CONSTI2.constitutional law2.pdf

8/21/2019 CONSTI2.constitutional law2.pdf

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116

CONSTITUTIONAL

LAW

I. Fundamental Powers of theState

A . P o l i c e P ow e r

1 . N a t u r e a n d b a s is

Power of promoting the publicwelfare by restraining andregulating the use of liberty andproperty (Freund)

Inherent and plenary power ofthe state which enables it toprohibit all that is hurtful to thecomfort, safety and welfare ofsociety

Basis- Salus populi suprema est lex

(the welfare of the people isthe supreme law)

- Sic utere tuo ut alienum nonlaedeas (so use your ownproperty as not to injureanother’s property)

2 . D i st i n g u i s h ed f r o m o t h e r p o w e r s

PolicePower

EminentDomain

Taxation

Compensation

NoneJust

compensationrequired

NA

Use ofPropert

y

Notappropriated for

public use

Appropriatedfor publicuse

Use taxingpower as animplement

for the

attainmentof alegitimate

policeobjective—to regulatea businessor trade

Object

Todestroynoxiousproperty

or torestrain

the

noxioususe of

property

Propertytaken is notnecessarilynoxious but

actuallyshould be

sound forpublic use

Earnrevenue for

thegovernment

3 . S c o p e

a . Gene r a l l y

By reason of its function,police power extends to allthe great public needs and isdescribed as the mostpervasive, the least limitableand the most demanding ofthe three powers

b . P a r t i c u l a r a s p e c t s

i. public healthii. public moralsiii. public safety

iv. public welfare

4 . L i m i t a t i o n s

a . Gene r a l

The legislative determinationof what is a proper exerciseof its police power is not finalor conclusive, but is subjectto the supervision of thecourts

No conflict with due processand equal protection of thelaws

Balancing is the essence orthe indispensable means forthe attainment of legitimateaspirations of anydemocratic society

b . D u e p r o c e s s

c . Eq u a l P r o t e c t i o n

Art. III, Sec. 1. No person shall be deprivedof life, liberty or property without due process of law, nor shall any person bedenied the equal protection of the laws.

Art. XIII, Sec. 1. The Congress shall give

highest priority to the enactment ofmeasure that protect and enhance theright of all the people to human dignity,reduce social, economic, and political

inequalities and remove culturalinequities by equitably diffusing wealthand political power for the common good.

To this end, the State shallregulate the acquisition, ownership, use,and disposition of property and its

increments.

5 . T e s t s f o r v a l i d i t y o f e x e r c i se o f

p o l ic e p o w e r

a. Interest of the public generally

as distinguished from a particularclass required exercise

b. Means employed reasonablynecessary for accomplishment ofpurpose and not undulyoppressive


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6 . W h o m a y e x e r c is e

a . L e g i s l a t u r e

Police power is lodgedprimarily in the nationallegislature

b . E x e c u t i v e

By virtue of a validdelegation of legislativepower, it may also beexercised by the presidentand administrative boards

B . Em i n e n t D om a i n

Article III, Sec. 9. Private property shallnot be take for public use without justcompensation.

Article XII, Sec. 18. The State may, in theinterest of national welfare or defense,establish and operate vital industries and,

upon payment of just compensation,transfer to public ownership utilities andother private enterprises to be operatedby the government .

Art XIV, Sec. 13. The National assembly

may authorize, upon payment of justcompensation, the expropriation of private lands to be subdivided into smalllots and conveyed at cost to deservingcitizens.

1 . C o n c e p t

Ultimate right of the sovereignpower to appropriate not onlypublic but private property ofcitizens within the territorialsovereignty to public purpose

Being inherent, it need not be

lodged or specifically conferredon government by theConstitution

2 . W h o m a y e x e r c is e

Lodged primarily in the nationallegislature but may be validlydelegated to other governmentaland private entities1. Congress2. President3. Various local legislative

bodies4. Certain public corporation

like MWSS

5. Quasi-public corporationslike National Railways, PLDT,Meralco

Power is dormant until thelegislature sets it in motion(Executive Department needs toact on statute

Once authority is given to beexercised, the matter ceases tobe wholly legislative

3 . Co n d i t i o n s f o r e x e r c i s e

The taking by the State ofprivate property in anexpropriation proceeding mustbe:(1) for public use,(2) with just compensation, and

(3) upon observance of dueprocess.

4 . T a k i n g Imports a physical dispossession

of the owner, as when he isousted from his land or relievedof his watch or car and thusdeprives of benefits of use.

May include trespass withoutactual eviction of owner, materialimpairment of value of propertyor preventions of ordinary usesfor which the property wasintended.

Not all taking may becompensable because might be justified by police power

Requisites for taking (Rep. Vs.Castelvi)a. The expropriator must enter

a private propertyb. Entry must be for more than

a momentary periodc. Entry must be under warrant

or color of legal authorityd. Property must be devoted to

public use or otherwiseinformally appropriated or

injuriously affectede. Utilization of the property forpublic uses must be in sucha way as to oust the ownerand deprive him of beneficialenjoyment of the property

5 . Pub l i c U s e

Means public usefulness, utilityor advantage or what isproductive of general benefit sothat any appropriation of privateproperty by the state under itsright of Eminent Domain, forpurposes of great advantage to

the company, is a taking forpublic use (Gould Realty v.Hartford)

Public use is equivalent to publicpurpose. It is not confinedmerely to use by the public atlarge (e.g. roads). It is enough


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that it serves a public purpose,even if it benefit a large group ofpeople short of the public ingeneral (e.g. expropriatingproperty for the relocation ofsquatters).

The concept of public use is notlimited to traditional purposes forthe construction of roads,bridges, and the like. The ideathat "public use" means "use by

the public" has been discarded.As long as the purpose of thetaking is public, then the powerof eminent domain comes intoplay. It is accurate to state thenthat at present whatever may bebeneficially employed for thegeneral welfare satisfies therequirement of public use. (Heirsof Juancho Ardona v. Reyes 123SCRA 220)

6 . J u s t Com p e n s a t i o n

Fair and full Efficient Just and complete equivalent of

the loss which the owner of thething expropriated has to sufferby reason of the expropriation

Fair Market value:- Price fixed by the buyer and

seller in the open market inthe usual and ordinary causeof legal trade andcompetition

- Must include consequentialdamages damages to otherinterest of the ownerattribute to the expropriation

- Must deduct consequentialbenefits increase of valueof other interests attribute tonew use of the formerproperty

- General Rule: the value ofthe property as of the dateof the filing of the complaintwhich normally coincideswith the taking

- Exception: when the ownerwould be given undueincremental advantagearising from the use to whichthe government devotes the

property expropriated

C. T a x a t i o n

1 . N a t u r e a n d E x t e n t

Enforced proportionalcontributions from persons andproperty, levied by the state by

virtue of its sovereignty, for thesupport of the government andfor all public needs

Purpose:a. To raise revenueb. Tool for regulationc. Protection/power to keep

alive Extent: as broad as the purpose

for which it is given Primarily vested in the national

legislature

2 . D i s t i n g u i s h e d f r om s p e c i a l

a s s e ssm e n t s ; l i c e n s e f e e s

Taxes License FeesSpecial

Assessments

Leviedagainstrevenues

Basis ofamount ishigher

Imposed forregulatorypurposesonly

Justificationis policepower

Amount islimited tocost ofregulation

Specificbenefits forspecificpersons

Basis is costofconstruction


Power to tax exists for thegeneral welfare

Should be exercised only for apublic purpose

Court’s power to invalidate a taxmeasure must be exercised withthe utmost extreme caution,otherwise a State’s power tolegislate for the public welfare

might be seriously curtailed might be justified as for public

purpose even if the immediatebeneficiaries are privateindividuals

Specific Limitationsa. Uniformity of taxation

simply geographicaluniformity, meaning itoperates with the same forceand effect in every placewhere the subject of it isfound But does not prohibit

classification for

purposes of taxation Requisites:

i. standards used aresubstantial and notarbitrary


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ii. categorization isgermane to achievethe legislativepurpose

iii. the law applies, allthings being equalto both present andfuture conditions

iv. applies equally tomembers of thesame class

b. Equal protection clausec. Progressive system of

taxation The rate increases as the

tax base increases Basis is social justice Taxation as an

instrument for a moreequitable distribution ofwealth

d. delegated tax legislation Congress may delegate

law-making authoritywhen the constitutionitself specificallyauthorizes it.

4 . D o u b l e T a x a t i o n

No provision in the Constitutionspecifically prohibiting doubletaxation

When additional taxes are laid onthe same subject by the sametaxing jurisdiction during thesame taxing period for the samepurpose

Will not be allowed if it violatesequal protection

5 .

I m p a i r m e n t o f o b l ig a t i o n s o fc o n t r a c t s

Power of taxation may not beused to violate the constitutionalright of every person to besecured against any statute thatimpairs the obligation ofcontracts

But if the statute exempts aparty from any one class oftaxes, the imposition of adifferent tax is not animpairment of the obligation ofcontracts

6 .

T ax e x em p t i o n s A corollary power but must be

for a public purpose, uniform andequitable and in conformity withthe equal protection clause

May either be constitutional orstatutory

Constitutional exemptions (1987CONST., art. VI, sec. 28(3))- Educational institutions (both

profit and non-profit) Benefits redound to

students Only applied to property

taxes not excise taxes- Charitable institutions- Religious property

II. Bill of Rights

A . I n G e n e r a l

A bill of rights is a declaration andenumeration of a person's rights andprivileges which the Constitution is designedto protect against violations by thegovernment, or by individuals, or groups ofindividuals. It is a charter of liberties for theindividual and a limitation upon the power ofthe states.

Article III contains the chief protection for

human rights but the body of the Constitutionguarantees other rights as well.

Basis 1. Importance accorded to the dignity and

worth of the individual.2. Protection against arbitrary actions of

government and other members ofsociety

Philippine Blooming Mills EmployeesOrganization v. Philippine Blooming MillsCo., Inc 51 SCRA 189 (1973)

Although the Bill of Rights also protects propertyrights, the primacy of human rights over property

rights is recognized. In the hierarchy of civilliberties, the rights of free expression and ofassembly occupy a preferred position. Thesuperiority of these freedoms over property rightsis underscored by the fact that a mere reasonableor rational relation between the means employedby the law and its object or purpose-that the lawis neither arbitrary nor discriminatory noroppressive—would suffice to validate a law whichrestricts or impairs property rights. But aconstitutional or valid infringement of humanrights require a more stringent criterion, namelyexistence of a grave and immediate danger of asubstantive evil which the State has the right toprevent.


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B . D u e P r o c e s s

1 . M e a n i n g a n d s co p e

"Due process of law" is an exertion of thepowers of the government as the settledmaxims of the law permit and sanction, andunder such safeguards for the protection ofindividual rights.

Scope: The due process guarantee appliesonly if a governmental action will constitutea deprivation of some person's life, liberty,or property. It is a constitutional limitationbinding not only the government but alsoeach and every one of its branches,agencies, or instrumentalities. It is,however, directed particularly against theexecutive and legislative departments of thegovernment although its violation may alsobe committed by private persons.

Requirements: (U.S. v. Ling Su Fan, 1908)

(a) That there shall be a law prescribed inharmony with the general powers of thelegislative department,

(b) That this law shall be reasonable in itsoperation,

(c) That it shall be enforced according to theregular methods of procedure prescribed,

(d) That it shall be applicable alike to all thecitizens of the state or all of a class.

2 . S u b s t a n t i v e d u e p r o c e s s

requires that the law itself, not merely theprocedures by which the law would beenforced, is fair, reasonable, and just.

3 . P r o c e d u r a l d u e p r o c e s s refers to the method or manner by which

the law is enforced. Its basic elements arenotice, opportunity to be heard, and jurisdiction. Its essence is simply the

opportunity to be heard or, as applied toadministrative proceedings, an opportunityto explain one's side or to seek areconsideration of the action or rulingcomplained of.

a . J u d i c i a l Procedural due process has its application in

judicial proceedings, civil or criminal. Itrequires (Banco Español-Filipino v. Palanca)(1) an impartial and disinterested court

clothed bylaw with authority to hear anddetermine the matter before it;

(2) jurisdiction lawfully acquired over theperson of the defendant or the propertywhich is the subject matter of the

proceeding;(3) notice and opportunity to be heard given

the defendant;(4) judgment to be rendered after lawful

hearing.

Reyes v. CA 80 SCRA 144 (1977)

The allowance or denial of motions for extensionrests principally on the sound discretion of thecourt to which it is addressed, but such discretionmust be exercised wisely and prudently, with aview to substantial justice. The main cause of thedelay was petitioner's inability to obtain theamount necessary for printing. Poverty isrecognized as a suff icient ground for extendingexisting period for filing. The right to appeal is

part of due process of law.

b . A dm i n is t r a t iv e

Ca r d i n a l P r im a r y R e q u i r em e n t s o f D u e

P r o c e s s i n A dm i n i s t r a t i v e P r o c e ed i n g s

(Ang Tibay v. CIR)

(1) The right to a hearing which includes theright to present ones case and submitevidence in support of thereof;

(2) The tribunal must consider the evidencepresented;

(3) The decision must have something tosupport itself;

(4) The evidence must be substantial, and"substantial evidence" means suchevidence as a reasonable mind mightaccept as adequate to support aconclusion;

(5) The decision must be based on theevidence presented at the hearing, or atleast contained in the record anddisclosed to the parties affected;

(6) The tribunal or body or any of its judgesmust act on its or his own independentconside4ration of the law and facts of thecontroversy, and not simply accept theviews of a subordinate;

(7) The board or body should, in allcontroversial question, render its decisionin such manner that the parties to theproceedings can know the various issuesinvolved, and the reason for the decisionrendered.

( 1 ) S t r ic t o b s e r v a n c e n o t

i n d i s p e n s a b l e While a day in court is a matter

of right in judicial proceedings itis otherwise in administrativeproceedings, since the latterrests upon different principles.

In certain proceedings of anadministrative character, dueprocess, in the strict legal sense,is not indispensable. The rigid

requirements of procedural lawsare not strictly enforceable.


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( 2 ) N e c es s it y o f n o t i c e a n d h e a r i n g As applied to

administrative proceedings, therequirements of due process aresatisfied when a party is affordedan opportunity to explain his sideor to seek a reconsideration ofthe ruling or the action taken.

In administrativeproceedings, notice and hearingmay be dispensed with, where,because of public need or for

practical reasons, the same isnot feasible.

It is sufficient ifopportunity is later given to theindividual adversely affected totest the validity or propriety ofthe administrative actin onappeal to superior administrativeauthorities or to the court, orboth.

Decisions ofadministrative bodies are notrendered invalid merely becausethey are subject to a court.

As a general rule, noticeand hearing, as the fundamental

requirements of proc3edural dueprocess are essential only whenan administrative body exercisesits quasi-judicial function, but inthe performance of its executiveor legislative functions, such asissuing rules and regulations, anadministrative body need notcomply with said requirements.

( 3 ) R e q u i r em e n t f o r d i s c i p l in e o f c i v i l

s e r v i c e o f f ic e r s a n d em p l o y e e s The charge against the

respondent in an administrativecase need not be drafted withthe precision of an information in

a criminal prosecution. It issufficient that it is apprised ofthe substance of the chargeagainst him; what is controllingis the allegation of the factscomplained of, not thedesignation of the offense.

4 . N o t i c e

Notice is an essential element of due processotherwise the court will not acquire jurisdiction and its judgment will not bind thedefendant. But the Judgment in arepresentative or class suit to which some

members of the class are parties, will bind allthe other members. Notice to be meaningfulmust be both as to time and place. But noticeis of little value unless the person r4eceivingit has a reasonable opportunity to be heard

5 . I m p a r t i a li t y

Due process cannot be satisfied in theabsence of that degree of objectivity on thepart of the judge sufficient to assure litigantsof his being fair and just. Before him, partiesmust stand on equal footing. It. requires ahearing before an impartial and disinterestedtribunal and every litigant is entitled tonothing less than the cold neutrality of animpartial judge. (Mateo, Jr. v. Villaluz, 1973)

In order that the review of a decision of asubordinate off icer might not turn out to be afarce, the reviewing officer must be otherthan the officer whose decision is underreview; otherwise, there can be no differentview. (Zambales Chromite Mining Co. v. CA,1979)

The right of the accused to a fair trial is notincompatible to a free press. Responsiblereporting in fact enhances the accused rightsto a fair trial. (People v. Sanchez, 1999)

Mere imputation of partiality or bias is not aground for inhibition. A ground fordisqualif ication as set by Sec 1, Rule 137 ofthe Rules of Court must exist. (People v.Sebreño)

6 . C e r t a i n t y

A statute is rendered uncertain and voidmerely because general terms are usedtherein, or because of the employment ofterms without defining them; much less dowe have to define every word we use. Thereis no positive constitutional or statutorycommand requiring the legislature to defineeach and every word in an enactment.

It is a well-settled principle of legalhermeneutics that words of a statute will be interpreted in their natural, plain, and

ordinary acceptation and signification, unlessit is evident that the legislature intended atechnical or special legal meaning to thosewords.

a.

Void for vagueness

An act is vague when it lackscomprehensible standards thatmen of common intelligence mustnecessarily guess at its commonmeaning and differ as to itsapplication

In such instance, the statute isrepugnant to the constitution in 2respects. It violates due process

for failure to accord persons,especially thepart6ies targeted byit, fair notice of what conduct toavoid, and, it leaves law enforcersan unbridled discretion in carryingout its provisions and becomes anarbitrary flexing of the governmentmuscle.


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b. Overbreadth

A governmentalpurpose may not be achieved bymeans which sweepunnecessarily broadly andthereby invade the area ofprotected freedoms.

7 . E x c e s s i v e P e n a l t i e s

Rule of Proportionality: Life sentence forindecent exposure is a cruel or unusualpunishment because it is grosslydisproportionate to the offense. (Ruleof Proportionality) The constitutional limit isgenerally described as so disproportionate tothe offense "as to shock the moral sense ofall reasonable men as to what is right andproper" or "as to be completely arbitrary andshocking to the sense of justice." (In reLynch, 1972)

8 .

Ex P o s t F a c t o L aw a n d B i l l o f

A t t a i n d e r

To be discussed under rights in the criminaladministration of justice

C. Eq u a l P r o t e c t i o n

1 . C o n c e p t Equal protection of the laws signifies that "all

persons subject to legislation should betreated alike, under like circumstances andconditions both in the privileges conferredand liabilities imposed." It does not demand absolute equality; it

merely requires that all persons shall betreated alike, under like circumstancesand conditions both to privilegesconferred and liabilities imposed.

What the guarantee prohibits is class ordiscriminatory legislation, whichdiscriminates against some and favorsothers when both are similarly situated orcircumstanced.

Equality of operation of statues does notmean indiscriminate operation on personsmerely as such, but on persons accordingto the circumstances surrounding them.It guarantees equality, not identity ofrights. It does not forbid discriminationas to persons and things that aredifferent. What it forbids aredistinctions based on impermissiblecriteria unrelated to a proper legislativepurpose.

2 . P u r p o s e

It prohibits undue favor to anyone, specialprivilege for any individual or class, or hostilediscrimination against any party. Itguarantees legal equality or the equality of all

persons before the law. It is a guaranteeagainst discriminatory legislation.

3 . Co n d i t i o n s f o r v a l i dc l a s s i f i c a t i o n

It is an established principle of constitutionallaw that the guaranty of the equal protectionof the laws is not violated by a legislationbased on reasonable classification. Andthe classification to be reasonable:

(1) must rest on substantial distinctions(2) must be germane to the purpose of the

law(3) must not be limited to existing conditions

only

(4) must apply equally to all members of thesame class.

The classification between non-Christian andChristian tribes is not based upon accident ofbirth or parentage but upon degree ofcivilization and culture. The distinction isreasonable for the Act was intended to meetthe peculiar conditions existing in non-Christian tribes. It is also germane to thepurposes of the law, which is to insure peaceand order in and among the non-Christiantribes. The law is also not limited inapplication and applies equally to all withinthe same class (People v. Cayat 1939)

4 . D i s cr i m i n a t i o n a g a i n s t a l i e n s

Although the guaranty of equal protectionapplies to all persona, both citizens and aliens,statutes may validly limit to citizensexclusively the enjoyment of rights orprivileges connected with the public domain,the public works, or the natural resources ofthe state. The rights and interests of the statein these things are not simply political but alsoproprietary in nature; and so the citizens may

lawfully be given preference over 'aliens intheir use or enjoyment. But statutes discriminating against aliens

in ordinary private occupations aregenerally held void.

The Constitution, as a general rule,places the civil rights of aliens on anequal footing with those of citizens.Their political rights, however, do notenjoy the same protection.

5 . Cl a s s i f i ca t i o n o f c i t i z e n s

The general rule is that a legislative act maynot validly classify the citizens of the state onthe basis of their origin, race or parentage.

But in times of great and imminent danger,such as a threatened invasion or war, such aclassification is permitted by the Constitutionwhen the facts so warrant (e.g. discriminatorylegislation against Japanese citizens duringWW2).


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6 . T h r e e S t a n d a r d s o f J u d i c i a lR e v i ew :

1. Rational Relationship Test

Classification bears a reasonable relationto government's purpose. Importantwhen there is no plausible differencebetween the disadvantaged class andthose not disadvantaged. Also importantwhen the government attaches a morallyirrelevant and negative significance to a

difference between the advantaged andthe disadvantaged. Generally not usefulsince nothing suggests that legislatorsmake irrational judgments.

2. Strict Scrutiny Test Requires the government to show an

overriding or compelling governmentinterest so great that it justifies thelimitation of fundamental constitutionalrights (the courts make the decision ofWON the purpose of the law makes theclassification necessary). It is appliedwhen the law classifies people of theirability to exercise a fundamental right.Applied also when the classification has a"suspect" basis "Strict in theory, fatal infact" when this standard is applied almostinvariably the statutory classification isstruck down for being violative of the EPclause.

3. Intensified Means Test New EP goes beyond two-tiered (f irst two

other tests) level of review; said to applythe middle-level test, the balancing testor the equality test.

The court accepts the articulated purposeof the legislation but it should closelyscrutinize the relationship between theclassif ication and the purpose.. based ona spectrum of standards, by gauging theextent to which constitutionallyguaranteed rights depend upon theaffected individual interest.

Applicable for certain sensitive but notsuspect classes; certain important butnot fundamental interest.

Suspect Classes - saddled with suchdisabilities, or subject to such a history ofpurposeful unequal treatment orrelegated to such a position of politicalpowerlessness, as to commandextraordinary protection from themajoritarian political process.

D . Fr e e d om o f E x p r e s s i o n

Art. III, Sec. 4. No law shall be passedabridging the freedom of speech, ofexpression, or of the press, or the rightof the people peaceably to assemble and petition the Government for redress ofgrievance.

Art. III, Sec. 18. (1) No person shall bedetained solely by reason of his politicalbeliefs and aspirations.

xxx

1 . Ge n e r a l C o n s i d e r a t i o n s

a . Com p o n e n t s

b . Fu n c t i o n s a n d v a l u e

Freedom of expression is essential as a

means of assuring individual self-fulf illment. Freedom of expression is an essential process

for advancing knowledge and discoveringtruth.

Freedom of expression is essential to providefor participation in decision-making by allmembers of society.

Freedom of expression is a method ofachieving a more adaptable and hence amore stable community of maintaining theprecarious balance between healthy cleavageand necessary consensus.

c . S co p e o f F r e e d om

embraces the specific guarantees of freespeech and free press, the rights of assemblyand petition, the right to form associations orsocieties not contrary to law, the freedom ofreligion, and the right to access toinformation on matters of public concernwhich are all indispensable to the free andeffective flow of ideas. The guarantee impliesthe right to reach willing audience but not theright to compel others to listen, see or read.

The term "law" in Section 4 should not belimited to statutes and local ordinances;executive and judicial actions are to bedeemed subject also to the constitutionalrestriction

d .

L i m i t a t i o n s

This liberty is, like all other rights, notabsolute. It should be exercised within thebounds of laws enacted for the promotion ofsocial interests and the protection of otherequally important individual rights.

Some limitations: Laws against obscenity Laws against libel and slander Right to privacy of an individual Right of state/government to be

protected from seditious attacks Legislative immunities

2 . F r e e d om o f s p e e c h a n d p r e s s

a .

Me a n i n g a n d s c o p e

Free speech and free press are the mostpotent instruments of public opinion and are,therefore, indispensable to the preservationof liberty and democracy. The experimentalcharacter of most human beliefs, opinions


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and institutions, requires tolerance on thepart of all peoples; and tolerance is bestencouraged by the grant of the right of freespeech and free press.

These rights are susceptible of restriction onlyto prevent grave and immediate danger tointerests which the state may lawfullyprotect." The demands of public interest andsocial security should be extraordinarilypressing and obvious as against theindividual liberties specifically guaranteed,by the constitution in order that legislation

curtailing the latter may be validly upheld.

b . Fo r m s o f ab r i d g m e n t

1. Prior restraint Censorship conditions the exercise of

freedom of expression upon the priorapproval of the government. Only thoseideas acceptable to it are allowed to bedisseminated; all others are restricted orsuppressed. The censor thus assumes theunlikely role of political, moral, social andartistic arbiter for the people, usuallyapplying only his own subjectivestandards in determining what is goodand what is not good for them.

Censorship need not partake of totalsuppression; even restriction ofcirculation is unconstitutional

2.

Subsequent punishment Freedom of speech includes freedom

after speech. Without this assurance, thecitizen would hesitate to speak for fear hemight be provoking the vengeance of theofficials he has criticized. Even ascriticism is not conditioned on theconsent of the government, so too is itnot subject to its subsequentchastisement; otherwise, a sword of

Damocles would hang over the head ofthe citizen and cow him into silence. In afree society, the individual is notsupposed to speak in timorous whispersor with bated breath but with the clearvoice of the unafraid.

c . T e s t s

1. Dangerous tendency When the legislative body has

determined generally, in the exercise ofits discretion, that utterances of a certainkind involve such danger of a substantiveevil that they may be punished, thequestion whether any specific utterancecoming within the prohibited class islikely, in and itself, to bring thesubstantive evils, is not open toconsideration. In such cases, the generalprovision of the statute may beconstitutionally applied to the specificutterance if its natural and probable

effect was to bring about the substantiveevil which the legislative body mightprohibit. [Gitlow v. New York, 268 US652 (1925).]

The rule is that the danger created mustnot only be clear and present but alsotraceable to the ideas expressed. The evilconsequences of the comment orutterance must be "extremely seriousand the degree of imminenceextremely high" before the utterance canbe punished. The danger to be guarded

against is the substantive evil sought tobe prevented.

Example: Art. 142. Inciting to sedition.When the legislature has decided thatone who advocates a certain conduct isguilty of a crime, the court cannotintrude. As it evolved, this test wassupposed to apply when there is astatute, in contrast to the clear andpresent danger rule which applies whenthe speech is not prohibited by statute

2.

Clear and present danger

The question in every case is whether thewords used are used in suchcircumstances and are of such a natureas to create a clear and present dangerthat they will bring about the substantiveevils that Congress has a right toprevent. It is a question of proximity anddegree. [Schenck v. United States, 249US 47 (1919) as cited in EasternBroadcasting Corp. (DYRE) v. Dans, Jr.,137 SCRA 712 (1992)]

The emphasis of the test is the nature ofthe circumstances under which it isuttered. The speech itself may not bedangerous.

Permits the application of restrictionsonce a rational connection between thespeech restrained and the dangerapprehended - the "tendency" of one tocreate the other (although it may be faror remote) - was shown. Under this rule,a person could be punished for his ideaseven if they only tended to create the evilsought to be prevented. It was notnecessary to actually create the evil, amere tendency towards the evil wasenough.

3.

Grave-but-improbable danger:

Whether the gravity of the evil,discounted by its improbability, justifiessuch an invasion of free speech as isnecessary to avoid the danger. [Dennis v.

United States, 341 US 494 (1951),quoting Judge Learned Hand.]

This test was meant to supplant the clearand present danger. They bothemphasize the circumstances of thespeech, but this latter test consider theweighing of values


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4.

Direct Incitement Test

The constitutional guarantees of freespeech and press do not permit a Stateto forbid or proscribe advocacy of the useof force or of law violation, except wheresuch advocacy or speech is directed toinciting or producing imminent lawlessaction, and is likely to incite or producesuch action. [Brandenburg v. Ohio, 395U.S. 444 (1969), cited in Salonga v. Cruz

Pano, 134 SCRA 438 (1985).] The test emphasizes the very words

uttered: (a) What words did he utter?(b) What is the likely result of suchutterance? It criticizes the clear andpresent danger test for being topdependent on the circumstances.Speaker may, when tested show noincitement but you know the speaker isinciting to sedition.

5. Balancing of interestThe court must undertake the delicateand difficult task of weighing thecircumstances and appraising thesubstantiality of the reasons advanced insupport of the regulation of the freeenjoyment of rights. [AmericanCommunication Ass'n v. Douds, 339 US383 cited in Gonzales v. COMELEC, 27SCRA 835 (1969A)]When particular conduct is regulated inthe interest of public order, and theregulation results in an indirect,conditional and partial abridgement ofspeech, the duty of the courts is todetermine which of the twoconflicting interests demands the greaterprotection under the particular

circumstances presented.The test applied when two legitimatevalues not involving national securitycrimes compete. Involves an appoint ofthe competing interest. (Gonzales v.Comelec)

6. Balancing of Factors The truth is theat the clear-and-present

danger test is over- simplified judgementunless it takes into account also anumber of other factors: (1) the relativeseriousness of the danger in comparisonwith the value of the occasion for speechor political activity, (2) the availability of

more moderate controls than those theState has imposed, and perhaps (3) thespecific intent with which the speech islaunched. (Freund, quoted in Dennis v.United States in the concurring opinion ofJustice Frankfurter).

d . P r i o r r e s t r a i n t

Any system of prior restraints of expressioncomes to the Court bearing a heavypresumption against its constitutionality,giving the government a heavy burden toshow justification for the imposition of suchrestraint. (New York v. United States (1971);also in New York Times v. Pentagon andBantam Books v. Publication of PentagonPapers).

It has never been held that liberty of speech

is absolute. Nor has it been suggested that allprevious restraints on speech are invalid. Theprotection even as to previous restraint is notabsolutely unlimited. But the limitation hasbeen recognized only in exceptional cases.These included utterances creating ahindrance to the Government's war effort,and actual obstruction to its recruiting serviceor the publication of the sailing dates oftransports or the number and location oftroops… The phrase 'prior restraint' is not aself-wielding sword. [Times Film Corp. v.Chicago, 365 US 43 (1961)]

e . Su b s e q u e n t p u n i s h m e n t

And even subsequent punishment istempered by the greater interest ofpromoting free public opinion. The mostsignificant expression is the law on libel.

f . Fr e e d om o f e x p r e s s io n a n d

l i b e l

Revised Penal CodeArt. 353. D e f i n i t i o n o f l i b e l .-- A libel is a

public and malicious imputation of acrime, or of a vice or defect, real orimaginary, or any act, omission,condition, status, or circumstancetending to cause the dishnonor, discredit,or contempt of a natural or juridicalperson, or to blacken the memory of onewho is dead.

Art. 354. Requirement of publicity.-- Everydefamatory imputation is presumed to bemalicious, even if it be true, if no goodintention and justifiable motive formaking it is shown, except in thefollowing cases:

1. A private communication made byany person to another in theperformance of any legal, moral or

social duty; and2. A fair and true report, made in goodfaith, without any comments orremarks, of any judicial, legislative orother official proceedings which arenot of confidential nature, or of anystatement, report or speech


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delivered in said proceedings, or ofany other act performed by publicofficers in the exercise of theirfunctions.

Art. 361. Proof of the truth.-- In everycriminal prosecution for libel, the truthmay be given in evidence to the courtand if appears that the matter charged aslibelous is true, and, moreover, that itwas published with good motives and for

justifiable ends, the defendants may beacquitted.

Proof of the truth of an imputation ofan act or omission not constituting acrime shall not be admitted, unless theimputation shall have been made againstGovernment employees with respect tofacts related to the discharge of theirofficial duties.

In such cases if the defendant provesthe truth of the imputation made by him,he shall be acquitted.

Art. 362. Libelous remarks.-- Libelousremarks or comments connected with thematter privileged under the provisions ofarticle 354, if made with malice, shall notexempt the author thereof nor the editoror managing editor of a newspaper fromcriminal liability.

Libel is the most common form of subsequentpunishment. Although one cannot beprevented from saying something before heactually says it, one can be held liable forwhat one has said if it causes damage to therights of others.

Libel can only be committed againstindividual reputation. In cases where libel isclaimed to have been directed at a group,there is actionable defamation only if the libelcan be said to reach beyond the merecollectivity to do damage to a specific,individual group member's reputation.[Newsweek, Inc. v. IAC, 142 SCRA 171(1986)]

We consider this case against the backgroundof a profound national commitment to debateon public issues being uninhibited, robust andwide-open, and that it may well includevehement, caustic, and sometimesunpleasantly sharp attacks on governmentand public officials. The falsity of some of thefactual statements and alleged defamationsdo not qualify the role. And just as factual

error afforded no warrant for repressingspeech that would otherwise be free, thesame is true of injury to official reputation.(New York Times v. Sullivan, 380 U.S. 51(1964)

The interest of society and good governmentdemands a full discussion of public affairs.

Whether the law is wisely or badly enforced isa fit subject for proper comment. Publicpolicy, welfare of society, and the orderlyadministration of government havedemanded protection for public opinion. Theinevitable and incontestable result has beenthe development and adoption of the doctrineof privilege. [United States v. Bustos, 731(1918).]

Criticism is permitted to penetrate even tothe foundations of government. Criticism, no

matter how severe, on the Executive, theLegislature and the Judiciary is within therange of freedom of speech, unless theintention and effect be seditious. When theintention and effect of the act is seditious, theconstitutional guaranties of freedom ofspeech and press and of assembly andpetition must yield to punitive measuresdesigned to maintain the prestige of theconstituted authority, the supremacy of theConstitution and the existence of the State.[People v. Perez, 45 Phil. 599 (1923)]

The freedom of speech secured by theConstitution does not confer an absolute rightto speak or publish without responsibilitywhatever one may choose. It is not unbridledlicense that gives immunity for every possibleuse of language and prevents the punishmentof those who abuse this freedom [Espuelas v.People, 90 Phil. 524 (1951)]

While, under the Revised Penal Code, anydefamatory statement is presumed to bemalicious (malice-in-law), when the defenseproves that the communication is privileged,such a presumption of malice does not arisebecause of the greater public interestinvolved.

If the communication is absolutely privileged(as in parliamentary freedom of speech), the

prosecution cannot even prove malice-in-fact. To enjoy immunity, a publication containingderogatory information, must not only betrue, but also fair and must have been madein good faith with any comments or remarks.[Policarpio v. Manila Times Pub. Co., Inc., 5SCRA 148 (1962)]

If the communication is only qualifiedlyprivileged (Art. 354 enumerates the 2instances: fair and true reporting of anofficial proceeding; legal moral or socialduty), the burden is shifted on theprosecution to prove malice-in-fact, which thedefense can overcome by proving the truth ofthe defamatory statement (which in the case

of public officials may or may not constitute acrime, so long as related to the conduct of hisoffice) and good motive.

Qualified privilege may be lost by proof ofmalice. A communication made bonafide uponany subject matter in which the partycommunicating has an interest, or in


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reference to which he has a duty, isprivileged, if made to a person having acorresponding interest, though containingincriminatory matter. [Mercado v. CFI ofRizal, 116 SCRA 93 (1982)]

g . F r e e d om o f e x p r e s s i o n

a n d r i g h t t o p r i v a cy

Petitioner's averment is not well taken. Beinga public figure does not automatically destroy

in toto a person's right to privacy. The rightto invade a person's privacy to disseminatepublic information does not extend to fictionalor novelized representation of a person, nomatter how a public figure he or she may be.Freedom of expression, indeed, occupies apreferred position in the hierarchy of civilliberties. It is not, however, w/o limitations.In the particular circumstances presented andconsidering the obligations assumed bypetitioner under the agreement, the validityof such agreement will have to be upheldparticular bec. the limits of freedom ofexpression are reached when expressiontouches upon matters of private concern.[Lagunzad v. Gonzales, 92 SCRA 476 (1979)]

Freedom of speech and expression includesfreedom to produce motion pictures and toexhibit them. What is involved is a priorrestraint by the Judge upon the exercise ofspeech and of expression by petitioners.Because of the preferred character of speechand of expression, a weighty presumption ofinvalidity vitiates measures of prior restraint.The Judge should have stayed his handconsidering that the movie was yetuncompleted and therefore there was no"clear and present danger." [Ayer ProductionsPty. Ltd. v. Capulong April 29, 1988]

h . F r e e d om o f e x p r e s s i o n

a n d a dm i n is t r a t io n o f

j u s t i c e ( c o n t em p t o f

c o u r t )

A person can be held liable for makingcomments on a pending case (sub judice)which have the tendency to impair orobstruct the orderly administration of justistice. But if the case is not pending,such comment is a valid exercise of thefreedom of expression.[People v. Alarcon, 60Phil 265 (1939)]

The Philippine rule is that in case of a post-litigation newspaper publication, fair criticismof the court, its proceedings and its membersare allowed. However, there may becontempt of court, even though the case hasbeen terminated, if the publication 1) tendsto bring the court into disrespect, orscandalize the court or 2) where there is clear

and present danger that the administration of justice would be impeded

So long as critics confine their criticismsto facts and base them on the decisions ofthe court, they commit no contempt nomatter how severe the criticism may be; butwhen they pass beyond that line and chargethat judicial conduct was influenced byimproper, corrupt or selfish motives, or suchthat conduct was affected by politicalprejudice or interest, the tendency is tocreate distrust and destroy the confidence of

the people in their courts. [People v. Godoy,243 SCRA 64 (1995)]

The power to punish for contempt is inherentin all courts of superior jurisdictionindependently of any special expression of astatute. Mere criticism or comment on thecorrectness or unsoundness of a decision ofthe court in a pending case made in goodfaith may be tolerated, bee. if well founded, itmay enlighten the court and contribute to thecorrection of an error. But if it is not well-taken, then, it should in no way influence thecourt in reversing or modifying its decision.[In Re Sotto, 82 Phil. 595 (1949)]

i .

Fr e e d om o f e x p r e s s io n a n d

o b s c e n i t y

While prior restraint is the general rule,censorship in the movies is tolerated becauseby the nature of the medium, it has a greaterimpact on the audience and produces instantreaction for the ideas it presents, unlikenewspapers which are read by peopleseparated by walls.

The power of the Board is limited to theclassification of films. For freedom ofexpression is the rule and restrictions theexception. The power to impose priorrestraint is not to be presumed, rather thepresumption is against its validity. Censorshipis allowable only under the clearest proof of aclear and present danger of a substantive evilto public safety, public morals, public healthor any other legitimate public interest.[Gonzales v. Katigbak, 137 SCRA 356(1985)]

Tests of obscenity: [Miller v. California, 413US 15 (1972)](1) Whether the average person, applying

contemporary community standards,would find that the work, taken as awhole, appeals to the prurient interest.

(2) Whether the work depicts or describes, in

a patently offensive way, sexual conductspecifically defined by the applicable law.(3) Whether the work, taken as a whole,

lacks serious literary, artistic, political orscientific value.


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j . Fr e e d om o f e x p r e s s io n a n d

r a d i o b r o a d c a s t s

But radio deserves greater regulation thannewspers because it could invade the privacyof everyone for no fee, and it is such that oneis likely to listen to what is being said.

The following guidelines must be observed:[Eastern Broadcasting Corp. (DYRE) V. Dans,137 SCRA 647 (1985)]1) The cardinal primary requirements in

administrative proceedings as laid downin Ang Tibay v. CIR should be followedbefore a broadcast station may beclosed;

2) All forms of communication are entitledto the broad protection of the freedom ofexpression clause. Necessarily, thefreedom of television and radiobroadcasting is somewhat lesser in scopethan the freedom accorded tonewspapers and print media. Thislimitation derives from the fact thebroadcast media have a uniquelypervasive presence in the lives of allFilipinos;

3) The government has a right to beprotected against broadcasts which incitelisteners to violently overthrow it; and

4) Broadcast stations deserve the specialprotection given to all forms of media bythe due process and freedom ofexpression clauses of the Constitution.

3 . Fr e e d om o f a s se m b l y a n d

p e t i t i o n

Public Assembly Act of 1985 (Batas Blg. 5)- A permit to hold a rally must be

filed with the Office of the Mayor at least,

five working days before the day of therally.- But no permit from the mayor is

required in case the rally is going to beheld in (i) freedom parks, (ii) inside aprivate property (provide with consent ofthe owner), and (iii) campuses of stateuniversities (which are left to universityauthorities)

- The application must be inwriting and must include: (1) names ofthe organizers and leaders, (2) date andtime, place and street, (3) size(4)manner of the use of the street, (5)sound system to be used (6)purpose. It

must also have a statement of the dutiesof the rallyists.

- The written application is filedwith the Office of the Mayor.Acknowledgemet is given of its receipt.If the Mayor refuses to accept theapplication, then it is enough for filing

purposes if a copy is posted in thepremises.

- The Mayor has 2 working days toact on the application. If he does notact, it is deemed granted.

But if he thinks that the rally createsa "clear and present danger" to publicpeace, order, health, etc., and he hasproof of this, he should not deny theapplication right away. He should hold ahearing during which the applicant can be

heard. If after hearing he is still notsatisfied that no danger exists, then hecan deny the application.

- The applicant can then go to anycourt other than the Supreme Court forthe review of the decision of denial of themayor. The courts have 24 hours to acton the petition. If the judgment is areversal of the denial, or in any case ifthe applicant is satisfied with thedecision, the judgment becomes finaland executory immediately, and noappeal can be taken by the localauthorities anymore.

- But if the decision is notsatisfactory to the applicant, then he has48 hours from receipt to appeal to theSC.

- During the rally, the police mustbe limited to maintaining peace and orderand so must stay away by 100 metersfrom the rallyists. They must be in fulluniform, with their names visibly written.They can carry no firearm except anighstick, but they are allowed protectivedevices.

If they anticipate trouble, the policemust call the attention of the leader ofthe rallyists. When trouble actually

erupts, the police must not disperse thecrowd right away but first give a warning.If violence persists, they must give asecond warning. If still violencecontinues, only then can they fight back.

- If a rally does not have a permit,the police can disperse the crowd, butthey cannot use violence. Penalty isimposed only on the leaders andorganizers.

- Among the duties of the rallyistsare: (a) to inform the members of theirduty under the law, (b) to police theirown rank, and (c) to cooperate with localauthorities in maintaining peace and

order.

Although under a "permit system", beforeone can use a public place, one must firstobtain prior permit from the properauthorities, the principle has always beenthat one has the right to a permit, subject


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only to reasonable regulation. The validity ofthe permit system has been upheld by theCourt, provided, (a) it is concered only withthe time, place and manner of assembly ad(b) it does not vest on the licensing authorityunfettered discretion in choosing the groupswhich could use the public place anddiscriminate others

The respondent mayor possessesreasonable discretion to determine or specifythe streets or public places to be used for the

assembly in order to secure convenient usethereof by others and provide adequate andproper policing to minimize the risks ofdisorder and maintain public safety andorder. [Navarro v. Villegas, 31 SCRA 730(1970)]

Guidelines for the issuance of permits (now inBP 880) [J.B.L. Reyes v. Bagatsing, 125SCRA 553 (1983)](i) any group which applies must do so

within a sufficient time so the authoritycan have time to act:

(ii) if a disagreement arises over a denial ofa permit, the applicant can question thedenial in the lower court, which can tryquestions of fact and law, and

(iii) appeal can be made to the SC on anexpedited procedure.

Note that while the permit system is notallowed in the case of publication, it isallowed in the case of assembly. Inpublication, censorship is presumptivelyunconstitutional. There is very littlepossibility or justification for the regulation ofnews. The remedy in this case is prosecutionor subsequent punishment.

But in assembly regulation is allowedbecause it is needed by the very nature of theexpression, when people use streets, they

may deprive other groups which want to usethe streets too. So as long as only theincidents of speech are regulated, themeasure is constitutionally acceptable.

4 . R i g h t t o i n f o r m a t i o n , a c ce s s t o

p u b l i c r e c o r d s

Art. III, Sec. 7. The right of the people toinformation on matters of public concern

shall be recognized. Access to officialrecords, and to documents and papers pertaining to, official acts, transactions,or decisions, as well as to governmentresearch data used as basis for policy

development, shall be afforded thecitizen, subject to such limitations as maybe provided by law.

Access of official records (the docket book)for any lawful purpose (to look into thecriminal cases for a report on the peace and

order situation of the municipality) isguaranteed. But it is subject to reasonableconditions by the custodian of the records.[Baldoza v. Dimaano, 71 SCRA 14 (1976)]

5 . F r e e d om o f p o l i t i c a l b e l ie f

Art. 13, Sec. 18(1). No person shall bedenied solely by reason of his politicalbeliefs and aspirations.

D .

F r e e d om o f A s s o ci a t i o n

Art. III, Sec. 8. The right of the people,including those employed in the publicand private sectors, to form unions,associations, or societies for purposes not

contrary to law shall not be abridged.

Art. IX, B, Sec. 2. xxx(5) The right to self-organization shallnot be denied to government employees.

Art. XIII, Sec. 3. xxxIt shall guarantee the right of all workers

to self-organization, collective bargainingand negotiations, and peaceful concertedactivities, including the right to strike inaccordance with law. They shall beentitled to security of tenure, humaneconditions of work, and a living wage.They shall also participate in policy anddecision-making processes affecting theirrights and benefits as may be provided

by law. xxx

The inclusion of the right to unionize in thisarticle is ill-advised because while the right tounionize is an economic and labor right, the

right to association in general is a civil-political right.

Employees in the Civil Service may not resortto strikes, walkouts and other temporarywork stoppages, like workers in the privatesector, in order to pressure the Govt. toaccede to their demands. As now providedunder Sec. 4, Rule III of the Rules andRegulations to Govern the Exercise of theRight of Govt. EEs to Self-Organization whichtook effect after the initial dispute arose, theterms and conditions of employment in theGovt, including any political subdivision orinstrumentality thereof and govt. owned andcontrolled corporations with original charters,

are governed by law and employees thereinshall not strike for the purpose of securingchanges thereof. [SSS Employees Assn vsCA, 175 SCRA 686 (1989)]


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E. F r e e d om o f R e l i g i o n

Art. III, Sec. 5. No law shall be made

respecting an establishment of religion;or prohibiting the free exercise thereof.The free exercise and enjoyment ofreligious profession and worship, withoutdiscrimination or preference, shall foreverbe allowed. No religious test shall berequired for the exercise of civil or political rights.

1 . N o n - e s t a b l i shm e n t o f r e l i g i o n

The clause prohibits excessive governmententanglement with, endorsement ordisapproval of religion [Vicoriano v. ElizaldeRope Workers Union, 59 SCRA 54 (1974);Lynch v. Donnelly, 465 US 668 (1984)(O'Connor, J., concurring); Allegheny Countyv. Greater Pittsburg ACLU, 492 US 574(1989).]

The Non-Establishment clause is violatedwhen the State gives any manifest support toany one religion, even if nothing is doneagainst the individual.

a. Operation of sectarian schools

While the ownership, creation andmanagement of educational institutions mustbe in the hands of Filipinos or 60% Filipino-owned corporations, sectarian schools andthose run by religious groups and missionsboard are exempted from theserequirements, provided the administration isin the hands of Filipinos, who could besectarian. [Art. XIV, Sec. 4(2).]

b Religious instruction in publicschools

Civil Code

Art. 359. The government promotes the fullgrowth of the faculties of every child. Forthis purpose, the government willestablish, whenever possible:

(1) Schools in every barrio, municipalityand city where optional religiousinstruction shall be taught as part of thecurriculum at the option of the parent orguardian. xxx

Provided it is upon the written petition of theparents and it is at no cost to the State

(although this is not entirely possible,because the use of classrooms and electricityare costs in the State), religious instructionin public elementary and secondary schoolsduring class hours, by one approved by theauthorities of the religion of the child or wardis allowed. [Art. XIV, Sec. 3(3).] Religion

can even be integrated in the schoolcurriculum. [Civ. Code, 359 (1).]

c. Prayer and Bible-reading inpublic schools

In Engel v. Vitale, 370 U.S. 421 (1967), the

SC disallowed the conducting of aninterdenominational prayer before the start ofclasses in public schools as, violative of theNon- Establishment clause.

In Abington School District v. Schemp, 374U.S. 203 (1963), it likewise disallowed thereading of a passage from the bible withoutcomment in public schools as contrary to theNon- Establishment clause.

d. Tax exemption

Art. VI, Sec. 28. xxx(3) Charitable institutions, churches,

parsonages or convents appurtenantthereto, mosques, non-profitcemeteries, and all lands, buildingsand improvements, actually, directly,and exclusively used for religious,charitable or educational purposes

shall be exempt from taxation.

The ruling in Bishop of Nueva Segovia v.Provincial Board, 51 Phil. 352 (1927) ismodified to the extent now that the propertymust be "actually, directly and exclusively"used for religious purposes to be exempt.

e. Public aid to religion The payment or use of public money or

property for any religious institution or clergyis not allowed; except in those cases providedin the Constitution: priests assigned in the

AFP, penal institution, governmentorphanage, or leprosarium. [Art. VI, Sec. 29(2)]

But in Aglipay v. Ruiz, 64 Phil. 201 (1937),the SC held that the stamp printed by thegovernment showing the map of thePhilippines with a rosary to commemorate the33rd International Eucharistic Congress to beheld in Manila did not violate the Non-Establishment clause because its mainpurpose, was to call the world's attention toManila as the site of an internationalcongress, and whatever benefit it gave theCatholic Church was only incidental.


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2 . F r e e e x e r c i s e o f r e l ig i o n

a. Flag Statute

Conscientious Objectors cannot be compelled

to salute the flag. The idea that one may becompelled to salute the flag, sing the nationalanthem, and recite the patriotice pledge,during a flag ceremony on pain of beingdismissed from one's job or of being expelled

from school, is alien to the conscience of thepresent generation of Filipinos who cut theirteeth on the Bill of Rights w/c guaranteestheir rights to free speech and the freeexercise of religious profession and worship.[Ebranilag v. Division Superindentent ofSchools of Cebu, 219 SCRA 256 (1993)]

b. Freedom to propagatereligious doctrines

The power to tax the exercise of the privilegeis the power to control or suppress itsenjoyment. Those who can tax the exercise ofreligious practice can make its exercise socostly as to deprive it of the resourcesnecessary for its maintenance. [AmericanBible Society v. City of Manila, 101 P 386(1957)]

c. Exemtion from union shop

The statute does not violate the rights ofassociation. It does not impair the obligation ofcontracts for not only are existing laws read intocontracts in order to fix the obligation of theparties but the reservation of essential attributesof sovereign power is also read into suchcontracts. Neither does the law constitute anestablishment of religion. It has been held that in

order to withstand objections based on thisground, the statute musr have a secular purposeand that purpose must not directly advance ordiminish the interest of any religion. Congressacted merely to relieve persons of the burdenimposed by union security agreements.[Victoriano v. Elizalde Rope Workers Union, 59SCRA 54 (1974)]

d. Disqualification from localgovernment office

The voting of the SC was inconclusive. Seven justices held that section 2175 is no longeroperative. Justice Fernando held that section2175 imposed a religious test on the exercise

of the right to run for public office contrary toArt. III of the 1935 Constitution. JusticeTeehankee held that section 2175 had beenrepealed by the Election Code. Five justicesheld that section 2175 is constitutional.[Pamil v. Teleron 86 SCRA 413 (1978)]

F. N o n - i m p a i r m e n t o f o b l i g at i o n s o f

c o n t r a c t s

1 . N a t u r e o f p r o t e c t io n

The purpose of the impairment clause is tosafeguard the integrity of valid contractualagreements against unwarrantedinterference by the State.

As a rule, contracts should be respected bythe legislature and not tampered with bysubsequent laws that will change the

intention of the parties or modify their rightsand obligations. The will of the parties to thecontract must prevail.

2 . Co n t r a c t s a f f e c t e d

To be entitled to a protection againstimpairment, a contract must be valid.


Despite the impairment clause, a contractvalid at the time of its execution may belegally modified or even completelyinvalidated by a subsequent law.

Another limitation arises from the rule ofstrict construction. Charters, franchises andlicenses granted by the Government arestrictly construed against the grantees.

Police power is another limitation to the non-impairment clause. If a law is a properexercise of the police power, it will prevailover the contract. Into each contract are readthe provisions of existing law and, always, areservation of the police power as long as theagreement deals with a matter affecting thepublic welfare.

Like the police power, the other inherentpowers of eminent domain and taxation mayvalidly limit the impairment clause.

4 .

Ef f e c t o f em e r g e n c y l e g i sl a t i o no n c o n t r a c t s

In a national emergency, such as a protractedeconomic depression, the police power maybe exercised to the extent of impairing someof the rights of parties arising from contracts.However, such emergency laws are to remainin effect only during the continuance of theemergency.

5 . C u r r e n c y l e g i s l a t i o n a n d

c o n t r a c t s

The legislative department has completeauthority to determine the currency of thestate and to prescribe what articles shall be

used and accepted as legal tender in thepayment of lawful obligations.

Private parties are bound to observe thisgovernmental authority over the nation'scurrency in the execution of their contracts.


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6 . I m p a i r m e n t

In order to come within the meaning of theconstitutional provision, the obligation ofcontract must be impaired by some legislativeact (statute, ordinance, etc.). The act neednot be by a legislative office; but it should belegislative in nature.

> A mere administrative order, not legislativein nature, may not be considered a cause ofimpairment within the scope of theconstitutional guarantee. The guarantee is

also not violated by court decisions. The act of impairment is anything which

diminishes the value of the contract. Thelegislature may, however, change the remedyor may prescribe new modes of procedure.The change does not impair the obligation ofcontracts so long as another remedy, just asefficacious, is provided for the adequateenforcement of the rights under the contract.

G. Fr e e d om o f m o v em e n t ( L i b e r t y o f

A b o d e a n d r i g h t s t o T r a v e l)

Art. III, Sec. 6. The liberty of abode and ofchanging the same within the limits prescribed by law shall not be impaired

except upon lawful order of the court.Neither shall the right to travel beimpaired except in the interest of nationalsecurity, public safety, or public health,as may be provided by law.

Freedom of Movement: liberty of Abodeand of travel - The liberty guaranteed by this provision

includes (1) freedom to choose andchange one's place of abode and (2)freedom to travel both within the countryand outside.

- The right to return to one's country is not

among the rights specifically guaranteedin the Bill of Rights, which treats only ofthe liberty of abode and the right totravel, but it is the Court's wellconsidered view that the right to returnmay be considered as a generallyaccepted principle of international law,and under our Constitution, is part of thelaw of the land. However, it is distinctand separate from the right to travel andenjoys a different protection under theIntl. Covenant of Civil and PoliticalRights, i.e. against being arbitrarilydeprived thereof. [Marcos v. Manglapus,177 SCRA 668 & 178 SCRA 760 (1989)]

- Freedom of movement is not absolute.

The liberty of abode may be impairedonly upon lawful order of the court and"within the limits prescribed by law." Theright to travel, however, may becurtailed ever by administrativeauthorities, such as passport-officers, "inthe interest of national security, public

safety, or public health" and again, "asmay be provided by law."

- Dissenting opinion of Justice Gutierrez inthe Marcos case: Sec. 6 of the Bill ofRights states categorically that the libertyof abode and of changing the same withinlimits prescribed by law may be impairedonly upon lawful order of the court. Notby an executive officer. Not even by thePresident. Sec. 6 further provides thatthe right to travel, and this obviouslyincludes the right to travel out of or back

into the Philippines, cannot be impairedexcept in the interest of national security,public safety, or public health, as may beprovided by law.

Aliens and right to entry - While the right to travel of citizens covers

both exit from and entry into the country,aliens cannot claim the same right.

H . P r i v i le g e o f W r i t o f H a b e a s C o r p u s

Art. III, Sec. 15. The privilege of the writ

of habeas corpus shall not be suspended

except in cases of invasion or rebellion,when the public safety requires it.

A "writ of heabeas corpus" is a writ directedto the person detaining another, commandinghim to produce the body of the detainee at adesignated time and place, and to showcause why he should continue to be detained.

The "privilege of the writ" is the right to havethe immediate determination of the legality ofthe deprivation of physical liberty.

Art. VII, Sec. 18. The President shall be theCommander-in-Chief of all armed forces

of the Philippines, and whenever itbecomes necessary, he may call out sucharmed forces to prevent or suppresslawless violence, invasion or rebellion. In

case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspendthe privilege of the writ of habeas corpusor place the Philippines or any partthereof under martial law. Within forty-eight hours from the proclamation ofmartial law or the suspension of the privilege of the writ of habeas corpus, thePresident shall submit a report in personor in writing to the Congress. The

Congress, voting jointly, by a vote of atleast a majority of all its Members inregular or special session, may revokesuch proclamation or suspension, whichrevocation shall not be set aside by thePresident. Upon the initiative of thePresident, the Congress may, in the same


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manner, extend such proclamation orsuspension for a period to be determinedby the Congress, if the invasion or

rebellion shall persist and public safetyrequires it.

The Congress, if not in session, shallwithin twenty-four hours following such proclamation or suspension, convene inaccordance with its rules without need ofa call.

The Supreme Court may review, in

an appropriate proceeding filed by anycitizen, the sufficiency of the factual basisof the proclamation of martial law or thesuspension of the privilege of the writ orthe extension thereof, and must promulgate its decision thereon withinthirty days from its filing.

A state of martial law does notsuspend the operation of theConstitution, nor supplant the functioning

of the civil courts or legislativeassemblies, nor authorize the confermentof jurisdiction on military courts andagencies over civilians where civil courtsare able to function, nor automaticallysuspend the privilege of the writ.

The suspension of the privilege shallapply only to persons judicially chargedfor rebellion or offenses inherent in ordirectly connected with invasion.

During the suspension of the privilege of the writ, any person thusarrested or detained shall be judiciallycharged within three days, otherwise he

shall be released.

In case of invasion or rebellion, when thepublic safety requires it, the President may,for a period not exceeding 60 days, suspend

the privilege of the writ of habeas corpus... The suspension of the privilege of the writ

shall apply only to persons judicially chargedfor rebellion or offenses inherent in or directlyconnected with invasion.

During the suspension of the privilege of thewrit, any person thus arrested or detainedshall be judicially charged within 3 days,otherwise he shall be released. (Art. VII,Sec. 18.)

What is suspended is the privilege of the writ,and not the writ itself. The writ will alwaysissue as a matter of course. But when theprivilege of the writ is suspended, all thedetaining office needs to do when he receives

the writ of habeas corpus is to show to thecourt that the detainee is being detained foran offense covered by the suspension, andthe court cannot inquire any further to findout if the detention is legal. Under theConstitution, this is so only for 3 days. After3 days, the Court can now require the

detaining officer to produce the body of thedetainees and show cause why he should notbe released.

The suspension of the privilege of the writapplied only to crimes related to invasion orrebellion. An extensive discussion was madeunder the Commander-in- Chief clause of thePresident, supra. This rest of the section willbe confined to habeas corpus as a remedy inall other offenses.

In general as already noted above, the

privilege of the writ is an extraordinaryremedy to question the illegality of the arrestor detention, or any other restraint to liberty.When all else is lost, it is the last recourse toget someone out of his illegal detention.


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Rights in the Criminal Administration ofJustice

A . R i g h t s b e f o r e t r i a l

1 . A r r e s t s , s e a r c h e s a n d s e iz u r e s

Art. III, Sec. 2. The right of the people tobe secure in their persons, houses, papers and effects against unreasonablesearches and seizures of whatever natureand for any purpose, shall be inviolable,and no search warrant or warrant of

arrest shall issue except upon probablecause to be determined personally by the

judge after examination under oath oraffirmation of the complainant and thewitnesses he may produce, and particularly describing the place to besearched and the person or things to beseized.

Sec. 3. The privacy of communication and

correspondence shall be inviolable,except upon lawful order of the court, orwhen public safety or order requiresotherwise as prescribed by law. Anyevidence obtained in violation of this orthe preceding section, shall be

inadmissible for any purpose in any proceeding.

a . p r e - a r r e s t r i g h t s

i. Warrantless arrests (Rule113, Sec. 5, 2000 Rules ofCriminal Procedure)strictly construed asexception to general rulerequiring judicial warrant

Rule 113, Sec. 5. Arrest without warrant;when lawful.-- A peace officer or a

private person may, without a warrant,arrest a person:

(a) When, in his presence, the person tobe arrested has committed, is actuallycommitting, or is attempting tocommit an offense;

(b) When an offense, has in fact just beencommitted, and he has personalknowledge of facts indicating that the person to be arrested has committedit;

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment of place where heis serving final judgment or

temporarily confined while his case is pending, or has escaped while beingtransferred from one confinement to

another.In cases falling under paragraphs (a)

and (b) hereof, the person arrestedwithout a warrant shall be forthwith

delivered to the nearest police station or jail, and he shall be proceeded against inaccordance with Rule 112, Section. 7.

(Rules of Court.)

Rule 113, sec. 5 talks of "citizen arrests",cases where an arrest can be made either bythe peace officer or a private person withoutneed of a warrant.

Sec. 5, R 113, ROC, requires 2 conditions fora valid arrest w/o warrant: (1) the person to

be arrested has just committed an offenseand (2) the person arresting has personalknowledge of facts indicating that the personto be arrested is the one who committed theoffense.

The key element in the first case is that theoffense was committed "in his presence".The key element in the second case is that hehas "personal knowledge".

Strict enforcement of rule: In People v.Burgos, 144 SCRA 1 (1986), the arrest madeby the constabulary without a warrant of afarmer on the basis of information that hewas a subversive was held unconstitutional,since there was no personal knowledge of theoffense itself.

Exception to the strict enforcement rule: (1) “Continuous” crimes of subversion

- Subversion being a continuingoffense, the arrest of Dural w/owarrant is justified as it can be saidthat he was committing an offensewhen arrested. [Umil v. Ramos, 187SCRA 311 (1990)

(2) Illegal possession of guns and drugs[People v. Linsangan, 195 SCRA 784]

ii. Arrest under warrant The issuance of warrant of arrest involves a

judicial power which necessarily imposesupon the judge the legal duty of firstsatisfying himself that there is probablecause, independently of and notwithstandingthe preliminary investigation made by aprovincial fiscal and to that end he mayrequire the fiscal to submit such evidence asmay be sufficient to show at least a primafacie case Amargas v. Abbas, 98 Phil 739(1956)]

iii. Determination of

probable cause Probable cause is such facts and circum-

stances as would reasonably make a prudent

man believe that a crime have beencommitted and that the documents or thingssought to be searched and seized are in thepossession of the person against whom thewarrant is sought.

The illegality of detention is not cured by thefiling of information against them, since no


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warrant of arrests o

Documents

CONSTI2.constitutional law2.pdf