Atty. Gorospe Bar Review 2012 - Constitutional Law

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Recoletos Law Center

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

NOTES, UPDATES AND TEASERS

CONSTITUTIONAL LAW*

(Bar Review 2012)

R ENE B. GOROSPERecoletos Law Center

OUTLINE

A. The Fundamental Powers.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Bill of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D. Equal Protection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

E. Searches and Seizures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

F. Privacy of Communications.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

G. Freedom of Expression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

H. Freedom of Religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

I. Freedom of Movement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

J. Right to Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

K. Right of Association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

L. Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

M. Contract Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

N. Poverty and Legal Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

O. Rights of Suspects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

P. Rights of the Accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Q. Writs of Habeas Corpus and Amparo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

R. Self-Incrimination Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

S. Excessive Fines, Cruel and Inhuman Punishments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

T. Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

U. Ex Post Facto Laws and Bills of Attainder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

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?




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R B GOROSPE CONSTITUTIONAL LAW Notes, Updates and Teasers (Bar 2012) Page 2 of 116

Constitutional Law, in the context of these notes, 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

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 had1

been writ: “A judicial decision does not have to be a bore.” Neither must a Bar review material be. It1

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 as a responsible and respectable particle of sovereignty.

So, here’s to humoring the Bar exams. There’s nothing as unnerving as approaching a problem from2

In regard to the need for an examination in the first place, take note of what the Court said in Antolin v. Domondon, 623 SCRA 1631

(2010): “Examinations have a two-fold purpose. First, they are summative; examinations are intended to assess and record what and howmuch the students have learned. Second, and perhaps more importantly, they are formative; examinations are intended to be part and parcel

of the learning process. In a perfect system, they are tools for learning.”

Incidentally, “[t]he examination questions were of the multiple choice type, where each question was followed by four possible

answers to choose from. The examinee was required to indicate his or her answer by shading in pencil one of four small ‘circles’

corresponding to each choice.” (n. 1) Sounds familiar? Does it ring a bell?

Francisco v. Permskul , 173 SCRA 324 (1989)1

The justices themselves are not beyond humoring the study of law with all its quirks and esoteric twists and turns, as could be seen2

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.

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 decisions does not stop Justices from humming a tune or simply warbling a song into their opinions,

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 with lines from “My

Way” to say that it was not the first time that that particular song had triggered violent behavior resulting in people coming to blows! (The

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 tellingthem 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: “Some observers may ‘imagine’ the musical

contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that

obviously inspired the [Greco-Roman] mosaic [of the word ‘Imagine’ that was donated to New York City’s Central Park in memory of

John Lennon] 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?)




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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 R IGHTS

Governance is the art and science of carefully balancing 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 ascendancy,

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. Or, in the words of 3

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?” Months later, the Court once4

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 duedeference 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 achieved and its will enforced

and implemented. On the other end, you have the guarantees and safeguards found in the Bill of Rights.

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. ___(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.” (Choice cuts, anyone?)

See Calalang v. Williams, 70 Phil. 726 (1940)3

David v. Macapagal-Arroyo, 489 SCRA 160 (2006), referencing the writings of the Greek philosopher, Heraclitus of Ephesus,4

540-480 B.C., who propounded universal impermanence and that all things, notably opposites are interrelated.

Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530 SCRA 341 (2007)5




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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 pastwould no longer be so immune from governmental interference in later years. As was said in one case,7

“What was ‘robbery’ in 1874 is now called ‘social justice.’” Or, as stated in elsewhere, “Social justice8

is not based on rigid formulas set in stone. It has to allow for changing times and circumstances.”9

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. This power is the most pervasive, illimitable and10

plenary power affecting liberty and property of individuals for the advancement of the common good.

It essentially embodies the right of the State to enact laws for the purpose of promoting the public

welfare by restraining and regulating liberty and the use of property. Its also been said that “the test of

constitutionality of a police power measure is limited to an inquiry on whether the restriction imposed

on constitutional rights is reasonable, and not whether it imposes a restriction on those rights,” and that

it “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.”11

As for the power of condemnation, the Constitution already provides the allowable standards for its

exercise – public use and just compensation. But then note must be taken of the expanded meaning of 12

the term “public use” – “the concept of public use is not limited to traditional purposes. Here as

elsewhere the idea that ‘public use’ is strictly limited to clear cases of “use by the public” has been

discarded.” And case law has recently come up with newer rules relative to the exercise of this power.13

Taxation, of course, must not be exercised in an unreasonable, oppressive and confiscatory manner.14

Or, in the language of Philippine Health Care Providers, Inc. v. Commissioner of Internal Revenue, 600

People v. Rapeza, 520 SCRA 596 (2007), penned by Justice Tinga. This is a reiteration of his earlier ponencia in People v. Tudtud ,6

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 ongovernmental power.”

See People v. Pomar , 46 Phil. 440 (1924)7

Bengzon v. Drilon, 208 SCRA 133 (1992)8

Agabon v. National Labor Relations Commission, 442 SCRA 573 (2004)9

Ynot v. Intermediate Appellate Court , 148 SCRA 659 (1987)10

Mirasol v. Department of Public Works and Highways, 490 SCRA 318 (2006)11

Article III, §912

Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 (1983)13

See Reyes v. Almanzor , 196 SCRA 322 (1991)14




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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. Further, in regard to15

the delegation by the Constitution itself of the taxing power to the Local Government Units, Congress

is not stripped of its power to exempt certain entities from local taxation.16

1. Social Justice Society v. Atienza, Jr., 517 SCRA 657 (2007)

If an ordinance says something to be done, then the mayor can only comply and implement it. Here

the City Council of Manila passed an ordinance reclassifying an area where the oil depot of the big

petroleum companies was located from industrial to commercial . That meant that the oil terminals had

to go. A timetable was provided but after some time the oil depot was still there. The Court held that the

mayor had no discretion but comply with the ordinance. 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.

On motion for reconsideration, the Court stood pat on its earlier position. “The ordinance wasintended to safeguard the rights to life, security and safety of all the inhabitants of Manila and not just

of a particular 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 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.

2. Pharmaceutical and Health Care Association of the Philippines v. Duque III , 535 SCRA 265

(2007)

“Health is a legitimate subject matter for regulation by the DOH (and certain other administrativeagencies) 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,” thus declared the Court. 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

Yamane v. BA Lepanto Condominium Corporation, 474 SCRA 258 (2005)15

City Government of Quezon City v. Bayan Telecommunications, Inc., 484 SCRA 169 (2006)16




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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 information would be inconsistent with the superiority of breastfeeding.” Correct information as

to infant feeding and nutrition is infused with public interest and welfare.

But 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? In this case, the Court declared that the DOH, in imposing an absolute prohibition on

advertising, promotion, and marketing, went beyond its authority since the same was not within the

provisions of the Milk Code itself.

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

341 (2007)

Some change but still remain the same – oxymorons, anyone?

Here the Court noted that the deteriorating traffic conditions way back in 1969 “have remained

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 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.”

4. St. Luke’s Medical Center Employee’s Association-AFW (SLMCEA-AFW) v. National Labor

Relations Commission, 517 SCRA 677 (2007)

Here, the guarantee of the right to security of tenure came into conflict with a law subsequently

passed requiring a qualification that was not present when the employee started working. Santos, an




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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 Act of 1992) which requires that no person

shall practice or offer to practice as a radiology and/or x-ray technologist without having obtained the

proper 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.17

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.18

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

privileges to them for their improvement and well-being as the State considers them an integral part of

our society. The law is a legitimate exercise of police power which, similar to the power of eminent

domain, has general welfare for its object.” Accordingly, “[w]hen the conditions so demand as

determined by the legislature, property rights must bow to the primacy of police power because propertyrights, though sheltered by due process, must yield to general welfare.”

6. Guadines v.Sandiganbayan, 650 SCRA 422 (2011)

This case involves a prosecution for violation of the Anti-Graft and Corrupt Practices Act, the

petitioner having supplied illegally cut lumber which were subsequently confiscated after she delivered

them for the repair of a public bridge, thus defrauding the government. It is her defense that she already

complied with her undertaking so she should not be held liable for what happened after that. The Court

did not agree, for “[b]asic is the rule that provisions of existing laws and regulations are read into and

form an integral part of contracts, moreso in the case of government contracts. Verily, all contracts,

including Government contracts, are subject to the police power of the State. Being an inherent attribute

Cf. Garcia, Jr. v. Salvador , 518 SCRA 568 (2007). In this case, an employee who was seeking regularization had to17

undergo a medical examination. She was misdiagnosed as suffering from Hepatitis B. When she informed her father, the latter

suffered a heart attack. The employee also got separated from her employment. Subsequent tests disclosed the error. The

employee was then rehired. Nonetheless, she and her father sued the medical technologist for gross negligence. The Court

found for them, awarding them P=50,000 as moral damages, P=50,000 as exemplary damages, and P=25,000 as attorney’s fees.

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.

“Just compensation is defined as the full and fair equivalent of the property taken from its owner by the expropriator. The measure18

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.)




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of sovereignty, such power is deemed incorporated into the laws of the land, which are part of all

contracts, thereby qualifying the obligations arising therefrom. Thus, it is an implied condition in the

subject contract for the procurement of materials needed in the repair and construction of the Navotas

Bridge that petitioner as private contractor would comply with pertinent forestry laws and regulations

on the cutting and gathering of the lumber she undertook to supply the provincial government.”

7. Pilipinas Shell Petroleum Corporation v. Commissioner of Internal Revenue, 541 SCRA 316(2007)

Can a taxpayer, who obtained in good faith and for value Tax Credit Certificates (TCCs), and after

having paid its tax liabilities by means of TCCs, be 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.

“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 paid through TCCs by a transferee in good faith and for value is utterly

confiscatory, more so when surcharges and interests are likewise assessed.”

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. Chamber of Real Estate and Builders’ Inc. v. Romulo, 614 SCRA 605 (2010)

In this case, even as the Court upheld the validity of the assailed tax measures, it came up with some

interesting tidbits about the nature of the taxing power and the limitations attendant to it. It referred, for instance, to the shopworn reality that “[t]axes are the lifeblood of the government. Without taxes, the

government can neither exist nor endure. The exercise of taxing power derives its source from the very

existence of the State whose social contract with its citizens obliges it to promote public interest and the

common good. Taxation is an inherent attribute of sovereignty. It is a power that is purely legislative.

Essentially, this means that in the legislature primarily lies the discretion to determine the nature (kind),

object (purpose), extent (rate), coverage (subjects) and situs (place) of taxation. It has the authority to

prescribe a certain tax at a specific rate for a particular public purpose on persons or things within its

jurisdiction. In other words, the legislature wields the power to define what tax shall be imposed, why

it should be imposed, how much tax shall be imposed, against whom (or what) it shall be imposed and

where it shall be imposed.”

Then, while the Court recognized that, as a general rule, “the power to tax is plenary and unlimited

in its range, acknowledging in its very nature no limits, so that the principal check against its abuse is

to be found only in the responsibility of the legislature (which imposes the tax) to its constituency who

are to pay it,” the same is circumscribed by constitutional limitations. “The constitutional safeguard of

due process is embodied in the fiat ‘[no] person shall be deprived of life, liberty or property without due

process of law.’ . . . [T]he due process clause may properly be invoked to invalidate, in appropriate cases,

a revenue measure when it amounts to a confiscation of property. [Nevertheless, t]here must be a factual

foundation to such an unconstitutional taint. This merely adheres to the authoritative doctrine that, where




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the due process clause is invoked, considering that it is not a fixed rule but rather a broad standard, there

is a need for proof of such persuasive character.” Also, “an income tax is arbitrary and confiscatory if

it taxes capital because capital is not income.” In other words, it is income, not capital, which is subject

to tax. In the case under consideration, however, the subject tax – minimum corporate income tax

(MCIT) – is not a tax on capital but on income.

9. 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 P=10.00 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 becauseit did not promote public interest but simply that of one ailing private corporation.

B. BILL OF R IGHTS

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.”19

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.20

Nevertheless, even as it is true that “[t]he Constitution cannot control such [private] prejudices, but

West Virginia State Board of Education v. Barnette, 319 US 624 (1943)19

See People v. Marti, 193 SCRA 57 (1991) and Serrano v. NLRC , 323 SCRA 445 (2000).20




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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.”21

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.22

1. Atienza, Jr. v. Commission on Elections, 612 SCRA 761 (2010)

The employee in the private sector in Yrasuegui v. Philippine Airlines, Inc., 569 SCRA 467 (2008),

invoked the Equal Protection Clause with regard to the alleged discrimination done to him by his

employer, 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.”

In Atienza, members of a political party claim denial of due process in their expulsion from the

group. The Court held the claim unavailing. Requirements of administrative due process do not apply

to the internal affairs of political parties. The due process standards set in Ang Tibay cover only

administrative bodies created 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.23

Palmore v. Sidoti, 466 U.S. 529 (1984)21

See Republic v. Sandiganbayan, 407 SCRA 10 (2003)22

Take for instance what the Court said in regard to annulment of judgments: “Although Section 2 of Rule 47 of the Rules of Court23




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Person includes both citizens and aliens, natural and juridical. It may not encompass, however, the

foetus, or the unborn child though the 1987 Constitution has thought it advisable to provide protection24

for the unborn together with its mother. As for life, liberty and property, while all of these are25

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. “[W]hen freedom of the mind is imperiled by law, it is freedom that26

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.”27

And, more recently, the Court also stated that, “based on the hierarchy of constitutionally protected

rights, the right to life enjoys precedence over 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.” As between right not to join labor 28

organizations, the Court had this to say: “In the hierarchy of constitutional values, this Court has

repeatedly held that the right to abstain from joining a labor organization is subordinate to the policy of

encouraging unionism as an instrument of social justice.”29

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.30

Relevant to the chore of weighing conflicting values are so-called standards of review or levels of

scrutiny, 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.31

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.32

Licenses, while merely in the nature of a privilege, are not also insulated from the checking effects

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])

See Roe v. Wade, 410 U.S. 113 (1973)24

The State “shall equally protect the life of the mother and the life of the unborn from conception.” (Art. II, §12)25

PBM Employees Org. v. PBM Co., Inc., 51 SCRA 184 (1973)26

Tolentino v. Secretary of Finance, 235 SCRA 630 (1994)27

Social Justice Society v. Atienza, Jr., 545 SCRA 92 (2008)28

Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unions in BPI Unibank , 627 SCRA 59029

(2010)

Manalo v. Roldan-Confesor , 215 SCRA 808 (1992)30

Manotok Realty, Inc. v. CLT Realty Development Corporation, 476 SCRA 305 (2005)31

See Layno, Sr. v. Sandiganbayan, 136 SCRA 536 (1985) and Deloso v. Sandiganbayan, 173 SCRA 409 (1989)32




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of the Due Process Clause, especially if abuse attended their withdrawal or discontinuance. The mere33

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.34

“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 proprietaryinterest 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.”35

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

changing circumstances. “Classic procedural due process issues are concerned with what kind of notice

and what form of hearing the government must provide when it takes a particular action.” Or, as stated36

in another case: “Procedural due process requires a determination of what process is due, when it is due,

and the degree of what is due.” What may be required for purposes of judicial proceedings would not37

be the same in administrative proceedings. Those that satisfy the requirements of due process in the38

investigation of local appointive officials would not suffice for elective officials, and so on. It has also39

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.40

Basic to the idea of procedural due process is the presence of an impartial magistrate or tribunal, if

fairness is to be had. In Office of the Court Administrator v. Floro, Jr., 486 SCRA 66 (2006), it was held

that 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

“[P]ilotage as a profession has taken on the nature of a property right.” (Corona v. United Harbor Pilots Association of the33

Philippines, 283 SCRA 31 [1997])

On the other hand, it has been held that an “airman license cannot be considered a property right, it is but a mere privilege, subject

to the restrictions imposed by the ATO and its revocation if warranted.” ( Ledesma v. Court of Appeals, 541 SCRA 444 [2007])

Mabuhay Textile Mills Corporation v. Ongpin, 141 SCRA 437 (1986)34

Terminal Facilities and Services Corporation v. Philippine Ports Authority, 378 SCRA 82 (2002)35

City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)36

Secretary of Justice v. Lantion, 343 SCRA 377 (2000)37

Cf. Banco Español-Filipino v. Palanca, 37 Phil. 921 (1918) and Ang Tibay v. Court of Industrial Relations, 69 Phil. 635 (1940)38

Joson v. Torres, 290 SCRA 279 (1998)39

People v. Sanchez , 569 SCRA 194 (2008)40




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of a magistrate. The judiciary is certainly not the proper place for such a person to stay.

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 vagueon 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 so-called 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.41

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 thansubstantial governmental interest and on the absence of less restrictive means for achieving that interest.

Strict scrutiny is a judicial standard for determining the quality and the amount of governmental interest

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, or race and facial challenges are allowed for this purpose.42

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.”43

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

City of Manila v. Laguio, Jr., 455 SCRA 308 (2005)41

In League of Cities, 571 SCRA 263 (2008), we also find this in n. 23:42

“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 test is used in

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, 2 Edition, pp. 645-646.”nd

People v. Bon, 506 SCRA 168 (2006)43




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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 non-

violence 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 thanthe 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. In the United States, for

instance, it has been implicated in the right of a woman to have an abortion, and likewise it has been44

attempted – unsuccessfully – to justify a claim to a right to suicide. Elsewhere, it has been referred to45

in relation to the rights to counsel, information, equal protection, public trial, need for courts to46 47 48 49

explicitly state the factual and legal bases for their judgments, reasonableness of presumptions, and50 51

even the right not to be subjected to excessive exemplary damages. It has likewise been considered in52

connection with expropriations, the determination of the voluntariness and admissibility of 53

extrajudicial confessions, as well as the reasonable doubt standard in criminal cases. And, it has also54 55

been invoked to justify the compelled production of relevant presidential materials as against a

generalized assertion of executive privilege. Court access by prisoners is also considered part of the56

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.” Further, inordinate reliance on technical rules of 57

procedure may also offend the guarantee. In another case, it was held that the Special Prosecutor cannot58

See Roe v. Wade, 410 U.S. 113 (1973)

44

See Washington v. Glucksberg , 521 U.S. 702 (1997)45

E.g., People v. Bermas, 306 SCRA 135 (1999); People v. Santocildes, Jr., 321 SCRA 310 (1999); and, People v. Liwanag , 36346

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.”

Tañada v. Tuvera, 136 SCRA 27 (1985) and 146 SCRA 446 (1986)47

Philippine Judges Association v. Prado, 227 SCRA 703 (1993). (“The equal protection of the laws is embraced in the concept of 48

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.”)

Re Oliver , 333 U.S. 257 (1948)49

Yao v. Court of Appeals, 344 SCRA 202 (2000)50

Tot v. United States, 319 U.S. 463 (1943)51

See BMW of North America, Inc. v. Gore, Jr., 517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 53252

U.S. 424 (2001); and, State Farm Mutual Automobile Insurance Company v. Campbell , 538 U.S. 408 (2003).

Visayan Refining Co. v. Camus, 40 Phil. 550 (1919)53

See Dickerson v. United States, 530 U.S. 428 (2000)54

In Re Winship, 397 U.S. 358 (1970)55

United States v. Nixon, 418 U.S. 683 (1974)56

Procunier v. Martinez , 416 U.S. 396 (1974)57

See Banaga v. Majaducon, 494 SCRA 153 (2006)58




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act on his own and direct the filing of an Amended Information without the Ombudsman’s go-ahead

signal, for to do so would be violative of the guarantee of due process.59

Nevertheless, caution should also be had in using it indiscriminately 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. 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.” In another case, it concluded with this observation: “The Court is not unaware60

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.” The Court also observed in another case: “The Court61

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.’”62

Finally, the Court has come up with the concept of statutory due process in order to distinguish it

from constitutional due process. In Serrano v. National Labor Relations Commission, 323 SCRA 445

(2000), the Court held that the dismissal of an employee who was separated for cause without affording

him the notice required by law was considered ineffectual until validated by final judgment. In effect,

the employee would be deemed still an employee in the meantime, and accordingly entitled to his wages

until his dismissal would have been affirmed. The Court majority in that case was also emphatic that

such dismissal was not a violation of due process as the guarantee in the Bill of Rights is directed against

governmental action, not private acts. Then, in Agabon v. National Labor Relations Commission, 442

SCRA 573 (2004), the Court characterized the dismissal without complying with the notice requirement

as a violation of due process. How did it turn around in a manner that is not entirely contrary to what it

said four years earlier? Simple. It came up with something new – two concepts of due process: (a)constitutional due process, and, (b) statutory due process. While under the former, its violation would

lead to the nullity of the action made, in the latter it would not necessarily be the case, depending on

what the statute itself provides.63

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

Perez v. Sandiganbayan, 503 SCRA 252 (2006)59

Bautista v. Secretary of Labor and Employment , 196 SCRA 470 (1991)60

Pacific Timber Export Corporation v. National Labor Relations Commission, 224 SCRA 860 (1993)61

NEECO II v. National Labor Relations Commission, 469 SCRA 169 (2005)62

Note what the Court said in this case, a good window to what it had done recently in changing its mind on its earlier decisions.63

“This is not to say that the Court was wrong when it ruled the way it did in Wenphil, Serrano and related cases. Social justice is not based

on rigid formulas set in stone. It has to allow for changing times and circumstances.”




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system naturally produced high levels of male hormones (androgen). As a result, she 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 she be accommodated?

The Court said yes. It is a recognition of her or his liberty to choose what she or he really is. “CAH

is one of many conditions that involve intersex anatomy. During the twentieth century, medicine adopted

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.64

2. Board of Medicine v. Ota, 558 SCRA 234 (2008)

Here, the Board of Medicine and Professional Regulation Commission refused to grant 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 andgrant 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

down license legislation that vests in public officials discretion to grant or refuse a license to carry on

some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions

for the guidance of said officials in the exercise of their power.” The Court noted that “[n]owhere in said

statutes [R.A. No. 2382 (Medical Act of 1959) and P.D. 223 (Creating the PRC)] is it stated that the

This is to be distinguished from Silverio v. Republic, 537 SCRA 373 (2007), where the petitioner wanted correction of his birth64

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.




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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 already been granted license and is actually practicing therein unduly expands therequirements 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 [Confidential Memorandum of Understanding], 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 democraticState with a fully fleshed Bill of Rights and a Constitution that emphatically rejects ‘l’etat cest moi’ as

the governing philosophy, think not. There is nothing to prevent the Philippine government from

utilizing all the proper channels under law to 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 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




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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 with the internal processes for the divestiture

of private rights.”

5. Aberca v. Ver , – SCRA – (G.R. No. 166216, 14 March 2012)

In this case, defendants – military men – were sued for damages by persons they arrested, detained

and allegedly tortured. The trial court granted the defendants’ motion to dismiss but the Supreme Court

reversed and remanded the case for further proceedings. While the case was with the Court, the EDSA

Revolution occurred. On remand, the records were burned when the Quezon City Hall burned in 1988.

They were later reconstituted at the instance of the plaintiffs. In the meantime, the trial court required

the plaintiffs to report the addresses of the defendants, specially so as most of said defendants were no

longer in office and the Solicitor General who represented them initially (Estelito Mendoza) left office

following the EDSA Revolution. The new Solicitor General (Francisco Chavez) withdraw the OSG’s

representation of the defendants. For failure to do so, the case was dismissed, only to be reconsidered.

Then, the trial court ordered that the notice to file answer be done through publication. The defendantswere then declared in default for failure to answer and an adverse judgment was subsequently rendered.

On petition before the Court of Appeals, the appellate court set aside the judgment Now, the issue before

the Court is whether the trial court acted properly. The Court said there was denial of due process which

invalidated the proceedings against the defendants.

The Court explained that the acceptable modes of service of pleadings, motions, notices, orders,

judgments, and other papers under Rule 13 are (1) personal service, (2) service by mail, and (3)

substituted service, in case service cannot be effected either personally or by mail. “[T]he basic rules on

modes of service of pleadings, motions, notices, orders, judgments, and other papers are mandatory in

nature and, therefore, must be strictly observed.” In the instant case, the defendants “were completely

deprived of due process when they were declared in default based on a defective mode of service – service of notice to file answer by publication. The rules on service of pleadings, motions, notices,

orders, judgments, and other papers were not strictly followed in declaring the respondents in default.

The Court agrees with the CA that the RTC committed procedural lapses in declaring the respondents

in default and in allowing the petitioners to present evidence ex-parte.”

Then for further edification in Remedial Law, Court explained that after failure of personal or mail

service, “there was still another less preferred but proper mode of service available – substituted service

– which is service made by delivering the copy to the clerk of court, with proof of failure of both

personal service and service by mail. Unfortunately, this substitute mode of service was not resorted to

by the RTC after it failed to effect personal service and service by mail. Instead, the RTC authorized an

unrecognized mode of service under the Rules, which was service of notice to file answer by

publication.” In any event, “[i]n case the preferred modes were impractical, the Court should have

required the petitioners to at least report in writing why efforts exerted towards personal service or

service by mail failed. In other words, a convincing proof of an impossibility of personal service or

service by mail to the respondents should have been shown first. The RTC, thus, erred when it ruled that

the publication of a notice to file answer to the respondents substantially cured the procedural defect

equivalent to lack of due process. The RTC cannot just abandon the basic requirement of personal

service and/or service by mail.”

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judgments and other papers allowed by the rules are personal service, service by mail and substituted

service if either personal service or service by mail cannot be made, as stated in Sections 6, 7 and 8 of

Rule 13 of the Rules of Court. Nowhere under this rule is service of notice to file answer by publication

is mentioned, much less recognized. Furthermore, the Court would like to point out that service by

publication only applies to service of summons stated under Rule 14 of the Rules of Court where the

methods of service of summons in civil cases are: (1) personal service; (2) substituted service; and (3)service by publication. Similarly, service by publication can apply to judgments, final orders and

resolutions as provided under Section 9, Rule 13 of the Rules of Court, . . .”

Now, have you not yet gotten the drift? Most often, in learning about Constitutional Law, you may

also digress into learning about other subjects – fringe benefits!

6. 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 recommendedexoneration but submitted that Radam should be held liable for Conduct Unbecoming and fined for

stating in the birth certificate that the father was “unknown” when she knew all along who it was.

The Court agreed that she should could not be held liable as charged. But, could she be found guilty65

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. “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.”

7. Civil Service Commission v. Colanggo, 553 SCRA 640 (2008)

The Court held that “[f]or purposes of determining administrative responsibility, giving birth out of wedlock is not per se immoral65

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 Constitutionand 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 disgraceful and immoral conduct. It may be a not-so-ideal situation and may cause complications for both mother

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

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 either the father or the mother. In such a case, the ‘disgraceful and immoral

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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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 was 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.

8. 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

No. 96-04); and 2) Grave Misconduct and Engaging in Partisan Political Activity (with 2 other

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

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 he 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

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 – 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 CityLegal 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




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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 thedecision 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 arrived at in his recommendation, and which became

the basis of the dismissal of Geronga, has no bearing whatsoever on the offenses with which the latter

was charged under the Sworn Complaint nor to the incidents/acts described therein. 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

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. “In effect, there was nothing for petitioner to appeal from in Administrative Case No. 96-04.”

Is it then all good news for Geronga? No, not really. The Court added: “That said, however, the

nullity of Memorandum Order No. 98-V-05 and the December 1, 1997 Resolution/Recommendation

leaves Administrative Case No. 96-04 unresolved. Although the Court may already decide said case 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.

9. 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

of 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




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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. Petitioner

assailed 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 supportingdocuments 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 administrative body) must be rendered on the evidence presented

at the hearing, or at least contained 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 assumednames or aliases in the supporting 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 charges under the

complaint-affidavits.”

Further, the Court added: “That the petitioner may have actual prior knowledge of the identificationdocuments 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 ).”

10. Formantes v. Duncan Pharmaceuticals, Phils., Inc., 607 SCRA 268 (2009)

In Genuino v. National Labor Relations Commission, 539 SCRA 342 (2007), the Court held that 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. On the other hand, Janssen Pharmaceutica v.

Silayro, 546 SCRA 628 (2008), held that a person cannot be made to account for and explain an event

that has yet to happen. But can an employee’s dismissal be upheld by the Labor Arbiter based on a




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ground other than that specified by his employer? The Court said yes in Formantes.

The Court referred 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 anda 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.”

11. 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.”

12. 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 judgmentor 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.” And, of course, a void

judgment for lack of due process of law, is no judgment at all.

13. Jamsani-Rodriguez v. Ong , 628 SCRA 626 (2010)

Here, the Court said that Sandiganbayan justices should hear hearing collectively, or as a collegial

body, and not individually. “We find that the procedure adopted by respondent Justices for their

provincial hearings was in blatant disregard of PD 1606, as amended, the Rules of Court , and the Revised

Internal Rules of the Sandiganbayan. Even worse, their adoption of the procedure arbitrarily denied the

benefit of a hearing before a duly constituted Division of the Sandiganbayan to all the affected litigants,

including the State, thereby rendering the integrity and efficacy of their proceedings open to seriouschallenge on the ground that a hearing before a duly constituted Division of the Sandiganbayan was of

the very essence of the constitutionally guaranteed right to due process of law.”

What then is the effect on the proceedings? The Court said: “[T]he Court clarifies that this decision

is limited to the determination of the administrative culpability of the respondent Justices, and does not

extend to the ascertainment of whatever might be the effects of any irregularity they committed as

members of the Fourth Division on the trial proceedings. This clarification stresses that the proceedings,

if procedurally infirm, resulted from the acts of the Sandiganbayan as a collegial body, not from their

acts as individual Justices. The remedy against any procedural infirmity is not administrative but




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judicial.”

14. 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 appealshould 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 the

appellee with the Appeal Memorandum constitutes grave abuse of discretion and the NLRC should not

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 a

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.

15. Portuguez v. GSIS Family Bank , 517 SCRA 309 (2007)

Portuguez complained of having been constructively dismissed, and that he was forced to retire atthe 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 P=25,000 to P=30,000.”

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.”

In the same way, it is not enough to simply write something in your memorandum. You must havemore than conclusions to convince the examiner that – at the very least – you know what you are

supposedly talking about.

16. 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 respondent in an administrative case is not entitled to be informed of

findings and recommendations of an investigating committee. He is only entitled to the administrative

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

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.

17. Solid Homes, Inc. v. Laserna, 550 SCRA 613 (2008)

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

constitutional mandate that, ‘no decision shall be rendered by any court without expressing therein




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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 law66

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.”67

Making reference to what was held in the venerable Ang Tibay v. Court of Industrial Relations, 69

Phil. 635 (1940), the Court said: “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.”

18. 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 ? 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 to the best interest of the service may or may not be characterized by

corruption or a willful intent to violate the law or to disregard established rules. Under 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 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.”

In Francisco v. Permskul , 173 SCRA 324 (1989), the Court declared: “The memorandum decision, to be valid, cannot incorporate66

the findings of fact and the conclusions of law of the lower court only by remote reference, which is to say that the challenged decision

is not easily and immediately available to the person reading the memorandum decision. For the incorporation by reference to be allowed,

it must provide for direct access to the facts and the law being adopted, which must be contained in a statement attached to the said

decision. In other words, the memorandum decision authorized under Section 40 of P.P. Blg. 129 should actually embody the findings

of fact and conclusions of the lower court in an annex attached to and made an indispensable part of the decision.” Then came up with

this admonition: “The Court finds it necessary to emphasize that the memorandum decision should be sparingly used lest it becomes an

addictive excuse for judicial sloth. It is an additional condition for its validity that this kind of decision may be resorted to only in

cases where the facts are in the main accepted by both parties or easily determinable by the judge and there are no doctrinal

complications involved that will require an extended discussion of the laws involved. The memorandum decision may be employed

in simple litigations only, such as ordinary collection cases, where the appeal is obviously groundless and deserves no more than

the time needed to dismiss it.”

Cf. Pilipinas Kao, Inc. v. Court of Appeals, 372 SCRA 548 (2001), where the Court said the constitutional and statutory mandate67

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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19. Romagos v. Metro Cebu Water District , 533 SCRA 50 (2007)

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 separatedfrom 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 hisability 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.”

20. De La Salle University, Inc. v. Court of Appeals, 541 SCRA 22 (2007)

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

arbitrarily wielded. In short, the penalty must be appropriate for the misdeed committed. The power to

discipline does not give schools “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 arbitrariness intrudes. That would

give rise to a due process question.

Thus, the Court held that the penalty of expulsion is grossly disproportionate to the gravity of the68

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

“An extreme penalty of an erring pupil or student consisting of his exclusion from admission to any public or private school in68

the Philippines and which requires the prior approval of the Secretary.” (Manual of Regulations for Private Schools [1992])




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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.69

21. Office of the Ombudsman v. Sison, 612 SCRA 702 (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.”70

22. 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 irregularly obtained? In this case the Court said no, not necessarily. “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.”

And, as reminder about the proper scope of judicial review of administrative determinations, theCourt said: “In reviewing administrative decisions of the executive branch of the government, the

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

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.”

23. Macias v. Macias, 601 SCRA 203 (2009)

For a time the Court has been saying in some cases that administrative cases against judges must71

“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 being69

undesirable, and transfer credentials immediately issued.” (Manual of Regulations for Private Schools [1992])

In National Appellate Board (NAB) of the National Police Commission (NAPOLCOM) v. Mamauag , 466 SCRA 624 (2005), the70

Court held: “[T]he government party that can appeal is not the disciplining authority or tribunal which previously heard the case and

imposed the penalty of demotion or dismissal from the service. The government party appealing must be one that is prosecuting the

administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal

hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent.”

See, for instance, Alcuizar v. Carpio, 529 SCRA 216 (2007) and Tan v. Pacuribot , 540 SCRA 246 (2007), which were promulgated71

only four months apart – 7 August and 14 December. Alcuizar demanded proof beyond reasonable doubt, while Tan made reference only




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be substantiated by proof beyond reasonable doubt though in some other cases it would refer to mere

substantial evidence. In Macias, the Court came up with this clarificatory pronouncement:

“[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 fromhis 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.”

24. Carag v. National Labor Relations Commission, 520 SCRA 28 (2007)

Do corporate officers incur personal liability in closures of establishment without the required one-

month 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 suchnotice an unlawful act and providing for its penalty. In short, no personal liability.

25. 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

establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, areunimpeachable 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

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

to substantial evidence.

Arnado v. Suarin, 467 SCRA 402 (2005), even had to call for the application of the quantum of proof beyond reasonable doubt 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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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 4 of the Carolene Products case acknowledged that the judiciary would defer to the

legislature unless there is a discrimination against a ‘discrete and insular’ minority or infringement of 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 meansemployed 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.”

26. Betoy v. Board of Directors, National Power Corporation, 658 SCRA 420 (2011)

Where the employee retires and meets the eligibility requirements, he acquires a vested right to

benefits that is protected by the due process clause. Retirees enjoy a protected property interest whenever

they acquire a right to immediate payment under pre-existing law. Thus, a pensioner acquires a vested

right to benefits that have become due as provided under the terms of the public employees’ pension

statute. No law can deprive such person of his pension rights without due process of law, that is, without




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notice and opportunity to be heard. Verily, when an employee has complied with the statutory

requirements to be entitled to receive his retirement benefits, his right to retire and receive what is due

him by virtue thereof becomes vested and may not thereafter be revoked or impaired.

The Court declared that if Section 63 of the EPIRA law is misinterpreted as proscribing payment of

retirement benefits under the GSIS law, it would be unconstitutional as it would be violative of Section

10, Article III of the 1987 Constitution or the provision on non-impairment of contracts.

27. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council , 632 SCRA 146

(2010)

In Romualdez v. Sandiganbayan, 435 SCRA 371 (2004), Justice Tinga, all by his lonesome, wrote

a spirited dissent to the majority’s pronouncement that the void-for-vagueness doctrine only has

application to free speech cases. To him, it was more a dictate of due process. That debate continued in

Romualdez v. Commission on Elections, 553 SCRA 370 (2008), but this time 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, along the same lines as Justice Tinga’s.

In Southern Hemisphere, the Court finally clarified without much debate the apparent confusion brought about the mix-up in regard to facial challenges, overbreadth doctrine, and the void-for-

vagueness doctrine. The Court lectured thus: “The confusion apparently stems from the interlocking

relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge

against a penal statute (under a claim of violation of due process of law) or a speech regulation (under

a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of

vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers

from the defect of vagueness when it lacks comprehensible standards that men of common intelligence

must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution

in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted

by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying

out its provisions and becomes an arbitrary flexing of the Government muscle. The overbreadth doctrine,meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject

to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby

invade the area of protected freedoms. As distinguished from the vagueness doctrine, the overbreadth

doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain

from that behavior, even though some of it is protected.”

Further on esoteric learning, the Court said: “ A “facial” challenge is likewise different from an

“as-applied” challenge. Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws

and defects, not only on the basis of its actual operation to the parties, but also on the assumption or

prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.” Any difference between speech cases and penal laws in regard to these

concepts? Yes, a litigant cannot successfully mount a facial challenge against a criminal statute on either

vagueness or overbreadth grounds. “The allowance of a facial challenge in free speech cases is justified

by the aim to avert the ‘chilling effect’ on protected speech, the exercise of which should not at all times

be abridged. As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear

an ‘in terrorem effect’ in deterring socially harmful conduct.”

Also, take note that “the application of the overbreadth doctrine is limited to a facial kind of

challenge and, owing to the given rationale of a facial challenge, applicable only to free speech




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cases. By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in

order to plot areas of protected speech, inevitably almost always under situations not before the court,

that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot

be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied

to the litigants.” And, one must always remember the high value placed on speech which explains why

“[a]ttacks on overly broad statutes are justified by the ‘transcendent value to all society of constitutionally protected expression.’”

On the facts of the case, the Court concluded that since a penal statute may only be assailed for being

vague as applied to petitioners, a limited vagueness analysis of the definition of “terrorism” in RA 9372

is legally impermissible absent an actual or imminent charge against them. Again, harking back to

American experience, it observed: “American jurisprudence instructs that ‘vagueness challenges that do

not involve the First Amendment must be examined in light of the specific facts of the case at hand and

not with regard to the statute’s facial validity.’ For more than 125 years, the US Supreme Court has

evaluated defendants’ claims that criminal statutes are unconstitutionally vague, developing a doctrine

hailed as ‘among the most important guarantees of liberty under law.’” On the other hand, “[i]n this

jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in

examining the constitutionality of criminal statutes.”

But does not R.A. No. 9372 actually regulate speech, thus justifying a facial analysis? The Court said

no. “In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend

that the element of ‘unlawful demand’ in the definition of terrorism must necessarily be transmitted

through some form of expression protected by the free speech clause. The argument does not persuade.

What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under

RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key

qualifying phrases in the other elements of the crime, including the coercion of the government to accede

to an ‘unlawful demand.’ Given the presence of the first element, any attempt at singling out or

highlighting the communicative component of the prohibition cannot recategorize the unprotected

conduct into a protected speech. Petitioners’ notion on the transmission of message is entirely inaccurate,as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime

entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts

against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful

transaction.” In fine, “[u]tterances not elemental but inevitably incidental to the doing of the criminal

conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the

whole act as conduct and not speech. This holds true a fortiori in the present case where the expression

figures only as an inevitable incident of making the element of coercion perceptible.” In other words:

“Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a

prohibited conduct. Since speech is not involved here, the Court cannot heed the call for a facial

analysis.”

Finally, to make sure that there is no possible conflict with what the U.S. Supreme Court said in a

recent case, Holder v. Humanitarian Law Project , 561 U.S. ___ (2010), the Court explained that the

former allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since

the therein plaintiffs there faced a “credible threat of prosecution” and “should not be required to await

and undergo a criminal prosecution as the sole means of seeking relief.” In Southern Hemisphere,

however, the “petitioners have established neither an actual charge nor a credible threat of

prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of ‘terrorism’

is thus legally impermissible.”




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Then this parting admonition: “The Court reminds litigants that judicial power neither contemplates

speculative counseling on a statute’s future effect on hypothetical scenarios nor allows the courts to be

used as an extension of a failed legislative lobbying in Congress.”

28. 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 thatcharged 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, . . .” 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 unequaltreatment 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. As the Court intoned in Mirasol v. Department of Public Works and

Highways, 490 SCRA 318 (2006), “[t]o begin with, classification by itself is not prohibited,” and then

went on to state that “[n]ot all motorized vehicles are created equal.” 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 but not in others.

Age, legitimacy, academic performance, courses of study, office and status, and other bases for

classification may make for some valid differences at times, but not so under other situations and climes,

and so on. And, what may be constitutional when seen from one perspective may not be so from another

vantage point.72

As for you taking the Bar exams, 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.73

1. 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 while he is not, such that he may validly complain of others being given

undue favor, while he is the only one unjustly discriminated against.

2. Santos v. People, 563 SCRA 341 (2008)

If a tax evasion charge against one show business personality is dismissed, should a similar charge

against another similar personality be dismissed, too? Of course, not!

See Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 446 SCRA 299 (2004)72

See Nixon v. Administrator of General Services, 433 U.S. 425 (1977)73




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“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 committedidentical acts for which they were charged with the violation of the same provisions of the NIRC, and

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 Attorney Torrevillas to rule the same way on the charges against

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 to be present in it an element of intentional or

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.”74

3. Nicolas v. Romulo, 578 SCRA 438 (2009)

If foreign troops charged with the commission of crimes in the country are treated differently fromother 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 the custody of 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.”

4. Serrano v. Gallant Maritime Services, Inc., 582 SCRA 254 (2009)

At issue here is the constitutionality of the last clause of the 5 paragraph of §10 R.A. No. 8042th

(Migrant Workers and Overseas Filipinos Act of 199). The 5 paragraph provides: “In case of th

Earlier, in Reyes v. Pearlbank Securities, Inc., 560 SCRA 518 (2008), the Court held: “While the right to equal protection of the74

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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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.” Does this violate the

guarantee of equal protection among OFWs? Yes.

The Court noted that “[t]he enactment of the subject clause in R.A. No. 8042 introduced adifferentiated rule of computation of the money claims of illegally dismissed OFWs based on their

employment periods, in the process singling out one category whose contracts have an unexpired portion

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 unexpired portion thereof, whichever is less, but all the

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

their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries

for three months only.”

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.”

Then, on the use of the standards of review, the Court noted: “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 prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign

decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive

and have been used to support many of our decisions. 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




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repugnant to the Constitution and the rights it enshrines.’”75

5. League of Cities of the Philippines (LCP) v. Commission on Elections, 571 SCRA 263 (2008),

608 SCRA 636 (2009), 628 SCRA 819 (2010), 643 SCRA 149 (2011), 648 SCRA 344

(2011), and 652 SCRA 798 (2011)

When the 11 Congress adjourned in June 2001, there were on deck bills to convert 24th 76

municipalities into cities but which were never enacted into law. In the meantime, R.A. 9009 became

law, 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 P=20 Million to P=100 Million. After

the effectivity of RA 9009, the House of Representatives of the 12 Congress adopted Joint Resolutionth

No. 29, which sought to exempt from the P=100 million income requirement in RA 9009 the 24

municipalities whose cityhood bills were not approved in the 11 Congress. However, the 12th th77

Congress ended without the Senate approving Joint Resolution No. 29. During the 13 Congress, theth 78

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. The 16

municipalities then filed, through their respective sponsors, individual cityhood bills, which bills

contained a common provision exempting all the 16 municipalities from the P=100 million incomerequirement 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, one of the issues raised is about alleged violation of the

Equal Protection Clause.

In the original decision, 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 11 Congressth

when RA 9009 was enacted does not constitute a valid classification between those entitled and those

not entitled to exemption from the P=100 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 allsimilarly situated. There is no substantial distinction between municipalities with pending cityhood bills

in the 11 Congress and municipalities that did not have pending bills. The mere pendency of a cityhoodth

bill in the 11 Congress is not a material difference to distinguish one municipality from another for theth

purpose of the income requirement. The classification criterion – mere pendency of a cityhood bill in

the 11 Congress – is not rationally related to the purpose of the law which is to prevent fiscallyth

non-viable municipalities from converting into cities. Further, the fact of pendency of a cityhood bill in

the 11 Congress limits the exemption to a specific condition existing at the time of passage of RA 9009,th

which specific condition will never happen again. This violates the requirement that a valid classification

must not be limited to existing conditions only. 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 11 Congress – as against all other municipalities that want to convert into citiesth

Congress seems to have wittingly or unwittingly defied the Supreme Court in enacting R.A. No. 10222 (approved on 8 March75

2010). Section 7 of the new law, amended §10, ¶5 of R.A. 8042, by writing the same language invalidated in Serrano, viz :

“In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, or any

unauthorized deductions from the migrant worker's salary, the worker shall be entitled to the full reimbursement if his placement fee and

the deductions made with interest at 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.”

June 1998 to June 2001.76






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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.

Subsequently, the following year, when the Court reconsidered its earlier ruling (which had already

become final and and entry of judgment made) the following year, it held, among others, on equal79

protection issue, that this particular constitutional protection extends likewise to natural or artificial

persons, but with regard to artificial persons are concerned, they are entitled to protection only in so far 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, the Court found that all of them were met. The favorabletreatment 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 9009 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

Here, it is interesting how the Court arrived at its basis for lifting the entry of judgment, an excellent lesson in imaginative and79

creative legal reasoning. It said, inter alia:

“The 6-6 vote on the motion to reconsider the Resolution of March 31, 2009, which denied the initial motion on the sole ground that

“the basic issues had already been passed upon” betrayed an evenly divided Court on the issue of whether or not the underlying Decision

of November 18, 2008 had indeed passed upon the issues raised in the motion for reconsideration of the said decision. But at the end of

the day, the single issue that matters and the vote that really counts really turn on the constitutionality of the cityhood laws. And be it

remembered that the inconclusive 6-6 tie vote reflected in the April 28, 2009 Resolution was the last vote on the issue of whether or not

the cityhood laws infringe the Constitution. Accordingly, the motions of the respondent LGUs, in light of the 6-6 vote, should be

deliberated anew until the required concurrence on the issue of the validity or invalidity of the laws in question is, on the merits, secured.

“It ought to be clear that a deadlocked vote does not reflect the “majority of the Members” contemplated in Sec. 4 (2) of Art. VIII

of the Constitution.

* * * * *

“On the postulate then that first , the finality of the November 18, 2008 Decision has yet to set in, the issuance of the precipitate entry

of judgment notwithstanding, and second , the deadlocked vote on the second motion for reconsideration did not definitely settle the

constitutionality of the cityhood laws, the Court is inclined to take another hard look at the underlying decision. Without belaboring in

their smallest details the arguments for and against the procedural dimension of this disposition, it bears to stress that the Court has the

power to suspend its own rules when the ends of justice would be served thereby. In the performance of their duties, courts should not

be shackled by stringent rules which would result in manifest injustice. Rules of procedure are only tools crafted to facilitate the attainment

of justice. Their strict and rigid application must be eschewed, if they result in technicalities that tend to frustrate rather than promote

substantial justice. Substantial rights must not be prejudiced by a rigid and technical application of the rules in the altar of expediency.

When a case is impressed with public interest, a relaxation of the application of the rules is in order. Time and again, this Court has

suspended its own rules or excepted a particular case from their operation whenever the higher interests of justice so require.”




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respondent LGUs/municipalities from the P=100 million income requirement was meant to reduce the

inequality occasioned by the passage of the amendatory RA 9009. From another perspective, the

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

57 conversion bills filed in the 11 Congress, 33 of those became laws before the adjournment of thatth

Congress. The then bills of the challenged cityhood laws were not acted upon due, inter alia, to theimpeachment 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

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 P=100 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 wouldapply 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 P=20

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.”

Then the Court reverted to its original decision in 2010, only to reconsider anew in 2011. This last

time, perhaps, the Court said: “Verily, the determination of the existence of substantial distinction with

respect to respondent municipalities does not simply lie on the mere pendency of their cityhood bills

during the 11 Congress. This Court sees the bigger picture. The existence of substantial distinction withth

respect to respondent municipalities covered by the Cityhood Laws is measured by the purpose of the

law, not by R.A. No. 9009, but by the very purpose of the LGC, as provided in its Section 2 (a), . . .

Indeed, substantial distinction lies in the capacity and viability of respondent municipalities to become

component cities of their respective provinces. Congress, by enacting the Cityhood Laws, recognized

this capacity and viability of respondent municipalities to become the State’s partners in accelerating

economic growth and development in the provincial regions, which is the very thrust of the LGC,

manifested by the pendency of their cityhood bills during the 11 Congress and their relentless pursuitth

for cityhood up to the present. Truly, the urgent need to become a component city arose way back in the

11 Congress, and such condition continues to exist.” In other words, “Congress merely recognized theth

capacity and readiness of respondent municipalities to become component cities of their respective




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provinces.”

How about the alleged reduction in petitioners’ property – a “just share” in the IRA: “To be sure,

petitioners are entitled to a ‘just share,’ not a specific amount. But the feared reduction proved to be false

when, after the implementation of the Cityhood Laws, their respective shares increased, not decreased.”

In any event, “What these petitioner cities were stating as a reduction of their respective IRA shares was

based on a computation of what they would receive if respondent municipalities were not to becomecomponent cities at all. Of course, that would mean a bigger amount to which they have staked their

claim. After considering these, it all boils down to money and how much more they would receive if

respondent municipalities remain as municipalities and not share in the 23% fixed IRA from the national

government for cities.” And, in this regard, the Court noted: “It is like the elder siblings wanting to kill

the newly-borns so that their inheritance would not be diminished.”

On 12 April 2011, the Court decreed “the Ad Cautelam Motion for Reconsideration (of the Decision

dated 15 February 2011) is denied with finality.” (Whewww, after four different decisions in four years,

hopefully we now see an end to the zigzagging route to the final destination.)80

6. Quinto v. Commission on Elections, 606 SCRA 258 (2009) and 613 SCRA 385 (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. Themeasure is further aimed at promoting the efficiency, integrity, and discipline of the public service by

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

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 his appointive office, the

The original Decision on 18 November 2008 was by a 6-5 vote, with four abstentions, while the motion for reconsideration was80

decided by a vote of 7-5, with 2 abstentions. On the second motion for reconsideration, the votation was evenly split, 6-6, with 3

abstaining.

On 21 December 2009, the Court voted 6-4 for the reversal of its original decision, with 3 abstentions. (There were then 2 vacancies

in the Court.) On 24 August 2010, a new majority of 7 voted for the original decision, while 6 voted against, and 2 took no part.

By a new 7-6-2 vote on 15 February 2011, the table was turned upside down anew, the latest majority uphoding the Cityhood laws,

a judgment reiterated by the 12 April 2011 Resolution.

So what does one make of all these? Well, for the 2011 Bar Examinations Chairman, Justice Abad, he wrote in his separate concurring

opinion to the 15 February 2011 Resolution: “This to me is a healthy sign of democracy at work, the members being blind to the need

to conform.”




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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

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 ‘onestep 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.”

7. Biraogo v. Philippine Truth Commission of 2010, 637 SCRA 78 (2010)

In this case, the Court held that the Creation of the Truth Commission specifically mandated to

investigate reported cases of graft and corruption allegedly committed during the previous (Arroyo)

administration without including other past administrations was violative of the guarantee of equal

protection.

It declared that the “classification must not be based on existing circumstances only, or so constituted

as to preclude addition to the number included in the class. It must be of such a nature as to embrace all

those who may thereafter be in similar circumstances and conditions. It must not leave out or

‘underinclude’ those that should otherwise fall into a certain classification.” Thus, it struck downExecutive Order No. 1. “In this regard, it must be borne in mind that the Arroyo administration is but

just a member of a class, that is, a class of past administrations. It is not a class of its own. Not to include

past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot

sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle

for vindictiveness and selective retribution.” It further pronounced that “Executive Order No. 1 suffers

from arbitrary classification. . . . While reasonable prioritization is permitted, it should not be arbitrary

lest it be struck down for being unconstitutional.”

The Court also added that it is not unaware that mere underinclusiveness is not fatal to the validity

of a law under the equal protection clause. “With regard to equal protection claims, a legislature does

not run the risk of losing the entire remedial scheme simply because it fails, through inadvertence or

otherwise, to cover every evil that might conceivably have been attacked. In Executive Order No. 1,

however, there is no inadvertence. That the previous administration was picked out was deliberate and

intentional as can be gleaned from the fact that it was underscored at least three times in the assailed

executive order. It must be noted that Executive Order No. 1 does not even mention any particular act,

event or report to be focused on unlike the investigative commissions created in the past. ‘The equal

protection clause is violated by purposeful and intentional discrimination.’”




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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. As much as possible, he must still do it in a civilized manner, unless his life81

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 exceptionswould 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

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. And that is not something cast in rigid and inflexible forms and shapes. “[T]he Fourth82

Amendment does not insist upon bright-line rules. Rather, it recognizes that no single set of legal rules83

can capture the ever changing complexity of human life.”84

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.

85

In regard to anticipatory warrants – where they are applied for even before the contraband is yet to

be delivered to the place to be searched – the U.S. Supreme Court declared in United States v. Grubbs,

See People v. Go, 411 SCRA 81 (2003)81

“[B]ecause the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain82

exceptions.” ( Brigham City v. Stuart , 547 U.S. 398 [2006])

This is the American counterpart to Art. III, §2 of the Philippine Constitution.83

Justice Breyer, concurring in Georgia v. Randolph, 547 U.S. 103 (2006)84

United Laboratories, Inc. v. Isip, 461 SCRA 574 (2005)85




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547 U.S. 90 (2006): “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.” In that sense, anticipatory warrants are no different

in principle from ordinary warrants. They also 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. “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 .”

Directly related to the right against unreasonable searches and seizures is the right to privacy. In this

regard, the Court said in Sabio v. Gordon, 504 SCRA 704 (2006): “Zones of privacy are recognized and

protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law

and in accordance with customary legal process. The meticulous regard we accord to these zones arises

not only from our conviction that the right to privacy is a ‘constitutional right ’ and ‘the right most valued

by civilized men,’ but also from our adherence to the Universal Declaration of Human Rights which

mandates that, ‘no one shall be subjected to arbitrary interference with his privacy’ and ‘everyone has

the right to the protection of the law against such interference or attacks.’”

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 Bayaca, 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. He was not fined, however, because death snatched him

from the claws of punishment.

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?

“As the term implies, ‘probable cause’ is concerned with probability, not absolute or even moral

certainty. The standards of judgment are those of a reasonably prudent 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




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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

suspected violators of the law.” Further, “[t]here is nothing in the provisions of law concerning theissuance 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 descriptionof 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 thingsto 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.86

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

relation to Section 170 of Republic Act No. 8293.

3. Valeroso v. Court of Appeals, 598 SCRA 41 (2009)

In this case, the search purportedly incident to arrest was conducted after the suspect was taken out

of his room and the police had tied his hands. Thereafter, a revolver with live ammunition was allegedly

See People v. Tee, 395 SCRA 419 (2003), where the Court held that the phrase “undetermined amount of marijuana” satisfies86

the particularity requirement.




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found in a locked cabinet inside the room. Could this qualify as a valid search incident to a lawful arrest?

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 suspect’s person. “[A] valid arrest allows the seizure of evidence or dangerous

weapons either on the person of the one arrested or within the area of his immediate control. The phrase ‘within the area of his immediate control’ means the area from within which he might gain

possession of a weapon or destructible evidence.” 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,

461 SCRA 574 (2005): 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 availableto 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

member of the lawful occupant’s family” under Section 8 of Rule 126.

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




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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.

Where there is no allegation that the design and/or mark of a particular brand of playing cards is a

reproduction, counterfeit, copy, or colorable imitation of another registered mark legally owned by

another, there is no crime of trademark infringement that appears to have been committed or perpetratedto 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 searchtwo 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 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 notuncommon in our society for people of different races to live together. Just as people of different races

live and work together, so too might they engage in joint criminal activity. The deputies, who were

searching a house where they believed a suspect might be armed, possessed authority to secure the

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

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,




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“[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, when officers execute a valid warrant and act in a reasonable

manner to protect themselves from harm, the Four th Amendment is not violated.

Be properly attired then when going to sleep and when going to take the Bar exams.

7. 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

to elucidate on the rationale for the exemption of searches of moving vehicles from the requirement of

search warrant, thus: ‘[T]he rules governing search and seizure have over the years been steadily

liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is soconsidering 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.”

The Court cautioned, however, in regard to vehicle searches, that “the exception from securing a

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

constitutional stipulations inutile and expose the citizenry to indiscriminate police distrust which couldamount 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.” Here, the police had such probable

cause.

8. 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




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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.”

9. 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. . . . Indeed, while the power to search and seize may at times be necessary

to the public welfare, still it must 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.”

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. Is the search and seizure valid? “For the exception in

Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the

person to be arrested must execute an overt act indicating that he has just committed, is actually

committing, or 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’sversion 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.

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




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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

duties with commitment to the highest degree of diligence, righteousness and respect for the law.”

Further in regard to bases for warrantless arrest, in People v. Racho, 626 SCRA 633 (2010), the

Court reminded everyone that the “long standing rule in this jurisdiction is that ‘reliable information’alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused

perform some overt act that would indicate that he has committed, is actually committing, or is

attempting to commit an offense.”

10. Galvante v. Casimiro, 552 SCRA 304 (2008)

If a person has his vehicle searched without warrant and he claims that the same was 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). The person’s remedy against warrantless searches would be Art. 32 in relation to Art.

2219 (6) and (10) of the Civil Code, and/or disciplinary and administrative, under Section 41 of R.A.

6975 (DILG Act of 1990).

11. 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 the 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, onrequest 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 P=40,000 or

collateral of same value, representing its estimate of the cost of reconstruction of damage but which

Superlines estimated only to be P=10,000. 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




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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.

12. Social Justice Society v. Dangerous Drugs Board , 570 SCRA 410 (2008)

Would the constitutional proscription against unreasonable searches and searches be violated by the

provisions 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 drugtesting 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, themandatory 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 themeaning 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

the company’s work policies, the collective bargaining agreement, if any, entered into by management

and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in

the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a

degree of impingement upon such privacy has been upheld.” Further, “[j]ust as defining as the first factor

is the character of the intrusion authorized by the challenged law.




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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 guide authorities in the conduct of the random testing, . . . the challenged drug test

requirement is, under the limited context of the case, reasonable and, ergo, constitutional.”

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.”

13. Lucas v. Lucas, 650 SCRA 667 (2011)

Here, the Court took note of the need for some safeguards in regard to DNA testing as part of

paternity suits, and the possible abuse that may ensue. It observed that in some foreign jurisdictions, a

court order for blood testing is considered a “search,” which, under their Constitutions (as in ours), must

be preceded by a finding of probable cause in order to be valid, hence, the requirement of a prima facie

case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable

cause. It then proceeded to declare that the same condition precedent should be applied in our

jurisdiction to protect the putative father from mere harassment suits – thus, during the hearing on the

motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable

possibility of paternity.

14. Pollo v. Constantino-David , 659 SCRA 198 (2011)

The case involves a search of office computer assigned to a Civil Service Commission employee and

whose personal files stored in said computer were used by the government employer as evidence of

misconduct. This came about following an anonymous complaint charging the employee of lawyering

for parties having pending cases before the CSC. The employee was found guilty of dishonesty, grave

misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.)

No. 6713 and penalized him with dismissal.

Here, the files in the computers in the division where the employee worked were backed up. All the

computers were then sealed and secured for the purpose of preserving all the files stored therein. After




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examining the contents, it was found that most of the files copied from the computer assigned to and

being used by the employee, numbering about 40 to 42 documents, were draft pleadings or letters in

connection with administrative cases in the CSC and other tribunals. He was then charged and

investigated, after which he was dismissed.

A pivotal issue is about the legality of the search conducted on the employee’s office computer and

the copying of his personal files without his knowledge and consent, allegedly a transgression on hisconstitutional right to privacy.

Relying on American cases, particularly, O’Connor v. Ortega, 480 U.S. 709 (1987), and United

States v. Mark L. Simons, 206 F.3d 392 (4 Cir. 2000), the Court ruled for CSC. In O’Connor the U.S.th

Supreme Court recognized that “special needs” authorize warrantless searches involving public

employees for work-related reasons, and laid down a balancing test under which government interests

are weighed against the employee’s reasonable expectation of privacy. This reasonableness test

implicates neither probable cause nor the warrant requirement, which are related to law enforcement.

Simons subsequently applied O’Connor.

The Supreme Court then proceeded to state: “Applying the analysis and principles announced in

O’Connor and Simons to the case at bar, we now address the following questions: (1) Did petitioner

have a reasonable expectation of privacy in his office and computer files?; and (2) Was the search

authorized by the CSC Chair, the copying of the contents of the hard drive on petitioner’s computer

reasonable in its inception and scope? In this inquiry, the relevant surrounding circumstances to consider

include “(1) the employee’s relationship to the item seized; (2) whether the item was in the immediate

control of the employee when it was seized; and (3) whether the employee took actions to maintain his

privacy in the item.” These factors are relevant to both the subjective and objective prongs of the

reasonableness inquiry, and we consider the two questions together. Thus, where the employee used a

password on his computer, did not share his office with co-workers and kept the same locked, he had

a legitimate expectation of privacy and any search of that space and items located therein must comply

with the Fourth Amendment.”To the first question, the answer is no. The Court explained: “Petitioner failed to prove that he had

an actual (subjective) expectation of privacy either in his office or government-issued computer which

contained his personal files. Petitioner did not allege that he had a separate enclosed office which he did

not share with anyone, or that his office was always locked and not open to other employees or visitors.

Neither did he allege that he used passwords or adopted any means to prevent other employees from

accessing his computer files. On the contrary, he submits that being in the public assistance office of the

CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown

people, whom he even allowed to use his computer which to him seemed a trivial request. He described

his office as ‘full of people, his friends, unknown people’ and that in the past 22 years he had been

discharging his functions at the PALD, he is ‘personally assisting incoming clients, receiving documents,

drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public

Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone,

that in fact he stays in the office as a paying customer.’ Under this scenario, it can hardly be deduced that

petitioner had such expectation of privacy that society would recognize as reasonable. Moreover, even

assuming arguendo, in the absence of allegation or proof of the aforementioned factual circumstances,

that petitioner had at least a subjective expectation of privacy in his computer as he claims, such is

negated by the presence of policy regulating the use of office computers.” That policy put employees on

notice that “they have no expectation of privacy in anything they create, store, send or receive on the

office computers, and that the CSC may monitor the use of the computer resources using both automated




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or human means. This implies that on-the-spot inspections may be done to ensure that the computer

resources were used only for such legitimate business purposes.”

How about the second question – was the sear ch reasonable? The Court said yes. The search was

conducted in connection with investigation of work-related misconduct. “A search by a government

employer of an employee’s office is justified at inception when there are reasonable grounds for

suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.” Here,the search was justified at its inception and scope.

Incidentally, would it make any difference if the computer searched was personally owned by the

employee. It would, and here the Court referred to Anonymous Letter-Complaint against Atty. Miguel

Morales, Clerk of Court, Metropolitan Trial Court of Manila, 571 SCRA 361 (2008), which it then

distinguished from the instant case – “unlike the former which involved a personal computer of a court

employee, the computer from which the personal files of herein petitioner were retrieved is a

government-issued computer, hence government property the use of which the CSC has absolute right

to regulate and monitor.”

15. United States v. Jones, 565 U.S. ___ (23 January 2012)

This case illustrates once more the adjustments and adaptations that would have to done in regard

to constitutional guarantees applied in relation to modern law-enforcement amenities, such as Global

Position System (GPS) tracking device. The U.S. Supreme Court held that the attachment of such a

device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements

on public streets, constitutes a search within the meaning of the Fourth Amendment. It is also said that

it is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment.

The case also discussed some legal developments relative to the Fourth Amendment protection. “The

text of the Fourth Amendment reflects its close connection to property, since otherwise it would have

referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the

phrase ‘in their persons, houses, papers, and effects’ would have been superfluous. Consistent with thisunderstanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the

latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001); . . . Thus, in Olmstead v.

United States, 277 U. S. 438 (1928), we held that wiretaps attached to telephone wires on the public

streets did not constitute a Fourth Amendment search because ‘[t]here was no entry of the houses or

offices of the defendants,’. . . Our later cases, of course, have deviated from that exclusively

property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that ‘the Fourth

Amendment protects people, not places,’ and found a violation in attachment of an eavesdropping device

to a public telephone booth. Our later cases have applied the analysis of Justice Harlan's concurrence in

that case, which said that a violation occurs when government officers violate a person's ‘reasonable

expectation of privacy.’”

16. Abelita III v. Doria, 596 SCRA 220 (2009)

In this case, the police officers received a report about an alleged shooting incident, they investigated

and learned from witnesses about a particular person being involved in the incident. After they found

him and invited him to the police headquarters to shed light on the incident, he initially agreed then sped

up his vehicle, prompting the police authorities to give chase. The Court said this justified a warrantless

arrest. Such person’s act of trying to get away, coupled with the incident report which they investigated,

is enough to raise a reasonable suspicion on the part of the police authorities as to the existence of

probable cause. Section 5, Rule 113 of the 1985 Rules on Criminal Procedure does not require the




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arresting officers to personally witness the commission of the offense with their own eyes.

17. 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}

( h t t p : / / c m i s k p . e c h r . c o e . i n t / t k p 1 9 7 / v i e w . a s p ? i t e m = 1 & p o r t a l = h b k m & a c t i o n

=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. Here, S ,87

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

susceptible to exhaustive definition. It covers the physical and psychological integrity of a person . . .

. It can therefore embrace multiple aspects of the person’s physical and social identity . . . . Elements

such as, for example, gender identification, name and sexual orientation and sexual life fall within the

personal sphere protected by Article 8 . . . . Beyond a person’s name, his or her private and family life

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.”

So what about personal data and modern developments? “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 adverselyaffected 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

Art. 8, European Convention on Human Rights provides: “1. Everyone has the right to respect for his private ... life ... 2. There87

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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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 fingerpr ints. 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

be regarded as necessary in a democratic society.”

Respect for private life also means, of course, not copying the answers of the persons beside you.

18. 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. This is a remedy available to any88

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,

collecting or storing of data or information regarding the person, family, home and correspondence of

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.89

In Manila Electric Company v. Lim, 632 SCRA 195 (2010), the Court held that the writ could not

be used to thwart the exercise of management prerogative to transfer employees. Her “plea that she be

spared from complying with MERALCO’s Memorandum directing her reassignment to the Alabang

Sector, under the guise of a quest for information or data allegedly in possession of petitioners, does not

fall within the province of a writ of habeas data.” The Court explained that the “habeas data rule, in

general, is designed to protect by means of judicial complaint the image, privacy, honor, information,

and freedom of information of an individual. It is meant to provide a forum to enforce one’s right to the

truth and to informational privacy, thus safeguarding the constitutional guarantees of a person’s right

to life, liberty and security against abuse in this age of information technology. It bears reiteration that

like the writ of amparo, habeas data was conceived as a response, given the lack of effective and

available remedies, to address the extraordinary rise in the number of killings and enforced

disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as

a remedy independently from those provided under prevailing Rules.” Further, “the writs of amparo andhabeas data will NOT issue to protect purely property or commercial concerns nor when the grounds

invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property

right under the context of the due process clause of the Constitution.”

Further, the Court noted that “there is no showing from the facts presented that petitioners committed

any unjustifiable or unlawful violation of respondent’s right to privacy vis-a-vis the right to life, liberty

or security. To argue that petitioners’ refusal to disclose the contents of reports allegedly received on the

Effective 2 February 2008, pursuant to the A.M. No. 08-1-16-SC (22 January 2008).88

See also the Writ of Amparo, discussed in relation to the Writ of Habeas Corpus.89




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threats to respondent’s safety amounts to a violation of her right to privacy is at best speculative.”

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 .90

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.91

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 wiretapping or tape92

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. However, this does not apply if the conversation is93

not intended to be private, such as an altercation where the participants do not really care who are

listening. Also, overhearing by means of a telephone extension is not covered by R.A. No. 4200,94

however, so held the Court in Gaanan v. Intermediate Appellate Court , 145 SCRA 112 1986). (But

nowadays, with the proliferation of cellphones, who still needs a telephone extension?)

G. FREEDOM OF EXPRESSION

The right to freely speak one’s mind is a highly valued freedom in a republican and democratic

society. If the people are really to be the source of power, and that sovereignty resides in them, then95

they should rightfully determine the fate of the nation. But they can only do the same if they are free toknow 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 and managing the news

and information that are to guide or influence the people in making their decisions. The interplay of

thought in the free and open market place of ideas provides the best means by which the interest of

society could 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. The right to think is the beginning of freedom, and speech must be protected from

the government because speech is the beginning of thought.” Parenthetically, the press is at the96

forefront of expression, for without it dissemination could hardly be had.“The best gauge of a free and

See Katz v. United States, 389 U.S. 347 (1967)90

Zulueta v. Court of Appeals, 253 SCRA 699 (1996)91

Salcedo-Ortañez v. Court of Appeals, 235 SCRA 111 (1994)92

Ramirez v. Court of Appeals, 248 SCRA 590 (1995)93

Navarro v. Court of Appeals, 313 SCRA 153 (1999)94

“Freedom of expression enjoys an exalted place in the hierarchy of constitutional rights.” ( Lopez v. People, 642 SCRA 668 [2011])95

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)96




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democratic society rests in the degree of freedom enjoyed by its media.” Without the mass media to97

broadcast and propagate a person’s ideas or speech, it would be more like flowers born to blush unseen,

wasting their sweetness in the desert air.98

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, thefreedom 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. It has also been held that the civic duty to see to it that public duty is discharged faithfully99

is inconsistent with requirements placing on citizens the burden of proving good motives and justifiable

ends in airing their plaints, comments or criticisms.100

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

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 theconstitutional rights of the citizen, and against any stealthy encroachments thereon.” Or, in the words101

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.”102

Do we really know how to learn from the past? Or is it much easier to go along with our indolent103

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?

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

David v. Macapagal-Arroyo, 489 SCRA 160 (2006)97

See Thomas Gray’s Elegy Written on a Country Churchyard 98

Borjal v. Court of Appeals, 301 SCRA 1 (1999)99

Vasquez v. Court of Appeals, 314 SCRA 460 (1999)100

Boyd v. United States, 116 U.S. 616 (1886)101

392 U.S. 236 (1968), citing Boyd .102

Those who cannot remember the past are condemned to repeat it. S George Santayana103




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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. David v. Macapagal-Arroyo, 489 SCRA 160 (2006), also spoke of such concepts. “[T]he 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.” 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.’ . . . [F]acial invalidation of laws is considered as ‘manifestly strong

medicine,’ to be used ‘sparingly and only as a last resort,’ and is ‘generally disfavored;’ The reasonfor 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.”

Assembly is also a form of expression. In this regard, the pronouncements of the Court in David v.

Macapagal-Arroyo, are also enlightening. The Court said: “‘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 thefreedom of expression, the right to assemble is not subject to previous restraint or 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 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, . . .”

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

Telecommunications Commission warning about the adverse consequences that may be visited on those

who would air the tapes, such as possible criminal prosecution under the Anti-Wiretapping Act (R.A.




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No. 4200). Chavez, a non-broadcast practitioner, challenged the validity of said official actuations,

claiming that they constituted prior restraint. The Court observed: “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 elucidatinglecture on the great importance of the freedom of the speech and of the press, such as the following legal

tidbits:

• “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 andother print media, . . .”

• “[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 (2) freedom from

punishment subsequent to publication (3) freedom of access to information (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

publication can be made, commits an infringement of the constitutional right, and remedy can

be had at the courts.”

• “Given that deeply ensconced in our fundamental law is the hostility against all prior restraints




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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

between the mere rationality that is required of any other law and the compelling interest

standard applied to content-based restrictions. As for content-based restrictions, they are given

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 beensubjected 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 frequencieswas 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 ledto 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

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

Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the




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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.”

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

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 Constitutionand 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

(2) False or Misleading Advertisement (3) Advocacy of Imminent Lawless Action (4)104

“This Court recognized false or misleading advertisement as unprotected expression only in October 2007.” (See separate104

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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Danger to National Security

• “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

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 Punishment : “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.”

• 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. Soriano v. Laguardia, 587 SCRA 79 (2009) and 615 SCRA 254 (2010)

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

concern. In the oft-quoted expression of Justice Holmes, the constitutional guarantee ‘obviously was not

intended to give immunity for every possible use of language.’” On the religious side, the Court said:

“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




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for the low road.”

As a reminder for everyone, the Court stated: “It has been established in this jurisdiction that

unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false

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 averagechild. 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 thatthey 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 subjectspeech 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

involving the overthrow of the government and even other evils which do not clearly undermine national

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 in his Separate Opinion that ‘where the legislation under

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




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served by legislation, on the one hand, and the free expression clause affected by it, on the other, to

balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on

balance, it appears that the public interest served by restrictive legislation is of such nature that it

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 serveappropriate 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, statutesimposing 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 radioand 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

prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit 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.” In other words, the program may be suspended,

but not the speaker himself.

On motion for reconsideration, one new aspect was put forward. What if the program had been

shown at a time – a sort of a “safe harbor” – when children are likely not to be watching, would it have

made a difference? The Court said: “The so-called ‘safe harbor’ of 10:00 p.m. to 6:00 a.m., adverted to

in Action for Children’s Television [v. Federal Communications Commission, 58 F.3d 654 (1995)] as

the time wherein broadcast of indecent material may be permitted, is believed inapplicable here. As it




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were, there is no legislative enactment or executive issuance setting a similar period in the Philippines

wherein indecent material may be broadcast. Rather than fix a period for allowing indecent

programming, what is used in this jurisdiction is the system of classification of television programs,

which the petitioner violated. His program was rated ‘G,’ purported to be suitable for all ages. We cannot

lose sight of the violation of his program’s classification that carried with it the producer’s implied

assurance that the program did not contain anything unsuitable for children and minors. The hour atwhich it was broadcasted was of little moment in light of the guarantee that the program was safe for

children’s viewing.”

3. Pleasant Grove City v. Summum, 555 U.S. ___ (2009)

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’).”

4. 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 theabsolute 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 First Amendment. Next, the asserted governmental

interest must be substantial. If both of these requirements are met, it must next be determined whether

the state regulation directly advances the government interest asserted, and whether it is not moreextensive than is necessary to serve the interest.” 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.”105

In his separate opinion in Chavez v. Gonzales, 545 SCRA 441 (2008), Justice Carpio, referring to Pharmaceutical and Health105




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5. Integrated Bar of the Philippines v. Atienza, 613 SCRA 518 (2010)

In Bayan v. Ermita, 488 SCRA 226 (2006), the Court spoke of the right to peaceable assembly in

this way: “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.” At thesame time, though, it recognized the validity of the law – Public Assembly Act of 1985 (B.P. 880) –

providing for guidelines in the conduct of rallies and other mass actions. 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. This set of regulations included the need to obtain a permit from the local chief

executive, which may only be denied on ground of clear and present danger to public order, public

safety, public convenience, public morals or public health.

In Integrated Bar of the Philippines, the issue is whether the mayor could unilaterally specify a place

other than the one indicated by the applicants for the public assembly? No, he cannot without an

acceptable basis. Here, the Court ruled 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 heardfirst 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 sowhere 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.”

Related to the foregoing is the holding of the Court in David v. Macapagal-Arroyo, 489 SCRA 160

(2006), that “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 andlimitation is the exception. . . . With the blanket revocation of permits, the distinction between protected

and unprotected assemblies was eliminated.”

6. Japan Airlines v. Simangan, 552 SCRA 341 (2008)

Can a passenger who had been unceremoniously bumped off by an airline be held liable for the injury

that might have been caused to the reputation of the airline as a result of the publication of the

Care Association, pointed out that the “Court recognized false or misleading advertisement as unprotected expression only in October

2007.”




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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.

“JAL is a common carrier. JAL’s business is mainly with the traveling public. It invites people to

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 beactionable. . . . 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.”

7. Re: Letter of the UP Law Faculty Entitled “Restoring Integrity: A Statement by the Faculty

of the University of the Philippines College of Law on the Allegations of Plagiarism and

Misrepresentation in the Supreme Court,” 644 SCRA 543 (2011)

May members of a faculty of a College of Law invoke the guarantee of freedom of expression and

academic freedom to shield themselves from any possible disciplinary proceedings against them for

having come up with a public statement which the Court took to be disrespectful and contemptuous? The

Court said no, saying that the legal reasoning used in the past by this Court to rule that freedom of expression is not a defense in administrative cases against lawyers for using intemperate speech in open

court or in court submissions can similarly be applied to invocation of academic freedom. The Court also

pointed out that a reading of the Show Cause Resolution will plainly show that it was neither the fact

that respondents had criticized a decision of the Court nor that they had charged one of its members of

plagiarism that motivated the said Resolution – it was the manner of the criticism and the contumacious

language by which respondents, who are not parties nor counsels in a pending case have expressed their

opinion in favor of the petitioners in said pending case. The right to criticize the courts and judicial

officers must be balanced against the equally primordial concern that the independence of the Judiciary

be protected from due influence or interference.

The Court further reminded the respondents and everybody else that freedom of expression is notan absolute – there are other societal values that press for recognition, and one such societal value that

presses for recognition in the case at bar is the threat to judicial independence and the orderly

administration of justice that immoderate, reckless and unfair attacks on judicial decisions and

institutions pose. The constitutional right to freedom of expression of members of the Bar may be

circumscribed by their ethical duties as lawyers to give due respect to the courts and to uphold the

public’s faith in the legal profession and the justice system.

And, with higher standing in the community, as an educator, for instance, comes greater

responsibility, the Court declaring that the reason that freedom of expression may be so delimited in the




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case of lawyers applies with greater force to the academic freedom of law professors. When the criticism

comes from persons outside the profession who may not have a full grasp of legal issues or from

individuals whose personal or other interests in making the criticism are obvious, the Court may perhaps

tolerate or ignore them, but when law professors are the ones who appear to have lost sight of the

boundaries of fair commentary and worse, would justify the same as an exercise of civil liberties, the

Court cannot remain silent for such silence would have a grave implication on legal education in thecountry. The Court failed to see how it can ennoble the profession if it allowed respondents to send a

signal to their students that the only way to effectively plead their cases and persuade others to their point

of view is to be offensive – the mark of the true intellectual is one who can express his opinions logically

and soberly without resort to exaggerated rhetoric and unproductive recriminations.

Further, it was pointed out that lawyers, when they teach law, are considered engaged in the practice

of law – their actions as law professors must be measured against the same canons of professional

responsibility applicable to acts of members of the Bar as the fact of their being law professors is

inextricably entwined with the fact that they are lawyers.

H. FREEDOM OF R ELIGION

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 regulationsconsistent 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.

In Estrada v. Escritor , 408 SCRA 1 (2003), the Court noted 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 final decision on the case, Estrada v. Escritor , 492 SCRA 1 (2006), the Court then went on to

allow a court interpreter to continue with her conjugal arrangement with a married man not her husband,

since the same was sanctioned by her religion and there was no compelling state interest that would have

warranted overriding her religion-grounded practice – ““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.”




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I. FREEDOM OF MOVEMENT

Man is a peripatetic being. He keeps moving about. He would likely develop bedsores and other

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

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.

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?

Also, just because you have a vehicle by which you can move about does not necessarily mean that

you can use it anywhere and everywhere. You can not insist on using a tricycle to traverse the

expressways. In this regard, the following lines from Mirasol v. Department of Public Works and

Highways, 490 SCRA 318 (2006), may enlighten. “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 requireclose 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.”

And, of course, this particular guarantee was at the center of the controversy involving the former

President, the incumbent President, the Supreme Court and the impeachment of the Chief Justice.

J. R IGHT TO INFORMATION

Corollary to the right to express oneself freely is the right to be informed on matters which concern

himself 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 knowledge if the government itself has not made provisions for the106

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 which must also be published.

On the need to balance the right to know and the government’s need to keep certain things

confidential, the Court had this to say in Senate of the Philippines v. Ermita, 488 SCRA 1 (2006): “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 certaininformation confidential in pursuit of the public interest. . . . History has been witness, however, to the

fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it

zealously.” And in that spirit, it did the delicate balancing involving the invocation of executive privilege

and the power of legislative inquiry, with the concomitant right of the people to know as a consequence

of such hearings. It held: “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

“Ignorance of the law excuses no one from compliance therewith.” (Art. 3, Civil Code)106




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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. ” Then, 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 the privilege on her behalf, in which case the Executive Secretary must state that the 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. In other

words, the President may not authorize her subordinates to exercise such power.”

How is people’s 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. . . . 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.”107

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 forumsor, 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.”

With regard to judicial records, Hilado v. Reyes, 496 SCRA 282 (2006), teaches us that 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 courts for purposes of rendering court decisions. The interest of the public hinges on its right to transparency in

the administration of justice, to the end that it will serve to enhance the basic fairness of the judicial

proceedings, safeguard the integrity of the fact-finding process, and foster an informed public discussion

In Sabio v. Gordon, 504 SCRA 704 (2006), the Court said:107

“[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.”




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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. However, there is a difference, between court orders or judgments and the parties’ pleadings

and whatever may go with the same. Unlike court orders and decisions, pleadings and other documentsfiled by parties to a case need not be matters of public concern or interest. Information regarding the

financial 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.

Then, on privacy concerns, People v. Cabalquinto, 502 SCRA 419 (2006), comes to the fore. If one

were to wonder why AAA is so familiar a rape victim, it is because of the policy adopted by the Court

in Cabalquinto. 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. In Cabalquinto the Court adopted a new policy in regard to crimes involving

violence to women and their children. Taking into consideration the need to maintain the confidentiality

of information in cases involving violence against women and their children, the Court, starting with said

case, withheld the real name of the victim-survivor and used fictitious initials instead to represent her.

The Court further declared that, “[l]ikewise, 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.” Subsequently, in People v. Rentoria, 533 SCRA

708 (2007), the Court also decreed that the exact addresses of the victims should be deleted. Thus, if you

now read initials that sound like battery sizes or advertisements comparing a named brand with their

competitors, you would understand why.

1. Neri v. Senate Committee on Public Accountability and Investigations (Blue Ribbon), 549

SCRA 77 (2008)

Following the pronouncements in Senate v. Ermita, this case of Neri puts to actual application what

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. This is because this concept has Constitutional underpinnings.”

On executive privilege itself, the Court distinguished between presidential communications

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,




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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 tothese 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 andan 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.”

2. 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 isinvolved 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 during the negotiations continue to be

privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese

representatives submitted their offers with the understanding that ‘historic confidentiality’ would

govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with

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 area of greater national interest.” Nevertheless, the

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

socio-political school of thought.

It was also noted that “[t]he diplomatic negotiations privilege bears a close resemblance to the




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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-makingof 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 .”

3. Macapagal-Arroyo v. De Lima, – SCRA – (G.R. Nos. 199034 and 199046, 13 December 2011)

In this case involving a Temporary Restraining Order issued by the Court against the implementation

of DOJ Circular No. 49 which provided for the issuance of Watch List Orders, the Court suddenly came

out disclosing in public their bickering behind the confines of the Court walls. The TRO was in favor of GMA and Mike Arroyo, but subject to three (3) conditions: (a) posting of P=2,000,000.00 bond, (b)

appointment of a legal representative common to both of them who shall receive subpoena, orders and

other legal processes on their behalf, (c) notification of the Philippine embassies or consulates in the

foreign countries they may traveling to. The bond was immediately posted but SPA that was filed

authorized the legal representative to “produce” not to “receive” summons and other processes. This then

led to further deliberations by the Court as to whether TRO was complied with, and whether it was

suspended if there was failure to comply. By 7-6, the majority held that there was failure to comply,108

but by another 7-6 vote, the TRO was not considered suspended. In these deliberations, Justice Sereno

disagreed with majority of her colleagues and undertook to submit her dissenting opinion on 1 December

2011. She did not submit on said date but on the following day, a Friday, at 4:00 pm. Because of this

delay, Justice Velasco requested the Clerk of Court to hold in abeyance the promulgation of JusticeSereno’s opinion so that the matter of the promulgation could be discussed in the next en banc session.

Justice Velasco explained that the late submission effectively prevented him from responding to her

opinion since he was already booked to leave for Jakarta on 4 December 2011 to attend the ASEAN

Chief Justices Roundtable on Environment. He also said that he could have filed a separate opinion on

her dissent had she filed it on 1 December 2011. For then, he would have had the rest of December 1 and

the whole day of December 2, 2011 to prepare and submit one.

On another score, Justice Velasco also said that he felt the need to have the dissenting opinion of

Justice Sereno discussed by the Court en banc because it disclosed confidential matters taken up during

the deliberations of the Court. Specifically, Justice Velasco noted that “confidential matters, discussed

during the November 18, 2011 session, are embodied in the Dissenting Opinion of Justice Sereno promulgated on the same date, to wit: * * * .” Further, he further observed that “Justice Carpio’s

confidential letter aforementioned became part of the discussion during the En Banc session on

November 29, 2011 which ought not to be divulged to the public.” To him, his fellow justice’s

“unpromulgated dissenting opinion appears to me as a clear breach of Sec. 2, Rule 10 of the IRSC,

which pronounces, in an unequivocal manner, that ‘Court deliberations are confidential and shall not be

disclosed to outside parties, except as may be provided herein (IRSC) or as authorized by the Court.’ The

aforesaid excerpts from the promulgated November 18, 2011 Dissenting Opinion and the unpromulgated

Leonardo-de Castro, J., was on official business, while Del Castillo, J ., was on official leave108




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Dissenting Opinion of Justice Sereno are confidential matters taken up during the November 18, 2011

and November 29, 2011 En Banc sessions. They cannot be incorporated in an opinion of a member of

the Court as this will be tantamount to a proscribed disclosure to outside parties even if contained in an

opinion. Justice Sereno has not shown that such disclosure is allowed by any rule of the IRSC or

authorized by the Court. More importantly, it is the Chief Justice’s task under Sec. 2, Rule 10 of the

IRSC to record the action or actions taken in each case. The notes of the Chief Justice shall be the basesof the minutes of the session which, in turn, resolutions shall be predicated upon. Nowhere in the Rules

does it say that a member can incorporate the deliberations in his/her opinion. This caveat is to obviate

the possibility of conflicting statements of facts that will likely arise especially if the member takes a

contrary position to that of the majority. Justice Sereno, by stating what are allegedly the result of the

deliberations of the En Banc and the votation on cases or incidents, appears to encroach into the

functions of the Chief Justice. This should not be countenanced as once a vote is taken on an issue, the

majority view then becomes that of the Court. To say that such was not the case, as is the position of J.

Sereno, would sow doubt and suspicion on the veracity of the resolutions of the en banc as authenticated

by the Clerk of Court. Else the stability of judicial decisions and resolutions is compromised.”

Justice Velasco then came up with this passage which appears to be an oxymoron – keeping109

confidential what has already been disclosed to the entire world: “Accordingly, I recommend that the110

portions of the unpromulgated Dissenting Opinion of Justice Sereno delving on what under the Rules

are considered confidential be expunged for being violative of Sec. 2, Rule 10 of the IRSC. In the same

token, confidential matters contained in this separate opinion should likewise be expunged in the event

the Court decides to adopt the recommendation herein made. It should be made clear, however, that

what impelled me to include matters in this opinion that only members of the Court ought to know is

to show that, should the dissenting opinion of Justice Sereno be promulgated in its present form, it in

itself is a departure from the IRSC.”

Justice Abad, who was repeatedly referred to in Justice Sereno’s dissent as having been a pivotal

Justice, also came up with a separate opinion the need for confidentiality in Court deliberations,

explaining how he finally came up with a view different from his initial submission. For one, he saidthat“Justice Sereno has breached this rule, narrating in her dissenting opinion her recollection of the En

Banc’s deliberation in executive session on the effect of the petitioners’ failure to comply with the

second condition of the temporary restraining order (TRO) that the Court issued in the case.”

Enunciating further, he wrote: “When the proceedings in any collegial meeting is intended to be

preserved and cited as a memorial of what had taken place in such a meeting, the proceedings are

recorded. This is true of Congress of the Philippines and of the Constitutional Convention. But when

what is important in a collegial meeting are the actions or the resolutions that the body passed by votes,

only such actions or resolutions constitute a faithful recording of the body’s will. This is true of the

sessions of the Supreme Court, past or present. The main purpose of En Banc or Division sessions is to

deliberate on and decide the disputes between contending parties in the cases before it. And its decisions

are, by Constitutional mandate, written by a member upon authority of the Court. The Court’s

Could one still expunge from the people’s consciousness what theoretically should remain legally confidential after the same had109

been publicly disseminated?

The separate opinions discussing confidentiality and disclosing what are supposed to be internal and limited to knowledge of the110

just ices are found in ht tp :/ /s c. ju di ciary.go v.ph /j ur ispr ud en ce/resolut ions /201 1/december2011/1990 34_reso .pdf,

h t t p : / / s c . j u d i c i a r y . g o v . p h / j u r i s p r u d e n c e / r e s o l u t i o n s / 2 0 1 1 / d e c e m b e r 2 0 1 1 / 1 9 9 0 3 4 _ c a r p i o . h t m l ,

h t t p : / / sc . j u d i c ia r y . g o v . p h / j u r i s p r u d e n c e / r e s o l u t i o n s / 2 0 1 1 / d e c e m b e r 2 0 1 1 / 1 9 9 0 3 4 _ v e l a s c o . h t m,

h t t p : / / s c . j u d i c i a r y . g o v . p h / j u r i s p r u d e n c e / r e s o l u t i o n s / 2 0 1 1 / d e c e m b e r 2 0 1 1 / 1 9 9 0 3 4 _ b r i o n . h t m ,

h t t p : / / s c . j u d i c i a r y . g o v . p h / j u r i s p r u d e n c e / r e s o l u t i o n s / 2 0 1 1 / d e c e m b e r 2 0 1 1 / 1 9 9 0 3 4 _ a b a d . h t m ,

http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_sereno.htm (Last visited Monday, 16 April 2012

[10:01:42am])




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deliberations are not evidence of what it voted on. That vote is restricted within the confines of the

written order, resolution, or decision that it issues. The Court’s deliberations are confidential simply

because the Court realizes that only by making it so can the Justices freely discuss the issues before it.

Broadcasting such discussions to the public would have a chilling effect on those who take part in it. One

would be careful not to take unpopular positions or make comments that border on the ridiculous, which

often is a way of seeing the issues in a different perspective. Personally, I often take temporary positionson issues, weighing each one as the discussion goes. I could take the role of a devil’s advocate before

settling on the opposite view. The danger, as what has happened here, is that Justice Carpio and Sereno

may have taken something I said out of context or before I made up my mind when the voting took

place.” Then, he concluded, “[i]f our deliberations cannot remain confidential, we might as well close

down business.”

From the discussions in the dissenting opinions of Justice Carpio and Sereno, it was Justice Abad

who said then, after the majority concluded that there was failure to comply with the second condition

regarding the appointment of a legal representative, that there was no need to state the obvious in the

Court’s Resolution that the TRO was suspended. But when the Court eventually voted on the effect of

such failure to comply with a condition, he joined the other group to constitute a new majority saying

the TRO was not suspended. So how did he explain the apparently conflicting positions? “I may have

suggested the point sometime during the debate but I recall withdrawing it when I realized that the TRO

did not subject its issuance and effectivity to petitioners’ prior or immediate compliance with such

conditions. Indeed, the collective recollection of the majority of the Justices who did not join Justices

Carpio and Sereno’s dissents is that the vote was taken to conclude categorically that the non-compliance

did not suspend the force and effect of the TRO.”

As for Justice Sereno’s dissent, she said that it was part of her role as a magistrate to register her

disagreement with the majority if that is how she looks at the issue before the Court. She wrote, inter

alia: “I know of no precedent in the entire history of the Supreme Court when the promulgation of a

Dissenting Opinion was withheld at the instruction of a fellow Associate Justice or even of a Chief

Justice. . . . It is a constitutional right of any Member of the Court to issue his or her DissentingOpinion; and in cases wherein the issue of compliance with a TRO and the efficacy of that TRO, is being

subjected to intense national scrutiny, as in this case, such issuance is also a constitutional duty.

Further, I know of no precedent in the entire history of the Supreme Court where the promulgation of

a signed Dissenting Opinion has been withheld because it would be the subject of discussion in a next

Court session. It is only by our Decisions and Opinions that we, as Members of this Court, are able to

account for our actions. Any attempt to muzzle the opinion of a dissenting Justice for the sole reason that

the majority will find such writing inconvenient is unconstitutional. This is especially true when the

account of the voting and the reasons for the votes are being contested, as the 18 November 2011 vote

on the TRO was.”

What about the need for confidentiality in Court deliberations? She declared: “I do not believe thata disclosure of the internal deliberations of the Court is warranted in each and every case. My 18

November 2011 Dissenting Opinion, as well as my unpromulgated 2 December 2011 Dissenting Opinion

which has now been superseded by this Dissenting Opinion finalized and signed this 19 of December th

2011 made the disclosures only because (1) the promulgated Resolution of 18 November 2011 did not

reflect that day’s voting and the reasons for that vote; and (2) the Acting Chief of the PIO continues to

misinform the public. When the accuracy and the content of the deliberations of the Court’s confidential

session are being disputed, it is the constitutional duty of the Members of the Court, especially the

minority, to speak up and put on record what actually took place. This duty becomes especially necessary




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when an officer of the judiciary, who has been clothed with apparent authority by the Chief Justice,

continues to misinform the public, and such behavior is not being corrected. As is highly obvious from

the organizational constraints within the Supreme Court, the minority Members of the Court have a

limited opportunity to correct the misinforming officer. The minority will also not have a fair chance to

correct the resolution, in this case drafted by a ponente designated by the Chief Justice, until after its

promulgation. To keep quiet in such times and not make use of opportunities available to the minorityto present the truth through Dissenting Opinions would be a disservice to the country.”

Then, no discussion of Justice Sereno’s dissent would be complete if one were to omit her obvious

mistrust of the official in charge of the Court’s PIO – if one were to read between her lines, that office

might as well be spelled out as Public misInformation Office. Consider, for instance, these tidbits from

her opinion: “Despite serious efforts from my end to advise an officer of the Supreme Court that no

action of the Court should be interpreted, such behavior has continued. This opinion is thus rendered in

part to remedy the present deficit in truth”; “[c]ontrary to statements made by the Acting Chief of the

Public Information Office (PIO) Atty. Jose Midas P. Marquez, there was no 9-4 voting that upheld the

effectivity of the TRO despite non-compliance with condition (ii)”; “Atty. Marquez has been continuing

his misstatements on the TRO unabated”; and, “[t]he public continues to be fed information that distorts

the facts and the legal import of the voting that took place on the above dates.” Well, so much for an

enlightened or benighted public.

Bickering, washing dirty linen and disrobing in public – and the hoi polloi is amused with the

spectacle. Others might as well wonder, too, as to whatever might have become of honorable men and

women.

4. In Re: Production of Court Records and Documents and the Attendance of Court officials

and Employees as Witnesses Under the Subpoenas of February 10, 2012 and the Various

Letters for the Impeachment Prosecution Panel dated January 19 and 25, 2012, – SCRA

– (14 February 2012)

Relative to the presentation of evidence against the Chief Justice in his impeachment trial, requestswere made with the Supreme Court for the examination and production of certain documents and

records, as well as the testimony of Justices, officials and employees of the Court, including the issuance

of certified true copies of the rollos and the Agenda and Minutes of the Deliberations relative to certain

cases.

Here, the Court had to approach the matter from perspective of the principle of separation of powers

and the concomitant independence of the judiciary. “From the constitutional perspective, a necessary

starting vantage point in this consideration is the principle of separation of powers through the

recognition of the independence of each branch of government and through the protection of

privileged and confidential documents and processes, as recognized by law, by the rules and by Court

policies.” Then, these considerations taken with the principle of comity – the practice of voluntarilyobserving inter-departmental courtesy in undertaking their assigned constitutional duties for the

harmonious working of government – the Court proceeded to state that “[i]nter-departmental courtesy

demands that the highest levels of each department be exempt from the compulsory processes of

the other departments on matters related to the functions and duties of their office.”

With the foregoing backdrop, the Court then discussed confidentiality of court deliberations and

records. “In the Judiciary, privileges against disclosure of official records ‘create a hierarchy of rights

that protect certain confidential relationships over and above the public’s evidentiary need’ or ‘right to

every man’s evidence.’ Accordingly, certain information contained in the records of cases before the




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Supreme Court are considered confidential and are exempt from disclosure. To reiterate, the need arises

from the dictates of the integrity of the Court’s decision-making function which may be affected by the

disclosure of information. Specifically, the Internal Rules of the Supreme Court (IRSC) prohibits the

disclosure of (1) the result of the raffle of cases, (2) the actions taken by the Court on each case included

in the agenda of the Court’s session, and (3) the deliberations of the Members in court sessions on

cases and matters pending before it.”

What about the confidentiality requirement? “[T]he rules on confidentiality will enable the Members

of the Court to ‘freely discuss the issues without fear of criticism for holding unpopular positions’ or

fear of humiliation for one’s comments. The privilege against disclosure of these kinds of

information/communication is known as deliberative process privilege, involving as it does the

deliberative process of reaching a decision. ‘Written advice from a variety of individuals is an important

element of the government’s decision-making process and that the interchange of advice could be stifled

if courts forced the government to disclose those recommendations;’ the privilege is intended ‘to prevent

the “chilling” of deliberative communications.’” And, in this regard, confidentiality is not something that

the Court alone is claiming for itself. “[A] Senator may invoke legislative privilege when he or she is

questioned outside the Senate about information gathered during an executive session of the Senate’s

legislative inquiry in aid of legislation. In the same manner, a justice of the court or a judge may invoke

judicial privilege in the Senate sitting as an Impeachment Court, for proceedings in the performance of

his or her own judicial functions. What applies to magistrates applies with equal force to court

officials and employees who are privy to these deliberations. They may likewise claim exemption

when asked about this privileged information.”

What is then the extent of this rule of confidentiality applicable to courts? The Court explained that

while Section 2, Rule 10 of the Internal Rules of the Supreme Court (IRSC) speaks only of the

confidentiality of court deliberations, “it is understood that the rule extends to documents and other

communications which are part of or are related to the deliberative process. The deliberative

process privilege protects from disclosure documents reflecting advisory opinions, recommendations

and deliberations that are component parts of the process for formulating governmental decisions and

policies. Obviously, the privilege may also be claimed by other court officials and employees when

asked to act on these documents and other communications. ”

And, how do you draw the parameters of this judicial deliberative process privilege? “To qualify

for protection under the deliberative process privilege, the agency must show that the document is both

(1) predecisional and (2) deliberative.” Otherwise put, “[a] document is ‘predecisional’ under the

deliberative process privilege if it precedes, in temporal sequence, the decision to which it relates. In

other words, communications are considered predecisional if they were made in the attempt to

reach a final conclusion. A material is ‘deliberative,’ on the other hand, if it reflects the give-and-take

of the consultative process. The key question in determining whether the material is deliberative in

nature is whether disclosure of the information would discourage candid discussion within theagency. If the disclosure of the information would expose the government’s decisionmaking process

in a way that discourages candid discussion among the decision-makers (thereby undermining the courts’

ability to perform their functions), the information is deemed privileged. Court records which are

‘predecisional’ and ‘deliberative’ in nature are thus protected and cannot be the subject of a

subpoena if judicial privilege is to be preserved. The privilege in general insulates the Judiciary from

an improper intrusion into the functions of the judicial branch and shields justices, judges, and court

officials and employees from public scrutiny or the pressure of public opinion that would impair a

judge’s ability to render impartial decisions. The deliberative process can be impaired by undue exposure




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of the decision-making process to public scrutiny before or even after the decision is made,. . .”

In addition, “two other grounds may be cited for denying access to court records, as well as

preventing members of the bench, from being subjected to compulsory process: (1) the disqualification

by reason of privileged communication and (2) the pendency of an action or matter” – “Members

of the Court may not be compelled to testify in the impeachment proceedings against the Chief Justice

or other Members of the Court about information they acquired in the performance of their official

function of adjudication, such as information on how deliberations were conducted or the material inputs

that the justices used in decision-making, because the end-result would be the disclosure of confidential

information that could subject them to criminal prosecution. Such act violates judicial privilege (or the

equivalent of executive privilege) as it pertains to the exercise of the constitutional mandate of

adjudication.” How about court officials and employees? Well, the same rules on confidentiality apply

to them. In this regard, too, note must be taken of the fact that “[u]nder existing laws, neither the

Impeachment Court nor the Senate has the power to grant immunity from criminal prosecution for

revealing confidential information.”

The Court further clarified that the rule on confidentiality applied to internal deliberations and

actions (adjudicatory functions) as distinguished from external matters. “To state the rule differently,Justices of the Court cannot be compelled to testify on matters relating to the internal deliberations and

actions of the Court, in the exercise of their adjudicatory functions and duties. This is to be

differentiated from a situation where the testimony is on a matter which is external to their adjudicatory

functions and duties. For example, where the ground cited in an impeachment complaint is bribery, a

Justice may be called as a witness in the impeachment of another Justice, as bribery is a matter external

to or is not connected with the adjudicatory functions and duties of a magistrate. A Justice, however,

may not be called to testify on the arguments the accused Justice presented in the internal debates as

these constitute details of the deliberative process.”

On the need to subpoena court personnel to testify, the court said, “witnesses need not be

summoned to testify on matters of public record” because “entries in official records may bepresented without the necessity of presenting in court the officer or person who made the entries.

Entries in public or official books or records may be proved by the production of the books or records

themselves or by a copy certified by the legal keeper thereof. These records, however, may be

presented and marked in evidence only where they are not excluded by reasons of privilege and

the other reasons discussed above.” Further, “[t]he reasons for this rule are necessity and

trustworthiness. Necessity consists in the inconvenience and difficulty of requiring the official’s

attendance as a witness to testify to the innumerable transactions in the course of his duty. A public

officer is excused from appearing in court in order that public business may not be interrupted,

hampered or delayed. * * * Trustworthiness is a reason because of the presumption of regularity of

performance of official duty. The law reposes a particular confidence in public officers that it

presumes that they will discharge their several trusts with accuracy and fidelity; and therefore,whatever acts they do in the discharge of their public duty may be given in evidence and shall be

taken to be true under such a degree of caution as the nature and circumstances of each case may

appear to require.”

And to make it clear for everyone, the Court declared: “As a last point and mainly for purposes of

stress, the privileges discussed above that apply to justices and judges apply mutatis mutandis to court

officials and employees with respect to their official functions. If the intent only is for them to identify

and certify to the existence and genuineness of documents within their custody or control that are not

otherwise confidential or privileged under the above discussed rules, their presence before the




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Impeachment Court can be and should be excused where certified copies of these non-privileged and

non-confidential documents can be provided.”

In the end, the Court said:

To summarize these rules, the following are privileged documents or communications, and are not subject to

disclosure:

(1) Court actions such as the result of the raffle of cases and the actions taken by the Court on each case

included in the agenda of the Court’s session on acts done material to pending cases, except where a party litigant

requests information on the result of the raffle of the case, pursuant to Rule 7, Section 3 of the IRSC;

(2) Court deliberations or the deliberations of the Members in court sessions on cases and matters pending

before the Court;

(3) Court records which are “predecisional” and “deliberative” in nature, in particular, documents and other

communications which are part of or related to the deliberative process, i.e., notes, drafts, research papers, internal

discussions, internal memoranda, records of internal deliberations, and similar papers.

(4) Confidential Information secured by justices, judges, court officials and employees in the course of their

official functions, mentioned in (2) and (3) above, are privileged even after their term of office.

(5) Records of cases that are still pending for decision are privileged materials that cannot be disclosed, exceptonly for pleadings, orders and resolutions that have been made available by the court to the general public.

(6) The principle of comity or inter-departmental courtesy demands that the highest officials of each

department be exempt from the compulsory processes of the other departments.

(7) These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her

individual capacity. Since the Court is higher than the individual justices or judges, no sitting or retired justice or

judge, not even the Chief Justice, may claim exception without the consent of the Court.

Everyone, take note. Know what could properly be known as to what are discussed in and pass

through the portals of the courts. But when you really come down to fundamentals, you find reassurance,

confidence and liberation in being able to bring out openly what you want to say, free from the fetters

of the fear that sooner of later what you say may come to the ears of those not really meant to know.

5. Philippine Savings Bank v. Senate Impeachment Court , – SCRA – (G.R. No. 200238, 9

February 2012)

Still on the on impeachment of Chief Justice Corona, one of the issues that cropped up is the need

to look into his alleged foreign currency deposit. There is a law, however, which stands in the way – The

Foreign Currency Act (R.A. No. 6426) – which explicitly provides for a single exception to the

confidentiality, i.e., if the depositor consents. Because of this problem, the bank where the purported

deposits are sought a TRO from the Supreme Court, which the Court granted. The Court , in issuing111

the TRO, explained, citing earlier cases: “A clear right to maintain the confidentiality of the foreign

currency deposits of the Chief Justice is provided under Section 8 of Republic Act No. 6426, otherwise

known as the Foreign Currency Deposit Act of the Philippines ( RA 6426 ). This law establishes the

absolute confidentiality of foreign currency deposits. * * * [W]here the accounts in question are U.S.

dollar deposits, the applicable law is not Republic Act No. 1405 but RA 6426 . * * * Also, while

impeachment may be an exception to the secrecy of bank deposits under RA 1405, it is not an exemption

to the absolute confidentiality of foreign currency deposits under RA 6426.”

Justice Brion, in particular, citing Republic of the Philippines v. Eugenio, 545 SCRA 384 (2008),

Concurring – JJ . De Castro, Brion, Bersamin, Abad, Villarama, Perez, Mendoza and Reyes – the Separate Concurring Opinions111

to follow; Dissenting – JJ. Carpio, Peralta, Del Castillo, Sereno and Bernabe – the Separate Dissenting Opinions to follow; Inhibiting

– Chief Justice Corona and Justice Velasco.




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is of the view that “bank accounts laws are not covered by the right to information under Article

III, Section 7 and the requirement of full public disclosure under Article II, Section 28 of the

Constitution, which is statutorily implemented through RA No. 6713 (Code of Conduct and Ethical

Standards for Public Officials and Employees). The Constitution in fact declares that the public’s right

to information is ‘subject to such limitations as may be provided by law.’ The implied repeal of

inconsistent laws that RA No. 6713 mandates cannot be interpreted as a repeal of the express substantiveright granted to confidentiality under Section 8 of RA No. 6426, even if the latter was enacted earlier.”

In his dissent, Justice Carpio said that “the majority ruling makes a mockery of all existing laws

designed to insure transparency and good governance in public service. The majority ruling in effect

advises all government officials and employees that they can legally evade reporting their actual assets

in their Statement of Assets, Liabilities and Net Worth, which is required by the Constitution and RA

Nos. 3019 and 6713, by simply opening foreign currency deposit accounts with local banks.” Adverting

to R.A. No. 6713, he submitted: “Section 8 of RA No. 6713, as amended, mandates the disclosure of

the assets of government officials and employees who ‘have an obligation’ to disclose their assets.

Moreover, Section 8 expressly states that ‘the public has the right to know the assets’ of government

officials and employees.” Accordingly, “the government officials and employees’ ‘obligation’ todisclose their assets, and the people’s ‘right to know’ such assets, as expressly mandated by Section 8

of RA No. 6713, prevails over the secrecy of foreign currency deposits under Section 8 of RA No. 6426,

granting that such secrecy applies to Philippine citizens.” In fine, “[a] government official or employee

who refuses to be accountable to the people by not disclosing assets he admittedly owns, despite his

‘obligation’ to so disclose to the people, who have ‘the right to know’ his assets, puts himself beyond

accountability to the people.”

The view of Justice Carpio on public accountability as a basis for allowing for disclosure was also

reflected in Justice Sereno’s dissenting opinion. To her, “there appears to be a constitutionally-generated

permission on the latter’s part to disclose the FCDs.” In other words, “because of the fact that the Chief

Justice is a public officer, he is constitutionally and statutorily mandated to perform a positive duty to

disclose all of his assets and liabilities. This already operates as the consent required by law.” She

likewise explained: “More important, what the people at the gut level understand to be true is that they

have, through the Constitution, enshrined the doctrine on the accountability of public officers, on the

fundamental belief that public office is a public trust. It cannot get plainer, but truer, than that. The

Constitution wove, not only in the central motif on public accountability in Article XI of the

Constitution, but in every thread of its fabric, this legally demandable notion of public accountability.

No interpretation of law nor procedural requirement can be viewed in any manner that negates this

bedrock principle of Philippine constitutional governance.” The way she sees the picture, “for all public

officers, what is absolute is not the confidentiality privilege, but the obligation of disclosure” and

the “Court’s Resolution results in an iniquitous situation, where the supreme interest of the public to

maintain accountability among public officers is relegated to the sidelines in favor of a statutory privilege that arose purely out of economic considerations.”

6. 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,




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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 altered names and labels, or so Air Philippines asserted. In the collection suit filed by Pennswell,

Air Philippines moved to compel the former to give a detailed list of the ingredients and chemical

components to prove its 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 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.”

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.”

7. Antolin v. Domondon, 623 SCRA 163 (2010)

May someone who took a professional board examination and who did not pass demand that the

questionnaires, answer sheets, answer keys and explanations of the grading system be made availableto her? What if she passed in the meantime, would that make the demand moot? The Court said yes, the

examinee may demand, subject to some qualifications, and then left the matter to be decided by the trial

court in the meantime. Also, passing the examination in the meantime would not render the case moot.

“In this jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his or her right

to information and may seek its enforcement by mandamus. And since every citizen possesses the

inherent right to be informed by the mere fact of citizenship, we find that petitioner’s belated passing

of the CPA Board Exams does not automatically mean that her interest in the Examination Papers has

become mere superfluity. Undoubtedly, the constitutional question presented, in view of the likelihood

that the issues in this case will be repeated, warrants review.”

The Court then proceeded to hold in this wise: “We are prepared to concede that national boardexaminations such as the CPA Board Exams are matters of public concern. The populace in general, and

the examinees in particular, would understandably be interested in the fair and competent administration

of these exams in order to ensure that only those qualified are admitted into the accounting profession.

And as with all matters pedagogical, these examinations could be not merely quantitative means of

assessment, but also means to further improve the teaching and learning of the art and science of

accounting. On the other hand, we do realize that there may be valid reasons to limit access to the

Examination Papers in order to properly administer the exam. More than the mere convenience of the

examiner, it may well be that there exist inherent difficulties in the preparation, generation, encoding,




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administration, and checking of these multiple choice exams that require that the questions and answers

remain confidential for a limited duration. However, the PRC is not a party to these proceedings. They

have not been given an opportunity to explain the reasons behind their regulations or articulate the

justification for keeping the Examination Documents confidential. In view of the far-reaching

implications of this case, which may impact on every board examination administered by the PRC, and

in order that all relevant issues may be ventilated, we deem it best to remand these cases to the RTC for further proceedings.”

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, GMAwas 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

is conveyed to him when he had already served his sentence.

The need for filing with the ONAR was further highlighted in Republic v. Pilipinas Shell Petroleum

Corporation, 550 SCRA 680 (2008), and Securities and Exchange Commission v. PICOP Resources,

Inc., 566 SCRA 451 (2008).

K. R IGHT OF ASSOCIATION

Man being a social being necessarily finds it part of his natural inclinations that he associate with

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

who are likely to share your interests, sentiments, philosophy, ideology or affection. And, the right to1

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.2

See, e.g., Griswold v. Connecticut , 381 U.S. 479 (1965)1

In re Edillon, 84 SCRA 554 (1978)2




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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, or refusing participation to a group in a parade where that group’s message would3

not be in conformity with the organizer’s own idea of what the activity is all about.4

1. Bank of the Philippine Islands v. BPI Employees Union-Davao Chapter-Federation of Unionsin BPI Unibank , 627 SCRA 590 (2010)

If two corporations merge, one of which had a CBA with its labor organization which contained a

Union Shop Clause requiring new employees to join as a condition for retaining their employment while

the one which was absorbed did not have, could the employees of the latter be obligated to join the labor

union of the surviving entity? The Court said yes.

“In the case at bar, since the former FEBTC employees are deemed covered by the Union Shop

Clause, they are required to join the certified bargaining agent, which supposedly has gathered the

support of the majority of workers within the bargaining unit in the appropriate certification proceeding.

Their joining the certified union would, in fact, be in the best interests of the former FEBTC employees

for it unites their interests with the majority of employees in the bargaining unit. It encourages employeesolidarity and affords sufficient protection to the majority status of the union during the life of the CBA

which are the precisely the objectives of union security clauses, such as the Union Shop Clause involved

herein. . . . [S]ettled jurisprudence has already swung the balance in favor of unionism, in recognition

that ultimately the individual employee will be benefited by that policy. In the hierarchy of constitutional

values, this Court has repeatedly held that the right to abstain from joining a labor organization is

subordinate to the policy of encouraging unionism as an instrument of social justice.” The Court

concluded: “In sum, this Court finds it reasonable and just to conclude that the Union Shop Clause of

the CBA covers the former FEBTC employees who were hired/employed by BPI during the effectivity

of the CBA in a manner which petitioner describes as ‘absorption.’ A contrary appreciation of the facts

of this case would, undoubtedly, lead to an inequitable and very volatile labor situation which this Court

has consistently ruled against.”

L. EMINENT DOMAIN

While the government may negotiate with the owner for the acquisition of the latter’s property, 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, or arbitrary exercise, as well as the justness and timeliness of the payment for the property5 6

taken. As for judicial determination of just compensation, the Court has reverted to the old rule that the7

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 to3

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.

Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995)4

City of Manila v. Chinese Community of Manila, 40 Phil. 349 (1919)5

De Knecht v. Bautista, 100 SCRA 660 (1980)6

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,7

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




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same is a judicial function, not one to be simply determined by looking at what is indicated in the tax

declaration. With regard to public use, the same has also been construed to have a more expansive8

meaning so as to cover certain purposes which could not have been included in the past, such as

tourism, and setting up the birthplace of a known religious leader as a National Historical Landmark.9 10

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, or, that eminent domain cases11

are to be strictly construed against the expropriator. This perspective would make it easier to12

understand the Court’s recent rulings mandating payment within five (5) years from finality of the

judgment of expropriation, otherwise the owner would be entitled to demand recovery of possession,13

as well as the repurchase of the property when the purpose for which it was expropriated is abandoned.14

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.15

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

[2005])

EPZA v. Dulay, 149 SCRA 305 (1987)8

Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 (1983)9

Manosca v. Court of Appeals, 252 SCRA 412 (1996)10

Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007)11

San Roque Realty and Development Corporation v. Republic, 532 SCRA 493 (2007)12

Republic v. Lim, 462 SCRA 265 (2005)13

Mactan-Cebu International Airport Authority v. Lozada, Sr., 613 SCRA 618 (2010)14

See Municipality of Parañaque v. V.M. Realty Corporation, 292 SCRA 678 (1998)15




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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, 602 SCRA 601 (2009)

Where the expropriation case had long become 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.

Also, the expropriation court cannot, by itself, order the expropriating local government to enact an

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)

“[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.”

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.”

Earlier, in Masikip v. City of Pasig , 479 SCRA 391 (2006), the Court 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.”




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5. Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649 (2007)

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

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

amount to a possible case of malversation.

The Court added: “Taking an individual’s private property is a deprivation which can only be

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 propertyowner 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.”

6. 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 justcompensation 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 ).”

7. 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.

8. 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.




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When is the reckoning date? The Court held that “where actual taking is made without the benefit of

expropriation proceedings and the owner seeks recovery of the possession of the property prior to the

filing of expropriation proceedings, it is the value of the proper ty at the time of taking that is controlling

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 time that the real measure of their loss may fairly be adjudged. The

value, once fixed, shall earn interest at the legal rate until full payment is effected, conformably withother 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.”

9. Figuracion v. Libi , 539 SCRA 50 (2007)

This case involves an expropriation for a local road and the subsequent decision of the City of Cebu

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 Fery v. Municipality of Cabanatuan, 42 Phil 28 (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.”

10. Mactan-Cebu International Airport Authority v. Lozada, Sr., 613 SCRA 618 (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. 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




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new purpose. If not, it is then incumbent upon the expropriator to return the said property to its private

owner, if the latter desires to reacquire the same. Otherwise, the judgment of expropriation suffers an

intrinsic flaw, as it would lack one indispensable element for the proper exercise of the power of eminent

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 all pursued, and is peremptorily abandoned,

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.”

11. Vda. de Ouano v. Republic, 642 SCRA 384 (2011)

This case reiterates Heirs of Moreno and Lozada, making the application of the principle16

enunciated in Moreno and Lozada more explicit. Here, the Court said, “failing to keep its end of the

bargain, MCIAA can be compelled by the former landowners to reconvey the parcels of land to them,

otherwise, they would be denied the use of their properties upon a state of affairs that was not conceived

nor contemplated when the expropriation was authorized. In effect, the government merely held the

properties condemned in trust until the proposed public use or purpose for which the lots were

condemned was actually consummated by the government. Since the government failed to perform the

obligation that is the basis of the transfer of the property, then the lot owners Ouanos and Inocians can

demand the reconveyance of their old properties after the payment of the condemnation price.” It was

also made clear here that “ MCIAA v. Lozada, Sr., revisited and abandoned the Fery.”

Expounding on the Court’s holding, it stated: “ In esse, expropriation is forced private property

taking, the landowner being really without a ghost of a chance to defeat the case of the expropriatingagency. In other words, in expropriation, the private owner is deprived of property against his will.

Withal, the mandatory requirement of due process ought to be strictly followed, such that the state must

show, at the minimum, a genuine need, an exacting public purpose to take private property, the purpose

to be specifically alleged or least reasonably deducible from the complaint. Public use, as an eminent

domain concept, has now acquired an expansive meaning to include any use that is of “usefulness,

utility, or advantage, or what is productive of general benefit [of the public].’ If the genuine public

necessity – the very reason or condition as it were – allowing, at the first instance, the expropriation of

a private land ceases or disappears, then there is no more cogent point for the government’s retention

of the expropriated land. The same legal situation should hold if the government devotes the property

to another public use very much different from the original or deviates from the declared purpose to

benefit another private person. It has been said that the direct use by the state of its power to oblige

landowners to renounce their productive possession to another citizen, who will use it predominantly

for that citizen’s own private gain, is offensive to our laws. A condemnor should commit to use the

property pursuant to the purpose stated in the petition for expropriation, failing which it should file

another petition for the new purpose. If not, then it behooves the condemnor to return the said property

to its private owner, if the latter so desires. The government cannot plausibly keep the property it

expropriated in any manner it pleases and, in the process, dishonor the judgment of expropriation. This

is not in keeping with the idea of fair play. The notion, therefore, that the government, via expropriation

Heirs of Timoteo Moreno and Maria Rotea v. Mactan-Cebu International Airport Authority, 413 SCRA 502 (2003).16




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proceedings, acquires unrestricted ownership over or a fee simple title to the covered land, is no longer

tenable.”

It also worth highlighting what the Court said about expropriated land compared to purchased

realty. “Expropriated lands should be differentiated from a piece of land, ownership of which was

absolutely transferred by way of an unconditional purchase and sale contract freely entered by two

parties, one without obligation to buy and the other without the duty to sell. In that case, the fee simpleconcept really comes into play. There is really no occasion to apply the ‘fee simple concept’ if the

transfer is conditional. The taking of a private land in expropriation proceedings is always conditioned

on its continued devotion to its public purpose. As a necessary corollary, once the purpose is terminated

or peremptorily abandoned, then the former owner, if he so desires, may seek its reversion, subject of

course to the return, at the very least, of the just compensation received. To be compelled to renounce

dominion over a piece of land is, in itself, an already bitter pill to swallow for the owner. But to be asked

to sacrifice for the common good and yield ownership to the government which reneges on its assurance

that the private property shall be for a public purpose may be too much. But it would be worse if the

power of eminent domain were deliberately used as a subterfuge to benefit another with influence and

power in the political process, including development firms. The mischief thus depicted is not at all

far-fetched with the continued application of Fery. Even as the Court deliberates on these consolidated

cases, there is an uncontroverted allegation that the MCIAA is poised to sell, if it has not yet sold, the

areas in question to Cebu Property Ventures, Inc. This provides an added dimension to abandon Fery.”

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 to 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




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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, or when the introduction of structures or

objects which, by their nature, create or increase the probability of injury, death upon or destruction 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

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.”

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. Fromoverhead 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? No. The sub-terrain portion of the property similarly belongs to the surfaceowner, a conclusion drawn from Article 437 of the Civil Code – the ownership of land extends to the17

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 do 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,

“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 17

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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landowners cannot be deprived 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

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.

15. National Power Corporation v. Heirs of Macabangkit Sangkay, 656 SCRA 60 (2011)

And what is inverse condemnation? How does it differ from a claim for damages? The Court had

occasion to discuss the same in another case involving the National Power Corporation and its tunnels

bored deep under the lands of unsuspecting owners.

The Court explained that an “action to recover just compensation from the State or its expropriating

agency differs from the action for damages. The former, also known as inverse condemnation, has the

objective to recover the value of property taken in fact by the governmental defendant, even though no

formal exercise of the power of eminent domain has been attempted by the taking agency. . . . On the

other hand, the latter action seeks to vindicate a legal wrong through damages, which may be actual,

moral, nominal, temperate, liquidated, or exemplary. When a right is exercised in a manner not

conformable with the norms enshrined in Article 19 and like provisions on human relations in the Civil

Code, and the exercise results to the damage of another, a legal wrong is committed and the wrongdoer

is held responsible. The two actions are radically different in nature and purpose. The action to recover

just compensation is based on the Constitution while the action for damages is predicated on statutory

enactments. Indeed, the former arises from the exercise by the State of its power of eminent domain

against private property for public use, but the latter emanates from the transgression of a right. The fact

that the owner rather than the expropriator brings the former does not change the essential nature of the

suit as an inverse condemnation, for the suit is not based on tort, but on the constitutional prohibition

against the taking of property without just compensation. It would very well be contrary to the clear

language of the Constitution to bar the recovery of just compensation for private property taken for a

public use solely on the basis of statutory prescription.”

For Legal Research purposes, the Court referenced Corpus Juris Secundum (29A CJS, Eminent Domain, §381): “Inverse condemnation is a cause of action against a governmental defendant to recover

the value of property which has been taken in fact by the governmental defendant, even though no formal

exercise of the power of eminent domain has been attempted by the taking agency. While the typical

taking occurs when the government acts to condemn property in the exercise of its power of eminent

domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may

occur without such formal proceedings. The phrase ‘inverse condemnation,’ as a common understanding

of that phrase would suggest, simply describes an action that is the ‘inverse’ or ‘reverse’ of a

condemnation proceeding.”

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.”18

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

Juarez v. Court of Appeals, 214 SCRA 475 (1992)18




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congenitally susceptible to change by the legislature in the interest of the greater number. Most present-

day contracts are of that nature.”19

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.” And, that the contractual tax20

exemptions, in the real sense of the term and where the non-impairment clause of the Constitution canrightly 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 a grant which is beyond the purview of the

non-impairment clause of the Constitution.21

In Lepanto Consolidated Mining Co. v. WMC Resources Int’l. Pty. Ltd., 507 SCRA 315 (2006), the

Court had occasion to apply the Contract Clause. It held that Section 40 of the Philippine Mining Act

of 1995 requiring the approval of the President with respect to assignment or transfer of FTAAs, if madeapplicable 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. POVERTY AND LEGAL PROTECTION

The Constitution guarantees free access to the courts and quasi-judicial bodies, and likewise

mandates that adequate legal assistance shall not be denied to any person by reason of poverty. This may

mean that those who cannot afford filing fees may get some form of accommodation, such as being

allowed to litigate as paupers, thereby being exempted from the payment of filing fees. Can this beavailed of a juridical person? In Re: Query of Mr. Roger C. Prioreschi re Exemption from Legal and

Filing Fees of the Good Shepherd Foundation, Inc., 596 SCRA 401 (2009), the Court held that only

individuals may be granted exemption from filing fees as indigents – foundations, even if serving

indigents, are not entitled. “The clear intent and precise language of the aforequoted provisions of the

Rules of Court indicate that only a natural party litigant may be regarded as an indigent litigant.”

Accordingly, that “the Good Shepherd Foundation, Inc. is working for indigent and underprivileged

people is of no moment. Clearly, the Constitution has explicitly premised the free access clause on a

person’s poverty, a condition that only a natural person can suffer. ”

O. R IGHTS 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

National Development Company v. Philippine Veterans Bank , 192 SCRA 257 (1990)19

Tolentino v. Secretary of Finance, 235 SCRA 630 (1994)20

Manila Electric Company v. Province of Laguna, 306 SCRA 750 (1999)21




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Supreme Court in the not-too-distant past refused to apply the Miranda doctrine in People v. Jose, 3722

SCRA 450 (1971), and likewise did not recognize any retroactive application of the 1973 Constitution

version of the Miranda warnings, the same is now part of the easily-forgotten past. The doctrine has23

become firmly entrenched in law and jurisprudence, even constitutionalized at that.24

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 be waived, provided it is in writing and in the presence of counsel.25

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 in any criminal prosecution. 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 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.26

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. Moreover,27

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 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

Miranda v. Arizona, 384 U.S. 436 (1966)22

Magtoto v. Manguera, 63 SCRA 4 (1975)23

In 2000, the U.S. Supreme Court revisited Miranda and came up with a declaration that Miranda is of constitutional moorings,24

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])

SEC. 12. Right to Physical, Medical and Psychological Examination. – Before and after interrogation, every person arrested,25

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.

* * * * *

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.

A awyer who notarizes the sworn statement of a suspect whom he assists seriously compromises his independence, because by so26

doing, he vouches for the regularity of the circumstances surrounding the taking of the sworn statement by the police. ( People v. Labtan,

320 SCRA 140 [1999])

Also, lawyers engaged by the police are generally suspect, as in many areas, the relationship between lawyers, and law enforcement

authorities can be symbiotic. ( People v. Deniega, 251 SCRA 626 [1995])

People v. Basay, 219 SCRA 404 (1993)27




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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.” With28

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.29

1. People v. Reyes, 581 SCRA 691 (2009)

When really do the Miranda Rights kick in? In People v. Marra, and People v. Ting Lan Uy, Jr.,30 31

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

above-quoted constitutional provision [Art. III, §12] covers the period from the time a person is taken

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.”

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 the kind of legal assistance that the suspect is accorded under the

Constitution. 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, is32

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?)

People v. Morada, 307 SCRA 362 (1999), also carried the same message that media men must not be acting for police.28

See Rene B. Gorospe, “Beyond Stonehill : Extending the Exclusionary Rule to Uncounselled Media Confessions,” UST Law29

Review, Vol. XLVIII (January-December 2004), at 131-190. (http://ustlawreview.com/pdf/vol.XLVIII/Articles/Beyond_Stonehill.pdf)

236 SCRA 565 (1994)30

475 SCRA 248 (2005)31

The pronouncement in Rapesz may also be related to what the Court said in People v. Casimiro, 383 SCRA 390 (2002), on32

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.”




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3. People v. Lauga, 615 SCRA 548 (2010)

In People v. Malngan, 503 SCRA 294 (2006), the Court considered the confessions made to a

barangay chairman inadmissible since there was no Miranda Warning given prior to questioning. The

Court observed: “ 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 morningof 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.”33

Taking the teachings and spirit of Malngan further, the Court held in Lauga that Bantay Bayan

members or voluntary barangay-based anti-crime or neighborhood watch groups should similarly be

covered by the Miranda Doctrine. The Court observed that they are recognized by the local government

units to perform functions relating to the preservation of peace and order at the barangay level. Thus,

on the authority to conduct a custodial investigation, any inquiry they make has the color of a

state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution. Accordingly, any extrajudicial confession

taken without a counsel is inadmissible in evidence.

4. People v. Ganih, 621 SCRA 159 (2010)

Line-ups do not generally require that the suspect be informed of his Miranda Rights. However,

some line-ups – or show-ups (only one person is presented to the witness) – may be highly suggestive,

thus requiring some procedural safeguards. In this case, there was a line-up of sorts whereby the witness

stayed in her vehicle with tinted glass and took a look at the suspect and three other men. Was this

proper? The Court said yes. “[T[he manner in which Mrs. Lee identified Ganih was substantially the

same as in any proper police line-up except that this one took place outside the police station on account

of Mrs. Lee’s desire not to be seen while making the identification. The police did not show Ganih aloneto Mrs. Lee, which would suggest that he was their suspect. They made three other men stand with Ganih

in front of the police station while Mrs. Lee gazed on them behind the tinted windows of her vehicle.

What the Court condemns are prior or contemporaneous improper suggestions that point out the suspect

to the witness as the perpetrator to be identified.”

In People v. Ulit , 423 SCRA 374 (2004), the Barangay chairman ordered the barangay tanods to “invite and bring” the accused33

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.)

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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P. R IGHTS 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 thereby becoming an accused , 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.34

1. Lejano v. People, 638 SCRA 104 (2010)

The Court held here that an accused is not entitled to acquittal for the failure of the State to produce

the semen specimen at a late stage, when his case is already on appeal. The ruling in Brady v. Maryland ,

373 U.S. 83 (1963), has long be overtaken by the decision in Arizona v. Youngblood , 488 U.S. 41

(1988), where the U.S. Supreme Court held that due process does not require the State to preserve the

semen specimen although it might be useful to the accused unless the latter is able to show bad faith on

the part of the prosecution or the police.

On the need for impartiality amidst tendency of some judges to take the easy way out, what the Court

said about downplaying at once the defense of alibi is also instructive. The Court admonished that not

all denials and alibis should be regarded as fabricated – indeed, if the accused is truly innocent, he can

have no other defense but denial and alibi. A judge must keep an open mind, guarding against slipping

into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case – a positive

declaration from a witness that he saw the accused commit the crime should not automatically cancel

out the accused’s claim that he did not do it. A lying witness can make as positive an identification as

a truthful witness can.

2. Government of Hong Kong Special Administrative Region v. Olalia, Jr. , 521 SCRA 470(2007)

“Bail acts as a reconciling mechanism to accommodate both the accused’s interest in pretrial liberty

and society’s interest in assuring the accused’s presence at trial,” so said the Court in Leviste v. Court

of Appeals, 615 SCRA 619 (2010). “An erroneously convicted accused who is denied bail loses his

liberty to pay a debt to society he has never owed.” Is it also available for someone who is being sought

to be extradited?

In Government of the United States of America v. Purganan , 389 SCRA 623 (2002), the majority

ruled that a potential extraditee is not entitled to notice and hearing before the issuance of a warrant of

arrest. Confronted anew with the question as to whether a potential extraditee is entitled to bail, the

Court in Government of Hongkong found occasion to revisit what it had earlier decreed in Purganan.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

In People v. Alcanzado, 428 SCRA 681 (2004), the Court held that if a demurrer to evidence with leave of court is denied, the trial34

court should give the accused the opportunity to present his evidence. It cannot simply proceed to convict him.




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rights, particularly the right to life and liberty, a reexamination of the Court’s ruling in Purganan was

accordingly in order. The Court reasoned out that if bail can be granted in deportation cases, it saw no

justification why it should not also be allowed in extradition cases – clearly, the right of a prospective

extraditee to apply for bail must be viewed in the light of the various treaty obligations of the Philippines

concerning 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 adeprivation 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 the Philippines’ extradition law does not provide for the

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.

Nevertheless, 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 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.

3. 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 notallowed to leave his prison cell in order to join his colleagues in the legislative branch.

The Court further held that “[t]he rule stands that until a promulgation of final conviction is made,

the constitutional mandate of presumption of innocence prevails.”

4. 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.”

5. People v. Abulon, 530 SCRA 675 (2007)

Rape through Sexual Intercourse v. Rape by Sexual Assault. “In view of the material differences




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between the two modes of rape, the first mode is not necessarily included in the second, and vice-versa.35

Thus, where the charge in 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.

In contrast, we have Andaya v. People, 493 SCRA 539 (2006). Here, the charge was Falsificationof Private Documents but no damage to offended party was proved. The accused was still convicted by

the trial court, nevertheless, for intent to cause damage to the 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 Supreme Court disagreed,

however. The Court pointed out 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.”

6. Re: Petition for Radio and Television Coverage of the Multiple Murder Cases Against

Maguindanao Governor Zaldy Ampatuan, 652 SCRA 1 (2011)

In Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case36

and Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against

the Former President Joseph E. Estrada, 360 SCRA 248 (2001), the Supreme Court did not allow for

live radio-TV coverage of the trials involved therein. Now, in regard to the so-called MaguindanaoMassacre where there were 57 victims and 197 accused, the Court is being asked once more to allow for

such live broadcast of the proceedings. Would the request fare any better. Yes, the Court said. Pro hac

vice.

Here, the Court highlighted the delicate balance between seemingly competing yet certainly

complementary rights – the right of the accused to a fair trial free from prejudice caused by undue

publicity, and the right of the people to know what is happening inside the courthouse. The Court

explained: “The rationale for an outright total prohibition was shrouded, as it is now, inside the

comfortable cocoon of a feared speculation which no scientific study in the Philippine setting

confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing

rules and exacting regulations. In this day and age, it is about time to craft a win-win situation that

shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied

rights, and interfere with the integrity, dignity and solemnity of judicial proceedings. Compliance with

regulations, not curtailment of a right, provides a workable solution to the concerns raised in these

administrative matters, while, at the same time, maintaining the same underlying principles upheld in

the two previous cases.” The Court further stated that “the right of an accused to a fair trial is not

incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused

“Rape through sexual intercourse is also denominated as ‘organ rape’ or ‘penile rape.’ On the other hand, rape by sexual assault35

is otherwise called ‘instrument or object rape,’ also ‘gender-free rape,’ or the narrower ‘homosexual rape.’”

En Banc Resolution of October 22, 1991.36




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to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render

a bias-free decision. Mere fear of possible undue influence is not tantamount to actual prejudice resulting

in the deprivation of the right to a fair trial.”

Making use of the totality of circumstances test , the Court paved the way, pro hac vice, for the live

broadcast of the proceedings subject of the case. “One apparent circumstance that sets the Maguindanao

Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to thecases – the private complainants/families of the victims and other witnesses – inside the courtroom.” The

Court explained that “[e]ven before considering what is a ‘reasonable number of the public’ who may

observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already

necessarily entail the presence of hundreds of families. It cannot be gainsaid that the families of the 57

victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the

proceedings as those of the impleaded parties or trial participants. It bears noting at this juncture that the

prosecution and the defense have listed more than 200 witnesses each. The impossibility of holding such

judicial proceedings in a courtroom that will accommodate all the interested parties, whether private

complainants or accused, is unfortunate enough. What more if the right itself commands that a

reasonable number of the general public be allowed to witness the proceeding as it takes place inside the

courtroom. Technology tends to provide the only solution to break the inherent limitations of the

courtroom, to satisfy the imperative of a transparent, open and public trial. In so allowing pro hac vice

the live broadcasting by radio and television of the Maguindanao Massacre cases, the Court lays down

the following guidelines toward addressing the concerns mentioned in Aquino and Estrada.”

So, what are the guidelines?

(a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes

and for transmittal to live radio and television broadcasting.

(b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast

the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical

plan to carry out the same, with an undertaking that they will faithfully comply with the guidelines and regulations

and cover the entire remaining proceedings until promulgation of judgment.

No selective or partial coverage shall be allowed. No media entity shall be allowed to broadcast the proceedings

without an application duly approved by the trial court.

(c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single

wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid unduly

highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated

and controlled only by a duly designated official or employee of the Supreme Court. The camera equipment should

not produce or beam any distracting sound or light rays. Signal lights or signs showing the equipment is operating

should not be visible. A limited number of microphones and the least installation of wiring, if not wireless

technology, must be unobtrusively located in places indicated by the trial court.

The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial

court on the physical set-up of the camera and equipment.(d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be

conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and

solemnity of the proceedings and the exclusivity of the access to the media entities.

The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings

shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome

snaking cables inside the courtroom, (ii) minimize the unnecessary ingress or egress of technicians, and (iii) preclude

undue commotion in case of technical glitches.

If the premises outside the courtroom lack space for the set-up of the media entities’ facilities, the media entities

shall access the audio-visual recording either via wireless technology accessible even from outside the court




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premises or from one common web broadcasting platform from which streaming can be accessed or derived to feed

the images and sounds.

At all times, exclusive access by the media entities to the real-time audio-visual recording should be protected

or encrypted.

(e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting

such portions thereof where Sec. 21 of Rule 119 of the Rules of Court applies, and where the trial court excludes,

37

upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved

identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony

(e.g., the dovetailing of corroborative testimonies is material, minority of the witness).

The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or

mute the audio output, or both.

(f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall

be allowed until the day’s proceedings are adjourned, except during the period of recess called by the trial court and

during portions of the proceedings wherein the public is ordered excluded.

(g) To avoid overriding or superimposing the audio output from the on-going proceedings, the proceedings shall

be broadcast without any voice-overs, except brief annotations of scenes depicted therein as may be necessary to

explain them at the start or at the end of the scene. Any commentary shall observe the sub judice rule and be subject

to the contempt power of the court;

(h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except

brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news

purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court;

(i) The original audio-recording shall be deposited in the National Museum and the Records Management and

Archives Office for preservation and exhibition in accordance with law.

(j)The audio-visual recording of the proceedings shall be made under the supervision and control of the trial

court which may issue supplementary directives, as the exigency requires, including the suspension or revocation

of the grant of application by the media entities.

(k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate

arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live

broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines. The Special Committeeshall also report and recommend on the feasibility, availability and affordability of the latest technology that would

meet the herein requirements. It may conduct consultations with resource persons and experts in the field of

information and communication technology.

(l) All other present directives in the conduct of the proceedings of the trial court (i.e., prohibition on recording

devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom)

shall be observed in addition to these guidelines.

And, talking of new and constantly developing technology seen alongside the slower and phlegmatic

movement of law, the Court observed: “Putt’s Law states that ‘technology is dominated by two types38

of people: those who understand what they do not manage, and those who manage what they do not

understand.’ Indeed, members of this Court cannot strip their judicial robe and don the experts’ gown,

so to speak, in a pretense to foresee and fathom all serious prejudices or risks from the use of technologyinside the courtroom. ” And, towards the end the Court concluded: “Indeed, the Court cannot gloss over

what advances technology has to offer in distilling the abstract discussion of key constitutional precepts

into the workable context. Technology per se has always been neutral. It is the use and regulation thereof

that need fine-tuning. Law and technology can work to the advantage and furtherance of the various

Exclusion of the public. – The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced37

during the trial is offensive to decency or public morals.He may also, on motion of the accused, exclude the public from the trial except

court personnel and the counsel of the parties.

Based on the 1981 book entitled “Putt’s Law and the Successful Technocrat” which is attributed to the pseudonym Archibald Putt.38




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rights herein involved, within the contours of defined guidelines.”39

As for taking the bar exams is concerned, the hardship and torture that go with it nee not necessarily

be in conflict with the quest for happiness. There is joy and thrill in the eventually prevailing after a hard

day’s work.

Q. WRITS OF H ABEAS C ORPUS AND A MPARO

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.”40

In Martinez v. Mendoza, 499 SCRA 234 (2006), 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, or lately, the writ of amparo.

Years before the writ of amparo, the Supreme Court said in Subayno v. Enrile, 145 SCRA 282

(1986), that the writ of habeas corpus may not be used as a means of obtaining evidence on the

whereabouts of a person. Then, in Martinez v. Mendoza, 499 SCRA 234 (2006), 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. That

was then. Now, we have also the writ of amparo.

1. 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.

Have you noticed how you have made use of modern means of communications and entertainment as tools in your study of law,39

such as in internet research not only for cases but also for digests, reliable or otherwise?

Feria v. Court of Appeals, 325 SCRA 525 (2000)40




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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 defer ence to administrative expertise.

2. 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?

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

custody’ complained of by petitioners is, at best, nominal restraint which is beyond the ambit of habeas

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.”

3. W RIT OF A MPARO

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. This is a remedy available to any person whose right41

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 responsiblefor 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. The writ of amparo is an42

extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary

proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs

available to the petitioner. It is not an action to determine criminal guilt requiring proof beyond

Effective 24 October 2007, pursuant to A.M. No. 07-0-12-SC (25 September 2007).41

See also the Rule on the Writ of Habeas Data discussed in the section on Searches and Seizures.42




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reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative

responsibility requiring substantial evidence that will require full and exhaustive proceedings. Rather,

it serves both preventive and curative roles in addressing the problem of extrajudicial killings and

enforced disappearances. It is preventive in that it breaks the expectation of impunity in the commission

of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by

inevitably leading to subsequent investigation and action.43

Among the significant characteristics and features of the remedy of writ of amparo are the following:

(a) it does not determine criminal, civil or administrative liability; (b) it simply determines responsibility

and accountability; (c) it provides for flexibility in regard to rules of evidence, adopting the doctrine44

of totality of evidence in that courts consider all the pieces of evidence adduced in their totality, and

consider any evidence otherwise inadmissible under usual rules to be admissible if it is consistent with

the admissible evidence adduced, thus allowing for the admission of hearsay evidence; (d) the doctrine

of command responsibility doctrine may likewise find application in proceedings seeking the privilege

of the writ of amparo; (e) the writ is immediately executory and need not to await a motion for

execution; (f) the retirement, reassignment or separation from the service of respondents does not

necessarily terminate their amenability to the amparo proceedings.

In Balao v. Macapagal-Arroyo, – SCRA – (G.R. No. 186050, 13 December 2011), the Court held

that the “documented practice of targeting activists in the military’s counter-insurgency program by itself

does not fulfill the evidentiary standard provided in the Amparo Rule to establish an enforced

disappearance.”

4. 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.45

As to the Writ’s origin and nature, the Court said: “The writ of amparo originated in Mexico.

‘ Amparo’ literally means ‘protection’ in Spanish.” Amparo “combines the principles of judicial review

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

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

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)

Rodriguez v. Macapagal-Arroyo, 660 SCRA 84 (2011), citing Secretary of National Defense v. Manalo, 568 SCRA 1 (2008)43

Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way,44

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, refers to the measure of

remedies that should be addressed to those [i] who exhibited involvement in the enforced disappearance without bringing the level of

their complicity to the level of responsibility; or [ii] who are imputed with knowledge relating to the enforced disappearance and who

carry the burden of disclosure; or [iii] those who carry, but have failed to discharge, the burden of extraordinary diligence in the

investigation of the enforced disappearance.

An earlier petition for writ of habeas corpus had been withdrawn following the escape of the the Manalo brothers who were until45

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 for their lives and security. Therefore, they filed a petition for Prohibition, Injunction and TRO to stop the Secretary

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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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 Clause (Art. VIII, §1, ¶2). On the Grave Abuse Clause, the Court said:46

“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 pressing problems 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 theintractable 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 other hand, enforced disappearances are attended by the following

characteristics: an arrest, detention or abduction of a person by a government official or organized groups

or private individuals acting with the direct or indirect acquiescence of the government; the refusal of

the State to disclose the fate or whereabouts 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 securityof 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–

upon which the enjoyment of all other rights is preconditioned – the right to security of person is a

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

This seems to be the first time that the Court made use of this term.46




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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 contextof 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 personto 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 security as a guarantee of protection by the government.” In other words,

“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

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 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

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.”




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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 anyinvestigation 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 givevoice to your silent pens and to break free from the prison walls you have made out of your unfoundedtrepidations about the Bar exams!)

5. Razon, Jr. v. Tagitis, 606 SCRA 598 (2009) and 612 SCRA 685 (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 thedisappearance; rather, it determines responsibility , or at least accountability, for the enforced

disappearance for purposes of imposing the appropriate remedies to address the disappearance.” The

Court further explained that “[i]n 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. We highlight this nature of a Writ of Amparo case at the outset to stress that

the unique situations 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 actions and proceedings. In this sense, the Rule on the Writ of Amparo ( 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.”

In regard to the need for some adjustments, 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 an effective remedy, the standard of evidence must be responsive to the

evidentiary 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.”

In keeping with the idea that the remedy under the Writ of Amparo is a work in progress, take note

of what the Court said in Burgos v. Macapagal-Arroyo, 621 SCRA 481 (2010) – even as some of the

named respondents had retired or been reassigned elsewhere, they, as present respondents, “shall

continue to be personally impleaded for purposes of the responsibilities and accountabilities they may

have incurred during their incumbencies.”47

In Burgos, the Court concluded that “the PNP and the AFP have so far failed to conduct an exhaustive and meaningful investigation47

into the disappearance of Jonas Burgos, and to exercise the extraordinary diligence (in the performance of their duties) that the Rule on

the Writ of Amparo requires.” The Court also referred the case to the Commission on Human Rights as “the Court’s directly commissioned




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6. Rubrico v. Macapagal-Arroyo, 613 SCRA 233 (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 responsibilityas 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

neglect of duty – but is now criminal. At the same time, he reiterated what was earlier said in Razon v.

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, can only direct that procedural remedies be

undertaken for the protection of constitutional rights to life, liberty and security.

7. Boac v. Cadapan, 649 SCRA 618 (2011)

Among the significant aspects of this case which arose from the abduction and disappearance of two

women and a man is the recognition of the credibility of the testimony of Manalo in the earlier case of

Secretary of National Defense. “The Court takes judicial notice of its Decision in the just cited Secretary

of National Defense v. Manalo which assessed the account of Manalo to be a candid and forthrightnarrative of his and his brother Reynaldo’s abduction by the military in 2006; and of the corroborative

testimonies, in the same case, of Manalo’s brother Reynaldo and a forensic specialist, as well as

Manalo’s graphic description of the detention area. There is thus no compelling reason for the Court,

in the present case, to disturb its appreciation in Manalo’s testimony. The outright denial of petitioners

Lt. Col. Boac, et al. thus crumbles.”

Hierarchy of Amparo Petitioners. Also, the Court spoke of a hierarchy of parties when it comes to

agency tasked with the continuation of the investigation of the Burgos abduction and the gathering of evidence, with the obligation to

report its factual findings and recommendations to this Court.”




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petitions for writs of amparo. The exclusive and successive order mandated by Section 2 of the Rule on

the Writ of Amparo must be followed. “The order of priority is not without reason – ‘to prevent the

indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life,

liberty or security of the aggrieved party.’” Thus, the parents of the two missing persons could not file

a petition on behalf of the third missing individual, specially if there is no showing that there were no

known members of the immediate family or relatives of the latter. Incidentally, in this regard the Courtnoted that, in contrast, in a habeas corpus proceeding, any person may apply for the writ on behalf of

the aggrieved party.

Command Responsibility in Amparo Proceedings. While the Court maintained the pronouncement

in Rubrico in denying the application of command responsibility in amparo cases to determine criminal

liability, it nevertheless went on to state that “command responsibility may be loosely applied in amparo

cases in order to identify those accountable individuals that have the power to effectively implement

whatever processes an amparo court would issue. In such application, the amparo court does not impute

criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect

the rights of the aggrieved party. Such identification of the responsible and accountable superiors may

well be a preliminary determination of criminal liability which, of course, is still subject to further

investigation by the appropriate government agency.”

Motion for Execution of Writ of Amparo. “[T]here is no need to file a motion for execution for an

amparo or habeas corpus decision. Since the right to life, liberty and security of a person is at stake, the

proceedings should not be delayed and execution of any decision thereon must be expedited as soon as

possible since any form of delay, even for a day, may jeopardize the very rights that these writs seek to

immediately protect.” Moreover, “The Rules of Court only find suppletory application in an amparo

proceeding if the Rules strengthen, rather than weaken, the procedural efficacy of the writ. As it is, the

Rule dispenses with dilatory motions in view of the urgency in securing the life, liberty or security of

the aggrieved party. Suffice it to state that a motion for execution is inconsistent with the extraordinary

and expeditious remedy being offered by an amparo proceeding. In fine, the appellate court erred in

ruling that its directive to immediately release Sherlyn, Karen and Merino was not automaticallyexecutory. For that would defeat the very purpose of having summary proceedings in amparo petitions.

Summary proceedings, it bears emphasis, are immediately executory without prejudice to further appeals

that may be taken therefrom.”

Effect of Transfer, Retirement or Separation from Service. Finally, it is also noteworthy that some

respondents remained to be such notwithstanding that they might have been reassigned or transferred

or retired. We find this in the dispositive portion: “Respondents Lt. Col. Felipe Anotado, Lt. Francis

Mirabelle Samson, Gen. Jovito Palparan, Lt. Col. Rogelio Boac, Arnel Enriquez and Donald Caigas shall

remain personally impleaded in the petitions to answer for any responsibilities and/or accountabilities

they may have incurred during their incumbencies.”

8. Rodriguez v. Macapagal-Arroyo), 660 SCRA 84 (2011)

The Court discussed some noteworthy highlights regarding the writs of amparo and habeas data in

this petition filed by Rodriguez who claimed to have been abducted, detained and tortured by certain

elements of the military.

Grant of Interim Reliefs. Being interim reliefs, they can only be granted before a final adjudication

of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once

granted, necessarily entails the protection of the aggrieved party. Accordingly, since the Court granted

petitioner the privilege of the writ of amparo, there was no more need to issue a temporary protection




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order independently of the former. The order restricting respondents from going near Rodriguez is

subsumed under the privilege of the writ.

Concepts of Responsibility and Accountability. Since there is no determination of administrative,

civil or criminal liability in amparo and habeas data proceedings, courts can only go as far as

ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing.

Presidential Immunity from Suit . A non-sitting President does not enjoy immunity from suit, even

for acts committed during the latter’s tenure. Courts should look with disfavor upon the presidential

privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a

right. Further, presidential immunity from suit exists only in concurrence with the president’s

incumbency. Former President Arroyo cannot use the presidential immunity from suit to shield herself

from judicial scrutiny that would assess whether, within the context of amparo proceedings, she was

responsible or accountable for the abduction of Rodriguez.

Command Responsibility in Amparo proceedings. Although originally used for ascertaining criminal

complicity, the command responsibility doctrine has also found application in civil cases for human

rights abuses. This development in the use of command responsibility in civil proceedings shows that

the application of this doctrine has been liberally extended even to cases not criminal in nature. The

Court held that command responsibility may likewise find application in proceedings seeking the

privilege of the writ of amparo. The doctrine of command responsibility may be used to determine

whether respondents are accountable for and have the duty to address the abduction of the petitioner in

order to enable the courts to devise remedial measures to protect his rights. Nothing precludes the Court

from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility

and accountability in extrajudicial killings and enforced disappearances.

Command responsibility of the President . The president, as commander-in-chief of the military, can

be held responsible or accountable for extrajudicial killings and enforced disappearances. To hold

someone liable under the doctrine of command responsibility, the following elements must obtain: (a)

the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate; (b) the superior knew or had reason to know that the crime was about

to be or had been committed; and (c) the superior failed to take the necessary and reasonable measures

to prevent the criminal acts or punish the perpetrators thereof.

The president, being the commander-in-chief of all armed forces, necessarily possesses control over

the military that qualifies him as a superior within the purview of the command responsibility doctrine.

On the issue of knowledge, it must be pointed out that although international tribunals apply a strict

standard of knowledge, i.e., actual knowledge, such may nonetheless be established through

circumstantial evidence. In the Philippines, a more liberal view is adopted and superiors may be charged

with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226,

otherwise known as the Institutionalization of the Doctrine of ‘Command Responsibility’ in all Government Offices, particularly at all Levels of Command in the Philippine National Police and other

Law Enforcement Agencies (E.O. 226 [1995]). Knowledge of the commission of irregularities, crimes

or offenses is presumed when (a) the acts are widespread within the government official’s area of

jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility;

or (c) members of his immediate staff or office personnel are involved.

As to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief

of the armed forces, the president has the power to effectively command, control and discipline the

military.




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Responsibility or accountability of former President Arroyo. As to the question as to whether the

petitioner had proven through substantial evidence that former President Arroyo is responsible or

accountable for his abduction, the Court ruled in the negative. While the Alston Report states that there

is a policy allowing enforced disappearances and pins the blame on the President, the Court did not

automatically impute responsibility to former President Arroyo for each and every count of forcible

disappearance. Aside from general averments, there is no piece of evidence that could establish her responsibility or accountability for the abduction subject of the case. Neither was there even a clear

attempt to show that she should have known about the violation of his right to life, liberty or security,

or that she had failed to investigate, punish or prevent it.

Doctrine of Totality of Evidence. Under the doctrine of totality of evidence in amparo cases, courts

consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise

inadmissible under the usual rules to be admissible if it is consistent with the admissible evidence

adduced. The Court reduced the 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.

Commission on Human Rights Shortcomings. Here, while the Court found that there was nosubstantial evince to show that the personnel of the CHR who looked into the case of Rodriguez

violated, or threatened with violation, Rodriguez’s right to life, liberty and security, it nonetheless

emphasized its criticism as regards their capacity to recognize torture or any similar form of abuse. The

Court pointed out that the CHR, being constitutionally mandated to protect human rights and investigate

violations thereof, should ensure that its officers are well-equipped to respond effectively to and address

human rights violations. The actuations of respondent CHR personnel unmistakably showed their

insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal.

Effect of Failure to Conduct a Fair and Effect Investigation. The Court also said that failure to

conduct a fair and effect investigation amounts to a violation of or threat to a person’s rights to life,

liberty and security. The Rule on the Writ of Amparo explicitly states that the violation of or threat tothe right to life, liberty and security may be caused by either an act or an omission of a public official,

reiterating that in the context of amparo proceedings, responsibility may refer to the participation of

the respondents, by action or omission, in enforced disappearance, while accountability may attach to

respondents 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. Adverting to Secretary of National Defense

v. Manalo, 568 SCRA 1, 42 (2008), the Court reminded everyone that the right to security of a person

includes the positive obligation of the government to ensure the observance of the duty to investigate.

The Court noted that in this case, there was only perfunctory investigation by the superiors, exerting no

efforts to take Ramirez’s account of the events into consideration. Rather, these respondents solely relied

on the reports and narration of the military.

The Court then proceeded to rule that the privilege of the writs of amparo and habeas data must be

granted in Rodriguez’s favor. As a result, there is no longer any need to issue a temporary protection

order, as the privilege of these writs already has the effect of enjoining respondents from violating his

rights to life, liberty and security.

9. Balao v. Macapagal-Arroyo, – SCRA – (G.R. No. 186050, 13 December 2011)

In this case, even as the Court reversed the trial court’s grant of the privilege of amparo, it proceeded

to direct the conduct of further investigation into the abduction of a missing person. Also, in regard to




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quantum of evidence for inspection order, the Court noted: “A basic requirement before an amparo court

may grant an inspection order is that the place to be inspected is reasonably determinable from the

allegations of the party seeking the order. In this case, the issuance of inspection order was properly

denied since the petitioners specified several military and police establishments based merely on the

allegation that the testimonies of victims and witnesses in previous incidents of similar abductions

involving activists disclosed that those premises were used as detention centers. In the same vein, the prayer for issuance of a production order was predicated on petitioners’ bare allegation that it obtained

confidential information from an unidentified military source, that the name of James was included in

the so-called Order of Battle. Indeed, the trial court could not have sanctioned any ‘fishing expedition’

by precipitate issuance of inspection and production orders on the basis of insufficient claims of one

party.”

10. 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. The

petitioners’ claim to their dwelling, assuming they still have any despite the final and executory

judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, nolegal basis for the issuance of the writ of amparo. This new remedy of writ of amparo is intended for

the protection of the highest possible rights of any person, which is his or her right to life, liberty and

security. The Court will not waste its precious time and effort on matters not covered by the writ.

R. 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, it must be

remembered that the guarantee is against compelled testimonial evidence, not object evidence whichmay 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 property or loss of a license or 48

profession is a consequence, then he may also invoke the privilege like an accused.49

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.

Cabal v. Kapunan, Jr ., 6 SCRA 1059 (1962)48

Pascual, Jr. v. Board of Medical Examiners, 28 SCRA 344 (1969)49




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1. Disini v. Sandiganbayan, 621 SCRA 415 (2010)

In Tanchanco v. Sandiganbayan, 476 SCRA 202 (2005), the Court held that the kind of immunity

that may be granted in the Philippines is broader than American “transactional immunity” since the latter

are judge-made while in the Philippines they are granted by the legislature, while in Mapa v.

Sandiganbayan, 231 SCRA 783 (1994), the Government was held to its part of the bargain relative to

grant of transactional immunity.

Disini is again about the grant of immunity whereby, in exchange for Jesus Disini’s agreement to

testify for the Government in relation to the dispute with Westinghouse regarding the Bataan Nuclear

Plant, he was granted immunity from having to testify against Herminio T. Disini. Subsequently the

Government said that Jesus Disini could not refuse to testify against Herminio. The Court said: “Surely,

the principle of fair play, which is the essence of due process, should hold the Republic on to its

promise.” The guarantee given to petitioner Disini against being compelled to testify in other cases

against Herminio constitutes a grant of immunity from civil or criminal prosecution. “The grant,

therefore, of immunity to petitioner Disini against being compelled to testify is ultimately a grant of

immunity from being criminally prosecuted by the State for refusal to testify, something that falls within

the express coverage of the immunity given him.” Then, as if to provide lessons on human relations, theCourt said that it “should not allow respondent Republic, to put it bluntly, to double cross petitioner

Disini. . . . More than any one, the government should be fair.”

S. 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 on punishments 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. Fines should not be excessive, and other 50

forms of punishments should not be cruel or inhuman as determined by present day standards.

Likewise, just because a person may have been sent to prison does it mean that he is completely cut

off from the world, stripped of all constitutional rights. He still retains some, though to the extent only

that would be consistent with his status as prisoner.

In the recent case of Brown v. Plata, 563 U.S. ___ (2011), the U.S. Supreme Court held that

overcrowding in prisons resulting in deficiencies in the medical care of the prisoners violate the Eighth

Amendment guarantee against cruel and unusual punishments. In other words, if a prison deprives

prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to

remedy the resulting Eighth Amendment violation.

T. 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 relation to the same offense. Thus, it may be that a single

See De La Salle University, Inc. v. Court of Appeals, 541 SCRA 22 (2007)50




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act could give rise to two or more offenses, prosecution for which will not give rise to a violation of 51

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.52

The rule is also that an acquittal puts an end to the criminal case and the prosecution could notelevate it to a higher tribunal except in case of a mistrial or when there is grave abuse of discretion on53

the part of the judge amounting to lack or excess of jurisdiction which then renders the resulting

judgment void. Neither may the prosecution appeal to increase the penalty, though if the accused54

himself does appeal, he stands the risk of having the penalty rectified – and increased! And, the55

employer, too, cannot appeal on behalf of an employee who has jumped bail.56

1. Heirs of Jane Honrales v. Honrales, 629 SCRA 423 (2010)

The trial court acts with grave abuse of discretion where it grants the withdrawal of the Information

for parricide and recalls the warrant of arrest without making an independent assessment of the merits

of the case and the evidence on record. When it relies solely on the manifestation of the public prosecutor that it is abiding by the Resolution of the Secretary of Justice, the trial court abdicates its

judicial power and refuses to perform a positive duty enjoined by law. The Court also held that since the

offense of reckless imprudence resulting in parricide was included in the charge for intentional parricide

pending before the RTC, the MeTC clearly had no jurisdiction over the subsequent criminal case for

reckless imprudence resulting in parricide filed before it, the RTC having retained jurisdiction over the

offense to the exclusion of all other courts. Finally, the Court also reiterated the principle that a decision

rendered without jurisdiction is not a decision in contemplation of law and can never become executory.

2. 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 (an original action). 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

E.q., Nierras v. Dacuycuy, 181 SCRA 1 (1990) [bouncing checks], and, People v. Ortiz-Miyake, 279 SCRA 180 (1997) [illegal51

recruitment]; and, Ramiscal, Jr. v. Sandiganbayan, 499 SCRA 375 (2006) [R.A. 3019 and Revised Penal Code]

See separate opinion of Justice Tinga in Gonzales v. Abaya, 498 SCRA 445 (2006).52

Galman v. Sanidganbayan, 144 SCRA 43 (1986)53

People v. Laguio, Jr., 518 SCRA 393 (2007)54

People v. Rondero, 320 SCRA 383 (1999)55

In Philippine Rabbit Bus Lines, Inc. v. People, 427 SCRA 456 (2004), the Court held that, in accordance with the rule that only56

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.




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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 .”57

3. Trinidad v. Office of the Ombudsman, 539 SCRA 415 (2007)

Does the rule on double jeopardy or res judicata apply in preliminary investigations? No. “ 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 findingsand the evidence already submitted.”

4. 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 theappointee 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.”

5. 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 a complaint 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

See, however, People v. Dumlao, 580 SCRA 409 (2009), where the Court entertained a petition for review on certiorari under Rule57

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 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 and does not exist. Otherwise put, the dismissal of the case below was invalid for lack of a 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.”




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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 of discretion when it misapprehended the totality 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 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 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.)

6. 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 theamended 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 theoriginal 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.

7. 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 proceed to dismiss the case based on insufficiency of evidence.

The Court reminded everyone that insufficiency of evidence is not one of the grounds for a Motion




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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.

It was therefore erroneous for the Sandiganbayan to dismiss the case under the premises. Not only didit not consider the ground invoked by respondent Dumlao; it even dismissed the case on a ground not

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.”

8. Ivler v. Modesto-San Pedro, 635 SCRA 191 (2010)

If irresponsible driving leads to a vehicular collision resulting in damage to property, injuries to a

passenger and death to another passenger, how many offenses are committed? Technically, only one

even as there would be two resulting charges – one for reckless imprudence resulting in physical injuries,

and, another one for reckless imprudence resulting in homicide and damage to property. What if the

accused pleads guilty to the lesser charge involving physical injuries, could he plead this as a way to preclude the second charge involving homicide? The Court said yes because double jeopardy would have

set in – there is actually only one offense of reckless imprudence! In other words, reckless imprudence

is a single crime, and its consequences on persons and property are material only to determine the

penalty.

U. E X P OST F ACTO 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 hecommitted, 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.

With regard to the rule against ex post facto laws, 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




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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.”58

1. Salvador v. Mapa, 539 SCRA 34 (2007)

In this case, the Court claimed responsibility for adding two other types of ex post facto laws. “An

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

or deprivation of a right which when done was lawful; or (f) that which deprives a person accused of a

crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.”

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, such as Administrative Order No.

13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans. On the other hand,

Memorandum Order No. 61 merely provides a frame of reference for determining behest loans.

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 P=15,000.00 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.

Rogers v. Tennessee, 532 U.S. 451 (2001)58




3. Bureau of Customs Employees Association (BOCEA) v. Teves, 661 SCRA 589 (2011)

Here, the argument was advanced that the Attrition Law (R.A. No. 9335) is a bill of attainder. The

Court said no, it is not. It explained that “[a] bill of att ainder is a legislative act which inflicts

punishment on individuals or members of a particular group without a judicial trial. Essential to a bill

of attainder are a specification of certain individuals or a group of individuals, the imposition of a

punishment, penal or otherwise, and the lack of judicial trial.” It also gave a brief background on billsof attainder as discussed by Justice Feliciano in his concurring opinion in Tuason v. Register of Deeds,

Caloocan City, 157 SCRA 613 (1988), specifically that bills of attainder are “an ancient instrument of

tyranny” whereby Parliament would at times enact bills or statutes which declared certain persons

attainted and their blood corrupted so that it lost all heritable quality, though “[i]n more modern terms,

a bill of attainder is essentially a usurpation of judicial power by a legislative body. It envisages and

effects the imposition of a penalty – the deprivation of life or liberty or property – not by the ordinary

processes of judicial trial, but by legislative fiat. While cast in the form of special legislation, a bill

of attainder (or bill of pains and penalties, if it prescribed a penalty other than death) is in intent

and effect a penal judgment visited upon an identified person or group of persons (and not upon

the general community) without a prior charge or demand, without notice and hearing, without

an opportunity to defend, without any of the civilized forms and safeguards of the judicial process

as we know it.”

The long and short of it, “R.A. No. 9335 does not possess the elements of a bill of attainder. It does

not seek to inflict punishment without a judicial trial. R.A. No. 9335 merely lays down the grounds for

the termination of a BIR or BOC official or employee and provides for the consequences thereof. The

democratic processes are still followed and the constitutional rights of the concerned employee are amply

protected.”

If one were to simply follow and abide by his adversary’s definition of the problem, or hischaracterization of the issue, then he would have lost half the battle. One must know how to see things inproper context and in appropriate perspective in order not to be blindly led or misled. Others may want youto take the path they may prefer or have gotten accustomed to but then it may be better to take the roadl t l d it i ht k ll th diff i th B d i lif 59