situation that does not obtain in the present case. Otherwise,
surprise – which is anathema to due process – may result together with the
consequent loss of adequate opportunity to ventilate one’s case and be heard.
Following Ang Tibay, a decision in a proceeding must be rendered based on the
evidence presented at the hearing (of the proceeding), or at least contained in the
record (of the proceeding) and disclosed to the parties affected (during or at the
proceeding).” In short, it is a basic due process requirement that the right to
know and to meet a case requires that a person be fully informed of the pertinent
and material facts unique to the inquiry to which he is called as a party
respondent. Under this requirement, reasonable opportunity to contest evidence as
critical as the identification documents should have been given the petitioner at
the Sandiganbayan-ordered preliminary investigation as part of the facts he must
controvert; otherwise, there is nothing to controvert as the burden of evidence
lies with the one who asserts that a probable cause exists.” 11. Genuino v.
National Labor Relations Commission, 539 SCRA 342 (2007) In order not to run afoul
of the requirements of due process, an employee sought to be dismissed must be
given the particulars of the acts or omissions which are supposed to be the bases
of the charge. They must not be too general in order to enable the employee to
intelligently and adequately prepare his or her defense. In this case, the letters
sent by the employer did not identify the particular acts or omissions allegedly
committed by the employee. The extent of the latter’s alleged knowledge and
participation in the diversion of bank’s clients’ funds, manner of diversion, and
amounts involved; the acts attributed to the employee that conflicted with the
bank’s interests; and the circumstances surrounding the alleged irregular
transactions, were not specified in the notices/letters. “The two-notice
requirement of the Labor Code is an essential part of due process. The first notice
informing the employee of the charges should neither be pro-forma nor vague. It
should set out clearly what the employee is being held liable for. The employee
should be afforded ample opportunity to be heard and not mere opportunity.” 12.
Janssen Pharmaceutica v. Silayro, 546 SCRA 628 (2008)
University of by petitioner for respondent to surrender all his Before 25 November

1998 or the date given Santo Tomas Faculty of Civil Law accountabilities, a
Memorandum dated 24 November 1998 was issued to him for the following alleged
infractions: (1) failure to turn over company vehicles assigned after the receipt
of instruction to that effect from superiors, and (2) refusingBar Review 2010 or
neglecting to obey Company management orders to perform work without justifiable
reason. The Court held: “The superficial compliance with two notices and a hearing
in this case cannot be considered valid where these notices were issued and the
hearing made before an offense was even committed. The first notice, issued on 24
November 1998, was premature since respondent was obliged to return his
accountabilities only on 25 November 1998.” Accordingly, “[s]ince petitioner’s
ostensible compliance with the procedural requirements of notice and hearing took
place before an offense was even committed, respondent was robbed of his rights to
explain his side, to A Library Of Liberties vis-à-vis An Arsenal present his
evidence and rebut what was presented against him, . . .” Of Arms
A person cannot be made to account for and explain an event that has yet to happen.
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13. Formantes v. Duncan Pharmaceuticals, Phils., Inc., – SCRA – (G.R. No. 170661, 4
December 2009) Can the Labor Arbiter uphold an employee’s dismissal on a ground
other than that specified by the employer in its Notice of Termination? Here, the
Court said yes. Referring to its ruling in Rubberworld (Phils.), Inc. v. National
Labor Relations Commission,183 SCRA 421 (1990), at 424, where it held: “It is now
axiomatic that if just cause for termination of employment actually exists and is
established by substantial evidence in the course of the proceedings before the
Labor Arbiter, the fact that the employer failed, prior to such termination, to
accord to the discharged employee the right of formal notice of the charge or
charges against him and a right to ventilate his side with respect thereto, will
not operate to eradicate said just cause so as to impose on the employer the
obligation of reinstating the employee and otherwise granting him such other
concomitant relief as is appropriate in the premises.” It went on to observe:
“Although petitioner was dismissed from work by the respondent on the ground of
insubordination, this Court cannot close its eyes to the fact that the ground of
sexual abuse committed against petitioner's subordinate actually exists and was
established by substantial evidence before the LA.” 14. Anillo v. Commission on the
Settlement of Land Problems, 534 SCRA 228 (2007) Due process does not always have
to mean actual notice all the time. It may also be satisfied if and when there is
constructive notice, such as when one has been represented by a lawyer who has been
appearing all along for the interest of the party and others in the proceedings.
“In administrative proceedings, procedural due process has been recognized to
include the following: (1) the right to actual or constructive notice of the
institution of proceedings which may affect a respondent’s legal rights; (2) a real
opportunity to be heard personally or with the assistance of counsel, to present
witnesses and evidence in one’s favor, and to defend one’s rights; (3) a tribunal
vested with competent jurisdiction and so constituted as to afford a person charged
administratively a reasonable guarantee of honesty as well as impartiality; and (4)
a finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained in the records or made known to the
parties affected.” 15. Benatiro v. Heirs of Evaristo Cuyos, 560 SCRA 478 (2008)
“Although Section 2 of Rule 47 of the Rules of Court provides that annulment of a
final judgment or order of an RTC may be based ‘only on the grounds of extrinsic
fraud and lack of jurisdiction,’ jurisprudence recognizes denial of due process as
additional ground therefor.” Here, the Court held: “While we find that the CA
correctly annulled the CFI Order dated December 16, 1976, we find that it should be
annulled not on the ground of extrinsic fraud, as there is no sufficient evidence
to hold Atty. University of Santo Tomas Taneo or any of the heirs guilty of fraud,
but on the ground that the assailed order is void for lack of due Faculty of Civil
Law process.” And, of course, a void judgment for lack of due process of law, is no
judgment at all.
Bar Floro, Jr., 2010 16. Office of the Court Administrator v.Review 486 SCRA 66
(2006)
Where a judge entertains an unorthodox belief system – such as believing in

“psychic visions,” and in dwarfs, and in being able to write while on trance, of
having been seen by several people in two places at the same time, and of
foreseeing the future because of his power of “psychic phenomenon” – the same
indubitably shows his inability to function with the cold neutrality of an
impartial judge. Such beliefs, specially so when acted upon by the judge, are so at
odds with the critical and impartial thinking required of a magistrate. The
judiciary isOf Libertiesthe proper placeArsenalaOf Arms stay. A Library certainly
not vis-à-vis An for such person to
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17. EDI-Staffbuilders International, Inc. v. National Labor Relations Commission,

537 SCRA 409 (2007) Failure to furnish the adverse party with a copy of the appeal
is treated only as a formal lapse, an excusable neglect, and hence, not a
jurisdictional defect. Accordingly, in such a situation, the appeal should not be
dismissed; however, it should not be given due course either. The duty is then
imposed on the NLRC to require the appellant to comply with the rule that the
opposing party should be provided with a copy of the appeal memorandum. Such
failure of the NLRC to order the appellant to furnish EDI with the Appeal
Memorandum constitutes grave abuse of discretion and the NLRC should proceed with
the adjudication of the case. This failure deprived the other party of procedural
due process which can serve as basis for the nullification of proceedings in the
appeal before the NLRC. It is not level playing field. The rights of the employers
to procedural due process cannot be cavalierly disregarded for they too have rights
assured under the Constitution. 18. Portuguez v. GSIS Family Bank, 517 SCRA 309
(2007) Portuguez complained of having been constructively dismissed, and that he
was forced to retire at the prime of his life as a consequence of the
discrimination, unfair treatment and intense pressure he got from management. On
the issue of discrimination, he alleged that he “reliably learned that Bank records
show that your newly hired officers are being paid the basic salaries in the range
of P25,000 to P30,000.” = = The Court shot this down with the observation that
“[s]uch bare and sweeping statement contains nothing but empty imputation of a fact
that could hardly be given any evidentiary weight by this Court. It is indeed true
that the demand letter made reference to bank records upon which petitioner
purportedly derived his allegation but no such bank records were ever presented as
evidence at any stage of the proceedings. Indubitably, such self-serving and
unsubstantiated declaration is insufficient to establish a case before quasi-
judicial bodies.” And to add salt to a gaping wound, the Court concluded: “Verily,
petitioner’s case is devoid of substance to convince even the unreasonable minds,
for evidently the records are stripped of supporting proofs to, at the very least,
even just verify his claim.” In the same way, it is not enough to simply write
something in your examination booklets. You must have more than conclusions to
convince the examiner that – at the very least – you know what you are supposedly
talking about. 19. Viva Footwear Manufacturing Corporation v. Securities and
Exchange Commission, 522 SCRA 609 (2007) In Pefianco v. Moral, 322 SCRA 439 (2000),
and echoed in Velasquez v. Hernandez, 437 SCRA 537 (2004), the Court held that a
University of Santo Tomasnot entitled to be informed of respondent in an
administrative case is findings and recommendations of an investigating committee.
He is only entitled to the administrative Faculty of Civil Law decision. Viva
Footwear is to the same effect. Here, the Court said that a respondent in an
administrative case is not entitled to be informed of the preliminary findings and
recommendations; he is entitled only Bar Review 2010 to a reasonable opportunity to
be heard, and to the administrative decision based on substantial evidence. Note
that it is the administrative order, not the preliminary report, which is the basis
of any further remedies the losing party in an administrative case may pursue. Its
right to administrative due process only entitles it to an opportunity to be heard
and to a decision based on substantial evidence. No more, no less.
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20. Solid Homes, Inc. v. Laserna, 550 SCRA 613 (2008) A Library Of Liberties vis-à-
vis An Arsenal Of Arms The issue here is the validity of an decision of the Office
of the President which consisted of only a page affirming the judgment of the
HLURB, which was attached to it. The Court held that “[t]he
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constitutional mandate that, “no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is
based,” does not preclude the validity of “memorandum decisions,” which adopt by
reference the findings of fact and conclusions of law contained in the decisions of
inferior tribunals.” And, in regard to that constitutional provision itself, the
Court said that “Section 14, Article VIII of the 1987 Constitution need not apply
to decisions rendered in administrative proceedings, as in the case a bar. Said
section applies only to decisions rendered in judicial proceedings. In fact,
Article VIII is titled ‘Judiciary,’ and all of its provisions have particular
concern only with respect to the judicial branch of government. Certainly, it would
be error to hold or even imply that decisions of executive departments or
administrative agencies are obliged to meet the requirements under Section 14,
Article VIII. The rights of parties in administrative proceedings are not violated
as long as the constitutional requirement of due process has been satisfied.”
Making reference to what was held in the venerable Ang Tibay v. Court of Industrial
Relations, 69 Phil. 635 (1940), the Court stated that among the due process
requirements are that “‘the decision must be rendered on the evidence presented at
the hearing, or at least contained in the record and disclosed to the parties
affected;’ and that the decision be rendered ‘in such a manner that the parties to
the proceedings can know the various issues involved, and the reasons for the
decisions rendered.’ Note that there is no requirement in Ang Tibay that the
decision must express clearly and distinctly the facts and the law on which it is
based. For as long as the administrative decision is grounded on evidence, and
expressed in a manner that sufficiently informs the parties of the factual and
legal bases of the decision, the due process requirement is satisfied.” So, is the
one-page decision valid? “The Office of the President did not violate petitioner’s
right to due process when it rendered its one-page Decision. In the case at bar, it
is safe to conclude that all the parties, including petitioner, were well-informed
as to how the Decision of the Office of the President was arrived at, as well as
the facts, the laws and the issues involved therein because the Office of the
President attached to and made an integral part of its Decision the Decision of the
HLURB Board of Commissioners, which it adopted by reference.”60 21. Espiña v.
Cerujano, 550 SCRA 107 (2008) Can one charged with Conduct Grossly Prejudicial to
the Best Interest of the Service be found guilty of Grave Misconduct? Just like in
Lucas, the Court said it cannot be done. “Conduct grossly prejudicial to the
service does not necessarily include the elements of grave misconduct. The word
‘gross’ connotes ‘something beyond measure; beyond allowance; not to be excused;
flagrant; shameful’ while ‘prejudicial’ means ‘detrimental or derogatory to a
party; naturally, probably or actually bringing about a wrongful result.’ Conduct
grossly prejudicial of the best interest of the service may or may not be
University to Santo Tomas characterized by corruption or a willful intent to of
Civillaw or to disregard established rules. Under Faculty violate the Law the Civil
Service law and rules, there is no concrete description of what specific acts
constitute the grave offense of conduct grossly prejudicial to the best interest of
the service, although this Court has Bar Review 2010 considered the following acts
or omissions, among others, as such: misappropriation of public funds, abandonment
of office, failure to report back to work without prior notice, failure to safe
keep public records and property, making false entries in public documents and
falsification of court orders. While grave misconduct and conduct grossly
prejudicial to the best interest of the service are both grave offenses under the
Omnibus Rules Implementing Book V of Executive Order No. 292, grave misconduct has
a graver penalty.” A Library Of Liberties vis-à-vis An Arsenal Of Arms 60
R
Cf. Pilipinas Kao, Inc. v. Court of Appeals, 372 SCRA 548 (2001), where the Court
said the constitutional and statutory mandate that “no decision shall be rendered
by any court of record without expressing therein clearly and distinctly the facts
and the law on which it is based” applies as well to dispositions by quasi-judicial
and administrative bodies.
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22. Romagos v. Metro Cebu Water District, 533 SCRA 50 (2007) Even the weird, the
strange and the incomprehensible are entitled to their day – and night. This is a
case regarding separation from the service due to mental incapacity. Mental
incapacity could be a ground for either a disciplinary or non-disciplinary
separation. It is disciplinary if the mental incapacity or disability is due to
immoral or vicious habits, in which case separation from the service is done by way
of a disciplinary proceeding. On the other hand, “[w]hile Section 46 of E.O. No.
292 is silent on this matter, mental incapacity not arising from immoral or vicious
habits is also a cause for separation under Section 26 of E.O. No. 292 and Section
2(2), Article IX(B) of the 1987 Constitution, which demand of government officers
and employees continuing merit and fitness. Separation from the service for such
cause is carried out through a non-disciplinary process governed by CSC Memorandum
Circular No. 40, series of 1998 (MC 40-98).” Any difference in the two modes of
separation? Yes, “the first carries administrative disabilities, such as forfeiture
of retirement benefits and perpetual disqualification from employment in the
government service, while the second does not. But both result in loss of
employment – a property right protected under the due process clause. Hence, even
if considered a non-disciplinary mode of separation, dropping from the rolls due to
mental incapacity not arising from immoral or vicious habits is subject to the
requirements of due process.” So what would be the due process requirements then in
cases where an employee has to be separated from the service due to mental
incapacity? “Clearly, before an officer or employee may be dropped from the rolls
for mental incapacity, the following elements and process must obtain: first, that
it has been observed that the subject officer or employee has been behaving
abnormally for an extended period; second, that it has been established through
substantial evidence that such abnormal behavior manifests a continuing mental
disorder and incapacity to work; third, that a written notice is issued by the
subject’s immediate supervisor, describing the former’s continuing mental disorder
and incapacity to work and citing the reports of his co-workers or immediate
supervisor, as confirmed by the head of office; and finally, that another notice is
issued by the appointing authority or head of office, informing the subject of his
separation from the service due to mental incapacity. Thus, a declaration of mental
disorder does not automatically translate to a judgment of mental incapacity to
perform work. A window remains open for the affected officer or employee to counter
opinion on his mental condition and to show that his ability to work remains
unimpaired. Only then may the appointing authority or head of office decide on
whether said officer or employee is no longer mentally capable of performing his
work and should be discharged. These requirements are designed to obviate misuse of
non-disciplinary modes of separation for petty vengeance or vicious harassment.”
Faculty of Civil Law While it is within the academic freedom of learning

institutions to impose discipline upon students guilty of certain offenses, the
same must, however, be exercised prudently and not just whimsically or Bar be
appropriate for arbitrarily wielded. In short, the penalty mustReview 2010 the
misdeed committed. “It is true that schools have the power to instill discipline in
their students as subsumed in their academic freedom and that ‘the establishment of
rules governing university-student relations, particularly those pertaining to
student discipline, may be regarded as vital, not merely to the smooth and
efficient operation of the institution, but to its very survival.’ This power,
however, does not give them the untrammeled discretion to impose a penalty which is
not commensurate with the gravity of the misdeed. If the concept of proportionality
between the offense committed and the sanction imposed is not followed, an element
of A That would Liberties vis-à-vis An Arsenal arbitrariness intrudes. Library
Ofgive rise to a due process question.” Of Arms
23. De La Salle University, Inc. v. Court ofof Santo Tomas (2007) University
Appeals, 541 SCRA 22
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Thus, the Court held that the penalty of expulsion61 is grossly disproportionate to
the gravity of the acts committed by the students who were found guilty in two
mauling incidents which lasted only for few seconds, with the victims not suffering
any serious injury. “Disciplinary measures especially where they involve
suspension, dismissal or expulsion, cut significantly into the future of a student.
They attach to him for life and become a mortgage of his future, hardly redeemable
in certain cases. Officials of colleges and universities must be anxious to protect
it, conscious of the fact that, appropriately construed, a disciplinary action
should be treated as an educational tool rather than a punitive measure.” The
students were meted only the penalty of exclusion.62 24. Office of the Ombudsman v.
Sison, – SCRA – (G.R. No. 185954, 16 February 2010) Can the Office of the Ombudsman
intervene in the appeal from the Court of Appeals’ decision reversing the OMB’s
earlier decision? No. It should remain detached – it must keep in mind that it is
an adjudicator, not an advocate “Clearly, the Office of the Ombudsman is not an
appropriate party to intervene in the instant case. It must remain partial and
detached. More importantly, it must be mindful of its role as an adjudicator, not
an advocate. It is an established doctrine that judges should detach themselves
from cases where their decisions are appealed to a higher court for review. The
raison d’etre for such a doctrine is the fact that judges are not active combatants
in such proceeding and must leave the opposing parties to contend their individual
positions and the appellate court to decide the issues without the judges’ active
participation. When judges actively participate in the appeal of their judgment,
they, in a way, cease to be judicial and have become adversarial instead.” 25.
Ledesma v. Court of Appeals, 541 SCRA 444 (2007) Is it part of the guarantee of due
process before administrative agencies which oversee certain professions that there
must first be a complainant before they could investigate and eventually take back
a license that might have been given in the meantime? In this case the Court said
no, not necessarily. “The absence of a complainant also did not affect the
regularity of the investigation. As opposed to a regular trial court, an
administrative agency, vested with quasi-judicial functions, may investigate an
irregularity on its own initiative. Particularly in the instant case, the
overriding considerations of public safety warranted the investigation of the
falsification of the subject ATO-AEB certification, which allowed petitioner to
undergo training despite his lack of qualifications.” This involves a case where
the Air Transportation Office (ATO) revoked an airline pilot’s license and banned
him from taking any theoretical examination in the future. This came about after
ATO’s investigations disclosed discrepancies and irregularities in the pilot’s
examination results and certification. In this regard, an “airman license cannot be
considered a property right, it is but a mere University the ATO and its revocation
if warranted.” privilege, subject to the restrictions imposed byof Santo Tomas And,
as reminder about the proper scope of judicial review of administrative
determinations, the Court said: “In reviewing administrative decisions of the
executive branch of the government, the Bar Review 2010 findings of facts made
therein are to be respected so long as they are supported by substantial evidence.
Hence, it is not for the reviewing court to weigh the conflicting evidence,
determine the credibility of witnesses, or otherwise substitute its judgment for
that of the administrative agency with respect to the sufficiency of evidence.
Administrative decisions in matters within the executive jurisdiction can only be
set aside on proof of gross abuse of discretion, fraud, or error of law. These
principles negate the
Faculty of Civil Law

R
“An extreme penalty of an erring pupil or student consisting of his exclusion from
admission to any public or private school in A Library Of Liberties vis-à-vis An
Arsenal Of Arms the Philippines and which requires the prior approval of the
Secretary.” (Manual of Regulations for Private Schools [1992]) “A penalty in which
the school is allowed to exclude or drop the name of the erring pupil or student
from the school rolls for being undesirable, and transfer credentials immediately
issued.” (Manual of Regulations for Private Schools [1992])
62
61
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power of the reviewing court to re-examine the sufficiency of the evidence in an

administrative case as if originally instituted therein, and do not authorize the
court to receive additional evidence that was not submitted to the administrative
agency concerned.” 26. Alcuizar v. Carpio, 529 SCRA 216 (2007) This involves a
charge by a married court stenographer against a judge for sexual harassment – once
a forced kiss, another an attempt, other times touching her legs and giving her a
wink. “While substantial evidence would ordinarily suffice to support a finding of
guilt, the rule is a bit different where the proceedings involve judges charged
with grave offense. Administrative proceedings against judges are, by nature,
highly penal in character and are to be governed by the rules applicable to
criminal cases. The quantum of proof required to support the administrative charges
or to establish the ground/s for the removal of a judicial officer should thus be
more than substantial; they must be proven beyond reasonable doubt.” The Court then
concluded: “Going over the testimonial and documentary evidence thus adduced during
the investigation, the proof-beyond-reasonable-doubt threshold required under the
premises has not been hurdled. As it were, circumstances obtained and/or credible
evidence presented tended to cast a heavy cloud on complainant’s credibility and,
necessarily, her case.” 27. Tan v. Pacuribot, 540 SCRA 246 (2007)63 Judges, sexual
harassment and quantum of proof – again! Judge Pacuribot was charged
administratively for sexual harassment committed against two married subordinates –
a court stenographer, and a clerk in the Parole and Probation Office. The matter
was referred to a Court of Appeals Justice for investigation and recommendation.
The Investigating Justice found the charges well founded, making reference to
quantum of evidence that would suffice for said purpose – proof beyond reasonable
doubt – as enunciated in Alcuisar, supra. Interestingly in this case, however, even
as the Court approved the recommendation for the dismissal of the respondent judge,
it sidestepped the issue of the requisite quantum as decreed in Alcuizar, a case
decided just four (4) months earlier.64 Instead, it referred to the general rule
about administrative proceedings and requisite proof. It held: “It is well settled
that in administrative proceedings, the complainant has the burden of proving by
substantial evidence the allegations in his complaint. Substantial evidence is that
amount of relevant evidence that a reasonable mind might accept as adequate to
support a conclusion. In the cases at bar, the complainants Ms. Tan and Ms.
Villafranca were able to adequately substantiate their allegations.” 28. Macias v.
Macias, 601University of SCRA 203 (2009)
Santo Tomas Faculty of Civil Law For a time the Court has been saying in some cases
that administrative cases against judges65 must
be substantiated by proof beyond reasonable doubt though in some other cases it
would refer to mere Bar Review this clarificatory pronouncement: substantial
evidence. In Macias, the Court came up with 2010
See also Re: Sexual Harassment Committed by Judge Rexel M. Pacuribot, RTC, Br. 27,
Gingoog City, A.M. No. 05-12-757-RTC, 7 March 2006 {Not in the SCRA}, where the
Court held that sexual harassment cases against judges are not within the authority
of Committees on Decorum and Investigation (CODIs) but instead of the Supreme Court
itself pursuant to its power of administrative supervision.
63
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64 65
Alcuizar v. Carpio was promulgated on 7 August 2007 while Tan v. Pacuribot was
promulgated on 14 December 2007.
In Arnado v. Suarin, 467 SCRA 402 (2005), even had to call for the application of
the quantum of proof beyond reasonable doubt A Library Of Liberties vis-à-vis An
Arsenal Of Arms in regard to administrative cases involving judicial employees.
Said the Court: “Administrative proceedings against judicial employees are by
nature, highly penal in character and are to be governed by the rules applicable to
criminal cases. The quantum of proof required to support the administrative charges
should thus be more substantial and they must be proven beyond reasonable doubt.”
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“[M]embers of the judiciary are not a class of their own, sui generis, in the field
of public service as to require a higher degree of proof for the administrative
cases filed against them other than, perhaps, the fact that because of the nature
of the responsibility judges have, they are required to live up to a higher
standard of integrity, probity and morality. When we dismiss a public officer or
employee from his position or office for the commission of a grave offense in
connection with his office, we merely require that the complainant prove
substantial evidence. When we disbar a disgraceful lawyer, we require that
complainant merely prove a clear preponderance of evidence to establish liability.
There appears no compelling reason to require a higher degree of proof when we deal
with cases filed against judges.” 29. Carag v. National Labor Relations Commission,
520 SCRA 28 (2007) Do corporate officers incur personal liability in closures of
establishment without the required onemonth notice to the employees? “The failure
to give notice is not an unlawful act because the law does not define such failure
as unlawful. Such failure to give notice is a violation of procedural due process
but does not amount to an unlawful or criminal act. Such procedural defect is
called illegal dismissal because it fails to comply with mandatory procedural
requirements, but it is not illegal in the sense that it constitutes an unlawful or
criminal act.” So what does the foregoing mean? “For a wrongdoing to make a
director personally liable for debts of the corporation, the wrongdoing approved or
assented to by the director must be a patently unlawful act. Mere failure to comply
with the notice requirement of labor laws on company closure or dismissal of
employees does not amount to a patently unlawful act. Patently unlawful acts are
those declared unlawful by law which imposes penalties for commission of such
unlawful acts. There must be a law declaring the act unlawful and penalizing the
act.” Article 283 of the Labor Code, requiring a one-month prior notice to
employees and the Department of Labor and Employment before any permanent closure
of a company, does not state that non-compliance with the notice is an unlawful act
punishable under the Code. There is no provision in any other Article of the Labor
Code declaring failure to give such notice an unlawful act and providing for its
penalty. In short, no personal liability. 30. White Light Corporation v. City of
Manila, 576 SCRA 416 (2009) Following City of Manila v. Laguio,455 SCRA 308 (2005),
in which the Court invalidated an ordinance which provided for the phasing out of
motels and similar establishments in the Ermita-Malate are, the Court again
rebuffed the City in the latter’s continuing fight crusade against the practices of
motels and similar establishments in offering short time admissions and wash-up
rate schemes, a case presenting an instance of balancing between police power and
substantive due process. “The apparent goal of the Ordinance is to minimize if not
eliminate the use of the covered University of Santo Tomas establishments for
illicit sex, prostitution, drug use and Law These goals, by themselves, are Faculty
of Civil alike. unimpeachable and certainly fall within the ambit of the police
power of the State. Yet the desirability of these ends do not sanctify any and all
means for their achievement. Those means must align with the Bar Review 2010
Constitution, and our emerging sophisticated analysis of its guarantees to the
people. The Bill of Rights stands as a rebuke to the seductive theory of
Macchiavelli, and, sometimes even, the political majorities animated by his
cynicism.” In the process of deciding against the City, the Court gave a lecture on
the standards of review: “The general test of the validity of an ordinance on
substantive due process grounds is best tested when assessed with the evolved
footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products.
Footnote A of the Carolene Products vis-à-vis An Arsenalthe judiciary would defer
to the 4 Library Of Liberties case acknowledged that Of Arms legislature unless
there is a discrimination against a ‘discrete and insular’ minority or infringement
of
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a ‘fundamental right.’ Consequently, two standards of judicial review were

established: strict scrutiny for laws dealing with freedom of the mind or
restricting the political process, and the rational basis standard of review for
economic legislation. A third standard, denominated as heightened or immediate
scrutiny, was later adopted by the U.S. Supreme Court for evaluating
classifications based on gender and legitimacy. . . . While the test may have first
been articulated in equal protection analysis, it has in the United States since
been applied in all substantive due process cases as well.” Further expounding, the
Court said: “In terms of judicial review of statutes or ordinances, strict scrutiny
refers to the standard for determining the quality and the amount of governmental
interest brought to justify the regulation of fundamental freedoms. Strict scrutiny
is used today to test the validity of laws dealing with the regulation of speech,
gender, or race as well as other fundamental rights as expansion from its earlier
applications to equal protection. The United States Supreme Court has expanded the
scope of strict scrutiny to protect fundamental rights such as suffrage, judicial
access and interstate travel.” Then, after noting that “[t]he rights at stake
herein fall within the same fundamental rights to liberty which we upheld in City
of Manila v. Hon. Laguio, Jr.,” the Court proceeded to hold that “the Ordinance
prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for
the legitimacy of the Ordinance as a police power measure. It must appear that the
interests of the public generally, as distinguished from those of a particular
class, require an interference with private rights and the means must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive of
private rights. It must also be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. More
importantly, a reasonable relation must exist between the purposes of the measure
and the means employed for its accomplishment, for even under the guise of
protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded. Lacking a concurrence of
these requisites, the police measure shall be struck down as an arbitrary intrusion
into private rights. . . . ” So what does it all lead to? What is the long and
short of it? “[I]ndividual rights may be adversely affected only to the extent that
may fairly be required by the legitimate demands of public interest or public
welfare. The State is a leviathan that must be restrained from needlessly intruding
into the lives of its citizens. However well-intentioned the Ordinance may be, it
is in effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly restrains the
operation of the businesses of the petitioners as well as restricting the rights of
their patrons without sufficient justification. The Ordinance rashly equates wash
rates and renting out a room more than twice a day with immorality without
accommodating innocuous intentions.” 31. David v. Macapagal-Arroyo, 489 SCRA 160
(2006) University of Santo In this case, the Court doctrines. And Justice Tinga
reiterated his disagreement.
Tomas Faculty of Civil Law majority iterated its pronouncements about Bar Review
2010
overbreadth and vagueness
Said the Court: “Related to the ‘overbreadth’ doctrine is the ‘void for vagueness
doctrine’ which holds that ‘a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its application.’ It is
subject to the same principles governing overbreadth doctrine. For one, it is also
an analytical tool for testing ‘on their faces’ statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face
only if it is vague in all its possible applications.” 32. Romualdez A Library Of
Liberties vis-à-vis An 370 (2008) Arms v. Commission on Elections, 553 SCRA Arsenal
Of
The debate on the void-for-vagueness doctrine that inspired Justice Tinga to write
a spirited dissent
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in Romualdez v. Sandiganbayan, 435 SCRA 371 (2004), was continued here. In that
earlier case, Justice Tinga was all by his lonesome in carrying on the argument
that the doctrine is a mandate of the due process clause and not something that is
specific for free speech cases. In this new Romualdez case, he was joined by the
Chief Justice and Justices Austria-Martinez, Carpio Morales, and, Nachura. Justice
Carpio himself came up with a separate dissenting opinion, on the same side as
Justice Tinga’s. In this case, the Romualdez spouses were charged with violating
§45(j) of R.A. No. 8189, in relation to §10(g) and (j) which specify certain things
to be indicated in the application for voter registration – they were charged with
having failed to state the period of residence in the Philippines and in place of
registration (required under §10(g)), and, falsely stating that they are not
registered voters in any other precinct (§10(j)). The basic question here is
whether one could really make sense of §45(j) which includes as an election offense
“[v]iolation of any of the provisions of this Act.” Petitioners submit that Section
45(j) of R.A. No. 8189 makes no reference to a definite provision of the law the
violation of which would constitute an election offense. The majority said it was
not a problem. And, in response to the invocation of the void-for-vagueness
doctrine, the Court held: “The void-for-vagueness doctrine holds that a law is
facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application. However, this Court has imposed certain
limitations by which a criminal statute, as in the challenged law at bar, may be
scrutinized. This Court has declared that facial invalidation or an ‘on-its-face’
invalidation of criminal statutes is not appropriate.” Any test to apply? Yes, “the
test in determining whether a criminal statute is void for uncertainty is whether
the language conveys a sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practice. This Court has similarly
stressed that the vagueness doctrine merely requires a reasonable degree of
certainty for the statute to be upheld – not absolute precision or mathematical
exactitude. As structured, Section 45 of Republic Act No. 8189 makes a recital of
election offenses under the same Act. Section 45(j) is, without doubt, crystal in
its specification that a violation of any of the provisions of Republic Act No.
8189 is an election offense. The language of Section 45(j) is precise. The
challenged provision renders itself to no other interpretation. A reading of the
challenged provision involves no guesswork. We do not see herein an uncertainty
that makes the same vague. Notably, herein petitioners do not cite a word in the
challenged provision, the import or meaning of which they do not understand.”
Justice Carpio, dissenting, said in essence that “[t]he due process clause, which
guarantees that no person shall be deprived of life, liberty or property without
due process of law, requires that citizens are given sufficient notice or warning
of what is lawful and unlawful conduct under a penal statute. To enforce this
guarantee, courts have developed the void for vagueness doctrine. The void for
vagueness University of Santo Tomas doctrine expresses the rule that for an act to
constitute a crime, the law must expressly and clearly Faculty of Civil Law declare
such act a crime. A related doctrine is that penal statutes are construed strictly
against the state and liberally in favor of the accused.” Then, he spoke of tests
to determine constitutionality of the provision in issue. “The threshold issueBar
Review 2010 Section 45(j) now turns on three tests: on the constitutionality of
First, does Section 45(j) give ‘fair notice’ or warning to ordinary citizens as to
what is criminal conduct and what is lawful conduct? Put differently, is Section
45(j) so vague that ordinary citizens must necessarily guess as to its meaning and
differ as to its application? Second, is Section 45(j) so vague that it prescribes
no ascertainable standard of guilt to guide courts in judging those charged of its
violation? Third, is Section 45(j) so vague that law enforcers – the police and
prosecutors – can arbitrarily or selectively enforce it?” In fine, “the ordinary
citizen has no way of knowing which provisions of RA No. A Library Of Liberties
vis-à-vis An copy of RA Arms 8189 are covered by Section 45(j) even if he has
before him aArsenal OfNo. 8189.” Then, for good measure, he added: “Even Judges and
Justices will differ as to which provisions of RA No. 8189 fall
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under Section 45(j).” He concluded: “To punish as crimes acts not expressly
declared unlawful or prohibited by law violates the Bill of Rights. . . . Due
process requires that the law expressly declares unlawful, and punishes as such,
the act for which the accused is held criminally liable. The void for vagueness
doctrine is aimed precisely to enforce this fundamental constitutional right” – “A
blanket and unconditional declaration that any violation of an elaborate and
detailed law is a crime is too imprecise and indefinite, and fails to define with
certitude and clarity what acts the law punishes as crimes.” Justice Tinga reprised
his points in the earlier Romualdez case and rued about lost opportunities: “This
case presented itself with an alluring promise – the rare opportunity to declare a
penal provision unconstitutional and void for vagueness, in the process
obliterating the impression, spawned by recent pronouncements of the Court based on
an erroneous reading of applicable American jurisprudence, that such a denouement
would not unfold in this jurisdiction. Quite lamentably, the majority prevented the
promise from blossoming to fruition, perpetuating instead a grievous doctrinal
error which is already the subject of strenuous criticism within the legal
academe.” In brief, his point is this: “A vague criminal statute at its core
violates due process, as it deprives fair notice and standards to all – the
citizens, the law enforcement officers, prosecutors and judges.” He also expounded
on the “three concerns animating the vagueness doctrine. First, courts are rightly
concerned that citizens be fairly warned of what behavior is being outlawed;
second, courts are concerned because vague laws provide opportunities for arbitrary
enforcement and put the enforcement decisions in the hands of police officers and
prosecutors instead of legislatures; finally, where vague statutes regulate
behavior that is even close to constitutionally protected, courts fear a chilling
effect will impinge on constitutional rights.” On pronouncements which may have
more repercussions than anticipated, Justice Tinga said, “What we have thus seen is
the queer instance of obiter in a latter case, Romualdez v. Sandiganbayan, making a
doctrine of an obiter in an earlier case, Estrada v. Desierto. Moreover, the
controversial statement in Romualdez, as adopted from Estrada with respect to the
vagueness challenge being applicable only to free speech cases, is simply not
reflective of the American jurisprudential rule which birthed the vagueness
doctrine in the first place.” And, on the state of Philippine jurisprudence itself,
seen in the perspective of time, he observed: “We cannot deny the fact that the
void-for-vagueness constitutional challenge, as with some other standards of
constitutional adjudication, had not yet found full fruition within our own
jurisprudence at the time Gatchalian was decided in 1958, a year when the oldest
members of the Court were still studying in law school, and the youngest among us
still in short pants.” 33. Perez v. Sandiganbayan, 503 SCRA 252 (2006) The Special
Prosecutor cannot act on his own Santo Tomas of an Amended Information University
of and direct the filing without the Ombudsman’s go-ahead signal. To do so Civilbe
violative of the guarantee of due process. Faculty of would Law After a motion for
reinvestigation in regard to a charge for violation of §3(e) of R.A. No. 3019 was
Bar Review 2010 granted by the Sandiganbayan, the Office of the Special Prosecutor
conducted the same which resulted in a recommendation for the withdrawal of the
Information. The Ombudsman deferred action, however and directed further study to
determine whether, assuming there was no overprice in the computer procured by the
accused, they gave unwarranted benefits, advantage or preference to the seller,
with instructions to submit recommendation soonest. Subsequent recommendation was
for amendment rather than withdrawal of the Information. The Special Prosecutor
approved the same and the corresponding Amended Information was filed before the
Sandiganbayan. A Library Of Liberties vis-à-vis An Arsenal Of Arms In response to
the argument of the accused that the filing of the Amended Information is premature
– and violative of due process – since the Ombudsman has not approved it, the
People countered that
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compliance with the specific instructions of the Ombudsman is merely an internal

matter. The Court said no, it is not. “The marginal notes of Ombudsmen to the
recommendations of investigating prosecutors are hardly internal matters.” It must
be remembered that “the delegation of the power to authorize the filing of
informations under Office Order No. 40-05 was only made to Deputy Ombudsmen, and
not to the Special Prosecutor.” Moreover, under R.A. No. 6770, §4, the Office of
the Special Prosecutor is under the supervision and control of the Ombudsman.
Accordingly, “when the law entails a specific procedure to be followed, unwarranted
shortcuts lead to the violation of the sacred right to due process, which we cannot
countenance.” As an aside, the Court also said that the Doctrine of Qualified
Political Agency has no application in the Office of the Ombudsman, and explained
it in this wise: “While we do not underestimate the quantity of work in the hands
of the Office of the Ombudsman, the same simply does not measure up to the workload
of the Office of the President as to necessitate having the Special Prosecutor as
an alter ego of the Ombudsman. In any case, the Office of the Ombudsman could very
well make a general delegation of powers to the Special Prosecutor, if it is so
desired.” 34. Securities and Exchange Commission v. GMA Network, Inc., 575 SCRA 113
(2008) Exorbitant and unreasonable filing fees violate due process. “A filing fee,
by legal definition, is that charged by a public official to accept a document for
processing. The fee should be just, fair, and proportionate to the service for
which the fee is being collected, . . .” And, in this regard, the due process
clause permits the courts to determine whether the regulation imposing such fees is
reasonable and within the bounds of its rate-fixing authority and to strike it down
when it arbitrarily infringes on a person’s right to property.
D. EQUAL PROTECTION
The guarantee of equal protection is no argument for absolute equality, for what it
only assures is legal equality. It would hardly be fair nor just that people who
are not equally circumstanced be given the same treatment, otherwise, it would be
as offensive to the notion as the very idea of unequal treatment among equals.
Inherent therefore in the application of the Equal Protection Clause is the need
for valid classifications so as to determine who or what could properly be grouped
together for particular treatment, and excluding all others. In this regard, the
classification must be related to the very purpose of the law and that there should
be substantial distinctions which make for real differences. Gender may be relevant
in regard to certain classifications butof Santo Tomas University not in others.
Age, legitimacy, academic performance, courses of study, office and status, and
otherof Civil classification may make for some valid Faculty bases for Law
differences at times, but not so in other circumstances and climes, and so on.
Bar Review 2010

1. Mirasol v. Department of Public Works and Highways, 490 SCRA 318 (2006) It’s not
only individuals who are not created equal. The things they use are likewise of
various kinds. “To begin with, classification by itself is not prohibited,” intoned
the Court. But a motorized vehicle is just like any other motorized conveyance,
correct? Wrong! The Court explained: “We find that it is neither warranted nor
reasonable for petitioners to say that the only justifiable classification among
modes of transport A the motorizedLiberties vis-à-vis An Arsenalmotorized vehicles
are created is Library Of against the non-motorized. Not all Of Arms equal. A 16-
wheeler truck is substantially different from other light vehicles. The first may
be denied access to some roads where the latter are free to drive. Old vehicles may
be reasonably differentiated
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from newer models. We find that real and substantial differences exist between a
motorcycle and other forms of transport sufficient to justify its classification
among those prohibited from plying the toll ways. Amongst all types of motorized
transport, it is obvious, even to a child, that a motorcycle is quite different
from a car, a bus or a truck. The most obvious and troubling difference would be
that a twowheeled vehicle is less stable and more easily overturned than a four-
wheeled vehicle. “A classification based on practical convenience and common
knowledge is not unconstitutional simply because it may lack purely theoretical or
scientific uniformity. Moreover, we take note that the Philippines is home to a
host of unique motorized modes of transport ranging from modified hand-carts
(kuliglig) to bicycle ‘sidecars’ outfitted with a motor. To follow petitioners’
argument to its logical conclusion would open up toll ways to all these
contraptions. Both safety and traffic considerations militate against any ruling
that would bring about such a nightmare.” Consider yourself not just anyone. While
you are like your fellow examinees, you are still different from everyone else. And
if you’re good enough, you may even end up as a class by yourself.66 2. Pimentel
III v. Commission on Elections En Banc Sitting as the National Board of Canvassers,
548 SCRA 169 (2008) Would there be violation of the equal protection clause if a
candidate is not allowed to question the election officials involved in the canvass
proceedings in one province even as he is allowed to do so for other provinces or
districts? The Court said no. The point of reference should be whether other
candidates are allowed to do so and yet he is not such that he may validly complain
of others being given undue favor, while he is the only one unjustly discriminated
against. 3. Santos v. People, 563 SCRA 341 (2008) If a tax evasion charge against
one show business personality (Regine Velasquez) is dismissed, should a similar
charge against another show business personality (Judy Anne Santos) be dismissed,
too? Of course, not! “The equal protection clause exists to prevent undue favor or
privilege. It is intended to eliminate discrimination and oppression based on
inequality. Recognizing the existence of real differences among men, the equal
protection clause does not demand absolute equality. It merely requires that all
persons shall be treated alike, under like circumstances and conditions, both as to
the privileges conferred and liabilities enforced.” Here, the Court said that the
petitioner was not able to duly establish to the satisfaction of this Court that
she and Velasquez were indeed similarly situated, i.e., that they committed
identical acts for which they were charged with the violation of the same
provisions of the NIRC, and University of Santo Tomas that they presented similar
arguments and evidence in their defense – yet, they were treated differently.
“Furthermore, that the Prosecution Attorney dismissed what were supposedly similar
charges against Velasquez did not compel Prosecution Bar Review 2010 the same way
on the charges against Attorney Torrevillas to rule petitioner. In People v. Dela
Piedra, this Court explained that: ‘The prosecution of one guilty person while
others equally guilty are not prosecuted, however, is not, by itself, a denial of
the equal protection of the laws. Where the official action purports to be in
conformity to the statutory classification, an erroneous or mistaken performance of
the statutory duty, although a violation of the statute, is not without more a
denial of the equal protection of the laws. The unlawful administration by officers
of a statute fair on its face, resulting in its unequal application to those who
are entitled to be treated alike, is not a denial of equal protection unless there
is shown toAn present in it an element of intentional or A Library Of Liberties
vis-à-vis be Arsenal Of Arms
Faculty of Civil Law

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See Nixon v. Administrator of General Services, 433 U.S. 425 (1977)

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purposeful discrimination.’” In fine, “While all persons accused of crime are to be

treated on a basis of equality before the law, it does not follow that they are to
be protected in the commission of crime. It would be unconscionable, for instance,
to excuse a defendant guilty of murder because others have murdered with impunity.
The remedy for unequal enforcement of the law in such instances does not lie in the
exoneration of the guilty at the expense of society * * *. Protection of the law
will be extended to all persons equally in the pursuit of their lawful occupations,
but no person has the right to demand protection of the law in the commission of a
crime.”67 4. Nicolas v. Romulo, 578 SCRA 438 (2009) If foreign troops charged with
the commission of crimes in the country are treated differently from other persons
similarly charged, is there violation of the equal protection clause? Here, the
petitioners argue that to allow the transfer of custody of an accused foreign
soldier to a foreign power is to provide for a different rule of procedure for that
accused. The Court said there is no violation of the equal protection clause
“because there is a substantial basis for a different treatment of a member of a
foreign military armed forces allowed to enter our territory and all other accused.
The rule in international law is that a foreign armed forces allowed to enter one’s
territory is immune from local jurisdiction, except to the extent agreed upon. The
Status of Forces Agreements involving foreign military units around the world vary
in terms and conditions, according to the situation of the parties involved, and
reflect their bargaining power. But the principle remains, i.e., the receiving
State can exercise jurisdiction over the forces of the sending State only to the
extent agreed upon by the parties.” 5. Serrano v. Gallant Maritime Services, Inc.,
582 SCRA 254 (2009) At issue here is the constitutionality of the last clause of
the 5th paragraph of §10 R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act
of 199). The 5th paragraph provides: “In case of termination of overseas employment
without just, valid or authorized cause as defined by law or contract, the workers
shall be entitled to the full reimbursement of his placement fee with interest of
twelve percent (12%) per annum, plus his salaries for the unexpired portion of his
employment contract or for three (3) months for every year of the unexpired term,
whichever is less.” The claim is made that it violates the guarantee of equal
protection since it is based on an invalid distinction between OFW s with contracts
having a period longer than a year and OFWs with contracts having a period less
than one year. The Court agreed and declared that particular clause
unconstitutional. The Court noted that “[t]he enactment of the subject clause in
R.A. No. 8042 introduced a differentiated rule of computation of the money claims
of illegally dismissed OFWs based on their University of Santo Tomas employment
periods, in the process singling out one category whose contracts have an unexpired
portion Faculty of Civil Law of one year or more and subjecting them to the
peculiar disadvantage of having their monetary awards limited to their salaries for
3 months or for the unexpired2010 thereof, whichever is less, but all the Bar
Review portion while sparing the other category from such prejudice, simply because
the latter’s unexpired contracts fall short of one year.” The Court further
observed that “the subject clause creates a sub-layer of discrimination among OFWs
whose contract periods are for more than one year: those who are illegally
dismissed with less than one year left in their contracts shall be entitled to
their salaries for the entire unexpired portion thereof, while those who are
illegally dismissed with one year or more remaining in
B
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Earlier, in Reyes v. Pearlbank Securities, Inc., 560 SCRA 518 (2008), the Court
held: “While Arms to equal protection of the A Library Of Liberties vis-à-vis An
Arsenal Of the right law requires that litigants are treated in an equal manner by
giving them the same rights under similar circumstances, it may not be perversely
used to justify desistance by the authorities from prosecution of a criminal case,
just because not all of those who are probably guilty thereof were charged.”
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their contracts shall be covered by the subject clause, and their monetary benefits
limited to their salaries for three months only.” It further noted that “prior to
R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally
discharged were treated alike in terms of the computation of their money claims:
they were uniformly entitled to their salaries for the entire unexpired portions of
their contracts.” From there, the Court went on to hold: “The Court concludes that
the subject clause contains a suspect classification in that, in the computation of
the monetary benefits of fixed-term employees who are illegally discharged, it
imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or
more in their contracts, but none on the claims of other OFWs or local workers with
fixed-term employment. The subject clause singles out one classification of OFWs
and burdens it with a peculiar disadvantage. There being a suspect classification
involving a vulnerable sector protected by the Constitution, the Court now subjects
the classification to a strict judicial scrutiny, and determines whether it serves
a compelling state interest through the least restrictive means.” So, is there any
compelling state interest? “Assuming that, as advanced by the OSG, the purpose of
the subject clause is to protect the employment of OFWs by mitigating the solidary
liability of placement agencies, such callous and cavalier rationale will have to
be rejected. There can never be a justification for any form of government action
that alleviates the burden of one sector, but imposes the same burden on another
sector, especially when the favored sector is composed of private businesses such
as placement agencies, while the disadvantaged sector is composed of OFWs whose
protection no less than the Constitution commands. The idea that private business
interest can be elevated to the level of a compelling state interest is odious.” In
this case also, we are again regaled with an enlivening discourse on the standards
of review. “There are three levels of scrutiny at which the Court reviews the
constitutionality of a classification embodied in a law: a) the deferential or
rational basis scrutiny in which the challenged classification needs only be shown
to be rationally related to serving a legitimate state interest; b) the middle-tier
or intermediate scrutiny in which the government must show that the challenged
classification serves an important state interest and that the classification is at
least substantially related to serving that interest; and c) strict judicial
scrutiny in which a legislative classification which impermissibly interferes with
the exercise of a fundamental right or operates to the peculiar disadvantage of a
suspect class is presumed unconstitutional, and the burden is upon the government
to prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such interest. Under
American jurisprudence, strict judicial scrutiny is triggered by suspect
classifications based on race or gender but not when the classification is drawn
along income categories. It is different in the Philippine setting. . . .
‘Admittedly, the view that Tomas to persons accorded special University of Santo
prejudice protection by the Constitution requires a stricter judicial scrutiny
finds no support in American or Faculty of Civil Law English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per se controlling in
this jurisdiction. At best, they are persuasive and have2010used to support many of
our decisions. Bar Review been We should not place undue and fawning reliance upon
them and regard them as indispensable mental crutches without which we cannot come
to our own decisions through the employment of our own endowments. . . . ‘But if
the challenge to the statute is premised on the denial of a fundamental right, or
the perpetuation of prejudice against persons favored by the Constitution with
special protection, judicial scrutiny ought to be more strict. A weak and watered
down view would call for the abdication of this Court’s solemn duty to strike down
any law repugnant to the Constitution and the rights it enshrines. . . .’” From
Library Of Liberties vis-à-vis An Arsenal Of Arms A there, the Court concluded:
“Imbued with the same sense of ‘obligation to afford protection to labor,’ the
Court in the present case also employs the standard of strict judicial scrutiny,
for it perceives in the subject clause a suspect classification prejudicial to
OFWs.” In other words, “when
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the challenge to a statute is premised on the perpetuation of prejudice against

persons favored by the Constitution with special protection – such as the working
class or a section thereof – the Court may recognize the existence of a suspect
classification and subject the same to strict judicial scrutiny.” 6. League of
Cities of the Philippines (LCP) v. Commission on Elections, 571 SCRA 263 (2008) and
– SCRA – (G.R. No. 176951, 21 December 2009) When the 11th Congress68 adjourned in
June 2001, there were on deck bills to convert 24 municipalities into cities but
which were never enacted into law. In the meantime, R.A. 9009 wsas enancted, which
became effective on 30 June 2001.This law amended the Local Government Code by
increasing the annual income requirement for conversion of municipalities to cities
from P20 Million = to P100 Million. After the effectivity of RA 9009, the House of
Representatives of the 12th Congress = adopted Joint Resolution No. 29, which
sought to exempt from the P100 million income requirement = in RA 9009 the 24
municipalities whose cityhood bills were not approved in the 11th Congress.
However, the 12th69 Congress ended without the Senate approving Joint Resolution
No. 29. During the 13th Congress,70 the House of Representatives re-adopted Joint
Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for
approval. However, the Senate again failed to approve the Joint Resolution.
Following the advice of Senator Aquilino Pimentel, 16 municipalities filed, through
their respective sponsors, individual cityhood bills. The 16 cityhood bills
contained a common provision exempting all the 16 municipalities from the P100
million income requirement in RA 9009. Both Houses = of Congress approved the
cityhood bills, which bills lapsed into law (Cityhood Laws) on various dates from
March to July 2007 without the President’s signature. In questioning the validity
of their enactment, the issue is raised that there is violation of the Equal
Protection Clause. How valid is the argument? The Court said the Equal Protection
Clause was violated. An exemption based solely on the fact that the 16
municipalities had cityhood bills pending in the 11th Congress when RA 9009 was
enacted does not constitute a valid classification between those entitled and those
not entitled to exemption from the P100 million income requirement. To be valid,
the classification in the present case = must be based on substantial distinctions,
rationally related to a legitimate government objective which is the purpose of the
law, not limited to existing conditions only, and applicable to all similarly
situated. There is no substantial distinction between municipalities with pending
cityhood bills in the 11th Congress and municipalities that did not have pending
bills. The mere pendency of a cityhood bill in the 11th Congress is not a material
difference to distinguish one municipality from another for the purpose of the
income requirement. The classification criterion – mere pendency of a cityhood bill
in the 11th Congress – is not rationally related to the purpose of the law which is
to prevent fiscally non-viable municipalities from converting into cities. The fact
of pendency of a cityhood bill in of Civil Law limits the exemption to a specific
Faculty the 11th Congress condition existing at the time of passage of RA 9009,
which specific condition will never happen again. This violates the requirement
that a valid classification must not be limited to existing conditions only. Bar
Review 2010 The exemption provision in the Cityhood Laws gives the 16
municipalities a unique advantage based on an arbitrary date – the filing of their
cityhood bills before the end of the 11th Congress – as against all other
municipalities that want to convert into cities after the effectivity of RA 9009.
Furthermore, limiting the exemption only to the 16 municipalities violates the
requirement that the classification must apply to all similarly situated.

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Subsequently, when the Court reconsidered its earlier ruling, it held, among
others, on equal protection issue, that: “The equal protection guarantee is
embraced in the broader and elastic concept of due process, every unfair
discrimination being an offense against the requirements of justice and fair play.
It has nonetheless come as a separate clause in Sec. 1, Art. III of the
Constitution to provide for a more specific protection against any undue
discrimination or antagonism from government. Arbitrariness in general may be
assailed on the basis of the due process clause. But if a particular challenged act
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it
down is the equal protection clause.” The Court also noted that this particular
constitutional protection extends likewise to natural or artificial persons, but in
so far are artificial persons are concerned, they are entitled to protection only
insofar as their property is concerned. Accordingly, the petitioner LCP and the
intervenors cannot plausibly invoke the equal protection clause, precisely because
no deprivation of property results by virtue of the enactment of the cityhood laws.
“The LCP’s claim that the IRA of its member-cities will be substantially reduced on
account of the conversion into cities of the respondent LGUs would not suffice to
bring it within the ambit of the constitutional guarantee. Indeed, it is
presumptuous on the part of the LCP member-cities to already stake a claim on the
IRA, as if it were their property, as the IRA is yet to be allocated. For the same
reason, the municipalities that are not covered by the uniform exemption clause in
the cityhood laws cannot validly invoke constitutional protection. For, at this
point, the conversion of a municipality into a city will only affect its status as
a political unit, but not its property as such.” On the requisites for valid
classification,71 the Court found that all of them were met. The favorable
treatment accorded the sixteen (16) municipalities by the cityhood laws rests on
substantial distinction. “Indeed, respondent LGUs, which are subjected only to the
erstwhile PhP 20 million income criterion instead of the stringent income
requirement prescribed in RA 9009, are substantially different from other
municipalities desirous to be cities. Looking back, we note that respondent LGUs
had pending cityhood bills before the passage of RA 9009. There lies part of the
tipping difference.” They were qualified cityhood applicants before the enactment
of RA 009 but because of events they had absolutely nothing to do with, a spoiler
in the form of RA 9009 supervened. Thus, to impose on them the much higher income
requirement after what they have gone through would appear to be indeed unfair. The
peculiar conditions of respondent LGUs provide sufficient grounds for legislative
classification. “A law can be violative of the constitutional limitation only when
the classification is without reasonable basis.” The Court also found the
classification to be germane to the purpose of the law. The exemption of respondent
LGUs/municipalities from the P100 million income requirement was meant to reduce
the = inequality occasioned by the Universityamendatory RA 9009. From another
perspective, the passage of the of Santo Tomas Faculty of Civil Law exemption was
unquestionably designed to insure that fairness and justice would be accorded
respondent LGUs. What were then the cityhood bills covering respondent LGUs were
part and parcel of the original Bar Review became 57 conversion bills filed in the
11th Congress, 33 of those2010 laws before the adjournment of that Congress. The
then bills of the challenged cityhood laws were not acted upon due, inter alia, to
the impeachment of then President Estrada, the related jueteng scandal
investigations conducted before, and the EDSA events that followed the aborted
impeachment. “The enactment of the cityhood laws was in a real sense an attempt on
the part of Congress to address the inequity dealt the respondent LGUs. These laws
positively promoted the equality and eliminated the inequality, doubtless
unintended, between respondent municipalities and the thirty-three (33) other
municipalities whose cityhood bills were A Library Of Liberties vis-à-vis An
Arsenal Of Arms
Classification, to be reasonable, must (1) rest on substantial distinctions; (2) be

germane to the purpose of the law; (3) not be limited to existing conditions only;
and (4) apply equally to all members of the same class.
71
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enacted during the 11th Congress.” And in this regard, the Court noted that “to
deny respondent LGUs/municipalities the same rights and privileges accorded to the
33 other municipalities when, at the outset they were similarly situated, is
tantamount to denying the former the protective mantle of the equal protection
clause. In effect, petitioners and petitioners-in-intervention are creating an
absurd situation in which an alleged violation of the equal protection clause of
the Constitution is remedied by another violation of the same clause. The irony is
not lost to the Court.” With regard to alleged applicability to existing conditions
only, the Court said it is not so. “Then too the non-retroactive effect of RA 9009
is not limited in application only to conditions existing at the time of its
enactment. It is intended to apply for all time, as long as the contemplated
conditions obtain. To be more precise, the legislative intent underlying the
enactment of RA 9009 to exclude would-be-cities from the P100 million criterion
would hold sway, as long as the corresponding cityhood bill has been = filed before
the effectivity of RA 9009 and the concerned municipality qualifies for conversion
into a city under the original version of Sec. 450 of the LGC of 1991. Viewed in
its proper light, the common exemption clause in the cityhood laws is an
application of the non-retroactive effect of RA 9009 on the cityhood bills. It is
not a declaration of certain rights, but a mere declaration of prior qualification
and/or compliance with the non-retroactive effect of RA 9009.” In fine, “the
uniform exemption clause would apply to municipalities that had pending cityhood
bills before the passage of RA 9009 and were compliant with then Sec. 450 of the
LGC of 1991, which prescribed an income requirement of P20 = million. It is hard to
imagine, however, if there are still municipalities out there belonging in context
to the same class as the sixteen (16) respondent LGUs. Municipalities that cannot
claim to belong to the same class as the 16 cannot seek refuge in the cityhood
laws.” 7. Quinto v. Commission on Elections,– SCRA – (G.R. No. 189698, 1 December
2009, and Resolution dated 22 February 2010) Here the issue is about the alleged
discrimination against appointive officials and employees in regard to the effect
of the filing of their Certificates of Candidacy (CoCs) – they are deemed
immediately resigned while elective officials are not so treated. The Court said:
“In considering persons holding appointive positions as ipso facto resigned from
their posts upon the filing of their CoCs, but not considering as resigned all
other civil servants, specifically the elective ones, the law unduly discriminates
against the first class. The fact alone that there is substantial distinction
between those who hold appointive positions and those occupying elective posts,
does not justify such differential treatment.” It then proceeded to declare that
the classification is not germane to the purpose of the law. “The obvious reason
for the challenged provision is to prevent the use of a governmental position to
promote one’s candidacy, or even to wield a dangerous or coercive influence on the
electorate. The University of Santo Tomas measure is further aimed at promoting the
efficiency, integrity, and discipline of the public service by Faculty of Civil Law
eliminating the danger that the discharge of official duty would be motivated by
political considerations rather than the welfare of the public. The restriction is
also justified by the proposition that the entry of Bar Review 2010 civil servants
to the electoral arena, while still in office, could result in neglect or
inefficiency in the performance of duty because they would be attending to their
campaign rather than to their office work. If we accept these as the underlying
objectives of the law, then the assailed provision cannot be constitutionally
rescued on the ground of valid classification. Glaringly absent is the requisite
that the classification must be germane to the purposes of the law. Indeed, whether
one holds an appointive office or an elective one, the evils sought to be prevented
by the measure remain. . . . As to the danger of neglect, inefficiency or
partisanship in the discharge of the functions of Arms A Library Of Liberties vis-
à-vis An Arsenal Of his appointive office, the inverse could be just as true and
compelling. The public officer who files his certificate of candidacy would be
driven by a greater impetus for excellent performance to show his fitness for the
position
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aspired for.” On motion for reconsideration, the Supreme Court reversed itself and
said that the classification is germane to the purpose of the law. The Court made
reference to the “long-standing rule that to remedy an injustice, the Legislature
need not address every manifestation of the evil at once; it may proceed ‘one step
at a time.’ In addressing a societal concern, it must invariably draw lines and
make choices, thereby creating some inequity as to those included or excluded.
Nevertheless, as long as ‘the bounds of reasonable choice’ are not exceeded, the
courts must defer to the legislative judgment. We may not strike down a law merely
because the legislative aim would have been more fully achieved by expanding the
class. Stated differently, the fact that a legislative classification, by itself,
is underinclusive will not render it unconstitutionally arbitrary or invidious.
There is no constitutional requirement that regulation must reach each and every
class to which it might be applied; that the Legislature must be held rigidly to
the choice of regulating all or none.” “In fine, the assailed Decision would have
us ‘equalize the playing field’ by invalidating provisions of law that seek to
restrain the evils from running riot.”
E. SEARCHES AND SEIZURES

A citizen in a democratic and republican state, where sovereignty resides in the
people and all government authority emanates from them, may consider it his
birthright to be free from unwarranted and unreasonable intrusions into his life.
He would not want to have a Big Brother looking over his shoulders and minding his
affairs. The guarantee against unreasonable searches and seizures upholds that
expectation of privacy. And, for starters, it requires that before any searches or
seizures be had, the same must be, as a general rule, accompanied by a warrant,
issued by one who is disinterested and detached from the task of law enforcement.
But even in the issuance of such warrants by a judge, the magistrate is not that
free to simply issue it for no reason at all or on flimsy grounds. He must have
probable cause for the same, which he must determine personally by carefully
examining the complainant, his witnesses and other supporting documents for such
purpose. Further, reasonableness also goes to the manner of serving and executing
it. Accordingly, not because one is armed with a warrant that he would now have the
perfect right to simply barge into houses or dwellings like the gestapo. He must
abide by the “knock and announce” procedure.72 As much as possible, he must still
do it in a civilized manner, unless his life or safety may be in danger, or the
evidence would likely be destroyed by any delay. The requirement of a search
warrant being a general rule, it necessarily follows that some exceptions Faculty
of Civil Law would have to be accommodated, exceptions which are better understood
when seen in the context in which they developed, such as search incident to a
lawful arrest, search of moving vehicles, the plain Bar Review 2010 view doctrine,
and, lately, airport searches. In regard to warrantless arrests, there are the in
flagrante delicto, “hot pursuit” and escaped-prisoners exceptions. But in
considering the things and circumstances relative to the question of whether a
search or seizure was in accordance with the Constitution, one must always remember
that the touchstone is reasonableness.73 And that is not something cast in rigid
and inflexible forms and shapes. “[T]he Fourth
72 73
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See People v. Go, 411 SCRA 81 (2003)
“[B]ecause the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the

warrant requirement is subject to certain exceptions.” (Brigham City v. Stuart, 547
U.S. 398 [2006])
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Amendment74 does not insist upon bright-line rules. Rather, it recognizes that no
single set of legal rules can capture the ever changing complexity of human
life.”75 It has also been stated that a search warrant proceeding is, in no sense,
a criminal action or the commencement of a prosecution. The proceeding is not one
against any person, but is solely for the discovery and to get possession of
personal property. It is a special and peculiar remedy, drastic in nature, and made
necessary because of public necessity. It resembles in some respect what is
commonly known as John Doe proceedings. Further, private complainants can
participate in these proceedings – they may appear, participate and file pleadings
in said proceedings to maintain, inter alia, the validity of the search warrant
issued by the court and the admissibility of the properties seized in anticipation
of a criminal case to be filed. As for the search warrant itself, the Court said
that it is a legal process which has been likened to a writ of discovery employed
by the State to procure relevant evidence of crime. It is in the nature of a
criminal process, restricted to cases of public prosecutions. A search warrant is a
police weapon, issued under the police power.76 1. Bayaca v. Ramos, 577 SCRA 93
(2009) In Talingdan v. Eduarte, 366 SCRA 559 (2001), the judge was found
administratively liable for having improvidently issued a warrant as a consequence
of letting his criminal docket clerk practically determine the existence of
probable cause through the expedient of a checklist. In Bayaga, the judge issued a
Warrant of Arrest and Commitment to Final Sentence leading to the incarceration of
the convict despite the fact that his earlier decision was modified on appeal,
deleting imprisonment as penalty and imposing instead the penalty of fine. In his
explanation, he clarified that his issuance of the warrant of arrest was a mistake
done in good faith. He added that for almost sixteen (16) years it was the practice
in his sala that before acting on a motion it passed through his Clerk of Court who
studied the records to determine whether or not to grant it. If it would be
granted, the Clerk of Court would then request the stenographer to type the order
and thereafter, he would affix his initial for respondent Judge’s signature. Such
was the procedure followed in the instant case – and the path taken to that
unfortunate mistake. The Court found the judge inexcusably negligent. 2. Yao, Sr.
v. People, 525 SCRA 108 (2007) In support of the application for warrants, “[t]he
applicant or his witnesses must have personal knowledge of the circumstances
surrounding the commission of the offense being complained of. ‘Reliable
information’ is insufficient. Mere affidavits are not enough, and the judge must
depose in writing the complainant and his witnesses.” And, how are we to know what
constitutes probable cause? University of Santo Tomas “As the term implies,
‘probable cause’ is concerned with probability, not absolute or even moral Faculty
a reasonably prudent certainty. The standards of judgment are those of of Civil Law
man, not the exacting calibrations of a judge after a full blown trial.” And, would
it be fatal to the establishment of probable cause if the persons who conducted the
preliminary footwork prior to application for warrant used a fictitious name? “The
fact that Oblanca and Alajar used different names in the purchase receipts do not
negate personal knowledge on their part. It is a common practice of the law
enforcers such as NBI agents during covert investigations to use different names in
order to conceal their true identities. This is reasonable and understandable so as
not to endanger the life of the undercover agents and to facilitate the lawful
arrest or apprehension of
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A counterpart Of Liberties vis-à-vis An Arsenal This is the American Library to

Art. III, §2 of the Philippine Constitution.
Justice Breyer, concurring in Georgia v. Randolph, 547 U.S. 103 (2006) United
Laboratories, Inc. v. Isip, 461 SCRA 574 (2005)
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suspected violators of the law.” Further, “[t]here is nothing in the provisions of

law concerning the issuance of a search warrant which directly or indirectly
mandates that the applicant of the search warrant or his witnesses should state in
their affidavits the fact that they used different names while conducting
undercover investigations, or to divulge such fact during the preliminary
examination.” What about searching questions? “The searching questions propounded
to the applicant and the witnesses depend largely on the discretion of the judge.
Although there is no hard-and-fast rule governing how a judge should conduct his
investigation, it is axiomatic that the examination must be probing and exhaustive,
not merely routinary, general, peripheral, perfunctory or pro forma. The judge must
not simply rehash the contents of the affidavit but must make his own inquiry on
the intent and justification of the application.” How about the particularity of
description requirement? “The long standing rule is that a description of the place
to be searched is sufficient if the officer with the warrant can, with reasonable
effort, ascertain and identify the place intended and distinguish it from other
places in the community. Any designation or description known to the locality that
points out the place to the exclusion of all others, and on inquiry leads the
officers unerringly to it, satisfies the constitutional requirement.” In addition,
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 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 when the things
described are limited to those which bear direct relation to the offense for which
the warrant is being issued. While it is true that the property to be seized under
a warrant must be particularly described therein and no other property can be taken
thereunder, yet the description is required to be specific only in so far as the
circumstances will ordinarily allow. The law does not require that the things to be
seized must be described in precise and minute details as to leave no room for
doubt on the part of the searching authorities; otherwise it would be virtually
impossible for the applicants to obtain a search warrant as they would not know
exactly what kind of things they are looking for. Must the property to be seized be
owned by the person against whom the warrant is issued? No, not necessarily. “The
law does not require that the property to be seized should be owned by the person
against whom the search warrants is directed. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is
directed has control or possession of the property sought to be seized.” On A.M.
No. 02-1-06-SC (Rule on Search and Seizure in Civil Actions For Infringement of
Intellectual Property Rights), the Court said that it governs only searches and
seizures in civil actions for infringement of intellectual property rights – it
does not cover criminal violation of Section 155 in University of Santo Tomas
relation to Section 170 of RepublicFaculty of Civil Law Act No. 8293. 3. Valeroso
v. Court of Appeals, – SCRA – (G.R. No. 164815, 3 September 2009) In this case, the
search purportedly incident to arrest was conducted after the suspect was taken out
of his room and then tied his hands. Thereafter, a revolver with live ammunition
was allegedly found in a locked cabinet inside the room. Could this qualify as a
valid search incident to a lawful arrest? No. The Court explained that when an
arrest is made, it is reasonable for the arresting officer to search the person
arrested in order to remove any weapon that the latter might use in order to resist
arrest or effect his escape, or for the protection of the officer, as well as to
prevent the concealment or destruction of evidence on the A Library Of Liberties
vis-à-vis An Arsenal Of of evidence or dangerous suspect’s person. “[A] valid
arrest allows the seizure Arms weapons either on the person of the one arrested or
within the area of his immediate control. The
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phrase ‘within the area of his immediate control’ means the area from within which
he might gain possession of a weapon or destructible evidence.” The Court said that
the cabinet which was locked could no longer be considered as an “area within his
immediate control” because there was no way for him to take any weapon or to
destroy any evidence that could be used against him. The Court further added that
this “exception should not be strained beyond what is needed to serve its purpose.”
Could the warrantless search be justified under the “plain view doctrine”? No, not
also. “The ‘plain view doctrine’ may not be used to launch unbridled searches and
indiscriminate seizures or to extend a general exploratory search made solely to
find evidence of defendant’s guilt. The doctrine is usually applied where a police
officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object.” In regard to the plain view
doctrine, the Court also had this to say in United Laboratories, Inc. v. Isip:77
The “plain view doctrine” is not an exception to the warrant. It merely serves to
supplement the prior justification – whether it be a warrant for another object,
hot pursuit, search as an incident to a lawful arrest or some other legitimate
reason for being present, unconnected with a search directed against the accused.
The doctrine may not be used to extend a general exploratory search from one object
to another until something incriminating at last emerges. It is a recognition of
the fact that when executing police officers come across immediately incriminating
evidence not covered by the warrant, they should not be required to close their
eyes to it, regardless of whether it is evidence of the crime they are
investigating or evidence of some other crime. As for the immediacy requirement,
this means that the executing officer can, at the time of discovery of the object
or the facts therein available to him, determine probable cause of the object’s
incriminating evidence – to be immediate, probable cause must be the direct result
of the officer’s instantaneous sensory perception of the object. The immediately
apparent test does not require an unduly high degree of certainty as to the
incriminating character of evidence. As to the requirement of inadvertence, it
means that the officer must not have known in advance of the location of the
evidence and intended to seize it. Further, the immediately apparent aspect is
central to the plain view exception. 4. Sony Computer Entertainment, Inc. v. Bright
Future Technologies, Inc., 516 SCRA 62 (2007) Violation of the Two-Witness Rule in
searches and seizures results in quashal of the warrant. The two-witness rule
governing the execution of search warrant is mandatory to ensure regularity in the
execution of the search warrant. Accordingly, the rule is violated where the police
were already searching the area when the two (2) barangay tanods who served as
witnesses arrived. How about security guards? A security guard may not be
considered a “lawful occupant” or “a University of Santo Tomas member of the lawful
occupant’s family” underof Civil Law126. Faculty Section 8 of Rule 5. Summerville
General Merchandising Co. v. Court of Appeals, 525 SCRA 602 (2007) The Constitution
does not provide a blanket prohibition against all searches and seizures – rather,
the fundamental protection accorded by the search and seizure clause is that,
between persons and the police, there must stand the protective authority of a
magistrate clothed with the power to issue or refuse such search warrant. The
responsibilities of the magistrate do not end with the granting of the warrant, but
extends to the custody of the articles seized.
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Where there is no allegation that the design and/or mark of a particular brand of
playing cards is a A Library Of colorable vis-à-vis An Arsenal Of Arms
reproduction, counterfeit, copy, or Liberties imitation of another registered mark
legally owned by
77
461 SCRA 574 (2005)

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another, there is no crime of trademark infringement that appears to have been

committed or perpetrated to warrant the inference that aid playing cards are
“subject of the offense” as contemplated by Sec. 4 of Rule 126 of the Rules of
Court. The Court also held in this case that, where there is the availability of
actual samples, there is no need for the court to take custody of the countless
articles seized. There is no law prohibiting the trial court from returning the
articles seized before a case is actually filed in court and even before the final
determination by the prosecutor or the Department of Justice of whether a case
should be filed in court. Also, where the articles seized have already been found
not to be the “subject of the offense” and the purpose of presenting them as
evidence is no longer served, there is no justification for severely curtailing the
rights of a person to his property. To value the privacy of home and person and to
afford its constitutional protection against the long reach of the government are
no less than to value human dignity – and this privacy must not be disturbed except
in the overriding social need, and then only under the stringent procedural rules.
6. Los Angeles County v. Rettele, 550 U.S. 609 (2007) In Wilson v. Layne,526 U.S.
603 (1999), the occupants of the house complained about the police practice known
as “media ride along” where police enter residences serving warrants with the media
in tow. In said case the police went in unannounced early one morning, at a time
when the two occupants were still in bed. When the husband went down to
investigate, he was still in his sleeping attire. Here, in Rettele, it was worse.
The policemen surprised the two occupants in bed – naked. And then they were not
allowed to immediately put on anything as they were made to stand au naturel for
about two minutes. Would this constitute an unreasonable manner of conducting a
search? In relation to a fraud and identity-theft crime ring investigation, police
secured a warrant to search two houses. They were unaware that the suspects – four
African-Americans – had moved out of the house three months earlier and the house
had been sold to Rettle who moved in there with his girlfriend and her son – all
Caucasians. Accordingly, when the police made the search at around 7:15 one
morning, they found in a bedroom two residents who were of a different race than
the suspects. The deputies ordered these innocent residents, who had been sleeping
unclothed, out of bed, and required them to stand for a few minutes before allowing
them to dress. The Court held that the search was reasonable under the
circumstances. “When the deputies ordered respondents from their bed, they had no
way of knowing whether the African-American suspects were elsewhere in the house.
The presence of some Caucasians in the residence did not eliminate the possibility
that the suspects lived there as well. As the deputies stated in their affidavits,
it is not uncommon in our society for people of different races to live together.
Just as people of different races live and work together, so tooUniversity of in
joint criminal activity. The deputies, who were might they engage Santo Tomas
searching a house where they believed a suspect might be Law possessed authority to
secure the Faculty of Civil armed, premises before deciding whether to continue
with the search.” Accordingly, “[t]he orders by the police to the occupants, in the
context of this lawful search, were permissible, and perhaps necessary, to protect
Bar Review 2010 the safety of the deputies. Blankets and bedding can conceal a
weapon, and one of the suspects was known to own a firearm, factors which
underscore this point. The Constitution does not require an officer to ignore the
possibility that an armed suspect may sleep with a weapon within reach.” Moreover,
“[t]he deputies needed a moment to secure the room and ensure that other persons
were not close by or did not present a danger.” In other words, “[w]hen officers
execute a valid warrant and act in a reasonable manner to protect themselves from
harm, however, the Fourth Amendment is not violated.”
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when going to sleep and when going to takeOf Arms
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7. United States v. Grubbs, 547 U.S. 90 (2006) In anticipation of examinees passing

the Bar exams, certain things might already be being prepared for that great
moment. If this could be done with an expected event, could it be done likewise in
regard to search warrants? Or, can a warrant be applied for in anticipation of the
occurrence of some event which would trigger the justification for the service of
the warrant? The U.S. Supreme Court said yes. “Because the probable-cause
requirement looks to whether evidence will be found when the search is conducted,
all warrants are, in a sense, ‘anticipatory.’ In the typical case where the police
seek permission to search a house for an item they believe is already located
there, the magistrate’s determination that there is probable cause for the search
amounts to a prediction that the item will still be there when the warrant is
executed.” Anticipatory warrants are no different in principle from ordinary
warrants. “They require the magistrate to determine (1) that it is now probable
that (2) contraband, evidence of a crime, or a fugitive will be on the described
premises (3) when the warrant is executed. It should be noted, however, that where
the anticipatory warrant places a condition (other than the mere passage of time)
upon its execution, the first of these determinations goes not merely to what will
probably be found if the condition is met. (If that were the extent of the
probability determination, an anticipatory warrant could be issued for every house
in the country, authorizing search and seizure if contraband should be delivered –
though for any single location there is no likelihood that contraband will be
delivered.) Rather, the probability determination for a conditioned anticipatory
warrant looks also to the likelihood that the condition will occur, and thus that a
proper object of seizure will be on the described premises. In other words, for a
conditioned anticipatory warrant to comply with the Fourth Amendment’s requirement
of probable cause, two prerequisites of probability must be satisfied. It must be
true not only that if the triggering condition occurs ‘there is a fair probability
that contraband or evidence of a crime will be found in a particular place,’ . . .
but also that there is probable cause to believe the triggering condition will
occur.” 8. People v. Tuazon, 532 SCRA 152 (2007) The police received a confidential
information through telephone that a Gemini car with plate number PFC 411 would
deliver an unspecified amount of shabu in Marville Subdivision, Antipolo City.
Policemen dispatched to conduct a surveillance saw the said Gemini car and
immediately flagged it down. When the car window was lowered, one of the policemen
saw a gun tucked on Tuazon’s waist. He was then asked to go down, and the policeman
saw five plastic sachets of shabu on the driver’s seat, the contents of which
Tueazon allegedly admitted to be shabu. Is this a valid moving vehicle search? “In
the case of People v. Lo Ho Wing, [193 SCRA 122, 128-129 (1991),] this Court had
the occasion University of Santo Tomas to elucidate on the rationale for the
exemption of searches of moving vehicles from the requirement of search warrant,
thus: ‘[T]he rules Facultysearch and seizure have over the years been steadily
governing of Civil Law liberalized whenever a moving vehicle is the object of the
search on the basis of practicality. This is so Bar Review 2010 considering that
before a warrant could be obtained, the place, things and persons to be searched
must be described to the satisfaction of the issuing judge – a requirement which
borders on the impossible in the case of smuggling effected by the use of a moving
vehicle that can transport contraband from one place to another with impunity. We
might add that a warrantless search of a moving vehicle is justified on the ground
that ‘it is not practicable to secure a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which the warrant must be sought.”
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The Court cautioned, however, Liberties vis-à-vis An Arsenal Of exception from

securing a A Library Of in regard to vehicle searches, that “the Arms search
warrant when it comes to moving vehicles does not give the police authorities
unbridled discretion to conduct a warrantless search of an automobile. To do so
would render the aforementioned
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constitutional stipulations inutile and expose the citizenry to indiscriminate

police distrust which could amount to outright harassment. Surely, the policy
consideration behind the exemption of search of moving vehicles does not encompass
such arbitrariness on the part of the police authorities. In recognition of the
possible abuse, jurisprudence dictates that at all times, it is required that
probable cause exist in order to justify the warrantless search of a vehicle.”
Accordingly, “[w]hen a vehicle is flagged down and subjected to an extensive
search, such a warrantless search has been held to be valid as long as the officers
conducting the search have reasonable or probable cause to believe prior to the
search that they would find the instrumentality or evidence pertaining to a crime,
in the vehicle to be searched.” Here, the police had such probable cause. 9. People
v. Laguio, Jr., 518 SCRA 393 (2007) Following a descriptions made by persons
earlier arrested by the police of the supplier of shabu, the police conducted a
surveillance in the place indicated and when they saw someone who fitted the given
description – walking from the apartment to his car – they approached him, frisked
him and found an unlicensed firearm. A search of his car yielded shabu and another
unlicensed firearm. The Court held both the arrest and the search unconstitutional:
“The facts and circumstances surrounding the present case did not manifest any
suspicious behavior on the part of private respondent Lawrence Wang that would
reasonably invite the attention of the police. He was merely walking from the Maria
Orosa Apartment and was about to enter the parked BMW car when the police
operatives arrested him, frisked and searched his person and commanded him to open
the compartment of the car, which was later on found to be owned by his friend,
David Lee. He was not committing any visible offense then. Therefore, there can be
no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5.
It is settled that ‘reliable information’ alone, absent any overt act indicative of
a felonious enterprise in the presence and within the view of the arresting
officers, is not sufficient to constitute probable cause that would justify an in
flagrante delicto arrest. Neither may the warrantless arrest be justified under
paragraph (b) of Section 5. What is clearly established from the testimonies of the
arresting officers is that Wang was arrested mainly on the information that he was
the employer of Redentor Teck and Joseph Junio who were previously arrested and
charged for illegal transport of shabu.” Accordingly, “the warrantless arrest was
illegal. Ipso jure, the warrantless search incidental to the illegal arrest is
likewise unlawful.” 10. Valdez v. People, 538 SCRA 611 (2007) “The sacred right
against an arrest, search or seizure without valid warrant is not only ancient. It
is also zealously safeguarded. . . University of Santo Tomas . Indeed, while the
power to search and seize may at times be necessary to the public welfare, still it
must Faculty of Civil Law be exercised and the law implemented without contravening
the constitutional rights of the citizens, for the enforcement of no statute is of
sufficient importance to justify indifference to the basic principles of
government.” Bar Review 2010 While conducting routine patrol along the National
Highway in Aringay, La Union, one early evening, three barangay tanods noticed
Valdez, lugging a bag, alight from a mini-bus. They observed that he appeared
suspicious since he seemed to be looking for something. They approached him but the
latter purportedly attempted to run away. They gave chase and caught up with him,
arrested him and thereafter brought him to the house of the Barangay Captain where
he was ordered to open his bag. They then allegedly found dried marijuana leaves.
Search and seizure valid? “For the exception in Section A Library Of Liberties vis-
à-vis An Arsenal Of present: 5(a), Rule 113 to operate, this Court has ruled that
two (2) elements must beArms (1) the person to be arrested must execute an overt
act indicating that he has just committed, is actually committing, or
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is attempting to commit a crime; and (2) such overt act is done in the presence or
within the view of the arresting officer. Here, petitioner’s act of looking around
after getting off the bus was but natural as he was finding his way to his
destination. That he purportedly attempted to run away as the tanod approached him
is irrelevant and cannot by itself be construed as adequate to charge the tanod
with personal knowledge that petitioner had just engaged in, was actually engaging
in or was attempting to engage in criminal activity. More importantly, petitioner
testified that he did not run away but in fact spoke with the barangay tanod when
they approached him.” Further, “[e]ven taking the prosecution’s version generally
as the truth, in line with our assumption from the start, the conclusion will not
be any different. It is not unreasonable to expect that petitioner, walking the
street at night, after being closely observed and then later tailed by three
unknown persons, would attempt to flee at their approach. Flight per se is not
synonymous with guilt and must not always be attributed to one’s consciousness of
guilt. . . . ‘[F]light alone is inherently ambiguous.’ Alone, and under the
circumstances of this case, petitioner’s flight lends itself just as easily to an
innocent explanation as it does to a nefarious one.” Could this not fall under
Terry “stop and frisk” exception? “[A] stop-and-frisk situation, following Terry v.
Ohio, must precede a warrantless arrest, be limited to the person’s outer clothing,
and should be grounded upon a genuine reason, in light of the police officer’s
experience and surrounding conditions, to warrant the belief that the person
detained has weapons concealed about him.” How about waiver and consent? A waiver
of an illegal warrantless arrest does not also mean a waiver of the inadmissibility
of evidence seized during an illegal warrantless arrest. Moreover, consent to a
search is not to be lightly inferred, but must be shown by clear and convincing
evidence – it is the State which has the burden of proving, by clear and positive
testimony, that the necessary consent was obtained and that it was freely and
voluntarily given. Crimes, such as those which lead to drug addiction, have to be
addressed but it must be done in a manner consistent with the Constitution – “in
the rightfully vigorous campaign of the government to eradicate the hazards of drug
use and drug trafficking, it cannot be permitted to run roughshod over an accused’s
right to be presumed innocent until proven to the contrary and neither can it shirk
from its corollary obligation to establish such guilt beyond reasonable doubt.”
Then, to show everyone that it is not blind to what may actually be happening in
the outside world of criminals and policemen, the Court said: “A final word. . . .
We are not oblivious to the fact that in some instances, law enforcers resort to
the practice of planting evidence to extract information or even harass civilians.
Accordingly, courts are duty-bound to be ‘[e]xtra vigilant in trying drug cases
lest an innocent person be made to suffer the unusually severe penalties for drug
offenses.’ In the same vein, let this serve as an admonition to police officers and
public officials alike to perform their mandated University of Santo Tomas duties
with commitment to the highest degree of diligence, righteousness and respect for
the law.” Faculty of Civil Law 11. Galvante v. Casimiro, 552 SCRA 304 (2008) If a
person has his vehicle searched without warrant and he claims that the same is
uncalled for, can he charge the policemen who did the searching before the
Ombudsman? And, for what offense? The Court said that there is no such crime as
searching without warrant – “[t]he conduct of a warrantless search is not a
criminal act for it is not penalized under the Revised Penal Code (RPC) or any
other special law. What the RPC punishes are only two forms of searches: . . .” –
Art. 129 (Search warrants maliciously obtained and abuse in the service of those
legally obtained) and Art. 130 (Searching domicile without witnesses). A Library Of
Liberties vis-à-vis An Arsenal Ofbe Art. 32 in relation to Art. The person’s remedy
against warrantless searches would Arms 2219 (6) and (10) of the Civil Code, and/or
disciplinary and administrative, under Section 41 of R.A. 6975 (DILG Act of 1990).
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12. Superlines Transportation Company, Inc. v. Philippine National Construction

Company, 519 SCRA 432 (2007) Of accidents, investigations and impoundments of
vehicles. A Superlines bus crashed into radio room of PNCC at Alabang Northbound
Exit Lane way back in December 1990. After initial investigation by PNCC toll way
patrol, the bus was turned over to the Alabang Traffic Bureau for its own
investigation. Because of lack of adequate space, the bus was, on request of
traffic investigator (Lopera), towed by the PNCC patrol to its compound where it
was stored. Superlines’ request for return went unheeded by PNCC. The latter
demanded sum of P40,000 or = collateral of same value, representing its estimate of
the cost of reconstruction of damage but which Superlines estimated only to be
P10,000. Because of this stalemate, a replevin suit was filed by = Superlines. The
trial court dismissed. The Court of Appeals ruled that storage of the bus for
safekeeping purposes partakes nature of deposit, hence custody or authority over it
remained with the police traffic investigator and in the absence of any
instructions from him, PNCC could not release the bus, i.e., the case should have
been brought against the police authorities. Is the CA correct? “In upholding the
dismissal of petitioner’s complaint, the Court of Appeals held that while ‘there is
no law authorizing the impounding of a vehicle involved in an accident by the
police authorities, * * * neither is there a law making the impounding of vehicles
involved in accidents illegal.’ It added that ‘the Supreme Court is of the view
that there is yet no clear-cut policy or rule on the matter.’ The appellate court
is mistaken. The Constitution grants the right against unreasonable seizures.”
Here, the seizure and impounding of the bus were unquestionably violative of “the
right to be let alone” by the authorities as guaranteed by the Constitution. “This
Court’s statement in Victory Liner[, Inc. v. Bellosillo (425 SCRA 79 [2004]),] on
the lack of a ‘clear-cut policy’ refers to the practice, rightly or wrongly, of
trial court judges of issuing orders for the impounding of vehicles involved in
accidents. It has no application to the instant case which involves the seizure and
distraint implemented by respondents upon a verbal order by Lopera without the
benefit or color of legality afforded by a court process, writ or order.” Further,
the fact that a year after the incident the driver was criminally charged for
reckless imprudence in which the bus could possibly he held as evidence does not
affect the outcome of the case – the rule that property held as evidence in a
criminal case cannot be replevied applies only where the property is lawfully held,
i.e., seized in accordance with the rule on searches and seizures or its accepted
exceptions. Property subject of litigation is not by that fact alone in custodia
legis. 13. Sabio v. Gordon, 504 SCRA 704 (2006) “Zones of privacy are recognized
and protected in our Tomas University of Santo laws. Within these zones, any form
of intrusion is impermissible unless excused by law and in accordance with
customary legal process. The Faculty of Civil Law meticulous regard we accord to
these zones arises not only from our conviction that the right to privacy is a
‘constitutional right’ and ‘the right mostReviewcivilized men,’ but also from our
adherence to Bar valued by 2010 the Universal Declaration of Human Rights which
mandates that, ‘no one shall be subjected to arbitrary interference with his
privacy’ and ‘everyone has the right to the protection of the law against such
interference or attacks.’” Nevertheless, in this case the Court did not find the
refusal of the summoned officers of sequestered corporations as properly falling
within any recognized right to privacy, specially in light of the legislative
prerogative to conduct inquiries in aid of legislation, not to speak of the right
of the people not to be kept A Library Of Liberties vis-à-vis An Arsenal Of but no
in the dark while sinister activities might be going on – all noise and sound Arms
visuals.
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14. Social Justice Society v. Dangerous Drugs Board, 570 SCRA 410 (2008) Would the
constitutional proscription against unreasonable searches and searches be violated
by the requirement of the Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165)
mandating drug testing of students of secondary and tertiary schools, officers and
employees of public and private offices, and persons charged before the
prosecutor’s office with offenses punishable by more than six years’ imprisonment?
(Another issue was whether the same requirement for those running for public office
would constitute an impermissible addition to the qualifications for the office of
Senator. The Court answered in the affirmative.) The Court held that the provisions
of RA 9165 requiring mandatory, random, and suspicionless drug testing of students
are constitutional. “Indeed, it is within the prerogative of educational
institutions to require, as a condition for admission, compliance with reasonable
school rules and regulations and policies. To be sure, the right to enroll is not
absolute; it is subject to fair, reasonable, and equitable requirements. The Court
can take judicial notice of the proliferation of prohibited drugs in the country
that threatens the well-being of the people, particularly the youth and school
children who usually end up as victims. Accordingly, and until a more effective
method is conceptualized and put in motion, a random drug testing of students in
secondary and tertiary schools is not only acceptable but may even be necessary if
the safety and interest of the student population, doubtless a legitimate concern
of the government, are to be promoted and protected. How about for employees? “Just
as in the case of secondary and tertiary level students, the mandatory but random
drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and
private offices is justifiable, albeit not exactly for the same reason.” Here,
there would be a more careful balancing of values. “‘[R]easonableness’ is the
touchstone of the validity of a government search or intrusion. And whether a
search at issue hews to the reasonableness standard is judged by the balancing of
the government-mandated intrusion on the individual’s privacy interest against the
promotion of some compelling state interest. . . . Given that the drug-testing
policy for employees – and students for that matter – under RA 9165 is in the
nature of administrative search needing what was referred to in Vernonia as ‘swift
and informal disciplinary procedures,’ the probable-cause standard is not required
or even practicable. Be that as it may, the review should focus on the
reasonableness of the challenged administrative search in question. The first
factor to consider in the matter of reasonableness is the nature of the privacy
interest upon which the drug testing, which effects a search within the meaning of
Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The employees’
privacy interest in an office is to a large extent circumscribed by University of
Santo Tomas the company’s work policies, the collective bargaining agreement, if
any, entered into by management Faculty of employer to maintain discipline and
efficiency in and the bargaining unit, and the inherent right of theCivil Law the
workplace. Their privacy expectation in a regulated office environment is, in fine,
reduced; and a Bar been upheld.” Further, “[j]ust as defining as the first factor
degree of impingement upon such privacy hasReview 2010 is the character of the
intrusion authorized by the challenged law. Reduced to a question form, is the
scope of the search or intrusion clearly set forth, or, as formulated in Ople v.
Torres, is the enabling law authorizing a search “narrowly drawn” or “narrowly
focused”? In other words, taking into account “the reduced expectation of privacy
on the part of the employees, the compelling state concern likely to be met by the
search, and the well-defined limits set forth in the law to properly guideLibrary
Ofin the conduct of the random testing,Of Arms A authorities Liberties vis-à-vis An
Arsenal . . . the challenged drug test requirement is, under the limited context of
the case, reasonable and, ergo, constitutional.”
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How about for those charged with crimes? “Unlike the situation covered by Sec. 36
(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug
testing for persons accused of crimes. In the case of students, the constitutional
viability of the mandatory, random, and suspicionless drug testing for students
emanates primarily from the waiver by the students of their right to privacy when
they seek entry to the school, and from their voluntarily submitting their persons
to the parental authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random, and suspicionless
drug testing proceeds from the reasonableness of the drug test policy and
requirement. We find the situation entirely different in the case of persons
charged before the public prosecutor’s office with criminal offenses punishable
with six (6) years and one (1) day imprisonment. The operative concepts in the
mandatory drug testing are ‘randomness’ and ‘suspicionless.’ In the case of persons
charged with a crime before the prosecutor’s office, a mandatory drug testing can
never be random or suspicionless. The ideas of randomness and being suspicionless
are antithetical to their being made defendants in a criminal complaint. They are
not randomly picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded against
their will. The persons thus charged, by the bare fact of being haled before the
prosecutor’s office and peaceably submitting themselves to drug testing, if that be
the case, do not necessarily consent to the procedure, let alone waive their right
to privacy. To impose mandatory drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution, contrary to the stated
objectives of RA 9165. Drug testing in this case would violate a persons’ right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the
accused persons are veritably forced to incriminate themselves.” 15. Case of S. And
Marper v. The United Kingdom, Applications No. 30562/04 and 30566/04, 4 December
2008 {European Court of Human Rights, sitting as a Grand Chamber}
(http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action
=html&highlight=Dna&sessionid=16803951&skin=hudoc-en) The issue here is whether the
indefinite retention of fingerprints, DNA profile, and cellular samples of persons
who were charged but were not convicted would be violative of the right to respect
for private life which is guaranteed by Article 8 of the European Convention on
Human Rights.78 Here, S, 11 years old, was charged with attempted robbery but was
acquitted. Marter, on the other hand, was charged with harassment of his partner
but after they reconciled, the charge was no longer pressed. Fingerprints and DNA
samples were taken from both, S and Marter but police refused to destroy them after
the cases were terminated. So what is private life? “The Court recalls that the
concept of “private life” is a broad term not University of Santo Tomas susceptible
to exhaustive definition. It covers the physical and psychological integrity of a
person . . . . It can therefore embrace multiple Faculty of Civilphysical and
social identity . . . . Elements aspects of the person’s Law such as, for example,
gender identification, name and sexual orientation and sexual life fall within the
personal sphere protected by Article 8 Bar Beyond a person’s name, his or her
private and family life . . . . Review 2010 may include other means of personal
identification and of linking to a family . . . . Information about the person’s
health is an important element of private life . . . . Article 8 protects in
addition a right to personal development, and the right to establish and develop
relationships with other human beings and the outside world . . . . The concept of
private life moreover includes elements relating to a person’s right to their
image.” Then, the Court went on to state: “The mere storing of data relating to the
private life of an individual amounts to an interference within the meaning of
Article 8.” A Library Of Liberties vis-à-vis An Arsenal Of Arms 78
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Art. 8, European Convention on Human Rights provides: “1. Everyone has the right to
respect for his private ... life ... 2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with the
law and is necessary in a democratic society ... for the prevention of disorder or
crime...”
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So what about personal data and modern developments? “The Court maintains its view
that an individual’s concern about the possible future use of private information
retained by the authorities is legitimate and relevant to a determination of the
issue of whether there has been an interference. Indeed, bearing in mind the rapid
pace of developments in the field of genetics and information technology, the Court
cannot discount the possibility that in the future the private-life interests bound
up with genetic information may be adversely affected in novel ways or in a manner
which cannot be anticipated with precision today.” How do these sum up then? “Given
the nature and the amount of personal information contained in cellular samples,
their retention per se must be regarded as interfering with the right to respect
for the private lives of the individuals concerned.” And, “the DNA profiles’
capacity to provide a means of identifying genetic relationships between
individuals . . . is in itself sufficient to conclude that their retention
interferes with the right to the private life of the individuals concerned.”
Accordingly, “the retention of both cellular samples and DNA profiles discloses an
interference with the applicants’ right to respect for their private lives, within
the meaning of Article 8 § 1 of the Convention.” How about fingerprints? While
“[i]t is common ground that fingerprints do not contain as much information as
either cellular samples or DNA profiles,” they “objectively contain unique
information about the individual concerned allowing his or her identification with
precision in a wide range of circumstances. They are thus capable of affecting his
or her private life and retention of this information without the consent of the
individual concerned cannot be regarded as neutral or insignificant. The Court
accordingly considers that the retention of fingerprints on the authorities’
records in connection with an identified or identifiable individual may in itself
give rise, notwithstanding their objective and irrefutable character, to important
private-life concerns.” Further, the Court said: “It is accepted in this regard
that, because of the information they contain, the retention of cellular samples
and DNA profiles has a more important impact on private life than the retention of
fingerprints. However, the Court, . . . considers that, while it may be necessary
to distinguish between the taking, use and storage of fingerprints, on the one
hand, and samples and profiles, on the other, in determining the question of
justification, the retention of fingerprints constitutes an interference with the
right to respect for private life.” So what do we make of all these? “In
conclusion, the Court finds that the blanket and indiscriminate nature of the
powers of retention of the fingerprints, cellular samples and DNA profiles of
persons suspected but not convicted of offences, as applied in the case of the
present applicants, fails to strike a fair balance between the competing public and
private interests and that the respondent State has overstepped any acceptable
margin of appreciation in this regard. Accordingly, the retention at issue
constitutes a disproportionate interference with the applicants’ right to respect
for private life and cannot University of be regarded as necessary in a democratic
society.” Santo Tomas Respect for private life also means, of course, not copying
the answers of the ones beside you.
16. Writ of Habeas Data To provide further protection to the people against
assaults on their right to privacy, the Supreme Court has also come up with the
Rule on the Writ of Habeas Data.79 This is a remedy available to any person whose
right to privacy in life, liberty and security is violated or threatened by an
unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, A Library Of Liberties vis-à-vis An
Arsenal home and collecting or storing of data or information regarding the person,
family,Of Arms correspondence of
79
Effective 2 February 2008, pursuant to the A.M. No. 08-1-16-SC (22 January 2008).
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the aggrieved party. Reliefs may include the enjoining of the act complained of, or
the deletion, destruction, or rectification of the erroneous data or information.80
F. PRIVACY OF COMMUNICATIONS
Even without the explicit guarantee of the privacy of communications and
correspondence in the U.S. Constitution, the same privilege was still considered
available, pursuant to the Fourth Amendment.81 This is because, wiretapping, or
electronic eavesdropping, is also a form of a seizure, an intrusion into one’s
sacred private precincts, which when not previously authorized by a judge, or
demanded by exigencies, would be considered unreasonable and thus violative of a
person’s right to be left and let alone. Spying on a person’s correspondence is
also a form of unwarranted incursion into his private world. It has likewise been
held that this constitutional protection is available even in highly personal
relationships, such as in marital spats between Lothario-husbands and raging
jealous wives.82 Related to privacy of communications is the Anti-Wiretapping Act
(R.A. 4200) which the Court has declared as prohibiting the secret recording of
conversations either through wiretapping83 or tape recorders. This means that
whenever a recording is made of one’s conversations, the same must be with the
knowledge and consent of everyone involved.84 However, this does not apply if the
conversation is not intended to be private, such as an altercation where the
participants do not really care who are listening.85 1. Bartnicki v. Vopper, 532
U.S. 514 (2001) Ah, Cell Phones, the Ubiquitous Boon or Bane of Men, Women . . . –
and Presidencies!? During contentious CBA negotiations between a teachers’ union
and the local school board, an unidentified person intercepted and recorded a
cellular phone conversation between the union president and its chief negotiator.
In that conversation, there was mention of blowing off front porches of the school
board negotiators, or doing some work on some of them. After the parties had
accepted a nonbinding arbitration proposal generally favorable to the teachers,
Vopper, a radio commentator who had been critical of the union, played a tape of
the intercepted conversation. Thus, the suit for damages. The issue that had to be
resolved involves a balancing between conflicting interests founded on Right of
Privacy and Freedom of the Press. The Court declared: “These cases raise an
important question concerning what degree of protection, if any, the First
Amendment provides to speech that University of Santo Tomas discloses the contents
of an illegally intercepted communication. That question is both novel and narrow.
Faculty of Civil Law Despite the fact that federal law has prohibited such
disclosures since 1934, this is the first time that we have confronted such an
issue.” The Court was presented with “a conflict between interests of the Bar
Review 2010 highest order – on the one hand, the interest in the full and free
dissemination of information concerning public issues, and, on the other hand, the
interest in individual privacy and, more specifically, in
80 81 82 83
See also the Writ of Amparo, discussed in relation to the Writ of Habeas Corpus.
See Katz v. United States, 389 U.S. 347 (1967) Zulueta v. Court of Appeals, 253
SCRA 699 (1996)
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Salcedo-Ortañez v. Court of Appeals, 235 SCRA 111 (1994). Overhearing by means of a
telephone extension is not covered by R.A. No. 4200, however. A Library Of
Liberties Court, 145 SCRA 112 [1986]) Of Arms (Gaanan v. Intermediate Appellate
vis-à-vis An Arsenal
84 85
Ramirez v. Court of Appeals, 248 SCRA 590 (1995) Navarro v. Court of Appeals, 313
SCRA 153 (1999)
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fostering private speech.” and noted that “[t]he Framers of the First Amendment
surely did not foresee the advances in science that produced the conversation, the
interception, or the conflict that gave rise to this action. It is therefore not
surprising that Circuit judges, as well as the Members of this Court, have come to
differing conclusions about the First Amendment’s application to this issue.” Title
III of the Omnibus Crime Control and Safe Streets Act of 1968 prohibits the
interception and disclosure of private conversations. “The only question is whether
the application of these statutes in such circumstances violates the First
Amendment.” The Court observed: “As a general matter, ‘state action to punish the
publication of truthful information seldom can satisfy constitutional standards.’”
The Government sought to justify the statute by identifying two interests – first,
the interest in removing an incentive for parties to intercept private
conversations, and second, the interest in minimizing the harm to persons whose
conversations have been illegally intercepted. In answer, the Court declared: “The
normal method of deterring unlawful conduct is to impose an appropriate punishment
on the person who engages in it. If the sanctions that presently attach to a
violation of §2511(1)(a) do not provide sufficient deterrence, perhaps those
sanctions should be made more severe. But it would be quite remarkable to hold that
speech by a law-abiding possessor of information can be suppressed in order to
deter conduct by a non-law-abiding third party.” As for the other interest, “The
Government’s second argument, however, is considerably stronger. Privacy of
communication is an important interest, . . . Moreover, the fear of public
disclosure of private conversations might well have a chilling effect on private
speech.” So how goes the balance? “Accordingly, it seems to us that there are
important interests to be considered on both sides of the constitutional calculus.
In considering that balance, we acknowledge that some intrusions on privacy are
more offensive than others, and that the disclosure of the contents of a private
conversation can be an even greater intrusion on privacy than the interception
itself.” In this instance, the Court held that “privacy concerns give way when
balanced against the interest in publishing matters of public importance. . . . One
of the costs associated with participation in public affairs is an attendant loss
of privacy,” harking back on the “profound national commitment to the principle
that debate on public issues should be uninhibited, robust and wide-open, . . .”
“[A] stranger’s illegal conduct does not suffice to remove the First Amendment
shield from speech about a matter of public concern.” “Hello, Garci? Hello! Hello!”
It’s been another election gone, anyone calling?
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University of Santo Tomas FREEDOM OF EXPRESSION Faculty of Civil Law
The right to freely speak one’s mind is a highly valued freedom in a republican and
democratic Bar Review 2010 society. If the people are really to be the source of
power, and that sovereignty resides in them, then they should rightfully determine
the fate of the nation. But they can only do the same if they are free to know and
learn and to discuss matters unfettered by restrictions placed on them by the
government. The authorities are supposed to let the people decide what is good for
them and the government, not the other way around. If the government had its way,
chances are it would only be allowing the free flow of information that would be
favorable to itself. In the process, it would be filtering the news and information
that are to guide or influence the people in making their decisions. The interplay
of thought in the free and openA Library Of Liberties vis-à-vis An Arsenal Ofthe
interest of society could market place of ideas provides the best means by which
Arms be achieved, or so the philosophy of this freedom suggests. “First Amendment
freedoms are most in danger when the government seeks to control thought or to
justify its laws for that impermissible end.
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The right to think is the beginning of freedom, and speech must be protected from
the government because speech is the beginning of thought.”86 In keeping with the
underlying rationale for the freedom, this guarantee basically prohibits the State
from exercising prior restraint or censorship. If the people are to decide, they
must be allowed access to all available ideas and information, and not simply be
given a sanitized version. At the same time, the freedom also means a corresponding
check on subsequent punishment. Otherwise, freedom to speak unhindered may become a
trap if a punishment so eagerly awaits a few steps away. Thus, only those which are
clearly outside the scope of free expression may be subject to sanctions. In this
regard, there is the concept of privileged communications which exempts the person
communicating from prosecution. And here, it has been said that the enumeration
under Art. 354 of the Revised Penal Code is not an exclusive list of qualifiedly
privileged communications since fair commentaries on matters of public interest are
likewise privileged. The rule on privileged communications had its genesis not in
the nation’s penal code but in the Bill of Rights of the Constitution guaranteeing
freedom of speech and of the press.87 It has also been held that the civic duty to
see to it that public duty is discharged faithfully is inconsistent with
requirements placing on citizens the burden of proving good motives and justifiable
ends in airing their plaints, comments or criticisms.88 Estrada v. Sandiganbayan,
369 SCRA 394 (2001), discussed the concepts of facial challenge and overbreadth,
explaining that a facial challenge is allowed to be made to a vague statute and to
one which is overbroad because of possible “chilling effect” upon protected speech.
The theory is that “[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes
in a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad statutes
with no requirement that the person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with narrow specificity.” The
possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of the inhibitory effects of overly
broad statutes. 1. Chavez v. Gonzalez, 545 SCRA 441 (2008) There simply are certain
memories, certain faces, certain sounds which do not just fade into oblivion. Such,
apparently is the fate of the “Hello, Garci” Tapes. Even as that incident may be
consciously sought to be shoved into the dustbins of history, it just keeps on
lingering in the subconscious years later. The issue here is about the press
pronouncements of the Secretary of Justice and the National University of Santo
Tomas Telecommunications Commission warning about the adverse consequences that may
be visited on those Faculty of Civil Law who may air the tapes, such as possible
criminal prosecution under the Anti-Wiretapping Act (R.A. No. 4200). Chavez, a non-
media practitioner, challenged the validity of said official actuations, claiming
that Bar observed: 2010 they constituted prior restraint. The Court Review“This
presents a unique tinge to the present challenge, considering that the cases in our
jurisdiction involving prior restrictions on speech never had any issue of whether
the governmental act or issuance actually constituted prior restraint. Rather, the
determinations were always about whether the restraint was justified by the
Constitution.” With that, the Court, through the pen of the Chief Justice himself,
practically got into an elucidating lecture on the great importance of the freedom
of the speech and of the press, such as the following legal tidbits:
B
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86 87 88
A Library Of U.S. 234 (2002) Ashcroft v. Free Speech Coalition, 535 Liberties vis-
à-vis
Borjal v. Court of Appeals, 301 SCRA 1 (1999) Vasquez v. Court of Appeals, 314 SCRA
460 (1999)
An Arsenal Of Arms
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“To be truly meaningful, freedom of speech and of the press should allow and even
encourage the articulation of the unorthodox view, though it be hostile to or
derided by others; or though such view ‘induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger.’” “The
protection afforded free speech extends to speech or publications that are
entertaining as well as instructive or informative.” Further, “[w]hile all forms of
communication are entitled to the broad protection of freedom of expression clause,
the freedom of film, television and radio broadcasting is somewhat lesser in scope
than the freedom accorded to newspapers and other print media, as will be
subsequently discussed.” “[A]ll speech are not treated the same. Some types of
speech may be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or those
of the community or society. The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctions have therefore been made in
the treatment, analysis, and evaluation of the permissible scope of restrictions on
various categories of speech. We have ruled, for example, that in our jurisdiction
slander or libel, lewd and obscene speech, as well as ‘fighting words’ are not
entitled to constitutional protection and may be penalized.” On Press Freedom: “It
is the chief source of information on current affairs. It is the most pervasive and
perhaps most powerful vehicle of opinion on public questions. It is the instrument
by which citizens keep their government informed of their needs, their aspirations
and their grievances. It is the sharpest weapon in the fight to keep government
responsible and efficient. Without a vigilant press, the mistakes of every
administration would go uncorrected and its abuses unexposed.” Four Aspects of
Press Freedom: (1) freedom from prior restraint h (2) freedom from punishment
subsequent to publication h (3) freedom of access to information h (4) freedom of
circulation “Prior restraint refers to official governmental restrictions on the
press or other forms of expression in advance of actual publication or
dissemination. Freedom from prior restraint is largely freedom from government
censorship of publications, whatever the form of censorship, and regardless of
whether it is wielded by the executive, legislative or judicial branch of the
government. . . . Any law or official that requires some form of permission to be
had before University of Santo the constitutional right, and remedy can publication
can be made, commits an infringement ofTomas Faculty of Civil Law be had at the
courts.” “Given that deeply ensconced in our fundamental2010 the hostility against
all prior restraints Bar Review law is on speech, and any act that restrains speech
is presumed invalid, and ‘any act that restrains speech is hobbled by the
presumption of invalidity and should be greeted with furrowed brows,’ it is
important to stress not all prior restraints on speech are invalid.’” Content-
Neutral Regulation v. Content-Based Restraint or Censorship: In content-neutral
regulations, substantial governmental interest is required for their validity, and
they are not subject to the strictest form of judicial scrutiny but an intermediate
approach – somewhere A Library Of Liberties vis-à-vis any other law and the between
the mere rationality that is required of An Arsenal Of Armscompelling interest
standard applied to content-based restrictions. As for content-based restrictions,
they are given
•
•
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the strictest scrutiny in light of their inherent and invasive impact. “Thus, when
the prior restraint partakes of a content-neutral regulation, it is subjected to an
intermediate review. A content-based regulation, however, bears a heavy presumption
of invalidity and is measured against the clear and present danger rule. The latter
will pass constitutional muster only if justified by a compelling reason, and the
restrictions imposed are neither overbroad nor vague.” • Dichotomy of Free Press:
Print v. Broadcast Media: “The regimes presently in place for each type of media
differ from one other. Contrasted with the regime in respect of books, newspapers,
magazines and traditional printed matter, broadcasting, film and video have been
subjected to regulatory schemes.” And what is the basis for the difference in
treatment? “The dichotomy between print and broadcast media traces its origins in
the United States. There, broadcast radio and television have been held to have
limited First Amendment protection, and U.S. Courts have excluded broadcast media
from the application of the ‘strict scrutiny’ standard that they would otherwise
apply to content-based restrictions. According to U.S. Courts, the three major
reasons why broadcast media stands apart from print media are: (a) the scarcity of
the frequencies by which the medium operates [i.e., airwaves are physically limited
while print medium may be limitless]; (b) its ‘pervasiveness’ as a medium; and (c)
its unique accessibility to children.” Modern Amenities and Changing Legal
Landscape: “Historically, the scarcity of frequencies was thought to provide a
rationale. However, cable and satellite television have enormously increased the
number of actual and potential channels. Digital technology will further increase
the number of channels available. But still, the argument persists that
broadcasting is the most influential means of communication, since it comes into
the home, and so much time is spent watching television. Since it has a unique
impact on people and affects children in a way that the print media normally does
not, that regulation is said to be necessary in order to preserve pluralism. It has
been argued further that a significant main threat to free expression—in terms of
diversity—comes not from government, but from private corporate bodies. These
developments show a need for a reexamination of the traditional notions of the
scope and extent of broadcast media regulation. The emergence of digital technology
– which has led to the convergence of broadcasting, telecommunications and the
computer industry – has likewise led to the question of whether the regulatory
model for broadcasting will continue to be appropriate in the converged
environment. Internet, for example, remains largely unregulated, yet the Internet
and the broadcast media share similarities, and the rationales used to support
broadcast regulation apply equally to the Internet.”
After those excursions into the esoterics and exoterics of press freedom, what
about the merits of the Faculty of Civil Law case itself? “The records of the case
at bar, however, are confused and confusing, and respondents’ evidence falls short
of satisfying the clear and present danger test. Firstly, the various statements of
the Bar Review 2010 Press Secretary obfuscate the identity of the voices in the
tape recording. Secondly, the integrity of the taped conversation is also suspect.
The Press Secretary showed to the public two versions, one supposed to be a
‘complete’ version and the other, an ‘altered’ version. Thirdly, the evidence of
the respondents on the who’s and the how’s of the wiretapping act is ambivalent,
especially considering the tape’s different versions. The identity of the wire-
tappers, the manner of its commission and other related and relevant proofs are
some of the invisibles of this case. Fourthly, given all these unsettled facets of
the tape, it is even arguable whether its airing would violate the anti-wiretapping
law.” A Library Of Liberties vis-à-vis An Arsenal Of Arms Is the possibility of
violation of a law enough basis for restraints to be placed on the communication of
worthwhile news? It depends, but generally that should not be the case. In any
event, one has to look
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at the totality of the picture. “We rule that not every violation of a law will
justify straitjacketing the exercise of freedom of speech and of the press. Our
laws are of different kinds and doubtless, some of them provide norms of conduct
which even if violated have only an adverse effect on a person’s private comfort
but does not endanger national security. There are laws of great significance but
their violation, by itself and without more, cannot support suppression of free
speech and free press. In fine, violation of law is just a factor, a vital one to
be sure, which should be weighed in adjudging whether to restrain freedom of speech
and of the press. The totality of the injurious effects of the violation to private
and public interest must be calibrated in light of the preferred status accorded by
the Constitution and by related international covenants protecting freedom of
speech and of the press. . . . But to repeat, the need to prevent their violation
cannot per se trump the exercise of free speech and free press, a preferred right
whose breach can lead to greater evils. For this failure of the respondents alone
to offer proof to satisfy the clear and present danger test, the Court has no
option but to uphold the exercise of free speech and free press. There is no
showing that the feared violation of the anti-wiretapping law clearly endangers the
national security of the State.” By the way, does it not matter that there were no
official or formal issuances but just press releases? “[I]t is not decisive that
the press statements made by respondents were not reduced in or followed up with
formal orders or circulars. It is sufficient that the press statements were made by
respondents while in the exercise of their official functions. Undoubtedly,
respondent Gonzales made his statements as Secretary of Justice, while the NTC
issued its statement as the regulatory body of media. Any act done, such as a
speech uttered, for and on behalf of the government in an official capacity is
covered by the rule on prior restraint. The concept of an ‘act’ does not limit
itself to acts already converted to a formal order or official circular.” Ahh, the
Chilling Effect Principle. “There is enough evidence of chilling effect of the
complained acts on record. The warnings given to media came from no less the NTC, a
regulatory agency that can cancel the Certificate of Authority of the radio and
broadcast media. They also came from the Secretary of Justice, the alter ego of the
Executive, who wields the awesome power to prosecute those perceived to be
violating the laws of the land.” Justice Carpio, concurring, came up with
interesting observations and pronouncements, such as: • Protected and Unprotected
Expression – “Expression not subject to prior restraint is protected expression or
high-value expression. Any content-based prior restraint on protected expression is
unconstitutional without exception. A protected expression means what it says – it
is absolutely protected from censorship.” Exceptions to the general rule that there
should be no prior restraint on speech: (1) Pornography Faculty of Civil Law h (2)
False or Misleading Advertisement89 h (3) Advocacy of Imminent Lawless Action h (4)
Danger to National Security
University of Santo Tomas Bar Review 2010
“Expression that may be subject to prior restraint is unprotected expression or

low-value expression. By definition, prior restraint on unprotected expression is
content-based since the restraint is imposed because of the content itself.” “Only
unprotected expression may be subject to prior restraint. However, any such prior
restraint on unprotected expression must hurdle a high barrier. First, such prior
restraint is presumed unconstitutional. Second, the government bears a heavy burden
of proving the A Library Of Liberties vis-à-vis An Arsenal Of Arms
“This Court recognized false or misleading advertisement as unprotected expression

only in October 2007.” (See separate concurring opinion of C.J. Puno in
Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535
SCRA 265 [2007])
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constitutionality of the prior restraint.” Thus, “Courts will subject to strict

scrutiny any government action imposing prior restraint on unprotected expression.
The government action will be sustained if there is a compelling State interest,
and prior restraint is necessary to protect such State interest. In such a case,
the prior restraint shall be narrowly drawn – only to the extent necessary to
protect or attain the compelling State interest.” • Prior Restraint and Subsequent
Puishment: “While there can be no prior restraint on protected expression, such
expression may be subject to subsequent punishment, either civilly or criminally.”
Hierarchy of Speech: “If ever there is a hierarchy of protected expressions,
political expression would occupy the highest rank, and among different kinds of
political expression, the subject of fair and honest elections would be at the
top.” Violations of Law and Prior Restraint: “The alleged violation of the Anti-
Wiretapping Law is not in itself a ground to impose a prior restraint on the airing
of the Garci Tapes because the Constitution expressly prohibits the enactment of
any law, and that includes anti-wiretapping laws, curtailing freedom of expression.
The only exceptions to this rule are the four recognized categories of unprotected
expression. However, the content of the Garci Tapes does not fall under any of
these categories of unprotected expression.” Garci Tapes and Privacy Rights: “The
airing of the Garci Tapes does not violate the right to privacy because the content
of the Garci Tapes is a matter of important public concern. The Constitution
guarantees the people’s right to information on matters of public concern. The
remedy of any person aggrieved by the public airing of the Garci Tapes is to file a
complaint for violation of the Anti-Wiretapping Law after the commission of the
crime. Subsequent punishment, absent a lawful defense, is the remedy available in
case of violation of the Anti-Wiretapping Law.” Prior Restraint and Judicial
Determination: “Any order imposing prior restraint on unprotected expression
requires prior adjudication by the courts on whether the prior restraint is
constitutional. This is a necessary consequence from the presumption of invalidity
of any prior restraint on unprotected expression. Unless ruled by the courts as a
valid prior restraint, government agencies cannot implement outright such prior
restraint because such restraint is presumed unconstitutional at inception.”
2. David v. Macapagal-Arroyo, 489 SCRA 160 (2006) University of Santo
Tomas Faculty of Civil Law This case, dealing with the authority of the President
to declare a state of national emergency, gave
the Court an opportunity to discuss the repercussions on freedom of expression, as
well as an occasion to talk about some concepts distinctly Bar Review 2010 speech
and of the press. identified with freedom of On Freedom of Assemblies and
Expressions and Crimes. “‘Assembly’ means a right on the part of the citizens to
meet peaceably for consultation in respect to public affairs. It is a necessary
consequence of our republican institution and complements the right of speech. As
in the case of freedom of expression, this right is not to be limited, much less
denied, except on a showing of a clear and present danger of a substantive evil
that Congress has a right to prevent. In other words, like other rights embraced in
the freedom of expression, the right to assemble is not subject to previous
restraint or A Library Of Liberties vis-à-vis An Arsenal Of Arms censorship. It may
not be conditioned upon the prior issuance of a permit or authorization from the
government authorities except, of course, if the assembly is intended to be held in
a public place, a
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permit for the use of such place, and not for the assembly itself, may be validly
required. The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They were not
committing any crime, neither was there a showing of a clear and present danger
that warranted the limitation of that right. As can be gleaned from circumstances,
the charges of inciting to sedition and violation of BP 880 were mere afterthought.
Even the Solicitor General, during the oral argument, failed to justify the
arresting officers’ conduct. In De Jonge v. Oregon, it was held that peaceable
assembly cannot be made a crime, . . .” Onwards, the Court said in relation to
other petitioners: “On the basis of the above principles, the Court likewise
considers the dispersal and arrest of the members of KMU et al. . . . unwarranted.
Apparently, their dispersal was done merely on the basis of Malacañang’s directive
canceling all permits previously issued by local government units. This is
arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that ‘freedom of assembly is not to be limited, much
less denied, except on a showing of a clear and present danger of a substantive
evil that the State has a right to prevent.’ Tolerance is the rule and limitation
is the exception. . . . With the blanket revocation of permits, the distinction
between protected and unprotected assemblies was eliminated.” Moreover, the Court
added, under BP 880, the authority to regulate assemblies and rallies is lodged
with the local government units. They have the power to issue permits and to revoke
such permits after due notice and hearing on the determination of the presence of
clear and present danger. Here, petitioners were not even notified and heard on the
revocation of their permits. The first time they learned of it was at the time of
the dispersal. Such absence of notice is a fatal defect. When a person’s right is
restricted by government action, it behooves a democratic government to see to it
that the restriction is fair, reasonable, and according to procedure.” National
Emergency and Press Freedom. As for the warrantless search of the offices of the
Daily Tribune, the Court noted that it was a warrantless search, conducted at about
1:00 o’clock in the morning of 25 February 25, 2006, in the absence of any official
of the Daily Tribune except the security guard of the building, with the police
operatives eventually seizing several materials for publication. “Thereafter, a
wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was ‘meant to show a “strong
presence,” to tell media outlets not to connive or do anything that would help the
rebels in bringing down this government.’ Director General Lomibao further stated
that ‘if they do not follow the standards – the standards are if they would
contribute to instability in the government, or if they do not subscribe to what is
in General Order No. 5 and Proc. No. 1017 – we will recommend a “takeover.”’
National Telecommunications Commissioner Ronald Solis urged television and radio
networks to ‘cooperate’ with the government for the duration of the state of Santo
emergency. He warned that his agency University of national Tomas will not hesitate
to recommend the closure ofof Civil Law Faculty any broadcast outfit that violates
rules set out for media coverage during times when the national security is
threatened.” So, what to make of all of Bar Revised Rules on Criminal Procedure
lays down the steps these? “The search is illegal. Rule 126 of TheReview 2010 in
the conduct of search and seizure. . . . All these rules were violated by the CIDG
operatives. Not only that, the search violated petitioners’ freedom of the press.
The best gauge of a free and democratic society rests in the degree of freedom
enjoyed by its media.” In fine, “[t]he search and seizure of materials for
publication, the stationing of policemen in the vicinity of the The Daily Tribune
offices, and the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government who tells
the citizen that A Library do Liberties vis-à-vis less than what he Arms he may
speak only if allowed to Of so, and no more and noAn Arsenal Of is permitted to say
on pain of punishment should he be so rash as to disobey. Undoubtedly, the The
Daily Tribune was subjected
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to these arbitrary intrusions because of its anti-government sentiments. This Court

cannot tolerate the blatant disregard of a constitutional right even if it involves
the most defiant of our citizens. Freedom to comment on public affairs is essential
to the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon.” On free speech, facial challenges and the overbreadth
doctrine, the Court said of these esoterica: “First and foremost, the overbreadth
doctrine is an analytical tool developed for testing ‘on their faces’ statutes in
free speech cases, also known under the American Law as First Amendment cases,” and
in that regard, a “plain reading of PP 1017 shows that it is not primarily directed
to speech or even speech-related conduct.” The Court also noted: “Moreover, the
overbreadth doctrine is not intended for testing the validity of a law that
‘reflects legitimate state interest in maintaining comprehensive control over
harmful, constitutionally unprotected conduct.’ Undoubtedly, lawless violence,
insurrection and rebellion are considered ‘harmful’ and ‘constitutionally
unprotected conduct.’ . . . Thus, claims of facial overbreadth are entertained in
cases involving statutes which, by their terms, seek to regulate only ‘spoken
words’ and again, that ‘overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied
to protected conduct.’ Here, the incontrovertible fact remains that PP 1017
pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation. Second, facial invalidation of laws is considered as ‘manifestly
strong medicine,’ to be used ‘sparingly and only as a last resort,’ and is
‘generally disfavored;’ The reason for this is obvious. Embedded in the traditional
rules governing constitutional adjudication is the principle that a person to whom
a law may be applied will not be heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others, i.e., in other situations not
before the Court. . . . In other words, a facial challenge using the overbreadth
doctrine will require the Court to examine PP 1017 and pinpoint its flaws and
defects, not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not before the
Court to refrain from constitutionally protected speech or expression. . . . And
third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there can
be no instance when the assailed law may be valid. Here, petitioners did not even
attempt to show whether this situation exists.” 3. Soriano v. Laguardia, 587 SCRA
79 (2009) Whether under the guarantee of freedom of speech or religious freedom,
foul language uttered in a broadcast that is for general viewership could not be
tolerated. The Court observed: “[T]he limits of the freedom of expression are
reached when the expression touches upon matters of essentially private University
of Santo Tomas concern. In the oft-quoted expression of Justice Holmes, the
constitutional guarantee ‘obviously was not Faculty of Civil Law intended to give
immunity for every possible use of language.’” On the religious side, the Court
said: Bar Review 2010 “Plain and simple insults directed at another person cannot
be elevated to the status of religious speech.” Foul language used in retaliation
against persons espousing another religious view is not converted into religious
speech. “We cannot accept that petitioner made his statements in defense of his
reputation and religion, as they constitute no intelligible defense or refutation
of the alleged lies being spread by a rival religious group. They simply illustrate
that petitioner had descended to the level of name-calling and foul-language
discourse. Petitioner could have chosen to contradict and disprove his detractors,
but opted for the low road.” As a reminder A Library Of Liberties vis-à-vis An
Arsenal Of Arms jurisdiction that for everyone, the Court stated: “It has been
established in this
unprotected speech or low-value expression refers to libelous statements, obscenity

or pornography, false
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or misleading advertisement, insulting or “fighting words”, i.e., those which by

their very utterance inflict injury or tend to incite an immediate breach of peace
and expression endangering national security. The Court finds that petitioner’s
statement can be treated as obscene, at least with respect to the average child.
Hence, it is, in that context, unprotected speech.” And, speaking of the need see
and hear in proper perspectives, the Court said: “Following the contextual lessons
of the cited case of Miller v. California, a patently offensive utterance would
come within the pale of the term obscenity should it appeal to the prurient
interest of an average listener applying contemporary standards. A cursory
examination of the utterances complained of and the circumstances of the case
reveal that to an average adult, the utterances ‘Gago ka talaga x x x, masahol ka
pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba,
[dito] kay Michael ang gumagana ang itaas, o di ba!’ may not constitute obscene but
merely indecent utterances. They can be viewed as figures of speech or merely a
play on words. In the context they were used, they may not appeal to the prurient
interests of an adult. The problem with the challenged statements is that they were
uttered in a TV program that is rated ‘G’ or for general viewership, and in a time
slot that would likely reach even the eyes and ears of children.” Accordingly,
“[w]hile adults may have understood that the terms thus used were not to be taken
literally, children could hardly be expected to have the same discernment. Without
parental guidance, the unbridled use of such language as that of petitioner in a
television broadcast could corrupt impressionable young minds. The term “putang
babae” means “a female prostitute,” a term wholly inappropriate for children, who
could look it up in a dictionary and just get the literal meaning, missing the
context within which it was used. . . . In this particular case, where children had
the opportunity to hear petitioner’s words, when speaking of the average person in
the test for obscenity, we are speaking of the average child, not the average
adult. The average child may not have the adult’s grasp of figures of speech, and
may lack the understanding that language may be colorful, and words may convey more
than the literal meaning. Undeniably the subject speech is very suggestive of a
female sexual organ and its function as such. In this sense, we find petitioner’s
utterances obscene and not entitled to protection under the umbrella of freedom of
speech. . . . With respect to the young minds, said utterances are to be treated as
unprotected speech.” With regard to matters of first impression, the Court noted
that “while a jurisprudential pattern involving certain offensive utterances
conveyed in different mediums has emerged, this case is veritably one of first
impression, it being the first time that indecent speech communicated via
television and the applicable norm for its regulation are, in this jurisdiction,
made the focal point.” What test then should be used in matters like this? “To be
sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases University of
Santo Tomas involving the overthrow of the government and even other evils which do
not clearly undermine national Faculty of Civil Law security. Since not all evils
can be measured in terms of ‘proximity and degree’ the Court, however, in several
cases . . . applied the balancing of interests test. Former Chief Justice Fred Ruiz
Castro, in Gonzales v. COMELEC, elucidated Bar Review Opinion that ‘where the
legislation under in his Separate 2010 constitutional attack interferes with the
freedom of speech and assembly in a more generalized way and where the effect of
the speech and assembly in terms of the probability of realization of a specific
danger is not susceptible even of impressionistic calculation,’ then the ‘balancing
of interests’ test can be applied.” The Court further explained that “[t]his
balancing of interest test, to borrow from Professor Kauper, rests on the theory
that it is the court’s function in a case before it when it finds public interests
served by legislation, on the one hand, and the free expression clause affected by
it, on the other, to balance one againstA Library Of Liberties vis-à-vis An the
greaterOf Arms be placed. If, on the other and arrive at a judgment where Arsenal
weight shall balance, it appears that the public interest served by restrictive
legislation is of such nature that it
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outweighs the abridgment of freedom, then the court will find the legislation
valid. In short, the balance-of-interests theory rests on the basis that
constitutional freedoms are not absolute, not even those stated in the free speech
and expression clause, and that they may be abridged to some extent to serve
appropriate and important interests. To the mind of the Court, the balancing of
interest doctrine is the more appropriate test to follow.” Accordingly, “the
government’s interest to protect and promote the interests and welfare of the
children adequately buttresses the reasonable curtailment and valid restraint on
petitioner’s prayer to continue as program host of Ang Dating Daan during the
suspension period.” And, for imagery, how’s this? “One who utters indecent,
insulting, or offensive words on television when unsuspecting children are in the
audience is, in the graphic language of FCC, a ‘pig in the parlor.’ Public interest
would be served if the “pig” is reasonably restrained or even removed from the
‘parlor.’ Ergo, petitioner’s offensive and indecent language can be subjected to
prior restraint.” Further, would not the suspension of three months imposed on
petitioner be prior restraint? No, the Court explained that it was an
administrative sanction or subsequent punishment. “To clarify, statutes imposing
prior restraints on speech are generally illegal and presumed unconstitutional
breaches of the freedom of speech. The exceptions to prior restraint are movies,
television, and radio broadcast censorship in view of its access to numerous
people, including the young who must be insulated from the prejudicial effects of
unprotected speech.” In this regard, all broadcast networks are regulated by the
MTRCB since they are required to get a permit before they air their television
programs. Consequently, their right to enjoy their freedom of speech is subject to
that requirement. “As lucidly explained by Justice Dante O. Tinga, government
regulations through the MTRCB became ‘a necessary evil’ with the government taking
the role of assigning bandwidth to individual broadcasters. The stations explicitly
agreed to this regulatory scheme; otherwise, chaos would result in the television
broadcast industry as competing broadcasters will interfere or co-opt each other’s
signals. In this scheme, station owners and broadcasters in effect waived their
right to the full enjoyment of their right to freedom of speech in radio and
television programs and impliedly agreed that said right may be subject to prior
restraint – denial of permit or subsequent punishment, like suspension or
cancellation of permit, among others.” In short, the imposition of sanctions on
broadcasters who indulge in profane or indecent broadcasting does not constitute
forbidden censorship. Finally, the Court highlighted the difference between the
speaker and the medium when it comes to the imposition of sanctions. “But even as
we uphold the power of the MTRCB to review and impose sanctions for violations of
PD 1986, its decision to suspend petitioner must be modified, for nowhere in that
issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of
Administrative Penalties effective January 1, 1999 is the Board empowered to
suspend the program host or even to University of programs. The MTRCB, to be sure,
may prohibit prevent certain people from appearing in television Santo Tomas
Faculty of Civil Law the broadcast of such television programs or cancel permits
for exhibition, but it may not suspend television personalities, for such would be
beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond
what theBarprovides.” In 2010 law Review other words, the program may be suspended,
but not the speaker himself. 4. Binay v. Secretary of Justice, 501 SCRA 312 (2006)
Of adopted daughters and expensive lingerie.
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In this case a news account appeared about the allegedly profligate ways of an
adopted daughter of one who was once aA Library Ofbut whose wife was then currently
the locality’s chief executive. The public official Liberties vis-à-vis An Arsenal
Of Arms writer and the publisher were sued for libel. They argued in their defense
that, inter alia, they referred to the price of the underwear not for the purpose
of maligning her or to make her look frivolous in the
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public’s eyes, but to show that her family leads lavish and extravagant lives; and
that this matter is within the realm of public interest, that the news item was a
fair comment on the fitness of the father to run for public office, particularly on
his lifestyle and that of his family. The Supreme Court would have nothing of it,
however. The Court held that there was prima facie showing that subject paragraph
in the subject article is defamatory. “It is opprobrious, ill-natured, and
vexatious as it has absolutely nothing to do with [Binay’s] qualification as a
mayoralty candidate or as a public figure. It appears that [the defendants’] only
purpose in focusing on [the daughter’s] status as an adopted child and her alleged
extravagant purchases was to malign her before the public and to bring her into
disrepute. This is a clear and simple invasion of her privacy.” And, the Court
added: “Whichever way we view it, we cannot discern a legal, moral, or social duty
in publishing Joanna’s status as an adopted daughter. Neither is there any public
interest respecting her purchases of panties worth = P1,000.00. Whether she indeed
bought those panties is not something that the public can afford any protection
against. With this backdrop, it is obvious that private respondents’ only motive in
inserting paragraph 25 in the subject article is to embarrass Joanna before the
reading public.” 5. GMA Network, Inc. v. Bustos, 504 SCRA 638 (2006) Following the
Medical Board Examinations in August 1987, and amidst allegations of errors in
correction, several unsuccessful examinees filed a petition for mandamus to compel
the board of medical examiners to re-check and reevaluate the test papers. This was
carried in a GMA TV news report by Vidal, which report was accompanied by a file
video of a 1982 demonstration by PGH doctors and personnel regarding wage and
economic dispute with the hospital management. The members of the Board of Medicine
then filed a damage suit against those responsible for the broadcast for an
allegedly false, malicious and one-sided report. The Court, applying rules on
libel, such as – “An award of damages under the premises presupposes the commission
of an act amounting to defamatory imputation or libel, which, in turn, presupposes
malice” and that “Malice or ill-will in libel must either be proven (malice in
fact) or may be taken for granted in view of the grossness of the imputation
(malice in law)” – found no valid case against GMA. “In the instant case, there can
be no quibbling that what petitioner corporation aired in its Channel 7 in the
February 10, 1988 late evening newscast was basically a narration of the contents
of the aforementioned petition for mandamus.” Moreover, “although every defamatory
imputation is presumed to be malicious, the presumption does not exist in matters
considered privileged. In fine, the privilege destroys the presumption.”
Accordingly, since what at bottom the reporter and GMA Network, Inc., did was
simply to inform the public of the mandamus petition filed against the respondent
doctors who were admittedly the then chairman and members of the Board of Medicine,
there was nothing actionable. It University of Santo Tomas was clearly within the
reporter’s job to keep theof Civil Law Faculty public abreast of recent
developments therein. What about the misleading file video, giving the impression
that there was a demonstration against Bar Review 2010 the board of medical
examiners? The Court held: “Contrary to the CA’s findings, the identifying
character-generated words ‘file video’ appeared to have been superimposed on
screen, doubtless to disabuse the minds of televiewers of the idea that a
particular footage is current. . . . At any rate, the absence of the accompanying
character-generated words ‘file video’ would not change the legal situation insofar
as the privileged nature of the audio-video publication complained of is concerned.
For, with the view we take of the state of things, the video footage was not libel
in disguise; standing without accompanying sounds or voices, it was meaningless,
or, at least, conveyed nothing derogatory in nature.” A Library Of Liberties vis-à-
vis An Arsenal Of Arms How about the failure of the GMA to secure the other side of
the story? “Surely, the petitioners’ failure, perhaps even their indisposition, to
obtain and telecast the respondents’ side is not an indicia of
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malice. . . . As petitioner Vidal said while on the witness box, his business as a
reporter is to report what the public has the right to know, not to comment on news
and events, obviously taking a cue from the pronouncement of the US Fifth Circuit
Court of Appeals in New York Times Co. v. Connor that ‘a reporter … may rely on
statements made by a single source even though they reflect only one side of the
story without fear of libel prosecution by a public official.’” 6. Pleasant Grove
City v. Summum, 555 U.S. ___ (2009) On government speech and freedom of expression.
The U.S. Supreme Court presented the gist of the case in this way: “This case
presents the question whether the Free Speech Clause of the First Amendment
entitles a private group to insist that a municipality permit it to place a
permanent monument in a city park in which other donated monuments were previously
erected. The Court of Appeals held that the municipality was required to accept the
monument because a public park is a traditional public forum. We conclude, however,
that although a park is a traditional public forum for speeches and other
transitory expressive acts, the display of a permanent monument in a public park is
not a form of expression to which forum analysis applies. Instead, the placement of
a permanent monument in a public park is best viewed as a form of government speech
and is therefore not subject to scrutiny under the Free Speech Clause.” With regard
to the application of the freedom of speech to the government itself, the Court
said: “The Free Speech Clause restricts government regulation of private speech; it
does not regulate government speech. . . . (‘[T]he Government's own speech . . . is
exempt from First Amendment scrutiny’) . . . . (‘Government is not restrained by
the First Amendment from controlling its own expression’).” 7. Pharmaceutical and
Health Care Association of the Philippines v. Duque III, 535 SCRA 265 (2007) In his
concurring opinion, Chief Justice Puno, said: “I write to elucidate another reason
why the absolute ban on the advertising and promotion of breastmilk substitutes
found under Sections 4(f) and 11 of A.O. No. 2006-0012 (RIRR) should be struck
down. The advertising and promotion of breastmilk substitutes properly falls within
the ambit of the term commercial speech – that is, speech that proposes an economic
transaction. This is a separate category of speech which is not accorded the same
level of protection as that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.” Any parameters for
commercial speech protection? Well, yes. C.J. Puno made reference to the four-part
analysis of Central Hudson Gas & Electric v. Public Service Commission, 447 U.S.
557 (1980): “To begin with, the commercial speech must ‘concern lawful activity and
not be misleading” if it is to be protected under the FirstSanto Tomas the asserted
governmental University of Amendment. Next, interest must be substantial. If both
of these requirements are met, it must next be determined whether Faculty of Civil
Law the state regulation directly advances the government interest asserted, and
whether it is not more extensive than is necessary to serve the interest.” Bar
Review 2010 So what would all these lead to? “I proffer the humble view that the
absolute ban on advertising prescribed under Sections 4(f) and 11 of the RIRR is
unduly restrictive and is more than necessary to further the avowed governmental
interest of promoting the health of infants and young children. It ought to be
self-evident, for instance, that the advertisement of such products which are
strictly informative cuts too deep on free speech. The laudable concern of the
respondent for the promotion of the health of infants and young children cannot
justify the absolute, overarching ban.”90 A Library Of Liberties vis-à-vis An
Arsenal Of Arms
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In his separate opinion in Chavez v. Gonzales, 545 SCRA 441 (2008), Justice Carpio,
referring to Pharmaceutical and Health Care Association, pointed out that the
“Court recognized false or misleading advertisement as unprotected expression only
in October 2007.”
90
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8. Bayan v. Ermita, 488 SCRA 226 (2006) When words mean more to distort than to
clarify, when assemblies could be easily seen as plots to unseat the destabilize
society than outlets of the hoi polloi’s legitimate grievances, when things taken
for granted are appreciated most when realized to have been practically ignored.
These might as well be the themes for this case. In issue is the constitutionality
of B.P. 880 (“The Public Assembly Act of 1985”) as well as the validity of the
Calibrated Preemptive Response (CPR) policy. Adverting to alleged intelligence
reports pointing to credible plans of anti-government groups to inflame the
political situation, sow disorder and incite people against the duly constituted
authorities, Malacañang instructed the PNP as well as the local government units to
strictly enforce a “no permit, no rally” policy, disperse groups that run afoul of
this standard and arrest all persons violating the laws of the land as well as
ordinances on the proper conduct of mass actions and demonstrations. Along this
line it came up with the CPR, declaring: “The rule of calibrated preemptive
response is now in force, in lieu of maximum tolerance” provided for under B.P.
880. This eventually culminated in violent dispersals of rallies without permits –
which permits might not have been forthcoming anyway! In deciding the matter, the
Supreme Court practically had to remind the Palace by the Stinky River about the
basic postulates of a republican government. Said the Court: “The first point to
mark is that the right to peaceably assemble and petition for redress of grievances
is, together with freedom of speech, of expression, and of the press, a right that
enjoys primacy in the realm of constitutional protection. For these rights
constitute the very basis of a functional democratic polity, without which all the
other rights would be meaningless and unprotected. . . . ‘It is rather to be
expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement, and the greater the
grievance and the more intense the feeling, the less perfect, as a rule will be the
disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to assemble
and to petition for redress of grievances would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they
sought to attain did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty individuals
should be sought out and punished therefor, but the utmost discretion must be
exercised in drawing the line between disorderly and seditious conduct and between
an essentially peaceable assembly and a tumultuous uprising.’” Words, body language
and assemblies could be hurting toUniversity of Santo Tomas one’s overly sensitive
skin, no doubt, specially if one has been used to dark labyrinthine rooms of power,
afraid to be exposed to the light and heat of the sun, or just the glare Faculty of
Civil Law of the attention of an informed and enlightened citizenry.
Bar Review 2010 Not to be misunderstood, the Court reminded everyone, however, that
the right, while sacrosanct, is not absolute, paving the way for its holding that
B.P. 880 provides a restriction that simply regulates the time, place and manner of
the assemblies – it does not impose an absolute ban on public assemblies. And,
neither is it a content-based regulation. “A fair and impartial reading of B.P. No.
880 thus readily shows that it refers to all kinds of public assemblies that would
use public places. The reference to ‘lawful cause’ does not make it content-based
because assemblies really have to be for lawful causes, otherwise they would not be
‘peaceable’ and entitled to protection. Neither are the words ‘opinion,’ A Library
the definition vis-à-vis An Arsenal Of Arms ‘protesting’ and ‘influencing’ inOf
Liberties of public assembly content based, since they can refer to any subject.
The words ‘petitioning the government for redress of grievances’ come from the
wording
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of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is

for the protection and benefit of all rallyists and is independent of the content
of the expressions in the rally.” How about the grant or denial of permits? “[T]he
permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health.” And in
this regard, those responsible for permits must be guided by the clear and present
danger test. Oh, by the way, what ever happened to the Freedom Parks which were
supposed to have been set up pursuant to B.P. 880 more than 20 years ago? “The
Solicitor General stated during the oral arguments that, to his knowledge, only
Cebu City has declared a freedom park – Fuente Osmeña. That of Manila, the Sunken
Gardens, has since been converted into a golf course, he added.” (Come again?) The
Court then observed: “If this is so, the degree of observance of B.P. No. 880’s
mandate that every city and municipality set aside a freedom park within six months
from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable.
The matter appears to have been taken for granted amidst the swell of freedom that
rose from the peaceful revolution of 1986.” Accordingly, “[c]onsidering that the
existence of such freedom parks is an essential part of the law’s system of
regulation of the people’s exercise of their right to peacefully assemble and
petition, the Court is constrained to rule that after thirty (30) days from the
finality of this Decision, no prior permit may be required for the exercise of such
right in any public park or plaza of a city or municipality until that city or
municipality shall have complied with Section 15 of the law. For without such
alternative forum, to deny the permit would in effect be to deny the right. Advance
notices should, however, be given to the authorities to ensure proper coordination
and orderly proceedings.” Going back to the CPR, and the Filipinos’ apparent
penchant for giving words a different meaning – if not worse, such as inverting
them altogether91 – Malacañang’s explanation for the phrase “in lieu of” is quite
funny and amazingly amusing in a bizarre way. “[T]he Solicitor General has conceded
that the use of the term should now be discontinued, since it does not mean
anything other than the maximum tolerance policy set forth in B.P. No. 880. This is
stated in the Affidavit of respondent Executive Secretary Eduardo Ermita” where he
explained that “when I stated that calibrated preemptive response is being enforced
in lieu of maximum tolerance I clearly was not referring to its legal definition
but to the distorted and much abused definition that it has now acquired.” Did the
Supreme Court buy that explanation? The Court’s response: Whatever! “At any rate,
the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR
serves no valid purpose if it means the same thing as maximum tolerance and is
illegal if it means something else.” And, lest those in power may be predisposed to
misconstrue and misrepresent what the Court said, it thundered from Mt. Olympus
that “the so-called calibrated preemptive response policy has no place in our legal
firmament and must be University of merely Tomas struck down as a darkness that
shrouds freedom. ItSantoconfuses our people and is used by some Faculty of Civil
‘maximum tolerance’ is for the benefit of police agents to justify abuses. . . .
Far from being insidious, Law rallyists, not the government.” Praise be the gods.
Indeed, a government that is not afraid of its own shadow should have no problem
dealing with people’s plaints. One that sees sinister plots in every group action,
one that gives strange meanings to ordinary words, one which employs force to
prevent people from knowing about skeletons in the closets may soon be hiding real
skeletons if not checked at the earliest opportunity. More than a hundred years
ago, it was observed: “It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional practices get their
first footing in that way, namely, by silent approaches
Bar Review 2010
CPR ordinarily means cardiopulmonary resuscitation which is done to save a person.

But here, Malacañang’s CPR practically meant to strangle the people’s exercise of
their right to freely breath and express themselves. Anyway, if “salvage” could
mean the opposite of saving or rescuing, what’s new with another distorted meaning
for one more term?
91

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and slight deviations from legal modes of procedure. This can only be obviated by
adhering to the rule that constitutional provisions for the security of person and
property should be liberally construed. A close and literal construction deprives
them of half their efficacy, and leads to gradual depreciation of the right, as if
it consisted more in sound than in substance. It is the duty of courts to be
watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon.”92 Or, in the words of Justice Black, dissenting in Board of
Education v. Allen, “it nearly is always by insidious approaches that the citadels
of liberty are most successfully attacked.”93 Do we really know how to learn from
the past?94 Or is it much easier to go along with our indolent and careless ways to
follow the path of least resistance, confident in our own safety and welfare, until
we realize we are already at the edge of the precipice, needing only a slight push
or whiff of air to send us plummeting into the abyss? 9. Integrated Bar of the
Philippines v. Atienza, – SCRA – (G.R. No. 175241, 24 February 2010) Where the
applicants for a permit specify a venue where they want to hold a rally, could the
mayor instead specify another place? No, he cannot without an acceptable basis.
Here, the Court said that the mayor, in modifying the permit outright, gravely
abused his discretion, specially so as he did not immediately inform the applicants
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. “The
opportunity to be heard precedes the action on the permit, since the applicant may
directly go to court after an unfavorable action on the permit. Respondent failed
to indicate how he had arrived at modifying the terms of the permit against the
standard of a clear and present danger test which, it bears repeating, is an
indispensable condition to such modification. Nothing in the issued permit adverts
to an imminent and grave danger of a substantive evil, which ‘blank’ denial or
modification would, when granted imprimatur as the appellate court would have it,
render illusory any judicial scrutiny thereof. It is true that the licensing
official, here respondent Mayor, is not devoid of discretion in determining whether
or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly
occur but of what may probably occur, given all the relevant circumstances, still
the assumption – especially so where the assembly is scheduled for a specific
public place – is that the permit must be for the assembly being held there. The
exercise of such a right, in the language of Justice Roberts, speaking for the
American Supreme Court, is not to be ‘abridged on the plea that it may be exercised
in some other place.’ Notably, respondent failed to indicate in his Comment any
basis or explanation for his action. It smacks of whim and caprice for respondent
to just impose a change of venue for an assembly that was slated for a specific
public place.” University of Santo Tomas
Faculty of Civil 10. Japan Airlines v. Simangan, 552 SCRA 341 (2008)Law
Can a passenger who had been unceremoniously bumped off by an airline be held
liable for the injury Bar Review 2010 that might have been caused to the reputation
of the airline as a result of the publication of the passenger’s grievance? Here,
the passenger who was already seated inside the plane was told to disembark because
the airline personnel doubted the validity of his travel papers. He then filed a
complaint against the airline for breach of contract of carriage. The airline,
counterclaimed for damages.
R
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“JAL is a common carrier. JAL’s business is mainly with the traveling public. It
invites people to
92 93 94
A Library Of Liberties Boyd v. United States, 116 U.S. 616 (1886)

392 U.S. 236 (1968), citing Boyd.
vis-à-vis An Arsenal Of Arms

S George Santayana
Those who cannot remember the past are condemned to repeat it.
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avail themselves of the comforts and advantages it offers. Since JAL deals with the
public, its bumping off of respondent without a valid reason naturally drew public
attention and generated a public issue. The publications involved matters about
which the public has the right to be informed because they relate to a public
issue. This public issue or concern is a legitimate topic of a public comment that
may be validly published. Assuming that respondent, indeed, caused the publication
of his complaint, he may not be held liable for damages for it. The constitutional
guarantee of freedom of the speech and of the press includes fair commentaries on
matters of public interest.” The Court further said that “[e]ven though JAL is not
a public official, the rule on privileged commentaries on matters of public
interest applies to it. The privilege applies not only to public officials but
extends to a great variety of subjects, and includes matters of public concern,
public men, and candidates for office. Hence, pursuant to the Borjal case, there
must be an actual malice in order that a discreditable imputation to a public
person in his public capacity or to a public official may be actionable. . . .
Considering that the published articles involve matters of public interest and that
its expressed opinion is not malicious but based on established facts, the
imputations against JAL are not actionable. Therefore, JAL may not claim damages
for them.”
H.
FREEDOM OF RELIGION
A man’s relationship with his idea of a deity or a Supreme Being is something which
the State is not supposed to interfere with. Nor is it really competent to deal
with it. Like matters of thought, concerns about conscience and belief are a man’s
own business. In any case, it is hardly possible for a worldly institution that the
government is to try to interest itself in spiritual matters. Religion is a matter
of faith and belief, not of scientific fact and verification. And, getting into the
act on religious matters could hardly be beneficial to anyone, either for the
government itself or for any particular religion. Lessons from the past have made
any such unions disastrous and counterproductive. Freedom of religion guarantees
complete freedom to believe without any interference from the State. The right to
act, or to translate that belief into action, however, may be subject to certain
regulations consistent with the mandate of the State to promote the welfare of
everyone and to provide for an orderly society. Nevertheless, this right on the
part of the government is not to be lightly assumed, as it must have to be weighed
carefully with any religion-grounded freedom or interest that may be interfered
with. 1. Estrada v. Escritor, 408 SCRA 1 (2003) and 492 SCRA 1 (2006) be the
question to be asked in this case.
University of Santo Tomas To what extent would you defy Faculty of Civil Law sake
of love? This might as well the conventions of society for the
This involves an administrative case filed by a total stranger against a court
interpreter (Escritor) for immoral conduct arising from the fact that she, a
married woman, was living with a married man not her husband, and that she has a
child by him. Escritor acknowledged that indeed she had been in such a conjugal
arrangement. She justified this, however, by making reference to the fact that this
is sanctioned by her religious organization, i.e., in the eyes of God and her
religious community, the Jehovah’s Witnesses, she and the man are considered
validly living as husband and wife pursuant to a Declaration of Pledging
Faithfulness where they undertook to be legally married pursuant to civil laws if
and when A Library them. the circumstances would allow Of Liberties vis-à-vis An
Arsenal Of Arms
Bar Review 2010
In trying to resolve the case, the Court majority, through then Justice Puno, went
into a dissertation
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on the background, history and application of the freedom of religion through

generations, surveying both U.S. case law and Philippine jurisprudence. At the end,
it came up with the conclusion that in the Philippines we adopt a policy of
benevolent neutrality which allows for accommodation of religious practices and
morality, and that an act or practice grounded on religious freedom may only be
overcome by a compelling state interest. “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.” In the initial phase, the
Court set the guiding principles. The Office of the Court Administrator (OCA) was
tasked to undertake some investigation and submit a report to the Court. Thus, the
case was remanded to the OCA and the Solicitor General was ordered to intervene, to
be given the opportunity (a) to examine the sincerity and centrality of
respondent’s claimed religious belief and practice; (b) to present evidence on the
state’s “compelling interest” to override respondent’s religious belief and
practice; and (c) to show that the means the state adopts in pursuing its interest
is the least restrictive to Escritor’s religious freedom. When the case went back
to the Supreme Court almost three years later,95 the Court, applying the standards
and parameters it formulated in the original decision, found the State’s interests
wanting to overcome the asserted Free Exercise rights of Escritor. Opening up with
the line, “While man is finite, he seeks and subscribes to the Infinite,” it ended
with the disposition that “we find that in this particular case and under these
distinct circumstances, respondent Escritor’s conjugal arrangement cannot be
penalized as she has made out a case for exemption from the law based on her
fundamental right to freedom of religion. The Court recognizes that state interests
must be upheld in order that freedoms – including religious freedom – may be
enjoyed. In the area of religious exercise as a preferred freedom, however, man
stands accountable to an authority higher than the state, and so the state interest
sought to be upheld must be so compelling that its violation will erode the very
fabric of the state that will also protect the freedom. In the absence of a showing
that such state interest exists, man must be allowed to subscribe to the Infinite.”
Slippery slope adjudication, any one?96
I. FREEDOM OF MOVEMENT University of Santo Tomas Man is a peripatetic being. He

keeps moving about. HeLaw likely develop bedsores and other Faculty of Civil would
maladies if he simply stayed in one place. In any case, being able to move about
and go to other places could have an informative and educative benefit, aside from
the mere pleasure of going to places and Bar Review 2010 seeing sights other than
the same old boring commonplace views. And, for the purpose of going places, even
as he cannot run like cheetahs, fly like birds, or swim like fishes, he might as
well approximate the same by building vehicles by which he can.
95 96
Estrada v. Escritor, 492 SCRA 1 (2006)
G
In this case, Justices Puno and Carpio exchanged pleasantries about the decision in
that case leading to some slippery slope.
In his concurring opinion in Washington v. Glucksberge, vis-à-vis (1997), Justice

Souter said: “The case for the slippery slope A Library Of Liberties 521 U.S. 702
An Arsenal Of Arms is fairly made out here, not because recognizing one due process
right would leave a court with no principled basis to avoid recognizing another,
but because there is a plausible case that the right claimed would not be readily
containable by reference to facts about the mind that are matters of difficult
judgment, or by gatekeepers who are subject to temptation, noble or not.”
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And, talking of contemporary events, seen in light of the ease with which men and
women move and fly across boundaries, the implications of trans-national illnesses
might as well be factored in the calculus. With the swine flu concerns, could one
just be irresponsible in his travels? 1. Mirasol v. Department of Public Works and
Highways, 490 SCRA 318 (2006) “A toll way is not an ordinary road. As a facility
designed to promote the fastest access to certain destinations, its use, operation,
and maintenance require close regulation. Public interest and safety require the
imposition of certain restrictions on toll ways that do not apply to ordinary
roads. As a special kind of road, it is but reasonable that not all forms of
transport could use it. The right to travel does not mean the right to choose any
vehicle in traversing a toll way. The right to travel refers to the right to move
from one place to another. Petitioners can traverse the toll way any time they
choose using private or public four-wheeled vehicles. Petitioners are not denied
the right to move from Point A to Point B along the toll way. Petitioners are free
to access the toll way, much as the rest of the public can. The mode by which
petitioners wish to travel pertains to the manner of using the toll way, a subject
that can be validly limited by regulation.” Thus, the prohibition on motorcycles
along toll ways.
J. RIGHT TO INFORMATION
Corollary to the right to express oneself freely is the right to be informed of
matters which concern himself or herself and the rest of the body politic. If the
people are to make meaningful contributions to their governance, then they must
know what is happening inside and outside the halls of government. Basic to this
right to be informed is the necessity for laws to be published in order to be
effective. It makes no sense presuming knowledge97 if the government itself has not
made provisions for the dissemination of statutes and regulations which affect the
people’s lives and interests. And here, it must not be lost sight of that not only
laws but also administrative circulars which are not merely internal or
interpretative must also be published. 1. Senate of the Philippines v. Ermita, 488
SCRA 1 (2006) The people as well as their representatives are entitled to know what
are happening around them, specially those of public concern involving use or
misuse of public funds, as well as other deals entered into by those who are in
temporary ascendancy ofthe government. At the same time, there are things
University in Santo Tomas which should be kept confidential for the proper and
efficient functioning of the government. How to Faculty of Civil Law put these
considerations in their proper places is the subject of Senate of the Philippines.
The Court itself opened its discussion of the case with Bar general verities: these
Review 2010 “A transparent government is one of the hallmarks of a truly republican
state. Even in the early history of republican thought, however, it has been
recognized that the head of government may keep certain information confidential in
pursuit of the public interest. Explaining the reason for vesting executive power
in only one magistrate, a distinguished delegate to the U.S. Constitutional
Convention said: ‘Decision, activity, secrecy, and dispatch will generally
characterize the proceedings of one man, in a much more eminent degree than the
proceedings of any greater number; and in proportion as the A Library Of will be
diminished.’ History has been witness, number is increased, these
qualitiesLiberties vis-à-vis An Arsenal Of Armshowever, to the fact
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97
“Ignorance of the law excuses no one from compliance therewith.” (Art. 3, Civil
Code)
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that the power to withhold information lends itself to abuse, hence, the necessity
to guard it zealously.” In issue here is Executive Order No. 464 which the
President ostensibly issued for the purpose of ensuring observance of the principle
of separation of powers, adherence to the rule on executive privilege and respect
for the rights of public officials appearing in legislative inquiries in aid of
legislation under the Constitution, and which became effective immediately upon its
issuance on 28 September 2005. It came on the heels of several investigations and
inquiries being conducted by the Senate. As a consequence of the issuance of E.O.
464, the Executive Department practically sealed the lips of everyone in the
Executive Department and congressional inquiries were left with sessions snubbed by
the invited resource persons. Not only were department heads not allowed to appear
but even minor functionaries were similarly prevented as the executive privilege
was also bestowed – or imposed – on them, meaning no appearance without
presidential clearance. The Court noted that there is a conflict between the power
of legislative inquiry of Congress and presidential executive privilege. For the
purpose of determining the point where the two can accommodate each other, the
Court discussed both concepts. It said that the power of inquiry in inherent in the
power to legislate. This power, “with process to enforce it,” is grounded on the
necessity of information in the legislative process. If the information possessed
by executive officials on the operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning, Congress has the right to that
information and the power to compel the disclosure thereof. On the other hand, in
determining the meaning and scope of executive privilege, the Court had to rely on
foreign sources even as it noted that it is not new in this jurisdiction. It has
been used even prior to the 1987 Constitution. Nevertheless, “[b]eing of American
origin, it is best understood in light of how it has been defined and used in the
legal literature of the United States.” It then went on to say, “Schwartz defines
executive privilege as ‘the power of the Government to withhold information from
the public, the courts, and the Congress.’ Similarly, Rozell defines it as ‘the
right of the President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public.’” Further,
“Executive privilege is, nonetheless, not a clear or unitary concept. It has
encompassed claims of varying kinds. Tribe, in fact, comments that while it is
customary to employ the phrase ‘executive privilege,’ it may be more accurate to
speak of executive privileges ‘since presidential refusals to furnish information
may be actuated by any of at least three distinct kinds of considerations, and may
be asserted, with differing degrees of success, in the context of either judicial
or legislative investigations.’ One variety of the privilege, Tribe explains, is
the state secrets privilege invoked by U.S. Presidents, beginning with Washington,
on the ground that the information is of such nature that its disclosure would
subvert crucial military or diplomatic objectives. Another variety is the
informer’s University of Santo Tomas privilege, or the privilege of the Government
not to disclose the identity of persons who furnish information of violations of
law to Faculty of Civil Law officers charged with the enforcement of that law.
Finally, a generic privilege for internal deliberations has been said to attach to
intragovernmental documents reflecting Bar Review 2010 advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” How about in the Philippines
itself? “In this jurisdiction, the doctrine of executive privilege was recognized
by this Court in Almonte v. Vasquez. Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon decision
which explains the basis for the privilege: ‘The expectation of a President to the
confidentiality of his conversations and correspondences, likeLibrary Of Liberties
vis-à-vis An Arsenal Of Armsexample, has all the A the claim of confidentiality of
judicial deliberations, for values to which we accord deference for the privacy of
all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in
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Presidential decision-making. A President and those who assist him must be free to
explore alternatives in the process of shaping policies and making decisions and to
do so in a way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential communications.
The privilege is fundamental to the operation of government and inextricably rooted
in the separation of powers under the Constitution.’” So what now? “From the above
discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character. While executive
privilege is a constitutional concept, a claim thereof may be valid or not
depending on the ground invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive officials are exempt from the
duty to disclose information by the mere fact of being executive officials. Indeed,
the extraordinary character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of disclosure. ” Further
on, the Court observed: “While there is no Philippine case that directly addresses
the issue of whether executive privilege may be invoked against Congress, it is
gathered from Chavezv. PEA that certain information in the possession of the
executive may validly be claimed as privileged even against Congress. Thus, the
case holds: ‘There is no claim by PEA that the information demanded by petitioner
is privileged information rooted in the separation of powers. The information does
not cover Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal-deliberations of the Supreme
Court and other collegiate courts, or executive sessions of either house of
Congress, are recognized as confidential. This kind of information cannot be pried
open by a co-equal branch of government. A frank exchange of exploratory ideas and
assessments, free from the glare of publicity and pressure by interested parties,
is essential to protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power.’” Further, to emphasize that
executive privilege refers to information and not to persons, since E.O. 464
ostensibly referred officials and employees, the Court noted: “En passant, the
Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as
discussed above, is properly invoked in relation to specific categories of
information and not to categories of persons. In light, however, of Sec 2(a) of
E.O. 464 which deals with the nature, scope and coverage of executive privilege,
the reference to persons being ‘covered by the executive privilege’ may be read as
an abbreviated way of saying that the person is in possession of
informationUniversityjudgment of the head of office concerned, privileged as which
is, in the of Santo Tomas Faculty of Civil Law defined in Section 2(a).” In
consequence, “The claim of privilege under Section 3 of E.O. 464 in relation to
Section 2(b) is thus invalid per se. It is not asserted. It is merely implied.
Instead of providing precise Bar Review 2010 and certain reasons for the claim, it
merely invokes E.O. 464, coupled with an announcement that the President has not
given her consent. It is woefully insufficient for Congress to determine whether
the withholding of information is justified under the circumstances of each case.
It severely frustrates the power of inquiry of Congress. In fine, Section 3 and
Section 2(b) of E.O. 464 must be invalidated.” Noting the exceptional and personal
nature of Executive privilege, the Court found “it essential to limit to the
President the power to invoke the privilege. She may of course authorize the
Executive Secretary to invoke A Library Of Liberties in which case the Executive
Secretary must state that the the privilege on her behalf, vis-à-vis An Arsenal Of
Arms authority is ‘By order of the President,’ which means that he personally
consulted with her. The privilege being an extraordinary power, it must be wielded
only by the highest official in the executive hierarchy.
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In other words, the President may not authorize her subordinates to exercise such
power.” How is the right to information implicated in all of these? “E.O 464 is
concerned only with the demands of Congress for the appearance of executive
officials in the hearings conducted by it, and not with the demands of citizens for
information pursuant to their right to information on matters of public concern.
Petitioners are not amiss in claiming, however, that what is involved in the
present controversy is not merely the legislative power of inquiry, but the right
of the people to information. There are, it bears noting, clear distinctions
between the right of Congress to information which underlies the power of inquiry
and the right of the people to information on matters of public concern. For one,
the demand of a citizen for the production of documents pursuant to his right to
information does not have the same obligatory force as a subpoena duces tecum
issued by Congress. Neither does the right to information grant a citizen the power
to exact testimony from government officials. These powers belong only to Congress
and not to an individual citizen. Thus, while Congress is composed of
representatives elected by the people, it does not follow, except in a highly
qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information. To the extent that investigations in aid of
legislation are generally conducted in public, however, any executive issuance
tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed to be in aid
of legislation, is presumed to be a matter of public concern. The citizens are
thereby denied access to information which they can use in formulating their own
opinions on the matter before Congress – opinions which they can then communicate
to their representatives and other government officials through the various legal
means allowed by their freedom of expression.” In brief, the impairment of the
right of the people to information as a consequence of E.O. 464 is, therefore, just
as direct as its violation of the legislature’s power of inquiry. Moreover, even as
“E.O. 464 applies only to officials of the executive branch, it does not follow
that the same is exempt from the need for publication.” Since the subject matter of
said executive issuance is a matter of public interest which any member of the body
politic may question in the political forums or, if he is a proper party, even in
courts of justice, “logic dictates that the challenged order must be covered by the
publication requirement. As explained above, E.O. 464 has a direct effect on the
right of the people to information on matters of public concern. It is, therefore,
a matter of public interest which members of the body politic may question before
this Court. Due process thus requires that the people should have been apprised of
this issuance before it was implemented.” Silence, gag orders and news blackouts
may indeed be an effective way to control minds and consequences – specially if
there is really something that one may be trying to conceal from public view. 2.
Neri v. Senate Committee on Public AccountabilityTomas University of Santo and
Investigations (Blue Ribbon), 549 SCRA 77 (2008) Faculty of Civil Law Following the
pronouncements in Senate v. Ermita, this case of Neri puts to actual application
what Bar Review 2010 were said in the former. Neri, in response to the Senate
Committee’s demands that he answer three (3) questions – (1) whether the President
followed up on the NBN project, (2) whether Neri was dictated upon to prioritize
ZTE, and, (3) whether the president said go ahead and approve the project after
being told about the bribe attempt by former COMELEC Chairman Benjamin Abalos –
invoked executive privilege, the Executive Secretary advising the Senate Committee
of the same “by order of the President.” In the meantime, on 6 March 2008,
Memorandum Circular No. 151 revoked E.O. 464. Did that affect the invocation of
executive privilege? No, it did “not in any way diminish our concept of executive
privilege.A Library Of Liberties vis-à-vis An Arsenal Of Arms This is because this
concept has Constitutional underpinnings.”
On executive privilege itself, the Court distinguished between presidential

communications
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privilege and deliberative process privilege. “Presidential communications

privilege applies to decision-making of the President while, the deliberative
process privilege, to decision-making of executive officials. The first is rooted
in the constitutional principle of separation of power and the President’s unique
constitutional role; the second on common law privilege. Unlike the deliberative
process privilege, the presidential communications privilege applies to documents
in their entirety, and covers final and post-decisional materials as well as pre-
deliberative ones. As a consequence, congressional or judicial negation of the
presidential communications privilege is always subject to greater scrutiny than
denial of the deliberative process privilege.” In this regard, “the claim of
executive privilege is highly recognized in cases where the subject of inquiry
relates to a power textually committed by the Constitution to the President, such
as the area of military and foreign relations. Under our Constitution, the
President is the repository of the commander-in-chief, appointing, pardoning, and
diplomatic powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater confidentiality than
others.” So to what extent may legislative inquiries be allowed into matters that
may be claimed to be within executive privilege? “The courts are enjoined to
resolve the competing interests of the political branches of the government ‘in the
manner that preserves the essential functions of each Branch.’ Here, the record is
bereft of any categorical explanation from respondent Committees to show a
compelling or critical need for the answers to the three (3) questions in the
enactment of a law. Instead, the questions veer more towards the exercise of the
legislative oversight function under Section 22 of Article VI rather than Section
21 of the same Article. Senate v. Ermita ruled that the ‘the oversight function of
Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation.’ It is conceded that it is difficult to draw
the line between an inquiry in aid of legislation and an inquiry in the exercise of
oversight function of Congress. In this regard, much will depend on the content of
the questions and the manner the inquiry is conducted.” And in relation to right of
the people to information, the Court cautioned: “The members of respondent
Committees should not invoke as justification in their exercise of power a right
properly belonging to the people in general. This is because when they discharge
their power, they do so as public officials and members of Congress.” In his
dissenting opinion, the Chief Justice focused on possible conflict between the
demands of transparency in a democracy and need for governmental secrecy. “The
doctrine of executive privilege is tension between disclosure and secrecy in a
democracy.” He also observed that “[t]he history of executive privilege shows that
the privilege is strongest when used not out of a personal desire to avoid
culpability, but based on a legitimate need to protect the President’s
constitutional mandate University of Santo Tomas to execute the law, to uphold
prudential separation of powers, and above all, to promote the public Faculty of
Civil Law interest.” How then to accommodate the conflict between executive
privilege and demand for information from Congress? He suggested the use of the
function impairment test. “By this test, the Bar Review 2010 Court weighs how the
disclosure of the withheld information would impair the President’s ability to
perform his constitutional duties more than nondisclosure would impair the other
branch’s ability to perform its constitutional functions.” Here, it is the “Court’s
task to balance whether the disclosure of the disputed information impairs the
President’s ability to perform her constitutional duty to execute the laws more
than non-disclosure would impair the respondent Senate Committees’ ability to
perform their constitutional function to enact laws.” This begins with a
recognition that Presidential communications are presumptively privileged. And, in
this regard, “[t]he more A Library Of Liberties vis-à-vis An Arsenal Of Arms
concentrated power is in the President, the greater the need for confidentiality
and the stronger the presumption; contrariwise, the more shared or diffused the
power is with other branches or agencies
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of government, the weaker the presumption.” To the Chief Justice, “it is clear that
[Neri’s] invocation of the Presidential communications privilege is based on a
general claim of a chilling effect on the President’s performance of her functions
if the three questions are answered. The general claim is unsubstantiated by
specific proofs that the performance of the functions of the President will be
adversely affected in a significant degree.” And, this is affected by the fact that
the matter inquired into is about a foreign loan. “We accord Presidential
communications a presumptive privilege but the strength of this privilege is
weakened by the fact that the subject of the communication involves a contract with
a foreign loan. The power to contract foreign loans is a power not exclusively
vested in the President, but is shared with the Monetary Board (Central Bank).” 3.
Sabio v. Gordon, 504 SCRA 704 (2006) Section 4 (b) of E.O. No. 1 – “No member or
staff of the Commission shall be required to testify or produce evidence in any
judicial, legislative or administrative proceeding concerning matters within its
official cognizance” – has been repealed by the 1987 Constitution, particularly
§21, Art. VI (power of legislative inquiry), so declared the Court in this case.
“[T]he conduct of inquiries in aid of legislation is not only intended to benefit
Congress but also the citizenry. The people are equally concerned with this
proceeding and have the right to participate therein in order to protect their
interests. The extent of their participation will largely depend on the information
gathered and made known to them. In other words, the right to information really
goes hand-in-hand with the constitutional policies of full public disclosure and
honesty in the public service. It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in checking abuse in the
government. The cases of Tañada v. Tuvera and Legaspi v. Civil Service Commission
have recognized a citizen’s interest and personality to enforce a public duty and
to bring an action to compel public officials and employees to perform that duty.”
4. Akbayan CitizensAction Party v. Aquino, 558 SCRA 468 (2008) The Court reiterated
here what it earlier held in an extended unpublished resolution in People’s
Movement for Press Freedom (PMPF) v. Manglapus, G.R. No. 84642 (13 September 13,
1988) – the privileged character of diplomatic negotiations has been recognized in
this jurisdiction. Here, what is involved is the Japan-Philippine Economic
Partnership Agreement (JPEPA). The Court held: “Applying the principles adopted in
PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be
kept perpetually confidential – since there should be ‘ample opportunity for
discussion before [a treaty] is approved’ – the offers exchanged by the parties
Tomas negotiations continue to be University of Santo during the privileged even
after the JPEPA Faculty of It is reasonable to conclude that the Japanese is
published. Civil Law representatives submitted their offers with the understanding
that ‘historic confidentiality’ would govern the same. Disclosing these offers
could impair the 2010 of the Philippines to deal not only with Bar Review ability
Japan but with other foreign governments in future negotiations. A ruling that
Philippine offers in treaty negotiations should now be open to public scrutiny
would discourage future Philippine representatives from frankly expressing their
views during negotiations. While, on first impression, it appears wise to deter
Philippine representatives from entering into compromises, it bears noting that
treaty negotiations, or any negotiation for that matter, normally involve a process
of quid pro quo, and oftentimes negotiators have to be willing to grant concessions
in an area of lesser importance in order to obtain more favorable terms in an vis-
à-vis An Arsenal Of Arms Nevertheless, the A Library Of Liberties area of greater
national interest.” Court added that such privilege is only presumptive. The Court
also noted that the ruling in PMPF v. Manglapus is grounded more on the nature of
treaty negotiations as such than on a particular
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socio-political school of thought. It was also noted that “[t]he diplomatic

negotiations privilege bears a close resemblance to the deliberative process and
presidential communications privilege. It may be readily perceived that the
rationale for the confidential character of diplomatic negotiations, deliberative
process, and presidential communications is similar, if not identical.” The
privilege for diplomatic negotiations is meant to encourage a frank exchange of
exploratory ideas between the negotiating parties by shielding such negotiations
from public view. Similar to the privilege for presidential communications, the
diplomatic negotiations privilege seeks, through the same means, to protect the
independence in decision-making of the President, particularly in its capacity as
“the sole organ of the nation in its external relations, and its sole
representative with foreign nations.” And, as with the deliberative process
privilege, the privilege accorded to diplomatic negotiations arises, not on account
of the content of the information per se, but because the information is part of a
process of deliberation which, in pursuit of the public interest, must be presumed
confidential. “Clearly, the privilege accorded to diplomatic negotiations follows
as a logical consequence from the privileged character of the deliberative
process.” Distinguishing treaty-making from contract negotiations, the Court noted
that Chavez v. PEA suffices to show that the doctrine in both that case and Chavez
v. PCGG with regard to the duty to disclose “definite propositions of the
government” does not apply to diplomatic negotiations. “It follows from this ruling
that even definite propositions of the government may not be disclosed if they fall
under ‘recognized exceptions.’ The privilege for diplomatic negotiations is clearly
among the recognized exceptions, for the footnote to the immediately quoted ruling
cites PMPF v. Manglapus itself as an authority.” So does it mean that the seal of
confidentiality could never be broken? It can be, but that would be the exception.
“We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present a
‘strong showing of need,’ whether that party is Congress or a private citizen.” 5.
Hilado v. Reyes, 496 SCRA 282 (2006) This involves the right to inspect the court
records in an estate proceeding. In resolving the case, the Court expounded on the
nuances of the right to information with regard to court records. The term
“judicial record” or “court record” does not only refer to the orders, judgment or
verdict of the courts – it comprises the official collection of all papers,
exhibits and pleadings filed by the parties, all processes issued and returns made
thereon, appearances, and word-for-word testimony which took place during the trial
and which are in the possession, custody, or control of the judiciary or of the
University of Santo Tomas courts for purposes of rendering court decisions. The
interest of the public hinges on its right to Faculty of Civil Law transparency in
the administration of justice, to the end that it will serve to enhance the basic
fairness of the judicial proceedings, safeguard Bar Review 2010 the integrity of
the fact-finding process, and foster an informed public discussion of public
affairs. Accordingly, justice requires that all should have free access to the
opinions of judges and justices, and it would be against sound public policy to
prevent, suppress or keep the earliest knowledge of these from the public. In fine,
once a particular information has been determined to be of public concern, the
accessory right of access to official records, including judicial records, becomes
available.
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There is a difference, however, between court orders or judgments and the parties’
pleadings and A the same. Unlike court orders and decisions, pleadings and other
whatever may go with Library Of Liberties vis-à-vis An Arsenal Of Arms documents
filed by parties to a case need not be matters of public concern or interest.
Information regarding the financial
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standing of a person at the time of his death and the manner by which his private
estate may ultimately be settled is not a matter of general, public concern or one
in which a citizen or the public has an interest by which its legal rights or
liabilities may be affected. If the information sought is not a matter of public
concern or interest, denial of access thereto does not violate the constitutional
right to information. The long and short of it? As long then as any party, counsel
or person has a legitimate reason to have a copy of court records and pays court
fees, a court may not deny access to such records. 6. People v. Cabalquinto, 502
SCRA 419 (2006) It is normally the case that the names of the parties involved in a
case, from the plaintiffs to defendants, to accused and the victims, are identified
in the reports of cases which are disseminated for everyone to read. However, in
Cabalquinto the Court adopted a new policy in regard to crimes involving violence
to women and their children. After considering the inputs from the Office of the
Solicitor General (OSG), the Integrated Bar of the Philippines (IBP), National
Press Club (NPC), Philippine Press Institute (PPI), Kapisanan ng mga Brodkaster sa
Pilipinas (KBP) and the Department of Social Welfare and Development (DSWD), the
Court declared: “Taking all these opinions into account and in view of recent
enactments98 which unequivocally express the intention to maintain the
confidentiality of information in cases involving violence against women and their
children, in this case and henceforth, the Court shall withhold the real name of
the victim-survivor and shall use fictitious initials instead to represent her.
Likewise, the personal circumstances of the victims-survivors or any other
information tending to establish or compromise their identities, as well those of
their immediate family or household members, shall not be disclosed.” Thus, if you
now read initials that sound like battery sizes or advertisements comparing a named
brand with their competitors, you would understand why.99 7. Air Philippines
Corporation v. Pennswell, Inc., 540 SCRA 215 (2007) Can a party demand the other
party to disclose the ingredients and chemical components of the latter’s products
on the assertion that the former had been misled into buying those items on the
fraudulent claim that they are different from earlier ones it had earlier bought,
i.e., – that they are really the same but presented and packaged as different? This
basically is the query in this case. This is a collection suit for the purchase
price of certain items. Air Philippines refused to pay, claiming fraud as to
certain items – lubricants, grease and fluid – being mislabeled as belonging to a
new line but were in truth and in fact, identical with products it had previously
purchased. They merely carried merely altered names and labels, or so Air
Philippines asserted. In the collection suit filed by University of Santo Tomas
Pennswell, Air Philippines moved to compel the former to give a detailed list of
the ingredients and chemical components to prove its Faculty of Civil Law defense.
Pensswell opposed, claiming that the data sought to be disclosed involve trade
secrets. The Court agreed. “That trade secrets are of a privileged nature is beyond
Bar Review 2010 quibble. The protection that this jurisdiction affords to trade
secrets is evident in our laws.” Further, the Court said: “Jurisprudence has
consistently acknowledged the private character of trade secrets. There is a
privilege not to disclose one’s trade secrets. Foremost, this Court has declared
that trade secrets and banking transactions are among the recognized restrictions
to the right of the people to information as embodied in the Constitution.”
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Special Protection of Children Against Child Abuse, Exploitation and Discrimination
Act (R.A. No. 7610), Anti-Violence Against A Library Of Liberties vis-à-vis An
Arsenal Of Arms Women and Their Children Act of 2004 (R.A. No. 9262), and, Rule on
Violence Against Women and their Children (A.M. No. 04-10-11-SC effective 15
November 2004).
99
98
In People v. Rentoria, 533 SCRA 708 (2007), the Court also decreed that the exact
addresses of the victims should be deleted.
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So is the confidentiality of trade secrets absolute? No, “the privilege is not

absolute; the trial court may compel disclosure where it is indispensable for doing
justice. We do not, however, find reason to except respondent’s trade secrets from
the application of the rule on privilege. The revelation of respondent’s trade
secrets serves no better purpose to the disposition of the main case pending with
the RTC, which is on the collection of a sum of money. As can be gleaned from the
facts, petitioner received respondent’s goods in trade in the normal course of
business. To be sure, there are defenses under the laws of contracts and sales
available to petitioner. On the other hand, the greater interest of justice ought
to favor respondent as the holder of trade secrets. If we were to weigh the
conflicting interests between the parties, we rule in favor of the greater interest
of respondent. Trade secrets should receive greater protection from discovery,
because they derive economic value from being generally unknown and not readily
ascertainable by the public. To the mind of this Court, petitioner was not able to
show a compelling reason for us to lift the veil of confidentiality which shields
respondent’s trade secrets.” 8. GMA Network, Inc. v. Movie and Television Review
and Classification Board, 514 SCRA 191 (2007) This highlights the importance not
only of publication but also of submission and registration of administrative rules
and regulations to the Office of the National Administrative Register (ONAR). GMA
Network aired, through EMC Channel 27, “Muro Ami: The Making” without first
securing a permit from MTRCB pursuant to §7, PD 1986. For this the MRTCB imposed on
said broadcast company on 7 January 2000 the penalty of suspension of broadcast for
seven (7) days, which penalty GMA complied with. Nevertheless, GMA questioned the
authority of MTRCB to require prior submission. The Court, harking back to what it
said in MTRCB v. ABS-CBN, 448 SCRA 575 (2005), held that the MTRCB is empowered to
screen, review and examine all motion pictures and television programs including
publicity materials, including a public affairs program – described as a variety of
news treatment, a cross between pure television news and news-related commentaries,
analysis and/or exchange of opinions. Nevertheless, the Court held that while MTRCB
had jurisdiction over the subject program, Memorandum Circular 98-17, which was the
basis of the suspension order, was not binding on GMA since it was not registered
yet with the ONAR as of 27 January 2000. “The Administrative Code of 1987,
particularly Section 3 thereof, expressly requires each agency to file with the
Office of the National Administrative Register (ONAR) of the University of the
Philippines Law Center three certified copies of every rule adopted by it.
Administrative issuances which are not published or filed with the ONAR are
ineffective and may not be enforced.” Being ineffective and unenforceable, GMA was
not bound by said circular and “should not have been meted the sanction provided
thereunder.” It leaves a bad taste when someone is told that he should not have
been punished at all, but then it University of Santo Tomas is conveyed to him when
he had already served of sentence. Faculty his Civil Law The need for filing with
the ONAR was likewise highlighted once more in Republic v. Pilipinas Shell Bar
Review 2010 Petroleum Corporation, 550 SCRA 680 (2008), and Securities and Exchange
Commission v. PICOP Resources, Inc., 566 SCRA 451 (2008).
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K. RIGHT OF ASSOCIATION
Man being a social animal necessarily finds it part of his natural inclinations
that he associate with A Library Of Liberties vis-à-vis An Arsenal Of Arms others.
He would not relish the idea of simply being an island all by himself, isolated
from the rest or the mainland. And the act of so joining others could be a form of
expression – you link up with people
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who are likely to share your interests, sentiments, philosophy, ideology or

affection.100 And, the right to associate may also include as a necessary
corollary, the right not to associate, though such latter right may not justify a
lawyer in refusing to pay his dues to the IBP.101 The right to associate may also
mean that an organization would have the right to choose who its members are,
excluding or expelling those whose personality traits may run into conflict with
the group’s philosophy,102 or refusing participation to a group in a parade where
that group’s message would not be in conformity with the organizer’s own idea of
what the activity is all about.103
L. EMINENT DOMAIN
While the government may negotiate with the owner for the acquisition of the
latter’s properties, such a procedure may not always result in a successful
transaction, however, especially if there is need for more expeditious action, or,
the owner may simply be disinclined to sell. Thus, this coercive power of the
government to take property even if the owner opposes, provided the same is for
public use and there is payment of just compensation. Accordingly, questions on
expropriation may deal with issues of necessity,104 or arbitrary exercise,105 as
well as the justness and timeliness of the payment for the property taken.106 As
for judicial determination of just compensation, the Court has reverted to the old
rule that the same is a judicial function, not one to be simply determined by
looking at what is indicated in the tax declaration.107 With regard to public use,
the same has also been construed to have a more expansive meaning so as to cover
certain purposes which could not have been included in the past, such as
tourism,108 and setting up the birthplace of a known religious leader as a National
Historical Landmark.109 Also, considering that the power of eminent domain involves
the strong arm of the law to compel an unwilling person to part with his property,
extreme caution is called for in resolving complaints for condemnation – when a
serious doubt arises regarding the supposed public use of property, the doubt
should be resolved in favor of the property owner and against the State,110 or,
that eminent domain cases are to be strictly construed against the expropriator.111
This perspective would make it easier to understand the Court’s recent rulings
mandating payment within five (5) years from finality of the
100 101 102
See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) In re Edillon, 84 SCRA 554
(1978)
See Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the U.S. Supreme
Court upheld the right of the Boy Scouts to exclude a homosexual. See also
Ordinario v. People, 428 SCRA 773 (2004), which involves a teacher in Boy Scout who
was convicted of sexual assault for putting his organ into the mouth of a male ten-
year old pupil.
103 104 105 106
Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557
(1995) City of Manila v. Chinese Community of Manila, 40 Phil. 349 (1919) De Knecht
v. Bautista, 100 SCRA 660 (1980)
The interest rate has been set at twelve per centum (12%) per annum, to be computed
from the time of taking to the date of payment, which rate should help eliminate
the constant fluctuation and inflation of the value of currency over time.
(Republic v. Court of Appeals, 383 SCRA 611 [2002]; Reyes v. National Housing
Authority, 395 SCRA 494 [2003]; Republic v. Court of Appeals., 454 SCRA 516 [2005])
107 108 109 110 111
EPZA v. Dulay, 149 SCRA 305 (1987) Heirs of Juancho Ardona v. Reyes, 125 SCRA 220
(1983)
A Appeals, 252 SCRA 412 (1996) Manosca v. Court ofLibrary Of Liberties vis-à-vis
An Arsenal Of Arms
Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007)
San Roque Realty and Development Corporation v. Republic, 532 SCRA 493 (2007)
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judgment of expropriation, otherwise the owner would be entitled to demand recovery

of possession,112 as well as the repurchase of the property when the purpose for
which it was expropriated is abandoned.113 Further, note that the exercise of the
power of eminent domain is not subject to the strictures of res judicata or the
principle of law of the case. The mere fact that the government or its agencies may
not have prevailed in the first attempt to expropriate a property does not preclude
them from doing so again, making adjustments or rectifications in whatever may have
been the earlier deficiencies.114 1. Manotok Realty, Inc. v. CLT Realty Development
Corporation, 582 SCRA 583 (2009) Here, the Court spoke of the “cleansing effect” of
expropriation proceedings. “The fact of expropriation is extremely significant, for
titles acquired by the State by way of expropriation are deemed cleansed of
whatever previous flaws may have attended these titles. . . . ‘In an [in] rem
proceeding, condemnation acts upon the property. After condemnation, the paramount
title is in the public under a new and independent title; thus, by giving notice to
all claimants to a disputed title, condemnation proceedings provide a judicial
process for securing better title against all the world than may be obtained by
voluntary conveyance.’” In this particular case, the Court noted that “[i]n
annulling the Manotok titles, focus was laid on the alleged defects of TCT No. 4211
issued in September of 1918. However, TCT No. 4211 was issued decades before the
property was expropriated. Thus, any and all defects that may have attended that
particular title would have been purged when the property covered by it was
subsequently acquired by the State through eminent domain.” 2. Republic v. Phil-
Ville Development and Housing Corporation, 525 SCRA 776 (2007) Because an order of
expropriation merely determines the authority to exercise the power of eminent
domain and the propriety of such exercise, its issuance does not hinge on the
payment of just compensation. Thus, payment of just compensation is not a condition
sine qua non to the issuance of an order of expropriation – it is the transfer of
title to the land expropriated that must wait until the indemnity is actually paid.
3. Ortega v. City of Cebu, – SCRA – (G.R. Nos. 181562-63, and 181583-84, 2 October
2009) Where the expropriation case had long been final and executory, both the
Order of expropriation and the Order fixing just compensation can no longer be
modified – the expropriator can no longer withdraw from the expropriation
proceedings.
University of Santo Tomas Also, the expropriation court cannot, by itself, order
the expropriating local government to enact an Faculty of Civil Law appropriation
ordinance in order to satisfy its judgment – the land owner must file a separate
mandamus case for that purpose.
4. Manapat v. Court of Appeals, 536 SCRA 32 (2007)
Bar Review 2010
“[T]he foundation of the right to exercise eminent domain is genuine necessity, and
that necessity must be of a public character. As a rule, the determination of
whether there is genuine necessity for the exercise is a justiciable question.
However, when the power is exercised by the Legislature, the question of necessity
is essentially a political question.”
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112 113 114
Republic v. Lim, A Library (2005) 462 SCRA 265 Of Liberties
Mactan-Cebu International Airport Authority v. Lozada, Sr., – SCRA – (G.R. No.

176625, 25 February 2010) See Municipality of Parañaque v. V.M. Realty Corporation,
292 SCRA 678 (1998)
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As for the concept of public use, the same is a “flexible and evolving concept
influenced by changing conditions. At present, it may not be amiss to state that
whatever is beneficially employed for the general welfare satisfies the requirement
of public use.” It “now includes the broader notion of indirect public benefit or
advantage, including in particular, urban land reform and housing.” If a person
might be one of the intended beneficiaries of the so-called “socialized housing,”
does he have the right to object to the expropriation of the land that he occupies
on the contention that it would be incongruous for government to take his land away
from him only to give it back to him? The Court said that “[t]his contention sadly
fails to comprehend the public purpose for the taking under the ‘socialized
housing’ program. The parcels of land subject of the expropriation are, precisely,
being taken so that they can be subdivided into much smaller lots – at an average
of 66.5 square meters per lot – for distribution to deserving dwellers in the area.
Upon the completion of the project, Manapat, and those similarly situated as he,
cannot assert any right to be awarded the very same lots they currently occupy, nor
be entitled to the same area of the land they now have.” 5. Masikip v. City of
Pasig, 479 SCRA 391 (2006) The Court declared that “[j]udicial review of the
exercise of eminent domain is limited to the following areas of concern: (a) the
adequacy of the compensation, (b) the necessity of the taking, and (c) the public
use character of the purpose of the taking.” As regards the resolution of the issue
of necessity here, it said: “Where the taking by the State of private property is
done for the benefit of a small community [such as a homeowners’ association] which
seeks to have its own sports and recreational facility, notwithstanding that there
is such a recreational facility only a short distance away, such taking cannot be
considered to be for public use. Its expropriation is not valid.” The members of
the association are apparently desirous of having their own private playground and
recreational facility. The purpose is not clearly and categorically public. The
Court also sympathized with the plight of persons whose property are sought to be
expropriated. “The right to own and possess property is one of the most cherished
rights of men. It is so fundamental that it has been written into organic law of
every nation where the rule of law prevails. Unless the requisite of genuine
necessity for the expropriation of one’s property is clearly established, it shall
be the duty of the courts to protect the rights of individuals to their private
property. Important as the power of eminent domain may be, the inviolable sanctity
which the Constitution attaches to the property of the individual requires not only
that the purpose for the taking of private property be specified. The genuine
necessity for the taking, which must be of a public character, must also be shown
to exist.”
Faculty of Civil Law In this case a barangay sought to expropriate private lands
purportedly to be used as a feeder road. It was shown by the land owners, however,
that their lands would actually be used to benefit only the Bar Review 2010
homeowners of a private subdivision in the place, whose developer would be excused
from complying with its obligation to secure a right-of-way for its lot buyers. The
Court held, among others that: “Expropriation, if misused or abused, would trench
on the property rights of individuals without due process of law.” Further, it
declared that the failure of the subdivision owner to provide an access road does
not shift the burden to barangay itself. To deprive the private persons of their
property instead of compelling the subdivision owner to comply with its obligation
under the law is an abuse of the power of eminent domain and is patently illegal,
which misuse of public funds for a private purpose could A Library Of Liberties
vis-à-vis An Arsenal Of Arms amount to a possible case of malversation.
6. Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649
(2007) University of Santo Tomas
The Court added: “Taking an individual’s private property is a deprivation which

can only be
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justified by a higher good—which is public use—and can only be counterbalanced by

just compensation. Without these safeguards, the taking of property would not only
be unlawful, immoral, and null and void, but would also constitute a gross and
condemnable transgression of an individual’s basic right to property as well. For
this reason, courts should be more vigilant in protecting the rights of the
property owner and must perform a more thorough and diligent scrutiny of the
alleged public purpose behind the expropriation. Extreme caution is called for in
resolving complaints for condemnation, such that when a serious doubt arises
regarding the supposed public use of property, the doubt should be resolved in
favor of the property owner and against the State.” 7. Republic v. Holy Trinity
Realty Development Corp., 551 SCRA 303 (2008) In case of expropriation under R.A.
No. 8974, if the payment has been deposited in the bank in the meantime, to whom
should the interest belong? The interest that accrues in the meantime goes to the
owner since the principal amount was supposed to have been directly paid to him in
the first place. “Under Section 4 of Republic Act No. 8974, the implementing agency
of the government pays just compensation twice: (1) immediately upon the filing of
the complaint, where the amount to be paid is 100% of the value of the property
based on the current relevant zonal valuation of the BIR (initial payment); and (2)
when the decision of the court in the determination of just compensation becomes
final and executory, where the implementing agency shall pay the owner the
difference between the amount already paid and the just compensation as determined
by the court (final payment).” 8. Tiongson v. National Housing Authority, 558 SCRA
56 (2008) In this case the NHA took possession of the properties way back in 1978
pursuant to P.D. Nos. 1669 and 1670. Subsequently, however, in Manotok v. National
Housing Authority, 150 SCRA 89 (1987), said decrees were declared unconstitutional.
Following that decision, the NHA filed expropriation proceedings, also in 1987.
What should be the reckoning date for the computation of just compensation – 1978
or 1987? Where the initial taking of a property subject to expropriation was by
virtue of a law which was subsequently declared unconstitutional, just compensation
is to be determined as of the date of the filing of the complaint, not the date of
taking. 9. Nepomuceno v. City of Surigao, 560 SCRA 41 (2008) Here, there was taking
in 1960 of land for use a city road, without an expropriation proceeding being
first instituted. Since no amicable settlement was effected, the owners
subsequently filed years later an action for recovery or payment of market value,
and they claimed valuation at time of actual payment. When is the reckoning date?
The Court held that “where actual taking is made without the benefit of
expropriation proceedings andUniversity of Santothe possession of the property
prior to the the owner seeks recovery of Tomas filing of expropriation proceedings,
Faculty of the property at the time of taking that is controlling it is the value
of Civil Law for purposes of compensation.” Thus, the value of the property must be
ascertained as of 1960 when it was actually taken. It is as of that timeBar the
real measure of their loss may fairly be adjudged. The that Review 2010 value, once
fixed, shall earn interest at the legal rate until full payment is effected,
conformably with other principles laid down by case law. Can exemplary damages be
recovered? “Exemplary damages would have been appropriate had it been shown that
the city government indeed misused its power of eminent domain. In this case, both
the RTC and the CA found there was no socially deleterious action or misuse of
power to speak of.” 10. FiguracionA Library Of Liberties vis-à-vis An Arsenal Of
Arms v. Libi, 539 SCRA 50 (2007) This case involves an expropriation for a local
road and the subsequent decision of the City of Cebu
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to reconvey an unused portion of the same. On the right of a local government unit
to sell roads, the Court declared that, as a general rule, local roads used for
public service are considered public property under the absolute control of
Congress; hence, local governments have no authority to control or regulate their
use. However, under Section 10, Chapter II of the Local Government Code, Congress
delegated to political subdivisions some control of local roads. For a valid
reconveyance, one of the requirements is a showing that the former owner or his
successors-in-interest has the right to repurchase said property. As to the right
to repurchase itself, it went back to Ferry v. Municipality of Cabanatuan, 42 Phil
28, 29-30 (1921): “If, for example, land is expropriated for a particular purpose,
with the condition that when that purpose is ended or abandoned the property shall
return to its former owner, then, of course, when the purpose is terminated or
abandoned the former owner reacquires the property so expropriated. . . . If, upon
the contrary, however, the decree of expropriation gives to the entity a fee simple
title, then, of course, the land becomes the absolute property of the expropriator,
whether it be the State, a province, or municipality, and in that case the non-user
does not have the effect of defeating the title acquired by the expropriation
proceedings.” Then it held that “[t]he enunciated rule in Fery is still controlling
to this day. However, in Moreno v. Mactan-Cebu International Airport Authority, we
clarified that where there is preponderant evidence of the existence of a right to
repurchase, the former owner of an expropriated property is entitled to exercise
such option once the public purpose for which the local government initially
intended the expropriated property is abandoned or not pursued. . . . [However,]
where there is insufficient evidence that the former owners of expropriated
properties were granted the right to repurchase the same, the latter may not insist
on recovering their properties even when the public purpose for which said
properties were expropriated is abandoned.” 11. Mactan-Cebu International Airport
Authority v. Lozada, Sr., – SCRA – (G.R. No. 176625, 25 February 2010) When
property taken through eminent domain is no longer needed for the public purpose
for which it was expropriated, does the former owner have the right to repurchase
it? Generally, no. And this traces back to Fery v. Municipality of Cabanatuan.115
In this case of Mactan-Cebu, the Court revisited Fery and came up with a new rule.
After noting that Fery was not decided pursuant to our now sacredly held
constitutional right that private property shall not be taken for public use
without just compensation, it proceeded to declare that “[t]hese requirements
partake of the nature of implied conditions that should be complied with to enable
the condemnor to keep the property expropriated. More particularly, with respect to
the element of public use, the expropriator should commit to use the property
pursuant to the purpose stated in the petition for expropriation filed, failing
which, it should file another petition for the University of Santo Tomas new
purpose. If not, it is then incumbent upon the expropriator to return the said
property to its private Faculty of Civil the judgment of expropriation suffers an
owner, if the latter desires to reacquire the same. Otherwise,Law intrinsic flaw,
as it would lack one indispensable element for the proper exercise of the power of
eminent Bar Review 2010 domain, namely, the particular public purpose for which the
property will be devoted. Accordingly, the private property owner would be denied
due process of law, and the judgment would violate the property owner’s right to
justice, fairness, and equity.” Then, it held: “In light of these premises, we now
expressly hold that the taking of private property, consequent to the Government’s
exercise of its power of eminent domain, is always subject to the condition that
the property be devoted to the specific public purpose for which it was taken.
Corollarily, if this particular purpose or intent is not initiated or not at
Anpursued, and isArms A Library Of Liberties vis-à-vis all Arsenal Of peremptorily
abandoned,
115
42 Phil. 28 (1921).
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then the former owners, if they so desire, may seek the reversion of the property,
subject to the return of the amount of just compensation received. In such a case,
the exercise of the power of eminent domain has become improper for lack of the
required factual justification.” 12. National Power Corporation v. Purefoods
Corporation, 565 SCRA 17 (2008) The rule that the market value is that sum of money
which a person desirous but not compelled to buy, and an owner willing but not
compelled to sell, would agree on as a price to be given and received therefor is
modified where only a part of a certain property is expropriated – in such a case
the owner is not restricted to compensation for the portion actually taken but he
is also entitled to recover the consequential damage, if any, to the remaining part
of the property while, at the same time, from the total compensation must be
deducted the value of the consequential benefits. 13. National Power Corporation v.
Tiangco, 514 SCRA 674 (2007) Right-of-way easements, transmission lines, and just
compensation. NPC’s charter (Republic Act No. 6395) authorizes the corporation to
acquire private property and exercise the right of eminent domain, and §3-A
thereof, as inserted by PD 938, limits the easement fee to 10 percent of the market
value of the land. If the NPC is interested only in acquiring an easement of right-
of-way over a property and that ownership of the area over which the right-of-way
will be established shall remain with the owner of the land, how much should it
pay? NPC claimed that it should pay only an easement fee in an amount equivalent to
ten per cent (10%) of the market value of the property as declared by the landowner
or by the Municipal Assessor. “In several cases, the Court struck down NPC’s
consistent reliance on Section 3-A of Republic Act No. 6395, as amended by
Presidential Decree 938. True, an easement of a right-of-way transmits no rights
except the easement itself, and the respondents would retain full ownership of the
property taken. Nonetheless, the acquisition of such easement is not gratis. The
limitations on the use of the property taken for an indefinite period would deprive
its owner of the normal use thereof. For this reason, the latter is entitled to
payment of a just compensation, which must be neither more nor less than the
monetary equivalent of the land taken. While the power of eminent domain results in
the taking or appropriation of title to, and possession of, the expropriated
property, no cogent reason appears why said power may not be availed of to impose
only a burden upon the owner of the condemned property, without loss of title and
possession. However, if the easement is intended to perpetually or indefinitely
deprive the owner of his proprietary rights through the imposition of conditions
that affect the ordinary use, free enjoyment and disposal of the property or
through restrictions and limitations that are inconsistent with the exercise of the
attributes of ownership, Tomas introduction of structures or University of Santo or
when the objects which, by their nature, create or increaseof Civil Law injury,
death upon or destruction of Faculty the probability of life and property found on
the land is necessary, then the owner should be compensated for the monetary
equivalent of the land, . . .” The Court likewise noted: “The evidence suggests
that NPC’s transmission Bar Review 2010 line project that traverses the
respondents’ property is perpetual, or at least indefinite, in nature. Moreover,
not to be discounted is the fact that the high-tension current to be conveyed
through said transmission lines evidently poses a danger to life and limb; injury,
death or destruction to life and property within the vicinity. . . . Finally, if
NPC were to have its way, respondents will continue to pay the realty taxes due on
the affected portion of their property, an imposition that, among others, merits
the rejection of NPC’s thesis of payment of a mere percentage of the property’s
actual value.”
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A Library Of Liberties vis-à-vis An eminent domain cases, When is the reckoning

date for compensation purposes? “InArsenal Of Arms the time of taking is the filing
of the complaint, if there was no actual taking prior thereto.” The landowner
should be paid
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the value of the property as of the time of the filing of the complaint which is
deemed to be the time of taking the property. It was certainly unfair for the trial
court to have considered a property value several years behind its worth at the
time the complaint. The landowner would be shortchanged, considering that, as a
rule, land values enjoy steady upward movement.” 14. National Power Corporation v.
Ibrahim, 526 SCRA 149 (2007) If one were ever to feel that sinking feeling, that
might as well as have been the situation here. From overhead wires, down to
underground tunnels – still about NPC’s needs to expropriate pursuant to its
mandate. How much to pay for the surface land affected by unseen subterranean
tunnels? Underground tunnels – 115 meters below surface – were constructed by
NAPOCOR way back in 1978, allegedly through stealth and without the landowners’
knowledge and consent, to be used for NPC’s hydroelectric project in Lanao,
siphoning water from Lake Lanao. The clueless owners only discovered them in 1992
when one owner (Maruhom) requested the Marawi City Water District for a permit to
construct and/or install a motorized deep well and was turned down because such
construction would cause danger to lives and property due to the presence of
underground tunnels. When NPC was asked for payment, it claimed that the sub-
terrain does not belong to surface land owners but is part of public dominion. Is
it right? “[T]he Court sustains the finding of the lower courts that the sub-
terrain portion of the property similarly belongs to respondents. This conclusion
is drawn from Article 437 of the Civil Code”116 – the ownership of land extends to
the surface as well as to the subsoil under it. “Registered landowners may even be
ousted of ownership and possession of their properties in the event the latter are
reclassified as mineral lands because real properties are characteristically
indivisible. For the loss sustained by such owners, they are entitled to just
compensation under the Mining Laws or in appropriate expropriation proceedings.”
How far up or down then the rights extend? The landowner’s right extends to such
height or depth where it is possible for them to obtain some benefit or enjoyment,
and it is extinguished beyond such limit as there would be no more interest
protected by law. To NPC’s contention that the underground tunnels in this case
constitute an easement upon the property of the landowners which did not involve
any loss of title or possession, the Court ruled: “The manner in which the easement
was created by petitioner, however, violates the due process rights of respondents
as it was without notice and indemnity to them and did not go through proper
expropriation proceedings. Petitioner could have, at any time, validly exercised
the power of eminent domain to acquire the easement over respondents’ property as
this power encompasses not only the taking or appropriation of title to and
possession of the expropriated property but likewise covers even the imposition of
a mere burden upon the owner of the condemned property. Significantly, though,
landowners cannot be deprivedUniversity of Santo Tomas of their right over their
land until expropriation proceedings are instituted in court.” Further, the Court
also observed that the last element of taking mentioned, i.e., that the entry
Faculty of Civil Law into the property is under warrant or color of legal
authority, was patently lacking, all because of the mistaken belief that the
property formed part of the public dominion. Bar Review 2010 If NPC were to pay
then, how much? “In disregarding this procedure and failing to recognize
respondents’ ownership of the sub-terrain portion, petitioner took a risk and
exposed itself to greater liability with the passage of time. It must be emphasized
that the acquisition of the easement is not without expense. The underground
tunnels impose limitations on respondents’ use of the property for an indefinite
period and deprive them of its ordinary use. Based upon the foregoing, respondents
are clearly entitled to the payment of just compensation. Notwithstanding the fact
that petitioner only A Library Of Liberties vis-à-vis An Arsenal Of Arms 116
R
“The owner of a parcel of land is the owner of its surface and of everything under
it, and he can construct thereon any works or make any plantations and excavations
which he may deem proper, without detriment to servitudes and subject to special
laws and ordinances.”
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occupies the sub-terrain portion, it is liable to pay not merely an easement fee
but rather the full compensation for land. This is so because in this case, the
nature of the easement practically deprives the owners of its normal beneficial
use. Respondents, as the owners of the property thus expropriated, are entitled to
a just compensation which should be neither more nor less, whenever it is possible
to make the assessment, than the money equivalent of said property.” And which
would be the price reckoning moment – construction or discovery date? The Court
said, date of discovery, otherwise “to allow petitioner to use the date it
constructed the tunnels as the date of valuation would be grossly unfair.” First,
it did not enter the land under warrant or color of legal authority or with intent
to expropriate the same. Secondly, the “improvements” introduced by petitioner,
namely, the tunnels, in no way contributed to an increase in the value of the land.
Seen high up, or unseen deep down, NPC could not get away with it – pay it must.
M.
CONTRACT CLAUSE
The weakest guarantee in the Bill of Rights, it is almost seen as a relic from days
past where it must have had its grandeur. The Clause easily yields to the demands
of police power such that the occasions in which it may prevail could more be the
exception than the rule. “The impairment clause is no longer inviolate; in fact,
there are many who now believe that is an anachronism in the present-day
society.”117 Nevertheless, “[w]hile it is true that the police power is superior to
the impairment clause, the principle will apply only where the contract is so
related to the public welfare that it will be considered congenitally susceptible
to change by the legislature in the interest of the greater number. Most presentday
contracts are of that nature.”118 Insofar as the taxing power is concerned, it has
also been observed that: “In truth, the Contract Clause has never been thought as a
limitation on the exercise of the State’s power of taxation save only where a tax
exemption has been granted for a valid consideration.”119 And, that the contractual
tax exemptions, in the real sense of the term and where the non-impairment clause
of the Constitution can rightly be invoked, are those agreed to by the taxing
authority in contracts, such as those contained in government bonds or debentures,
lawfully entered into by them under enabling laws in which the government, acting
in its private capacity, sheds its cloak of authority and waives its governmental
immunity. Tax exemptions of this kind may not be revoked without impairing the
obligations of contracts. These contractual tax exemptions, however, are not to be
confused with tax exemptions granted under franchises. A franchise partakes the
nature of aTomas is beyond the purview of the University of Santo grant which non-
impairment clause of the Constitution.120 of Civil Law Faculty 1. \ epanto
Consolidated MiningBarv. WMC Resources Int’l. Pty. Ltd., 507 SCRA 315 (2006) L Co.
Review 2010 Retroactive application of a legal requirement may result in a
violation of the Contract Clause. “It is ingrained in jurisprudence that the
constitutional prohibition on the impairment of the
117 118 119 120
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Juarez v. Court of Appeals, 214 SCRA 475 (1992) National Development Company v.
Philippine Veterans Bank, 192 SCRA 257 (1990) Tolentino v. Secretary of Finance,
235 SCRA 630 (1994)
Manila Electric Company v. Province of Laguna, 306 SCRA 750 (1999)

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obligation of contract does not prohibit every change in existing laws, and to fall
within the prohibition, the change must not only impair the obligation of the
existing contract, but the impairment must be substantial. . . . [A] law which
changes the terms of a legal contract between the parties, either in the time or
mode of performance, or imposes new conditions, or dispenses with those expressed,
or authorizes for its satisfaction something different from that provided in its
terms, is law which impairs the obligation of a contract and is therefore null and
void. Section 40 of the Philippine Mining Act of 1995 requiring the approval of the
President with respect to assignment or transfer of FTAAs, if made applicable
retroactively to the Columbio FTAA, would be tantamount to an impairment of the
obligations under said contract as it would effectively restrict the right of the
parties thereto to assign or transfer their interests in the said FTAA.”
N.
RIGHTS OF SUSPECTS
A basket of rights that was refused recognition or parsimoniously applied by the

Court in the past has now grown and expanded to afford protection greater than the
text of the original. While the Supreme Court in the not-too-distant past refused
to apply the Miranda doctrine121 in People v. Jose, 37 SCRA 450 (1971), and
likewise did not recognize any retroactive application of the 1973 Constitution
version of the Miranda warnings,122 the same is now really part of the easily-
forgotten past. The doctrine has become firmly entrenched in law and jurisprudence,
even constitutionalized at that.123 In regard to expanding the rights of suspects,
take note of the newly minted “Anti-Torture Act of 2009” (R.A. No. 9745 [2009]). It
is meant to implement the guarantees in Section 12 of the Bill of Rights against
torture and other related acts. It adds the right, among others, to be informed of
one’s right to demand physical examination by an independent and competent doctor
of his/her own choice, which may waived, provided it is in writing and in the
presence of counsel.124 The rights given to persons somehow thought of having
committed a crime or those under custodial investigation – a.k.a., suspects – are
meant to ensure that they are afforded the chance to exercise whatever protection
is due them during criminal prosecutions. Thus, they are given the opportunity to
exercise their privilege not to incriminate themselves, otherwise there would be no
point keeping one’s silence at trial if the damning statements had already been
secured during the investigation. Then, to make sure that the person under
investigation knows what that privilege of silence is all about, he is also given a
chance to have the assistance of a lawyer. He may waive his rights, including the
assistance of
121 122 123
University of Santo Tomas Faculty of Civil Law Magtoto v. Manguera, 63 SCRA 4

(1975)
Miranda v. Arizona, 384 U.S. 436 (1966)
In 2000, the U.S. Supreme Court revisited Miranda and came up with a declaration
that Miranda was of constitutional moorings, a “constitutional decision,” which
could not therefore be overturned by Congress as it represents the Court’s reading
of what the Constitution requires, at minimum. (Dickerson v. United States, 530
U.S. 428 [2000])
Bar Review 2010

SEC. 12. Right to Physical, Medical and Psychological Examination. – Before and
after interrogation, every person arrested, detained or under custodial
investigation shall have the right to be informed of his/her right to demand
physical examination by an independent and competent doctor of his/her own choice.
If such person cannot afford the services of his/her own doctor, he/she shall be
provided by the State with a competent and independent doctor to conduct physical
examination. The State shall endeavor to provide the victim with psychological
evaluation if available under the circumstances. If the person arrested is a
female, she shall be attended to preferably by a female doctor. Furthermore, any
person arrested, detained or under custodial investigation, including his/her
immediate family, shall have the right to immediate access to proper and adequate
medical treatment.
124
A Library Of Liberties vis-à-vis An Arsenal Of Arms *****
Any person who does not wish to avail of the rights under this provision may
knowingly and voluntarily waive such rights in writing, executed in the presence
and assistance of his/her counsel.
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counsel, provided the same is done in the presence of a lawyer. In the language of
the Fundamental Law, the lawyer must be competent and independent. He must be
present from beginning to end, and his loyalty to the cause of his client must be
beyond reproach. Then, also, the lawyer should not simply be a lawyer in form. He
must also be so in substance, a real lawyer and not one who took up Law but never
made it beyond the bar examinations.125 Moreover, nobody could take the place of a
lawyer. In People v. Ordoño, 334 SCRA 673 (2000), since the place had no lawyers,
the statement of the accused was taken in the presence of Parish Priest, Municipal
Mayor, Chief of Police, other police officers, plus the wife and mother of one of
the accused. The Court held the confession inadmissible. Even as it commended the
police, it held that there is no substitute for lawyers. “To the credit of the
police, they requested the presence of the Parish Priest and the Municipal Mayor of
Santol as well as the relatives of the accused to obviate the possibility of
coercion, and to witness the voluntary execution by the accused of their statements
before the police. Nonetheless, this did not cure in any way the absence of a
lawyer during the investigation.” R.A. 7438 does not propose that they appear in
the alternative or as a substitute for counsel. How about media interviews? In
People v. Endino, 352 SCRA 307 (2001), the Court advised trial courts not to
simplistically admit such confessions. “[B]ecause of the inherent danger in the use
of television as a medium for admitting one’s guilt, and the recurrence of this
phenomenon in several cases, it is prudent that trial courts are reminded that
extreme caution must be taken in further admitting similar confessions. For in all
probability, the police, with the connivance of unscrupulous media practitioners,
may attempt to legitimize coerced extrajudicial confessions and place them beyond
the exclusionary rule by having an accused admit an offense on television. Such a
situation would be detrimental to the guaranteed rights of the accused and thus
imperil our criminal justice system.” With the foregoing pronouncements of the
Court relative to admissions or confessions made to media men, should it not also
consider having the right to be advised of one’s Miranda rights – including the
right to counsel – to be done prior to any interviews made by the media? The right
to counsel and the right not to incriminate oneself might become useless if the
print and broadcast reporters are allowed to make the interviews even before the
suspect had the opportunity to think for himself in a voluntary and an informed
manner whether to speak or not. This element of knowing and voluntary waiver may
only be safeguarded – in the spirit of the Miranda doctrine – through the
assistance of counsel timely made.126 1. People v. Reyes, 581 SCRA 691 (2009) When
really do the Miranda Rights kick in? In People v. Marra,127 and People v. Ting Lan
Uy, Jr.,128 the Court held, in effect, that the rights would only be available if a
person has already been arrested and in custody. However, in this case of Reyes,,
we find this line: “The mantle of protection afforded by the University of Santo
Tomas above-quoted constitutional provision [Art. III, §12]Civil the period from
the time a person is taken Faculty of covers Law into custody for the investigation
of his possible participation in the commission of a crime or from the time he is
singled out as a suspect in the commission of the offense although not yet in
custody.” Bar Review 2010 2. People v. Rapeza, 520 SCRA 596 (2007) Where the
participation of a lawyer in the proceedings was confined to the notarization of
the suspect’s confession, the same is not considered the kind of legal assistance
that should be accorded to
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125 126
People v. Basay, 219 SCRA 404 (1993)
See Rene B. Gorospe, “Beyond Stonehill: Extending the Exclusionary Rule to

Uncounselled Media Confessions,” UST Law A Library 2004), at 131-190. vis-à-vis An
Arsenal Of Arms Review, Vol. XLVIII (January-December Of Liberties
(http://ustlawreview.com/pdf/vol.XLVIII/Articles/Beyond_Stonehill.pdf)
127 128
236 SCRA 565 (1994) 475 SCRA 248 (2005)

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the suspect. The suspect must also be advised that he has the option to reject the
counsel provided him by the police authorities, which must also appear in the
written confession. (This latter statement, is it the beginning of a new right in
the mold of the seventh paragraph of Morales, Jr. v. Enrile, 121 SCRA 538 [1983] –
that the right to counsel may be waived provided it is done with the assistance of
counsel?) Further, the foregoing pronouncement may also be related to what the
Court said in People v. Casimiro, 383 SCRA 390 (2002), on incomplete Miranda
Warning: “The warning was incomplete. It did not include a statement that, if
accused-appellant could not afford a counsel, one would be assigned to him. The
warning was perfunctory, made without any effort to find out if he understood it.
It was merely ceremonial and inadequate in transmitting meaningful information to
the suspect.” 3. People v. Malngan, 503 SCRA 294 (2006) Due to the alleged failure
of the employer to pay the wage of the domestic helper for a year, as well as her
refusal to let the latter go home to the province – tauntingly telling her to ride
a broomstick if she wanted to – the domestic helper burned the whole house,
incinerating all its occupants – husband and wife and their four children. The maid
was subsequently located and she confessed to the Barangay Chairman in the presence
of a multitude of angry residents outside the Barangay Hall. Is the confession
admissible? No, the Court said: “Arguably, the barangay tanods, including the
Barangay Chairman, in this particular instance, may be deemed as law enforcement
officer for purposes of applying Article III, Section 12(1) and (3), of the
Constitution. When accused-appellant was brought to the barangay hall in the
morning of 2 January 2001, she was already a suspect, actually the only one, in the
fire that destroyed several houses as well as killed the whole family of Roberto
Separa, Sr. She was, therefore, already under custodial investigation and the
rights guaranteed by Article III, Section 12 (1), of the Constitution should have
already been observed or applied to her. Accused-appellant’s confession to Barangay
Chairman Remigio Bernardo was made in response to the ‘interrogation’ made by the
latter – admittedly conducted without first informing accused-appellant of her
rights under the Constitution or done in the presence of counsel. For this reason,
the confession of accused-appellant, given to Barangay Chairman Remigio Bernardo,
as well as the lighter found by the latter in her bag are inadmissible in evidence
against her as such were obtained in violation of her constitutional rights.”129
The accused was found guilty of arson just the same, though – based on some other
evidence, such as her own admission to a neighbor whose house was also burned as
well as circumstantial evidence. 4. Astudillo v. People, 509 SCRA 302 (2006) While
the Court followed what it said in Ting Lan Uy that the Miranda Rights exist only
in University of Santo Tomas “custodial interrogations” or “in-custody
interrogation of accused persons,” it also adopted a more liberal
In People v. Ulit, 423 SCRA 374 (2004), the Barangay chairman ordered the barangay
tanods to “invite and bring” the accused to the barangay hall, and thereafter asked
the accused if he raped the complainant. The suspect admitted and executed a sworn
statement to that effect. The Court said that the uncounselled sworn statement of
the accused was considered admissible because he was not then under arrest nor
under custodial investigation. “The exclusionary rule is premised on the
presumption that the defendant is thrust into an unfamiliar atmosphere and runs
through menacing police interrogation procedures where the potentiality for
compulsion, physical and psychological, is forcefully apparent. As intended by the
1971 Constitutional Convention, this covers ‘investigation conducted by police
authorities which will include investigations conducted by the municipal police,
the PC and the NBI and such other police agencies in our government.’ The barangay
chairman is not deemed a law enforcement officer for purposes of applying Section
12(1) and (3) of Article III of the Constitution. Under these circumstances, it
cannot be successfully claimed that the appellant’s statement before the barangay
chairman is inadmissible.” (Both Ulit and Samus were en banc decisions.)
129
In People v. Tomaquin, 435 SCRA 23 (2004), the Court noted that a barangay captain
“is called upon to enforce the law and ordinances in his barangay and ensure peace
and order at all times.” As such, he could not be considered as an independent
counsel for the purpose of assisting a suspect.

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approach in regard to the effect of uncounselled confession insofar as third

persons are concerned: “[C]onfessions and admissions in violation of Section 12(1),
Article III of the Constitution are inadmissible in evidence against the declarant
and more so against third persons.” In the latter aspect the Court cited People v.
Figueroa, 335 SCRA 249 (2000). Earlier, though, the Court declared in People v.
Balisteros, 237 SCRA 493 (1994), that the said exclusionary benefits may only be
availed of by the accused himself. The Court then said: “What is provided by the
modified formulation in the 1987 Constitution is that a confession taken in
violation of said Section 12 and Section 17 of the same Article ‘shall be
inadmissible in evidence against him,’ meaning the confessant. This objection can
be raised only by the confessant whose rights have been violated as such right is
personal in nature.”
O.
RIGHTS OF THE ACCUSED
Once a person under investigation is found to be probably guilty of the commission

of a crime, he is charged in court and he thereby becomes an accused. As such, he
becomes entitled to another set of rights, from the presumption of innocence to an
opportunity to avail of momentary liberty through bail, to being informed of the
charges, to setting out his defense by himself or counsel, facing his accusers and
testing their credibility, speedy, impartial and public trial, and compulsory
process for the production of witnesses and evidence in his behalf. Through all of
these, he is assured of the guarantee of being heard before judgment is
rendered.130 1. Government of Hong Kong Special Administrative Region v. Olalia,
Jr., 521 SCRA 470 (2007) Confronted anew with the question as to whether a
potential extraditee is entitled to bail, the Court found occasion to revisit what
it had earlier decreed in Purganan, supra. It noted that the modern trend in public
international law is the primacy placed on the worth of the individual person and
the sanctity of human rights, citing the Universal Declaration of Human Rights and
the International Covenant on Civil and Political Rights. Fundamental among the
rights enshrined in the International Covenant on Civil and Political Rights are
the rights of every person to life, liberty, and due process. While the Court in
Purganan limited the exercise of the right to bail to criminal proceedings, in
light of the various international treaties giving recognition and protection to
human rights, particularly the right to life and liberty, a reexamination of the
Court’s ruling in Purganan was accordingly in order.
University be Santo deportation The Court also reasoned out that if bail can
ofgranted in Tomas cases, it saw no justification Faculty cases – clearly, the why
it should not also be allowed in extradition of Civil Law right of a prospective
extraditee to apply for bail must be viewed in the light of the various treaty
obligations of the Philippines concerning Bar Review 2010 respect for the promotion
and protection of human rights.
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 purpose of extradition is also
“the machinery of criminal law” – obviously, an extradition proceeding, while
ostensibly administrative, bears all earmarks of a criminal process . By any
standard, detention for an extended period of more than two (2) years is a serious
deprivation of a potential extraditee’s fundamental right to liberty. While vis-à-
vis An Arsenal Of Arms not provide for the A Library Of Liberties the Philippines’
extradition law does
In People v. Alcanzado, 428 SCRA 681 (2004), the Court held that if a demurrer to
evidence with leave of court is denied, the trial court should give the accused the
opportunity to present his evidence. It cannot simply proceed to convict him.
130
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grant of bail to an extraditee, however, there is no provision prohibiting him or

her from filing a motion for bail, a right to due process under the Constitution.
So what standards should govern the grant of bail to potential extraditee? The
applicable standard of due process should not be the same as that in criminal
proceedings – in the latter, the standard of due process is premised on the
presumption of innocence of the accused, in the former, the assumption is that such
extraditee is a fugitive from justice. Thus, the prospective extraditee thus bears
the onus probandi of showing that he or she is not a flight risk and should be
granted bail. 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. The potential extraditee must prove by “clear and convincing proof”
that he is not a flight risk and will abide with all orders and processes of the
extradition court. 2. Trillanes IV v. Pimentel, Sr., 356 SCRA 471 (2008) What does
the presumption of innocence entail? The Court said that “the presumption of
innocence does not carry with it the full enjoyment of civil and political rights.”
Accordingly, in this case even as someone charged with coup d’etat – a non-bailable
offense – was elected to Congress, he was not allowed to leave his prison cell in
order to join his colleagues in the legislative brancn. The Court further held, in
regard as to when the presumption remains viable: “The rule stands that until a
promulgation of final conviction is made, the constitutional mandate of presumption
of innocence prevails.” 3. Re: Conviction of Judge Adoracion G. Angeles, RTC, Br.
121, Caloocan City in Criminal Cases Nos. Q-97-69655 to 56 for Child Abuse, 543
SCRA 196 (2008) Does the presumption of innocence come to an end when there is
conviction by the trial court, even if there is an appeal taken? In this case, the
Court echoed what was said Trillanes – the presumption is lost only when there is a
final judgment. Accordingly,“the fact of [the judge’s] conviction by the RTC does
not necessarily warrant her suspension. We agree with [her] argument that since her
conviction of the crime of child abuse is currently on appeal before the CA, the
same has not yet attained finality. As such, she still enjoys the constitutional
presumption of innocence. It must be remembered that the existence of a presumption
indicating the guilt of the accused does not in itself destroy the constitutional
presumption of innocence unless the inculpating presumption, together with all the
evidence, or the lack of any evidence or explanation, proves the accused’s guilt
beyond a reasonable doubt.” 4. People v. Abulon, 530 SCRA 675 (2007) Rape through
Sexual Intercourse v. Rape by Sexual Assault. “In view of the material differences
Faculty of Civil Law between the two modes of rape,131 the first mode is not
necessarily included in the second, and vice-versa. Thus, where the charge in Bar
Review 2010 the Information is rape through carnal knowledge, the accused cannot be
found guilty of rape by sexual assault even if proven, for this would violate his
constitutional right to be informed of the nature and cause of the accusation
against him. However, following the variance doctrine he can be found guilty of the
lesser crime of acts of lasciviousness. 5. Andaya v. People, 493 SCRA 539 (2006)
In this case, the accused was charged with Falsification of Private Documents but
no damage to offended party was A Library Of Liberties vis-à-vis An Arsenal intent
to cause damage to the proved. The accused was still convicted, though, for Of Arms
“Rape through sexual intercourse is also denominated as ‘organ rape’ or ‘penile
rape.’ On the other hand, rape by sexual assault is otherwise called ‘instrument or
object rape,’ also ‘gender-free rape,’ or the narrower ‘homosexual rape.’”
131
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government through evasion of tax. Despite the trial court’s concession that the
allegedly offended party (a savings and loan association) suffered no damage, it
still convicted the accused, reasoning out that the third essential element of
falsification of private document was present because the falsification of the
voucher was done with criminal intent to cause damage to the government considering
that its purpose was to lower the tax base of the recipient of the money, allowing
him to evade payment of taxes. The Court saw the act done by the judge unjustified.
“We find ourselves unable to agree with this ratiocination of the trial court
because it violates the constitutional right of petitioner to be informed of the
nature and cause of the accusation against him.” It must be remembered that “[n]o
matter how conclusive and convincing the evidence of guilt may be, an accused
cannot be convicted of any offense unless it is charged in the information on which
he is tried or is necessarily included therein. To convict him of a ground not
alleged while he is concentrating his defense against the ground alleged would
plainly be unfair and underhanded. The rule is that a variance between the
allegation in the information and proof adduced during trial shall be fatal to the
criminal case if it is material and prejudicial to the accused so much so that it
affects his substantial rights.” No matter the victim, accused still guilty! That
might have been the mindset of the trial court judge.132 6. Davis v. Washington,
547 U.S. 813 (2006) Here, the issue is whether statements taken during 911
calls,133 as well as those given to police while responding to certain calls for
assistance are subject to the Confrontation Clause such that if the persons who
made the 911 Call or gave statements to the police do not show up during the trial,
their testimonies will not be admitted. In resolving the legal poser, the U.S.
Supreme Court made a differentiation between “testimonial” and “non-testimonial”
statements. “Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary purpose
of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”
The Court went on to rule in regard to 911 Calls: “A 911 call, . . . at least the
initial interrogation conducted in connection with a 911 call, is ordinarily not
designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe
current circumstances requiring police assistance.” In short, only “testimonial
statements” make a declarant a witness.
University of Santo Tomas Faculty of Civil Law

Cf.: People v. Ortiz-Miyake, 279 SCRA 180 (1997), where the trial court convicted
the accused of “illegal recruitment in large scale” even if only one of the three
victims was able to testify, by adopting the judgment of conviction against the
accused’s in two separate cases of estafa before a different court. The Supreme
Court did not agree: “A previous decision or judgment, while admissible in evidence
may only prove that an accused was previously convicted of a crime. It may not be
used to prove that the accused is guilty of a crime charged in a subsequent case,
in lieu of the requisite evidence proving the commission of the crime, as said
previous decision is hearsay. To sanction its being used as a basis for conviction
in a subsequent case would constitute a violation of the right of the accused to
confront the witnesses against him. . . . Every conviction must be based on the
findings of fact made by a trial court according to its appreciation of the
evidence before it. A conviction may not be based merely on the findings of fact of
another court, especially where what is presented is only its decision sans the
transcript of the testimony of the witnesses who testified therein and upon which
the decision is based.”
132
Bar Review 2010
The Court said of the nature of 911 Operators: “If 911 operators areAnthemselves
lawOf Arms officers, they may at least A Library Of Liberties vis-à-vis not Arsenal
enforcement be agents of law enforcement when they conduct interrogations of 911
callers. For purposes of this opinion (and without deciding the point), we consider
their acts to be acts of the police. As in Crawford v. Washington, 541 U. S. 36
(2004), therefore, our holding today makes it unnecessary to consider whether and
when statements made to someone other than law enforcement personnel are
‘testimonial.’”
133
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P. WRITS OF HABEAS CORPUS AND AMPARO

The privilege of the writ of habeas corpus affords one who may be unlawfully
detained an opportunity to have an expeditious inquiry into the nature of the
deprivation of liberty such that if there is no legal basis for the same then he
should be set free. It also affords a remedy in custody fights in the domestic
battle grounds to determine who may have better right over a person who could not
take care of his own affairs. However, “[t]he mere loss or destruction of the
records of a criminal case subsequent to conviction of the accused will not render
the judgment of conviction void, nor will it warrant the release of the convict by
virtue of a writ of habeas corpus. The proper remedy is the reconstitution of
judicial records which is as much a duty of the prosecution as of the defense.”120
1. Martinez v. Mendoza, 499 SCRA 234 (2006) In Subayno v. Enrile, 145 SCRA 282
(1986), the Supreme Court said that the writ of habeas corpus may not be used as a
means of obtaining evidence on the whereabouts of a person. Here, in Martinez v.
Mendoza, the Court held that the grant of relief in a habeas corpus proceeding is
not predicated on the disappearance of a person, but on his illegal detention. It
may not be used as a means of obtaining evidence on the whereabouts of a person, or
as a means of finding out who has specifically abducted or caused the disappearance
of a certain person. When forcible taking and disappearance – not arrest and
detention – have been alleged, the proper remedy is not habeas corpus proceedings,
but criminal investigation and proceedings. 2. Aquino v. Esperon, 531 SCRA 788
(2007) As a general rule, the writ of habeas corpus will not issue where the person
alleged to be restrained of his liberty is in the custody of an officer under a
process issued by the court which has jurisdiction to do so – it is unavailing
where the legality of a military officer’s restraint has been settled, namely, that
he stands charged in court martial proceedings for alleged violations of Article 67
(Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an
Officer and Gentleman) of the Articles of War. Habeas corpus is not the proper mode
to question conditions of confinement. As a rule, the writ of habeas corpus does
not extend into questions of conditions of confinement but only to the fact and
duration of confinement – not a means for redress of grievances or to seek
injunctive relief or damages. Further, under the “hands-off doctrine,” the courts
give deference to military custodians over prison matters, especially on blanket
restrictions on contact visit – it is a form of judicial self-restraint, that
courts should decline jurisdiction over prison matters in deference to
administrative expertise.
University of Santo 3. Manalo v. Calderon, 536 SCRA 290 (2007)
When policemen are subject to certain investigations, they may be placed on

restrictive custody or subjected to monitored movements. Are these subject to
habeas corpus proceedings? Bar Review 2010 A restrictive custody and monitoring of
movements or whereabouts of police officers under investigation by their superiors
is not a form of illegal detention or restraint of liberty which merits the grant
of a petition for habeas corpus. The prime specification of an application for a
writ of habeas corpus is an actual and effective, and not merely nominal or moral,
illegal restraint of liberty: “[D]ecreeing the monitoring of their movements
cannot, by any stretch of the imagination, be considered as a form of curtailment
of their freedom guaranteed under our Constitution.” Moreover, “the ‘restrictive A
Library Of Liberties vis-à-vis An Arsenal is beyond custody’ complained of by
petitioners is, at best, nominal restraint which Of Armsthe ambit of habeas
Tomas Faculty of Civil Law

R
120
Feria v. Court of Appeals, 325 SCRA 525 (2000)

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corpus. It is neither actual nor effective restraint that would call for the grant
of the remedy prayed for. It is a permissible precautionary measure to assure the
PNP authorities that the police officers concerned are always accounted for.”
Placing police officers facing a grave administrative case under restrictive
custody is a disciplinary measure authorized under the PNP law. Does not the fact
that the police force is actually civilian in nature rather than military in
character make a difference? “[A]lthough the PNP is civilian in character, its
members are subject to the disciplinary authority of the Chief, Philippine National
Police, under the National Police Commission. Courts cannot, by injunction, review,
overrule or otherwise interfere with valid acts of police officials. The police
organization must observe self-discipline and obey a chain of command under
civilian officials. Elsewise stated, police officers are not similarly situated
with ordinary civil service employees. The PNP has its own administrative
disciplinary mechanism different from those of other government employees.” 4. WRIT
OF AMPARO Since the privilege of the writ of habeas corpus does not reach out to
cases where the fact of detention is denied, or the identity of those keeping a
person, or his whereabouts are uncertain, the Supreme Court came up with the Writ
of Amparo.121 This is a remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or entity. It
covers extralegal killings and enforced disappearances or threats thereof. In
contrast to the writ of habeas corpus, under the Writ of Amparo it is not enough
for the respondent to simply disclaim any knowledge of the aggrieved person subject
of the writ, or the surrounding circumstances about the latter. He is also duty
bound to state the steps or actions taken to determine the fate or whereabouts of
said person and the person or persons responsible for the threat, act or omission.
He is also bound to disclose all relevant information in his possession pertaining
to the threat, act or omission against the aggrieved person, as well as to state
other matters relevant to the investigation, its resolution and the prosecution of
the case.122 5. Secretary of National Defense v. Manalo, 568 SCRA 1 (2008) “While
victims of enforced disappearances are separated from the rest of the world behind
secret walls, they are not separated from the constitutional protection of their
basic rights. The constitution is an overarching sky that covers all in its
protection.” Thus the Court began its decision in the first very petition filed for
a Writ of Amparo.123 As to the Writ’s origin and nature, the Court Santo Tomas
University of said: “The writ of amparo originated in Mexico. ‘Amparo’ literally
means ‘protection’ in Spanish.” Amparo “combines the principles of judicial review
Faculty of Civil Law derived from the U.S. with the limitations on judicial power
characteristic of the civil law tradition which prevails in Mexico. It enables
courts to enforce the constitution by protecting individual rights Bar Review 2010
in particular cases, but prevents them from using this power to make law for the
entire nation.” Through time, adoption and adaptations in some other places, it has
also begun to assume different forms for
121 122 123
Effective 24 October 2007, pursuant to A.M. No. 07-0-12-SC (25 September 2007). See
also the Rule on the Writ of Habeas Data discussed in the section on Searches and
Seizures.
B
G
An earlier petition for writ of habeas corpus had been withdrawn following the
escape of the the Manalo brothers who were until then illegally detained following
their abduction by soldiers and members of the CAFGU. Even as they were already not
deprived of their liberty, they still feared forA Library Of Liberties vis-à-vis An
Arsenal Injunction and TRO to stop the Secretary their lives and security.
Therefore, they filed a petition for Prohibition, Of Arms of National Defense and
the Chief of Staff of the Armed Forces, as well as persons under them, from doing
them harm. The moment the rules on the writ of amparo became effective, however,
they asked the Court to convert their petition to one for Writ of Amparo – and the
Court forthwith acceded.
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different purposes – (1) amparo libertad for the protection of personal freedom,
equivalent to the habeas corpus writ; (2) amparo contra leyes for the judicial
review of the constitutionality of statutes; (3) amparo casacion for the judicial
review of the constitutionality and legality of a judicial decision; (4) amparo
administrativo for the judicial review of administrative actions; and (5) amparo
agrario for the protection of peasants’ rights derived from the agrarian reform
process. In the Philippines, before the adoption of the Amparo Rules, we had the
constitutional guarantee of right to life, liberty and security under the Due
Process Clause and the right against unreasonable searches and seizures (Art. II,
§§1 and 2), enforceable by means of the writ of habeas corpus (Art. III, §15) as
well as the Grave Abuse Clause124 (Art. VIII, §1, ¶2). On the Grave Abuse Clause,
the Court said: “The Clause accords a similar general protection to human rights
extended by the amparo contra leyes, amparo casacion, and amparo administrativo.
Amparo libertad is comparable to the remedy of habeas corpus found in several
provisions of the 1987 Constitution. The Clause is an offspring of the U.S. common
law tradition of judicial review, which finds its roots in the 1803 case of Marbury
v. Madison.” But the means then available were obviously inadequate remedy to some
pressing problem of extralegal killings and enforced disappearances which cried out
for better solutions. Thus, the writ of amparo. “While constitutional rights can be
protected under the Grave Abuse Clause through remedies of injunction or
prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus
under Rule 102, these remedies may not be adequate to address the pestering problem
of extralegal killings and enforced disappearances. However, with the swiftness
required to resolve a petition for a writ of amparo through summary proceedings and
the availability of appropriate interim and permanent reliefs under the Amparo
Rule, this hybrid writ of the common law and civil law traditions – borne out of
the Latin American and Philippine experience of human rights abuses – offers a
better remedy to extralegal killings and enforced disappearances and threats
thereof. The remedy provides rapid judicial relief as it partakes of a summary
proceeding that requires only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings.” In fine, amparo writ
serves both preventive and curative roles in addressing the problem of extralegal
killings and enforced disappearnces. The Amparo Rule was intended to address the
intractable problem of “extralegal killings” and “enforced disappearances.” Its
coverage, in its present form, is confined to these two instances or to threats
thereof. And what do you mean by those terms? Extralegal killings are killings
committed without due process of law, i.e., without legal safeguards or judicial
proceedings. On the University of Santo Tomas attended by the following other hand,
enforced disappearances are characteristics: an arrest, detention or abduction of a
person by a government official or organized groups Faculty of Civil Law or private
individuals acting with the direct or indirect acquiescence of the government; the
refusal of the State to disclose the fate or whereaboutsReview 2010 Bar of the
person concerned or a refusal to acknowledge the deprivation of liberty which
places such persons outside the protection of law. The writ of amparo is available
to those whose right to life, liberty and security is violated or threatened with
violation. So what does the right entail? “The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution.” This guarantees immunity of one’s person, including the extensions
of his/her person – houses, papers, and effects – against government intrusion. And
while the right to life guarantees essentially the right to be alive– A Library Of
Liberties vis-à-vis An Arsenal Of to security of person is a upon which the
enjoyment of all other rights is preconditioned – the right Arms
124
This seems to be the first time that the Court made use of this term.
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guarantee of the secure quality of this life. So, what in more concrete terms are
included within the right to security? The Court spoke of the permutations of the
right to security. The first would be freedom from fear. “In the context of Section
1 of the Amparo Rule, ‘freedom from fear’ is the right and any threat to the rights
to life, liberty or security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. . . . Thus, in the amparo
context, it is more correct to say that the ‘right to security’ is actually the
‘freedom from threat.’” Viewed in this light, the “threatened with violation”
Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of
the right to security mentioned in the earlier part of the provision.” The second
is a guarantee of bodily and psychological integrity or security. “Physical
injuries inflicted in the context of extralegal killings and enforced
disappearances constitute more than a search or invasion of the body.” Also,
“[p]hysical torture, force, and violence are a severe invasion of bodily integrity.
When employed to vitiate the free will such as to force the victim to admit, reveal
or fabricate incriminating information, it constitutes an invasion of both bodily
and psychological integrity as the dignity of the human person includes the
exercise of free will.” The third is a guarantee of protection of one’s rights by
the government. “The right to security of person in this third sense is a corollary
of the policy that the State ‘guarantees full respect for human rights’ under
Article II, Section 11 of the 1987 Constitution. . . . Protection includes
conducting effective investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing offenders to the bar of
justice.” And, must there be a prior deprivation of liberty? No. “[T]here need not
necessarily be a deprivation of liberty for the right to security of person to be
invoked.” How fares the petition in the instant case? On the aspect about “freedom
from threat” the Court held: “[T]he circumstances of respondents’ abduction,
detention, torture and escape reasonably support a conclusion that there is an
apparent threat that they will again be abducted, tortured, and this time, even
executed. These constitute threats to their liberty, security, and life, actionable
through a petition for a writ of amparo.” With regard to the right to Government
protection, the Court observed: “Apart from the failure of military elements to
provide protection to respondents by themselves perpetrating the abduction,
detention, and torture, they also miserably failed in conducting an effective
investigation of respondents’ abduction as revealed by the testimony and
investigation report of petitioners’ own witness, . . . The one-day investigation
conducted by Jimenez was very limited, superficial, and one-sided.” Further, “amost
a year after the policy directive was issued by petitioner Secretary of National
Defense on October 31, 2007, respondents have not been furnished the results of the
investigation which they now seek through the instant petition for a writ of
amparo.” The Court concluded: “Under these circumstances, there is substantial
evidence to warrant the conclusion that there is a violation of respondents’ right
to securityUniversity of protection by the government.” In other words, as a
guarantee of Santo Tomas Faculty of Civil Law “respondents’ right to security as
‘freedom from threat’ is violated by the apparent threat to their life, liberty and
security of person. Their right to security as a guarantee of protection by the
government is Bar Review 2010 likewise violated by the ineffective investigation
and protection on the part of the military.” So what reliefs are available? One
would be the production by the responsible officials and persons of all official
and unofficial reports of the investigation undertaken in connection with their
case, all medical reports, records and charts, reports of any treatment given or
recommended and medicines prescribed, if any, to include a list of medical and
(sic) personnel (military and civilian) who attended to the brothers while in
detention. And, in this regard, the Court clarified the nature of an amparo
production order. “The production order under vis-à-vis An Arsenal Of Arms A
Library Of Liberties the Amparo Rule should not be confused with a search warrant
for law enforcement under Article III, Section 2 of the 1987 Constitution. This
Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a
G
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protection of the government from the demand of the people such as respondents.
Instead, the amparo production order may be likened to the production of documents
or things under Section 1, Rule 27 of the Rules of Civil Procedure.” Another relief
is the disclosure of the present places of official assignments of identified
military personnel who might have had something to do with the abduction, detention
and torture of the amparo petitioners. “The disclosure of the present places of
assignment of [two military men] whom respondents both directly implicated as
perpetrators behind their abduction and detention, is relevant in ensuring the
safety of respondents by avoiding their areas of territorial jurisdiction. Such
disclosure would also help ensure that these military officers can be served with
notices and court processes in relation to any investigation and action for
violation of the respondents’ rights.” And by way of final note, the Court
declared: “The writ of amparo is a tool that gives voice to preys of silent guns
and prisoners behind secret walls.” (Now, as for you, the Bar examinee, it is time
to give voice to your silent pens and to break free from the prison walls you have
made out of your unfounded trepidations about the Bar exams!) 6. Razon, Jr. v.
Tagitis, – SCRA – (G.R. No. 182498, 3 December 2009) and Resolution on Motion for
Reconsideration, – SCRA – (16 February 2010) The remedy under the Writ of Amparo is
a work in progress, and we are all witnesses to the same. In this case the Court
further expounded on the nature and importance of the Writ of Amparo. The Court
said that the Writ of Amparo “does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines responsibility, or at
least accountability, for the enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance. Responsibility refers to the
extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced disappearance,
as a measure of the remedies this Court shall craft, among them, the directive to
file the appropriate criminal and civil cases against the responsible parties in
the proper courts. Accountability, on the other hand, refers to the measure of
remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the level
of responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry,
but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of
the Writ of Amparo is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his liberty and
security are restored.
University of Santo Tomas “We highlight this nature of a Writ of Amparo case at the
outset to stress that the unique situations Faculty of Civil Law
that call for the issuance of the writ, as well as the considerations and measures
necessary to address these situations, may not at all be the same as the standard
measures and procedures in ordinary court Bar Review 2010 actions and proceedings.
In this sense, the Rule on the Writ ofAmparo125 (Amparo Rule) issued by this Court
is unique. The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.”
B
G
In regard to the need for flexibility, specially with respect to matters of

evidence, the Court explained that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts. To have A
Library Of Liberties vis-à-vis An Arsenal Of Arms to the evidentiary an effective
remedy, the standard of evidence must be responsive
125
A.M. No. 07-9-12-SC, October 24, 2007.

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Page 97 of 103
difficulties faced. “Thus, while we must follow the substantial evidence rule, we
must observe flexibility in considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of
reason – i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay evidence
can be admitted if it satisfies this basic minimum test.” 7. Rubrico v. Macapagal-
Arroyo, – SCRA – (G.R. No. 183871, 18 February 2010) In this case, the Court
discussed the doctrine of command responsibility in conjunction with the remedy of
the Writ of Amparo. The Court noted that while there are several pending bills on
command responsibility, there is still no Philippine law that provides for criminal
liability under that doctrine. Thus, it would be inappropriate to apply to amparo
proceedings the doctrine of command responsibility as a form of criminal complicity
through omission, for individual respondents’ criminal liability, if there be any,
is beyond the reach of amparo – the Court does not rule in such proceedings on any
issue of criminal culpability, even if incidentally a crime or an infraction of an
administrative rule may have been committed. On this point, Justice Carpio Morales
in her separate opinion noted that the ponencia’s ambivalence on the applicability
of the doctrine of command responsibility overlooks its general acceptance in
public international law, which warrants its incorporation into Philippine law via
the incorporation clause of the Constitution. At the same time, the Court also
cautioned that the remedy of amparo ought to be resorted to and granted
judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by
the indiscriminate filing of amparo petitions for purposes less than the desire to
secure amparo reliefs and protection and/or on the basis of unsubstantiated
allegations. In his separate opinion, Justice Brion took note of another new law,
The Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity (R.A. No. 9851). He said that with R.A. 9851, the
Rule on the Writ of Amparo is now a procedural law anchored, not only on the
constitutional rights to the rights to life, liberty and security, but on a
concrete statutory definition as well of what an “enforced or involuntary
disappearance” is, rendering academic and brings to a close the search for a
definition that the Court undertook in Razon v. Tagitis, supra. He also noted that
the doctrine of command responsibility is a substantive rule that establishes
criminal or administrative liability that is different from the purpose and
approach of the Amparo Rule. Section 10 of R.A. 9851 explicitly makes superiors
criminally liable under the doctrine of command responsibility – liability under
the doctrine of command responsibility is no longer simply administrative (based on
University of Santo Tomas neglect of duty), but is now criminal. At the same time,
he reiterated what was earlier said in Razon v. Faculty of Civil Law Tagitis that
it has never been the intention of the Amparo Rule to determine liability, whether
criminal or administrative – the Court, under the Amparo Rule, 2010 direct that
procedural remedies be Bar Review can only undertaken for the protection of
constitutional rights to life, liberty and security. 8. Canlas v. Napico Homeowners
Ass’n., I – XIII, Inc., 554 SCRA 208 (2008) The threatened demolition of a dwelling
by virtue of a final judgment of the court, is not included among the enumeration
of rights for which the remedy of a writ of amparo is made available. Their claim
to their dwelling, assuming they still have any despite the final and executory
judgment adverse to them, does not constitute right toLiberties vis-à-vis An There
is, therefore, no legal basis for the A Library Of life, liberty and security.
Arsenal Of Arms issuance of the writ of amparo. The Court will not waste its
precious time and effort on matters not covered by the writ.
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Page 98 of 103
Q.
SELF-INCRIMINATION CLAUSE
Under this privilege, a person is free to keep within his breast any incriminatory
matters and he could not be forced to disclose them. If the authorities want to pin
him down, they have to come up with their own proof independent of what might be
concealed by the person himself. Nevertheless, the guarantee is against compelled
testimonial evidence, not object evidence which may include fingerprints, blood
samples, urine samples, DNA samples and the like. When it comes to availing of the
privilege, distinctions have to be made as to whether the person invoking it is an
accused, a mere witness, or a party in a civil suit. While an accused can refuse
altogether to take the witness stand, a witness may only refuse to answer
incriminating questions. If he is the respondent in proceedings in which loss or
forfeiture of property126 or loss of a license or profession127 is a consequence,
then he may also invoke the privilege like an accused. No inference of guilt should
be made from the invocation of the privilege, otherwise it would be useless. The
prosecution is still required to prove guilt by its own evidence, not by seizing
upon the exercise of the right. Further, while the language of the privilege
suggests an absolute right not to be compelled to provide an incriminating answer,
the same is subject, however, to the so-called immunity statutes – the “use or
derivative use” or the “transactional” immunity statutes. The courts have upheld
the validity of such statutes provided they accord the person compelled to testify
a degree of protection coextensive with what is otherwise guaranteed by the
constitutional proscription against self-incrimination.
R.
EXCESSIVE FINES, CRUEL AND INHUMAN PUNISHMENTS
Punishment is supposed to be the price that has to be paid by those found guilty of
crimes against the State – a way of making amends for violation of society’s rules.
It is the manner by which society may somehow exact a form of retribution. The
constitutional guarantee is geared towards seeing to it that whatever penalty is
imposed does not become such that it violates the very notion of a civilized
society where the mandates of substantive due process reigns. Penalties could not
be grossly disproportionate to the infraction of society’s rules.128 Fines should
not be excessive, and other forms of punishments should not be cruel or inhuman
ofdetermined by present day standards. University as Santo Tomas Likewise, just
because a person Faculty ofsent to prison does it mean that he is completely cut
may have been Civil Law off from the world, stripped of all constitutional rights.
He still retains some, though to the extent only Bar Review 2010 that would be
consistent with his status as prisoner.
R
126 127 128
A Library Of (1962) Cabal v. Kapunan, Jr., 6 SCRA 1059 Liberties

Pascual, Jr. v. Board of Medical Examiners, 28 SCRA 344 (1969) See De La Salle
University, Inc. v. Court of Appeals, 541 SCRA 22 (2007)
R B GOROSPE
Page 99 of 103
S. DOUBLE JEOPARDY
The guarantee against double jeopardy is another assurance of fairness – that a
person be not exposed more than once to the danger of being punished for the
commission of the same offense. In this regard, it must be remembered that the
guarantee is in regard to the same offense. Thus, it may be that a single act could
give rise to two or more offenses,129 prosecution for which will not give rise to a
violation of the constitutional proscription. However, if the act gives rise to
violation of a national law and a local ordinance, conviction or acquittal under
either shall be a bar to prosecution for the same act. It has also been noted that
double jeopardy attaches if one is tried by both a military court and a civilian
court over the same act.130 The rule is also that an acquittal puts an end to the
criminal case and the prosecution could not appeal except in case of a mistrial131
or when there is grave abuse of discretion on the part of the judge amounting to
lack or excess of jurisdiction which then renders the resulting judgment void.132
Neither may the prosecution appeal to increase the penalty, though if the accused
himself does appeal, he stands the risk of having the penalty rectified – and
increased!133 And, the employer, too, cannot appeal on behalf of an employee who
has jumped bail.134 1. People v. Laguio, Jr., 518 SCRA 393 (2007) While the
prosecution cannot appeal from a judgment of acquittal or a favorable action on a
demurrer to evidence, it does not necessarily mean that the prosecution is
altogether precluded from questioning the trial court’s disposition. If there was
grave abuse of discretion, then the matter should be elevated not by way of a
petition for review on certiorari under Rule 45 (a mode of appeal) but by means of
the special civil action of certiorari under Rule 65. So, the Court lectured the
prosecution in this case, pointing out as follows: “By this time, it is settled
that the appellate court may review dismissal orders of trial courts granting an
accused’s demurrer to evidence. This may be done via the special civil action of
certiorari under Rule 65 based on the ground of grave abuse of discretion,
amounting to lack or excess of jurisdiction. Such dismissal order, being considered
void judgment, does not result in jeopardy. Thus, when the order of dismissal is
annulled or set aside by an appellate court in an original special civil action via
certiorari, the right of the accused against double jeopardy is not violated.
Unfortunately, what petitioner People of the Philippines, through then Secretary of
Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello,
III, filed with the Court in the present case is an appeal by way of a petition for
review on certiorari under Rule 45 raising a pure question of law, which is
different from a petition for certiorari under Rule 65.”135
E.q., Nierras v. Dacuycuy, 181 SCRA 1 (1990) [bouncing checks], and, People v.
Ortiz-Miyake, 279 SCRA 180 (1997) [illegal recruitment]; and, Ramiscal, Jr. v.
Sandiganbayan, 499 SCRA 375 (2006) [R.A. 3019 and Revised Penal Code]
130 131 132 133 134 129
See separate opinion of Justice Tinga in Gonzales v. Abaya, 498 SCRA 445 (2006).
Galman v. Sanidganbayan, 144 SCRA 43 (1986) People v. Laguio, Jr., 518 SCRA 393
(2007) People v. Rondero, 320 SCRA 383 (1999)
In Philippine Rabbit Bus Lines, Inc. v. People, 427 SCRA 456 (2004), the Court held
that, in accordance with the rule that only the accused may appeal, the employer
cannot, independently of the convicted employee, appeal that aspect relating to its
subsidiary civil liability. Where the latter jumps bail, the former cannot, by
itself alone, undertake to appeal the civil aspect of the judgment. If it were
otherwise allowed, such employer’s appeal would violate the employee’s right
against double jeopardy since the judgment against the latter could become subject
to modification without his consent, appeal opening up the whole case for review.
See, however, People v. Dumlao, Of Liberties vis-à-vis An Arsenal Of Arms A Library
– SCRA – (G.R. No. 168918, 2 March 2009), where the Court entertained a petition
for review on certiorari under Rule 45 from a dismissal of the criminal case after
arraignment, eventually holding: “The cardinal precept is that where there is a
violation of basic constitutional rights, courts are ousted of their jurisdiction.
Where the denial of the fundamental right to due process is apparent, a decision in
disregard of the right is void for lack of jurisdiction. In the instant case, there
was no error of judgment
135
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Page 100 of 103
2. Trinidad v. Office of the Ombudsman, 539 SCRA 415 (2007) Does the rule on double
jeopardy or res judicata apply in preliminary investigations? Nopes. “Res judicata
is a doctrine of civil law and thus has no bearing on criminal proceedings. But
even if petitioner’s argument were to be expanded to contemplate ‘res judicata in
prison grey’ or the criminal law concept of double jeopardy, this Court still finds
it inapplicable to bar the reinvestigation conducted by the Office of the
Ombudsman. For the dismissal of a case during preliminary investigation does not
constitute double jeopardy, preliminary investigation not being part of the trial.”
Accordingly, “[t]he Ombudsman is not precluded from ordering another review of a
complaint, for he or she may revoke, repeal or abrogate the acts or previous
rulings of a predecessor in office. And Roxas v. Hon. Vasquez teaches that new
matters or evidence are not prerequisites for a reinvestigation, which is simply a
chance for the prosecutor, or in this case the Office of the Ombudsman, to review
and re-evaluate its findings and the evidence already submitted.” 3. People v.
Sandiganbayan, 559 SCRA 449 (2008) Could a violation of basic rules of Statutory
Construction constitute grave abuse of discretion? In this case, the Court said
yes. Accordingly, a judgment of acquittal was deemed useless. The Court declared:
“The Sandiganbayan, Fourth Division held that the qualifications for a position are
provided by law and that it may well be that one who possesses the required legal
qualification for a position may be temporarily disqualified for appointment to a
public position by reason of the one-year prohibition imposed on losing candidates.
However, there is no violation of Article 244 of the Revised Penal Code should a
person suffering from temporary disqualification be appointed so long as the
appointee possesses all the qualifications stated in the law. There is no basis in
law or jurisprudence for this interpretation. On the contrary, legal
disqualification in Article 244 of the Revised Penal Code simply means
disqualification under the law.” Accordingly, the trial court, “in disregarding
basic rules of statutory construction, acted with grave abuse of discretion. Its
interpretation of the term legal disqualification in Article 244 of the Revised
Penal Code defies legal cogency.” 4. Castro v. People, 559 SCRA 676 (2008) In this
case, a school assistant head master advised a parent that talking to another
parent who had earlier filed against the school was “dangerous.” This resulted in
his being charged with, and convicted of, grave oral defamation. He was found
guilty by the Metropolitan Trial Court. On appeal, the Regional Trial Court
affirmed the finding of facts but found that the offense was only for slight oral
defamation, and since the complaint was filed almost five (5) months from
discovery, the RTC ruled that prescription had set in. It acquitted the accused.
The Court of Appeals found that the RTC committed grave abuse University of Santo
Tomas of discretion when it misapprehended the totality ofCivil Law Faculty of the
circumstances. The CA reinstated the MeTC decision. Is the CA correct? No. An
acquittal, whether ordered by the trial or appellate court, is final and
unappealable on the ground of double Bar Review 2010 jeopardy. The only exception
is when the trial court acted with grave abuse of discretion or, when there was
mistrial. In this particular case, prosecution premised its allegation of grave
abuse of discretion on the RTC’s “erroneous” evaluation and assessment of the
evidence presented by the parties. This would only involve errors of judgment (or
those involving misappreciation of evidence or errors of law), not errors of
jurisdiction (or those involving the
B
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but a denial of due process resulting in loss of jurisdiction. Respondent Dumlao

would not be placed in double jeopardy because, from the very beginning, the
Sandiganbayan had acted without jurisdiction. Precisely, any ruling issued without
jurisdiction is, in legal contemplation, necessarily null and void Of does not
exist. Otherwise put,Andismissal of the case below was invalid for lack of a A
Library and Liberties vis-à-vis the Arsenal Of Arms fundamental prerequisite, that
is, due process. In rendering the judgment of dismissal, the trial court acted
without or in excess of jurisdiction, for a judgment which is void for lack of due
process is equivalent to excess or lack of jurisdiction. This being the case, the
prosecution is allowed to appeal because it was not given its day in court.”
R B GOROSPE
Page 101 of 103
commission of grave abuse of discretion). In fine, since no errors of jurisdiction

were raised, the CA committed a mistake in taking cognizance of the petition and in
reviewing the factual findings of the RTC. This time, it is the turn of the RTC
judgment to be reinstated. Is the school official then completely off the hook? No,
not necessarily. The Court said that at most, he could have been liable for damages
under Article 26 of the Civil Code for “intriguing to cause another to be alienated
from his friends.” He was then reminded that, “as an educator, he is supposed to be
a role model for the youth. As such, he should always act with justice, give
everyone his due and observe honesty and good faith.” (By what you preach you
should also abide.) Be careful, therefore, what you advise others about the dangers
that lurk when they talk to someone. 5. Herrera v. Sandiganbayan, 579 SCRA 32
(2009) In this case, two policemen were charged before the Sandiganbayan for the
death of two men. During arraignment, they pleaded not guilty, then filed a joint
petition for bail raising the issue of lack of jurisdiction on the ground that the
prosecution failed to allege in the informations that the crimes were committed by
the petitioners “in relation to their office.” Whereupon the Sandiganbayan ordered
the amendment of the informations, after which the accused were arraigned anew.
They entered pleas of not guilty and also withdrew their objections to the issue of
lack of jurisdiction. After trial, they were convicted of murder. Were they placed
in double jeopardy? The Court held that the accused were not placed in double
jeopardy in pleading not guilty under the amended informations. For a claim of
double jeopardy to prosper, the following requisites must concur: (1) there is a
complaint or information or other formal charge sufficient in form and substance to
sustain a conviction; (2) the same is filed before a court of competent
jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the
accused is convicted or acquitted or the case is otherwise dismissed or terminated
without his express consent. Here, the accused pleaded not guilty to the original
informations and thereafter raised the issue of lack of jurisdiction on the ground
that the prosecution failed to allege in the informations that the crimes were
committed “in relation to their office” which then resulted in the Sandiganbayan
order for the amendment of the informations. The first requirement for double
jeopardy to attach – that the informations were valid – has not been complied with.
Likewise, the fourth element was lacking. Petitioners cannot be validly convicted
on the basis of the original information as the prosecution failed to allege in the
informations that the crimes were committed “in relation to their office.”
Petitioners were thus not placed in danger of being convicted when they entered
their plea of not guilty to the insufficient information.
University of 6. People v. Dumlao, 580 SCRA 409 (2009)
Where a Motion to Dismiss/Quash is based on the ground that the “facts charged do
not constitute an offense,” the Sandiganbayan cannot Bar Review 2010case based on
insufficiency of evidence. proceeded to dismiss the The Court reminded everyone
that insufficiency of evidence is not one of the grounds of a Motion to Quash.
“Insufficiency of evidence is a ground for dismissal of an action only after the
prosecution rests its case.” So what would be the consequence? “In the case under
consideration, the Sandiganbayan dismissed the case against respondent for
insufficiency of evidence, even without giving the prosecution the opportunity to
present its evidence. In so doing, it violated the prosecution’s right to due
process. It deprived the prosecution of its opportunity to prosecute its case and
to prove the accused’s culpability. A Library Of Liberties vis-à-vis An Arsenal Of
Arms It was therefore erroneous for the Sandiganbayan to dismiss the case under the
premises. Not only did it not consider the ground invoked by respondent Dumlao; it
even dismissed the case on a ground not
Santo Tomas Faculty of Civil Law
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Page 102 of 103
raised by him, and not at the appropriate time. The dismissal was thus without
basis and untimely.” The long and short of it? “The first jeopardy has not yet
attached. There is no question that four of the five elements of legal jeopardy are
present. However, we find the last element – valid conviction, acquittal, dismissal
or termination of the case – wanting. As previously discussed, the Sandignabayan
violated the prosecution’s right to due process. The prosecution was deprived of
its opportunity to prosecute its case and to prove the accused’s culpability. The
dismissal was made in a capricious and whimsical manner. The trial court dismissed
the case on a ground not invoked by the respondent. The Sandiganbayan dismissed the
case for insufficiency of evidence, while the ground invoked by the respondent was
that the facts charged did not constitute an offense. The dismissal was clearly
premature, because any dismissal based on insufficiency of evidence may only be
made after the prosecution rests its case and not at any time before then. A purely
capricious dismissal of an information deprives the State of a fair opportunity to
prosecute and convict. It denies the prosecution a day in court. It is void and
cannot be the basis of double jeopardy.”
T. EX POST FACTO LAWS AND BILLS OF ATTAINDER

The constitutional proscription against ex post facto laws and bills of attainder
ensures fundamental fairness. No man should be punished for acts which when done
were perfectly lawful. Due process requires at the very least that before a person
could be held to account for what alleged wrong he committed, he was forewarned of
the consequences of his act. Both ex post facto laws and bills of attainder are
retroactive in their application. They impose a penalty or disability after the act
has been committed when no such disadvantageous effect was yet present when the act
was done. Worse, in the case of bills of attainder, the sanction is imposed without
judicial proceedings. Thus, there is also a violation of the principle of
separation of powers – Congress legislates but it is the judiciary that
adjudicates. It has also been observed that, “[a]s the text of the Clause makes
clear, it ‘is a limitation upon the powers of the Legislature, and does not of its
own force apply to the Judicial Branch of government.’” Nevertheless, “limitations
on ex post facto judicial decisionmaking are inherent in the notion of due
process.” Indeed, “[d]eprivation of the right to fair warning, . . . can result
both from vague statutory language and from an unforeseeable and retroactive
judicial expansion of statutory language that appears narrow and precise on its
face.”136 1.
University of Santo Tomas Salvador v. Mapa, 539 SCRA 34 (2007) Civil Law Faculty of
In this case, the Court claimed responsibility for adding two other types of ex
post facto laws. “An Bar Review 2010 ex post facto law has been defined as one –
(a) which makes an action done before the passing of the law and which was innocent
when done criminal, and punishes such action; or (b) which aggravates a crime or
makes it greater than it was when committed; or (c) which changes the punishment
and inflicts a greater punishment than the law annexed to the crime when it was
committed; or (d) which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the commission of the
offense in order to convict the defendant. This Court added two (2) more to the
list, namely: (e) that which assumes to regulate civil rights and remedies only but
in effect imposes a penalty A Library Of Liberties lawful; or An Arsenal Of Arms or
deprivation of a right which when done was vis-à-vis (f) that which deprives a
person accused of a
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136
Rogers v. Tennessee, 532 U.S. 451 (2001)

R B GOROSPE
Page 103 of 103
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.” And
what are penal laws anyway? “The constitutional doctrine that outlaws an ex post
facto law generally prohibits the retrospectivity of penal laws. Penal laws are
those acts of the legislature which prohibit certain acts and establish penalties
for their violations; or those that define crimes, treat of their nature, and
provide for their punishment.” Thus, mere administrative issuances governing the
mission and operation of a committee could not be considered as a penal law.
“Administrative Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee
on Behest Loans, and provides for its composition and functions. It does not mete
out penalty for the act of granting behest loans. Memorandum Order No. 61 merely
provides a frame of reference for determining behest loans. Not being penal laws,
Administrative Order No. 13 and Memorandum Order No. 61 cannot be characterized as
ex post facto laws.” The Ombudsman cannot, therefore, declare them to be ex post
facto. 2. Valeroso v. People, 546 SCRA 450 (2008) R.A. No. 8294 lowered the penalty
for illegal possession of firearms but at the same time imposed a penalty of fine
which was not found in P.D. No. 1866. Could this new penalty be imposed on someone
who committed the crime before the amendment, and if so, would this not be a form
of an ex post facto law? In Gonzales v. Court of Appeals, 277 SCRA 518 (1997), as
well as in Cadua v. Court of Appeals, 312 SCRA 703 (1999), the Court said the new
penalty may be imposed since an appeal throws the entire case open for review. One
may wonder, however, how such reasoning could provide a satisfactory answer to the
question as to why the imposition of the new penalty (fine) is not a violation of
the proscription against ex post facto laws. Would it not be a case of a law “which
changes the punishment and inflicts a greater punishment than the law annexed to
the crime when it was committed”? In Valeroso, the Court finally pronounced that
there is no violation since overall the resulting penalty is still beneficial to
the accused. The Court said: “Although an additional fine of P15,000.00 is imposed
= by R.A. No. 8294, the same is still advantageous to the accused, considering that
the imprisonment is lowered to prision correccional in its maximum period from
reclusion temporal in its maximum period to reclusion perpetua under P.D. No.
1866.” Finally, a reason that could at least be more convincing. If one were to
simply follow and abide by his adversary’s definition of the problem, or his
characterization of the issue, then he would have lost half the battle. One must
know how to see things in proper context and in appropriate light in order not to
be blindly led or misled. Others may want you to take University of Santo Tomas the
path they may prefer or have gotten accustomed to but then it may be better to take
the road less Faculty Bar . . . and Law traveled as it might make all the
difference in the of Civil in your life.137 re latio n s h ip w ith th e Law .
Bar Review 2010
R
137
NG B

“Two roads diverged in a wood, and I – I took the one less traveled by, And that
has made all the difference.” (Robert Frost, “The Road Not Taken” [1916])

Consti Law 2010 Updates Gorospe

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NOTES, UPDATES AND TEASERS

CONSTITUTIONAL LAW * (Bar Review 2010)

Francisco v. Permskul, 173 SCRA 324 (1989)

University of Santo Tomas Faculty of Civil Law Bar Review 2010

Parenthetically, and by way of an excursive exercise in the tiring and tedious

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

a perspective of trepidation. March on with confidence, head up high, a smile on

THE FUNDAMENTAL POWERS AND THE BILL OF RIGHTS

University of Santo Tomas Faculty of Civil Law Bar Review 2010

See Calalang v. Williams, 70 Phil. 726 (1940)

A Library Of Liberties vis-à-vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

more declared: “The true role of Constitutional Law is to effect an equilibrium

THE FUNDAMENTAL POWERS

Faculty of Civil Law Bar Review 2010

Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530

A Library Of Liberties vis-à-vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

safe. It therefore became necessary to remove these terminals to dissipate the

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

A Library Of Liberties vis-à-vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

demonstrating the alleged confiscatory effect of the provision in question, there

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Then, harking back to the traditional attribution of destructive power to the

Bar Review 2010

A Library Of Liberties vis-à-vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

A Library Of Liberties vis-à-vis An Arsenal Of See People v. Marti, 193 SCRA 57

West Virginia State Board of Education v. Barnette, 319 US 624 (1943)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

And, if there is a hierarchy of rights, there is also a hierarchy of evidentiary

Manalo v. Roldan-Confesor, 215 SCRA 808 (1992)

“[P]ilotage as a profession has taken on the nature of a property right.” (Corona

A Library Of Liberties vis-à-vis An Mabuhay Textile Mills Corporation v. Ongpin,

Terminal Facilities and Services Corporation v. Philippine Ports Authority, 378

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

A Library Of Liberties vis-à-vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

discriminations based on gender or illegitimacy of children. Under the intermediate

University of Santo Tomas Faculty of Civil Law Bar Review 2010

Yao v. Court of Appeals, 344 SCRA 202 (2000)

A Library Of Liberties vis-à-vis An Arsenal Of Arms

Visayan Refining Co. v. Camus, 40 Phil. 550 (1919)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

of extrajudicial confessions,49 as well as the reasonable doubt standard in

A of Labor and Employment, 196 vis-à-vis An Bautista v. Secretary Library Of

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

the term ‘intersexuality’ to apply to ‘human beings who cannot be classified as

A Library Of Liberties vis-à-vis An Arsenal Of Arms

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Faculty of Civil Law Bar Review 2010

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

documents from proceedings elsewhere is not a consideration sufficiently material

University of by petitioner for respondent to surrender all his Before 25 November

CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2010)

Where a judge entertains an unorthodox belief system – such as believing in