Copy Of Constitutional Law Ii Green Notes

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“The most essential, insistent and the least limitable of powers, extending as it does to all the great public needs.” 6

VII. BILL OF RIGHTS

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A. FUNDAMENTAL POWERS OF THE STATE 1.

Police power

2. 3.

Eminent Domain; and Power of Taxation

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b. Particular aspects The pervasive reach of police power has been used to justify measures:

POLICE POWER

1. 2. 3. 4.

Police Power, defined “The power vested in the legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.”1 •

State authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare2

Nature and basis “[It] is an Inherent and plenary power which enables the State to prohibit all that is hurtful to the comfort, safety, and welfare of the society. 3 “It is the most pervasive, the lease limitable and the most demanding of the three powers. It is the most essential, insistent and least limitable, extending as it does “to all the great public needs” 4 Hence, it may be exercised as long as it has some relevant to the public welfare. The justification is found in the ancient Latin maxims:5 • Salus populi est suprema lex (the welfare of the people is the supreme law) •

Sic utere tuo ut alienum non laedas (so use your own property as not to injure another’s property)

Public Health Public Morals Public Safety Public Welfare

LIMITATIONS a. General b. Due process Basis: “no person shall be deprived of life, liberty or property without due process of law”9 c. Equal protection Basis: “xxx Nor shall any person be denied of equal protection of law”10

REQUISITES FOR VALID EXERCISE11 1. Lawful subject or purpose The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power 2.

Lawful means The means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.

WHO MAY EXERCISE POLICE POWER? 1. Legislature The police power is lodged primarily in the national legislature. 2.

SCOPE a. General

Bernas, S.J. (2009). The 1987 Constitution of the Republic of the Philippines: A commentary. Rex Printing Compnay, Inc. 2 Edu v Ericta, 35 SCRA 481 (1970) 3 Ermita-Malate Hotel and Motel Operators Assoc., Inc. v Mayor of Manila (GR No. L-24693, July 31, 1967) 4 Cruz, p. 85-86 5 Cruz, p.41

The police power is considered the most pervasive, the least limitable, and the most demanding of the three powers.7 Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this reason, its scope expands and contracts with changing needs.8

Executive By virtue of a valid delegation of legislative power; it may also be exercised by the President and administrative boards.

1

Ichong v. Hernandez, 101 Phil. 1155 (1957) Cruz, p. 40 8 Churchill v. Rafferty, 32 Phil. 580 (1915) 9 Sec 1, Article III, 1987 Constitution 10 Ibid. 11 US v. Toribio, 15 Phil. 85 (1910) 6 7

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GENERAL RULE: Police power primarily lodged in the Legislative

2. 3.

EXCEPTION: Valid delegation to the President and Administrative Bodies as well as the lawmaking bodies of Municipal Corporation or LGUs. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the lawmaking body 12

4. 5.

•

•

Through the “general welfare clause”13, the lawmaking bodies on all municipal levels, including the barangay, exercise police power.14 “The rigidity of the theory of separation of governmental powers has, to a large extent, been relaxed by permitting the delegation of greater powers by the legislative and vesting a larger amount of discretion in administrative and executive officials, not only in the executions of laws, but also in the promulgation of certain rules and regulations calculated to promote public interest.”15

EMINENT DOMAIN Eminent domain, defined It is the power of the state to take private property for public use upon payment of just compensation.16 The INHERENT RIGHT of the State TO CONDEMN private property to public use upon payment [of just compensation] TWO STAGES OF EMINENT DOMAIN CASES 1. The determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit 2. The determination by the court of the just compensation for the property sought to be taken17 WHO MAY EXERCISE THE POWER OF EMINENT DOMAIN? [It] is lodged primarily in the national legislature, but its exercise may be validly delegated to other governmental entities and, in fact, even to private corporations:18 1.

Congress

MMDA vs. Bel-Air Village Association, GR no. 135962, March 27, 2000 13 Secs. 91, 149, 177, 208, Local Government Code 14 Cruz, p.46 15 Calalang v. Williams, 70 Phil. 726 (1940) 16 Bernas, S.J. (2011). The 1987 Philippines Constitution: A comprehensive reviewer. Rex Publishing Corp. 17 Republic vs. Lim, GR no. 161656, June 29, 2005 18 Bernas, p.398; Cruz, p. 64 12

President of the Philippines Municipal governments and other government entities Certain public corporations (i.e. NHA) Quasi-public corporations operating public utilities

•

In the hands of Congress the scope of the power is plenary. It is as broad as the scope of police power itself. It can reach every form of property which the State might need for public use.19

•

The delegated power of eminent domain of local governments is strictly speaking not a power of eminent but of inferior domain – a share merely in eminent domain. It is only as broad as the eminent authority would allow it to be.20

REQUISITES FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN 1. Taking of private property 2. Said taking must be for public use 3. Payment of just compensation Private property General rule: Anything that can come under the dominion of man is subject to expropriation, i.e.: 1. Real and personal properties 2. Tangible and intangible properties Exceptions: 1. Money Would be futile because of the requirement of just compensation, which is usually in money. 2.

Choses in action “A personal right not reduced into possession but recoverable by a suit at law; a right to receive, demand, or recover a debt, demand or damages on a cause of action ex contractu or for a tort or omission of duty”

Taking Imports a physical dispossession of the owner. In law, it has a broader connotation. It may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended.21 REQUISITES OF “TAKING FOR PURPOSES OF EMINENT DOMAIN 22” 1. The expropriator must enter a private property. 2. The entrance into private property must be for more than a momentary period. Bernas, p.399 Id. 21 Cruz, p. 70 22 Republic v. Castellvi, 58 SCRA 336 (1974) 19 20

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3. 4. 5.

The entry into the property should be under warrant or color of legal authority. The property must be devoted to public use or otherwise informally appropriated or injuriously affected. The utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property.

MEANING OF TAKING 1. The owner is actually deprived or disposed of the porperyt 2. There is practical destruction or material impairment of the value of his property 3. The owner is deprived of the ordinary use of his property23 4. The owner is deprived of jurisdiction, supervision and control of his property WHEN IS THERE CONSTRUCTIVE TAKING? When there is destruction, restriction, diminution or interruption of the rights of the ownership or of the common and necessary and enjoyment of the property in a lawful manner, lessening or destroying its value 24. Public Use Means public usefulness, utility, or advantage, or what is productive of general benefit.25 •

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The scope of the power of eminent domain has becomes as broad as the expansive and ever expanding scope of police power itself. 26 It has now broadened to cover uses which, while not directly available to the public, redound to their indirect advantage or benefit. 27

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As long as public has right of use, whether exercised by one or many members of the public, a public advantage or public benefit accrues sufficient to constitute a public use. 28

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If the genuine public necessity disappears, then there is no more cogent point for the government’s retention of the expropriated land29.

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In case of abandonment of intended use, the expropriator should file another petition for new purpose.

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If not, it is then incumbent upon the expropriator to return the said property to the private owner if the latter desires to re-acquire the same. Otherwise, the judgment of expropriation suffers an intrinsic flaw for the lack of public purpose30.

•

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 31.

•

When exercised by the Congress, the question of genuine necessity is a political question which the courts cannot resolve32

•

When it is delegated, the grant of such special authority for special purpose is still a political question. Hence, it is a justifiable question that can be resolved by the courts33

• Just Compensation The just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation.34 •

Expressed differently, the compensation given to the owner is just if he receives for his property a sum equivalent to its “market value.” 35

•

It embraces not only the correct determination of the amount to be paid to the owners of the land but also the payment for the land within a reasonable time from its taking 36.

•

While market value may be one of the bases in determining just compensation, the same cannot be arbitrarily arrived at without considering the factors to be appreciated in arriving at the fair market value of the property (e.g. cost of acquisition, the current value of like properties, size, shape, location, tax declaration)37

FAIR MARKET VALUE The price that may be agreed upon by the parties who are willing but are not compelled to enter into a contract of sale38. Otherwise stated, it is the price prepared to be paid MCIAA vs. Lozada S., GR no 176625, February 25, 2010 NPC vs. Chiong, GR no. 152436, June 20, 2003 32 City of Manila vs. Chinese Community of Manila, GR no. L-14355, October 31,1919 33 Ibid. 34 Bernas, p.402 35 Bernas, p.402 36 Republic vs. Lim, GR no 161656, June 29, 2005 37 Landbank v. Wycoco, GR No. 140160, January 13, 2004 38 National Power Corporation vs. Dela Cruz, GR no. 16093, February 2, 2007 30 31

Republic vs. Sandiganbayan, GR no 157847, August 25, 2005 National Power Corporation vs. Heirs of Macabangkil Sangkay, GR no. 1655828, August 24, 2011 25 Bernas, p. 401 26 Bernas, p.401 27 Cruz, p.70 28 Black’s Law Dictionary, as cited in Mañosca v. CA, 252 SCRA 412 (1997) 29Vda de Ouano vs. Republic, GR No. 168770, February 9, 2011 23 24

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by a party who is willing, but not compelled to purchase the property, and the price by which the seller is willing to par with, but not compelled, to sell the property.

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The power of eminent domain enables the State to forcibly acquire private lands intended for public use upon payment of just compensation.

•

Where the owner is unwilling to sell, the power of eminent domain will come into play to assert the paramount authority of the State. Private rights must yield to the demand of public interest on the time honored justification, as in the case of police power, that the welfare of the people is the supreme law.43

Point of reference for assessing the value of a piece of property General Rule: The value of the property sought to be taken at the time of the filing of the complaint for expropriation which generally coincides with the taking shall be the basis for just compensation;

“MERE REGULATION” VERSUS “TAKING”

But: 1. When filing of the case comes later than the taking and the value of the property has increased because of the use which the expropriator has put it, the value is that of the time of the earlier taking. 2.

REGULATION

If the value increases independently of what the expropriator did, the value is that of the later filing.

CONSEQUENTIAL DAMAGE It consists of injuries directly caused on the residue of the private property taken by the reason of expropriation39

Exercise of power

Police Power

Power of Eminent Domain

Compensation

Not required

Prescribed by Constitution

Purpose

Appropriated for use by or for the benefit of the public

Prevent injury to public welfare and to public interest

EFFECT OF DELAY IN PAYMENT The government is expected to immediately pay as directed. •

The trial court is directed to seize any patrimonial property or cash savings of the province in the amount necessary to implement the decision 40.

•

The owner is entitled to payment of interest, if claimed; otherwise, interest is deemed waived41.

EFFECT OF NON-PAYMENT General Rule: The non-payment of just compensation does not entitle the private landowner to recover possession of expropriated lots. Exception: In cases where the government failed to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property42. The power of eminent domain could be used as an implement of the police power

Cruz, page 155 Provincial Government of Sorsogon vs. Villaroya, GR no. L-64037, August 27, 1987 41 Urtula vs. Republic, GR no L-22061, January 31, 1968 42 Republic vs. Lim 39 40

TAKING

For local government, including the benefits to the poor and landless DUE PROCESS Property owned must be given an opportunity to be heard in the determination of the fair market value of the property44 REQUISITES OF EXERCISE OF EMINENT DOMAIN BY LGU’S 45 1. Ordinance by the local legislative council authorizing the local chief executive to exercise the power of eminent domain 2. For public use, purpose or welfare or for the benefit of the poor and of the landless 3. Payment of just compensation; and 4. Valid and definite offer has been previously made to the owner of the property sought but such offer was refused •

The power of eminent domain as exercised by the LGUS is not strictly speaking, a power of eminent

Association of Small Landowners v. Sec. of Agrarian Reform, 175 SCRA 343 44 Sec 3, Rule 67, Rules of Court 45Municipality of Paranaque vs. VM Realty Corp, GR no 127820, July 20, 1998 43

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domain. It is merely a power of inferior domain which means that local government units can only exercise such power which is delegated to it46. •

Sec. 5, Art. X, 1987 Constitution. – Power of LGUs to create its own source of revenue Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.

The power of the eminent domain may be exercised by LGUs for urban and reform purposes but expropriation of privately owned lands must be resorted to only after all other lands has been exhausted47.

Nature

TAXATION Taxation; defined It is the power by which the sovereign, through its lawmaking body, raises revenue to defray the necessary expenses of government. It is a way of apportioning the costs of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Sec. 28, Art.VI, 1987 Constitution. –Legislative power to promulgate and delegate tax and tariff laws 1. The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. 2.

3.

4.

The Congress may, by law, authorize the president to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. Charitable institutions, churches and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and improvements, actually, directly and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

Enforced proportional contributions from persons and property, levied by the State by virtue of its sovereignty, for the support of government and for all public needs.48

Extent The extent of the taxing power is as broad as the purpose for which it is given.49 • Reaches every trade or occupation, to every object of industry, use or enjoyment, to every species of possession.50 So pervasive is the power of taxation that it reaches even the citizen abroad and his income earned from sources outside his State.51

•

TAXES, AS DISTINGUISHED ASSESSMENTS Tax

FROM

SPECIAL

Special Assessment

Imposed regardless of public improvements

Imposed because of an increase in value of land benefited by public improvement.

Contribution of a taxpayer for the support of the government

Contribution of a person for the construction of a public improvement

Has general application both as to place and time

Exceptional both as to time and locality

If unpaid, the business or activity does not become illegal.

If unpaid, the business or activity itself can become illegal

TAXES, AS DISTINGUISHED FROM LICENSE FEES

Cooley, Taxation, 4th ed. Bernas, p.800 50 Cooley, Taxation 4th ed. 51 Cruz, p.87 48 49

46 47

Suarez page 124 Sec 10, RA 7279

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TAX

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improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. (*note: this exemption covers property taxes only)

LICENSE FEES

Levied to raise revenues

Imposed for regulatory purposes in the exercise of police power

Amount to be collected is unlimited provided it is not confiscatory

Amount is invariably limited to cover the expenses of issuing the license and the cost of the necessary surveillance, inspection or government supervision

Imposed on persons, property, privilege, occupation or business

Imposed for the regulation of lawful business or occupation

If unpaid, the business or activity does not become illegal.

If unpaid, the business or activity itself can become illegal

Limitations INHERENT LIMITATIONS Found in the very nature of the power itself, these include: 1. 2. 3. 4. 5.

•

Art. VI, Sec. 28, par. 1 – The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation.

•

Art. VI, Sec. 28, par. 2 – The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.

•

Art. VI, Sec. 28, par. 3 – Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, buildings, and

Art. VI, Sec. 28, par. 4 – No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.

•

Art. VI, Sec. 29, par. 3 – All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.

•

Art. XIV, Sec. 4[3] - All revenues and assets of non-stock, non-profit educational institutions used actually, directly, and exclusively for educational purposes shall be exempt from taxes and duties. Upon the dissolution or cessation of the corporate existence of such institutions, their assets shall be disposed of in the manner provided by law. Proprietary educational institutions, including those cooperatively owned, may likewise be entitled to such exemptions subject to the limitations provided by law including restrictions on dividends and provisions for reinvestment.

Public purpose Non-delegability Exemption of government from taxation Situs of taxation International comity

CONSTITUTIONAL LIMITATIONS Those expressly found in the Constitution, or implied from its provisions. These include: • Art. III, Sec. 20 – No person shall be imprisoned for debt or non-payment of a poll tax.

•

Double Taxation There is double taxation when additional taxes are laid on the same subject by the same taxing jurisdiction during the same taxing period and for the same purpose.52 •

There is no provision in the Constitution specifically prohibiting double taxation. Our Supreme Court has not categorically held that double or multiple taxation is prohibited in our jurisdiction.53

•

Despite the lack of a specific prohibition, however, double taxation will not be allowed if it results in a violation of the equal protection clause.54

Impairment of obligation of contracts The State’s inherent power of taxation may validly limit the impairment clause. • Generally, the imposition of a tax does not alter the relationship between the parties but only the Cooley, Taxation, Vol. I, 4th ed. Cruz, p.91 54 Cruz, p.92 52 53

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relationship between the parties and the State who may not be a party to the contract. •

tax is not a property tax, but an excise tax imposed on the transfer of property by way of gift inter vivos, the imposition of which a property used exclusively for religions purpose does not constitution impairment of the constitution 58

It has been held that a lawful tax on a new subject, or an increased tax on an old one, does not interfere with a contract or impairs its obligation within the meaning of the Constitution.

2. All revenues and assets of non-stock, non-profit educational institution used actually, directly and exclusively for educational purposes shall be exempt from taxes and duties 59

Tax exemptions May either be constitutional or statutory in nature Inherent to the power to tax is the power to exempt from tax. Hence, the same general and specific limitations on the power to tax also apply to the power to create exemptions.55 •

•

Unlike the ordinary legislation, tax measures require absolute majority of the entire composition of both houses of congress, voting separately. The former requires only majority of members present as long as there is a quorum

3. Proprietary educational institution including those cooperatively owned may likewise be entitled to such exception subject to the limitation provided by the law 61 4. All grants endowments donation or contributions used actually, directly and exclusively for educational purpose shall be exempt from tax subject to conditions prescribed by law 62

Reason for Sec. 28(4), Art. VI of the 1987 Constitution: • Tax exemptions should not be lightly extended since they will represent a loss of revenue to the government. •

Where tax exemption is granted gratuitously, it may be validly revoked at will, with or without cause.

•

If the exemption is granted for valuable consideration, it is deemed to partake of the nature of a contract and the obligation thereof is protected against impairment.

The exemption extends to facilities which are incidental to and reasonably necessary for the accomplishment or the main purposes. Otherwise stated, the use of the school building or lot for commercial purposes is neither contemplated by the law nor by jurisprudence60.

e.g, RA 9304 which exempts minimum wage earners from paying income tax , increases tax exemption for all earners and allows additional exemptions for all earners and allows additional exemptions for individuals with dependents/children.

Police power may sometimes use the taxing power as an attainment of legitimate police objective • It is inherent in the power to that a state be free to select the subjects of taxation, and it has been repeatedly held that “inequities which result from singling out of one particular class for taxation or exemption infringe no constitutional limitation.” Taxation has been made the implement of the state’s police power.56 ENTITIES AND MATTER EXEMPT FROM SOME KIND OF TAXES BY THE CONSTITUTION 1. Charitable institution, churches, and personages or convents appurtenant thereto, mosques, non-profit cemeteries, and all lands, building, and improvements actually, directly, and exclusively used for religious, charitable or educational purposes 57. •

Exemption is only from the payment of taxes assessed as property tax, as distinguished from excise tax. A gift

Bernas, p.807 Tio v. Videogram Regulatory Board, 151 SCRA 208 57 Sec 28 par. 3, Article VI, 1987 Constitution 55 56

Lladoc vs. Commissioner of Internal Revenue, GR No. L-19201, June 16, 1965 59 Sec 4(3), Par 1, Article XIV, 1987 Constitution 60 Abra Valley College cs. Aquino, GR no. L—39086, June 15, 1988 61 Sec 4(3), Aritcle XIV, 1987 Constitution 62 Sec 4(4), Art XIV, 1987 Constitution 58

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B. PRIVATE ACTS AND THE BILL OF RIGHTS The Bill of Rights guarantee governs the relationship between the individual and the State. Its concern is not the relation between private individuals. What it does is to declare some forbidden zones in the private sphere inaccessible to any power holder (People v. Marti, G.R. No. 81561, Jan. 18, 1991). Article III contains the chief protection for human rights but the body of the Constitution guarantees other rights as well. (1) Civil rights – rights that belong to an individual by virtue of his citizenship in a state or community (e.g. rights to property, marriage, freedom to contract, equal protection, etc.)

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Due Process is a guaranty against any arbitrariness on the part of the government, whether committed by the legislature, the executive, or the judiciary. 63 1. Life 2. Liberty 3. Property Due process means that: 1. There shall be a law prescribed in harmony with the general powers of the legislature; 2. It shall be reasonable in its operation; 3. It shall be enforced according to the regular methods of procedure prescribed; and 4. It shall be applicable alike to all citizens of the State or to all of a class (People v. Cayat, G.R. No. L45987, May 5, 1939).

(2) Political rights – rights that pertain to an individual’s citizenship vis-à-vis the management of the government (e.g. right of suffrage, right to petition government for redress, right to hold public office, etc.)

RELATIVITY OF DUE PROCESS

(3) Social and economic rights – rights which are intended to insure the well-being and economic security of the individual

Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” (Cafeteria & Restaurant Workers Union v. McElroy, 1961)

(4) Rights of the accused – civil rights intended for the protection of a person accused of any crime The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles.” (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 1973) The purpose of the Bill of Rights is 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 rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638)

The concept of due process is flexible for not all situations calling for procedural safeguards call for the same kind of procedure. (Secretary of Justice v. Lantion, 2000)

To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure. (Morrissey v. Brewer (1972)

Substantive due process • •

The prohibition of arbitrary laws. A guarantee against the exercise of arbitrary power even when the power is exercised according to proper forms and procedure. REQUISITES OF SUBSTANTIVE DUE PROCESS 1. The interests of the public in general, as distinguished from those of a particular class, require the intervention of the state. 2. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals.

DUE PROCESS SEC. 1, ART. III, 1987 CONSTITUTION No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. 63

Cruz, p.100

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Procedural due process •

Relates chiefly to the mode of procedure which government agencies must follow in the enforcement and application of laws.

•

It is “a law which hears before it condemns; which proceeds upon enquiry, and renders judgment only after trial.”

•

Contemplates notice and opportunity to be heard before judgment is rendered, affecting one’s person or property. (Lopez v Dir. of Lands)

CONSTITUTIONAL DUE PROCESS vs. STATUTORY DUE PROCESS CONSTITUTIONAL DUE PROCESS Protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings

STATUTORY DUE PROCESS

explicit or implicit reminder that property has a social dimension and that the right to property is weighted with a social obligation. DUE PROCESS IN JUDICIAL PROCEEDINGS REQUISITES 64 1. An impartial court or tribunal clothed with judicial power to hear and determine the matter before it; 2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceedings; 3. The defendant must be given notice and opportunity to be heard; and 4. Judgment must be rendered upon lawful hearing. DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS REQUISITES (Ang Tibay v. CIR, 69 Phil 635)

While found in the Labor Code and Implementing Rules, it protects employees from being unjustly terminated without just cause after notice and hearing (Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004).

HIERARCHY OF RIGHTS When the Bill of Rights also protects property rights, the primacy of human rights over property rights is recognized. Because these freedoms are “delicate and vulnerable, as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.” (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 1973) 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 at the most rights of property, the permissible scope of regulatory measure is wider. (Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 1967) Running through various provisions of the Constitution are various provisions to protect property—but always with the

1.

The right to a hearing, which includes the right to present one’s own case and submit evidence in support thereof;

2.

The tribunal presented;

3.

The decision must have something to support itself;

4.

The evidence must be substantial;

5.

The decision must be based on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected;

6.

The tribunal or body or any of its judges must act on its own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate;

7.

The board or body should, in all controversial questions, render its decision in such manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.

must

consider

the

evidence

NOTE: • The heart of procedural due process, whether in judicial or administrative proceedings, is the need for notice and an opportunity to be heard. •

64

The quantum of proof in administrative proceedings in substantial evidence:

Banco Español v. Palanca, 37 Phil 921

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•

Substantial evidence means “such reasonable evidence as a reasonable mind might accept as adequate to support a conclusion.”

•

In administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial sense. (Samalia v. CA, 454 SCRA 438)

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REQUISITES OF STUDENT DISCIPLINE PROCEEDINGS Student discipline proceedings may be summary and crossexamination is not an essential part thereof. However, to be valid, the following requirements must be met: 1. Written notification sent to the student/s informing the nature and cause of any accusation against him/her; 2. Opportunity to answer the charges, with the assistance of a counsel, if so desired; 3. Presentation of one’s evidence and examination of adverse evidence; 4. Evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case (Guzman v. NU, G.R. No. L-68288, July 11, 1986). 5. The penalty imposed must be proportionate to the offense. DUE PROCESS IN DEPORTATION PROCEEDINGS Although deportation proceedings are not criminal in nature, the consequences can be as serious as those of a criminal prosecution. The provisions of the Rules of Court for criminal cases are applicable (Lao Gi v. CA, GR. No. 81789, Dec. 29, 1989.). INSTANCES WHEN HEARINGS ARE NOT NECESSARY 1. When administrative agencies are exercising their quasilegislative functions 2. Abatement of nuisance per se 3. Granting by courts of provisional remedies 4. Cases of preventive suspension 5. Removal of temporary employees in the government service 6. Issuance of warrants of distraint and/or levy by the BIR Commissioner 7. Cancellation of the passport of a person charged with a crime 8. Suspension of a bank’s operations by the Monetary Board upon a prima facie finding of liquidity problems in such bank Notice • Due process, which is a rule of fairness, requires that those who must obey a command must first know the command.

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The rule on publication of laws prior to their effectivity applies to: 1. 2.

Statutes Presidential decrees and executive orders promulgated by the President in the exercise of his legislative powers as delegated by congress or directly conferred by the Constitution

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Administrative rules and regulations, if their purpose is to enforce or implement existing law pursuant to a valid delegation.

DOES NOT apply to interpretative regulations and to those merely internal in nature.

Tañada v. Tuvera, 136 SCRA 27 “The publication of all presidential issuances of a public nature or of general applicability is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents.” Impartiality The Supreme Court has repeatedly and consistently demanded the cold neutrality of an impartial judge as the indispensable imperative of due process. To bolster that requirement, [SC] held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. (Javier v. COMELEC, 144 SCRA 194) Obviously, one side is only one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. x x x A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power. (Ynot v. IAC, 148 SCRA 659) Certainty Void for vagueness doctrine • A statute is vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. • A vague statute is unconstitutional because: 1. It violates due process for failing to accord persons fair notice of what conduct to avoid; 2. It leaves law enforcers unbridled discretion in carrying out its provisions. Overbreadth • “A governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”

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Ordinances that go beyond what is reasonably necessary to solve the problems. (Lucena Grand Central v JAC Liner, 452 SCRA 174)

SECURITY IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS SEC. 2, ART. III, 1987 CONSTITUTION The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

EQUAL PROTECTION The guarantee of equal protection simply means “that no person or class of persons shall be deprived of the same protection of the laws which is enjoyed by other persons or other classes in the same place and in like circumstance.” (Tolentino v. Board of Accountancy, 90 Phil 83) •

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It does not demand absolute equality; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. (Ichong v. Hernandez, 101 Phil 1155) It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. (People v. Cayat, 68 Phil 12)

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VALID CLASSIFICATION REQUISITES (People v. Cayat, supra) 1. Rest on substantial distinctions; 2. Germane to the purpose of the law; 3. Not limited to existing conditions only; 4. Apply equally to all members of the same class STANDARDS OF JUDICIAL REVIEW DETERMINING THE REASONABLENESS CLASSIFICATION

FOR OF

Rational Basis Test • Government need only show that the challenged classification is rationally related to serving a legitimate state interest. Strict Scrutiny Test • Requires the government to show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest. • Applies to classifications based on rights recognized as fundamental. Intermediate Scrutiny Test • Requires government to show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest. • Applies to suspect classifications

The constitutional guarantee is not a prohibition of all searches and seizures but only of unreasonable searches and seizures. It is also a guarantee against unlawful arrests and other forms of restraint on the physical liberty of the person.

General Rule: Searches and seizures are unreasonable Exception: Unless authorized by a validly issued search warrant or warrant of arrest. CONDITIONS FOR ISSUANCE OF SEARCH WARRANT 1. It must be issued upon probable cause; 2. Probable cause must be determined personally by the judge himself; 3. Judge must examine, under oath or affirmation, the complainant and such witnesses as the later may produce; and 4. the warrant issued must particularly describe the place to be searched and the persons or things to be seized. (Pasion vda. de Garcia v. Locsin, 65 Phil 689) PROCEDURE TO DETERMINE PROBABLE CAUSE TO SEARCH • Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. Such written deposition is necessary in order that the judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false. (Mata v. Bayona, 128 SCRA 388) •

It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if

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the claimed probable cause is to be established. (Roan v. Gonzales, 145 SCRA 687) PARTICULAR DESCRIPTION OF THE THINGS TO BE SEIZED A search warrant may be said to particularly describe the things to be seized: 1. when the description therein is as specific as the circumstances will ordinarily allow; 2. when the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure; or 3. when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. (Bache & Co. v. Ruiz, 37 SCRA 823) •

A general warrant infringes on the constitutional mandate requiring particular description of the things to be seized. It considered null and void. (Nolasco v. Paño, 139 SCRA 152)

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A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effort ascertain and identify the place intended and distinguish it from other places in the community.

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A designation or description that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads the police officers to it, satisfies the constitutional requirement of definiteness. (People v. Tee, 395 SCRA 419)

probable cause exists and whether it is necessary to arrest the accused in order not to frustrate the ends of justice, is left to his sound judgment or discretion. (Samulde v. Salvani, Jr., supra.) •

Personal knowledge 1. The person to be arrested must execute an overt act indicating that he had 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. RTC judges need not personally examine complainant • It does not necessarily mean that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause of the issuance of the warrants. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses.(Soliven v. Makasiar, 167 SCRA 393)

John Doe warrant A “John Doe warrant” satisfies the requirement of particularity of description when it contains a descriptio personae such as will enable the officer to identify the accused. (People v. Veloso, 48 Phil. 169)

CONDITIONS FOR ISSUANCE OF ARREST WARRANT Conditions that must concur for the issuance of the warrant of arrest: (Samulde v. Salvani, Jr, 165 SCRA 734) The investigating judge must: 1. have examined in writing and under oath the complainant and his witnesses by searching questions and answers; 2. be satisfied that a probable cause exists; and 3. that there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice. NOTE: • It is not obligatory, but merely discretionary, upon the investigating judge to issue that warrant for the arrest, even after having personally examined the complainant and his witnesses in the form of searching questions and answers, for the determination of whether

The evidence offered by the complainant and his witnesses should be based on their own personal knowledge and not on mere information or belief. Hearsay is not allowed. (Cruz, p.148)

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The judge shall personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or

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If on the basis thereof he finds no probable cause, may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause.

The judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner in the taking of evidence. However, there should be a report and necessary documents supporting a Fiscal’s bare certification. All these should be before the judge. (Lim v. Felix, 187 SCRA 292)

WARRANTLESS SEARCHES AND SEIZURES Exceptions to the requirement of a valid warrant: 1. Search incident to a lawful arrest 2. Search of a moving motor vehicle 3. Seizure of evidence in plain view

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4. 5. 6. 7.

Search in violation of customs law (customs searches) When the accused waived his rights against unreasonable searches and seizure Stop-and-frisk situations Exigent circumstances

Warrantless Search The rule that searches and seizures must be supported by a valid warrant is NOT AN ABSOLUTE RULE. EXCEPTIONS TO THE WARRANT REQUIREMENT: 1. Search incident to a lawful arrest 2. Search of moving vehicles 3. Seizure of evidence in plain view 4. Customs searches 5. Where there is a waiver of right 6. Stop and frisk situations 7. Exigent and emergency circumstances Incident to a Lawful Arrest It is a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. (Nolasco v. Paño, supra.) •

A lawful arrest must precede the search of a person and his belongings. (People v. Chua, 396 SCRA 657)

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A warrantless search incidental to a lawful arrest may be made only within the permissible area of search, or the place within the immediate control of the person being arrested.

Search of Moving Vehicles The 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. (Caballes v. CA, 373 SCRA 221) •

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Justification: 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. Mere mobility of vehicles, however, does not give the police officers unlimited discretion to conduct indiscriminate searches without warrants if made within the interior of the territory and in the absence of probable cause. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. (Caballes v. CA, supra.)

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Seizure of Evidence in Plain View Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. (Harris v. United States, 390 U.S. 234) 66 REQUISITES OF THE PLAIN VIEW DOCTRINE 1. the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; 2. the discovery of evidence in plain view is inadvertent; 3. it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. (People v. Go, 411 SCRA 81) Waiver of Right The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly.67 However, the person must know of such right an knowingly decide not to invoke it. •

No waiver is to be presumed where the person merely submits to the arresting officer in manifestation of his respect for authority or where he allows entry into his home as a sign of hospitality and politeness.

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Where implied acquiescence was not more than passive conformity given under intimidating or coercive circumstances, no consent to the illegal search or seizure can be implied. 68

Stop and Frisk situations The “stop and frisk” rule is taken from the US Supreme Court decision of Terry v. Ohio (392 U.S. 1). “Stop-and-frisk” The act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. (People v. Chua, supra.) •

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is presently dangerous to him or to others, he may conduct a limited protective search for concealed weapons. (Terry v. Ohio, supra.)

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While probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.” (Malacat v. CA, GR No. 132595)

A police checkpoint can also be the occasion for a search of a moving vehicle. 65 Bernas, p.197 Bernas, p.198 68 Cruz, p.158 66 67

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Bernas, p.195

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A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. 69

What is essential is: 1. there should be a specific charge against the alien intended to be arrested and deported; 2. that a fair hearing be conducted with the assistance of counsel, if desired; 3. that the charge be substantiated by competent evidence. (Harvey v. DefensorSantiago, supra.; Sec. 69, Revised Administrative Code)

Purpose: To allow the officer to pursue his investigation without the risk of violence. TWO-FOLD INTEREST OF “STOP AND FRISK” RULE 1. the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstance and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; 2. the more pressing interest of safety and selfpreservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.

WARRANTLESS ARREST Instances when warrantless arrest by a peace officer or private person may be valid: (Rule 113, Section 5, Rules of Court) b.

When, in his presence, the person to be arrested has committed, is actually committing, or attempting to commit an offense;

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When an offense has in fact been committed and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

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When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Administrative Warrant General Rule: The requirement of probable cause contemplates prosecutions essentially criminal in nature. •

Deportation proceedings are administrative in character. It is never construed as a punishment. It is preventive, not a penal process. It need not be conducted strictly in accordance with ordinary court proceedings. (Harvey v. Defensor-Santiago, 162 SCRA 840)

Determination of probable cause Determination of probable cause is to be made “personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.” Sec. 4, Rule 126 of the New Rules of Criminal Procedure The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. PROBABLE CAUSE ACROSS ISSUANCES The existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.70 Probable cause for an arrest or for the issuance of a warrant of arrest Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.71 Probable cause for a search warrant Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. 72 Power of Municipal Trial Judge “The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. x x x The judge must satisfy himself of the existence of probably cause before issuing a warrant or order of arrest.” (Placer v. Villanueva, 126 SCRA 463) PRELIMINARY INVESTIGATION • [It] is merely inquisitorial and is often the only means of discovering whether a person may be reasonably charged with a crime, to enable the prosecutor to Buchanan v. Vda. de Esteban, 32 Phil 363 (1915) Bernas, p.170 72 Bernas, p.170 70 71

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Bernas, p.202

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prepare his complaint or information. It may be waived expressly, or by silence, or inaction. (Pilapil v. Sandiganbayan, 221 SCRA 349) •

[It] is nothing more than the submission of the parties’ respective affidavits, counter-affidavits and evidence to buttress their separate allegations. (Cinco v. Sandiganbayan, 202 SCRA 727)

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Preliminary examination is not an essential part of due process of law. It may be conducted by the municipal judge, prior to the issuance of the warrant of arrest, either in the presence, or in the absence of the accused.

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Preliminary inquiry is made by the judge to determine probably cause for the issuance of a warrant of arrest.

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Preliminary investigation proper is made by the prosecutor to ascertain whether the offender should be held for trial or released.

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Depending on the circumstance of the case, the judge may or may not rely on the fiscal’s evaluation. (Bernas, p.181)

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The fiscal’s certification, however, does not bind the judge. If on the face of the information the judge finds no probably cause, he may disregard the fiscal’s certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probably cause. (Placer v. Villanueva, supra.)

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EXCLUSIONARY RULE Sec. 3(2), Art. III, 1987 Constitution (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Evidence obtained in violation of Art. III, Sec.2 shall be inadmissible for any purpose in any proceeding. (Stonehill v. Diokno, 20 SCRA 383) •

Seizure is limited to those items particularly described in a valid search warrant. Searching officers are without discretion regarding what articles they shall seize. Evidence seized on the occasion of such an unreasonable search and seizure is tainted and excluded for being the proverbial “fruit of a poisonous tree.” (Del Rosario v. People, G.R. No. 142295)

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To come under the exclusionary rule, however, the evidence must be obtained by government agents and not by private individuals acting on their own. 73

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A private person or entity, however, may be held liable for illegal search under Art. 32 of the New Civil Code.

Civil Action for Damages Art. 32 of the New Civil Code renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another. •

What constitutes searching questions Such questions as have tendency to show the commission of a crime and the perpetrator thereof. •

What would be searching questions would depend on what is sought to be inquired into x x x The points that are subject of inquiry may differ from case to case. (Luna v. Plaza, 26 SCRA 310)

Power of the Commissioner of Immigration The Commissioner of Immigration is also given, by legislative delegation, the power to issue warrants of arrests.

WHAT MAY BE SEIZED? Sec. 3, Rule 126 of the New Rules of Criminal Procedure Personal property to be seized. - A search warrant may be issued for the search and seizure of personal property: a. Subject of the offense; b. Stolen or embezzled and other proceeds, or fruits of the offense; or

Used or intended to be used as the means of committing an offense.

Art. 32 speaks of an officer or employee or person “directly” or “indirectly” responsible for the violation of the Constitutional rights and liberties of another. It is not the actor alone who must answer for damages under Art. 32; the person directly responsible has also to answer for the damages or injury caused to the aggrieved party. (Aberca v. Ver, 160 SCRA 590)

DRUG, ALCOHOL AND BLOOD TESTS “The Court held that Randomized Drug Testing (RDT) for students and employees does not violate the right to privacy in the Constitution. Students do not have rational expectation of privacy since they are minors and the school is in loco parentis. Employees and students in universities, on the other hand, voluntarily subject themselves to the intrusion because of their contractual relation to the company or university. But it is unconstitutional to subject criminals to RDT. Subjecting criminals to RDT would violate their right against self- incrimination.

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Bernas, p.229

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It is also unconstitutional to subject public officials whose qualifications are provided for in the Constitution (e.g. members of Congress) to RDT. Subjecting them to RDT would amount to imposing an additional qualification not provided for in the Constitution. (SJS v. Dangerous Drugs Board, 2008)

PRIVACY OF COMMUNICATION CORRESPONDENCE

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Sec. 3, Art. III, 1987 Constitution (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the Court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. PRIVATE AND PUBLIC COMMUNICATIONS Requisites of Existence of Privacy Right (Test of Reasonable Expectation Of Privacy) (a) Subjective: A person has exhibited an actual expectation of privacy; and (b) Objective: The expectation be one that society is prepared to recognize as reasonable. (Pollo v. ConstantinoDavid, 2011) What type of communication and correspondence does the provision cover? It covers letters, messages, telephone calls, telegrams, and the like. It covers both tangible and intangible things. 74 LIMITATIONS OF THE PRIVACY (INTRUSION, WHEN ALLOWED) 1. Upon lawful order of the Court 2. When public safety or order requires as otherwise prescribed by law •

When the intrusion into the privacy of communication and correspondence is made without judicial order, it would have to be based upon a non-judicial government official’s assessment that public safety and order demands such intrusion.75

RIGHT TO PRIVACY The right to privacy is not absolute

The right of privacy or "the right to be let alone," like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of a public character. Succinctly put, the right of privacy cannot be invoked to resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern (Ayer Productions Pty. Ltd. v. Capulong, G.R. No. 82380, April 29, 1988). Reasonable expectation of privacy test This test determines whether a person has a reasonable expectation of privacy and whether the expectation has been violated. In Ople v. Torres, we enunciated that “the reasonableness of a person’s expectation of privacy depends on a two-part test: 1. Whether, by his conduct, the individual has exhibited an expectation of privacy; and 2. This expectation is one that society recognizes as reasonable.” Customs, community norms, and practices may, therefore, limit or extend an individual’s “reasonable expectation of privacy.” Hence, the reasonableness of a person’s expectation of privacy must be determined on a case-tocase basis since it depends on the factual circumstances surrounding the case (Ople v. Torres, G.R. No. 127685, July 23, 1998). Right to privacy in social media A Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post or profile detail should not be denied the informational privacy right which necessarily accompanies said choice. Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads a photo or any personal information to his or her Facebook page and sets its privacy level at “Only Me” or a custom list so that only the user or a chosen few can view it, said photo would still be deemed public by the courts as if the user never chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their function but it would also disregard the very intention of the user to keep said photo or information within the confines of his or her private space (Vivares v. St. Theresa’s College, G.R. No. 202666, Sept. 29, 2014). Prohibited Acts under the Anti-Wire Tapping Law (RA 4200) (2009 Bar)

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Bernas, p.218, Cruz, p.165 Bernas, p.220

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1. To tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described by any person, not being authorized by all the parties to any private communication or spoken word 2. To knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or 3. To replay the same for any other person or persons; or 4. To communicate the contents thereof, either verbally or in writing, or 5. To furnish transcriptions thereof, whether complete or partial, to any other person. NOTE: The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200 (Ramirez v. CA, G.R. No. 93833 Sept. 28, 1995). Under Sec. 3 of RA 4200, a peace officer, who is authorized by a written order of the Court, may execute any of the acts declared to be unlawful in Sec. 1 and Sec. 2 of the said law in cases involving the crimes of: 1. Treason 2. Espionage 3. Provoking war and disloyalty in case of war 4. Piracy and mutiny in the high seas 5. Rebellion (conspiracy and proposal and inciting to commit included) 6. Sedition (conspiracy, inciting included) 7. Kidnapping 8. Violations of CA 616 (punishing espionage and other offenses against national security) The use of telephone extension is not a violation of RA 4200 (Anti-WireTapping Law). The use of a telephone extension to overhear a private conversation is neither among those devices, nor considered as a similar device, prohibited under the law (Gaanan v. IAC, G.R. No.L-69809 Oct. 16, 1986). NOTE: Anti-Wiretapping Act only protects letters, messages, telephone calls, telegrams and the like. WRIT OF HABEAS DATA A remedy available to any person whose right to privacy in life, liberty or 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

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party (Sec. 1, The Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008). Reliefs available in the petition for issuance of writ of habeas data 1. Updating, rectification, suppression or destruction of the database or information or files kept by the respondent; 2. In case of threats of the unlawful act, the relief may include a prayer for an order enjoining the act complained of. 3. A general prayer for other reliefs that are just and equitable under the circumstances is also allowed. When Writ of Habeas Data is not applicable A writ of habeas data may not be issued to protect purely property and commercial concerns nor when the grounds invoked in support of the petitions therefore are vague or doubtful. NOTE: It bears reiteration that like the writ of amparo, habeas data was conceived as a response, Who May File a petition for the writ of habeas data Any person whose right to privacy in life, liberty or 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 (Sec. 1, The Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008). However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: a. Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or b. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph (Sec. 2, The Rule on the Writ of Habeas Data, A. M. No. 08-1-16-SC, Jan. 22, 2008). The writ of habeas data is not confined only to extralegal killings and enforced disappearances Habeas data, to stress, was designed “to safeguard individual freedom from abuse in the information age.” As such, it is erroneous to limit its applicability to extralegal killings and enforced disappearances only. The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right to privacy, more specifically the right to informational privacy. The remedies against the violation of such right can include the updating, rectification, suppression or destruction of the database or

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information or files in possession or in control of respondents.

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Primarily protects speech which political, social or religious ideas.

Right to Informational Privacy

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The freedom to speak includes the right to be silent. This freedom also includes the right to an audience.

It is usually defined as the right of individuals to control information about themselves.

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The right to listen also includes the right not to listen.

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Commercial speech does not enjoy the same degree of protection as the “core” speech (i.e. political, social or religious ideas). 77

With the availability of numerous avenues for information gathering and data sharing nowadays, not to mention each system’s inherent vulnerability to attacks and intrusions, there is more reason that every individual’s right to control said flow of information should be protected and that each individual should have at least a reasonable expectation of privacy in cyberspace. Several commentators regarding privacy and social networking sites, however, all agree that given the millions of online social network users, “in this Social Networking environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

FREEDOM OF EXPRESSION Sec. 4, Art. III, 1987 Constitution No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. SCOPE 1. 2. 3. 4. 5. 6. 7. 8.

Freedom of speech Freedom of the press Freedom of assembly Freedom of petition Freedom of religion Right of association Right to access to information on matters of public concern Right not to be detained solely by reason of one’s political beliefs and aspirations

A. FREEDOM OF SPEECH AND PRESS Speech, expression, and press include every form of expression whether oral, written, tape or disc recorded. It also includes movies as well as what is referred to as symbolic speech such as the wearing of an armband as a symbol of protest. Peaceful picket has also been included within the meaning of speech. •

Commercial speech Communication which “no commercial transaction.” 78

proposes a

Exceptions 1. Government has substantial interest to protect; 2. The regulation directly advances that interest; 3. It is not more extensive than is necessary to protect their interest. PRIVATE VERSUS GOVERNMENT SPEECH Parliamentary immunity guarantees the members the freedom of expression without fear of being made responsible in criminal or civil actions before courts or forum outside of Congress. But this does not protect them from responsibility from the legislative body. The members may nevertheless be questioned in Congress itself. “For unparliamentary conduct, members of the Congress have been, or could be censured, committed to prison, even expelled by the votes of their colleagues.” (Osmeña v. Pendatun, 1960) “But a libelous letter of a congressman, published on a newspaper, does not fall under “speech or debate” protected by the Constitution. Speech or debate refers to speeches/statements/votes made within Congress while it is in session, or duly authorized actions of congressmen in the discharge of their duties.” (Jimenez v. Cabangbang, 1966) Heckler’s veto – an attempt to limit unpopular speech. For example, an unpopular group wants to hold a rally and asks for a permit. The government is not allowed to refuse the permit based upon the beliefs of the applicants. But the government can deny the permit, reasoning that it is not because the government disapproves of the group's message, it is just afraid that so many people will

Freedom of expression is available only insofar as it is exercised for the discussion of matters affecting the public interest. Purely private matters do not come within the guaranty. 76

Cruz, p.199

than

General rule: To enjoy protection from curtailment, commercial speech: 1. Must not be false and misleading (truthful) 2. Should not propose an illegal transaction (lawful)

77 76

more

communicates

78

Bernas Reviewer, p.68 Bernas Reviwer, p.68

CONSTITUTIONAL LAW 2

be outraged that there might be violent protests. Under the Free Speech Clause of Sec. 4, Art III, the government may not silence speech based on the reaction (or anticipated reaction) of a hostile audience, unless there is a "clear and present danger" of grave and imminent harm, which is not easy to prove. Political Speech Political speech is one of the most important expressions protected by the Fundamental Law. “x x x and have to be protected at all costs for the sake of democracy." (GMA Network v. COMELEC, G.R. No. 205357, Sept. 2, 2014). Political speech is motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the contours of power whether through the election of representatives in a republican government or the revision of the basic text of the Constitution. We evaluate restrictions on freedom of expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the quality of deliberation in our democratic society (Diocese of Bacolod v. COMELEC, G. R. No. 205728, January 21, 2015). ELEMENTS OF FREEDOM OF EXPRESSION 1. Freedom from previous restraint or censorship 2. Freedom from subsequent punishment FORMS OF ABRIDGMENT 1. Prior restraint 2. Subsequent punishment

POLITICAL LAW

Forms of prior restraint includes (but is not limited to): licensing and permit as prerequisite to publication; censorship; judicial prior restraint; license taxes; flat license fees

•

LIMITATIONS UPON THE IMMUNITY FROM PREVIOUS RESTRAINT OF THE PRESS 1. When a nation is at war 2. Obscene publications 3. Incitements to acts of violence and the overthrow of force of orderly government (Near v. Minnesota, 283 U.S. 697) •

Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. (INC v. CA, 259 SCRA 529)

•

Any system of prior restraints of expression come to the Court bearing a heavy presumption against its constitutional validity. (New York Times v. United States, 403 U.S. 713)

Subsequent Punishment The State imposes punishment after the dissemination or publication. •

Basis: Freedom of speech includes freedom after the speech.79

•

Tests 1. 2. 3.

Limitations on freedom of expression (2014 Bar) It should be exercised within the bounds of laws enacted for the promotion of social interests and the protection of other equally important individual rights such as: 1. Laws against obscenity, libel and slander (contrary to public policy) 2. Right to privacy of an individual 3. Right of state/government to be protected from seditious attacks 4. Legislative immunities 5. Fraudulent matters 6. Advocacy of imminent lawless conducts 7. Fighting words 8. Guarantee implies only the right to reach a willing audience but not the right to compel others to listen, see or read

CONTENT NEUTRAL and CONTENT BASED REGULATION CONTENT NETURAL REGULATION

CONTENT BASED RESTRAINT

Merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards.

The restriction is based on the subject matter of the utterance or speech. The cast of the restriction determines the test by which the challenged act is assailed with.

No presumption of unconstitutionality

There is presumption of unconstitutionality NOTE: The burden of proof to overcome the presumption of unconstitutionality is with the government

Prior Restraint Official government restrictions on the press or other forms of expression in advance of actual publication or dissemination. •

The prohibition of “prior restraint” is not absolute.

Dangerous Tendency Clear and Present Danger Balancing of Interests

79

Cruz, p.212

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CONTENT NETURAL REGULATION

POLITICAL LAW

CONTENT BASED RESTRAINT

Test to be used: Intermediate Approach

Clear and Present Danger

If unpaid, the business or activity does not become illegal.

If unpaid, the business or activity itself can become illegal

INTERMEDIATE APPROACH TEST Used when the speech restraints take the form of a contentneutral regulation, only a substantial governmental interest is required for its validity. Because regulations of this type are not designed to suppress any particular message, 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. The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression (Chavez v. Gonzales, G.R. No. 168338, Feb. 15, 2008). NOTE: A law is narrowly-tailored if it is for the advancement of state’s interest, if it does not restrict a significant amount of speech that does not implicate the government interest and if it is the least restrictive alternative available to serve such interest (Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pennsylvania L. Rev. 2417, 1997).

is a question of proximity and degree. (Schenk v. United States, 249 U.S. 97) •

Means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. (Cabansag v. Fernandez, supra.)

•

The danger must not only be clear but also present. (Gonzalez v. COMELEC, G.R. No. L-27833)

Clear A causal connection with the danger of the substantially evil arising from the utterance questioned. Present Refers to a time element; the danger must not only be probable but very likely inevitable (used to be identified with imminent and immediate danger). BALANCING OF INTERESTS TEST • When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. (American Communications Assocation v. Douds, 339 U.S. 282) Unprotected Speech Both historically and doctrinally, freedom of expression has never been understood to be an absolute right.81 •

DANGEROUS TENDENCY RULE Speech may be curtailed or punished when it creates a dangerous tendency which the State has the right to prevent. •

•

•

For speech to be punishable, all it requires it that there be a rational connection between the speech and the evil apprehended. If the words uttered create a dangerous tendency which the State has a right to prevent, then such words are punishable. (Cabansag v. Fernandez, 102 Phil. 152) It is not necessary to create the evil; a mere tendency towards the evil was enough.80

CLEAR AND PRESENT DANGER RULE The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has a right to prevent. It

Libel, as defined in Art. 353 of the Revised Penal Code • “A libel is a public and malicious imputation of a crime, or of a vice or a defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.” •

There is libel when the imputation is public and malicious.

•

Publicity means “making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written.”82

81 80

Cruz, p.220

There are certain and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words - those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. (Chaplinsky v. New Hampshire, 315 US 568)

82

Bernas, p.283 Bernas, p.284

CONSTITUTIONAL LAW 2

POLITICAL LAW

•

The evil which the law on libel seeks to punish is its tendency to injure the person defamed, regardless of its effect upon the public. (People v. del Rosario, 86 Phil. 163)

•

If speech is not malicious even if defamatory, it is privileged. The rule on privileged communication is found in Article. 354(2), RPC.83 The constitutional guarantees require a rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was must with actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not. (NY Times v. Sullivan, 376 US 254)

•

Obscenity •

Obscenity is not within the area of protected speech or press. Obscene material is material which deals with sex in a manner appealing to prurient interest. (Roth v. United States, 354 US 476)

TEST FOR OBSCENITY, AS ESTABLISHED IN MILLER V. CALIFORNIA (413 US 15) 1. Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole appeals to the prurient interest; 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. •

“Community standards” x x x does not mean that there are, or should or can be, fixed uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive. These are essentially questions of fact. (Miller v. California, supra.)

B. FREEDOM PETITION

OF

ASSEMBLY

AND

The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental. The standards for allowable impairment of speech and press are also those for assembly and petition. 84 •

83 84

The power of the mayor does not have the power to refuse to grant the permit, but only the discretion in issuing the permit, to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held. (Primicias v. Fugoso, 80 Phil. 71)

Id. Bernas, p.311

•

The mayor possesses reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order. (Navarro v. Villegas, 31 SCRA 721)

•

The primacy of freedom of expression, of peaceful assembly and of petition for redress of grievances over property rights has been sustained. (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills, Inc., 51 SCRA 189)

RULES ON ASSEMBLY AND PETITION (Reyes v. Bagatsing, G.R. No. L-65366) 1. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. 2.

Application should filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached.

3.

The decision of the public official, whether favorable or adverse, must be transmitted to the applicants at the earliest opportunity.

BP 880 - THE PUBLIC ASSEMBLY ACT OF 1985 Public assembly Any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of: 1. presenting a lawful cause; or 2. expressing an opinion to the general public on any particular issue; or 3. protesting or influencing any state of affairs whether political, economic or social; or 4. petitioning the government for redress of grievances. Permit shall be required for any person or persons to organized and hold a public assembly in a public place. NO PERMIT SHALL BE REQUIRED IF: 1. Public assembly shall be done or made in a freedom park duly established by law or ordinance 2. Private property, in which case only the consent of the owner or the one entitled to its legal possession is required,

CONSTITUTIONAL LAW 2

3.

POLITICAL LAW

Campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said institution.

APPLICATION REQUIREMENTS 1. Application shall be in writing and shall include: a. names of the leaders or organizers; b. purpose of such public assembly; c. date, time and duration; d. place or streets to be used; e. probably number of persons participating; f. transport and public address systems to be used 2. Must incorporate duties and responsibilities of applicant 3. Filed at least five (5) working days before the scheduled public assembly with the office of the city or municipal mayor in whose jurisdiction the activity is to be held 4. Upon receipt of the application, office of the municipal or city mayor shall post the application at a conspicuous place in the city or municipal building. DUTIES OF THE MAYOR 1. Issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. 2. Act on the application within two (2) working days from the date of filing, failing which, the permit shall be deemed granted. 3. If he is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. RESPONSIBILITIES OF LEADERS AND ORGANIZERS 1. Take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit; 2. Inform the participants of their responsibility under the permit; 3. To police the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly; 4. To confer with local government officials concerned and law enforcers tot he end that the public assembly may be held peacefully; 5. To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and 6. To take positive steps that demonstrators do not molest any person or do any act unduly interfering

with the rights of other persons not participating in the public assembly.

FREEDOM OF RELIGION Sec. 5, Art. III, 1987 Constitution No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed. No religious test shall be required fro the exercise of civil or political right. Religion A profession of faith to an active power that binds and elevates man to his Creator. (Aglipay v. Ruiz, 64 Phil. 201) Principal parts of Section 5: 1. Non-establishment clause 2. Free exercise clause

A. NON-ESTABLISHMENT CLAUSE THE STATE CANNOT DO THE FOLLOWING: 1. Setup a church;

• •

2.

Pass laws which aid one religion, aid all religion, or prefer one religion over another;

3.

Force nor influence a person to go to or remain away from church against his will;

4.

Force him to profess a belief or disbelief in any religion;

5.

Punish a person for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance;

6.

Levy tax in any amount to support any religious activity or institution to teach or practice religion;

7.

Openly or secretly participate in the affairs of any religious organization or group and vice-versa. (Everson v. Board of Educators, 330 U.S. 1)

What the non-establishment calls for is government neutrality in religious matters. The evils against which the Establishment Clause was intended to afford protection: 1. sponsorship, 2. financial support, and 3. active involvement of the sovereign in religious activity.

Constitutionally created exceptions to the nonestablishment clause

CONSTITUTIONAL LAW 2

1. 2. 3.

Art. 6, Sec.29 (prohibition on appropriation of public money or property for the use, benefit or support of any religion) Art. 6, Sec. 28 (3) (exemption from taxation of properties actually, directly and exclusively used for religious purposes Art. 14, Sect. 3 (3) (optional religious instruction in public elementary and high schools) NOTE: Religious instructions in public schools: • At the option of parents/guardians expressed in writing • Within the regular class hours by instructors designated or approved by religious authorities of the religion to which the children belong • Without additional costs to the government

4. 5.

Art. 14, Sec. 4 (2) (citizenship requirement of ownership of educational institutions, except those established by religious groups and mission boards) Art. 6, Sec. 29 (2) (appropriation allowed where ecclesiastic is employed in armed forces, in a penal institution, or in a government-owned orphanage or leprosarium)

POLITICAL LAW

1. 2.

FREEDOM TO BELIEVE It is absolute as long as the belief is confined within the realm of thought.85 •

The absoluteness of the freedom to believe carries with it the corollary that the government, while it may look into the good faith of a person, cannot inquire into a person’s religious pretensions.86

•

Man’s relation to his God was made no concern of the State. He was granted the right to worship as he pleased and to answer to no man for the verity of his religious views. (US v. Ballard, 322 US 78)

FREEDOM TO ACT ON ONE’S BELIEF Subject to regulation where the belief is translated into external acts that affect the public welfare. 87 •

The moment belief flows over into action, it becomes subject to government regulation.

•

The Constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. (American Bible Society v. City of Manila, 101 Phil. 386)

•

Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. (Victoriano v. Elizalde Rope Workers Union, 49 SCRA 54)

•

But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Victoriano v. Elizalde Rope Workers Union, supra.)

Lemon Test To determine if a law violates the Establishment Clause: 1. The statute must have a secular legislative purpose; 2. Its principal or primary effect must be one that neither advances nor inhibits religion; 3. The statute must not foster an excessive government entanglement with religion. (Lemon v. Kurtzman, 403 U.S. 601) •

The Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. (Aglipay v. Ruiz, 64 Phil 201)

•

Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. (Garces v. Estenzo, 104 SCRA 510)

NOTE: A violation of the non-establishment clause need not involve compulsion.

Freedom to believe Freedom to act on one’s belief

NOTE: Every violation of the free exercise clause involves compulsion. TESTS Benevolent Neutrality Approach Benevolent neutrality is an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent

B. FREE EXERCISE CLAUSE Cruz, p.187 Bernas, p.332 87 Cruz, p.187 85

Two-fold aspect:

86

CONSTITUTIONAL LAW 2

neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses (Estrada v. Escritor, A.M. No. P-02-1651, Aug. 4, 2003). Clear and Present Danger Test The test can be applied with regard to the Freedom of Religion when what is involved is religious speech as this is often used in cases of freedom of expression.

POLITICAL LAW

1. The person is opposed to war in any form 2. He must show that this opposition is based upon religious training and belief 3. And he must show that this objection is sincere (Clay v. United States, 403 U.S.698 (1971).

LIBERTY OF ABODE AND FREEDOM OF MOVEMENT Sec. 6, Art. III, 1987 Constitution The liberty of abode and of changing 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 be impaired except in the interest of national security, public safety, or public health, as may be provided by law. • •

Compelling State Interest Test (2013 Bar) Used to determine if the interests of the State are compelling enough to justify infringement of religious freedom. It involves a three-step process: 1. Has the statute or government action created a burden on the free exercise of religion? – Courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief since the free exercise clause prohibits inquiring about its truth. 2. Is there a sufficiently compelling state interest to justify this infringement of religious liberty? – In this step, the government has to establish that its purposes are legitimate for the State and that they are compelling. 3. Has the State in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the State? – The analysis requires the State to show that the means in which it is achieving its legitimate State objective is the least intrusive means, or it has chosen a way to achieve its legitimate State end that imposes as little as possible intrusion on religious beliefs. NOTE: The Compelling State Interest test is used in cases involving purely conduct based on religious belief.

A right granted to citizens of the Philippines. While the right to travel of citizens covers both exit and entry into the country, aliens cannot claim the same right.

LIMITATIONS Freedom of movement includes two rights: (1) Liberty of abode a. It may be impaired only upon lawful order of the court b. The court itself is to be guided by the limits prescribed by law Example: A condition imposed by the court in connection with the grant of bail. (2) Liberty of travel a. May be impaired even without a lawful order of the court b. But the appropriate executive officer (who may impair this right) is not granted arbitrary discretion to impose limitations c. He can only do so on the basis of “national security, public safety, or public health” and “as may be provided by law” (e.g. Human Security Act, quarantine) d. Impairment of this liberty is subject to judicial review •

The liberty of abode may be impaired only upon lawful of the court, and the court is to be guided by the limits prescribed by law.88

Conscientious objector

•

An "individual who has claimed the right to refuse to perform military service on the grounds of freedom of thought, conscience, and/or religion (International Covenant on Civil and Political Rights, Art. 18).

The liberty of travel may be impaired even without court order BUT limits may be imposed only on the basis of “national security, public safety, or public health” and “as may be provided by law.89

•

The city mayor or chief of police has no right to force citizens of the Philippines to change their domicile from one city to another locality. Philippine penal law

Conscientious Objector Test

Requisites for one to be considered a conscientious objector 88 89

Bernas, p.376 Bernas p.376

CONSTITUTIONAL LAW 2

specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence. (Villavicencio v. Lukban, 39 Phil. 778) •

The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel. (Marcos v. Manglapus, 177 SCRA 668)

Watch-list order (WLO) Order issued to prevent an individual from travelling. It may be issued by the Secretary of Justice motu proprio or upon request, under any of the following circumstances: 1. Against the accused, irrespective of nationality, in criminal cases pending trial before the RTCs or before courts below the RTCs. 2. Against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, petition for review, or motion for reconsideration before the DOJ or any of its provincial or city prosecution offices. The Secretary of Justice may likewise issue a WLO against any person, either on his own, or upon the request of any government agency, including commissions, task forces or similar entities created by the Office of the President, pursuant to the "Anti-Trafficking in Persons Act of 2003" (R.A. No. 9208) and/or in connection with any investigation being conducted by it, or in the interest of national security, public safety or public health (Sec. 2, DOJ Circ. 41, s.2010). NOTE: A WLO is good for 60 days (Sec. 4, DOJ Circ. 41, and s.2010). The Watch List Order may be lifted or cancelled under any of the following grounds: 1. When the validity period of the WLO has already expired; 2. When the accused subject of the WLO has been allowed by the court to leave the country during the pendency of the case, or has been acquitted of the charge; 3. When the preliminary investigation is terminated, or when the petition for review, or motion for reconsideration has been denied and/or dismissed. Hold Departure Order (HDO) An order issued to prevent an individual from travelling. It may be issued by the Secretary of Justice motu proprio or upon request, under any of the following circumstances: 1. Against the accused, irrespective of nationality, in criminal cases falling within the jurisdiction of courts below the Regional Trial Courts (RTCs):

POLITICAL LAW

i. If the case against the accused is pending trial, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; and (b) a Certification from the Clerk of Court concerned that criminal case is still pending. ii. If the accused has jumped bail or has become a fugitive from justice, the application under oath of an interested party must be supported by (a) a certified true copy of the complaint or information; (b) a certified true copy of the warrant/order of arrest; and (c) a Certification from the Clerk of Court concerned that the warrant/order of arrest was returned unserved by the peace officer to whom the same was delivered for service. 2. Against the alien whose presence is required either as a defendant, respondent, or witness in a civil or labor case pending litigation, or any case before a quasi-judicial or an administrative agency of the government. The application under oath of an interested party must be supported by a) a certified true copy of the subpoena or summons issued against the alien; and b) a certified true copy complaint in civil, labor or administrative case where the presence of the alien is required.” The Secretary may likewise issue an HDO against any person, either on his own, or upon the request by the Head of a Department of the Government, the head or a constitutional body or commission, the Chief Justice of the Supreme Court for the Judiciary, the Senate President or the House Speaker for the Legislature, when the adverse party is the Government or any of its agencies or instrumentalities, or in the interest of national security, public safety or public health.” (Sec. 1, DOJ Circ. 41, s.2010). NOTE: A HDO is valid for 5 years from issuance. The Hold Departure Order can be lifted or cancelled as follows: 1. When the validity period of the HDO has already expired; 2. When the accused subject of the HDO has been allowed to leave the country during the pendency of the case, or has been acquitted of the charge, or the case in which the warrant/order of arrest was issued has been dismissed or the warrant/order of arrest has been recalled; 3. When the civil or labor case or case before an administrative agency of the government wherein the presence of the alien subject of the HDO/WLO has been dismissed by the court or by appropriate government agency, or the alien has been discharged as a witness therein, or the alien has been allowed to leave the country.

CONSTITUTIONAL LAW 2

POLITICAL LAW

Note: A watch-list order doesn’t totally bar a person from travelling. A person listed in the WLO must obtain a clearance to be able to travel. In contrast, a hold-departure order totally prevents a person from traveling

2. documents and papers pertaining to official acts, transactions and decisions; and 3. government research data used in formulating policies. (Section 7, Article 3, 1987 Constitution).

Return to one’s country

NOTE: The right only affords access to records, documents and papers, which means the opportunity to inspect and copy them at his expense. The exercise is also subject to reasonable regulations to protect the integrity of public records and to minimize disruption of government operations.

The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel. Nevertheless, the right to return may be considered as a generally accepted principle of International law, and under the Constitution, is part of the law of the land. However, it is distinct and separate from the right to travel and enjoys a different protection under the Int’l Covenant of Civil and Political Rights (Marcos v. Manglapus, G.R. No. 88211, Sept. 15, 1989 & Oct. 27, 1989).

RIGHT TO INFORMATION Sec. 7, Art. III, 1987 Constitution The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. •

Section 7 guarantees only one general right: the right to information on matters of public concern. It is both the purpose and the limit of the right of access to public documents.

•

The right to information and access to official records are subject to such limitations as may be provided by law.

•

While access to official records may not be prohibited, it may be regulated. 90

•

The right to information is not absolute. It is limited to “matters of public concern,” and is further “subject to such limitations as may be provided by law. (Valmonte v. Belmonte, Jr., 170 SCRA 256)

LIMITATIONS ON THE RIGHT TO INFORMATION 1. National security matters 2. Trade secrets and banking transactions 3. Criminal matters 4. Other confidential matters (Chavez v. PCGG, 299 SCRA 744) Three categories of information: 1. official records;

90

Bernas, p.381

Publication of regulations Publication is necessary to apprise the public of the contents of penal regulations and make the said penalties binding on the persons affected thereby (Pesigan v. Angeles G.R. No. L6427, April 30, 1984). National Security Matters There is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. Trade secrets and banking transactions Trade or industrial secrets (pursuant to the Intellectual Property Code and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act) are exempted from compulsory disclosure. Criminal Matters Law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution. Other confidential Information Prohibition of public officials and employees from using or divulging “confidential or classified information officially known to them by reason of their office and not made available to the public. Also, diplomatic correspondence, closed door cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the SC. Public Concern Like public interest, it eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. (Legaspi v. Civil Service Commission, 150 SCRA 530) Government contract negotiations Information on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going,

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there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition.

The right to strike is not included in the right to form unions or freedom of assembly by government employees. Their employment is governed by law. It is the Congress and administrative agencies which dictate the terms and conditions of their employment. The same is fixed by law and circulars and thus not subject to any collective bargaining agreement.

The commissioners of the 1986 Constitutional Commission understood that the right to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects.

Pursuant to Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government Employees to Self-Organization, the terms and conditions of employment in the Government, including any of its instrumentalities, political subdivision and government owned and controlled corporations with original charters, are governed by law and employees therein shall not strike for the purpose of securing changes thereof (SSS Employees Association v. CA, GR. No. 85279, July 28, 1989). The only available remedy for them is to lobby for better terms of employment with Congress. The right to unionize is an economic and labor right while the right to association in general is a civil-political right.

RIGHT OF ASSOCIATION Sec. 8, Art. III, 1987 Constitution The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

EMINENT DOMAIN COMPENSATION

AND

JUST

•

The right is recognized as belonging to people whether employed or unemployed, and whether employed in the government or in the private sector.

Sec. 9, Art. III, 1987 Constitution Private property shall not be taken for public use without just compensation.

•

The provision explicitly recognizes that the right to form associations includes the right to unionize.

•

•

The right to join a union includes the right to abstain from joining any union. (Victoriano v Elizalde Rope Workers Union, supra.)

It is the power of the State to forcibly take private property for public use upon payment of just compensation. It is a power inherent in sovereignty.

•

The right of eminent domain is usually understood to be the ultimate right of the sovereign power to appropriate, not only the public but the private property of all citizens within the territorial sovereignty, to public purpose.

•

Also called the power of expropriation, eminent domain is described as “the highest and most exact idea of property remaining in the government” that may be acquired for some public purpose through a method “in the nature of a compulsory sale to the State.” (Black’s law dictionary, 4th ed., 616)

•

There is no question that the Constitution recognizes the right of government employees to organize. Jurisprudence, however, provides that government employees do not have a constitutional right to strike. (Manila Public School Teachers Association v. Sec. of Education, 200 SCRA 323)

Freedom of association (2000 Bar) The right to form associations shall not be impaired without due process of law. It is therefore an aspect of the general right of liberty. More specifically, it is an aspect of freedom of contract; and in so far as associations may have for their object the advancement of beliefs and ideas, freedom of association is an aspect of freedom of expression and of belief. NOTE: Freedom of association includes the freedom not to associate, or, if one is already a member, to disaffiliate from the association.

WHO MAY EXERCISE? Power of eminent domain is lodged primarily in the national legislature, but its exercise may be validly delegate to other governmental entities.91 Under existing laws, the following may exercise the power of expropriation: 1. The Congress 2. The President of the Philippines 3. The various local legislative bodies 91

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Certain public corporations, like the Land Authority and the National Housing Authority Quasi-public corporations like the Philippine National Railways, the Philippine Long Distance Telephone Co. and the MERALCO.

the broader notion of indirect public benefit or advantage. Public use as traditionally understood as “actual use by the public” has already been abandoned. 5. Just Compensation It is described as the full and fair equivalent of the property taken from the private owner by the expropriator.

REQUISITES OF POWER OF EMINENT DOMAIN 1.

Necessity of Exercise Improvement for public use

2.

Private property Anything that can come under the dominion of man is subject to expropriation. • It may be real, personal, tangible, intangible. Except money and choses in action (personal right not reduced into possession but recoverable by a lawful suit, a right to demand or recover a debt, demand or damages on a cause of action ex contractu or for a tort or omission of duty.

3.

•

May be franchise since this is a property right and may therefore be expropriated.

•

May be property already used for public use provided it is done directly by the Legislature as specific grant by authority to the delegate.

Taking This imports a physical dispossession of the owner A trespass without actual eviction of the owner.

REQUISITES OF TAKING EMINENT DOMAIN 92

IN

THE

POWER

Determination of just compensation is a judicial function. (National Power Corporation v. Sps. Florimon v. Lleto, et al., 2012) Findings of court appointed commissioners regarding the determination of just compensation are not binding on courts. (Republic v. Santos, 141 SCRA 30; Republic (MECS) v. IAC, 185 SCRA 572) (1) The court may substitute its own estimate of the value of the property only for valid reasons: the commissioners have applied illegal principles to the evidence submitted to them; (2) They have disregarded a clear preponderance of evidence; or (3) Where the amount allowed is either grossly inadequate or excessive. (National Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007) When determined General rule: At the time of the filing of the case Exception: If the value of the property increased because of the use to which the expropriator has put it, the value is that of the time of the taking. (NAPOCOR v. CA, 1996) Legal interest: 6%, time when payment is due to actual payment

OF

6. 7. 8.

The expropriator must enter private property. The entry must be for more than a momentary period. The entry must be under warrant or color of legal authority. 9. The property must be devoted to public use or otherwise informally appropriated or injuriously affected. 10. The utilization of the property for public use must be in such a way as to oust the owner and deprive him of beneficial enjoyment of thje property.

EFFECT OF DELAY Just compensation means not only the correct amount to be paid to the owner of the land but also payment within a reasonable time from its taking (Eslaban v. De Onorio, G.R. No. 146062, June 28, 2001)

4. Public use Any use directly available to the general public as a matter of right and not merely of forbearance or accommodation. EXPANSIVE CONCEPT OF “PUBLIC USE” Public use as a requirement for the valid exercise of the power of eminent domain is now synonymous with public interest, public benefit, public welfare and public convenience. It includes 92

Republic v. Castellvi, 58 SCRA 336

General rule on delay of payment: For nonpayment, the remedy is the demand of payment of the fair market value of the property and not the recovery of possession of the expropriated lots. (Republic of the Philippines v. Court of Appeals, G.R. No. 146587, July 2, 2002; Reyes v. National Housing Authority, G.R. No. 147511, January 29, 2003) •

The word “JUST” is used to intensify the meaning of the word “COMPENSATION,” to convey the idea that the

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•

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equivalent to be rendered for the property taken shall be real, substantial, full, ample.

police power, it will prevail over the contract. 96 Or exercise of power of eminent domain and taxation.

Among the factors to be considered in arriving at the fair market value (FMV) of the property: 11. Cost of acquisition 12. Current value of like properties 13. Actual or potential uses 14. And, in lands, their size, shape or location and the tax declarations.

The law impairs the obligation of contracts if

Title to the property shall not be transferred until after actual payment of just compensation is made to the owner.93

NOTE: Mere technical change which does not change the substance of the contract, and which still leaves an efficacious remedy for enforcement does NOT impair the obligation of contracts. A valid exercise of police power is superior to obligation of contracts.

If the expropriator (government) does not use the property for a public purpose, the property reverts to the owner in fee simple. (Heirs of Moreno v. Mactan-Cebu International Airport, 2005)

CONTRACT CLAUSE Sec. 10, Art. III, 1987 Constitution No law impairing the obligation of contracts shall be passed. Purpose To safeguard the integrity of valid contractual agreements against unwarranted interference by the State. Contract Any lawful agreement on property or property rights, whether real or personal, tangible or intangible. • Agreement may be executed or executor • Parties may be private persons only, natural or artificial, or private persons on the one hand and the government or its agencies on the other hand. Law (as used in this Article) • Includes statutes enacted by the national legislature, executive orders and administrative regulations promulgated under a valid delegation of power, and municipal ordinance passed by local legislative bodies. It does not include judicial decisions or adjudications made by administrative bodies in the exercise of their quasi-judicial powers. 94 Impairment Anything that diminishes the efficacy of the contract. 95 General rule: Non-Impairment of Contracts Exception: A contract valid at the time of its execution may be legally modified or even completely invalidated by a subsequent law. IF THE LAW is a proper exercise of the Visayan Refining Co. V. Camus, 40 Phil. 550 Constitutional Law, Cruz, 2007 edition 95 Clements v. Nolting, 42 Phil. 702

1. It changes the terms and conditions of a legal contract either as to the time or mode of performance 2. It imposes new conditions or dispenses with those expressed if it authorizes for its satisfaction something different from that provided in its terms

Applicability of the provision This constitutional provision is applicable only if the obligation of contract is impaired by legislative act (statute, ordinance, etc.). The act need not be by a legislative office; but it should be legislative in nature. Furthermore, the impairment must be substantial (Philippine Rural Electric Cooperatives Assoc. v. DILG Secretary, G.R. 143076, June 10, 2003). Inapplicability of the provision 1. Franchises, privileges, licenses, etc. NOTE: These are subject to amendment, alteration or repeal by Congress when the common good so requires. 2. There is neither public interest involved nor a law that supports the claim. NOTE: It can only be invoked if it is against the government or when the government intervenes in contract between the parties (Pacific Wide Realty and Development Corp. v Puerto Azul Land, Inc., G.R. No. 180893, Nov. 25, 2009). Mutuality of contracts General Rule: Valid contracts should be respected by the legislature and not tampered with by subsequent laws that will change the intention of the parties or modify their rights and obligations. NOTE: The will of the parties to a contract must prevail. A later law which enlarges, abridges, or in any manner changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive effect without violating the constitutional prohibition against impairment of contracts (Sangalang v. IAC, G.R. No. 71169, Dec. 22, 1988).

93 94

96

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the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

LEGAL ASSISTANCE AND FREE ACCESS TO COURTS Sec. 11, Art. III, 1987 Constitution Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of property. •

•

The courts of justice should be as available to the pauper as to the affluent in the protection of their respective rights.97 The Integrated Bar of the Philippines (IBP) provides deserving indigents with free legal aid, including representation in court, and similar services are available from the Department of Justice to litigants who cannot afford retained counsel, like the accused in a criminal case who can ask for the assistance of counsel de oficio.

Indigent persons Persons who have no property or sources of income sufficient for their support aside from their own labor through self-supporting when able to work and in employment.98 Those protected include servants and labourers.99

low paid employees, domestic

Republic Act 6034 (An Act Providing Transportation and Other Allowances for Indigent Litigants), has defined the term "indigent" to refer to a person "who has no visible means of income or whose income is insufficient for the subsistence of his family." Even on the assumption that petitioner owns property, he may still be an indigent considering his sworn statement that he had no income. Under the standard set forth in Acar v. Rosal as well as the recent legislations heretofore adverted to, it is the income of a litigant that is the determinative factor. For, really, property may have no income. It may even be a financial burden (Enaje v. Ramos, G.R. No. L-22109, January 30, 1970).

2.

No torture, force, violence, threat, intimidation or any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

3.

Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

The law shall provide for penal and civil sanctions for violation of his section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. Custodial investigation Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (Miranda v. Arizona, 384 U.S. 436) RIGHTS AVAILABLE TO A PERSON UNDER INVESTIGATION 1. The right to remain silent; 2. The right to competent and independent counsel preferably of his own choice; 3. The right to be informed of such rights. •

The rights begin to be available where “the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogation that lends itself to eliciting incriminating statements.” (Escobedo v. Illinois, 378 U.S. 478)

•

The rights in this section are available to any person under investigation for the commission of an offense.

•

Constitutional procedures on custodial investigation do not apply to a spontaneous statement not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime.

RIGHTS OF SUSPECTS Sec. 12, Art. III, 1987 Constitution 1. Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If Constutional Law, Cruz, 2007 edition, p. 375 Acar v. Rosal, L-21707 (1967) 99 Cabangis v. Almeda Lopez, 70 Phil. 443 (1940)

RIGHTS ARE NOT AVAILABLE WHEN:100 1. Before government investigators become involved; 2. The confession or admission is made to a private individual; 3. The person is undergoing audit;

97 98

100

Bernas, p.470

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A. RIGHT TO BE INFORMED OF HIS RIGHTS •

It must be presumed to contemplate the transmission of a meaning information rather than just a ceremonial and perfunctory recitation of an abstract constitutional principle. (People v. Rojas, 147 SCRA 169)

•

RULE: It is not sufficient for a police officer just to repeat to the person under investigation the provisions of the Constitution. He must also explain their effects in practical terms. (People v. Rojas, supra.)

•

There must be an effective communication that results in understanding what is conveyed.

B. RIGHT TO REMAIN SILENT A person under investigation has the right to refuse to answer any question. His silence may not be used against him.

C. RIGHT TO COUNSEL Under the 1987 Constitution, counsel must be “competent and independent” and “preferably of his own choice”. •

If the accused never raises an objection to counsel given to him, he is deemed to have been properly counseled.

•

“Preferably of his own choice” does not mean that the choice of lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense.101

WHO ARE NOT CONSIDERED AS “IMPARTIAL COUNSEL” 1. Special counsel, public or private prosecutor, counsel of the police, or a municipal attorney whose interest is adverse to the accused; 2. A mayor, unless the accused approaches him as counselor or adviser; 3. A barangary captain; 4. Any other whose interest may be adverse to that of the accused. NOTE: • Sec. 12(1) guarantees an accused the right to counsel not only at his trial but at any critical confrontation by the prosecution at pretrial proceedings where the results might well determine his fate and where the absence of counsel might derogate from his right to a fair trial. (e.g. post-indictment lineup) (US v. Wade, 388 US 218)

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Inapplicability of Miranda Rights: General Rule: When the inquiry is no longer under the control of police officers, the Miranda rights no longer apply.102 Exception: The Miranda rights may still apply even after charges are filed when the police might still attempt to extract confessions or admissions from the accused outside of judicial supervision. 103 Unavailability of Miranda Rights 1. During a police line-up, unless admissions or confessions are being elicited from the suspect (Gamboa v. Cruz, G.R. No. L-56291, June 27, 1988). 2. During administrative investigations (Sebastian, Jr. v Garchitorena, G.R. No 114028). 3. Confessions made by an accused at the time he voluntarily surrendered to the police or outside the context of a formal investigation; (People v Baloloy, G.R. No 140740, April 12, 2002) and 4. Statements made to a private person (People v Tawat, G.R. No 62871, May 25, 1985). 5. Forensic investigation is not tantamount to custodial investigation, therefore Miranda rights is not applicable (People v. Tranca, 235 SCRA 455, 1994).

Exclusionary Rule (Sec. 12(3), Art. III) Covers every form of confession tainted with involuntariness. It is a manifestation of the care with which the law wishes to insure the voluntariness of confessions. •

Confession Declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein. (Rule 130, Sec. 33, ROC) Admission Act, declaration or omission of party as to a relevant fact. (Rule 130, Sec. 26, ROC) •

Bernas, p.474

Illegally obtained confessions and admissions are inadmissible against the source of the confession or admission.

Rights that may be waived 1. Right to remain silent 2. Right to counsel NOTE: However, the right of the accused to be informed of these rights is not subject to waiver; and

102 101

The protection covers confessions and admissions.

103

Bernas, p.476 Bernas, p.477

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Requisites for valid waiver 1. Made voluntarily, knowingly and intelligently 2. In writing 3. With the presence of counsel (People v. Galit, GR. No. L51770, Mar. 20, 1985). Admissibility as evidence of confessions given to news reporters and/or media and videotaped confessions

Due Process in Criminal Cases Sec. 14, Art. III, 1987 Constitution 1. No person shall be held to answer for a criminal offense without due process of law.

2. In all criminal prosecutions, the accused shall be

presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.

Confessions given in response to a question by news reporters, not policemen, are admissible. Where the suspect gave spontaneous answers to a televised interview by several press reporters, his answers are deemed to be voluntary and are admissible. Videotaped confessions are admissible, where it is shown that the accused unburdened his guilt willingly, openly and publicly in the presence of the newsmen. Such confessions do not form part of confessions in custodial investigations as it was not given to policemen but to media in attempt to solicit sympathy and forgiveness from the public.

•

Sec. 14(1) is restricted to criminal cases only and purely to their procedural requirements.104

However, due to inherent danger of these videotaped confessions, they must be accepted with extreme caution. They should be presumed involuntary, as there may be connivance between the police and media men (People v. Endino, G.R. No. 133026, Feb. 20, 2001).

•

Criminal due process requires that the accused be tried by an impartial and competent court in accordance with the procedure prescribed by law and with the proper observance of all the rights accorded him under the Constitution and the applicable statutes.

NOTE: What the Constitution bars is the compulsory disclosure of the incriminating facts or confessions. The rights under Sec. 12 are guarantees to preclude the slightest use of coercion by the State, and not to prevent the suspect from freely and voluntarily telling the truth (People v. Andan, G.R. No. 116437, Mar. 3, 1997).\

•

The basic ingredient of criminal due process is a trial conducted in accordance with the rudiments of fair play. Hence, the accused has a right to complain if the judge has a personal or pecuniary interest in the outcome of the case. 105

•

The rights enumerated in Sec. 14 (2), including the right to impartiality, are protected only during the trial.

Fruit of the poisonous tree doctrine Once the primary source (the tree) is shown to have been unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also inadmissible. NOTE: The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence, because the originally illegally obtained evidence taints all evidence subsequently obtained.

RIGHTS OF THE ACCUSED Sec. 13, Art. III, 1987 Constitution All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

RIGHTS OF THE ACCUSED 15. Accused shall be presumed innocent until the contrary is proven; 16. Shall enjoy the right to be heard by himself and counsel; 17. Right to be informed of the nature and cause of the accusation against him; 18. Right to have a speedy, impartial, and public trial; 19. Right to meet the witnesses face to face; 20. Right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.

PRESUMPTION OF INNOCENCE •

104 105

It is the responsibility of the prosecution to establish the defendant’s guilt beyond reasonable doubt; Constitutional Law, Cruz, 2007 edition Ibid.

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otherwise, he is entitled to acquittal. Conviction will depend not on the weakness of his defense but on the strength of the prosecution.106 •

•

a. b.

The presumption of innocence must be fully adhered to, requiring that there be evidence sufficient to remove every vestige of reasonable doubt.107

2.

Equipose rule Related to presumption of innocence is what is called the EQUIPOISE RULE which says:

The right of the accused to counsel in criminal proceedings has never been considered subject to waiver.115

•

The right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio if he so desires and he is poor grant him a reasonable time to procure an attorney of his own.116

•

[W]hen a defendant appears without attorney, the court has four important duties to comply with 117: 1. It must inform the defendant that it is his right to have attorney before being arraigned;

That where the evidence of the parties in a criminal case is evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused.109 Clearly, however, there is no equipoise if the evidence is not evenly balanced. The equipoise rule cannot be invoked where the evidence of the prosecution is overwhelming.110

Right to counsel

be

heard

by

himself

and

•

In a very broad sense, it can be understood to mean the totality of the rights embodied in an adequate criminal procedural system.111

•

The qualities demanded of the hearer are fairness and impartiality. Lit is demanded that judge may not play the double role od prosecutor and judge in one and the same case. He must maintain an attitude of neutrality in regard to the prosecution and the accused. 112

The more active role of the accused in expressing the right to be heard includes113: 1.

The right to present evidence and to be present at the trial

Ibid. People v. Malilay, 63 SCRA 420 108 Mupas v. People, 172834 (2008) 109 The 1987 Constitution of the Philippines: A commentary, Bernas, S.J. (2009 ed.) 110 Malana v. People, 173612 (2008) 111 The 1987 Constitution of the Philippines: A commentary, Bernas, S.J. (2009 ed.) 112112112 People v. Castaneda, 63 Phil. 480 (1936) 113 Ibid. 106 107

The right to be assisted by counsel

• The presumption of innocence is overcome only by proof beyond reasonable doubt.

Reasonable doubt It is that doubt engendered by an investigation of the whole proof and an inability after such investigation to let the mind rest upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict a criminal charge, but moral certainty is required as to every proposition of proof requisite to constitute the offense. 108

Includes the right to testify in one’s favor and The right to be given time to call witnesses114

2.

After giving him such information the court must ask him if he desires the aid of an attorney;

3.

If he desires and is unable to employ attorney, the court must assign counsel de oficio to defend him;

4.

If the accused desires to procure an attorney of his own the court must grant him a reasonable time therefor. Where duly authorized members of the bar are not available, the court may appoint any person resident of the province and of good repute for probity and ability.

•

The right to compulsory process to compel the attendance of witnesses in his behalf.

Right to be informed of the nature and cause of the accusation against him Purpose and requirements118:

US v. Chueco, 37 Phil. 53 (1917) Florez v. Ruiz, 90 SCRA 429 116 People v. Holgado, 86 Phil. 752 117 supra 118 US v. Karelsen, 3 Phil. 223 (1904) 114 115

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1. 2. 3.

to furnish the accused with such a description of the charge against him as will enable him to make his defense; to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. (United States vs. Cruikshank, 92 U. S., 542.)

Requisites for properly informing the accused of the nature and cause of accusation 1. Information must state the name of the accused 2. Designation given to the offense by statute 3. Statement of the acts or omission so complained of as constituting the offense 4. Name of the offended party 5. Approximate time and date of commission of the offense 6. Place where offense was committed 7. Every element of the offense must be alleged in the complaint or information •

In order that this requirement may be satisfied, facts must be stated; not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged.

•

The defendant is entitled to know the nature and cause of the accusation against him so he can adequately prepare for his defense.119

•

The description and not the designation of the offense is controlling. 120

•

The defendant is also denied the right to be informed of the charge against him, and to due process as well, where the statute itself is couched in such indefinite language that it is not possible for men of ordinary intelligence to determine therefrom what acts or omissions are punished and hence, should be avoided. This is the void-for-vagueness rule. 121

Variance doctrine In spite of the difference between the crime that was charged and that which was eventually proved, the accused may still be convicted of whatever offense that was proved even if not specifically set out in the information provided it

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is necessarily included in the crime charged (Teves v. Sandiganbayan, G.R. No. 154182, Dec. 17, 2004).

Right to have a speedy, impartial, and public trial Speedy trial One free from vexatious, capricious and oppressive delays.122 And is intended to relieve the accused of needless anxieties and inconveniences before sentence is pronounced upon him. Factors may be considered in determining whether the accused has been deprived of his right to speedy trial and disposition of case:123 1. Length of delay; 2. Reason for the delay; 3. Defendant’s assertion of his right; and 4. Prejudice to the defendant. NOTE: The denial of the right to speedy trial is a ground for acquittal. The right to speedy trial [Sec. 14 (2)] particularly refers to criminal prosecutions which are at the trial stage, while the right to speedy disposition of cases (Sec. 16) applies to all cases before judicial, quasi-judicial or administrative bodies. Impartial trial Accused is entitled to cold and neutrality of an impartial judge Public trial General rule: A trial is public when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is no ban on such attendance. His being a stranger to the litigants is of no moment. No relationship to the parties need be shown.124 Exception: The general public may be excluded when the evidence to be presented in the proceeding may be characterized as offensive to decency or public morals. 125 •

Right to meet the witnesses face to face (confrontation) Two- fold Purpose:

Flores v. People, 61 SCRA 331 Corpuz v. Sandiganbayan 124Garcia v. Domingo, L-30104 (1973) 125 Rule 119, Sec. 13, ROC 122

Constitutional Law, Cruz, 2007 ed. 120 Ibid. 121 Ibid. 119

The issue was whether the trial held in the judge’s chambers without, however, any evidence of an attempt to exclude the public was violative of the constitutional command.

123

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To afford the accused an opportunity to test the testimony of the witness by cross-examination, and To allow the judge to observe the deportment of the witness.126

NOTE: Right to cross-examine is demandable only during trials. Thus, it cannot be availed of during preliminary investigations. Principal exceptions to the right of confrontation

Right of confrontation is recognized during preliminary investigation proper but not during preliminary examination. A preliminary examination is generally a proceeding ex parte in which the person charged has no right to participate or be present.127

•

Right to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf The accused is entitled under the Constitution to the issuance of subpoena and subpoena duces tecum for the purpose of compelling the attendance of witnesses and the production of evidence that he may need for his defense. 128 Failure to obey then subject to contempt of court or may be arrested so needed evidence will be given.

•

1. Admissibility of dying declarations and all exceptions to the hearsay rule 2. Trial in absentia under Sec.14 (2) of Art. III of the Constitution 3. With respect to child testimony

Trial in Absentia REQUISITES: 1. The accused has already been arraigned; 2. He has been duly notified of the trial; and 3. His failure to appear is unjustified. 130 •

This is mandatory upon the court whenever the accused has been arraigned, notified of the dates of the hearing, and his absence is unjustified. 131

•

Trial in absentia can also take place when the accused voluntarily waives his right to be present. This right may be waived PROVIDED that 1. After arraignment he may be compelled to appear for the purpose of identification by the witnesses of the prosecution, or 2. He unqualifiedly admits in open court after his arraignment that he is the person named as defendant in the case on trial. 132

The right to compulsory process must be invoked during the trial. Failure to do so constitutes a waiver that cannot be rectified or undone on appeal. 129

•

AD TESTIFICANDUM

DECUS TECUM

A process directed to a person requiring him to attend and to testify at the hearing or trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition.

The person is also required to bring with him any books, documents, or other things under his control.

Bail Security given for the release of a person in custody of law, furnished by him or a bondsman, conditioned upon his appearance before any court as may be required.133 •

It is a mode short of confinement which would, with reasonable certainty insure the attendance of the accused.134

NOTE: The subpoena duces tecum shall contain a reasonable description of the books, documents or things demanded which must appear to the court as prima facie relevant.

General rule: Only persons under detention may petition for bail, for the purpose of such bail is to secure their provisional release.

Requirements for the exercise of the right to secure attendance of witness

Exception: Any offenses which under the law existing at the time of its commission and at the time of the application for bail may be punished by reclusion perpetua, even if a lesser penalty may be imposed upon conviction.

1. The witness is really material 2. The attendance of the witness was previously obtained 3. The witness will be available at the time desired 4. No similar evidence could be obtained

People v. Salas, 143 SCRA 163 supra 132 Carredo v. People, 77542 (1990) 133 Rule 114, Sec. 1, Revised Rules of Court (1997) 134 De la CAmara v. Enage, 41 SCRA 1(1971) 130

US v. Anastacio, 6 Phil. 413 (1906) 127 Marinas v. Siochi, 104 SCRA 423 (1981) 128 Constitutional Law, Cruz, (2007 ed) 129 US v. Garcia, 10 Phil. 384 126

131

CONSTITUTIONAL LAW 2

Exception to Exception: However, even if the crime imputed to the accused is punishable by reclusion perpetua, he is still entitled to bail if the evidence of guilt is not strong.135 FORM OF BAIL 1. Corporate surety 2. Property bond 3. Cash deposit 4. Recognizance Because of the importance of the right to bail both for the accused and for the prosecution, certain duties are imposed upon the Judge. As reiterated in the case of Basco v. Rapatalo136:

1. Notify the prosecutor of the hearing of the

application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended);

2. Conduct a hearing of the application for bail

regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra);

POLITICAL LAW

•

The following are entitled to bail 1. Persons charged with offenses punishable by death, reclusion perpetua or life imprisonment, when evidence of guilt is not strong 2. Persons convicted by the trial court pending their appeal 3. Persons who are members of the AFP facing a court martial Hearing • The constitutional right to bail necessarily includes the right to a hearing.139 When bail is denied without a hearing, a fundamental right is violated. 140 The hearing need not be separate and distinct from the trial itself. And it need only be summary. The right to a prompt hearing is waived by agreeing to postponements. 141 •

3. Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison);

4. If the guilt of the accused is not strong, discharge

the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied.

FACTORS WHICH MUST BE CONSIDERED IN DETERMINING BAIL 137 1. Ability to post bail 2. Nature of the offense 3. Penalty imposed by law 4. Character and reputation of the accused 5. Health of the accused 6. Strength of the evidence 7. Probability of appearing for trial 8. Prior forfeiture of bonds 9. Whether the accused was a fugitive from justice when arrested 10. Whether under bond in other cases •

Since bail is constitutionally available to all persons, it must be available to one who is detained even before formal charges are filed.138

Constitutional Law, Cruz, 2007 edition Basco v. Rapatalo, AM No. RTJ-96-1335 (1997) 137 The 1987 Constitution of the Philippines: A commentary, Bernas, S.J., 2009 edition 138 Herras Teehanke v. Rovira, 75 Phil. 634 (1945) 136

Hearing on the petition for bail is required to satisfy due process, but this may be summary in nature or held in the course of the trial itself. A separate hearing is not indispensable. 142

Excessive Bail • The right to bail can be rendered useless by a bail bond set at an exorbitant amount. Hence, the Constitution prohibits “EXCESSIVE BAIL.”143

Right to a Speedy Disposition of the Case Sec. 16, Art. III, 1987 Constitution All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

SCOPE144 • • •

The right covers all periods before, during, and after trial. It applies to civil, criminal, and administrative cases. Any party to a case may demand expeditious action on all officials.

Section 16

Section 14

67 Phil. 83 (1939) Beltran v. Diaz, 77 Phil. 484 (1946) 141 Munoz v. Rilloraza, 83 Phil. 609 (1949) 142 Gerardo v. CFI, 86 Phil. 504 143The 1987 Constitution of the Philippines: A commentary, Bernas, S.J. ((2009 edition) 144 Id. at p556-557 139 140

135

But of course, the person claiming the right must be under actual detention or custody of the law. One is under the custody of the laweither when he has been arrested or has surrendered himself to the jurisdiction of the court.

CONSTITUTIONAL LAW 2

Applies to all phases in all judicial, quasi-judicial, administrative proceedings.

POLITICAL LAW

Applies only to trial phase in criminal proceedings.

Violation of Right Exists When: 1. Length of delay 2. Reason for delay 3. Assertion of the right, or failure to assert 4. Prejudice caused by the delay 5. Loss of a party’s right to present evidence Remedy for Violation: Dismissal through mandamus

CONSTITUTIONAL LAW 2

POLITICAL LAW

BAIL AS A MATTER OF RIGHT V. BAIL AS A MATTER OF DISCRETION [ COMPARATIVE TABLE] Bail as a right Bail, when discretionary Bail is a matter of right if a person is charged with an offense not punishable Bail is discretionary when a person is charged with an offense by reclusion perpetua, life imprisonment or death.

All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule:

Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

(a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

(b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment. (Sec. 4. Rule 114, ROC)

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances: (b) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (c) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (d) That he committed the offense while under probation, parole, or conditional pardon; (e) That the circumstances of his case indicate the probability of flight if released on bail; or (f) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. (Sec. 5, Rule 114, ROC)

NAME OF SUBJECT

NAME OF TOPIC

a.

WRIT OF HABEAS CORPUS

b.

Sec. 15, Art. III, 1987 Constitution 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.

2.

A. PRIVILEGE Directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his caption and detention, to do, submit to, and receive whatever the court or judge awarding the writ shall consider in that behalf. Functions as the most immediately available safeguard of personal liberty. Object and Purpose 1. To achieve immediate determination of the legality of a detention. 2. “To inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal.” 3. “To provide a speedy and effectual remedy to relieve persons from unlawful restraint, 4. “To set the individual at liberty” •

•

PERSONAL LIBERTY CAN BE LOST THROUGH: 1. Physical compulsion 2. External Moral compulsion 3. Founded or groundless fear 4. Belief in existence of imaginary 5. power to cause harm 6. Other psychological curtailment of mental faculty.

B. SUSPENSION Power to Suspend The power to suspend the privilege of the writ is vested in both the President and the Legislative. 1.

The President

Congress a. Has the power to revoke the suspension and the President may not set aside the revocation. b. May, upon the President’s initiative, extend the suspension.

The Court ruled that “what is suspended is not the writ, but the privilege of the writ.”

CONDITIONS FOR VALIDITY 1. There is invasion, or rebellion; and 2. That public safety requires the suspension. 3. Person is judicially charged with rebellion or offenses connected directly or indirectly with invasion 4. Person detained, during suspension, be judicially charged within 3 days. Otherwise, he will be arrested. •

Habeas Corpus is not the proper mode to question conditions of confinement.

Personal Liberty Actual deprivation of personal liberty is a requisite to the availability of the writ. • A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. (Villavicencio vs Lukban, 1919)

May suspend the privilege for not exceeding 60 days. May initiate extension of the suspension.

Two conditions must concur for the valid exercise of the authority to suspend the privilege to the writ (a) there must be "invasion, insurrection, or rebellion" or "imminent danger thereof," and (b) "public safety" must require the suspension of the privilege. President has three (3) courses of action: (a) to call out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part thereof under martial law. He had, already, called out the armed forces, proved inadequate. Of the two other alternatives, the suspension of the privilege is the least harsh.145 (Lansang vs Garcia, 1971)

Effect of Suspension Temporarily prevents the courts from enquiring into the legality of the detention. Power to Review Suspension The Supreme Court, upon initiative of any citizen, may review the “sufficiency of the factual basis of the suspension” and must promulgate its decision within 30 days from the filing. 146 Powers of the Supreme Court: 1. Determine if there is in fact actual invasion, or rebellion; 2. Determine whether public safety requires the suspension Problems upon Suspension 1. Whether the accused under an offense during the suspension is entitled to release on bail 2. Lack of procedure after an accused is detained for a crime during the suspension despite receiving 145 146

Id. Article VII, Section 18, 1987 Constitution

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evidence to establish reasonable belief •

NAME OF TOPIC

probable

cause

or

Because the privilege of the writ of habeas corpus remains suspended "with respect to persons at present detained as well as other who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by them in furtherance of or on the occasion thereof, or incident thereto, or in connection therewith," the natural consequence is that the right to bail for the commission of anyone of the said offenses is also suspended. To hold otherwise would defeat the very purpose of the suspension. Therefore, where the offense for which the detainee was arrested is anyone of the said offenses he has no right to bail even after the charges are filed in court.147 (Moncupa vs Ponce Enrile, 1983)

C. REMEDIES •

Suggested remedy to lack of entitlement to right to bail is to have the executive file a formal charge against the detainee. Because the moment a formal charge is filed, the executive submits the legalities of the case to the jurisdiction of the courts, thus opening the case to inquiries of the legality of the detention and waiving the effects of executive suspension of the privilege.148 Prior to 1987 Constitution

Power to Suspend

Vested in Executive

Power of Judicial Review over the factual bases of the suspension

Should be “within proper bounds”; meaning by asking if the Executive has gone beyond the constitutional limits of its jurisdiction

Conditions validity suspension

for of

the

Invasion, insurrection, rebellion, or imminent danger

1987 Constitution Vested in both executive and the President SC may review, upon initiative of any citizen, sufficiency of the factual basis, and determine Executive arbitrariness in arriving at the suspension Invasion, rebellion

or

WRIT OF AMPARO, HABEAS DATA, AND KALIKASAN

WRIT OF AMPARO Sec. 1, The Rule on the Writ of Amparo. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. Within 72 hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain his defenses. A general denial is not allowed. (Sec. 9) Hearing Summary or court may call for a preliminary conference; given same priority as petition for habeas corpus. (Sec. 13) Proof required: Substantial evidence Defense: (1) Private individual – ordinary diligence (2) Public official – extraordinary diligence, no presumption of regularity of duties. (Sec. 17) WRIT OF HABEAS DATA The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. There must be a nexus between right to privacy and right to life, liberty and security. Right To Informational Privacy v. Legitimate State Interest The determination of whether the privilege of the writ of habeas data, being an extraordinary remedy, may be granted in this case entails a delicate balancing of the alleged intrusion upon the private life of Gamboa and the relevant state interest involved. (Gamboa v. P/Supt. Marlou C. Chan, et al., 2012) WRIT OF KALIKASAN Remedy against violation or threat of violation of constitutional right to a balanced and healthful ecology by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces Who may file: Natural or juridical persons, NGO or public interest groups in behalf of persons whose right is violated. Who has jurisdiction: Supreme Court or Court of Appeals.

Moncupa vs Ponce Enrile, GR L-61016, GR L-61107 (1983) Bernas, S.J., The 1987 Constitution of the Philippines: A Commentary p 549 147 148

SELF-INCRIMINATION CLAUSE

NAME OF SUBJECT

NAME OF TOPIC

Sec. 17, Art. III, 1987 Constitution No person shall be compelled to be a witness against himself.

a supposedly falsified document. vs. Samson. 1929) •

A. SCOPE Purpose of the provision is to prohibit compulsory oral examination of prisoners before the trial, or upon trial to extort unwilling confessions or declarations. 149

Us vs. Tan Teng 150 Facts: The defendant was accused of raping his 7yr old neighbor. She later contracted gonorrhea. The investigation revealed him as the suspect after they examined substances from his body and found he had gonorrhea. He alleged his right against self-incrimination was violated because of the physical examination. Issue: Was the physical examination violating his right against selfincrimination? Held: No. The taking of a substance from his body was not a violation of the said right. He was neither compelled to make any admissions or to answer any questions. The substance was taken from his body without his objection and was examined by competent medical authority. The prohibition of self-incrimination in the Bill of Rights is a prohibition of the use of physical or moral compulsion to extort communications from him, and not an exclusion of his body as evidence, when it may be material. It would be the same as if the offender apprehended was a thief and the object stolen by him may be used as evidence against him.

1. Hand writing •

Since witnesses in a preliminary investigation are protected by the prohibition, they may not be compelled to take a dictation to compare their handwriting with that found in

Bernas, S.J., The 1987 Constitution of the Philippines: A Commentary, p 558 150 US vs. Tan Teng, 23 Phil 145, GR 7081, (1912) 149

(Beltran

Mere denial of the witness that the documents were in her handwriting does not constitute a waiver of the right because such denial discloses nothing. 152(Bermudez vs. Castillo, 1937)

2. Documents and Records A compulsory production of the private books and papers of the owner is compelling him to be a witness against himself.

What is prohibited is the use of physical or moral torture to extort information from the witness, not inclusion of his body or substances from it, in evidence. Not prohibited: Physical Examination

151

Exception Shapiro vs. United States 153 Facts: A prosecution arose from alleged violations of the Emergency Price Control Act of 1942. The defendant was required by law to keep certain records. When these records were ordered produced, he claimed protection under this privilege. Issue: Is the defendant entitled to invoke the right? Held: No. The privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulations and the enforcement of restrictions validly established.

Incriminating question A question tends to incriminate when the answer of the accused or the witness would establish a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by the accused or the witness. NOTE: The privilege against self-incrimination is not selfexecuting or automatically operational. It must be claimed. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. The privilege against self-incrimination can be claimed only when the specific question, incriminatory in character, is actually addressed to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court

Beltran vs. Samson, 53 Phil 570, (1929) Bermudez vs. Castillo, Prec Rec 714-A, (1937) 153 Shapiro vs. United States, 335 US 1, (1948) 151 152

NAME OF SUBJECT

NAME OF TOPIC

at the time appointed (Rosete v. Lim, G.R. No. 136051, June 8, 2006). Right against self-incrimination of an accused vs. Right against self-incrimination of a witness

Issue: Was compelling the accused to be the respondent’s first witness in violation of his right?

To Persons

Held: The Court found for the petitioner in accordance with the well-settled principle that "the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand." If petitioner would be compelled to testify against himself, he could suffer not the forfeiture of property but the revocation of his license as a medical practitioner. The constitutional guarantee protects as well the right to silence: "The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt." It is the right of a defendant "to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free genuine will."

The right applies only to natural persons. The accused, a witness, and a witness who is also an accused, may avail of this right.

C. IMMUNITY STATUTES

ACCUSED Can refuse to take the witness stand altogether by invoking the right against self-incrimination

ORDINARY WITNESS Cannot refuse to take the witness stand; can only refuse to answer specific questions which would incriminate him in the commission of an offense

B. AVAILABILITY

•

Accused may refuse to be a witness altogether.

•

Witness cannot refuse to take the stand. He may invoke the right when an incriminating question is asked. Incriminating Questions are those that tend to establish a fact necessary in linking the evidence to prove the commission of crime by the accused or the witness.

•

The right includes a right to refuse to testify to a fact which would be a necessary link in a chain of evidence to prove the commission of a crime by a witness. 154(Fernando vs. Maglanoc, 1954)

To Proceedings

1. 2. 3.

Use Immunity Section 18(8), Article XIII, 1987 Constitution: Use Immunity The Commission on Human Rights shall have the following powers and functions: (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; •

The provision on use immunity prohibits the use of the witness’ compelled testimony and its fruits in any manner connected with the criminal prosecution of the witness. The witness may still be prosecuted but his compelled testimony is dispensed with.

•

The provision grants the CHR the right to grant this immunity to persons whose documents were compelled to be submitted in evidence.

The right may be invoked in criminal proceedings and administrative investigations in the nature of or analogous to a criminal proceeding. Pascual Jr. v. Board of Medical Examiner 155 Facts: The petitioner filed an action for prohibition and preliminary injunction in a proceeding for his alleged malpractice. He claims the counsel for the respondent violated his right against self-incrimination after he expressly stated he refused to be a witness for them. This was in record. The respondents said he would be called again to the witness stand unless he can obtain a restraining order. 154 155

Fernando vs. Maglanoc, 95 Phil 431, 434 (1954) Pascual, Jr. vs. Board of Medical Examiners, GR L-25018 (1969)

Use Immunity Transactional Immunity Exclusionary Rule

Transactional Immunity RA 1379: An Act Providing for Forfeiture In Favor of the State any Property found to have been Unlawfully Acquired by any Public Officer or Employee (8)

Protection against self-incrimination. Neither the respondent nor any other person shall be excused from attending and testifying or from producing books,

NAME OF SUBJECT

papers, correspondence, memoranda and other records on the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or subject him to prosecution; but no individual shall be prosecuted criminally for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and conviction for perjury or false testimony committed in so testifying or from administrative proceedings. (9) Immunity. The Solicitor General may grant immunity from criminal prosecution to any person who testifies to the unlawful manner in which the respondent has acquired any of the property in question in cases where such testimony is necessary to prove violations of this Act. •

Such immunity is granted to the witness from prosecution for an offense to which his compelled testimony relates to. The witness cannot be prosecuted at all.

•

The respondent cannot excuse himself from producing the documentary evidence required by invoking the right against self-incrimination.

•

But he cannot be criminally prosecuted for transactions he was compelled into after he has invoked this right. However, he can still be prosecuted for perjury or false testimony for testifying as such, and for administrative proceedings.

Exclusionary Rule Section 12(2), Article III, 1987 Constitution No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited

NAME OF TOPIC

NAME OF SUBJECT

NAME OF TOPIC

Sec. 18, Art. III, 1987 Constitution 1. No person shall be detained solely by reason of his political beliefs and aspirations.

Sec. 19, Art. III, 1987 Constitution 5. Excessive fines shall not be imposed, nor cruel, degrading, or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.

2. No involuntary servitude in any form shall exist except

6.

A. ILLEGAL DETENTION

EXCESSIVE FINES AND CRUEL, DEGRADING, INHUMANE PUNISHMENTS

INVOLUNTARY SERVITUDE POLITICAL PRISONERS

AND

as a punishment for a crime whereof the party shall have been duly convicted.

Illegal detention The provision on illegal detention is an added security to the due process clause, and to the guarantee of freedom of speech, press and expression in Section 4.

B. INVOLUNTARY SERVITUDE Involuntary Servitude A condition of enforced or compulsory service of one to another156 no matter under what form such servitude may be disguised.157 •

Domestic services are always to be renumerated, an no agreement may subsist in law in which it is stipulated that any domestic service shall be absolutely gratuitous, unless it be admitted that slavery may be established in this country through a covenant entered into between interested parties. 158 (de los Reyes vs. Alojado, 1910)

EXCEPTIONS (2) Punishment for a crime for which the party has been duly convicted. (3) Personal military or civil service in the interest of national defense. (4) In naval enlistment: a person who enlists in a merchant ship may be compelled to remain in service until the end of the voyage. (5) Posse comitatus for the apprehension of criminals (6) Return to work order issued by the DOLE Secretary or the President. (7) Minors under patria potestas are obliged to obey their parents.

SECTION 19: RIGHTS UNDER CONVICTION AND DEATH PENALTY

Cruel, Degrading, and Inhumane Punishments Punishment is cruel and inhumane if it involves torture or lingering death; but the punishment of death is not cruel. 159 The constitutional limit is based on the mode and nature of the punishment in terms of the physical pain. 160 •

A penalty is cruel and unusual if it is flagrantly disproportionate to the offense no matter under what circumstances the offense may be committed. The punishment imposed by the Legislature exceeded the limits of its discretionary power.161

•

Punishment is degrading if it exposes a person to public humiliation.

•

Unconstitutional punishments imply something inhuman and barbarous, something more than the mere extinguishment of life.162

FOUR BASIC PRINCIPLES FOR JUDGING SEVERE PUNISHMENT163 1. The punishment must not be so severe as to be degrading to the dignity of human beings. 2. It must not be applied arbitrarily. 3. It must not be unacceptable to contemporary society 4. It must not be excessive, or it must serve a penal purpose more effectively than a less severe punishment would. NOTE: Fr. Bernas says that the accused cannot be convicted of the crime to which the punishment is attached if the court finds that the punishment is cruel, degrading or inhuman. The reason for this is without a valid penalty, the law is not a penal law. Legarda vs. Valdez 1 Phil 146 (1902) Bernas, S.J., The 1987 Constitution of the Philippines: A Commentary, p570 161 Id. at 573 162 People vs. Mercado, GR No. 116239, November 29, 2000 163 J. Brennan, Furman vs. Georgia, 408 U.S. 238 (1972) 159 160

Rubi vs. Provincial Board, 39 Phil 660, 708 (1919) Bailey vs. Alabama, 219 U.S. 219 (1910) 158 De los Reyes vs. Alojado, 16 Phil 499 (1910) 156 157

The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

NAME OF SUBJECT

NAME OF TOPIC

Excessive Fines A fine is excessive when it is disproportionate to the offense or crime committed.

Unless facilities of the penitentiary are brought up to a level of constitutional tolerability, they should not be used for the confinement of prisoners at all. 164

NON-IMPRISONMENT FOR DEBT

B. DEATH PENALTY

Sec. 20, Art. III, 1987 Constitution No person shall be imprisoned for debt or non-payment of a poll tax.

RA 7659, Death Penalty Law RA 9346, Suspending Death Penalty Law •

The penalty was abolished altogether, but left the matter open for Congress to revive capital punishment at its discretion “for compelling reasons involving heinous crimes”

•

The Constitution punishment,

prohibits

imposing

capital

But Congress has discretion to revive it under circumstances of heinous crimes Heinous Crimes • There is no direct definition by the Constitution, but examples were given: 1. Organized syndication of dope distribution or smuggling 2. Organized murder 3. Rape with murder RA 7659 • Crimes are heinous for being grievous, odious, and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency REQUIREMENTS FOR RESTORING DEATH PENALITY 1. That Congress define or describe what is meant by heinous crimes 2. That Congress specify and penalize death only crimes that qualify as heinous as defined or described, and/or designate crimes punishable by reclusion perpetua to death in which the latter case, death can only be imposed upon attendance of circumstances duly proven in court 3. That Congress, in enacting the death penalty bill, be singularly motivated by “compelling reasons involving heinous crimes”

C. CUSTODIAL CRUELTIES INADEQUATE PENAL FACILITIES

AND

Debt Refers to any civil obligation arising from contract, expressed or implied.165 • As long as the obligation to pay arises ex contractu, it is considered a private matter between the creditor and the debtor and the punitive arm of the State cannot be employed in a criminal action to enforce the former’s right. The remedy in this case is a civil action only for the recovery of the unpaid debt.166 •

In the Ganaway case,167 debt includes even debts obtained through fraud since no distinction is made in the Constitution.

NON-PAYMENT OF POLL-TAX. A poll tax or cedula tax It is a tax imposed on all persons of a certain age. At present it is the tax one pays for his or her residence certificate which generally serves as a personal identification instrument.168 •

•

A specific fixed sum levied upon every person belonging to a certain class without regard to his property or occupation.169 Poll tax is not progressive and antiquated.

General rule: Since a tax is not a debt but arises from the obligation of the person to contribute his share in the maintenance of the government, failure to pay the same can be validly punished with imprisonment. Exception: Failure to pay poll tax. This exception is adopted pursuant to the social justice policy. 170

DOUBLE JEOPARDY Sec. 21, Art. III, 1987 Constitution No person shall be twice put in jeopardy of punishment for Bernas, S.J., The 1987 Philippine Constitution: A Commentary, p 580 165 Constitutional Law, Cruz, 2007 edition 166 Ibid. 167 42 Phil. 805 168 The 1987 Constitution opf the Philippines: A commentary, Bernas, S.J., 2009 edition 169 Constitutional Law, Cruz, 2007 edition 170 Ibid. 164

NAME OF SUBJECT

the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

•

The right against double jeopardy prohibits the prosecution of any person for a crime of which he has previously been acquitted or convicted.

•

The rule protects the accused not against the peril of second punishment, but against being again tried for the same offense. (People v. Ylagan, 58 Phil 851)

Purpose: To set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the dangers and anxiety of a second charge against him for the same offense. 171 REQUISITES FOR A VALID DEFENSE OF DOUBLE JEOPARDY 1. A first jeopardy must have attached prior to the second; 2. He first jeopardy must have terminated; 3. The second jeopardy must be for the same offense as that in the first. WHEN DOES FIRST JEOPARDY TERMINATE 1. By acquittal; 2. By final conviction; 3. By dismissal without express consent of the accused; 4. By dismissal on merits.

NAME OF TOPIC

therein by filing such motion. (People v. Astudillo, 401 SCRA 723) •

Supervening Event The accused may be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged or convicted. •

•

171 172

The protection against double jeopardy may be waived by the accused. Thus, when the accused himself files or consents to the filing of a motion for reconsideration or modification, double jeopardy cannot be invoked because the accused waived his right not to be place Cruz, p.357 Cruz, p.367

Where after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the character of the offense and, together with the facts existing at the time, constitutes a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense. (People v. City Court of Manila, Br. XI, 121 SCRA 637)

Double jeopardy for the same act The constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier the subsequent offense charged. •

The identity of offenses does not require on-to-one correspondence between the facts and law involved in one offense is completely included in the other.173

•

An offense penalized by municipal ordinance, is by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rulemaking authorities and the plea of double jeopardy would never lie. (People v. Relova, 148 SCRA 292)

WHEN DOES DOUBLE JEOPARDY ATTACH 1. In a court of competent jurisdiction; 2. upon a valid complaint or information; 3. after he has been arraigned; and 4. after he has pleaded to the complaint of information. (People v. Ylagan, supra.) CRIMES COVERED BY THE RULE AGAINST DOUBLE JEOPARDY The accused may not be prosecuted anew: 1. For the original offense charged, or 2. For any attempt to commit the same or frustration thereof, or 3. For any offense which necessarily includes or is necessarily included in the offense charged in the original complaint or information. 172

A motion for reconsideration or modification filed by or with consent of the accused renders the entire evidence open for the review of the trial court without, however, conducting further proceedings, such as the taking of additional proof. (People v. Astudillo, supra.)

Motion to quash Dismissal on motion to quash prevents jeopardy Reason: It does not amount to acquittal on merits because it is directed at the insufficiency of the first information. The defendant is deemed not to have been charged. (Cañiza v. People, 159 SCRA 16) Dismissal on demurrer The Court has held a dismissal equivalent to an acquittal on the merits, and consequently, a bar to a subsequent prosecution for the same offense or an offense which necessarily includes or is necessarily included in the offense charged in the former complaint but dismissal was predicated either on the failure of the prosecution to prove the guilt of the accuse beyond reasonable doubt, or on the 173

Bernas Reviewer, p.169

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right of the accused to a speedy trial. (People v. Mogol, 131 SCRA 296) Absence of jurisdiction prevents jeopardy A court without jurisdiction cannot render a valid judgment; hence, a person charged before it cannot plead double jeopardy when tried anew for the same offense by a competent court, as the first prosecution never placed him in jeopardy.174

EX-POST FACTO LAWS AND BILL OF ATTAINDER Sec. 22, Art. III, 1987 Constitution No ex-post facto law or bill of attainder shall be enacted. Ex-post facto law • Makes an action done before the passing of the law and which was innocent when done criminal, and punishes the action; or • Aggravates a crime or makes it greater than when it was committed; or • Changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or • 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. • Assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; • 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. 175 NOTES: • The ex-post facto clause only prohibits retrospective penal laws. •

A law on criminal procedure can be an ex-post facto law when it alters the legal rules of evidence or mode of trial UNLESS the changes operate only in a limited and unsubstantial manner to the disadvantage of the accused.

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A law shortening the prescriptive period for a crime is ex-post facto law.

Bill of attainder A legislative act that inflicts punishment without trial, its essence being the substitution of legislative fiat for a judicial determination of guilt. 176 Cruz, p.359 Bernas, p.618 176 Cruz, p.271 174 175

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ELEMENTS 1. There must be a law; 2. The law imposes a penal burden on a named individual or easily ascertainable members of a group; 3. The penal burden is imposed directly by the law without judicial trial. Two kinds of bill of attainder 1. Bill of attainder proper (legislative imposition of the death penalty) 2. Bill of pains and penalties (imposition of a lesser penalty)