ust gn pol law2

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UST GOLDENNOTES2011

G. BILL OF RIGHTS

a. FUNDAMENTAL POWEOF THE STATEQ: What are the fundamental powers of the State?

A:

1. Police Power2. Power of Eminent Domain3. Power of Taxation

Q: What are the similarities among thefundamental powers of the State?

A:

1. They are inherent in the State and may beexercised by it without need of expressconstitutional grant.

2. They are not only necessary but indispensable.The State cannot continue or be effectiveunless it is able to exercise them.

3. They are methods by which the State interfereswith private rights.

4. They all presuppose an equivalentcompensation for the private rights interferedwith.

5. They are exercised primarily by the legislature.

Q: What are the common limitations of thesepowers?

A:

1. May not be exercised arbitrarily to the prejudiceof the Bill of Rights

2. Subject at all times to the limitations andrequirements of the Constitution and may inproper cases be annulled by the courts, i.e.when there is grave abuse of discretion.

Q: How do these powers differ from one another?

A:

Purpose

Property Property is Property istaken is taken for taken for

destroyed public use public use

Compensat ion

Intangible; Protection and Value of thegeneral public propertywelfare improvements expropriated

1. POLICE POWER

Q: What are the characteristics of police power ascompared to the powers of taxation and eminentdomain?

A: Police power easily outpaces the other twopowers.It regulates not only property, but also the liberty of

persons. Police power is considered the mostpervasive, the least limitable, and the most demandingof the three powers. It may be exercised as long as theactivity or property sought to be regulated has somerelevance to the public welfare. (Gerochi v. Departmentof Energy,G. R. 159796, July 17, 2007)

Q: What are the aspects of police power?

A: Generally, police power extends to all the great public needs. However, its particular aspects are thefollowing:

1. Public health2. Public morals3. Public safety4. Public welfare

Q: Who exercises police power?

A:

GR: Police power is lodged primarily in thenationallegislature.

XPN: By virtue of a valid delegation oflegislativepower, it may be exercised by the:

1. President2. Administrative bodies

3. Lawmaking bodies on all municipal levels,including the barangay. Municipal governmentsexercise this power under the general welfareclause. (Gorospe, Constitutional Law: Notesand Readings on the Bill of Rights, Citizenshipand Suffrage, Vol. 2.)

Q: What are the requisites for the valid exercise ofpolice power by the delegate?

PolicePower Taxation

Eminent

DomainExtent ofpower

RegulatesAffects only Affects only

liberty and propertyrights property rights

property

Power exerc ised by who m

Exercisedonly

Exercisedonly Maybe

by the by the exercised bygovernment government private entities


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A:

1. Express grant by law2. Must not be contrary to law

3. GR: Within territorial limits of LGUsXPN:When exercised to protect watersupply(Wilson v. City of Mountain LakeTerraces,417 P.2d 632, 1966)

Q: Can anyone compel the government toexercise police power?

A: No. The exercise of police power lies in thediscretion of the legislative department. The onlyremedy against legislative inaction is a resort to thebar of public opinion, a refusal of the electorate toturn to the legislative members who, in their view,have been remiss in the discharge of their duties.

Q: Can the courts interfere with the exercise of

police power?

A: No. If the legislature decides to act, the choiceofmeasures or remedies lies within its exclusivediscretion, as long as the requisites for a validexercise of police power have been complied with.

Q: What are the tests to determine the validity ofa police measure?

A:

1. Lawful subject The interests of the publicgenerally, as distinguished from those of a

particular class, require the exercise of thepolice power

2. Lawful means The means employed arereasonably necessary for theaccomplishment of the purpose and notunduly oppressive upon individuals

2. EMINENT DOMAIN

Q: What are the conditions for the exerciseof the power of eminent domain?

A:1. Taking of private property2. For public use3. Just compensation4. Observance of due process

Q: Who exercises the power of eminentdomain?

A: Congress. However, the following mayexercise this power by virtue of a valid delegation:

1. The President of the Philippines2. Various local legislative bodies3. Certain public corporations like the Land

Authority and National Housing Authority

4. Quasipublic corporations like thePhilippine National Railways

Q: Distinguish the between the power ofexpropriation as exercised by Congress andthe power of expropriation as exercised bydelegates.

A:When exercised by Congress, the power ispervasive and allencompassing but whenexercised by delegates, it can only be broad asthe enabling law and the conferring authoritieswant it to be.

As to the question of necessity, the same is a

political question when the power is exercised byCongress. On the other hand, it is a judicialquestion when exercised by delegates. Thecourts can determine whether there is genuinenecessity for its exercise, as well as the value ofthe property.

Q: What are the requisites for a valid taking?

A: PMAPO

1. The expropriator must enter a Privateproperty

2. Entry must be for more than a Momentaryperiod

3. Entry must be under warrant or color oflegal Authority

4. Property must be devoted to Public use orotherwise informally appropriated orinjuriously affected

5. Utilization of property must be in such away as to Oust the owner and deprive himof beneficial enjoyment of the property(Republic v. vda. De Castellvi,G.R. No. L20620, Aug. 15, 1974)

Q: What properties can be taken?

A:All private property capable of ownership,including services.

Q: What properties cannot be taken?

A: Money and choses in action, personal right notreduced in possession but recoverable by a suitat law, right to receive, demand or recover debt,demand or damages on a cause of action excontractu or for a tort or omission of duty.


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Q: Distinguish eminent domain from destruction fromnecessity.

A:

Q: Does the requisite of public use meanuse by the public at large?

A: No. Whatever may be beneficially employedfor the general welfare satisfies the requirement.Moreover, that only few people benefits from theexpropriation does not diminish its publicuse

character because the notion of public use nowincludes the broader notion of indirect public benefitor advantage.(Manosca v. CA, G.R. 166440, Jan.29, 1996).

Q: What is just compensation?

A: It is the full and fair equivalent of the propertytaken from the private owner (owners loss) by theexpropriator. It is usually the fair market value(FMV) of the property and must includeconsequential damages (damages to the otherinterest of the owner attributed to the expropriation)minus consequential benefits (increase in the valueof other interests attributed to new use of theformer property).

Note: FMV is the price fixed by the parties willingbut notcompelled to enter into a contract of sale.

Q: Does compensation have to be paid inmoney?

A: GR: Yes.

XPN: In cases involving CARP, compensationmaybe in bonds or stocks, for it has been held as a non traditional exercise of the power of eminent domain.It is not an ordinary expropriation where only aspecific property of relatively limited area is sought tobe taken by the State from its owner for a specificand perhaps local purpose. It is rather a revolutionarykind of expropriation

(Association of Small Landowners in the

Philippines, Inc. v. Secretary of Agrarian Reform,G.R. No. 78742, 14 July 1989).

Q: When should assessment of the value ofthe property be determined?

A: The value of the property must be determinedeither at the time of taking or filing of thecomplaint, whichever comes first.(EPZA v. Dulay,G.R. No. 59603, April 29, 1987).

Q: Does nonpayment of just compensationentitle the private owner to recoverpossession of the expropriated property?

A:

GR: Nonpayment by the government does notentitle private owners to recover possession ofthe property because expropriation is an in remproceeding, not an ordinary sale, but only entitlethem to demand payment of the fair market valueof the property.

XPNS:

A When there is deliberate refusal to pay just

compensationBGovernments failure to pay compensation within

5 years from the finality of the judgment in theexpropriation proceedings. This is in connectionwith the principle that the government cannotkeep the property and dishonor the judgment.(Republic v. Lim, G.R. No. 161656, June 29,2005)

Q: Is the owner entitled to the payment ofinterest? How about reimbursement of taxespaid on the property?

A: Yes, the owner is entitled to the payment ofinterest from the time of taking until justcompensation is actually paid to him. Taxes paidby him from the time of the taking until thetransfer of title (which can only be done afteractual payment of just compensation), duringwhich he did not enjoy any beneficial use of theproperty, are reimbursable by the expropriator.

Eminent domain

Destruction from

necessity

Who can exercise

Only authorized May be validly

public entities or undertaken by private

public officials individuals

Kindof r igh t

Right of selfdefense,

Public right

selfpreservation,

whether applied to

persons or to property

Requirement

Conversion of

No need for conversion;

no just compensation

property taken for

but payment in the form

public use; payment

of damages whenof just compensation

applicable

Benefic iary

State/public Private


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Q: What legal interest should be used in thecomputation of interest on just compensation?

A: An interest of 12% per annum on the justcompensation due the landowner. (LBP v.WycocoG.R. No. 140160, January 13, 2004)

3. TAXATION

Q: What are taxes and what is taxation?

A: Taxes are:1. Enforced proportional contributions from

persons and property2. Levied by the State by virtue of its

sovereignty3. For the support of the government4. For public needs

Taxation is the method by which thesecontributions are exacted. (Gorospe,ConstitutionalLaw: Notes and Readings on the Bill of Rights,Citizenship and Suffrage, Vol. 2)

Q: What is the source of the obligation to paytaxes?

A: Payment of taxes is an obligation based on law, and not on contract. It is a duty imposed upon theindividual by the mere fact of his membership in thebody politic and his enjoyment of the benefitsavailable from such membership.

Note: Except only in the case of poll (community)taxes, nonpayment of a tax may be the subject ofcriminal prosecution and punishment. The accusedcannot invoke the prohibition against imprisonmentfor debt as taxes are not considered debts.

Q: What are the matters left to the discretion ofthe legislature?A:

1. Whether to tax in the first place2. Whom or what to tax

3. For what public purpose4. Amount or rate of the tax

Q: What are the limitations, in general, onthe power of taxation?

B: Inherent and Constitutional limitations.

Q: What are inherent limitations?A: Public purpose

Nondelegability of power

3. Territoriality or situs of taxation4. Exemption of government from taxation5. International comity

Q: What are Constitutional limitations?

A:1. Due process of law (Art. III, Sec.1)

2. Equal protection clause (Art. III, Sec.1)3. Uniformity, equitability and progressive

system of taxation (Art. VI, Sec 28)

4. Nonimpairment of contracts (Art. III, Sec10)

5. Nonimprisonment for nonpayment of poltax (Art. III, Sec. 20)

6. Revenue and tariff bills must originate in theHouse of Representatives (Art I,Sec. 7)

7. Noninfringement of religious freedom(Art. III, Sec.4)

8. Delegation of legislative authority to the

President to fix tariff rates, import and exporquotas, tonnage and wharfage dues

9. Tax exemption of properties actually, directlyand exclusively used for religious, charitableand educational purposes (NIRC, Sec 30)

10. Majority vote of all the members of Congressrequired in case of legislative grant of taxexemptions

11. Nonimpairment of SCs jurisdiction in taxcases

12. Tax exemption of revenues and assets ofincluding grants, endowments, donations o

contributions to educational institutions

Q: Do local government units have the power oftaxation?

A: Yes. Each LGU shall have the power to createitsown sources of revenues and to levy taxes, fees andcharges subject to such guidelines and limitations asthe Congress may provide, consistent with the basicpolicy of local autonomy. Such taxes, fees, andcharges shall accrue exclusively to the locagovernments (Sec.5, Art. X).

Q: Should there be notice and hearing for theenactment of tax laws?

A: From the procedural viewpoint, due processdoesnot require previous notice and hearing before a lawprescribing fixed or specific taxes on certain articlesmay be enacted. But where the tax to be collected isto be based on the value of


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taxable property, the taxpayer is entitled to benotified of the assessment proceedings and to beheard therein on the correct valuation to be giventhe property.

Q: What is the meaning of uniformity intaxation?

A: It refers to geographical uniformity, meaning itoperates with the same force and effect in everyplace where the subject of it is found.

Q: What is a progressive system of taxation?

A: This means that the tax rate increases as thetax base increases.

Q: What is double taxation?

A: It occurs when:1. Taxes are laid on the same subject2. By the same authority3. During the same taxing period4. For the same purpose

Note: There is no provision in the Constitutionspecifically prohibiting double taxation, but it willnot be allowed if it violates equal protection.

(Gorospe, Constitutional Law: Notes and Readingson the Bill of Rights, Citizenship and Suffrage, Vol.2)

Q: What are the kinds of tax exemptions?

A: Tax exemptions may either be:1. Constitutional2. Statutory

Q: Once an exemption is granted by thelegislature, may such exemption be revoked atwill?

A:

1. If exemption is granted gratuitously revocable

2. If exemption is granted for valuableconsideration (nonimpairment ofcontracts)

irrevocable

Q: What is the nature of a license fee?

A: Ordinarily, license fees are in the nature of theexercise of police power because they are in theform of regulation by the State and considered as amanner of paying off administration costs.However, if the license fee is higher than the costof regulating, then it becomes a form of taxation(ErmitaMalate Hotel and Motel Operators Assoc.,

Inc. vs. City Mayor of Manila, G.R. No. L24693,Oct. 23, 1967).

b. PRIVATE ACTS AND THE BILLOF RIGHTS

Q: What is the Bill of Rights?

A: It is the set of prescriptions setting forth thefundamental civil and political rights of theindividual, and imposing limitations on the powersof government as a means of securing theenjoyment of those rights.

Q: When can the Bill of Rights be invoked?

A: In the absence of governmental interference,the liberties guaranteed by the Constitution cannotbe invoked against the State. The Bill of Rightsguarantee governs the relationship between the

individual and the State. Its concern is not therelation between private individuals. What it does isto declare some forbidden zones in the privatesphere inaccessible to any power holder. (Peoplev. Marti, G.R. No. 81561, Jan. 18,1991)

Q: Can the Bill of Rights be invoked againstprivate individuals?

A: No. In the absence of governmentalinterference, the liberties guaranteed by theConstitution cannot be invoked. Put differently, the

Bill of Rights is not meant to be invoked againstacts of private individuals. (Yrasegui vs.PAL,G.R.No. 168081, Oct. 17, 2008)

Note: However, the Supreme Court inZulueta v.CA,

G.R. No. 107383, Feb. 20 1996, where thehusband invoked his right to privacy ofcommunication and correspondence against aprivate individual, his wife, who had forcibly takenfrom his cabinet and presented as evidenceagainst him documents and private

correspondence, held these papers inadmissible inevidence, upholding the husbands right to privacy.

c. DUE PROCESS

Q: What is due process?

A: Due process means:1. That there shall be a law prescribed in

harmony with the general powers of thelegislature

2. That it shall be reasonable in its operation


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3. That it shall be enforced according to theregular methods of procedure prescribed,and

4. That it shall be applicable alike to allcitizens of the State or to all of a classadminista


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3. That it shallbe enforced according to XPN: In cases where the right to appeal is

the regular methods of procedureguaranteed by the Constitution (Art. VIII,

Sec.prescribed, and XIV) or by a statute.

4. That it shall be applicable alike to allcitizens of the State or to all of a class. Q: Distinguish due process inadministrative

(People v. Cayat, G.R. No. L45987, May

proceedings from due process in

udicial5, 1939) proceeding.

Q: What are the requirements of due process in A:udicial proceedings? ADMINISTRATIVE JUDICIAL

A: Whether in civil or criminal judicialEssence

Opportunity to explain A day in court

proceedings, due process requires that there be:ones

side

1. An impartial and disinterested court

MeansUsually through

seekingSubmission of

pleadings

clothed by law with authority to heara reconsideration of

the and oral arguments

and determine the matter before it. ruling or the actiontaken, or appeal to aNote: Test of impartiality is whether the superior authorityjudges intervention tends to prevent the Notice and Hearingproper presentation of the case or the en exercs ng quas o are essen a :

ascertainment of the truth.udicia

l function 1. Notice

2. Jurisdiction lawfully acquired over the

(PhilComSat v.

Alcuaz, 2. HearingG.R. No. 84818, Dec.

18,

defendant or the property which is the198

9)subject matter of the proceeding Note: The assistance of counsel is not

indispensable3. Notice and opportunity to be heard be to due process in forfeiture proceedings since suchgiven the defendant proceedings are not criminal in nature. Moreover, the

strict rules of evidence and procedure will not apply4. Judgment to be rendered after lawful in administrative proceedings like seizure and

hearing, clearly explained as to the forfeiture proceedings. What is important is that thefactual and legal bases (Art. VII, Sec. 14, parties are afforded the opportunity to be heard and

the decision of the administrative authority is based1987 Constitution)on substantial evidence. (Feeder International Line,

Note:An extraditee does not have the right to notice

Pte. Ltd. v. CA, G . R

.N o . 9 4 2 6 2

, M a y 3 1 ,1 9 9 1 )

and hearing during the evaluation stage of anextradition proceeding. The nature of the right being

Q: What is the nature of procedural due processclaimed is nebulous and the degree of prejudice anin student discipline

proceedings?extraditee allegedly suffers is weak. (US v. Purganan,G.R. No. 148571, Sept. 24, 2002) A: Student discipline proceedings may be

Note: Pilotage as a profession is a property right summary and crossexamination is not anprotected by the guarantee of due process. (Corona essential part thereof. To be valid however, thev. United Harbor Pilots Association of the Philippines, following requirements must be met:G.R. No. 111953, Dec.12, 1987) 1. Written notification sent to the

Note: When a regulation is being issued underthe

student/s informing the nature andcause of any accusation against

quasilegislative authority of an administrative him/her;agency,the requirements of notice, hearing and 2. Opportunity to answer the charges,publication must be observed. (Commissioner of with the assistance of a counsel, if soInternal Revenue v. CA, G.R. No. 119761, Aug. 29,

desired;1996) 3. Presentation of ones evidence andQ: Is the right to appeal part of due process? examination of adverse evidence;


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National University, G.R. No. L68288,July 11, 1986)

5. The student has the right to be 2. Procedural Due Processinformed of theevidence against him

6. The penalty imposed must be Q: What are the fundamental elements of

proportionate to the offense. procedural due process?Q: What are the instances when hearings arenot A:

necessary? 1.Notice (to be meaningful must be astotime and place)

A: 2. Opportunity to be heard1. When administrative agencies are 3. Court/tribunal must have jurisdiction

exercising their quasilegislative

functions.Q: Does due process require a trialtype

2.Abatement of nuisanceper se. proceeding?3. Granting by courts of provisional

remedies. A: No. The essence of due process is to be found

4. Cases of preventive suspension. in the reasonable opportunity to be heard and to5. Removal of temporary employees in the submit any evidence one may have in support of

government service. ones defense. To be heard does not always

Issuance of warrants of distraint and/or mean verbal arguments in court. One may belevy by the BIR Commissioner. heard also through pleadings. Where opportunity

7. Cancellation of the passport of a person to be heard, either through oral arguments orcharged with a crime. pleadings, is accorded, there is no denial of due

Suspension ofabanks operations by process (Zaldivar v. Sandiganbayan, G.R. No. L

the Monetary Board upon aprima facie 32215, Oct. 17, 1988).finding of liquidity problems in suchbank. Note: The meetings in the nature of consultations

and conferences cannot be considered as valid1. Procedural and Substantive Due Process substitutes for the proper observance of notice and

ear ng qu ta e an ng orporat on v. , . .

Q: What are the two aspects of due process?No. 102467, June 13,

1987).

A:

3. Constitutional and Statutory Due ProcessSUBSTANTIVE DUE PROCEDURAL DUEPROCE

SSPROCES

SQ: Differentiate constitutional due process fromThis serves as a Serves as a restriction on

restriction on the actions of judicial and statutory due process.governments law and quasijudicial agencies ofrulemaking powers the government A:

Requisi tes Constitutional dueStatutory dueprocess

. e interests of the 1. Impartial court or process

publicingeneral

, as tribunal clothed with Protects the individual While found in thedistinguished from judicial power to hear

from the government LaborCod

e andthose of a particular and determine the

andassure

s him of his Implementing Rulesclass, require the

matters before

it.

rights in criminal, civil orprotect

s employeesintervention of the

2.

Jurisdiction properly administrative from being unjustlystat

e acquired over theproceeding

s terminated without just2. The means employed person of the cause after notice andare reasonably defendant and over hearing (Agabon v.necessar

y for the property which is the NLRC, G.R. No. 158693,accomplishment of subject matter of the

November 17,

2004)the purpose and not

proceedin

gundul

y oppressive 3. Opportunity to beupon individuals.

heard


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4. Judgment rendered 4. Hierarchy of Rightsupon lawful hearing

andbase

d on Q: Is there a hierarchy of constitutional rights?evidence adduced.


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A: Yes. While the Bill of Rights also protectsproperty rights, the primacy of human rights over

property rights is recognized. Property and propertyrights can be lost thru prescription; but human rightsare imprescriptible. In the hierarchy of civil liberties,the rights of free expression and of assemblyoccupy a preferred position as they are essential to

the preservation and vitality of our civil and politicalinstitutions (Philippine Blooming Mills EmployeesOrganization v. Philippine Blooming Mills Co., Inc.,G.R. No. L31195 June 5, 1973).

5. Judicial Standards of Review

Q: Given the fact that not all rights and freedomsor liberties under the Bill of Rights and othervalues of society are of similar weight andimportance, governmental regulations that affectthem would have to be evaluated based ondifferent yardsticks, or standards of review.

What are these standards of review?

A:

1. Deferential review laws are upheld if theyrationally further a legitimate governmentalinterest, without courts seriously inquiringinto the substantiality of such interest andexamining the alternative means by whichthe objectives could be achieved

2. Intermediate review the substantiality ofthe governmental interest is seriously looked

into and the availability of less restrictivealternatives are considered.

6.Strict scrutiny the focus is on thepresence of compelling, rather thansubstantial governmental interest and onthe absence of less restrictive means forachieving that interest (Separateopinion ofJustice Mendoza in Estrada v.Sandiganbayan, G.R. No. 148965, Feb. 26,2002)

7.

8.Void

for

Vagueness Doctrine

Q: Explain the void for vagueness doctrine?

A: It holds that a law is vague when it lacks comprehensive standards that men of commonintelligence must necessarily guess at its commonmeaning and differ as to its application. In suchinstance, the statute is repugnant to the Constitutionbecause:

1. It violates due process for failure toaccord persons, especially the partiestargeted by it, fair notice of what conductto avoid

2. It leaves law enforcers an unbridleddiscretion in carrying out its provisions(People v. de la Piedra, G.R. No.128777, Jan. 24, 2001)

Q: What is the Overbreadth Doctrine?

A: The overbreadth doctrine decrees that agovernmental purpose may not be achieved bymeans which sweep unnecessarily broadly andthereby invade the area of protected freedoms.

Note: It is an analytical tool developed for testing ontheir face statutes in free speech cases. Claims offacial over breadth are entertained in cases involvingstatutes which, by their terms, seek to regulate onlyspoken words and again, that overbreadth claims, if

entertained at all, have been curtailed when invokedagainst ordinary criminal laws that are sought to beapplied to protected conduct.

Q: Can criminal statutes be declared invalidfor being overbroad?

A: No. The overbreadth doctrine is not intendedfor testing the validity of a law that reflectslegitimate state interest in maintainingcomprehensive control over harmful,constitutionally unprotected conduct. Claims of

facial overbreadth are entertained in casesinvolving statutes which, by their terms, seek toregulate only spoken words and again, thatoverbreadth claims, if entertained at all, havebeen curtailed when invoked against ordinarycriminal laws that are sought to be applied toprotected conduct. (Romualdez v. COMELEC,G.R.No. 167011, Dec. 11, 2008)

Note: The most distinctive feature of theoverbreadthtechnique is that it marks an exception to some of theusual rules of constitutional litigation. In overbreadthanalysis, those rules give way; challenges are

permitted to raise the rights of third parties; and thecourt invalidates the entire statute "on its face," notmerely "as applied for" so that the overbroad lawbecomes unenforceable until a properly authorizedcourt construes it more narrowly.

Q: Is legislation couched in impreciselanguage void for vagueness?

A: No. The "voidforvagueness" doctrine doesnot apply as against legislations that are merelycouched in imprecise language but which specify


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a standard though defectively phrased; or to thosethat are apparently ambiguous yet fairly applicableto certain types of activities. The first may be"saved" by proper construction, while no challengemay be mounted as against the second wheneverdirected against such activities.

In the Supreme Court held that the doctrine canonly be invoked against that species of legislation

that is utterly vague on its face, i.e., that whichcannot be clarified either by a saving clause or byconstruction. (Estrada v. Sandiganbayan, G.R. No.148560, Nov. 19, 2001)

Q: What is the test in determining whether acriminal statute is void for uncertainty?

A: The test is whether the language conveys asufficiently definite warning as to the proscribedconduct when measured by commonunderstanding and practice. It must be stressed,however, that the "vagueness" doctrine merely

requires a reasonable degree of certainty for thestatute to be upheld not absolute precision ormathematical exactitude. (Estrada vs.Sandiganbayan,G.R. No. 148560, Nov. 19, 2001)

d. EQUAL PROTECTION OF THE LAWS

1. CONCEPT

Q: What is the concept of equal protectionof the laws?

A: It means that all persons or things similarlysituated should be treated alike, both as to rightsconferred and responsibilities imposed. Itguarantees equality, not identity of rights. It doesnot forbid discrimination as to persons and thingsthat are different. What it forbids are distinctionsbased on impermissible criteria unrelated to aproper legislative purpose, or class ordiscriminatory legislation, which discriminatesagainst some and favors others when both aresimilarly situated. (2 Cooley, ConstitutionalLimitations, 824825)

Note: It must be borne in mind that the Arroyoadministration is but just a member of a class, that is, aclass of past administrations. It is not a class of its own.Not to include past administrations similarly situatedconstitutes arbitrariness which the equal protectionclause cannot sanction. Such discriminatingdifferentiation clearly reverberates to label thecommission as a vehicle for vindictiveness andselective retribution. (Biraogo v. The Philippine TruthCommission of 2010, G.R. No. 192935, Dec. 7,2010)

2. REQUISITES FOR VALID CLASSIFICATION

Q: What are the requisites for a validclassification?

A: The classification must:1. Rest on substantial distinctions2. Be germane to the purpose of the law

3. Not be limited to existing conditions only;4. Apply equally to all members of the same

class. (Gorospe, Constitutional Law: Notesand Readings on the Bill of Rights,Citizenship and Suffrage, Vol. 2., p.334)

Q: Does equal protection of the laws apply toboth citizens and aliens?

A:

GR: It applies to all persons, both citizens andaliens. The Constitution places the civil rights of

aliens on equal footing with those of the citizens.

XPN: Statutes may validly limit to citizensexclusively the enjoyment of rights or privilegesconnected with public domain, the public works, orthe natural resources of the State

Note: The rights and interests of the State in thesethings are not simply political but also proprietary innature and so citizens may lawfully be givenpreference over aliens in their use or enjoyment.

Aliens do not enjoy the same protection as regards

political rights. (Inchong v. Hernandez, G.R. No. L

7995, May 31, 1957)

Q: Is classification of citizens by the legislatureunconstitutional?

A:

GR: The legislature may not validly classify thecitizens of the State on the basis of their origin,race, or parentage.

XPN: The difference in status between citizens

and aliens constitutes a basis for reasonableclassification in the exercise of police power.(Demore v. Kim, 538 U.S. 510, 2003)


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Q: What is the rationale for allowing, in exceptionalcases, valid classification based on citizenship?

A: Aliens do not naturally possess the sympatheticconsideration and regard for customers with whomthey come in daily contact, nor the patriotic desire tohelp bolster the nations economy, except in so far as itenhances their profit, nor the loyalty and allegiancewhich the national owes to the land. These limitations

on the qualifications of aliens have been shown onmany occasions and instances, especially in times ofcrisis and emergency. (Ichong v.Hernandez, G.R. No.L7995, May 31, 1957)

Q: What is the intensified means test or thebalancing of interest/equality test?

A: It is the test which does not look solely into thegovernments purpose in classifying persons or things(as done in Rational Basis Test) nor into the existenceof an overriding or compelling government interest so

great to justify limitations of fundamental rights (StrictScrutiny Test) but closely scrutinizes the relationshipbetween the classification and the purpose, based onspectrum of standards, by gauging the extent to whichconstitutionally guaranteed rights depend upon theaffected individuals interest.

e. SEARCHES AND SEIZURES

Q: What is the essence of privacy?

A: The essence of privacy is the right to be left alone. In

context, the right to privacy means the right to be freefrom unwarranted exploitation of ones person or fromintrusion into ones private activities in such a way as tocause humiliation to a persons ordinary sensibilities.

1. Warrant Requirement

Q: What are the requisites of a valid search warrantand warrant of arrest?

A:

1. There should be a search warrant or warrant ofarrest2. Probable cause supported the issuance of

such warrant3. Such probable cause had been determined

personally by a judge4. Judge personally examined the

complainant and his witnesses

5. The warrant must particularly describethe place to be searched and thepersons or things to be seized.

(Gorospe, Constitutional Law: Notes andReadings on the Bill of Rights,Citizenship and Suffrage, Vol. 2., p.334)

Note: General warrant is not allowed. It must be

issued pursuant to specific offense.

Q: What are general warrants?

A: These are warrants of broad and generalcharacterization or sweeping descriptions whichwill authorize police officers to undertake afishing expedition to seize and confiscate anyand all kinds of evidence or articles relating to anoffense.

Q: What is the purpose of particularity ofdescription?

A:The purpose is to enable the law officersserving the warrant to:

1. Readily identify the properties to be seizedand thus prevent them from seizing thewrong items

2. Leave said peace officers with no discretionregarding the articles to be seized and thusprevent unreasonable searches andseizures. (Bache and Co. v. Ruiz, 37 SCRA

823)

Q: When is particularity of descriptioncomplied with?

A: For warrant of arrest, this requirement iscomplied with if it contains the name of theperson/s to be arrested. If the name of theperson to be arrested is not known, a John Doewarrant may be issued. A John Doe warrant willsatisfy the constitutional requirement ofparticularity of description if there is somedescriptio personae which is sufficient to enablethe officer to identify the accused.

For a search warrant, the requirement iscomplied with:

1. When the description therein is asspecific as the circumstances willordinarily allow; or

2. When the description expresses aconclusion of fact, not of law, by whichthe warrant officer may be guided inmaking the search and seizure; or


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3. When the things described are limitedto those which bear direct relation tothe offense for which the warrant isbeing issued

Note: If the articles desired to be seized have any direct relation to an offense committed, theapplicant must necessarily have some evidenceother than those articles, to prove said offense.

The articles subject of search and seizure shouldcome in handy merely to strengthen such

evidence.

Q: What are the properties subject toseizure?A:

1. Property subject of the offense2. Stolen or embezzled property and

other proceeds or fruits of the offense3. Property used or intended to be used

as means for the commission of anoffense

Q: What is probable cause?

A: Probable cause is such facts andcircumstances antecedent to the issuance ofa warrant that in themselves are sufficient toinduce a cautious man to rely on them andact in pursuance thereof.

Q: How is probable cause determinedpersonally by the judge?

Q: What constitutes personal knowledge?

A:1. The person to be arrested must execute an

overt act indicating that he had just committed,is actually committing, or is attempting tocommit a crime; and

2. Such overt act is done in the presence orwithin the view of the arresting officer.

Q: What constitutes searching questions?

A: Examination by the investigating judge of thecomplainant and the latters witnesses in writing andunder oath or affirmation, to determine whether thereis a reasonable ground to believe that an offense hasbeen committed and whether the accused is probablyguilty thereof so that a warrant of arrest may be issuedand he may be held liable for trial.

2. Warrantless Arrests

Q: What are the instances of a validwarrantless arrest?

A:

1. In flagrante delicto The person to bearrested has either committed, is actuallycommitting, or is about to commit an offense inthe presence of the arresting officer

2. Hot PursuitWhen an offense has infact justbeen committed and the arresting officer has

probable cause to believe, based on personalknowledge of the facts and circumstancesindicating, that the person to be arrested hascommitted it

3. Escaped Prisoner or Detainee When theperson to be arrested is a prisoner who hasescaped from a penal establishment or placewhere he is serving final judgment ortemporarily confined while his case is pending,or has escaped while being transferred fromone confinement to another. (Sec. 5, Rule

113, Rules of Court)

Q: Can there be a waiver of the right to questionan invalid arrest?

A: When a person who is detained applies for bail, heis deemed to have waived any irregularity of his arrestwhich may have occurred. However, if the accusedputs up bail before he enters his plea, he is not barred fromlater questioning the legality of his arrest.

SEARCH WARRANT WARRANT OFARREST

The judge mustpersonally examine inthe form of searchingquestions andanswers, in writingand under oath, thecomplainant and thewitnesses he mayproduce on factspersonally known to

them.

It is not necessary thatthe judge shouldpersonally examine thecomplainants and hiswitnesses, the judgewould simply personallyreview the initialdetermination of theprosecutor too see if itis supported by

substantial evidence.The determination ofprobable causedepends to a largeextent upon thefinding or opinion ofthe judge whoconducted therequired examinationof the applicant andthe witnesses

He merely determinesthe probability not thecertainty of guilty of theaccused and in sodoing, he need notconduct a new hearing


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Note: The waiver is limited to invalid arrest and doesnot extend to illegal search

Q: Are there any other instances where a peaceofficer can validly conduct a warrantless arrest?

A: Yes, in cases of continuing offenses. The crimesof rebellion, subversion, conspiracy or proposal to

commit such crimes, and crimes or offenses committedin furtherance thereof, or in connection therewithconstitute direct assaults against the State, are in thenature of continuing crimes.

Q: Can the place to be searched, as set out inthe warrant be amplified or modified by the officerspersonal knowledge of the premises or evidencethey adduce in support of their application for thewarrant?

A: No. Such a change is proscribed by the Constitution

which requires a search warrant to particularly describethe place to be searched; otherwise it would open thedoor to abuse of the search process, and grant toofficers executing the search that discretion which theConstitution has precisely removed from them.

Q:Which court has the primary jurisdiction inissuing search warrants?

B: The RTC where the criminal case is pending or ifno information has yet been filed, in RTC in the area/scontemplated. However an RTC not having

territorial jurisdiction over the place to be searched mayissue a search warrant where the filing of such isnecessitated and justified by compelling considerationsof urgency, subject, time, and place.

Q: Does the Constitution limit to judges theauthority to issue warrants of arrests?

A: No, the legislative delegation of such power to theCommissioner of Immigration is not violative of the Billof Rights.

Note: Section 1 (3), Article III of the Constitution does

not require judicial intervention in the execution of a finalorder of deportation issued in accordance with law. Theconstitutional limitation contemplates an order of arrestin the exercise of judicial power as a step preliminary orincidental to prosecution or proceedings for a givenoffense or administrative action, not as a measureindispensable to carry out a valid decision by a

competent official, such as a legal order ofdeportation, issued by the Commissioner ofImmigration, in pursuance of a valid legislation.(Morano vs. Vivo, G.R. No. L22196, June 30,1967)

Q: What is the nature of a search warrantproceeding?

A: It is neither a criminal action nor acommencement of a prosecution. It is solely forthe possession of personal property. (UnitedLaboratories, Inc. v. Isip, G.R. No. 163858,June 28, 2005)

3. Warrantless Searches

Q: What are the instances of a validwarrantless search?

A:

1. Visual search is made of moving

vehicles at checkpoints2. Search is an incident to a valid arrest

Note: An officer making an arrest may takefrom the person:a. Any money or property found upon his

person which was used in thecommission of the offense

b. Was the fruit thereof

c. Which might furnish the prisoner withthe means of committing violence orescaping

d. Which might be used in evidence in thetrial of the case

3. Search of passengers made in airports4. When things seized are within plain view

of a searching party5. Stop and frisk (precedes an arrest)

6. When there is a valid express waivermade voluntarily and intelligently

Note: Waiver is limited only to the arrest and doesnot extend to search made as an incident thereto, orto any subsequent seizure of evidence found in thesearch. (People v. Peralta, G.R. 145176, March 30,2004)

7. Customs search8. Exigent and emergency circumstances.(People v. De Gracia, 233 SCRA 716))

Q: What is the Plain View Doctrine?

A: Objects falling in plain view of an officerwho has a right to be in the position to have thatview are subject to seizure even without asearch


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warrant and may be introduced as evidence.Requisites for the application of the doctrine are:

a. The law enforcer in search of the evidencehas a prior justification for an intrusion, or isin a position from which he can view aparticular area;

b. The discovery of the evidence in plain view is

inadvertent;

Q: What is a stopandfrisk search?

A: It is a limited protective search of outer clothingfor weapons. Probable cause is not required but agenuine reason must exist in light of a policeofficers experience and surrounding conditions towarrant the belief that the person detained hasweapons concealed. (Malacat v. CA, G.R. No.123595, Dec. 12, 1997)

Q: Are searches conducted in checkpointslawful?

A: Yes, provided the checkpoint complies with thefollowing requisites:

1. The establishment of checkpoint must bepronounced

2. It must be stationary, not roaming3. The search must be limited to visual search

and must not be an intrusive search.

Note: Not all searches and seizures are prohibited.

Between the inherent right of the State to protect itsexistence and promote public welfare and an individualsright against warrantless search which is howeverreasonably conducted, the former should prevail.

A checkpoint is akin to a stopandfrisk situation whoseobject is either to determine the identity of suspiciousindividuals or to maintain the status quo momentarilywhile the police officers seek to obtain more information.(Valmonte vs. De Villa, 178SCRA 211)

Q: When may motorists and their vehiclespassing though checkpoints be stopped and

extensively searched?

A: While, as a rule, motorists and their vehiclespassing though checkpoints may only be subjectedto a routine inspection, vehicles may be stopped andextensively searched when there is probable causewhich justifies a reasonable belief among those atthe checkpoints that either the motorist is a lawoffender or the contents of the

vehicle are or have been instruments of someoffense. (People v. Vinecario, G.R. No. 141137,Jan.20, 2004)

Q: Valeroso was arrested by virtue of a warrantof arrest. At that time, Valeroso was sleeping. Hewas pulled out of the room. The other policeofficers remained inside the room and

ransacked the locked cabinet where they founda firearm and ammunition. Is the warrantlesssearch and seizure of the firearm andammunition justified as an incident to a lawfularrest?

A: No. The scope of the warrantless search is notwithout limitations. A valid arrest allows the seizureof evidence or dangerous weapons either on theperson of the one arrested or within the area of hisimmediate control. The purpose of the exception isto protect the arresting officer from being harmed bythe person arrested, who might be armed with aconcealed weapon, and to prevent the latter fromdestroying evidence within reach. In this case,search was made in the locked cabinet whichcannot be said to have been within Valeroso'simmediate control. Thus, the search exceeded thebounds of what may be considered as an incident toa lawful arrest. (Valeroso v. Court of Appeals, G.R.No. 164815,Sept. 3, 2009)

5. Administrative Arrest

Q: When is there an administrative arrest?

A: There is an administrative arrest as an incidenttodeportation proceedings.

Q: When is a person arrested in a deportationproceedings?

A: The following aliens shall be arrested upon thewarrant of the Commissioner of Immigration or ofany other officer designated by him for the purposeand deported upon the warrant of the Commissioner

of Immigration after a determination by the Board ofCommissioners of the existence of the ground fordeportation as charges against the alien.

1. Any alien who enters the Philippines after theeffective date of this Act by means of falseand misleading statements or withoutinspection and admission by the immigrationauthorities at a designated port of entry or atany place other than at a


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designated port of entry; [As amended byRepublic Act No. 503, Sec. 13]

2. Any alien who enters the Philippines after theeffective date of this Act, who was not lawfullyadmissible at the time of entry;

3. Any alien who, after the effective date of this Act,is convicted in the Philippines and sentences for aterm of one year or more for a crime involvingmoral turpitude committed within five years afterhis entry to the Philippines, or who, at any timeafter such entry, is so convicted and sentencedmore than once;

4. Any alien who is convicted and sentenced for aviolation of the law governing prohibited drugs;[As amended by Republic Act No. 503, Sec. 13]

5. Any alien who practices prostitution or is aninmate of a house of prostitution or is connectedwith the management of a house of prostitution,or is a procurer;

6. Any alien who becomes a public charge within

five years after entry from causes notaffirmatively shown to have arisen subsequent toentry;

7. Any alien who remains in the Philippines inviolation of any limitation or condition under whichhe was admitted as a nonimmigrant;

8. Any alien who believes in, advises, advocates orteaches the overthrow by force and violence ofthe Government of the Philippines, or ofconstituted law and authority or who disbelievesin or is opposed to organized government, or whoadvises, advocates or teaches the assault or

assassination of public officials because of theiroffice, or who advises, advocates, or teaches theunlawful destruction of property, or who is amember of or affiliated with any organizationentertaining, advocating or teaching suchdoctrines, or who in any manner whatsoeverlends assistance, financial or otherwise, to thedissemination of such doctrines;

9. Any alien who commits any of the acts describedin sections fortyfive of this Act, independent ofcriminal action which may be brought againsthim: Provided, that in the case of alien who, forany reason, is convicted and sentenced to suffer

both imprisonment and deportation, said alienshall first serve the entire period of hisimprisonment before he is actually deported:Provided, however, that the imprisonment may bewaived by the Commissioner of Immigration withthe consent of the Department Head, and uponpayment by the alien concerned of such amountas the Commissioner may fix and approved bythe Department Head; [Paragraph addedpursuant to Republic Act No. 144, Sec. 3]

10. Any alien who, at any time within fiveyears after entry, shall have beenconvicted of violating the provisions ofthe Philippine Commonwealth ActNumbered Six hundred and fiftythree,otherwise known as the Philippine AlienRegistration Act of 1941**(now Alien

Registration Act of 1950, Republic ActNo. 562, as amended] or who, at anytime after entry, shall have beenconvicted more than once of violatingthe provisions of the same Act; [Addedpursuant to Republic Act No. 503, Sec.13]

11. Any alien who engages in profiteering,hoarding, or blackmarketing,independent of any criminal actionwhich may be brought against him;[Added pursuant to Republic Act No.

503, Sec. 13]12. Any alien who is convicted of any

offense penalized under CommonwealthAct Numbered Four hundred andseventythree, otherwise known as theRevised Naturalization Laws of thePhilippines, or any law relating toacquisition of Philippine citizenship;[Added pursuant to Republic Act No.503, Sec. 13]

13. Any alien who defrauds his creditor byabsconding or alienating properties to

prevent them from being attached orexecuted. [Added pursuant to Republic

Act No. 503, Sec. 13] (PhilippineImmigration Act of 1940)

Q: Is a law requiring mandatory drugtesting for students of secondary andtertiary schools unconstitutional?

A: No. It is within the prerogative of

educational institutions to require, as acondition for admission, compliance withreasonable school rules and regulations andpolicies. To be sure, the

6. Drug, Alcohol, and Blood Tests


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right to enroll is not absolute; it is subject to fair,reasonable, and equitable requirements. In sum:

1. Schools and their administrators stand in locoparentis with respect to their students;

2. Minor students have contextually fewer rightsthan an adult, and are subject to the custodyand supervision of their parents, guardians, and

schools;3. Schools acting in loco parentis, have a duty to

safeguard the health and wellbeing of theirstudents and may adopt such measures as mayreasonably be necessary to discharge suchduty; and

4. Schools have the right to impose conditions onapplicants for admission that are fair, just andnondiscriminatory. (SJS v. DDB, G.R. No.157870, Nov. 3, 2008)

Q: Is a law requiring mandatory drug testing for

officers and employees of public and privateoffices unconstitutional?

A: No. As the warrantless clause of Sec. 2, Art. IIIof the Constitution is couched and as has beenheld, reasonableness is the touchstone of thevalidity of a government search or intrusion. Andwhether a search at issue hews to thereasonableness standard is judged by thebalancing of the governmentmandated intrusion onthe individuals privacy interest against thepromotion of some compelling state interest. In the

criminal context, reasonableness requires showingprobable cause to be personally determined by ajudge. Given that the drug testing policy foremployeesand students for that matterunderR.A. 9165 is in the nature of administrative searchneeding what was referred to in Veronia case asswift and informal procedures, the probable causestandard is not required or even practicable. (SJSv. DDB andPDEA, G.R. No. 157870, Nov. 3, 2008)

f. RIGHT TO PRIVACY IN COMMUNICATION ANDCORRESPONDENCE

Q: The general rule is that the right to privacy ofcommunication and correspondence isinviolable. What are the exceptions?

A:1. By lawful order of the court;

2. Public safety or public order as prescribedby law

Q: Is the use of telephone extension aviolation of R.A. 4200 (AntiWire Tapping Law)?

A: No. The use of a telephone extension tooverheara private conversation is neither among thosedevices, nor considered as a similar device,prohibited under the law. (Gaanan v. IAC, G.R.No.L69809 October 16, 1986)

Note: AntiWiretapping Act only protects letters,messages, telephone calls, telegrams and the like.

The law does not distinguish between a party to theprivate communication or a third person. Hence, botha party and a third person could be held liable underR.A. 4200 if they commit any of the prohibited actsunder R.A. 4200. (Ramirez v. CA, G.R. No. 93833Sept. 28, 1995)

Q: Is the tape recording of a telephoneconversation containing a persons admissionadmissible in evidence? Why?

A: No. The taperecorded conversation is not

admissible in evidence. R.A. 4200 makes the taperecording of a telephone conversation done without

the authorization of all the parties to theconversation, inadmissible in evidence. In addition,the taping of the conversation violated the guaranteeof privacy of communications enunciated in Section3, Article III of the Constitution. (SalcedoOrtanez v.CA (G.R. No.110662, August 4, 1994)

Q: Are letters of a husbands paramour keptinside the husbands drawer, presented by thewife in the proceeding for legal separation,admissible in evidence?

A: No, because marriage does not divest one ofhis/her right to privacy of communication. (Zulueta v.CA,G.R. No. 107383, Feb. 20, 1996)

Q: What does the exclusionary rule state?

A: Any evidence obtained in violation of theConstitution shall be inadmissible for any purpose inany proceeding. However, in the absence ofgovernmental interference, the protection againstunreasonable search and seizure cannot be

extended to acts committed by private individuals.(People v. Marti, G.R. No. 78109.January 18, 1991)

Q: What is the writ of habeas data?

A: It is a remedy available to any person whoserightto privacy in life, liberty or security is violated orthreatened by an unlawful act or omission of a publicofficial or employee, or of a private individual or entityengaged in the gathering, collecting or storing of dataor


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information regarding the person, family, homeand correspondence of the aggrieved party. (Sec.1, The Rule on the Writ of Habeas Data, A. M. No.08116SC, Jan. 22, 2008)

Q: What are the reliefs that may beobtained in the petition for issuance of writ ofhabeas data?

A: The reliefs may include the updating,rectification, suppression or destruction of thedatabase or information or files kept by therespondent and in case of threats of the unlawfulact, the relief may include a prayer for an orderenjoining the act complained of. A general prayerfor other reliefs that are just and equitable underthe circumstances is also allowed.

g. FREEDOM OF EXPRESSION

Q: What is the concept and scope ofprotected freedom of expression under theConstitution?

A:1. Freedom of speech2. Freedom of the press3. Right of assembly and to petition the

government for redress of grievances4. Right to form associations or societies not

contrary to law5. Freedom of religion6. Right to access to information on matters

of public concern.

Q: What are considered protected speech?

A: Protected speech includes every form ofexpression, whether oral, written, tape or discrecorded. It includes motion pictures as well aswhat is known as symbolic speech such as thewearing of an armband as a symbol of protest.Peaceful picketing has also been included withinthe meaning of speech.

Q: Does a violation of any law justify the

suppression of exercise of freedom of speechand of the press?

A: Not every violation of a law will justifystraitjacketing the exercise of freedom of speechand of the press. There are laws of greatsignificance but their violation, by itself and withoutmore, cannot support suppression of free speechand free press. The totality of the injurious effectsof the violation to private and public interest mustbe calibrated in light of the preferred statusaccorded by the Constitution and by relatedinternational covenants protecting

freedom of speech and of the press. The needto prevent the violation of a law cannotper setrump the exercise of free speech and freepress, a preferred right whose breach can leadto greater evils. (Francisco Chavez v. Raul M.Gonzales, G.R.No. 168338, Feb. 15, 2008)

Q. What is the concept behind theprovision?

A.Consistent with its intended role in society, itmeans that the people are kept from any undueinterference from the government in theirthoughts and words. The guarantee basicallyflows from the philosophy that the authorities donot necessarily know what is best for thepeople.(R.B. Gorospe, Constitutional Law: Notes AndReadings On The Bill Of Rights, Citizenship AndSuffrage 442 (2004)

Q: What are the limitations of freedom ofexpression?

A: It should be exercised within the bounds oflaws enacted for the promotion of socialinterests and the protection of other equallyimportant individual rights such as:

1. Laws against obscenity, libel and slander(contrary to public policy)

2. Right to privacy of an individual3. Right of state/government to be

protected from seditious attacks4. Legislative immunities5. Fraudulent matters6. Advocacy of imminent lawless conducts7. Fighting words

8. Guarantee implies only the right to reacha willing audience but not the right tocompel others to listen, see or read

Q: What are the four aspects of freedom ofspeech and press?

A:

1. Freedom from censorship or prior

restraint2. Freedom from subsequent punishment3. Freedom of access to information4. Freedom of circulation

Note: There need not be total suppression;evenrestriction of circulation constitutescensorship.

1. Prior Restraint

Q: What is the first prohibition of the freespeech and press clause?


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A: The first prohibition of the constitutionalprovisionis the prohibition of prior restraint.

Note: Prior Restraint means official governmentrestrictions on the press or other forms ofexpression in advance of actual publication ordissemination. (Bernas, The 1987 PhilippineConstitution A Comprehensive Reviewer 2006)

Q: Is the prohibition of prior restraintabsolute?

A: No. There are exceptions to the rule. Near v.Minnesota, 283 US 697 (1931) enumerates them:

1. When a nation is at war, many things thatmight be said in time of peace are such ahindrance to its effort that their utterancewill not be endured so long as men fightand that no court could regard them asprotected by any constitutional right.

2. The primary requirements of decency maybe enforced against obscene publications.

3. The security of community life may beprotected against incitements to acts ofviolence and the overthrow by force oforderly government.

2.Subsequent Punishment

Q. What is the second basic prohibition of thefree speech and press clause?

A: The free speech and press clause alsoprohibits systems of subsequent punishmentwhich have the effect of unduly curtailingexpression.(Bernas, The 1987 Philippine Constitution AComprehensive Reviewer 2006, p.64)

Q. Is freedom from subsequent punishmentabsolute?

A: No, it may be properly regulated in the interestof the public. The State may validly impose penaland/or administrative sanctions such as in the

following:1. Libela public and maliciousimputation of

a crime, vice or defect, real or imaginary orany act omission, status tending to causedishonor, discredit or contempt of a naturalor judicial person, or blacken the memoryof one who is dead (Art 353, RevisedPenal Code)

2. ObscenityinPita v Court of Appeals, theSupreme Court declared that the

determination of what is obscene is ajudicial function.

3. Criticism of Official ConductInNew YorkTimes v. Sullivan, 376 US 254 (1964), theconstitutional guaranteerequires a federalrule that prohibits a public official fromrecovering damages for a defamatoryfalsehood relating to his official conduct

unless he proves that the statement wasmade with actual malice.

4. Rights of students to free speech in schoolpremises not absolutetheschool cannotsuspend or expel a student solely on thebasis of the articles he has written exceptwhen such article materially disrupts classwork or involves substantial disorder orinvasion of rights of others. (MiriamCollege Foundation v. CA, GR 127930,December 15, 2000)

Q: Discuss the Doctrine of Fair Comment.

A: The doctrine provides that while as a generalrule, every discreditable public imputation is falsebecause every man is presumed innocent, thusevery false imputation is deemed malicious, as anexception, when the discreditable imputation isdirected against a public person in his publiccapacity, such is not necessarily actionable. For itto be actionable, it must be shown that eitherthere is a false allegation of fact or commentbased on a false supposition. However, if thecomment is an expression of opinion, based onestablished facts; it is immaterial whether the

opinion happens to be mistaken, as long as itmight reasonably be inferred from facts. (Borjal v.CA, G.R. No. 126466, Jan. 14, 1999)

Q: A national daily newspaper carried anexclusive report stating that Senator XXreceived a house and lot located at YY Street,Makati, in consideration for his vote cuttingcigarette taxes by 50%. The Senator sued thenewspaper, its reporter, editor and publisherfor libel, claiming the report was completelyfalse and malicious. According to the Senator,there is no YY Street in Makati, and the tax cutwas only 20%. He claimed one million pesos indamages. The defendants denied "actualmalice," claiming privileged communicationand absolute freedom of the press to report onpublic officials and matters of public concern.If there was any error, the newspaper said itwould publish the correction promptly. Is there"actual malice" in the newspapers reportage?How is "actual


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malice" defined? Are the defendants liable fordamages?

A: Since Senator XX is a public person and thequestioned imputation is directed against him in hispublic capacity, in this case actual malice meansthe statement was made with knowledge that itwas false or with reckless disregard of whether it

was false or not. Since there is no proof that thereport was published with knowledge that it is falseor with reckless disregard of whether it was falseor not, the defendants are not liable for damage.(Borjal v.CA, G.R. No. 126466, Jan. 14, 1999)

Q: Is the Borjal doctrine applicable in a casewhere the allegations against a public officialwere false and that the journalist did not exerteffort to verify the information beforepublishing his articles?

A: No. Borjal may have expanded the protection

of qualified privileged communication beyond theinstances given in Art. 354 of the RPC, but thisexpansion does not cover such a case. Theexpansion speaks of "fair commentaries onmatters of public interest." While Borjalplaces faircommentaries within the scope of qualifiedprivileged communication, the mere fact that thesubject of the article is a public figure or a matter ofpublic interest does not automatically exclude theauthor from liability. His articles cannot even beconsidered as qualified privileged communicationunder the second paragraph of Art. 354 of the RPCwhich exempts from the presumption of malice afair and true report. Good faith is lacking. (Tulfo vs.G.R. No. 161032,September 16, 2008)

3.ContentBased & ContentNeutral Regulation

Q: Distinguish contentneutral regulation fromcontentbased restraint or censorship.

A:

CONTENTNEUTRALCONTENT

BASEDREGULATION RESTRAINT

Substantial governmental They are given theinterest is required for their strictest scrutinyvalidity, and they are not in light of their

subject to the strictest form of inherent andjudicial scrutiny rather only an invasive impact.

intermediate approach

somewhere between therationality that is required of

a

law and the compelling

interest standard applied to

contentbased restrictions.

Note: When the prior restraint partakes of acontentneutral regulation, it is subject to an intermediatereview. A contentbased regulation or any system orprior restraint comes to the Court bearing a heavypresumption against its unconstitutionality and thusmeasured against the clear and present danger rule,giving the government a heavy burden to showjustification for the imposition of such restraint andsuch is neither vague nor overbroad.

Q: The NTC issued a warning that that thecontinuous airing or broadcast by radio andtelevision stations of the an allegedwiretapped conversation involving thePresident allegedly fixing votes in the 2004national elections is a continuing violation ofthe AntiWiretapping Law and shall be justcause for the suspension, revocation and/orcancellation of the licenses or authorizationsissued to the said companies. Were the rightsto freedom of expression and of the press,and the right of the people to information onmatters of public concern violated?

A: Yes, said rights were violated applying theclear and present danger test. The challengedacts need to be subjected to the clear andpresent danger rule, as they are contentbasedrestrictions. The acts of NTC and the DOJ Sec.focused solely on but one objecta specificcontent fixed as these were on the allegedtaped conversations between the President and aCOMELEC official. Undoubtedly these did notmerely provide regulations as to the time, place or

manner of the dissemination of speech orexpression.

A governmental action that restricts freedom ofspeech or of the press based on content is giventhe strictest scrutiny, with the government havingthe burden of overcoming the presumedunconstitutionality by the clear and presentdanger rule. It appears that the great evil whichgovernment wants to prevent is the airing of atape recording in alleged violation of the antiwiretapping law.

The evidence falls short of satisfying the clearand present danger test. Firstly, the variousstatements of the Press Secretary obfuscate theidentity of the voices in the tape recording.Secondly, the integrity of the taped conversationis also suspect. The Press Secretary showed tothe public two versions, one supposed to be acomplete version and the other, an alteredversion. Thirdly, the evidence on the whos andthe hows of the wiretapping act is ambivalent,


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especially considering the tapes differentversions. The identity of the wiretappers, themanner of its commission and other related andrelevant proofs are some of the invisibles of thiscase. Fourthly, given all these unsettled facets ofthe tape, it is even arguable whether its airingwould violate the antiwiretapping law. There is noshowing that the feared violation of the anti

wiretapping law clearly endangers the nationalsecurity of the State. (Chavez v. Gonzales, G.R.No. 168338, Feb. 15, 2008)

4. Facial Challenges and OverbreadthDoctrine

Q: What do you mean by Facial Challenges?

A. A facial challenge is a challenge to a statute incourt, in which the plaintiff alleges that thelegislation is always, and under all circumstances,unconstitutional, and therefore void.

Note: Facial challenge to a statute is allowed onlywhen it operates in the area of freedom ofexpression. Invalidation of the statute on its face,rather than as applied, is permitted in the interest ofpreventing a chilling effect on freedom ofexpression. ( Separateopinion of Justice Mendozain Cruz v. Secretary of Environment and NaturalResources, 347 SCRA 128, 2000)

Q: How is "facial" challenge different from "asapplied" challenge?

A: Distinguished from an asapplied challenge

which considers only extant facts affecting reallitigants, a facial invalidation is an examination ofthe entire law, pinpointing its flaws and defects, notonly on the basis of its actual operation to theparties, but also on the assumption or predictionthat its very existence may cause others not beforethe court to refrain from constitutionally protectedspeech or activities. (KMU v. Ermita, G.R. No.17855, October5, 2010)

Q: Are facial challenges allowed in penalstatutes?

A: No. Criminal statutes have general in terroremeffect resulting from their very existence, and, iffacial challenge is allowed for this reason alone, theState may well be prevented from enacting lawsagainst socially harmful conduct. In the area ofcriminal law, the law cannot take chances as in thearea of free speech. (KMU v. Ermita, G.R. No.17855, October 5, 2010)

Q: What is the Overbreadth Doctrine?

A: The overbreadth doctrine permits a party tochallenge the validity of a statute even though asapplied to him it is not unconstitutional but it mightbe if applied to others not before the Court whoseactivities are constitutionally protected. (Separateopinion of Justice Mendoza in Cruz v. Secretaryof Environment and Natural Resources, 347SCRA 128, 2000) It is a type of facial challengethat prohibitsthe government from achieving itspurpose by means that sweep unnecessarilybroadly, reaching constitutionally protected aswell as unprotected activity.

5. Tests

Q: What are the tests for valid governmentalinterference to freedom of expression?

A:1. Clear and Present Danger test

Question: Whether the words are used insuchcircumstances and are of such a natureas to create a clear and present danger thatthey will bring about the substantive evils thatCongress has a right to prevent. It is aquestion of proximity and degree (Schenck v.US, 249 US47, 1919)

Emphasis: The danger created must not onlybeclear and present but also traceable to theideas expressed. (Gonzales v . COMELEC, G.R.No. L

27833, Ap ril 18, 1969)

Note: This test has been adopted by our SC,and is most applied to cases involvingfreedom of expression.

2. Dangerous Tendency test

Question: Whether the speech restrained hasa rational tendency to create the dangerapprehended, be it far or remote, thusgovernment restriction would then be allowed.It is not necessary though that evil is actuallycreated for mere tendency towards the evil is

enough.

Emphasis: Nature of the circumstances underwhich the speech is uttered, though thespeech per se may not be dangerous.

3. GravebutImprobable Danger test

Question: Whether the gravity of the evil,discounted by its improbability, justifies suchan invasion of free speech as is necessary to


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BILL OFRIGHTS

avoid the danger (Dennis v. US, 341 US 494, 6. State Regulation of Different Types of Mass1951) Media

Note: This test was meant to supplant the clear Q: Can an offensive and obscene languageand present dangertest. uttered in a primetime television broadcast

4. Balancing of interest

test

which was easily accessible to the children be

reasonably curtailed and validly restrained?Question: which of the two conflicting interests A: Yes. InSoriano v. MTRCB, G.R. No. 165636, Apr.

(not involving national security crimes)demands 29, 2009, the Court, applying the balancing of

the greater protection under the particular interest doctrine, ruled that the governmentscircumstancespresented: interest to protect and promote the interests and

a. When particular conduct is regulated inwelfare of the children adequately buttresses thereasonable curtailment and valid restraint on

the interest of publicorder petitioners prayer to continue as program host

b. And the regulation results in an indirect,ofAng Dating Daanduring the suspension period.Sorianos offensive and obscene language uttered

conditional and partial abridgement of on primetime television broadcast, withoutspeech (Gonzales v. COMELEC, G.R. No. L

doubt, was easily accessible to the children. His27833, Apr. 18,1969). statements could have exposed children to a

5. OBrien testlanguage that is unacceptable in everyday use. Assuch, the welfare of children and the States

Question: in situations when speech and

non

mandate to protect and care for them, asparenspatriae,

constitute a substantial andcompelling

speech elements are combined in thesame government interest in regulating Sorianos

course of conduct, whether there is asufficiently utterances in TV broadcast.

important governmental interest that warrantsregulating the nonspeech element, incidentally Q: Is broadcast media entitled to the same

limiting the speech element. treatment under the free speech guarantee ofNote:A government regulation is valid

if:

the Constitution as the print

media?

a. It is within the constitutional power of A: No. Because of the uniqueand

pervasiv

ethe government; influence of the broadcast media, Necessarily . . .

b. In furtherance of an important orthe freedom of television and radio broadcasting

substantial governmental interest;is somewhat lesser in scope than the freedom

c.Governmental

interest isunrelate

d toaccorded to newspaper and print media. (Eastern

thesuppressio

n of free expression;Broadcasting (DYRE) Corporation v. Dans, Jr., 137andSCRA at 635)d. The incidental restriction on the

freedom is essential to theQ: Can the trial of Estrada in the Sandiganbayanfurtherance of that interest. (US v.

OBrien, 391 US 367, 1968; SWS v. or any other court be broadcasted in TV orCOMELEC, G.R. 147571, May 5,

2001) radio?

6. Direct Incitement test A: No. An accused has a right to a public trial, butit is not synonymous with a publicized trial.

Question: What words did a person utter and Freedom of the press and the accusedswhat is the likely result of such utterance protection from a possible prejudicial publicized

trial must be taken into consideration. And unlessEmphasis: The very words uttered, and

their there are safety nets to prevent this event,ability to directly incite or produce imminent broadcast media cannot be allowed to publicize

lawless action. the trial. (Re: Request for RadioTV Coverage ofthe Estrada Trial, A.M. No 01403SC, June 29,


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Note: It criticizes the clear and present danger

test 2001)for being too dependent on the specific

circumstances of each

case.7. Commercial Speech

Q: What is the meaning of commercial speech?

ACADEMICSCHAIR: LESTERJAYALANE.FLORESII

U N I V E R S I T Y O FS A N T OT O MA S

89VICECHAIRSFORACADEMICS: KARENJOYG. SABUGO& JOHNHENRYC. MENDOZA F a c u l t a d d e D e r e c h o

C i v i lVICECHAIR FORADMINISTRATION ANDFINANCE: JEANELLEC. LEE


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A: It is communication which no more thanproposes a commercial transaction.

Advertisements of goods or of services is anexample of this. (Bernas, the 1987 Constitution ofthe Republic of the Philippines ComprehensiveReviewer 2006)

Q: In order for government to curtailcommercial speech what must be shown?

A: To enjoy protection, commercial speech:1. Must not be false or misleading

(Friedman v. Rogers, 440 US 1 (1979)and

2. Should not propose an illegaltransaction, Pittsburgh Press Co. vHuman Relations Commissions, 413 US376(1973).

Note: However, even truthful and lawfulcommercial speech maybe regulated if (1)government has a substantial interest to protect;

(2) the regulation directly advances that interest;and (3) it is not more than extensive than isnecessary to protect that interest. (CentralHudson Gas & Electric Corp v. Public ServiceCommission of NY, 447 US 557 (1980)

8. Pivate v. Government Search

Q: Differentiate Government Speech FromPrivate Speech.

A:

GovernmentSpeech Private SpeechA speech where the The right of a person to

government mayfreely speak ones

mindadvanceor restrict its is a highly valuedown speech in a manner freedom in a republican

that would clearly beand democratic

society.forbidde

n were it(Ashcroft v. Free

Speech

regulating the speech ofCoalition,

535 U.S. 234a private citizen. (2002))(doctrine was implied

in Wooley v. Maynardin1971)

9. Hecklers Veto

Q: What is a Hecklers Veto?

A: A heckler's veto occurs when an acting party'sright to freedom of speech is curtailed or restrictedby the government in order to prevent a reactingparty's behavior. The term Hecklers

Veto was coined by University of Chicagoprofessor of law Harry Kalven.

It may be in the guise of a permit requirement inthe holding of rallies, parades, or demonstrationsconditioned on the payment of a fee computedon the basis of the cost needed to keep order inview of the expected opposition by persons

holding contrary views. (Gorospe, 2006, citingForsyth County v. Nationalist Movement, 315U.S. 568, 1942)

h. FREEDOM OF ASSEMBLY ANDPETITION

Q: Is the right to assembly subject to priorrestraint?

A: No. It may not be conditioned upon theprior issuance of a permit or authorization fromgovernment authorities. However, the right must

be exercised in such a way as will not prejudicethe public welfare.

Q: What is the socalled permit system?

A: Under the permit system, before one can usea public place, one must first obtain prior permitfrom the proper authorities. Such is valid if:

1. It is concerned only with the time, place,and manner of assembly; and

2. It does not vest on the licensing authority

unfettered discretion in choosing thegroups which could use the public placeand discriminate others.

Note: Permits are not required for designatedfreedom parks.

Q: What is the rule on assembly in privateproperties?

A: Only the consent of the owner of the propertyor person entitled to possession thereof isrequired.

Q: What are the two tests applicable to theexercise of the right to assembly?

A:

1. Purpose Test looks into the purpose ofthe assembly regardless of its backers.(De Jonge v. Oregon, 299 US 353, 365,1937)


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fact,

The analysis requires the State toafter ten years of living together, she

executed

show that the means in which it ison July 28, 1991 a Declaration of

Pledging

achieving its legitimate State objectiveFaithfulness. Should Xs right to

religious

is the least intrusive means, or it hasfreedom carve out an exception from

the

chosen a way to achieve i ts legitimate

prevailing jurisprudence on illicit relations

forState end that imposes as little as which government employees are held

possible intrusion on religious beliefs.administratively

liable?

Q:A religious organization has a weeklyA: Yes. Escritors conjugal arrangement cannot

betelevision program. The program presents and

penalizedas

she has madeout acas

e forpropagates its religious doctrines and compares exemptio

n from the law based on hertheir practices with those of other religions. As fundamental

right tofreedo

m of religion. Thethe MTRCB found as offensive several episodes Court recognizesthat State interestsmust be

of the program which attacked other religions, upheld in order that

freedom

s includingthe MTRCB required the organization to submit religious freedommay be enjoyed. In thearea

its tapes for review prior to airing. The religiousof religious exercise

a

s a preferred freedom,

92

POLITICALLAWTEAM:ADVISER: ATTY. EDWINREYSANDOVAL; SUBJECTHEAD: RACHELMARIEL. FELICES; ASST. SUBJECTHEADS:

WIVINOE. BRACEROII &HERAZEUSCHRISTINEY. UY;MEMBERS: LAWRENCEPAULOH. AQUINO, LEANDRORODELV. ATIENZA, MARINETHEASTERAND. AYOS,CARLOR. BALA, WILFREDOT. BONILLA, JR., KEELACHERNARR. DINOY, APRILV. ENRILE, KENNETHJAMES

CARLOC. HIZON, JOSEMARIAG. MENDOZA, ROGERCHRISTOPHERR. REYES, ROMILINDAC. SIBAL, JASMINM. SISON, ZARAHPATRICIAT.

SUAREZ, RALPHJULIOUSL.


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however, man stands accountable to an authorityhigher than the State, and so the State interestsought to be upheld must be so compelling thatits violation will erode the very fabric of the Statethat will also protect the freedom. In the absenceof a showing that such State interest exists, manmust be allowed to subscribe to the Infinite(Estrada v. Escritor, A.M. No. P021651, June

22,2006).

Q: "X" is serving his prison sentence inMuntinlupa. He belongs to a religious sect thatprohibits the eating of meat. He asked theDirector of Prisons that he be served withmeatless diet. The Director refused and "X"sued the Director for damages for violating hisreligious freedom. Decide.

A: Yes. The Director of Prison is liable underArticle 32 of the Civil Code for violating the

religious freedom of "X". According to thedecision of the United States Supreme Court inthe case of O'Lone v. Estate of Shabazz, 107 S.Ct. 2400, convicted prisoners retain theirrightto free exercise ofreligion. At the sametime, lawful incarceration brings aboutnecessary limitations of many privileges andrights ustified by the considerations

underlying the penal system. In considering theappropriate balance between these two factors,reasonableness should be the test.

Accommodation to religious freedom can be madeif it will not involve sacrificing the interests of

security and it will have no impact on the allocationof resources of the penitentiary. In this case,providing "X" with a meatless diet will not create asecurity problem or unduly increase the cost of foodbeing served to the prisoners. In fact, in the case ofO' Lone v. Estateof Shabazz, it was noted that theMoslemprisoners were being given a different mealwhenever pork would be served.

Q: Ang Ladlad is an organization composed ofmen and women who identify themselves aslesbians, gays, bisexuals, or transgendered

individuals (LGBTs). Ang Ladlad applied forregistration with the COMELEC. The COMELECdismissed the petition on moral grounds,stating that definition of sexual orientation ofthe LGBT sector makes it crystal clear thatpetitioner tolerates immorality which offendsreligious beliefs based on the Bible and theKoran. Ang Ladlad argued that the denial ofaccreditation, insofar as it justified theexclusion by using religious dogma, violatedthe constitutional guarantees against theestablishment of religion. Is this argumentcorrect?

A: Yes. It was grave violation of the nonestablishment clause for the COMELEC to utilizethe Bible and the Koran to justify the exclusion of

Ang Ladlad. Our Constitution provides in ArticleIII, Section 5 that no law shall be maderespecting an establishment of religion, orprohibiting the free exercise thereof. At bottom,what our nonestablishment clause calls for isgovernment neutrality in religious matters.Clearly, governmental reliance on religious

justification is inconsistent with this policy ofneutrality (Ang Ladlad LGBT Party v. COMELEC,G.R. No. 190582, Apr. 8, 2010).

The government must act for secular purposes andin ways that have primarily secular effects. That is,the government proscribes this conduct because itis "detrimental (or dangerous) to those conditionsupon which depend the existence and progress ofhuman society" and not because the conduct isproscribed by the beliefs of one religion or theother. (Estrada v. Escritor, 492SCRA 1, 2006)

j. LIBERTY OF ABODE AND RIGHT TOTRAVEL

Q: What are the rights guaranteed underSection 6 of the Bill of Rights?

A:

a. Freedom to choose and change onesplace of abode; and

b. Freedom to travel within the country andoutside.

1. Limitations

Q: What is the limitation on theliberty of abode?

A:The liberty of abode may be impaired onlyupon lawful order of the court and within thelimits prescribed by law.

2. Return to Ones Country3.

Q: Is the right to return to ones

country guaranteed in the Bill ofRights?

A:The right to return to ones country is notamong the rights specifically guaranteed in theBill of Rights, which treats only of the liberty ofabode and the right to travel. Nevertheless, theright to return may be considered as a generally


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accepted principle of International law, andunder the Constitution, is part of the law of theland. However, it is distinct and separate fromthe right to travel and enjoys a differentprotection under the Intl. Covenant of Civil andPolitical Rights.

(Marcos v. Manglapus, G.R. No. 88211, Sept.15, 1989 & Oct. 27, 1989)

Q: The military commander in charge of theoperation against rebel groups directed theinhabitants of the island which would be thetarget of attack by government forces toevacuate the area and offered the residentstemporary military hamlet. Can the militarycommander force the residents to transfer theirplaces of abode without a court order?

A: No, the military commander cannot do sowithout a court order. Under Sec. 6, Art. III of the

Constitution, a lawful order of the court isrequired before the liberty of abode and ofchanging the same can be impaired.

Q: What is the limitation on the right totravel?

A: The limitations are the interest of nationalsecurity, public safety or public health, as maybe provided by law.

With respect to the right to travel, it is settledthat only a court may issue a hold departure

order against an individual addressed to theBureau of Immigration and Departure. However,administrative authorities, such as passportofficers, may likewise curtail such right in theinterest of national security, public safety, orpublic health, as may be provided by law.

k. RIGHT TO INFORMATION ANDACCESS TO PUBLIC RECORDS

Q: What is the scope

ust gn pol law2

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