Consti2-montejo-2013-2014.pdf

CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) INDIVIDUAL RIGHTS marcos v manlapus ie art 7 sec 18 limit power

I. DUE PROCESS AND EQUAL PROTECTINO AS LIMITATIONS ON POLICE POWER, EMINENT DOMAIN AND TAXATION A. Fundamental Principles on Constitutional Law and the Bill of Rights The study of Constitutional Law primarily hinges on the Bill of Rights, and there are only a few provisions thereunder. So let’s start with the Fundamental Powers of the State. There are three of them. And by concept and application they are supposed to be INHERENT. It means that once the State comes into being, these can be exercised by the State. It does not need any Constitutional or Statutory conferment for the State to exercise them. And precisely as we understand the reason why specific provisions in the Constitution apply to specific powers or inherent powers of the State is because they are more of LIMITATIONS rather than grants. Largely the Bill of Rights are limitations on the power of the State but there are still specific provisions in the Constitution like Article III Section 9 on Eminent Domain which is a specific provision affecting Eminent Domain as an inherent power of the State. Most of these powers are largely exercised THROUGH LEGISLATION. And of course, by reason of legislation, their execution or implementation maybe extended or granted to the Executive branch or other entities if there is allowable delegation. B. Basic Principles on the Fundamental Powers of the State, their characteristics, similarities and distinctions, and their Limitations The first of which, in our outline, would be the discussion on the applicability of the Bill of Rights in the study of Constitutional Law. The basic principle is that the Bill of Rights is a LIMITATION ON STATE AUTHORITY. It does not apply strictly to conflict involving private rights. Perhaps the only exceptions based on your readings would be: (1) with respect to privacy of communication and correspondence that has been applied by the Supreme Court in the case of Zulueta, where the private matter involving the couple who had marital problems, where the wife forcibly took documents, pictures to prove the extra marital affair of the husband, where these documentary evidence where presented in court, the Supreme Court, in that lone case, which is still good law today, applied the limitation under the Bill of Rights on privacy of communication and correspondence saying that because of the violation of the private right of the husband, the evidence so obtained are considered inadmissible. The application or the ruling of the Supreme Court, well, it will largely be questionable, but simply because it is still the decision of the Supreme Court, it remains to be good law today. To that extent, the Bill of Rights has been applied involving conflict of private persons involving their private rights because

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again the Bill of Rights is supposed to be a limitation on the powers of the State. (2) To some extent, it has also been applied to schools disciplinary tribunals. When the school exercises its authority to impose the school’s rules on discipline in the tertiary level, there have been so several cases already stating that there is supposed to be procedural due process to be observed and extended to the students in the tertiary level before these students can be sanctioned, much more if they are supposed to be expelled by reason of violation of the school’s disciplinary tribunal. We have been made to understand that with respect to academic rules, there’s not much difficulty because the due process there is always extended when there are examinations or recitations given. You are given the opportunity to be heard every time you are called for recitation or every time there is an examination or a test administered on the students. But with respect to the school’s rules on discipline, starting with the case of Ateneo de Manila, the Supreme Court has made a rule that students in the tertiary level enjoy procedural due process. So, is that an act of the State where due process is supposed to be imposed on the school before it is allowed to impose sanctions? In the Constitutional context, it should not be required because the school is not the State. But because on the other hand, students have what we know as academic freedom. There are three ____ in the scope of academic freedom, we have: a) the schools, b) the members of the faculty and c) that of the students. And so to that extent, due process is extended to the students before they are supposed to be sanctioned. (3) Also by reason of law, not by the Constitution, the twin notice rule under the Labor Code, though clearly it has been stated that it is not part of the Constitutional due process requirement, but because of the statutory rule that employees, before they are sanctioned, employers must have to extend to them what the law requires under the so called twin notice rule. Employers would be considered the State when they impose sanctions. But because the statute has required that they must have to be informed before they are to be penalized or sanctioned, to that extent there is limited application of the right in the due process clause generally in this situation. The case of Yrasuegi v. PAL, this is a 2008 case, you have already read this, involving a labor case, the steward of an airline was eventually terminated for failing to meet the weight requirement. Supposedly stewardesses and stewards have a maximum allowable weight to be able to effectively function as attendant. But because this petitioner has failed despite the grace period for him to lose weight, he was terminated and filed a labor case. In the petition before the Supreme manila hotel - state action 1 public function 2 govt significantly involved 3 auth the action th

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) Court, without any of those issues raised in the lower tribunal, he questioned the policy of the airline company as being violative of the Equal Protection; that there is undue prejudice and disadvantage to the fat people, because they would only want to hire and continue to engage those who are macho and sexy. The Supreme Court made it clear that this is an action by an employer as against an employee, so the Equal Protection guarantee in the Constitution does not apply as this is not a State action where there is a violation of a private right by reason of the imposition of a State act. Due process is discussed in light with regulatory powers. In the light also of what is required under the due process clause. The due process clause would be considered as the most pervasive. It is the least limitable of all the powers, and so this normally comes in the form of regulatory measures. POLICE POWER So when the State exercises its Police Power - the power to regulate liberty and property for the promotion of the general welfare, it normally comes in a form of regulation. So when a regulatory measure is enacted, there are basically two considerations: (1) whether the law is in substance valid and (2) whether the applicability of the law is equally applied to everyone in that class or category. The regulatory functions or powers of the State can also be used through its power to tax and or power of eminent domain. A good example with respect to eminent domain and regulatory powers would be your Comprehensive Agrarian Reform Law. To regulate property ownership in order to promote the welfare of the farm workers or tenants, property ownership has been limited. So outside of what we know as retention areas, the remainder of the agricultural land are distributed. Now is this in its strict sense a regulatory measure? The answer is no. And it is not also in its strict sense the eminent domain exercise as allowed in the Constitution. Now the usual test to determine a valid regulatory measure would be the LAWFULNESS OF THE SUBJECT and the LAWFULNESS OF THE MEANS. Regardless of the further discussions with respect to ordinances, because in ordinances we have the case of White Light Corp v. City of Manila which establishes certain requirements for validity when it comes to ordinances; but when it comes to general statutes, what we follow would be the two test: the lawfulness of the subject test and the lawfulness of the means. Lawfulness of the subject There’s not much difficulty in understanding what a lawful subject is because police power being in relation to general welfare, any public interest matter is always considered as a lawful subject for purposes of regulation. The only discussion here is whether regulation affords only protection to a few and not the general welfare of the many. So it’s not so difficult to

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understand. So you talk about public health, public safety, public morality, and all those public interest matters. Lawfulness of the means The discussion is mostly on whether the means are lawful. The rule being that the end, which is the intention to promote the interest of the general welfare, should not justify the means used. There must have to be reasonable necessity to the means used to accomplish the desired end. So if the means imposed by the law is reasonably necessary to accomplish the intention of the law, then the means would be considered as lawful. onlywhenthe propertyownerisnotgoingtosellorthatthereisno

POWER OF EMINENT DOMAIN agreementastothepricetothepropertylikeinan

ordinarysale,thatthereshouldbeeminentdomain.

Section 9. Private property shall not be taken for public use without just compensation. Eminent domain on the other hand is the highest and most exact idea of property right remaining in the State. This is a reflection of the Regalian Doctrine that all property belongs to the State. That if the State would want to get back its property, what it used to own which was given up for private ownership, it would exercise through eminent domain. But just like in the exercise of eminent domain by a local government unit, the Local Government Code has provided for some other CONDITIONS OR REQUIREMENTS. But generally, the Constitution under Section 9 Article III, simply requires that there must have to be taking of private property for public use upon payment of just compensation. The concepts of taking have not changed. Well, it has changed from the old traditional understanding but it has changed somehow to include any substantial effect on the usual and reasonable uses of the property. Taking in eminent domain is not physical dispossession alone. If there is substantial effect on the usual uses of the property by the property owner, then there may be considered as taking. Also the concept of public use has changed from the old traditional concept of direct benefit to the many. It has changed to include now the indirect benefit to the many. Even if those directly benefited are only a few, but if the public is indirectly benefited as well, then there is also taking for public use. not momentary The property to be taken must have to be private property. So any kind of private property (?), of course except money, will have to be exempted from the private property requirement. Just compensation is usually made by giving money. cannot be appropriated: money, personal actions or personal optiond of an indiv

Just compensation as a condition for a valid exercise of eminent domain has not also changed. It still refers to the full and fair equivalence of the loss of the property owner. The value is based on the loss and not on the gain. For which reason if there is consequential benefit or consequential damage, if not the entire land is expropriated, the consequential benefit shall be deducted from the value of the just compensation, while the consequential damage shall be added to the value of the property for purposes of computing the just compensation. cannot enact as to maximum value valuations/tax declarations - not conslusive as to value for just compensation

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) POWER OF TAXATION With respect to taxation, except for the provisions of the Constitution regarding the uniformity in the rule of taxation and equitable rule, the exemption from real property taxation for certain listed properties directly, exclusively and primarily used for religious and other educational purposes and also for tax exemption of income of non stock non profit educational institutions as well as the tax credit for donations to these institutions, the rest of the specifics in your taxation laws, you will have to take up in your taxation law review. DELEGATION In relation to delegation, police power and power of eminent domain may be delegated. But power of taxation can never be. Well, to some extent, it has been delegated to LGU’s with respect to their taxation powers under the Local Government Code, but not to private entities unlike in eminent domain where private sec 18 lgc entities may be granted the power to expropriate. Normally, we refer to public utility companies; they have power to expropriate. Police power has also been delegated to the LGU’s. This is your Section 16 of the Local Government Code, which refers to the General Welfare clause. In that clause, the LGU’s have delegated authority either direct or general. At any given time, Congress may enact a law delegating authority on police power to LGU’s. But there is a general grant under Section 16 as well that LGU’s can legislate on these matters. The requirement for validity of regulatory powers for purposes of the LGU’s. First, it must have to be passed within the corporate powers of the LGU’s. Second, it must be passed in accordance with the legal procedure as provided in the Local Government Code, and it must satisfy six substantive requirements as follows: (1) it must not contravene the Constitution or the law; LGC - 15% but sec 60 whole value. (2) it must not be unfair or oppressive; (3) it must not be partial or discriminatory; ? (4) it must not prohibit but merely regulate; (5) it must be general and consistent with public policy; and (6) it must not be unreasonable. So in any regulatory measure, LGU, as a matter of law, cannot prohibit the conduct of what otherwise is a legitimate business. It can only regulate. The problem is: what should happen if the regulatory measure would amount to a prohibition. The expanded liquor ban. Drinking now can only be allowed up to 1. I think the Mayor has not yet signed it because he has second thoughts whether it would pass the scrutiny of constitutionality. It has always been discussed among, well some lawyers are discussing, those lawyers are drunkards, but the argument is that: why should the Mayor want an ordinance which would prevent or prohibit law abiding drinkers of legal age to drink? If the intention of the legislation is to curb drinking among minors, why not ID up the minors? Let the adults, generally with money, to drink until they die in the morning. Prevent the minors from drinking by requiring the bar or club owners to ID up

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everybody. If you cannot present a what is purportedly a validation government ID with your photograph, so you have your drivers license, SSS cards, wala pa giud school cards, government issued identification cards lang giud, then do not serve that person any alcoholic beverage. Magkano ba pera nung minors as compared to those adults na gustong uminon? Kaya siguro hindi niya pinirmahan. With respect to eminent domain, what is required under the Local Government Code is that there must have to be an ordinance. In all eminent domain exercises, we must understand that while the Constitution does not mention it, there is a precondition for the exercise of eminent domain, and that is the condition of necessity. Is it necessary for the State or the public corporation or the LGU to exercise eminent domain? Because eminent domain again is exercised as a last resort if the State or the expropriator would want to get that property. As it is required in the Local Government Code, there must have to be an offer made by the expropriator to the property owner. Firm offer to buy the property. Of course, if the firm offer is not accepted or is rejected, then the expropriator may opt to expropriate. Expropriation is not the first option, because again there is a precondition or prerequisite not provided for in the Constitution but in decisions of the Supreme Court that there is a necessity to exercise eminent domain. So just like if you are Napocor, Napocor would not file a petition for expropriation but would have to ask the property owner how much would they be willing to part with their property because Napocor would want to use it. In almost all cases though, the offer will not be accepted or is rejected because the offer actually is very very low. It’s not the same as in the open market. Just compensation in some cases has been described as the amount of the property which a buyer, who is not willing to buy a property, is willing to pay and the amount a seller, who is not willing to sell a property, is willing to part with. So that’s the sole difficult to determine. That’s why there are factors to consider to determine just compensation. Even if you go through our Rules of Court on expropriation or eminent domain, the court is even tasked to assign commissioners if there’s a problem with the issue of just compensation. So firm offer first, it must have to be rejected and not accepted, before expropriation can be exercised. In the LGU, the Local Government Code requires that firm offer first, and if not accepted or is rejected, then the local legislative council must have to pass an ordinance authorizing the mayor to exercise eminent domain. And the rest of the provisions in the Local Government Code is reflective of the constitutional requirement that there must have to be payment of just compensation before there could be taking in eminent domain. The only difference in the Local Government Code is that the Constitution provides for public purpose or public use. In the Local Government Code, the public uses are specified. So, housing, and some other specific public purposes. That’s

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) the only difference with respect to public use in relation to the Constitution and the Local Government Code. C. Due process Art III Section 1. 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.

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.

RELATIVITY OF DUE PROCESS Still with due process. The Concept of Relativity of Due Process. The relativity of due process as a concept simply means that while due process is required under Section 1 of Article III that no person shall be deprived of life, liberty or property without due process of law, the requirement of due process is not strictly applied to all persons under all circumstances absolutely. In different types of cases, the requirement of due process may be different. Although due process is really required, more so in procedural due process, it is not the same as it is in all cases, in all persons, in all parties. A good example would be your due process in judicial proceedings and due process in administrative proceedings. While there may have been 4 in judicial procedural due process, there are 7 in administrative procedural due process, your so called 7 cardinal primary rights in administrative due process. Administrative cases do not require the strict presentation of evidence, as it is required in the judicial proceedings. There are even situations where there is no right to cross examine because there is no presentation of witness. So the question is how do you dispute the claims of the other party or the witnesses of the other party? By presenting you own witnesses as well and more in documentary form. In the Rules of Evidence, generally applied in court cases, affidavits are hearsay. They do not have any evidentiary value unless they are generally testified to by the affiant or the one who executed them. That is in judicial proceedings. But if it is in administrative proceedings, like in labor cases, affidavits are good as testimonies. Because the quantum of proof required is different in judicial cases as it is in administrative cases.

Why is that so is because due process is more, shall we say, necessary with respect to an accused in a criminal case because he is up against the entire machinery of the State in a criminal prosecution. In civil cases, no matter how big the claim is or how many hectares of land is involved, nobody’s liberty is affected, nobody goes to jail in a civil case. So, while it is so it does not mean that the parties do not have rights to due process, of course they have. But again, it is applied differently in different situations. But largely, because the constitutional grant of due process or limitation of due process is against State authority for which reason that largely explains why the accused’s right to due process is reemphasized in Section 14 of Article III. In civil cases involving private rights, the State has nothing to do with it generally. But because we all understand in judicial proceedings whether criminal or civil cases, parties must have a right to due process in relation to the actuations of a judge. You talk about jurisdiction. The impartiality of a judge. If these are violated, then there may be a violation of due process. Because here is a state agent, a judge, exercising authority over a case which he has no right to do so. So, if that civil case decided by a judge without jurisdiction, has taken the property of another in favor of the other party of the case, then there may be taking of his property without due process of law in that context. Relativity of due process simply means that it is not absolute in all the cases, it is not the same nor hard and fast applicable to all in any and all circumstance. There is difference in application and it refers to certain cases and to certain parties.

So, is there denial of due process if there is no right to cross examine or if affidavits are accepted as testimonies of witnesses to a case in administrative cases? The answer is no, again because the principle in due process is that due process though required is applied differently in different types of cases, in different situations of persons affected by or in a particular case.

SUBSTANTIVE DUE PROCESS

Even if you go through the Bill of Rights, starting with Section 14, the first paragraph reiterate the due process in Section 1 with respect to an accused in a criminal case. And there is a listing, in the second paragraph of Section 14, of all the rights of the accused, and there are no rights of the private complainant.

PROCEDURAL DUE PROCESS

Section 14. (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

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(recording lacking)….Must not be oppressive or arbitrary. And in the case of Tanada v. Tuvera, there must have to publication because even in the law is as a given, valid, if there is no publication, then that law even if valid will have to be invalidated for lack of publication.

The other aspect of due process is procedural and as we have mentioned, PDP is relative in different situations, actions and cases with respect to the parties of the case. We made special mention of the right of the accused because his right to due process is emphasized in the present constitution. PDP in judicial proceedings require that there be an impartial court of competent jurisdiction, that jurisdiction was lawfully acquired, there must have to be opportunity to be heard

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) (essence of procedural due process), and that judgment must be rendered by the court after hearing.

of these conflicting rights will have to be preferred in a given case.

7 cardinal rules -In administrative cases, there must have to substantial

In relation to human rights law, the hierarchy of rights in the constitution would be espoused: the arbitrary deprivation of life, freedom from torture, cruel and inhuman punishments, freedom of thought, conscience and religion. This would include political beliefs and aspirations and no religious test for exercise of civil and political rights. The first 3 rights generally do not allow regulation by State legislation. Not that It does not really allow but there is some prohibition for regulation on this. The other rights in the constitution would be freedom from arrest, arbitrary detention; this would include ex-post facto and bill of attainder legislation, involuntary servitude, equal protection, rights of the accused, privacy and privacy of communication, abode and travel, speech and assembly and information, and right to association. But these rights can be derogated by reason of any public emergency by reason of national interest and security. Even the free speech right is not absolute. If there is compelling state interest, the free speech right can be derogated.

evidence—there is no necessity of presenting evidence strictly as if you were in a judicial proceeding because for so long as the evidence presented is known to the parties and form part of the records, then the evidence can be invalidated and can be considered by the tribunal. In some cases even, there is no need for cross examination as it were in judicial proceedings. We also made mention that due process in the Constitution is not strictly applied if it were not against the actions of the state because of certain statutory grants of opportunity to be heard. In that extent, we have to consider that is also part of the due process, required not by the constitution but by statutory grants. Common example would be right to appeal, especially to criminal cases. It is part of the right of the accused under rule 115, section 1(i) which is now included in section 14, article 3 of the constitution. The opportunity to be heard on the part of the accused with respect to his constitutional right to due process is already granted and observed when his time is had with the trial court. For purposes of appeal, however, if the Rules of Court does not allow or there is no law allowing it, technically, there is no right to appeal. But because there is such right to appeal in the rules of court, there is observance of his right to due process not by the Constitution but by the Rules of court as granted to him.

Now the rest of the rights in the constitution are granted only in the Philippine constitution right to eminent domain, nonimpairment clause, bail, suspension of habeas corpus, speedy disposition of cases, use of substandard or inadequate penal facilities and non-imprisonment for debt. The non-imprisonment for debt takes its roots from the slavery in the US. This is the most appropriate equivalent of that. JUDICAL STANDARD REVIEW

HIERARCHY OF RIGHTS In relation to the exercise of the state of its power relative to due process and deprivation of some liberties, the concept of hierarchy of rights in the constitution come into play. Meaning, is there such as a thing as ‘preferred or preferential Constitutional rights as provided for in the constitution which the state may not regulate easily or could not be derogated at all? Technically, when the state regulates some of our rights, or mostly of our liberties, the question is the application of the limitations of the powers of the state. But there are some situations where that conflict of rights involves conflict of Constitutional rights of individuals, in which case, court may also come into play because there may be some laws applicable that may regulate some rights. For example, the freedom of expression or free speech rights as against right to privacy of individual. As you can see, ostensibly the conflict of rights is between 2 individuals. But the reason why the right to privacy is protected is because there are certain laws which were legislated protecting this right to privacy. We all know that right to privacy is NOT expressly granted in the constitution and the school of thought is that it is not so expressed because it is admitted, in fact, the most common right to privacy provision would be Sections 2-3 and there are other provisions in law which are part of the Zones of privacy. In which case, if there is such violation of the right to privacy, what ostensibly pertains to conflicting rights of individuals, because of the application of state legislation, then the power of the state to prohibit or prevent such invasion to right to privacy would also come into play and in which case, the court is tasked to weigh and deliberately consider which

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The judicial standard review of legislation involving substantive due process were first used in equal protection questions or issues. The 3 tests used are: 1. Strict scrutiny test or compelling state interest test 2. Intermediate scrutiny or intermediate review test 3. Differential or rational review test 

In the level of tests or which of these tests is used, The STRICT SCRUTINY is the most stringent. What this requires is that the presumption of validity of the regulation has a narrow application. The state must show that there is a compelling state interest that must be protected. You should justify that. Secondly, that that means is the least restrictive of all measures or alternatives. to allow such regulation in order to achieve the objective of such legislation

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INTERMEDIATE SCRUTINY TEST considers the substantiality of government interest and the availability of less restrictive alternatives. As compared to compelling state interest, which is more stringent because the state must be able to show compelling state interest, and that must be protected and that that means is the least restrictive of all measures or alternatives. In intermediate, there is no need to show that. There is only a need to show that the less restrictive alternatives have been considered and that the government interest needed to be shown is merely substantial interest.

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The least stringent of all is the DIFFERENTIAL OR RATIONAL REVIEW. The regulations are valid if it rationally furthers a

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) legitimate government interest without of course inquiring into such interest and examining the alternatives. Generally, when judicial review is invoked for purposes of questioning the validity of legislation under Substantive due process:

offenders if the statute is declared void on its face because it is vague. So this only applies when it involves free speech rights or expression. 

OVERBREADTH DOCTRINE is the reverse of facial invalidation because Overbreadth would require that the law is not really vague on its face. The law is clear as to what acts are covered or penalized, although the law also penalizes what is also supposed to be protected rights. So the law has been applied to cover acts even if these acts are protected. That’s why they use the term ‘Overbreadth’. Can the law be declared unconstitutional because it tends to cover acts which are supposed to be declared protected? Again, this is allowed if it involves free speech rights and free speech regulations. The reason for this is, even if the person is not charged before the courts in a case, but because it affects protected rights, the court may actually declare that law to be unconstitutional so that the protected rights will not be impaired.

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AS APPLIED DOCTRINE is the limited case or petition to declare a law unconstitutional because it is vague if applied to a particular accused or defendant in the case. It may not be vague to everybody but if applied to him, it may be vague and the court may be allowed to declare a law unconstitutional because it is vague if applied to this particular individual. Just like this case of Siton, this would require payment of taxes for lessees, owners of fish pens and ponds and for non-failure of which, would subject these persons to certain criminal liability. The accused here was a fish pen manager and so is he covered by the term ‘owner or lessee’ of the farm or fish pen? Facial invalidation cannot be applied because it does not involve free speech. Overbreadth doctrine could not also be applied because it is a tax legislation but if using ‘as applied’ to him doctrine, there is a possibility that the law can be declared as unconstitutional if applied to him only. The issue is when applied to him, is he covered in the term ‘owner or lessee’ as covered by the enumerated terms in that law? The SC said he is covered anyway .But just to show that ‘as applied’ doctrine can be used to declare a criminal statue as unconstitutional as against a particular defendant and not only limited to free speech rights or regulations but it applies to any criminal statute for that matter.

The most common is GRAVE ABUSE OF DISCRETION as it is in judicial review. Meaning, if the legislation is fair, or whether legislation amounts to grave abuse of discretion, then they can be subjected to judicial review. But as to whether the court will hold that legislation invalid, these 3 tests are used to determine whether this legislation can be allowed or should be nullified. In relation to judicial standards of review, the VOID FOR VAGUENESS DOCTRINE comes into play. This case of PEOPLE V. SITON, this is a 2010 case, the question was WON the accused should be held liable in the tax measure. If a statute is vague, it is void because it violates due process. First question: when does it become vague? A statute is considered vague if it lacks comprehensible standards that men of common intelligence must necessarily guess as to its meaning or differ as to its application. It is not vague simply because the words or phrases are ambiguous. If the statute can be saved by statutory construction or by saving clause, it is not considered vague and there is not void. It is considered as violative of due process because (1) it fails to give fair notice to the person targeted and (2) it gives state through its law enforcement agencies unbridled discretion in the implementation or execution of the law. So how vague it is means that the words or phrases must not be capable of given meaning despite the application of statutory rules of construction. There have been several cases you have encountered by which SC has gone through congressional records to explain or give meaning to what the provision of the law should pertain to. If after use of these rules and aids in guiding the court in interpreting the provision of the law as to what would be the legal meaning and then it is considered as vague, and therefore void. But again, if only a portion of that law is declared invalid, then the rest of the remainder would be given meaning, then that part is not vague and not void. In relation to that void for vagueness doctrine, there are 3 usual traits which make the statute vague and therefore void, have been used. 1. Facial invalidation 2. Overbreadth doctrine 3. As applied application 

When a statute is vague and declared therefore to be void, most of the question on cases on this will be placed as a form of FACIAL INVALIDATION. Meaning, the law which on its face is vague should be declared unconstitutional. The facial invalidation theory to declare the law as unconstitutional is generally allowed when it refers to cases or laws free speech rights and not to criminal or penal statutes. The reason given is that it will prevent the state from prosecuting lawful

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D. Equal Protection We all understand that equal protection or equal protection clause is included under the due process clause it is under section 1 and we have been made to understand that its part of due process but general question of arbitrariness is usually questioned under the due process clause but specific instances of bias and partiality is usually questioned under the equal protection clause. Equal protection simply requires that all persons or things should be treated alike both as to rights conferred and as to responsibilities imposed. It does not require absolute equality but only substantive equality based on a valid classification. And for there to be a valid classification, Persons or things are similar in

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) some particulars of which they are not similar to the rest. It is not required that they are similar in all these particulars but only that in some particulars, they are similar which in others do not hold any similarity. The requisites for valid classification would be: 1. Classification must be based on a substantial distinction 2. It must be germane to the purpose of the law 3. must not be limited to existing or present conditions 4. it must be applied equally to all those who belong to the same class The law does not require absolute equality to all provided there must be absolute equality to all those who belong to the same class.

must have to compelling state interest as to why that law has been made and the intent of that legislation subject of classification is the less restrictive means of achieving that purpose of the legislation. With respect to intermediate scrutiny, the classification must have to be substantially related to a government interest. While on rational basis, there must have to be a rational relationship of this classification to a legitimate government purpose. In the constitution, there are equal protection that is imposed. We have (1) Political Equality , (2) Economic Equality and (3) Social Equality. 

Substantial Distinction/ Germane to the purpose of the law When we say substantial distinction, while substantial means it must not be superficial, the substantiality of distinction is based on its reasonable connection to the intent of the law because classification must have to be germane to the purpose of the law. Age—may or may not be substantial depending on the objective/intent of the legislation. Gender—when used on maternity or paternity laws, it would be substantial. But when used for purposes of minimum wage, that should not be substantial distinction because in labor law, we know that is a fair day’s wage for a fair day’s labor. So it largely depends on the intent of the law to make the classification based on substantial distinctions.

Art IXC, Sec 10 – Discrimination Art XIII, Sec 1 – Social Justice 

Must not be limited to existing or present conditions For so long as the matter or issue sought to be addressed by the legislation where the classification is made is existing or will continue to exist, that classification must continue to exist.

There must have to be symmetrical applicability of the legislation based on the classification of all those falling in the same class. Symmetrical because our common example there for easy reference is our income tax base whereby classification in legislation--- there are several amounts of money as your net income will belong to the same class, you may not earn the same amount but the law would put you in the same category because that is the intent. They are capable of paying the same tax worth. The standards for judicial review of classification would still follow the 3 tests—(1) The strict scrutiny, (2) intermediate and (3) rational basis test. This simply means that in strict scrutiny, there

TRANSCRIBED BY 4-MANRESA BATCH 2013 Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista

With respect to ECONOMIC EQUALITY, fundamental equality for the law, reduction of inequality by reducing wealth in political power, nationalization, mining, land ownership of public utilities, mass media, advertising and preservation of marine wealth and protection to labor and social justice provision. Art II Sec 14 Art III, Sec 11 - Free access Art VIII, Sec 5(5) – Legal Aid Art XII, Sec 2 – Marine Resources Art XII, Sec 10 – Naturalization Art XIII, Sec 1-2 – Social Justice Art XIII, Sec 3 – Protection of Labor

It must be applied equally to all those who belong to the same class It cannot be made applicable to existing conditions only because it will amount to CLASS LEGISLATION. Or anything or Any person which is supposed to be covered by the legislation but because of the classification becoming applicable to present conditions only, it will be violative of equal protection of those who may be similarly situated in the future who will no longer be covered by the legislation.

With respect to POLITICAL EQUALITY, we have policy that our candidates must be free from harassment and discrimination, reduction of political inequality by reducing wealth in political power, reduction of acquisition, use, ownership of property for purposes of political equality, and also guarantees the power of the people’s initiative in government decision making. Then there is equal access to government service, prohibition on political dynasties, sectoral representative in congress and LGUS.

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This is the same with SOCIAL EQUALITY provision except that in addition to those, we have free access to courts and legal aid. Art XIII, Sec 1 – Social Justice

There is a question, yesterday there was an opinion in the newspaper because of the statement of Santiago as to WON those members of congress who are accused of plunder be placed in suspension under the Plunder law. Remember the case of Santiago v. Sandiganbayan, she used to be BID commissioner and she was charged for violation of RA 3019. Under that law, when a valid info is filed in court, the public officer charged shall be placed under preventive suspension for 90 days or 6months. Miriam Defensor became senator and SB issued an order suspending her. Ang nakalagay sa law, ‘shall be suspended from office’. There were 2 issues there as to whether (1) a sitting senator can be suspended by a court and not by his/her peers under section 16 of article 6 that by vote of 2/3 of the members of the house, a member of congress may be suspended or

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) expelled and the (2) second issue is to what office should that public officer be suspended? The suspension ordered by the court under RA 3019 is not the suspension under the constitution which only the peers of the members of congress can impose. Preventive suspension is not a penalty while the suspension of the members of the congress is. Since the law merely mentions, ‘office’, then in whatever office you are occupying now, you should be suspended in that office. So senator Santiago should have been suspended but she was not suspended because she was already acquitted by the SC when it rendered its decision in 2001. But when she was still sitting then, she could have been suspended. Could this happen to those senators who are accused of plunder now? Of course they should NOT be suspended yet because there is no valid information yet filed in court. But the plunder law says that once a valid information is filed in court, they should be suspended until the case is terminated. Question: what if hindi xa senator from 2016-2019 but next election, nanalo ulet and the case is still pending, can that senator be suspended? Is it going to be a perpetual preventive suspension? Nobody says in the law yet but you see, if you go by the reason why the suspension should not be more than 60 days, the traditional reason is that, you deny the constituents of legislative representation that’s why its limited to 60 days. SC said that there is no problem for expulsion. Iba kasi pag expulsion. From the time the member is expelled, the constituents are deprived of representation but the constituents have a chance to have another representative because there may be a special election. Unlike in a suspension, the position cannot be filled up because the representative is still there only that he is suspended. That’s why the suspension is only limited to 60 days. Here comes plunder law saying that officer is suspended until case is terminated. Alam mo naman sa pilipinas, dugay mahuman ang case. I doubt if they will still be covered by that preventive suspension.

II. REQUIREMENTS OF FAIR PROCEDURE A. Arrests, Searches and Seizures, Privacy of Communications Art III Section 2. 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. Section 3. (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. RULE 126 Search and Seizure Section 1. Search warrant defined. — A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (1)

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Section 2. Court where application for search warrant shall be filed. — An application for search warrant shall be filed with the following: a) Any court within whose territorial jurisdiction a crime was committed. b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. (n) Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure of personal property: 1. Subject of the offense; 2. Stolen or embezzled and other proceeds, or fruits of the offense; or 3. Used or intended to be used as the means of committing an offense. (2a) Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines. (3a) Section 5. Examination of complainant; record. — 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 the affidavits submitted. (4a) Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a) Section 7. Right to break door or window to effect search. — The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (6) Section 8. Search of house, room, or premise to be made in presence of two witnesses. — No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (7a) Section 9. Time of making search. — The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (8)

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) 2.

Section 10. Validity of search warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void. (9a) Section 11. Receipt for the property seized. — The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (10a) Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. — (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

So in those two general situations the search and seizure is supposed to be considered as unreasonable. 1. Requirements for Search Warrants Based on the Constitution and what is required under Rule 126 of your Rules of Court, the REQUIREMENTS FOR THE ISSUANCE OF A VALID SEARCH WARRANT WILL BE AS FOLLOWS: 1.

2. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complained with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court.(11a) Section 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (12a) Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequent filed in another court, the motion shall be resolved by the latter court. (n) SEARCH AND SEIZURE Now we go to search and seizure. The concept of search and seizure or the right against unreasonable search and seizure in our Constitution is based on the general concept of Right to Privacy. The right to be left and be let alone by the State, unless there is a compelling reason, the State cannot interfere with our right to privacy in our houses, structures, buildings, persons, documents and other rights. The prohibition or proscription in the Constitution is only against UNREASONABLE SEARCHES AND SEIZURES. There are two situations contemplated: 1. When a search is conducted without any warrant validly issued and the instances not fall under any of those valid warrantless searches and seizures then it is considered to be unreasonable; and

TRANSCRIBED BY 4-MANRESA BATCH 2013 Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista

Even if there is a warrant issued by the court, either a warrant is invalidly issued by the court (invalid warrants) or warrant has been implemented illegally.

3.

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There must be an application filed or petition by the applicant and/or his witnesses before a court of proper jurisdiction; It must have to be issued after the judge has determined the probable cause which is the requirement in the Constitution; The determination of the probable cause by the judge must have to be personally done by him, it could not be delegated to any other; and The judge must have to satisfy himself as to the existence of probable cause by asking searching questions based on the personal knowledge or based on responsive or answers of the applicant and/or his witnesses.

Probable Cause- this refers to such amounts of facts and circumstances which would lead the judge to believe that a crime may have been committed and that the tools, effects and things that will be used in the commission of the offense are in the place to be searched and therefore must have to be seized. So it depends on the determination by the judge as to what would constitute as to satisfying the requirement of probable cause. With respect to these questions to be asked the Rules of Court requires based on the interpretation of the Supreme Court on what would constitute these questions, the standard rule made by the SC is that they must have to ask searching questions. Searching in the sense that the judge must have to ask nonleading questions and with these responses the judge will be able to satisfy himself of the existence of probable cause. Of course the responses must have to be based on personal knowledge and as we have known in the Rules on Evidence, personal knowledge is the basic rule in what we know as matters which a person can testify on. If he has no personal knowledge on facts that would be beyond his competence to satisfy. It must have to be acquired by him through the use of any of his senses. If that fact would turn out to be false later, he could be charged criminally for such false testimony or perjury testimony. The Rules of Court also requires that the application during the taking of the testimonies of the applicant and/or his witnesses, they must have to be in writing. What we normally would do is that there would be transcription of the testimonies of the applicant and/or his witnesses. It also required that the warrant must have to be issued in connection to one specific offense. The entire idea is to prohibit the issuance of what is known as SCATTER-SHOT WARRANT OR GENERAL WARRANT. Since the application for a search warrant is precisely made in order for the State or his agents to seize and secure evidence which will be used against the person or persons to be charged later. Meaning there is no criminal case pending

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) yet as it is normally had in search warrant applications. The problem is that the State would want to seize evidence to be used later on in a criminal case or cases to be filed against the person subject of the warrant. That is why the warrant must specify as to what particular offense is the warrant to be issued for.

operating system it must have to be specified as having been illegally obtained and/or illegally downloaded or used in that particular computer, otherwise there would be no allowance for seizing a CPU simply because it is a computer unit because possessing the computer units is not illegal per se.

Then there must have to be particularity of description of the place to be searched and of the things to be seized. Of course, the particularity of the description of the place to be searched also as required by the Rules of Court now, the applications for search warrant must include a sketch in order to avoid any problems with respect to the variance in the place applied for and the place as indicated in the warrant. The problem being compounded or brought about by the fact that in the country addresses are not too specific. If you say No. 5, there is even no number in our streets as common as it is. Streets are not even identifiable by name. That’s the reason why the particularity in the description of the place largely depends on how under the circumstances it could be particularized. Same way in the particularity in the description of the thing or things to be seized.

With respect to the other Rules of Court provisions we made mention about the issuing court, the warrant now must have to applied for and issued by the court which has territorial jurisdiction of the place where the crime has been committed, that is the general rule. As an exception for compelling reasons any court of the judicial region where the crime is committed or where the warrant is to be enforced if the court which has territorial jurisdiction over the place or the crime has been committed is not functioning. th So Davao City is part of the 11 Judicial Region, this would include the other Davao provinces and I think part of the General Santos if I am not mistaken. So if the warrant is supposed to be implemented in Davao City, we could not ordinarily apply in the Davao provinces court, it must have to be applied for and issued by the Davao Court. Unless again for compelling reasons you can apply in a court within the same judicial region. Of course if there is already a case filed the application must be made and the warrant must be issued by the court where the case is pending.

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For example in one case it would require, for example the warrant is applied and issued for illegal possession of firearms, if the application and search warrant would indicate even the serial numbers of the fire arm, then the SC said it would require an impossibility. Or if it would require to the prohibited drugs to particularize it in terms of correct amount or quantity or volume that would require an impossibility, because of the sheer difficulty in particularization simply because these things or theses items would not normally be sold under ordinary circumstances. There is utmost secrecy in drugs or fire arms trade where it is usually by surveillance determinable that there is an undetermined caliber of fire arms inside that place intended to be searched or with respect to the prohibited drugs as well.

For so long as there is particularization sufficient enough to grant authority to the implementing agents as to what items to seize then that would be sufficient. Of course it would be different if the subject of the search warrant are items which are ordinarily not illegal per se because by the manner that they have been used they have become illegal and therefore subject of the search and seizure. 

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For example in gambling, normally gambling paraphernalia and money. The money must have to be specified as having been used in relation to gambling like bets, because if what is indicated there is money, possession of cash or bills is not illegal per se. Same thing with video piracy in old cases involving Columbia pictures and similar other motion pictures the possession and custody VCRs or video recording machines and other paraphernalia which are ordinarily found as items or equipment in a video store if they are not specified as having been used in relation to illegal video piracy then they cannot be seized because there is no specification that they are illegal. Same thing with this other intellectual property violation, if say it is an illegal operating system or it is an

TRANSCRIBED BY 4-MANRESA BATCH 2013 Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista

The other exception there would be under special rules and that refer violation of intellectual property laws. Under your Intellectual Property Rights Act, the SC has issued a resolution allowing the executive judge of the RTC of Manila and the executive judge of the RTC of Quezon City to receive process and issue search warrants to be implementable in any part of the Philippines for violation of intellectual property rights. Another requirement in the Rules of Court with respect to validity in the implementation of the warrant you have your 10day period. The search warrant is valid for 10 days only from the date of issuance. Of course the question normally asked there is whether or not the search can be conducted continuously or to be stopped let say 5 o’clock and then continued the following day? It would largely depend on whether or not the nature of the search would require continuous search, because we have also to contend with one rule that the rule in searches under a warrant is day time search. There could be no nighttime search unless there is a special application made and also a special order granted by the court that a nighttime search is allowed. The reason for that in one of a very old case is that in nighttime normally there are more violations committed and because to allow a search in the house or premises by reasonable search warrant is already a violation of one’s privacy, the intrusion must have to be minimal allow a nighttime search would be more that the minimal intrusion allowable. Again, is the search has to be made and it is required that it will not be completed in one day then it can be done the following day if there is no nighttime search order granted. For so long as the search is done within the 10-day period then the search would still be valid.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) Of course it will not be the same if the subject of the search is a 20sq. meter residential unit, how long would it take a police officer to search this place do not tell me that you would have to continue the following day or next day. It is no longer reasonable; it will be a violation already, even if the subsequent searches are conducted within the 10-day period. We have to consider the nature of the search to be conducted. Finally with respect to witnesses, search of houses, roads any premises there must have to be witnesses, either the lawful occupant, a family member or if they are strangers, 2 witnesses. We follow the witness rule in searches that is required not only because the Rules of Court under Rule 126 on searches requires it there is also a felony under the Revised Penal Code for searches conducted without the presence of the witnesses. That is why in most searches conducted they would have 2 members of the barangay to act as witnesses for them because of the requirement of 2-witness rule. In relation to the issuance of the warrants, you have this 2011 case of Pollo v. Constantino David, this involves the issuance of memorandum order by the CSC allowing searches of files in government computers in the workplace to ensure that the computers are only used for official purposes. The validity of the memorandum of the CSC was questioned because it is supposed to be an unwarranted search. The SC upheld the validity of the memorandum order saying that it is an order issued for purposes of searching a governmentowned computer so the government owns the computer so if the government issues an order authorizing a search on its own property then that is not constitutionally infirmed. It must have to be distinguished from the 2008 case of Atty. Morales, clerk of court of MTC Manila. Atty. Morales was charged administratively for engaging in private practice despite the fact of being clerk of court of MTC-Manila. One of the objects which was subject to a search was his personal computer which he has been using in his office. The purpose of the search was to look into the files to determine whether or not Atty. Morales was actually practicing law with the presence of pleadings and other documents in his personal computer, it could be evidence to prove that he is engaged in the private practice. The SC did not allow the use these files from the computer because it was an unwarranted search. There was also no waiver on the part of Atty. Morales. The distinction must be made because the computer was a personal computer and so there must have to be a valid search without a warrant if no warrant was secured prior to the search. But for government issued computers, there is no need for a warrant because it is a government property.

(7) (8) (9) (10)

Exigency Search and seizure by Private persons Airport Security Jail Safety

The common denominator in search without warrant which are valid is the so-called lack of sufficient opportunity to secure a warrant. Because of the circumstances that would prevent the state agents to secure a warrant first. While search warrants may be issued even in a minutes application for so long as the judge is convinced that probable cause exists, still there is a delay caused if the warrant is still to be applied and secured from the court. Lack of sufficient opportunity to secure a warrant then it might fall under valid warrantless search and seizure. SEARCH OF MOVING VEHICLES Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. It is based on the nature of the vehicle which is movable it can be taken from the jurisdiction of the issuing court. Assuming it were to follow the procedure for securing a warrant, by the time the warrant is issued the vehicle sought to be searched would no longer be there and the warrant could not be effective. Also while it is allowed to be conducted in a moving vehicle all these cases would show that there is still a minimum requirement that probable cause must have to be established not by any applicant but by the searching officer meaning the searching officer must have to determine at least the minimum that there is a need to stop the vehicle and cause the search on the vehicle. It is not correct to say that just because search of moving vehicles is a valid instance of warrantless search the police officers can just flag down vehicles even if there is no reasonable suspicion that the crime is being committed, that the effects, tools or objects or things to be used in the commission of the crime are inside the moving vehicle that is why it has to be flagged down, stopped and it has to be searched. There must have to be that minimum determination to be made by the police officer. So the problem is it is not determined by the judge it is determined by the police officer. Because of such determination made by a non-judicial person who is a law enforcement agent, what he is up to is always up to securing or seeking evidence for the purposes of filing cases against those persons. There is no concept of impartiality as it were if the warrant is to be issued or probable cause is to be determined by a judge because police officer is always interested in having evidence obtained in filing criminal cases he being a law enforcement agent. But again that is still required as a minimum so that vehicles could be flagged down and thereafter can be searched.

2. Valid Instances of Warrantless Searches and Seizure  (1) Search of Moving Vehicles (2) Search incident to a Valid Arrest (3) When things seized are within plain view of a searching party (4) Stop and Frisk (5) Express Waiver (6) Search of Warehouse in Violation of Customs and Tariff Code or to enforce Customs Law

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In relation to search of moving vehicles will be our Search in Checkpoints that has been established in the case of Revilla for a very long time, where in Metro Manila checkpoints were established by the National Capital Police Command and the question was raised whether ot not the searches in these checkpoints are valid. But For most Davao City residence that is already a common occurrence so there is not much issue, but in Metro Manila that is not something that they see on a daily basis.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014)

These rules were established: 1. The checkpoints must not be movable; they must have to be stationery. 2. The locations of the checkpoints has to be determined by the commanding officer in charge of that particular area of responsibility, it could not be determined by the police officers manning the checkpoints. The idea being that it is for the commanding officer to determine which area would be the best area to do a checkpoint considering the limited resources in personnel and/or manpower of the police command. 3. The police checkpoint must be manned by a police officer. You may have noticed during elections as required under COMELEC Resolutions there must also be the participation of an election officer for every COMELEC established checkpoint that is during the conduct of the elections. 4. Search is limited to a visual search. When you say visual search, ideally occupants must not be detained in the checkpoint longer than what is necessary for a visual search. Also, they must not be required to open any compartment in their vehicle nor do they have to be required to get off the vehicle. However, as always as an Exception, if there is probable cause for these police officers manning the checkpoint to conduct a more extensive search then they can conduct a more extensive search, just like on our discussion earlier on search of moving vehicle, the determination probable cause is made by police officers and men manning the checkpoint and so if there are facts and circumstances would permit them to conclude that there is a probability that there is an ongoing criminal activity inside the moving vehicle and there is a need to conduct a more extensive search they can conduct a more extensive search. In these situations the SC made clear that even if all of these are complied with, it doesn’t mean that searches in checkpoints are generally valid, because there may be individual cases where there are violation of one’s rights to privacy or unreasonable searches and seizures and even if all these are complied with they can still file cases for such individual violations. SEARCH INCIDENT TO A VALID ARREST There must have to be a valid arrest before a search incident thereto could be valid. If the arrest is not valid there can be no search incident to a lawful arrest. As to a subsequent or incidental search there are 2 considerations to remember: 1. There is a limitation on space and 2. There is a limitation on time.  

Limitation on Space. Limitation on Space would require that the search be made on the person or body of the person arrested Limitation on Time. That it made within this his immediate vicinity where he has effective control. So that even if that person who is supposedly is arrested validly would say throw evidence like drugs or whatever those can still be seized and can be used against him because he has effective control over that immediate vicinity.

TRANSCRIBED BY 4-MANRESA BATCH 2013 Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista

The same thing with the other purpose for allowing search incident to a valid arrest with respect to weapons. The real reason a person can be searched bodily and also of his immediate vicinity where he has effect control is to ensure that the arresting officers will remain in the entire duration until he is taken into custody because that person might have a concealed weapon with him or there are weapons within the immediate vicinity for he could take control of them to use them to effect escape or to commit acts of violence. So limitation in time and limitation in space. WHEN THINGS SEIZED ARE WITHIN PLAIN VIEW OF A SEARCHING PARTY (PLAIN VIEW DOCTRINE) This is a normal justification for seizure of items during a search by virtue of a warrant where the item is seized is not included in the warrant. Meaning if there are items found during the conduct of the search by virtue of a warrant and they are considered as evidence in plain view, they could be seized not because of the warrant (because they are not listed there) but because they fall under the so-called Plain View Doctrine. The elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who had the right to be where they are; (c) the evidence must be immediately apparent[;] and; (d) “plain view” justified mere seizure of evidence without further search. For plain view doctrine to apply: 1. There must be justification for the prior intrusion E.g. a search warrant issued by the court so that justifies your intrusion. Why were you there? It is because there is a warrant issued by the court. Of course not all valid intrusions are by virtue of a warrant. There are also intrusions where you have the right to be there even if there is no warrant issued. You are trying to arrest a person and the person ran towards an enclosure, and so you got inside the enclosure to effect the arrest of that person and while you are there you discovered this evidence that is under the law considered as evidence under the plain view. First is the validity of the intrusion or justification of the intrusion. Again the first would be the justification of the intrusion; the common question asked is “Did the police officers have the right to be there in the first place?” If they did not have any right to be there then they could not apply the plain view doctrine. 2.

The evidence is inadvertently discovered. Meaning in the state of mind they are not actually looking for it because they were just discovered when they were there then they are supposed to fall under the plain view doctrine.

3.

The evidence is open to the eye or hand of the police. So ordinarily in plain view viewing it. But why is it in some cases the SC has said open to the hands because the search by virtue of a warrant is conducted and a drawer is searched, you have seen that in movies right , they search drawers and they don’t actually take everything out they just try to feel what’s beneath or under those garments. When they feel

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) something like a gun then that would be seized because it is open to the hand. 4.

The evidence of illegality is immediately apparent. That’s where most of the discussions are. The last is the evidence of illegality is immediately apparent. In one case the SC did not apply the plain view doctrine because of the facts of the case: There was a buy-bust made and the drug transaction was done in the living room of the house. When they announced the arrest, they went to search the kitchen of the house. The kitchen and the living room were divided, there was a divider, and one cannot directly see the kitchen from the living room where the buy-bust operation was actually done. When they went to the kitchen they found a plastic bag which is not even transparent, it is opaque, meaning colored. It is hung by the nail tucked in the wall and so they had to bring it down had to open the plastic bag and they found something wrapped in a newspaper and they had to open it and they found bricks of dried marijuana leaves. So the question there is whether or not those marijuana leaves are admissible as evidence. The SC said they could not be because they could not be seized under evidence in plain view. Why? because the evidence of illegality is not immediately apparent just by looking at it. The SC seems to suggest that you already know that it is illegal. So normally this plain view doctrine would apply to items which are open to the eye or the hand and that by nature they are illegal. That would refer to only two things: GUNS and DRUGS. We don’t have right to bear arms. Possession of firearms does not enjoy the presumption of validity and the presumption is that it is not permitted. It is for the person who has control or in possession of the hand gun to show that he is duly permitted by the State to possess it. So the presumption is that it is not permitted. So the evidence of illegality is immediately apparent. So with prohibited drugs, perhaps with regulated there may be some legal excuse because you might have been allowed by the State to possess regulated drugs. Like for your medication. Prohibited drugs are illegal per se so the evidence of illegality is immediately apparent. That would be the requirement which is most discussed with respect to evidence in plain view. I would often refer or cross-reference this to the case of CA vs. PITA, involving that seizure of “pornographic or obscene materials”, the Chief of Police of Manila directed his police officers to seize all obscene or pornographic materials being sold in the streets of Manila. These police officers confiscated all the magazines which are according to the pornographic and obscene. The SC said the determination of what is obscene or what is pornographic is a matter of judicial discretion, simply because the evidence of illegality is not immediately apparent. Who could say that that is pornographic or that is obscene, unlike the prohibited drugs or guns. There is no argument. Unless you are duly permitted to possess that then you can be excused

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otherwise the presumption is, it is not permitted. When it comes to magazines which are apparently pornographic based on the determination of the police officers the problem is obscenity at least per jurisprudence is based on contemporary community standards. If the material taken as a whole would only cater to the __ interest based on contemporary community standards, whose community are we talking about? Whose standards? The illegality is not immediately clear because there has yet to be a determination whether or not these materials are appealing purely to the __ interest or is there any social redeeming value. STOP-AND-FRISK The stop-and-frisk situation is based in the US case of Terry v. Ohio, a 1968 case. This was based on the discussion of the SC in the US that in a stop-and frisk situation, there is actually no intent to search a person, to seek evidence, other than to protect the safety of the police officer in an appropriate circumstance while he’s investigating possible criminal activity. In this old case of Terry v. Ohio, a police officer was on duty and he had observed two persons upon the casing a store and he suspected that there might be a robbery to be committed. So, he stopped these two persons and frisked them, one of the accused is John Terry, and where he bodily topped them, they were found to have concealed weapons with them. So, they were charged with concealment of a deadly weapon under Ohio statute and they were convicted. On appeal to the US SC, the SC affirmed conviction. The appeal was supposed to be on the th th violation of their 4 amendment right. The 4 amendment right is similar to our search and seizure clause. The US SC affirmed the conviction by a majority saying that in that situation, in an appropriate circumstance, what was done was actually to search, no not search, they actually avoided the use of the word searching, but to frisk a person for possible concealed deadly weapons to ensure the safety of police officer while investigating possible criminal activity. So, this was applied in that Philippine case of Posadas v. CA which originated here in Davao where the local court refused to exclude the evidence on the ground that it was not an instance of that search where the police officers have already a personal knowledge that there’s a criminal activity on going and that the search was done to secure and seize evidence. What was applied in that Posadas ruling was the stop-and-frisk situation under the Terry v. Ohio decision and this was affirmed by the Philippine SC as well. What was to be emphasized in stop-and-frisk situation was the lack of intent on the part of the police officer or law enforcement agent to seize evidence because he already had knowledge that there’s an on-going criminal activity. What the decision allows is for the police officer to stop that person in order for the police officer to frisk him for possible concealed deadly weapon (not for evidence that can be used against him) but to ensure his safety while he’s investigating possible criminal activity. The appropriateness of the circumstance must have to be likened to a situation where like in the dead of the night, in the dark, in a secluded alley, there is a person acting suspiciously, so the police officer has the right to conduct a stop-and frisk situation. In the Terry v. Ohio case, though it

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) was not in the dead of the night, but the main avenue where the store was suspected to have been cased by these suspects was somewhat deserted. In the Philippine case of People v. Mengote, this was also an old case, the SC did not apply the stop-and-frisk situation because the circumstance was not appropriate. If you can remember this case, this case involved a police tip or the police station received an informant’s tip or call for assistance because apparently there was a person walking into-and-from in front of a store and there was something bulging in his waist line and he was acting suspiciously. So, the police responded to the call and in fact saw this person walking in front of a store and, true to the description, he fit the description, and so they arrested him and found in his possession was a fan-knife and I think a local pistol. So he was charged accordingly. The SC did not affirm the conviction because it was not appropriate. The SC noticed or observed that based on the records in the trial court, the incident took place about 12 noon in the corner of two busy streets or intersection and it was not actually ascertained and there were several people passing in that corner or intersection. The person may have been acting suspiciously, there might have been something bulging in his stomach, but the SC said that that alone would not arouse suspicion where the police officers would have the right to stop-and-frisk him in order to investigate possible criminal activity. So, the appropriateness of the situation or circumstance has to be emphasized in order to allow a stop-and-frisk situation. In relation to plain view and stop-and-frisk, you have the 2012 case of Ong v. People. Ong was driving a motorcycle and he was apprehended for not wearing a helmet. When he was waiting for the TOP (temporary operator’s permit) to be issued to him because he was apprehended, he was I think acting suspiciously according to the apprehending officer for which he was bodily searched and taken from him, actually from the pocket of his jacket, several items, one of which was a tin can and when it was opened, because he was asked to open it, it contained a prohibited drug. So the question is whether these items are admissible against him having been charged of violation of the Revised Dangerous Drugs Act, the SC said that it could not be search incident to a valid arrest validating the search and therefore making the evidence admissible because there was no arrest to begin with. When you are actually apprehended by reason of a traffic violation without any other resulting acts or damage, for example, traffic violation nabunggo nimo ang poste human nahulugan ang tao patay may resulting damage yun, but ordinary traffic violation, nag beat ka ng red light without a helmet, no other resulting violation, according to the traffic manual, that is not supposed to be an arrest, you are just to be issued a temporary operator’s permit and your driver’s license is taken, so if that is the situation as with Ong in this particular case, the SC said there was no arrest and therefore there could be no search incident to a valid arrest. It could not also fall under evidence in plain view because the facts would show that the prohibited drug was found inside a tin can which was taken from his pocket meaning just by looking at the person or even by the tin can, the evidence of th illegality is not apparent which is the 4 condition of the plain view doctrine to be applicable. It could not also fall under the stop-and-frisk according to the SC because in stop-

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and frisk situation, again you go to the appropriateness of the circumstance, and assuming according to the SC that it was appropriate for the police officer to frisk him. Frisking according to the SC is to tap the person on his outer garment. You could not tap a person like tap or frisk his pockets and everything, you could not ask that person to empty his pockets because that is outside the ambit of what is allowed in stop-and-frisk. Frisking is actually to tap the person from his outer bodily clothing. I-fefeel lng kung may posibleng krimen. The prohibited drug was taken inside a tin can, inside the pocket which the SC said was beyond the allowable frisk under the stop-and-frisk situation. EXPRESS WAIVER In express waiver, several considerations: 1. The waiver must declare, with full understanding, the consequences of the waiver. Of course it presupposes that the person understands his rights (meaning his rights against unreasonable search and seizure) and that he is willing to waive such right knowing the full consequences of the waiver (meaning that any evidence that is seized can be used against him in any court of law). 2.

The waiver must have been given by the person to whom it pertains. A classic example would be in a hotel room where the police officers would want to search that room of a legal occupant of a hotel room, but when the police officers have knocked on the door and asked for permission or consent, an unauthorized or unregistered occupant of the hotel room was the one who answered that knock and eventually gave them consent, is that a valid consent or waiver? If occupancy or possession of the room is to the authorized occupant, then it is that person who has the right to give consent or waiver. It must have to be distinguished from what could be an IMPLIED WAIVER OR CONSENT. Normally, there are situations where people whose rights are to be affected would fail to object or protest to the intended search simply because they are afraid to do so. The waiver must have to be express, meaning again there must have to be full understanding of his rights and the consequences of his waiver and it must not be based upon implication simply by reason of one’s failure to protest or object to the intended search. In the case of Veroy, an old case also based in a Davao incident, the search by reason of a waiver or consent must have to be done consistent with the terms or conditions of the waiver. In that case the waiver was to allow the police officers to search the house for presence of military soldiers who were considered to be rebels and so the fact that there were some supposedly subversive materials which were found, discovered, and seized from places in the house where no person where suspected to fit, where excluded by the SC simply because the search has been done outside of the parameters of the waiver or allowance or consent. So, they must conduct the search in relation to waiver or permission granted by the person to whom the right pertains.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) SEARCH OF WAREHOUSE IN VIOLATION OF CUSTOMS AND TARIFF CODE OR TO ENFORCE CUSTOMS LAW The last would be under the Tariff and Customs Code. This is search in violation of the tariff and customs code and limited to warehouses and modes of transport. This does not include dwelling houses or places use for residence. That is why the joke is that if you are a smuggler you’ll try to keep smuggled goods inside your house, don’t keep it inside a warehouse so that they must have to secure a search warrant first before they would seize it otherwise it will be an invalid instance of warrantless search. SEARCH AND SEIZURE BY PRIVATE PERSON Now you have your Rule 27 Production and Inspection of documents. The question is: Is this a species of warrantless search? Rule 27 allows upon a valid order issued by a court upon application to allow the adverse party to inspect photographs, documents, papers, books, accounts, objects, letters or tangible things not privileged which constitute or contain evidence material to any matter involved in the action, or order any party to permit entry upon designated land or other property in his possession or control. It is not a species of search when there is no warrant but there is court order. Well ostensibly looking at it, it may be but technically is not. Production of Documents is a form of discovery. As we all know the rules of court as to discovery primarily would involve civil cases although the same modes of discovery or some of the modes of discovery are applicable to criminal cases. And these involve private rights of private parties. It is not the state imposing itself or its authority to seize or enter premises to inspect and seize “these” to form part of the evidence material to the case. AIRPORT SECURITY Has not been the subject of cases traditionally considered as valid instance of warrantless arrest but by reason of all these acts of terrorism they say airport security has been a subject of 3 or 4 cases of Philippine SC where searches conducted by airport security personnel are considered as a valid instance of warrantless search and seizure. JAIL SAFETY Not traditionally considered as one of the valid instance of warrantless search and seizure but because of jurisprudence SC has said that as part of jail security to maintain the security in the jail premises, not only for the purposes of keeping the inmates in but also for the protection of the jail guards and of the public then searches and seizures by reason of jail security procedure is also allowed even if there is no search warrant issued. 3. Wire Tapping REPUBLIC ACT No. 4200 - AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES. Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other

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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 dictaphone or walkietalkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, 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 to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence. The order granted or issued shall specify: (1) the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the telephone number involved and its location; (2) the identity of the peace officer

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense or offenses committed or sought to be prevented; and (4) the period of the authorization. The authorization shall be effective for the period specified in the order which shall not exceed sixty (60) days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest. All recordings made under court authorization shall, within fortyeight hours after the expiration of the period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit, and certifying that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the envelope or package deposited with the court. The envelope or package so deposited shall not be opened, or the recordings replayed, or used in evidence, or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded. The court referred to in this section shall be understood to mean the Court of First Instance within whose territorial jurisdiction the acts for which authority is applied for are to be executed. Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or investigation. Section 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly amended. Section 6. This Act shall take effect upon its approval. 4. What may be seized? Section 3. 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 (c) Used or intended to be used as the means of committing an offense. (2a) Now what are the objects of search warrants under Rule 126? The objects of the search warrant would be your fruits or proceeds of a crime or those which may be used for the commission of the offense. 5. Remedies in Cases of Violation Violation of your rights against unreasonable search and seizure, your remedies would be: (1) THE EXCLUSIONARY RULE. The evidence obtained may be excluded in evidence.

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Art III Sec 3 (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. The question is when do you have that excluded? For objects or things, you can have that excluded either you file a motion to suppress evidence before you go to trial or you can also file a motion to quash the warrant if there is a warrant issued and items were seized under such warrant. If the motion to quash the warrant is granted, then automatically the evidence so obtained may be considered as inadmissible. (2) CIVIL ACTION FOR DAMAGES. under Article 32 of Civil Code will also be one of the remedies and they are not exclusive of each other. Art. 32 NCC. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxx (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (3) CRIMINAL CAUSES UNDER THE RPC. Articles 128, 129, and 130, RPC. These involve trespass to dwelling, searches without witnesses, and felony for illegally implementing a search warrant. Section Two. — Violation of domicile Art. 128. Violation of domicile. — The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any dwelling against the will of the owner thereof, search papers or other effects found therein without the previous consent of such owner, or having surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to do so. If the offense be committed in the night-time, or if any papers or effects not constituting evidence of a crime be not returned immediately after the search made by the offender, the penalty shall be prision correccional in its medium and maximum periods. Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. — In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceeding P1,000 pesos shall be imposed upon any public officer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same. Art. 130. Searching domicile without witnesses. — The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) default, without the presence of two witnesses residing in the same locality. Those are the remedies in case there are violations of rights against unreasonable search and seizures. 6. Requirements for Issuance of Warrants of Arrest Rule 112 Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. (b) By the Municipal Trial Court. — When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant or arrest by the judge shall be governed by paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If the findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching question and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. (c) When warrant of arrest not necessary. — A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. (6a) Rule 126 Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines. (3a) Now with respect to WARRANTS OF ARRESTS, the same constitution or provision of the constitution requires only a

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determination of probable cause by a judge. However, the Rules of Court would require that the judge in determining probable cause would have, based on SC decisions, would have to go over personally all the records of the criminal indictment, meaning from the affidavit complaint, the affidavit of witnesses, the counter affidavit of the respondent now the accused and his witnesses if any, the resolution of the prosecution or the investigating officer who filed the information, the information and all other available records during the preliminary examination or investigation for him to determine the existence of probable cause. The judge is not required to take deposition or testimonies of applicants or witnesses unlike in search warrants because the difference lies in the fact that in search warrant applications there is no criminal case yet pending unlike in issuances of warrant of arrest that there is already a criminal indictment started with the investigation conducted by the appropriate investigating office, what is before the court is the entire records of the case ending with the information filed before it for him to determine that there is probable cause to issue the warrant. Under the Rules of Court now, traditionally, it is said that the determination of probable cause to file the case is an executive function, while the determination of probable cause to issue the warrant is a judicial function. So there seems to be a difference between determination of probable cause by an investigating officer to file a case and determination of probable cause to issue a warrant of arrest. But under the Rules of Criminal Procedure now, the judge is authorized to determine the existence of probable cause to continue with the indictment even if the investigating officer has already found that there is probable cause, once the entire record inclusive of the information is before the judge, the judge can go over it and determine whether or not there is probable cause to continue with the case. So, the judge is given “the authority to review the findings of the investigating officer”, in effect, the judge can nullify the finding of probable cause by the investigating officer and order the dismissal of the case. For example perhaps you have read in the news last week, those charged in the killing of a law student of San Beda by the family name Marcus, they were charged with the antihazing law violation, several accused were dropped upon orders of the court because the judge found that there was no probable cause against most of the accused, and apparently De Lima who belongs to the same sorority and fraternity has ordered an investigation why it has happened as if we are surprised why the charges against most of them were dismissed. If the judge finds that there is probable cause to continue with the indictment or does not find probable cause to continue with the indictment, the judge may require the prosecution to submit additional documentary evidence, and the judge must resolve whether or not probable cause exists as to continue with the indictment. If the judge finds to continue with the indictment, he will have to determine now whether there is probable cause to issue a warrant of arrest. Probable cause to charge a person would refer to such facts and circumstances which would convince the judge that the crime has been committed and that the person charged must have to be or the respondent must be charged in court. Probable cause to issue the warrant of arrest is such facts and circumstances which would lead the judge to conclude that there is a need to place

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) this person under the custody, meaning to place them under arrest. To charge them is technically different from the need to place them under arrest or custody. So the judge can now do both, whereas before the judge can only do one because to charge is an executive function and to arrest is a judicial one. There’s not much requirements with the issuance of the warrant of arrest except that determination of probable cause based upon the entire records. In the old case of Lim v. RTC of Makati, the SC said that the judge could not have determined the existence of probable cause to issue the warrant of arrest because not the entire records are before him. This case originated in Masbate but the SC ordered the transfer of venue to RTC of Makati, but what was before the Makati judge was only the information and resolution, the entire affidavits, counter affidavits, and affidavits of witnesses were never forwarded to the RTC of Makati. So the SC said that the judge could not have determined probable cause based on an incomplete record of the case. How long or how short or how should the judge go over the record of the case? Is there a hard and fast rule? This was raised in the old case of Webb v. de Leon. We all know that Webb has been acquitted in the case of People v. who is his co-accused? well anyway, because of the personalities involved in the case when it started, the DOJ has to create a committee for purposes of conducting a preliminary investigation and because the father was a senator then, he would have expected a barrage of lawyers filing all the documents to (?) the investigating committee on the bullshit of what probable cause is. So eventually the probable cause was found and he (?) the court Judge De Leon and judge de leon took only a couple of hours to issue a warrant of arrest despite the fact that the records from the preliminary investigation conducted by the DOJ panel was almost half truck so Webb said arguing that how could a judge have found probable cause with such a short time when the judge is required to go over the entire records personally. Well the SC said that there is no hard and fast rule on how the judge should go over the records but what the constitution and the previous rulings of the SC would all require that the task is personally done by the judge and not delegated to another. How the judge would go over the entire record whether he will peruse over it carefully or peruse over it in a different manner is for the judge to determine, only that it must be consistent that he or the judge is convinced that there is a need to place the person of the accused under custody. So it does not mean that if the record is a full thick that there must have to be 3 hours that the judge should spend , but if the judge is not voracious and fast reader, or what if the other judge would be (?). Actually in real terms if you are going to practice later, the warrant is already prepared by the clerk and once the entire records would reach the court after the raffling, tanawon lang mana ang information and this time the warrant of arrest and put the bail recommendation from the information as prepared by the investigating office. So from the prosecution, bail recommended or no bail recommended. And it is now for the judge to sign it. Whether the judge would really issue or will (?) the records, it will be up to him whether he will review the records or just sign it. That is why it has to be established as a practice not recently but when the new rules of court of criminal procedure was revised to

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allow now the judge to determine probable cause whether to continue with the indictment, it has been a standard practice which you cannot find in rules of court that lawyers will file for the accused a motion to determine probable cause or motion for judicial determination of probable cause. Kasi iba yung determination ng probable cause ng prosecution. Iba naman yung determination ng probable cause ng judge based on that rules of court provision. So judges now have also granted motions for judicial determination of probable cause and eventually order the dismissal of cases because they think that there is no sufficient evidence to continue with the indictment. Other distinctions with search warrants In search with warrants, you have 10-day efficacy period, in warrant of arrest, there is none. The 10-day period mentioned in the rules of court refers to the reportorial requirement if the warrant is not served or is served within that 10-day period, there must have to be a return made informing the court that the warrant has not been implemented or has been implemented and that the accused has been arrested. If the accused has not been arrested within the 10-day period, the warrant continues to be valid but the serving party must inform the court by making a return that the warrant is still outstanding. After awhile, the warrant of arrest will become “stale” that’s why there is that motion for the issuance of ALIAS WARRANT. It does not mean that the first warrant has lost its efficacy but since it has been returned it is no longer in the possession of the implementing officer. So there might be a need to seek another warrant of arrest. Also in searches, we’ve made mention of the daytime searches, in arrest there is no such thing as daytime arrest rule. The arrest can be made daytime or night time. Also, while technically search warrant can be implemented within the territorial jurisdiction of the issuing court because under the rules you should apply search warrants in the court which has territorial jurisdiction in the place intended to be searched or if there is no such judge in the court, you have judicial region, unless or excepted is under the intellectual property code. In warrant of arrest, there is no such thing, it can be issued in one court, it is technically valid anywhere in the Philippines. Also in searches, it is required that the search warrant be shown to the person who has control over the premises subject of the search in the search warrant. In arrest, there is no need to present the warrant of arrest to the person object of the arrest, the arrest warrant is not even required to be in the possession of the person effecting the arrest, but under the rules, the warrant must be presented to the person arrested within reasonable time after the arrest. In the implementation of warrants there is a special rule in allowing the implementing person to break in an enclosure to effect the arrest, if the person arrested is inside the enclosure and funny the same rules allow the same arresting person to break out of the enclosure, meaning if he is locked inside in the place where he effected the arrest, he could also employ necessary force in breaking himself out of the enclosure.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) 7. When Arrest may be made without a warrant RULE 113 Arrest Section 1. Definition of arrest. — Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. (1) Section 2. Arrest; how made. — An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. (2a) Section 3. Duty of arresting officer. — It shall be the duty of the officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay. (3a) Section 4. Execution of warrant. — The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons therefor. (4a) Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest. (8a) Section 9. Method of arrest by private person. — When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest. (9a) Section 10. Officer may summon assistance. — An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself. (10a) Section 11. Right of officer to break into building or enclosure. — An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose. (11a) Section 12. Right to break out from building or enclosure. — Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself. (12a) Section 13. Arrest after escape or rescue. — If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. (13)

(c) 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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Section 14. Right of attorney or relative to visit person arrested. — Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right. (14a)

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (5a)

Valid instances of WARRANTLESSS ARREST there are also 6 in the same rules of court.

Section 6. Time of making arrest. — An arrest may be made on any day and at any time of the day or night. (6)

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IN FLAGRANTE DELICTO CASES (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

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HOT PURSUIT CASES (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

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RE-ARREST OF ESCAPE PRISONER (c) 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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Section 7. Method of arrest by officer by virtue of warrant. — When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and of the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. (7a) Section 8. Method of arrest by officer without warrant. — When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an

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In case of re-arrest of person previously arrested, so if the person is validly arrested with or without a warrant, and he

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) has escaped or has been rescued, he could be rearrested without a warrant of arrest; Arrest by a bondsperson when an accused is bonded , the characterization is that the state is relieved of the obligation to detain him or put him in jail but his bondsperson becomes his jailer, while he is not in actual detention the court does not lose jurisdiction over him and the bondsperson becomes his custodian. And so, by the warranty undertaking of the bondsperson, the bondsperson is allowed to effect the arrest of an accused under his undertaking to present that person in court when required without the necessity of a warrant, in order to avoid liability on the bond put up by the bondsperson for the temporary liberty of the accused. And finally, if an accused attempts to depart from the country, the accused can be arrested at any time without any warrant. This is to prevent the person to escape from the applicability of our judicial system because our criminal justice system follows the principle of territoriality.

Now personal knowledge of facts indicating the person to be arrested has committed it would refer to the identity of the person to be arrested. Of course, the arresting persons or officers were not there when the crime has been committed, they would not have actual personal knowledge on the identity of the person to be arrested. But the identity of the person can be established based on two things: (1) one, the testimonies of witnesses in the area, and (2) some other object evidence that they were able to personally perceived in the area. If it is largely based on testimonies of the witnesses that would not be sufficient to establish probable cause because again these are based on testimonies therefore hearsay as to them but if the testimonies of the witnesses are coupled with object evidence or documentary evidence that they may have found then personally perceived in the scene of the crime then it would be sufficient to establish the identity of the person in the crime scene. 8. Administrative Arrests

Now most of the discussion of warrantless arrest would be on section 5(b) when a person or when a crime has just been committed and the person arresting has personal knowledge of facts indicating that the person to be arrested has committed it. In in flagrante delicto cases, the personal knowledge is on the crime, not on the person arrested though it goes with it because the crime is committed, is being committed or is about to be committed in the presence of the person effecting the arrest. So personal knowledge is on the crime. For the emphasis, personal knowledge is on the crime although it goes with it the identity of the person who committed it. In section 5(b), that is where most of the cases are because there are two operative phrases there. (1) First, the offense has just been committed. (2) Second, on the personal knowledge of facts indicating that the person to be arrested has committed it. First, the offense has just been committed The phrase has just been committed has been interpreted to mean to cover a period of less than 24 hours, last count I think is the case involving 18 hours but not longer than that. Again, just like warrantless searches and seizures, the common denominator is that there is no reasonable opportunity to secure a warrant of arrest. If the commission of the crime and the time of the arrest is separated by reasonable time then there must have to be opportunity to secure a warrant and in the police lingo they called it the regular filing because you have to file it regularly and then the court eventually issued a warrant of arrest. Excepted to this, in some cases, what is known as your situations involving your arrest by reason of hot pursuit. That would be the only exception if there is really a hot pursuit operation. There is one old case when the arrest was made after 3 days, this was a carnapping case that started here and the arrest was eventually had in Surigao after 3 days but because it was a hot pursuit operation the SC said it would fall within the phrase that the crime has just been committed. Second, on the personal knowledge of facts indicating that the person to be arrested has committed it.

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Art VI Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. From the term used, it refers to arrests ordered in relation to administrative (dili masabtan ang audio saba kayo ang door basta dli daw ni pareha atung gina issue sa regular courts after a strict discussion on probable cause by reason of a criminal case filed before regular courts) . However, in relation to the power of the President over Foreign affairs, specifically on undesirable aliens we have made mention that the President can direct the arrest of an undesirable alien and order his immediate deportation. The authority of the President is not based on making constitutional grants but it is based on the fact that as head of state, he is the one tasked with foreign relations and in that specific instance, allowing an alien to stay in the country. We even made mention that under our system, there is no need for any violation of law for a foreigner to be declared an undesirable alien in the country. The declaration of undesirability is based on national interest issue. Meaning, if the foreigners’ stay in the country is affecting national interest, he could be or his stay could be declared as no longer allowable or undesirable. He could be ordered arrested by virtue of an Administrative Warrant issued by the President through the Bureau of Immigration and Deportation and that is a known exception for warrants issued outside of the parameters of section 2 of Article 3 of the Const. Also, in relation to the power of certain bodies or tribunals to issue orders citing a person in contempt, such tribunals can order the arrest of a person having cited him for contempt for purposes of arresting him and making him suffer the penalty. That is also an exception to the requirement that such warrants must have to be issued by a court on determination of probable cause. In the US, there is also a practice there by reason of the aftermath of the 9/11 incident. They have this new th

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) regulations and laws regarding arrests and detention of suspected terrorists. The US authorities could detain or arrest a person even without warrant under suspicion of having committed acts of terrorism. Also, it is part of the policy of the US but it has been somehow watered down in the Obama administration what has been known as Extraordinary Rendition. Because of the observance of human rights laws and regulations in the US, those persons suspected of committing acts of terrorism can be placed under extraordinary rendition. Rendition is the practice of arresting and detaining persons suspected of committing acts of terrorism but they are placed in another jurisdiction. They could not be detained after arrest in the US territory because of the observance of the human rights laws and regulations. What they do is they arrest these persons, bring them to another jurisdiction outside of US territory and there, these persons are supposed to be interrogated and there is no limitation on the procedure of interrogation just to get the necessary information. Extraordinary rendition has not been denied by the US authorities that it has been considered as a practice although again, it has been watered down in the Obama administration. So those are examples of administrative arrests. 9. Immunity from arrests of the members of Congress After the complaint against Napoles implicating several senators and members of the lower house was filed with the office of the ombudsman, many questions were asked whether they should be suspended or whether they should be arrested. The question on whether they should be arrested, the fact that matters is that there is no information yet filed. So there could be no warrant issued so there is no worry that they should be arrested. Of course, if the information is filed and the warrant is issued, plunder carries a penalty of more than 6 years imprisonment. The immunity from arrest covers only for felonies or offenses which carries a penalty of not more than six years imprisonment. If it is more than that, they can be arrested even when the congress is in session. The 1986 constitution has changed in phraseology whereas from previous constitutions, the immunity from arrests will only or are granted only “if they are going to or while in attendance in or is coming from the session”. In the 1986 constitution, the phrase “while congress is in session” was used so for the entire duration of the regular session of congress, or of the special session if there is, they are immune from arrest regardless of whether or not they are actually going to, in attendance in or coming from a session. With respect to suspension, we all know that in that old case of: Santiago vs Sandiganbayan. There was this issue of suspension as I may have mentioned here before, the penalty of suspension imposable by congress for disorderly behavior is not that suspension that is imposed which is preventive when a valid information is filed before the SB under the plunder law or under RA 3019. So, they could be suspended if a valid information has been filed and it is allowed not because the court is supreme over congress but because of the penalty imposed for such disorderly behavior.

TRANSCRIBED BY 4-MANRESA BATCH 2013 Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista

10. Right to Privacy Art III Section 2. 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. If you remember that 1998 decision in the case of: Ople vs Torres The Supreme Court had the opportunity to discuss whether or not the right to privacy is an express right granted by the constitution. The factual background of the case is that they wanted to, by administrative order, go with a national ID system where there were certain basic information is to be taken from each individual for purposes of a national identification system. So, the validity or constitutionality of that admin order was questioned including the purpose of the national ID system in relation to this right of privacy. The end result of that case was that the admin order was struck down as violative of the constitution on two grounds: (1) it was not within the authority of the President to issue by admin order the national ID system. The SC said it must have to be a legislation. As we all know under the admin code, the President has ordinance powers in relation to the execution of the laws. He has the authority to issue executive orders, admin orders, etc which are all in line with his power to implement and execute the law. So if there is no law on the matter yet, there can be no ___ issued under his ordinance powers. (2) It is violative of the right to privacy. There is no issue that the state can impose as part of police power some form of a national ID system taking some valuable info from an individual but the reason why the SC maintained that it was violative of one’s right to privacy was because there was no sufficient safeguard to guarantee that there won’t be unnecessary release of info and there is also no appropriate penalty in case of unauthorized release of info. The language of the court it said as an obiter “in no uncertain terms we underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to (murag I hinder) scientific or technological advancements that enhance public service and the common good. They require that the law be narrowly focused and that a compelling interest justifies such intrusion. Intrusions to the right must be accompanied by proper safeguards and well designed standards to prevent unconstitutional invasion.” There seems to be a lack in that admin order as to how these info can be kept and in what instances are these info be allowed to be released and who shall be held responsible and what are the penalties for such unauthorized violations of one’s right to privacy if these info are released without proper authorization. In the same case, the SC mentioned that there is NO express provision on the right to privacy in the constitution. They said that perhaps the reason is that it is inherent or included even if not there. What they said is that the right to privacy is recognized in several provisions of the Constitution and they cited: 1.) 2.) 3.) 4.)

Section 1 of Article III Section 2 of article III Privacy of Communications in section 3 Liberty of Abode and changing the same under section 6

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) 5.) The right of people to form associations in public and private sectors under section 8 6.) Privilege against self-incrimination under section 17. Also, the SC noted that there is such a thing as Zones of Privacy which means that the state through the legislature have in certain laws recognized that we have privacy rights in certain zones of privacy in day to day activities. 1.

2.

3. 4. 5. 6.

The civil code, under Article 26 provides that every person shall respect the dignity, personality, PRIVACY, and peace of mind of his neighbors and provides penalties for such violations. Under Article 32, one of the remedies in case of violation of our right against unreasonable searches and seizure. This is technically the basis of our claim for damages and these claims for damages are not only for actual damages, but also include claims for moral damages. Under Article 723 of the Civil Code, it recognized the privacy of letters and other private communications. In the RPC under Article 229, it makes violation of secrets by an officer as a felony Under Article 290-292 of the RPC, revelation of trade and industrial secrets is also a felony Under Article 280 of the RPC, trespass to dwelling

In relation to that, the discussion on the right to privacy in the Philippines has not been decided very early on simply because there were no cases filed involving this right to privacy. We have somehow taken our decisions from American jurisprudence as to how this right has developed. The right to privacy in the Philippines has been related to our basic human right that we have this right to be let alone and in the context of the Constitution, if there is no express provision, this has included the right to prevent intrusion into certain thoughts and activities which includes the freedom of speech, to form or join associations, aside of course form the obvious, the right against unreasonable searches and seizures, and freedom from self-incrimination. As applied in the US, it has been applied in many situations with respect to: 

Right to privacy and education. In the 1923 decision, the SC in the US invalidated a local statute prohibiting the teaching in any school of any language other than English. In the state of Nebraska, a local statute was passed prohibiting in school the teaching of language other than English. The SC said that it is violative of the right to privacy because the right to privacy in the US includes the right to pursue their happiness (gusto ko happy ka! More energy mas happy). It is part of their constitutional right. So if a school child is happy to be taught in ilonggo, the he must be taught in ilonggo (how old are you nab a gid haw? Ooh very good ka gid nga bata you ah lol). The Phils has adopted this. There are allowable languages in the teaching of subjects in the public elem schools. The problem there is that there are certain subj which cannot really be taught in the local language.(Bisaya daw ang square root? Ahm upat ka haliging ugat? Aw kanang ugat daw nga iskwer)

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Right to privacy and marriage and in the family. In 1967, a statute prohibiting the possession of an adult material otherwise considered as obscene was declared unconstitutional. No law can be passed which would regulate much more prohibit the right of a person to be let alone in his pursuit of happiness. If he’s happy to watch adult films or read adult publications then so be it. It is different if it is done in public. Just like in the Phils, is an adult movie prohibited? In the cases involving the MTRCB, the SC had repeatedly said that the MTRCB is not a censors board. It is simply a rating and classification Board. It cannot prevent the public exhibition of TV shows or motion pics which are adult rated. The problem here is that there are no x-rated movie houses here. That is why there can be no public exhibition allowed in the ordinary theaters. If there were, then it cannot be prevented by the state if it complies with the existing regulations.

Invasion to privacy is also an offense under other special laws. 1.

2.

Anti-wiretapping Act. We all know that it has not been amended despite the “hello Garci” scandal. This law prohibits the recording and subsequent introduction into evidence of such recorded conversation when the recording is made through an actual tap. In the Hello Garci incident, the recorded conversation was not through actual tap but by some other form of devise where they could actually record conversations made through the use of cellular or mobile phones. That is not covered by the anti-wiretapping Act because there is no actual wire tapping. Secrecy of Bank deposits (RA 1405 yata). It prevents the unauthorized release of information on any bank account. However, this must have to be modified accordingly by your Anti Money Laundering Act. Under the AMLA, the AMLC is authorized to look into all accounts in the banks and before its amendment, the “Red flag” so to speak, that is allowed for the AMLC to look into accounts if the deposit is 500,000 or more. So if there is a deposit of 500k made in a single account, that is supposed to be a subject of scrutiny if there is no justifiable basis or reason for that. Of course, if that account is subject to that transaction on a daily basis, there is no need to flag it down as subject to any investigation. If the account is not usually infused with that amount of money, it must have to be considered for investigation. (so 499k ra daw ideposit para dili mahalata hehe kuyawa tlga ds guy).

3.

RA 8294 (Intellectual Prop Code) - protects one’s right to be let alone in his intellectual property.

4.

Privileged Communication under the rules of Court- where it cannot be elicited via compulsion by reason of the nature of the privacy of these info.

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With respect to marriage, in the 1967 decision of Loving vs Virginia, the right to marry is the choice of an individual and should not be subjected to unjustified interference by the state. If you remember just recently, the US SC has made a ruling with respect to a federal statute what is known as the Defense of marriage Act. In 1996, the state of Massachusetts passed a law which prevented or denied benefits of certain rights of same sex couples. Now apparently, there was one woman

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) who married another woman. When the wife died (puro man sila wife), the estate tax was at 363k US dollars which the internal revenue service wanted to ___ because they were not legally married kay same sex man daw. So that provision, the defense of marriage Act was tested before the SC and in a vote of 5-4, the majority said that the Defense of Marriage Act is unconstitutional. When the law passed in 1996, same sex marriage was not yet recognized in the states. At present, there are 12 states in the US which recognized same sex marriage. So is marriage as a social institution beyond the protection by the state anymore because of the right to privacy of individuals to choose whom to marry regardless of the definition of what marriage should be? So marriage now is not a union between a man and a woman. It includes a union between adam and steve lol. 

Right to reputation. I don’t know if you have noticed that there is a convenience store chain in Davao which has this practice of posting pictures of persons they have caught shoplifting. In 1971 ruling in the US, the SC nullified the local ordinances distributing flyers containing the names and matches of persons described as criminally active in shoplifting. The SC said that there must have to be notice as well as opportunity to be heard before their pictures and match-ups be posted to safeguard the person’s right to privacy in relation to his name, reputation, honor and integrity.

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Use of contraceptives. In a hospital in Connecticut, by reason of a local ordinance or statute, the married couples were given medical advice on how to prevent contraception and providing an advice for the wife to use on such procedure because the doctors were not able to do so otherwise, doctor will be penalized (unsa dawwww??!). That statute was declared as unconstitutional because whatever the married couple would do in the privacy of their homes is beyond state regulation. Sterilization. In the 1947 decision of Bach vs Bell, the SC affirmed a state law requiring sterilization of unfit people as proper use of police power to prevent transmission of insanity, imbecility, and kind. Right to Choose. With respect to the right to choose and to be left alone on your choice, probably the most common to you would be the right to abortion. In the 1970 decision of Roe vs Wade, which is still good law today—this allowable right of women to have abortion provided it is done within the first 3 months of the pregnancy. First 3 months, no questions asked, no state regulation nd allowable—it is a matter of choice. In the 2 trimester there may be some state regulation. It is not an absolute right for a woman to have an abortion at this rd stage. In 3 trimester, there would be more allowable st state regulation. It seems that in the 1 3 months, there is no child yet to consider. But in the Phils, the RH bill has taken so long because there has been some debate whether there is a child even if it has not yet been delivered or if it should be delivered…(bla bla di msabtan basta ga debate daw sa RH bill ah). For the strict catholics, the use of contraceptives is abortion. Well its up to the SC to determine if it is considered as part of the right.

TRANSCRIBED BY 4-MANRESA BATCH 2013 Edited by: Jessielle Ann C. Fabian, CPA _ Lakas Atenista

11. Privacy of Communication Art III Section 3. (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. Going back to our Constitution, the right to privacy of Communications, we have made mention that section 3 the Privacy of Communication and Correspondence has been applied in the case of Zulueta vs CA in a limited sense between 2 private individuals to some extent it is applicable therefore when it refers to communication and correspondence. The Right to Privacy of Communication and st Correspondence was included for the 1 time in the Philippines under the 1935 Constitution because the applicable rule before as it was in the US was that we follow what is known as the “Tangibles Only Rule”. TANGIBLES ONLY RULE - The subject of a search and what to be seized must have to be tangible objects only if you are to follow the right against unreasonable searches under section 2. Nontangibles like your communication and correspondence like in the context of the anti-wiretapping Act could not be envisioned to be included under section 2. So, it has to be included by providing another provision which is your section 3 of article III. This is an extension of the search and seizure rule to cover even intangibles as part of protected privacy as the term communications is used in its general sense. It does not covered by the Tangibles only rule under the section 2 of article III of our Constitution. If you recall under RA 4200, how could you legally have a tap and record through the tap the conversation made? You must have to apply for a warrant. It is not actually a search warrant per se, but the warrant issued by the court still with the same requirement of probable cause that there’s a need to make a tap and the recording shall be used as evidence against any of those persons in the conversation. The court must have to be convinced that there is probable cause to allow the tap and eventually use the recorded conversation. If there is no warrant issued or if such warrant is defective, the exclusionary rule applies as well. Of course that is by statute but under art 3 sec 3 of the constitution, any violation of sec. 3 and of sec 2 with respect to items seized or with respect to communications recorded, they are considered to be inadmissible as evidence. Another thing about privacy in relation to the case of SJS vs Dangerous Drugs Board, this case mentioned the validity of the law which requires DRUG TESTING for certain class of individuals. 

The first of which refers to National Elective Officials requiring a certificate of drug testing as an additional qualification for office. The issue on the validity of drug testing has something to do with our right to privacy, that we are supposed to be free from unwarranted intrusion or exploitation into our private activities. Because most of the qualifications are listed in the Constitution, there could be no law amending this provision requiring additional qualification. So that would be INVALID. There is only a minimal qualification. They would not have to be free from

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) criminal case unlike if you take the bar exam, you have to inform any pending charges. 







Employees in the private sector. SC held that it is a VALID regulation because when a person employs himself in a Company there should be an expectation of diminished right to privacy. An example would be the undertaking of an employee to comply with rules and policies which are reasonable. To comply with drug testing is reasonable provided of course that it follows the intent of the law. The law is supposed to be RANDOM AND SUSPICIONLESS TEST. In fact, it does not provide for any sanction or obligation on the part of the employer to report the result but it can be the basis for suspending if not, terminating the employee. For any other official in the government whose appointment or election is not provided in the Constitution. The drug test policy is VALID and reasonable as a qualification for continued employment because the Supreme Court said that public employees are supposed to be accountable at all times and they must serve with utmost responsibility and efficiency. Under the normal understanding, incompetency may be brought about by addiction and so it can be the basis for termination. Further, the SC held that there is no substantial distinction of employees from the private sector and those from the public sector. Again, for those whose qualifications are not provided by the Constitution. For students, in the primary, secondary or tertiary level for as long as minors. The imposition of random and suspicionless testing is VALID as well under the concept of parens patriae where the state would exercise parental authority through the school administration. The school also has the right to impose rules for the continued admission. Accused in Criminal Cases. They cannot be subjected to drug testing unless if made under the Comprehensive Dangerous Drugs Act (RA 9165). But you can only be tested if you are charged under the provision of the same. Because if it were for any other offense, it is INVALID because it will no longer be suspicionless.

How about ALCOHOL? We have a new law which provides for violations and penalties for driving under the influence of alcohol depending on the level of allowable alcohol content in the blood. However, here we have no apparatus to test drivers with such alcohol content. They just subject the accused to SOBERIARITY TEST. Can this be used to prove liability in such instances? Yes because you have already been arrested for traffic violations and there is no violation for right to privacy since there is already a reduced expectation of the right to privacy. BLOOD TEST. Generally if it were in relation to DNA for purposes of a commission of an offense, the problem of our system is we do not have a data bank for DNA. In US, it is a standard practice that if they are charged with offense, DNA is taken. If we were going to take a look at the test of Torres vs Ople, the state has to put a mechanism where there is responsibility imposed in the information taken then sanction imposed, if there is an unauthorized release of information. For purposes of paternity vis a vis child and parent, it has been accepted that DNA results are admissible. Again, it is not because it is admissible per se but

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because it is a suit between individuals and not against the state imposing some penal sanctions. The problem will arise if it is a state action against the individual liberties or right to privacy. The final matter with respect to right to privacy is your WRIT OF HABEAS DATA. The difference between a writ of amparo, habeas data and habeas corpus. The WRIT OF HABEAS DATA is different because here it does not pertain to life, liberty or security but privacy in life liberty and security so it has to do something with authorized or unauthorized gathering or recording of any data or information regarding a person, his family, his home and correspondence. It intends to ensure that if there is a sanction in gathering and keeping, that it is kept and not release without authority and if it is inaccurate, the petitioner can have it corrected or if not legally gathered and kept, it is to be removed because this violates our right to privacy.

III. FREEDOM OF EXPRESSION Art III Section 4. 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. Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. A. Philosophic Basis of Guarantee 1. 2. 3.

For the discovery of political truth For self-government For individual perfection

Freedom of Expression is anchored on the theory that democratic society is ruled ultimately by freedom of thought. That we are free to talk about state affairs and discussed them and compete in what we know as the freedom market of ideas, then the best idea will rule. And that would eventually be defining what our society should be. If we are not free to talk therefore then the excesses of the government will not be known and therefore the government will not be able to correct itself and there would be more violations of our fundamental liberties. Freedom of Expression is only limited to any matter involving public interest. There are cases defining the fine line with respect to public persons on matters within the so called protective speech. The scope of Freedom of Expression does not involve private matters because this situation of privacy is not sanctioned by the Constitution. FREEDOM OF THE PRESS has 4 aspects. 1. 2. 3. 4.

Freedom from prior restraint Freedom from subsequent punishment Freedom for access of information Freedom from state regulation/ freedom of the press strictly

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) B. Prior Restraints/ Subsequent Punishment 1.

Prior restraint – Censorship. The state regulates even before it is published or delivered. Our discussion before on the test on equal protection on due process. Remember the discussion on the compelling state interest test, the intermediate and rational review test which in relation to the facial invalidation as applied. the main discussion is that they are mostly applicable in free speech violation more so in censorship. The narrow grant of presumption of Constitutionality is the rule when it is censorship or prior restraint. Stated differently, if the state regulation is in the form of censorship, there is no presumption of Constitutionality, the presumption is that it is not constitutional because it is a violation of the first amendment right in our context, Freedom of Expression or Freedom of the Press. Censorship has never been allowed although Censorship may come in different forms. There is that 2009 case involving Bombo Radyo. This is in the province of Isabela where Bombo Radyo was supposed to have anti political dynasty. The Bombo Radyo was not issued a business permits for the year 2008 although it was issued in previous years. The basis was that they were in a zone not classified for that type of industry. While it is in the form of a licensing the SC considered it as Censorship as well. Although in ordinary understanding, the requirement of securing a business permit before a media outfit can engage in the business of broadcasting is not Censorship because it is part of licensing. It is not preventing a person form exercising his freedom. But because of the manner by which the provincial government imposes it, the SC considered it as Censorship. In the old case of American Bible Society, which required permit and license before it can distribute bibles for free. The SC considered it as a form of Censorship because freedom of Religion is part of Freedom of expression. It could not be censored prior to publication. It would be different if it would be ordinary business person selling religious items. They are engaged in business therefore they should pay appropriate business fees and comply prior licensing as these are not considered as prior restraint.

2.

Freedom from subsequent punishment. The most common form of state regulation comes in the form of subsequent punishment. So the regulation comes after the violation so if the sanction is allowable because it passes any of the applicable test even if it is contentbased then the regulation is allowable. Punishment is not considered in violation of the component of freedom of expression.

C. Content-Based Restriction Content based restrictions regulations are based on the expressions withheld and in your outline there is a listing of the test normally used to determine whether or not the content based restriction is allowable.

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Some tests of validity of Content-Based Restrictions 1.

DANGEROUS TENDENCY. When the legislative body has determined generally that utterances of a certain kind involve such danger or substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil is not open to consideration. In such cases the general provision of the statute may be constitutionally applied to specific utterance if its natural and probable effect was to bring about the substantive evil that the legislative body might prohibit. Gitlow vs New York. The legislative body has the right to determine what evil the state prevents from happening. If the expression has the tendency to elicit or make the evil possible, that mere tendency is sufficient for it to be regulated in the form of subsequent punishment. This is normally used when evil involves national security or when the very existence of organized government is at stake. The most common is in your RPC, in inciting to sedition. The mere incitement to commit sedition is penalized.

2.

CLEAR AND PRESENT DANGER. The question in every case is whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evil that the state has a right to prevent. Shenck vs US. Two operative words. Clear, there is a causal connection between the acts prevented and the evil which the state has the right to present. Danger, means the evil that would result is not only probable but inevitable if not regulated. This is tested under the circumstances that it is made. That under the circumstances, there is a clear and present danger that the evil sought to be prevented will happen.

3.

BALANCING OF INTEREST. The court must undertake the delicate and difficult task of weighing the circumstances and appraising the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights. American Communication vs Doubs. Normally involves conflict of rights among individuals where there is Freedom of Expression in one hand, and right of privacy on the other. Whose rights should prevail? In the Hierarchy of Rights, the preferred is freedom of thought which should include Freedom of Expression. Nonetheless, right to privacy is also a preferred right because it is preferred as against the state’s unauthorized intrusion into one’s right to privacy. So if this should happen the court should have to weigh based on the circumstances whose right should prevail. There is no hard and fast rule but the court must have to weigh the issues. The nearest to this discussion would perhaps be one of the older cases involving depiction of a public event of a life of a public person in relation to a public event. Is there a need for permission from that person if a part of his life is depicted in one’s film, artwork as part of Freedom of Expression? If it were to be a true to life depiction of that person in a public event not private life. The SC said it is allowable because his inclusion into that depiction of public event is just incidental. It is not th

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) about them. If it were be a fictional depiction of public event or depiction of a life of a public or private person which involves an aspect of private life, then there must be licensing agreement because it is no longer part of protected speech because it involves private life. 4.

5.

DIRECT INCITEMENT. The guarantees of free speech and free press do not permit a state to forbid or prescribe the advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Salonga vs Pano GRAVE-BUT-IMPROBABLE DANGER. Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of speech as is necessary to avoid the danger. Dennis vs US.

defamatory statement constitutes a crime, proof of the truth of the act constituting a crime is a defense in libel. 

If it is made against a private individual, then if you can prove the truth of that crime, it is a defense. If it is not a crime and made against a private individual then it is not a defense.



But if it is made against a public officer in relation to his public life or private life which is embedded on his public life, even if it is not a crime, it will be a defense. “You are a prostitute” if you tell that to a private person. Proof of truth of that, can you escape liability? Is it a crime? Is there a crime of prostitution? Different ang reaksyon sa lalake ug babae. Difference of opinion.

f)

Application of tests in various context

Freedom of expression and the administration of justice (Contempt of Court)

a)

Freedom of expression and national security

FAIR CRITICISM OF COURT DECISIONS

b)

Freedom of expression and the right of privacy

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c)

Symbolic Expression – The Flag-Burning case

If what is criticized is a LOWER COURT JUDGE, the SC applied US vs Bustos, which is applicable to other public official. So you should not take offense when people criticized actions.

d)

Assembly and Petition



e)

Freedom of expression and criticism of official conduct: THE TEST OF “ACTUAL MALICE”

But if you criticized the SUPREME COURT, then SC applied the fair criticism rule. So it must be fair and this aspect of Subjudice Rule which must consider the difference in treatment of a private person making remarks or offending actions and a lawyer who will also make criticisms.

The most common form of subsequent punishment which is still valid as of today although there is a move to decriminalize it, is LIBEL. It is still good law today. Any imputation of a vice or defect whether directed against the person or one committed to blacken his memory is considered libelous and there is presumption that any defamatory remarks is done with malice. Malice here is presumed because there is no other motive that can be thought of in defamatory statements. 



Malice is not presumed in what is known as RELATIVELY PRIVILEGED STATEMENT. So you have this private communication in legal or moral duty provided no unnecessarily publication. The second one is known information in any proceeding involving branches of government provided there is no unnecessary comment. ABSOLUTELY PRIVILEGED STATEMENT, even if defamatory, will not be the subject of libel whether criminal or civil. Examples 

Freedom of the congress under the speech and debate clause.



Statement or allegations in pleading in court or any cases in quasi-judicial bodies which are material and relevant to the case. If the allegations are no longer necessary or relevant it may now be considered libellous.

Now if the speech is privileged, malice is not presumed but actual malice has to be proven. So this is where discussions on reckless disregard of truth or falsity of that item by media person will come into play to prove there is actual malice. Also in libel, you have the proof of truth as a defense. Generally, in defamatory statement if published, if made with good intentions or good faith, that is always a defense. However, if the

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FAIR CRITICISM is allowed if made in good faith, couched in respectful language, directed to the merits and must not downgrade or ridicule the Court. Now, if it were to be made by a person who is not a lawyer, there may be greater allowance for criticism but if a lawyer, because of the code of professional responsibility, that lawyers are officers of court and should protect the integrity of the court, they must be the last person to criticise the court. So if you take the case of Tulfo and the one in Manila standard who is a lawyer. Tulfo said that the SC judges are “sangaktutak na bobo”. He was cited for contempt. That lawyer columnist did not say the same but he said that the SC decided this way but the decision was not published yet, he was cited for contempt an officer of the court so the processes of the SC are supposed to be respected.The Subjudice Rule has always been discussed in today’s papers. Secretary Delima said that she was asked for an order citing Capunan for contempt by the subjudice rule because “the Atty Capunan” publicly discussed the case in a TV show. The SUBJUDICE RULE basically suggests that persons especially lawyers should not discuss the case publicly in order to sway the decision of the court. There is intent to put pressure in the court to rule one way and not the other. But the history of this rule tends to apply in trial by jury where the jury tends to decide the cases. Jury is supposed to be cloistered. That is the concept of the Subjudice Rule. Where the case is under judicial litigation pending decision, nothing should be said to sway the judgment on that case. But we have taken this too literally by not going to discuss anything. Now is there something new that is not part of the record that the person has discussed on the pending case that would sway the court. Contempt here is a form of indirect contempt.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) TWO POLICIES as to the right to freely express opinion or commentary on court decisions:

because the entire objective is to protect lives and for avoidance the any property will be damaged.



Open Justice Policy - The open justice policy, is the first principle. The open justice policy follows the general rule on criticisms of official conduct of public officers. The courts are not free from any criticisms, the public has the right to criticize the judiciary, but not to affect public’s confident on the judicial system.

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Judicial Independence - The second, the principle of judicial independence, is actually the basis for the fair criticisms rule - that courts must be free from unjust criticisms. Though they may be criticized under the open justice policy, the criticisms must have to be fair.

Also you have your SC Circular No. 19-7-02-SC, this is the socalled, 200-METER RADIUS RULE. That there should be no public assembly to be held within the 200 meter radius from the court room, or a court house, or hall of justice because the objective of the regulation is to prohibit any public assembly, or any activities that will disrupt the workings or processes of our judicial system.

The fair criticism rule involves two aspects: 

first one would be institutional or the entire judiciary; and



the second one, would be individual.

There is a provision there, which the SC stated that it guarantees freedom of expression, and the right to peaceably assemble, but considering the need to deliver or administer justice through or judicial system, the public assembly cannot be held within the 200 meter radius. The regulation does not differentiate on what kind of activity or public assembly, for so long as it is conducted within the 200-meter radius. Persons violating this circular will be held liable for direct contempt, or shall be penalized accordingly. 2) Regulation of political campaign/election activity

D. Content-Neutral Restrictions The second restriction under the freedom from subsequent punishment is what is known as content neutral restrictions, where the regulation is largely on the circumstances -- when the expression shall be made, and not from what or how the expression was made. It generally follow, based on the 1968 US decision, the case of US vs O’Brien. O’BRIEN TEST – A government regulation is sufficiently justified if: a)

it is within the constitutional power of the government;

b)

if it furthers an important or substantial governmental interest;

c)

if the governmental interest is unrelated to the suppression of free expression; and

d)

if the incidental restriction on alleged freedom of expression is no greater than is essential to the furtherance of that interest. US vs O’Brien

The restriction must be such that it must not be directed on the content, because there is the need for the State to protect an interest substantial, in the least restricted measures to further government interest. Examples of content neutral restrictions in Philippine context: 1) Freedom of Assembly (Batas Pambansa 880, Public Assembly Act of 1985) There is a particular requirement that if a public assembly is held outside of what is known as freedom park, there is a requirement of permit. This is not to violate the exercise of public assembly right, the issuance of permit is in order for administration to make sure that the use of the public places will be fairly allocated. Of course, if it will be in a private place, there is no need for such permit. If it is an established freedom park, there is also no permit required. BP 880 also established the standard rules of engagement, dispersals of public assembly with or without permits

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You also have your regulation of election activity, which is part of the provision of the Omnibus Election Code, where requirements for political advertisements before elections were prepared by the COMELEC, of what was known then as COMELEC space and COMELEC time. In order to give meaning to the Constitutional policy of equal opportunity and access to office, by trying to level the playing field to those who can and cannot afford. Political ads can only be posted, pasted or published, and printed in what was known as the COMELEC time and space. But because of the Fair Elections Act of 2001, there has been liberality in the grant of allowable medium by which these political advertisements could be printed, posted, pasted, published, or broadcasted. And so, while the right to sell your selves during an election is not totally unregulated, there is much leeway now given under the Fair Elections Act of 2001. You may have read in the newspapers early this week, or last week, that there has already been an officer, who is first time in Philippine election history, been disqualified for over spending. Apparently, the COMELEC has imposed the rule, that based on the contracts of the broadcasting company that have been submitted to the COMELEC to determine the number or total amount of the advertisements, the governor of Laguna (Asiong Salonga. Haha!) was declared disqualified by COMELEC first division. Of course, you know the whole process, before it even reach the SC, the last thing you’ll know, it is already 2016 elections. (Korek!) But because of the regulation of election-related political advertisements in relation to its allowable spending, the COMELEC has imposed those provisions and renders decision. The problem with the provisions in the Omnibus Election Code, it has been enacted before the present Congress has been reestablished under the 1987 Constitution. The 3.00 per registered voter in a political district where you wish to be voted on, if you are with a party; 5.00 per registered voter, if you are running without a party. The 3.00 in 1979 would be unreasonable for purposes of elections today. The problem with plain television broadcast, the COMELEC computation, at least, on 2013, has required the submission of the original copy or complete contracts. The candidates are not the only one that were

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) required to submit, the outputs will also be submitted to the COMELEC. Regulation of election-related activity can also gone into plebiscite, the SC has made a ruling that if it would be a plebiscite, the normal computation for time and space in an election should not be applicable because in a plebiscite and for a referendum, we vote, not for candidates in public office, so there must have to free or more avenues for commentaries, advertisements for purposes of information dissemination so the public may know what the issues are it would have to voted on a plebiscite or a referendum. So, the rules are: 1.

the regulation must not be too general in giving the time, and scope allocation;

2.

it does not restrict one’s expression or belied in a candidate, or opinion to its qualification;

3.

it does not cut the flow of media reporting; and

4.

it gives a clear and reasonable connection with the sanction objective of the regulation.

The objective of the regulation must be to give everybody equal opportunity of selling themselves to the public. There must be greater state regulation allowable if it were an election. But if it were to be on election on issues, like a plebiscite or referendum, the regulation in election should not be applicable in a plebiscite or referendum. And if you notice, what most candidates are doing in the elections because of these conditions, they will have to have themselves subject of news reporting because no matter what despite the limitation on time and space news reporting should not be restricted if it is considered as legitimate news reporting. In 2010, when Aquino ran for President, because of the debt of gratitude of ABS to the Aquino family, when Martial Law was declared, the collateral damage was the closure of ABSCBN. When Cory came to power, she practically gave back the entire network to the Lopez family. And so, when Cory died, you may have noticed that all of the regular programming was all suspended. 3) Anti-Photo and voyeurism You also have your RA 9995, which is the Anti-Photo and Voyeurism Act of 2009. It penalizes certain acts of recording and publishing or making public photos and videos of sexual acts. Even if there is an expectation of privacy, actors to that videos, the act of uploading or publishing is supposed to be penalized. The entire text of the law has the similar allowable disclosure of these photos or videos may be a subject of the certain warrant. The applicant can apply for an order to court to refrain from uploading, downloading or viewing of the said videos or photos. Has it something to do with content-neutral? The law does not penalize the act not because of the content itself, it is the act of taking the photo or thereafter publishing it. The first form of prohibited acts would be limited in applicability because it says taking of photo or video. So, there must be a publication at the very least.

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As we have mentioned yesterday, the three special regulations are vested with Facial Invalidation. Can you invalidate a regulation of free speech, based on the fact that on its face it is valid? It is allowed, because it is a free speech regulation. The entire speech, it is not only invalid as to the particular person, to whom this regulation is applied, it should be applicable to everybody, because free speech is supposed to be the discussion of matters of public interest. Over-breadth, the same, and moreso if As Applied Challenge. When we say “as applied challenge” is limited to this regulations, if applied to any kind of criminal statutes, which is applied to a particular defendant or accused in a particular case, it may be considered as unconstitutional. It is allowed because it does not prevent the state from prosecuting other offenders based on the same law. The law does not become unconstitutional for everybody. It is only considered as unconstitutional in a particular case, as applied in a particular defendant. 4. Freedom of Association and the right to stike in the public sector Art III Section 8. 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. Art IX B Section 2 (5) The right to self-organization shall not be denied to government employees. Art XIII Section 3. It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law. 5. Movie Censorship 6. Radio Broadcast As applied in different context on content-based restriction, lets go to media. There is a difference in print and broadcast media. There is greater restriction in broadcast media than in print media. In print, for one, there is a need for a person to at least have that ability to read and because it is not interactive, there is still time for that person, reading the material, to process what is expressed in print media and there is also time for him to react and think of what its intent or analyse it. In broadcast where most of the listeners or viewers are normally listening to it and they don’t have much thought on what is being said, that it cannot be taken back because it just passes. As between radio and television, there is greater restriction in television because there may be some audience to programs which are age inappropriate. With respect to reach, there is greater restriction on radio, radio is more accessible in many areas as compared to television. We have the MTRCB which is the regulatory board. In several cases involving MTRCB, the SC said that it is not a censors board but a rating and classifications board. So it rates and classifies. It has no right to prevent the public exhibitions of any show or motion pictures provided that it is publicly distributed in appropriate

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) medium as well. Because we do not have appropriate medium for x rated films and shows. When you say PG 13 what does it mean? In print media, there is also a difference in treatment in allowable regulation or extent of protected speech if it is a leading news title and if it were a features story. Because of the deadline that reporters have to meet there is much leeway in the leading news category. If it were a features story, since there is more time for writers to check or recheck they may be held liable or accountable. There is a difference between an act of inadvertent or honest omission from malicious assertion of falsehood. NEW York vs Sullivan where the entire decision on what is allowable remark against actions of public officers where the SC has said that there must have to be malice in the publication or reckless disregard of ascertaining its truth or falsehood. So if you are media person writing story and if there is no reason for you to question or doubt the authenticity of the story then if the story becomes false later then you should not be held accountable. This was the ruling in US vs Bustos. These cases have been off cited with respect to discussions on freedom of expression vsi a vis freedom of press. Other matters with respect to freedom of expression, commercial speech and government speech. 



Commercial speech is the one which proposes the commercial transactions. Commercial speech does not enjoy the state protection because it does not involve the expression on matters involving public interest, but more on the proprietary or business transactions. The liability there is limited when the assertions in the advertisements are false.

The access to information under Section 7 is largely limited to the claim of Filipino citizens of any matters involving public interest. But the freedom of information would, except those involving national security, still foreigners cannot ordinarily claim this right. In relation to freedom of expression, the freedom of information is a corollary right because the idea is how to be able to discuss matters of public interest, if they do not have access to this kind of information to begin with. Of course, the right to have access does not mean the right is for free. There may be some reasonable regulatory measures to be able to have access to these documents. The need to have access must be based on a _____ need. You don’t have the right to have access to ______. F. Academic Freedom In relation to that is your Academic Freedom. This is in relation to freedom of expression because the rights of academic freedom of students in the tertiary level, the discussion is based on the cases involving imposition of sanctions to students of tertiary level by reason of exercise of free speech rights. Some were suspended, some were expelled based on school’s rules and policies. Academic freedom has THREE ASPECTS: 1.

for the institution;

2.

for the members of the faculty;

3.

for the students

For the institution, it is for them to determine, subject to very limited state regulation: 1.

what subjects to offer;

Government speech, on the other hand, is generally subject to regulation. What’s a government speech? You may have seen that on tv, nung panahon ni Gloria uso ito. The Secretary of DENR saying that these are our report, bumili kami ng lupa, ganun ganun. Can that be subject of regulation? Meaning, if what was said there were false, can these people be held liable? Technically, government speeches are not subject to regulation as if it were in a commercial speech because government, following the old principle that there can be no right against the state. It gives the law on which the right depends.

2.

their objectives, mission in offering education;

3.

the regulation based on the provisions of Commission on Higher Education

4.

whom to accept to be part of the administration, including members of the faculty, as well as the students to be accepted in their programs;

5.

the school has the right to impose rules consistent with the Labor Code on the members of the faculty or its employees, and consistent in the Magna Carta of Students;

Like today, you have this DAP, also known as incentive, bribe. Ano ba talaga? Can they be liable for that? If so, who shall hold them accountable? The context of regulations over government speeches.

6.

reasonable regulation on admission and continued enrollment

E. Freedom of Information Art III Section 7. 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. In your outline, there’s the Freedom of Information. That is the only right in the Constitution which is supposed to be served _______. In the context of the Bill of Rights, in the old case of______, the SC made clear that the rights under the Bill of Rights are claimable by any person, regardless of the nationality even if they are not residents, or merely sojourning here because they are limitations of government power.

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Members of the faculty, they have the academic freedom with respect to: 1.

the manner of teaching;

2.

pursue further studies and be held accountable for any result of their further studies.

Students have the right to: 1)

be admitted if they have complied to the reasonable requirement of admission Remember that old case of DECS vs San Diego. The main question there is whether the state can regulate the entry of students in the medical schools in the country by requiring them to pass the NMAT? The reason behind the regulation, the SC said that state regulation is allowed where there is a public interest

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) involved. And the link between the exercise of profession with public interest issue, the greater the state regulation there can be. Justice Isagani Cruz made mention that public health and public lives are a public interest, thus, there must be more state regulation. The students may have the right to be admitted, but they are subject to the reasonable rules of admission. While under the Magna Carta of their right, they can compel readmission, until the completion of the degree or course that they are enrolled in, they are subject to the rules of discipline, and they are also subject of school rules. And from the cases decided by SC on rules of discipline, we made mention that the unlimited sense is applied on issues involving a school, university, and students’ private entity, where the students are given procedural process for sanctions or violation of school’s policies. With respect to academic proficiency, again, examinations, there is due process already.

IV. FREEDOM OF RELIGION

pimentel v office of pres

Art III Section 5. 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 for the exercise of civil or political rights. Any practice like worship, conduct, which ought to include _____ is considered a religion regardless of the existence belief of God or Supreme Being. It also includes the right not to believe in the existence of a God. The Constitution provides for a separation of the church and state. As correctly understood, the principle of separation of church and state prevents or prohibits the state from intruding into the religion, or church affair or matters. It does not work the other way around. The church is not prohibited from intruding the state or political matters. That has been an acceptable practice that the church has always been vocal of its thought or stand on certain political matters. The principle is that the state is prohibited from intruding church matters. There are several provisions in the constitution which allows what we call as “Nondiscriminatory Provisions” because of the non-establishment clause. There are TWO ASPECTS OR SCOPE of prohibitions: 1.

Non-establishment Clause

2.

Free Exercise Clause - The scope of the freedom follows what we call as Belief Action Test. The two aspects of freedom which is the belief of religion or existence of a religion, for as long as it remains in the thought or in the minds, it is not supposed to be subject to any state regulation. But if that belief is turned into action or what we call as Belief Action Test, then that action may be subject to regulation in which that the practice of religion or religious belief converted into overt acts which maybe violative of the existing laws, any regulation will not be considered as violative of the freedom of religion.

A. NON-ESTABLISHMENT CLAUSE Non-establishment Clause – that there should be no “state imposed religion” or “no religion”, the idea there is that the state follows the Benevolent Neutrality or Accommodation Test. The state must be an innocent by-stander as to religion or religious practice of a religious sect. The entire idea is, the religion must compete/convince people based on their own teaching or convince the people to practice their teachings and that there is no entanglement by the government to establish a religion or promote a particular religion. The Non-establishment Clause prohibits: a)

Excessive governmental entanglement with religious institutions and

b)

Government endorsement or disapproval of religion

1) Operation of Sectarian Schools Art XIV Section 4 (2) Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions. The control and administration of educational institutions shall be vested in citizens of the Philippines. No educational institution shall be established exclusively for aliens and no group of aliens shall comprise more than one-third of the enrollment in any school. The provisions of this subsection shall not apply to schools established for foreign diplomatic personnel and their dependents and, unless otherwise provided by law, for other foreign temporary residents. Again, our constitutions provide for non-discriminatory concession. In your outline it states the operation of sectarian schools. The state allows operation of sectarian schools and this is exempted from Filipino capital requirement. The only requirement here of the constitution is that head of the school, of which is run by foreign mission which could be a religious institution, must have to be a Filipino. 2) Religious Instructions in Public Schools Art XIV Section 3 (3) At the option expressed in writing by the parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary and high schools within the regular class hours by instructors designated or approved by the religious authorities of the religion to which the children or wards belong, without additional cost to the Government. The religious instructions in public schools refers to primary and secondary schools, there must have to be observance of certain rules, the rules can be stated in a manner that the parent of the students which belong to a particular religion must request and there must be an allowed teaching during school hours without additional expenses on the part of the government so that no government funds be used in primary and secondary schools for religious teachings. The teacher must come from a religious sector to which the majority of the students belong and there shall be no compulsion. 3. Tax Exemption

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) Art VI Section 28 (3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, nonprofit cemeteries, and all lands, buildings, and improvements, actually, directly, and exclusively used for religious, charitable, or educational purposes shall be exempt from taxation. We also have tax exemption - real property tax (RPT) exemptions. There is also an income tax exemption for educational institutions. 4. Public Aid to Religion Art VI Section 29 (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. The prohibition on public expense on religion, the only exemption there is under Article 6 section 29 (2). That is allowed, they are paid not because they are religious persons but they are paid of government funds because they are employed by the government but only in those allowed categories. B. FREE EXERCISE CLAUSE Now, the Free Exercise Clause prohibits the government from inhibiting of religious beliefs which is impositions of penalties for religious beliefs and practices, so this is where the Belief Action Test comes in, that when belief is converted to overt acts, the actions will be subject to regulation which is an exercise of police powers. The state may impose sanctions for any violation. The requirement for this regulation to be valid regulations and not violative of the exercise clause. The first test is 1.

2.

Clear and present danger – this is like the clear and present danger in your freedom of expression, if a religious act poses a clear and present danger that the evil sought to be avoided will inevitably happen to a religious practice will not be prevented by a subsequent punishment then the state has the right to prevent that from happening. Conversely, if there is no clear and present danger and the act is allowed and the evil sought to be avoided by the state will inevitablly happen is not considered as valid regulation.

to our discussion if freedom of expression, there must be compelling state interest that the state has the right to protect. And in the case of this 2 individuals who marry another person without the annulling their respective marriage, there was no compelling state interest outside of the fact that they are having their union that constitute their actions as constituting as an act of immorality. The Supreme Court also held that the rule must not be narrow-tailored to achieve the goal interest. Gross immorality based on a claim of invalid union out of a religious practice, the court must look into whether or not the claim of religious rights is valid. The SC made a discussion that of course not all claim of exemptions from liability on the ground of religious rites should be allowed. The practice must have an established practice although the court said that we should not look on the morality or legality of it but whether the practice is well established and that practice in the religious sect or religion is not blindly made under existing laws. It must be emphasized in the case of Estrada vs. Escritur that they were not charged with any criminal act for bigamy or concubinage or adultery. The charge was for an administrative liability based on gross immorality. If it were a charge for concubinage or adultery, I think the decision would have to be different because as against administrative liability for religious rights, religious rights or freedom of religion must be preferred than an administrative liability. But if were a criminal liability, one cannot invoke freedom from religious rights against a penal law unless it would really constitute violation of freedom of religion. Based on the discussion of SC on compelling state interest, the third one which is that the policy is the least restrictive of achieving the interest of the state, result in 3-step process question: 1.

Has the statute / government action created a burden of the free exercise of religion? We must look into whether the state act or law has imposed a limitation on free exercise of a religious right. The court must look into the sincerity of the claim, it must not be claimed for convenience or avoid liability.

2.

Is there sufficient compelling state interest to justify the infringement of religious liberty?

3.

As the state is achieving its ultimate purpose, use the least intrusive means as possible? The state ought to show that of all the regulations possible or feasible, this is the least intrusive of all.

Compelling Interest of the State Test The next case which is established in the case of Estrada vs. Escritur, where a couple previously married to separate individuals and without knowing their respective marriages had this cohabitation and their religious practice has this age old practice that you sign a covenant with the other person regardless of any legal infirmities and that covenant is to be witnessed by their God and such union is considered allowed and blessed under their practice. They were charge with gross immorality having been employed with the judiciary and Chief Justice Puno wrote the majority decision saying that they should not be held liable administratively for immorality because of their religious rites. The imposition of penalty based Civil Service law for gross immorality if applied to them shall be considered as violation of the free exercise clause and the chief justice used Compelling Interest of the State Test. Applying Compelling Interest Test, we apply this

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SC finally resolved that in applying compelling state interest test will result to state accommodation: 1.

Mandatory accommodation – under the free exercise clause that the act must be accommodated otherwise It will result to violation of freedom of religion

2.

Permissive accommodation – the state may or may not allow the act under religious rights or may regulate it.

3.

Prohibited accommodation – the state cannot allow It to happen otherwise it will result to violation of nonestablishment clause. Meaning if one religion is allowed, it will mean accommodating that particular religion. State must be an innocent bystander with the

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) clash of religion or religious sect in their exercise of freedom of religion. Cases: 

Flag Salute case. The latest of which is to correct the decision 30 years earlier that flag salute was not violative of freedom of religion. In that old case, school children belonging to a particular religion were compelled to salute the flag as discipline of school authorities based on DECS Memo order. They question that as violative of freedom of religion because they are compelled to do an act in violation of their religious rights which is not to salute or show reverence to the iconics symbols or god. In that case, SC said that DECS memo is valid and does not violate freedom of religion because it has nothing to do with your religious rights. A flag is not a symbol of any religious significance and therefore to compel children to salute the flag will not make violate their religious beliefs rather it gives them sense of patriotism that they will show respect and reverence to the republic. Flag is supposed to be a symbol of the history of our country. In the 1998 decision of Ebralinag case, SC totally reversed the earlier ruling and said that the DECS order is considered unconstitutional for violating religious rights. SC said that the reason not to compel school children to salute the flag will bring about a generation of unpatriotic school children has not come to pass. They cannot establish patriotism simply by compelling them to salute the flag. How many of us salute the flag here? Do we salute the flag? SC said while they cannot be compelled to salute flag on the basis of religious rights, the school children must not disrupt the flag ceremony or flag retreat ceremony.



Exemption from Union Shop, we all know that this can be provided in the CBA to guarantee the right of the union. The CLOSED SHOP is a problem on the persons who belong to a religious sect which do not allow to associate themselves to others other than their own church member. The question is asked in the two case whether they can be compelled to join the union or should their religious claim be upheld and shall not be compelled to join though the Union Security clause is in the CBA? The SC upheld the freedom of religion, when there is a clash of rights and SC is called to balance, the court shall refer to the hierarchy of rights. Freedom or religion is a preferred right over the rest and that while Union Security clause is a right granted to unions under our labor code, it is not a constitutionally granted right.

V. LIBERTY OF ABODE AND FREEDOM FOR MOVEMENT

That was the origin of conscientious objector test and according to SC that in some countries, Consent objector allowed to refuse to perform military service on the grounds of freedom of thought, conscience or religion. Like Mohammad Ali as the famous conscience objector. While one may refuse military service, by his freedom of conscience or freedom of religion. They are required to render civil service or in a non-combat position. Unlike in our constitution, Article 2, in times of war all able bodied citizens may be compelled to render compulsory military or civil service. Pwede ka tigluto ka sa army but it is still a government service. ABODE – is one’s home or residence. So you choose where to live and you can also change it. The only allowable state regulation or prohibition is a lawful order of a court. Like the penalty of destierro under the RPC. Unless upon a lawful order of a court that you cannot be forced to change your residence. Right now it can be done by reason of national security, public safety or public health but this does not mean that the courts cannot impair your freedom to travel only pertaining to the act of congress or act of executive especially that the right to travel cannot be impaired except by reason of this. An exception to this is the Hold Departure Order because HDO is based on the rules promulgated by the SC. Secretary De Lima now refused to reimplement this because this is a source of legal issues. The court’s inherent power to make sure that the processes are effective and our criminal law follows the principle of territoriality. It falls under the exception of the right of the accused to travel although it is not constitutionally vested limitation. If an accused under bond attempts to depart the country, he can be arrested without warrant to ensure that he can still be under the jurisdiction of the Philippine laws and courts. Intercountry or intra country is what is contemplated in section 6, it does not include the right to travel back to the country. As discussed in the old case of Marcos vs Manglapus, when Marcos wanted to return to the country, the SC said, it is not part of Section 6. The reason why it is part of other law or laws is that it is a generally accepted principle of international law and subject to several conventions. We have the declarations of human rights and internal covenants on civil political rights, and under section 13 of the universal declaration of Human Rights, it includes the right to return to one’s country. Since we adhere to those declarations being signatory thereto under the Doctrine of Incorporation in Article 2, the right to return to one’s country is also part of the law of our land, so the right to travel back is a right though not included in section 6 but under the doctrine of incorporation article 2. right to travel - not travel back or reenter country once he left. onlly within country or to oitside national safety, public safety public health

VI. RIGHT OF PERSON UNDER CUSTODIAL INVESTIGATION Art III Section 6. 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. CONSCIENTIOUS OBJECTOR TEST - A test which develop during the draft in the US to the armed forces. In the World war up to Vietnam war there was a mandatory drafting. The young persons or teenagers were drafted to the armed forces to render service during these wars. Can a person based on religious rights refuse the draft in the army because his conscience would not allow it?

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Art III Section 12. (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 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. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) 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. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. Republic Act No. 7438, April 27, 1992, AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF

immediate family or by his counsel, or by any national nongovernmental organization duly accredited by the Commission on Human Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.

Section 1. Statement of Policy. – It is the policy of the Senate to value the dignity of every human being and guarantee full respect for human rights.

Section 3. Assisting Counsel. – Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes.

Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. –

The assisting counsel other than the government lawyers shall be entitled to the following fees;

(a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel.

(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light felonies;

(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less grave or grave felonies;

(c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. (d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. (e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise the waiver shall be null and void and of no effect. (f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his

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(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a capital offense. The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality of city cannot pay such fee, the province comprising such municipality or city shall pay the fee: Provided, That the Municipal or City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the province pays said fees. In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code. Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense. The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel. (b) Any person who obstructs, prevents or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) conferring privately with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00). The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape. Section 5. Repealing Clause. – Republic Act No. No. 857, as amended, is hereby repealed. Other laws, presidential decrees, executive orders or rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly. Section 6. Effectivity. – This Act shall take effect fifteen (15) days following its publication in the Official Gazette or in any daily newspapers of general circulation in the Philippines. What’s the difference between inquest, preliminary investigation and rights under investigation? Inquest involves preliminary investigation (PI), this is not PI under rule 112 because the entire process is part of PI, person arrested without warrant he has to be charged in 12, 18 or 36 hours under RPC. The determination of the probable cause is called the inquest. If you read the rules on inquest, the person arrested may even asked for a regular PI, provided he must a request within 5 days from knowing of such case to be filed, and he must not waive his rights under rule 125. PI has also its rules (just check). So where’s the custodial investigation comes in? It comes when there is an inquest or when he is arrested with warrant. Rights of investigation presuppose that he is under investigation, this is under the old case of Miranda vs. the State of Arizona. Miranda vs. the State of Arizona. Miranda was arrested because a woman was abducted and raped and a witness saw a car with plate number and a woman was found dead. The eye witness saw the plate number and it was traced belonging to Ernest Miranda. He was arrested and detained. He was interrogated and after that there was a written statement and confession and Mr. Miranda was convicted. On appeal, they claimed that there was a violation for the right to counsel that was the main cause before SC. The only evidence of his conviction was an extra judicial statement which he apparently signed. The SC reversed the conviction, directed trial court to conduct new hearing without using the extra judicial confession. Luckily, Mr. Miranda was convicted again. The SC established the Miranda rule. When a person is brought into a police and investigated in the police room, you cannot expect that they are in a similar position. The attending pressure on the part of the person investigated because he is alone and there is a possibility that there is torture, that his confession will be coerced. The only possible protection so that his confession is not taken by force is to give him the right to counsel. That is the ruling which places a requirement of allowing a person under investigation to be assisted by counsel. It was introduced in the Philippines in 1970 and was expanded or modified to give more protection. We follow the same ruling that if a person is investigated. Before, it was custodial interrogation. Custodial interrogation means he is already arrested.

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Instances where a person not arrested but is question may not be covered by custodial investigation or the some practices of police officers to take a certain person and on the way to police station istorya istorya sila. So the time they reached the police station, he has already confessed. Dal on siya sa basurahan or isalvage bah. So to cover all kinds of questioning, we follow the old ruling of Escobedo vs. State of Illinois, where investigation is a kind of questioning where it ceases to be a general inquiry into the crime under investigation but is now looking into the possible complicity or the participation of person being questioned. If the question is directed towards eliciting an answer to be able to establish a person’s participation in the crime then that becomes an investigation which the Miranda rights has to be afforded. To ensure the person’s right under the Miranda rights is being afforded to him, there is a need for recitation of Miranda warning. RA 7413 expanded it, the context of our constitution that when a person is arrested, detained but not investigated the Miranda warnings cannot be given; the right need not be afforded. RA 7413 expanded to include those arrested, detained and investigated. Even if the person is not investigated but arrested or has been detained the Miranda rights has to be given and be afforded that is the expansion under RA 7413. There must have to be a meaningful transmission of the rights which therefore requires the consideration of certain factors affecting such meaningful transmission. So the language spoken is understood, perhaps the capacity of the person to understand. Age may be considered and all other facts to ascertain that the person has understood what his Miranda Rights are. Of course the Miranda Rights would only refer to his continuing right to remain silent, his right to be assisted by counsel pending any investigation, and if he cannot afford the assistance of counsel, the counsel may be afforded for him, and preferably of his own choice. Now, despite the fact that the person arrested, detained or investigated may be knowledgeable in law, the requirement to apprise him of his Miranda Rights, through the Miranda warnings is not dispensed with simply because he already understands what those rights are. In that situation, what is important is for the person knowledgeable in law to know that those investigating him are willing to grant or afford him his Miranda rights. Now, when a person is informed of his right to remain silent, he must have to be informed also that anything he says can and will be used against him in a court of law to enable him to understand the consequences of a waiver of that right. Right to Counsel Now with respect to the lawyer, before RA 7438, there were a lot of cases involving the question or issue of who are allowed to be assisting as counsel during the taking of statements during the investigation. RA7438 now defined who an assisting counsel is. Simply put, an Assisting Counsel is one who is not interested in the prosecution of offenses. So, in any capacity, if a person by his designation is interested in the implementation of the law, and is therefore prosecuting offenders or law violators, that person cannot be an assisting counsel. The phrase “preferably of his own choice” should be understood literally. Meaning if there is such possible or reasonable choice of the counsel, that must have to be extended to him. Of course if the choice of counsel is not th

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line of question ing if asks on w/r he committ ed the crime even if he is not yet arrested, he is consider ed under investigxn

CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) either appoint to him reasonable—he prefers to be represented by Estrelito a counsel or Mendoza, one of the most expensive lawyers in the country no investigation and he does not even know him, or Mendoza does not know willbe made

him, the choice is no longer reasonable. That should not be left to the discretion of the person being investigated. Waiver of Miranda Rights Now, what generally happens if there is no valid waiver of the rights under the Miranda rights, this is not to say that the prosecution of the accused could no longer proceed? What it simply does is if there is no valid waiver is that the person could not be investigated. And even if there is a valid waiver, for so long as the accused or the person investigated would reclaim his rights under the Miranda Rights, the investigation should not continue. Even if there is a prior waiver, valid under the Constitution, the waiver does not mean that he could not be taken back and that the investigation will continue. Also, it does not mean that if there is a waiver of any of these rights that automatically, there would be a confession or admission which is done extra-judicially. What the waiver does is simply to allow the person investigation to proceed and conduct such investigation. If the investigation results into an admission or confession, then it would be good for the prosecution. But if it does not, it does not make the investigation illegal because there was no confession or admission. pp v galit meaningful transmission

Now the constitution now requires that for there to be a valid waiver, there must have to be the assistance of counsel, and that there must have to be waiver in writing. And the waiver must also be made under the general context of a valid waiver. That it must have to be made intelligently, voluntarily, knowing the full consequences of the waiver. The requirement that the waiver must be valid, must be intelligent, voluntary and knowing the full consequences of the waiver presupposes that there was a prior, meaningful transmission of his rights. Now while the right to be assisted with counsel during the investigation may be waived, the requirement that the waiver must have to be made with the assistance of counsel can never be waived. All waivers must have to be with the assistance of counsel. And if there is a valid waiver, then the investigation can now be conducted without the assistance of counsel. 1) Miranda Rule not applicable to confessions executed before January 17, 1973 Okay, in your outline it’s not applicable to confessions prior to January 7, 1973, again simply because the Miranda rights were first incorporated in the 1973 constitution based on the 1966 ruling in the case of Miranda vs Arizona.

2) Miranda Rule is not applicable to res gestae statements or spontaneous statements. The entire reason for the Miranda ruling is that the person is forced or compelled to admit or to confess to the crime under investigation. So you take that element away, the admission is voluntarily made or voluntarily offered, even without questioning, the Miranda rights and the Miranda warnings are not claimable for the simple expediency that there was no opportunity for the police to ask or investigate

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that person as the confession or admission was voluntarily offered. 3) Miranda Rule is not applicable to statements made in Administrative Investigations. This is where most of the discussion in Sec. 17 and Sec. 12 are made. Sec. 17 of Article 3 is the provision against selfincrimination. They may be of the same or similar characterization, but section 17 is exclusively applicable to persons investigated in relation to a criminal case or criminal charge, it must therefore be a criminal case. Art III Section 17. No person shall be compelled to be a witness against himself. Section 12 (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Privilege against self-incrimination refers to the refusal or avoidance of a person to incriminate himself by admitting to something which is incriminating. A person may refuse to answer an incriminating question. An incriminating question need not be asked or is not solely asked in a criminal case. You can ask it in any kind of proceeding. But Sec. 12, because of this right to counsel, the Miranda warnings does not apply to administrative investigations no matter what the imposable penalty is. So for example it is an administrative investigation in relation to a violation of a company policy on theft, and during the conduct of the investigation which mandated under the Labor Code, can the employee request that he be assisted with counsel? Or that if he is not assisted by counsel, because his Miranda rights were not given, should his admission there be excluded in evidence? With respect to the right of counsel, it has nothing to do with the Miranda rights in that situation. But the employees can request that they be represented by a counsel or by any representative for that matter. And it is his right, not because of the Miranda right, but because the Labor Code has granted it to put a balance between the power of the employer to impose sanctions, and the position of the employee as against the employer. So that if the testimony of the employee in an administrative proceeding in the company level resulted in his admission despite the fact that he was not apprised of his Miranda rights, those admissions will still be considered as admissible. So that is the distinction with respect to privilege against self-incrimination. Thus, if an incriminating question is asked in that administrative hearing, the employee can refuse to answer. The problem with section 17 and section 12 is that section 17 is claimable, meaning confession is inadmissible even if there is no objection when the answers were given unlike in section 17, once the incriminating question is answered there is automatically a waiver of the right thereby making a confession or admission admissible. 4) Miranda rule is applicable to custodial phase of investigation - police lineups. For the simple reason that there is no investigation conducted, We said that investigation for purposes of the Miranda warnings before RA7438, requires the questioning to illicit confessions or admissions on the crime under

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) investigation, the question ceases to be questions of general inquiry. When a person is made to stand in a police lineup, there are no questions asked. Now if you factor in RA7438, when the person is taken for police lineups for identification, should he be informed of his Miranda rights? The answer is yes because the person who is invited to the station to shed light on the investigation, under RA7438 it is covered. The law says “it shall include the practice of issuing an invitation to a person who is investigated in connection to an offense which he is suspected to have committed”. So if a person is invited to stand in a police lineup because he is a suspect, RA7438 is applicable. He should be given his Miranda rights. Now you ask the question, if he is identified in that police lineup but was not previously apprised of his Miranda rights, is the identification considered admissible? Of course it is admissible. There is nothing to be excluded there simply because his Miranda rights were not given. What RA7438 provides as part of the exclusionary rule in the constitution, considering the intent of sec. 12 is with respect only to the extra-judicial confession.

that a person who is sorry for what he has done would easily admit to his culpability. So if there is a claim that the confession was involuntarily made, then it is for the accused-confessant to prove that the confession was taken from him involuntarily. But because the constitution has required certain preconditions before the confession is to be taken, then the burden of proving the voluntariness of the waiver falls upon the state. The prosecution must prove to the court that the waiver was validly made. There is no presumption as the regularity of the performance of duty with respect to this waiver of a constitutional right. What may be waived: The right to remain silent and the right to counsel, but not the right to be given “Miranda Warnings” Exclusionary Rule Art III Sec 12 (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

VII. RIGHT TO BAIL

Tests of validity of Waiver of Miranda Rights “To be informed” a) Pre-Galit Rule (January 17, 1973 to March 20, 1985) b) The Galit Rule (March 20, 1985 to February 2, 1987) Does the Galit rule have retroactive application? In the outline, there has been a reference to the case of People vs Galit. This was because the Supreme Court interpreted the previous constitution that there is the requirement of that right to counsel. While there was no express provision in the 73 constitution, starting March 20, 1985 the Supreme Court said that all waivers must have to be with the assistance of counsel. That was the prevailing law before the 1987 constitution. c) New rule on Waiver (February 2, 1987) Art III Section 12. (1) xxx These rights cannot be waived except in writing and in the presence of counsel.

Art III Section 13. 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. RULE 114 - BAIL Section 1. Bail defined. – Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. Sec. 2. Conditions of the bail; requirements. – All kinds of bail are subject to the following conditions:

RA7438 clarifies that there are documents that must be executed, signed, meaning interpreted, signed, and that he has understood them. This is the custodial investigation report and the extra judicial confession. They are to be signed after there is full understanding, if there is a need to interpret these documents; they must have to be interpreted before the confessant will sign it. If it is validly signed, there must have to be the signature of the assisting counsel if any. Or if there is a valid waiver of the right to counsel, then any of those persons listed must have to sign them as well. They are the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor or priest or minister of the gospel as chosen by him. These persons will sign if there is a valid waiver of the right to counsel.

(a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it;

The burden of proving voluntariness of waivers is on the prosecution

The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail.

Now the final item with respect to the extra judicial confession or admission on Sec 12 will be proving voluntariness of the waiver and the voluntariness of the confession. The confession is presumed to be voluntary because there is always that principle

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(b) The accused shall appear before the proper court whenever required by the court of these Rules; (c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and (d) The bondsman shall surrender the accused to the court for execution of the final judgment.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) Sec. 3. No release or transfer except on court order or bail. – No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. Sec. 6. Capital offense defined. – A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death. Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the criminal prosecution. Sec. 8. Burden of proof in bail application. – At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify. Sec. 10. Corporate surety. – Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors. Sec. 11. Property bond, how posted. – A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention. Sec. 12. Qualifications of sureties in property bond. – The qualifications of sureties in a property bond shall be as follows: (a) Each must be a resident owner of real estate within the Philippines; (b) Where there is only one surety, his real estate must be worth at least the amount of undertaking; (c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded. In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution.

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Sec. 13. Justification of sureties. – Every surety shall justify by affidavit taken before the judge that he possesses the qualification prescribed in the preceding section. He shall describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved unless the surety is qualified. Sec. 14. Deposit of cash as bail. – The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. Sec. 15. Recognizance. – Whenever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person. Sec. 16. Bail, when not required; reduced bail or recognizance. – No bail shall be required when the law or these Rules so provide. When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court. Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. (b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or appeal. Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held. Sec. 18. Notice of application to prosecutor. – In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) Sec. 19. Release on bail. – The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with section 17 of this Rule. When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed. Sec. 20. Increase or reduction of bail. – After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody. Sec. 21. Forfeiture of bail. – When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (a) produce the body of their principal or give the reason for his non-production; and (b) explain why the accused did not appear before the court when first required to do so. Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted. Sec. 22. Cancellation of bail. – Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail. Sec. 23. Arrest of accused out on bail. – For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. Sec. 24. No bail after final judgment; exception. – No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed

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or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence. Sec. 25. Court supervision of detainees. – The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and the prisoners within their respective jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees. In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein. A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information. Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. – An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. When right may be invoked If you look at the provision, a person is protected before he is charged before the court, he has his rights against unreasonable searches and seizure, warrantless arrests and now when arrested, he has his rights while being investigated, this has been expanded by RA 7438. Now he is charged before the court. The first of the rights which the accused can claim, after he is charged in court after his arrest and/or investigation is his right to bail. When is bail a matter of right and when is it a matter of discretion Sec. 4. Bail, a matter of right; exception. – 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 (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment. Sec. 5. Bail, when discretionary. – Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) 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. 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. 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:

there is an undue risk of committing a crime if granted bail.

But if bail is a matter of right but the accused is asking for a reduction of bail, or the accused posts a property bond, or posts a surety bond, there is a need for a hearing. In surety bond, hearing may be dispensed with but sometimes there is a need for a hearing because the surety companies must have prior clearance from the SC. It’s not in the Rules of Court but surety companies must have been issued clearances from the SC that they are still allowed to post bonds for accused in criminal cases. For property bond - for the court to determine whether the property is sufficient to be posted as a bond. It’s market value must have to be equal to or more than the amount of bond required by the court over and above any liabilities on the property. Say the bail bond required is 200,000, the property is worth a million, but it is also encumbered to the bank for another million so it is no longer proper for that property to be put as a bond.

(e) That there is undue risk that he may commit another crime during the pendency of the appeal. 

If bail is a matter of discretion, then hearing is mandatory. It cannot be dispensed with. There was a 2012 case involving an RTC judge in General Santos who granted bail bond when bail is a matter of discretion without conducting a hearing. He was charged and found liable administratively for gross ignorance of the law.

Now constitutionally, the threshold when bail is a matter of right and when it is a matter of discretion is the penalty of reclusion perpetua or higher.



6.



(d) That the circumstances of his case indicate the probability of flight if released on bail; or



there is an increased flight risk;

When bail is a matter of right and bail is posted in cash there is no more need for a hearing

(c) That he committed the offense while under probation, parole, or conditional pardon;

right to travel

5.



(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

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.

he committed the crime under parole, probation, or conditional pardon;

When bail is a matter of right, the question is should there be a HEARING CONDUCTED?

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

where to file?

4.

If the penalty for which the accused is charged is reclusion perpetua or higher, bail is a matter of discretion.

The reason why there is a need for a hearing is:

Below that, bail is a matter of right.



If the reason for the bail to be discretionary is that the imposable penalty is Reclusion Perpetua or higher - to afford the judge the discretion to rule that either the evidence of guilt is strong.



If the reason for the bail to be discretionary is if it were to be any of those 6 disabilities - to determine whether or not the accused suffers any of those disabilities.

But in the provisions of the Rules of Court there have been some changes. The Rules now provide that: 

In all cases pending before the MTC before and after conviction. bail is a matter of right



In the RTC and BEFORE conviction if the penalty is NOT reclusion perpetua or higher. bail is a matter of right



In the RTC and BEFORE conviction if the penalty is reclusion perpetua or higher, bail is a matter of discretion.



In the RTC AFTER conviction if the penalty is more than 6 years and not more than 20 years and the accused-convict suffers any of those disabilities listed bail is a matter of discretion: 1.

he is a recidivist;

2.

habitual delinquent or it is committed under the circumstance of reiteracion;

3.

the accused has previously escaped,

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The prosecution must be given sufficient opportunity to present such evidence to prove that the evidence of guilt is strong or that the accused suffers from any of those disabilities. Any evidence presented during the bail hearing are deemed to be part of the hearing on the main case. Bail in Military Courts There is no such thing as bail in military courts. This must have to be understood in the light of the fact that these are military persons charged with the military courts or what we know as court martial for violation of military laws. These are not military persons charged for common offenses charged with the regular or ordinary courts. The reason why there is no need in court

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) martial proceeding is because they are charged normally with acts of disloyalty against the state. If for example, 1 brigade committed mutiny against the republic and all of them are charged, incarcerated or detained, if they will be granted bail, one will be sure that they will commit the same mutiny. And there is supposed to be a period of trial in a court martial proceeding which is more speedy that our speedy trial case. Standards for fixing bail Sec. 9. Amount of bail; guidelines. – The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: (a) Financial liability of the accused to give bail; (b) Nature and circumstance of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required. These are just standards. The courts will not be compelled to grant bail using only those standards. They may be used as guides and they may also be used as factors. But they are not the entire list of factors that the court can use. Now, the recommendations of bail would come first from the prosecution. If you have seen an information filed in court, in the bottom of that paper there is “bail recommendation”. If bail is a matter of discretion, you find the words “no bail recommended”. But if bail is a matter of right, there is that amount recommended. Now the DOJ has placed it at P1,000 per year of service for non-heinous offenses and P10,000 per year of service for heinous offenses. That is why it is always an example by analogy that if you slap a minor, it should have been slight physical injuries or slander by deed. What is the penalty for slight physical injuries and slander by deed? Answer: 30days imprisonment or fine or both. So the recommended bail if it were at 1000 per year is a thousand at most. But if the case falls under RA7610, or the child abuse act then that will be prision mayor. Prision mayor is 6years and 1day to 12years multiplied by 10,000. That is 120,000. So the next time you are about to slap a child or person, ask his age.

VIII. RIGHTS DURING TRIAL

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. RULE 115 - RIGHTS OF ACCUSED Section 1. Rights of accused at trial. – In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to crossexamination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to crossexamine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial. (i) To appeal in all cases allowed and in the manner prescribed by law. So now, after bail, you are now to be brought to trial. Section 14 of Article 3 provides the right of persons during trial. The rules of court under Rule 115 provides for the same listing of rights during trial. 2 differences are notable: 

Art III Section 14. (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

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In section 14 or article 3 first paragraph reiterates the due process clause. This is to put emphasis on the fact that when an accused is charged criminally, he is up against the entire machinery of the state (People of the Philippines vs. the lone accused). The state has all the resources; the accused only has his resources. So the reiteration of the due process

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) clause is not by accident, it is to put emphasis on the need of due process more in a criminal case for or in favor of the accused. Under the second paragraph there is a listing of rights. But in Rule 115 there is the right to appeal which is not found in the constitution. As we mentioned before, the right to appeal is not a constitutional right. It is a statutory right. But since it is given in certain cases, such violation will largely be questioned as a violation of due process if not afforded. Generally, there is no violation of due process simply because there is no law or rule allowing appeal. But since, again, there is the right to appeal in criminal cases in the rules of court, all the way to the Supreme Court, to that extent it becomes a violation of due process rights if such appeal has not been afforded. Right to free legal assistance Art III Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. Under the provisions, no person shall be denied free legal assistance and free access to courts by reason of poverty. There is no counterpart in the US Constitution with respect to these rights. It is peculiar in the Philippines and indigent litigants are now to prosecute cases or file their claims under what we know in the procedural rules as the ______.This has been improved because the free access and free legal assistance is not limited to our regular courts but also includes quasi-judicial bodies. You have gone through the entire Rules of Court provisions respecting right to have free legal assistance which is also protected with the right to counsel during trial. We have, first, would be the appointment of the counsel de-officio, if a person appears in court without a lawyer. We also have provisions on the Limited Law Student Practice Rule. A law student who has NOT 3 years finished his third year in lawschool may engaged in the practice of law under the supervision of a lawyer. These are some of the provisions in the rules which would give meaning to the right to have free legal assistance and free access. Presumption of innocence Art III Sec 14 (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, xxx nd

The first right of the accused under the 2 paragraph of Section 14 would be the presumption of innocence. Of course, this is only the prima facie presumption, not conclusive because the State may, if it has met its burden of proving the guilt of the accused also by prima facie proof shifts the burden of proving the innocence or defending the innocence to the accused. The prosecution has the primary obligation of proving the guilt of the accused beyond reasonable doubt in order to overcome the presumption. As a matter of fact, in most disposition of criminal cases where the accused is acquitted, the disposition of the court does not relate to the fact that the accused is not guilty but that because the presumption of innocence has not been overcome or that the prosecution has failed to prove or overcome the presumption or prove his guilt beyond reasonable doubt. The court is not in the position to say that the accused did or did not commit it or that he is not guilty of the offense per se because it is largely dependent upon the amount of evidence presented by the pp v pio? counsel de officio appointment as counsel de officio continues in the logical proceedings (even until appeal) until court revokes appointment

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prosecution. The constitution however does not proscribe Congress from legislating presumptions of liability or culpability. Again, while there is a presumption of innocence, that is by reason of the Constitution. Congress is not precluded from legislating creating a presumption of liability provided that that presumption is also prima facie. not conclusive otherwise it becomes a BILL OF ATTAINDER

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A good example of that would be your presumption of liability in falsification, Art 172 in relation to Article 171 of the RPC. A person who introduces a falsified document in any proceeding is presumed to be the author of the falsification. Of course, that is a prima facie presumption.



Also in your Law on Anti-Fencing, there is a presumption that if the thing bought outside of the allowed public auction or any legal means of sale or trading, the fact that the price of the item sold is so disproportionate to its regular pricing, there is a presumption that the person has known or should have known that the item was fenced and therefore, he could be liable under anti-fencing. Of course, that is a prima facie presumption simply because the price of acquisition was disproportionately lower than that of the regular pricing.

Right to be heard personally or by counsel If personally by himself, he has the right to present his evidence, that’s why when you are going to be in litigation, in criminal cases, that is always the dilemma on the part of the defense counsel. The person of the accused may want to testify. Two things come to mind. One, he has the continuing right to remain silent so he may not testify. Secondly, he also has the right to testify because he has that right to be heard in person. What if he knows that he is going to perjure himself in testifying? Will you present him as a witness knowing that he will perjure himself or would you deny him his right to be heard in person because you don’t want to be a participant to a perjuring testimony. So that would be a moral dilemma. The problem is both are constitutional rights of the accused and therefore, he must have to be presented. With the assistance of counsel, it is based on that old saying that a lay person who wants ____ in law may be convicted not because he is guilty but because he does not know how to defend his innocence. Even the most, perhaps knowledgeable lawyer, if he is the person subject of the case, the accused for that matter, he may not be in the best objective position to defend himself that’s why it is always suggested to get a counsel to represent him. Again, because of the lack of objectivity that lawyer-accused may not be able to defend his constitutional presumption of innocence. The duty of the court whenever an accused appears in court in relation to his right to be heard and counsel is to inquire whether he is represented by counsel. The Rules of Court requires the judge to allow the person to secure the services of counsel if he so wants. Of course if he does not want or he could not afford the services of a regular counsel, the court is obligated to appoint a counsel-de officio for him. The appointment of the counsel de officio is mandated in order for the accused to be protected of his right or his right will be protected during the trial of that criminal case against him. In theory, the appointment of the counsel de officio must depend largely on his experience, his field of expertise as well as the complexity or nature of the case but in

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) practice or in reality, new lawyers would normally get appointed as counsel de officio because they are not too busy with any other litigation anyway and there is not much possibility of conflict of interest. A lawyer appointed as counsel de officio cannot refuse the appointment unless for justified reasons. Anyway, the counsel de officio appointed by the court can seek payment for services rendered in the SC. The Rules of Court allow counsel de officio to seek payment for his services. The court will require you to submit a lot of documents and will pay you so less. So might as well not claim from the SC.

not speak the language or understand English, it must have to be translated to him for him to understand what the nature of the charges would be. Okay, if there is no valid arraignment there is no valid proceeding thereafter. Based on your study or the review on criminal procedure, if the accused does not enter any plea; a plea of not guilty will be entered for him by the court, which was what was done by Miss Janet Lim Napoles. She refused to enter any plea for the crime of serious illegal detention.

The discussion with respect to right to counsel during trial and right to counsel during preliminary investigation is the fact that during custodial investigation or during investigation under Section 12, the choice of counsel follows the phrase “ preferably of the choice of that person investigated” which is not found under Section 14. The distinction is explained by the fact that under Section 12 there is yet to be any court case. The accused has not yet been officially charged and the appointment of the counsel is by the person investigating. The person investigating must apprise the person investigated that he has the right to counsel and that the right to counsel is preferably his own choice and that if he could not afford a counsel then the state could appoint one for him. That is to be apprised and to be extended by the person investigating. Under section 14, the appointment is made by a judge and that is already a court case or proceeding so that any counsel for that matter assisting the accused as counsel de officio will be performing his task under the supervision of the court or of the judge. There is not much risk involve unlike in an extra-judicial setting.

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Right to Speedy, Impartial and Public Trial

So you have your rules of disqualifications in the Rules of Court, disqualification of judges in cases, as well as the voluntary grounds for inhibition. That the disqualifications are mandatory grounds while inhibitions are voluntary ground. In order to avoid any semblance of partiality, you know, some years ago, there was a big case in the SC where the Chief Justice was Narvasa and one of the lawyers of the accused engaged was the son of the Chief Justice. So if a party or a counsel is related within the fourth civil degree of affinity or consanguinity to the magistrate, that is a ground for disqualification. So if you are not comfortable with this judge, and you think there is that relationship, better hire a lawyer who is related to the judge so that he or she will disqualify himself.

Right to be informed of nature and cause of accusation The right to be informed, one of the more important rights of the rights of the accused because this would define the validity of the proceedings taken thereafter in the criminal case. Generally, if there is no compliance of the right to be informed which is complied during the arraignment of the accused in a criminal case, no proceedings will be valid in the criminal case without arraignment. Even a ____cannot be had if the accused has not trial in absentia been validly arraigned. The right to double jeopardy cannot be claimed if the first jeopardy did not attach simply because the accused has not been arraigned in that previous or prior criminal also meaningful transmission case.

The impartiality does not however prevent a judge from participating in the trial while ideally the judge must be an innocent by-stander to the parties to the case, the judge must only rule on legal objections because the judge will eventually hear and decide the cases. The judge is not prevented from participating in the sense that the judge is precluded from asking questions to clarify himself on certain matters. Sometimes in the eagerness perhaps to ascertain the truth will try to illicit responses or answers which would not have been elicited by the counsel. So , how are going to go about it? can you object to the judge? For example, the prosecutor was asking questions, propounded on the witness, on the elements of the crime. But the questions were phrased and delivered that they were all objectionable, the defense counsel successfully objected to them all, which the judge sustained. So, nothing was elicited. And the end of that, the judge would say, okay questions from the court, and the court starts asking questions, leading questions at that. Can you object to the judge asking leading questions? While the Rules of Court does not state, the Rules of Evidence does not state that you can or you cannot. Prudence would dictate that you should at least. It will appear on record that the matters were elicited not by the counsels to the case but by the judge, which may show that the judge may have been partial.

The right of the accused to be informed is based on the need for the accused to know what are the charges, or what is the nature of the charges, which is basic. You have come across a lot of cases where the person is arrested for one cause but is charged for another. Accused is arrested perhaps of traffic incident or violation but is eventually charged in the court for illegal possession of firearms or prohibited drugs. So, the reason for the arrest may not be the reason for the case. The accused must have to be informed of this because of the objectives. The court said, one, to furnish him of the charge in order for him to prepare for his defense, two, for him to avail of any conviction or acquittal from any further prosecution and third, to inform the court of the sufficiency of the information, if it warrants a conviction. Now, just like in the recitation of the Miranda warnings in order to grant him his Miranda rights, during arraignment there must have to be meaningful recitation as well. So if the accused does

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IMPARTIAL TRIAL - When you say impartial trial, this goes to the requirement of procedural due process. If you remember, one of the first conditions for procedural due process is that there must be an impartial court or tribunal clothed with jurisdiction over the subject matter and of the persons, of the parties to the case. The impartiality requires that the court must not only be impartial but that also appear to be impartial.

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PUBLIC TRIAL - The right to public trial simply requires that the trial is open to the public so that the possibility of impropriety in the conduct of the proceedings would be th

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) avoided. Of course, it does not require that everybody is allowed to enter or observe, only so much as the court could accommodate. Of course, the right to be there to observe would be subject to the certain rules of decorum in the court. The first has something to do with the dress code, the way you are supposed to conduct yourselves. In fact, the publicity of the trial, the requirement of the public trial does not ordinarily allow it to be subject of, where pictures are taken, video recordings are made. It has to be by reason of a court-allowed taking of these photographs and video recording. What comes to mind perhaps was that trial of Estrada in the plunder case where he had to ask permission from the SC, and the rule has been establish that there should be no live screening of the proceeding because it will violate the right of the accused, generally, to due process because it might sway the public opinion of his guilt or innocence. It can be recorded for purposes of keeping the recording as part of the legal history, but it cannot be recorded and viewed publicly as it were in other proceedings in other branches of government. The publicity of the trial however allows the exclusion of the public under your Rule 119 of the Rules of Court If the nature of the testimony is delicate, or is offensive to decency or public morals. The public can be excluded also in the same provision, Section 21 of Rule 119, if the accused requests that the public be excluded and the Rules of Court does not require any reason. Ayaw lang ng accused. Anyway the publicity of the trial is his right. He does not want any public trial and so be it. the court can exclude the public. Section 21. Exclusion of the public. — The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial, except court personnel and the counsel of the parties. (13a) The last one there is when, in relation to child witnesses. Child witnesses are supposed to be protected from the publicity of the trial because of its effect on them. Therefore, the public may be excluded. There is even a Special Rule For Some Child Witnesses whenever they are not comfortable testifying in the court. There is supposed to be a video conferencing procedure. It used to be in one of our courts here in Branch 12 which is a Family Court, but I don’t think that the system is working. 

SPEEDY TRIAL - Now the last right there is the right to speedy trial. The right to speedy trial is characterized as one, which is free from capricious, oppressive, or inordinate delay. That is theory behind, or the characterization of what a delay is to constitute a violation of such right. This right to speedy trial is often confused if not distinguished from the right to speedy disposition of cases because both follow what is known as the Four-fold test or Four-fold factor. The reason for the delay, the length of the delay, the assertion or non-assertion of the right, meaning the right to speedy trial or the right to speedy disposition of cases, and the prejudice that it has caused and the delay has caused on the party claiming it. It is not the length of time that is measured for purposes of determining whether there is violation of the right. This four-fold test or factors will

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have to be considered and the court must have to balance, that between the right of the accused and the right of the offended party. Now the distinction or confusion with respect to, in relation to right to speedy disposition of cases is when is this or are these rights claimable. Correctly understood, right to speedy trial will only be claimable by the accused in criminal cases. No other person can claim, not in any other proceeding. The right to speedy disposition of cases however is claimable by any party in any proceeding. That was part of the ruling in the case of Cocofed vs. Republic, 2012 case, which involved a civil case. Cocofed claimed that for almost 20 years, the Republic which filed a civil case for forfeiture of ill-gotten wealth has not presented its evidence because of some delay brought about by certain petitions or actions taken after the main case was filed. SC said the right to speedy trial is not claimable in civil cases, it is only claimable in criminal cases. It is only claimable by the accused and not by any other. The right that should have been invoked is the right to speedy disposition of cases because it can be claimed in any proceedings and it could be claimed by any party. Also, the distinction lies in the fact that right to speedy trial is claimable because of the delay when the criminal case is filed up to the time the prosecution rests its case. So if there is that delay, the right to speedy trial can be claimed. Its not even from the start of the filing of the criminal case up to the time the defense rests because it is only up to the time the prosecution should have rested its case. Speedy disposition of cases does not involve the time elapsed from the filing to the submission of the case for decision in that same criminal case. If we were to make an example of that criminal case mentioned, the right to speedy disposition of cases would refer to the period of time before the filing of the information in court, meaning the time the complaint is filed and the time the information is filed upon the finding of probable cause or from the time the defense rests up to the time the court renders its decision. 

So in the spectrum of a criminal case, for example, when the complainant files his case with the investigating office up to the time that investigating office finds probable cause or dismisses the case , right to speedy disposition of cases can be claimed in that time span.

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When the information is filed eventually up to the time that criminal case is submitted for decision, right to speedy trial can be claimed, the right to speedy disposition of cases cannot be claimed in that time span.

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It can be claimed again when the case is now submitted for decision up to the time the case is eventually decided, right to speedy disposition of cases can be claimed. That’s why in some cases where the right to speedy disposition of cases has been granted, perhaps one of the more familiar case with you would be the case of th

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) Duterte vs. Sandiganbayan where the criminal complaint for the violation of R. A. 3019 was filed against them, it took the investigating office, the Office of the Ombudsman sometime to find probable cause against them. So that when the information was eventually filed, they have sought the dismissal of the case on the ground of violation of right to speedy disposition of cases which the SC granted. Again, because the delay in the filing of the case in the court by the ombudsman has been characterized as oppressive and or inordinate delay. The rationale behind is simple. When a criminal complaint is filed with the investigating office to find probable cause for the filing of the information in the appropriate court, the investigating office does not preside the case to find guilt beyond reasonable doubt. The task or job of the office is just to determine whether there is a wellfounded belief to engender the filing of the case in court or probable cause. So, why should it take them so long to file the case in court against the accused. So if the reason is because of the failure of that office to resolve it, then there is a violation of the right to speedy disposition of cases. For the time that the case is submitted for decision up to the time the decision is rendered, while the right to speedy disposition of cases may be claimed, it does not necessarily operate to acquit the accused or will have the case dismissed. There may be some delay, it may be inordinate, there may be a violation of that right but the liability rests upon the person or magistrate who is tasked to issue the decision. It should not affect the rights of parties simply because there was delay in the promulgation of the decision. Know that both parties have already presented their evidence in full, there is nothing much that they could have done except for the court to render its ruling. So that there is a difference in the appreciation and grant of the right with respect to the effect if you were to view it at the period or time elapsed or span before the criminal information is filed and with that other time span in our spectrum when the case has already been submitted for decision. If there is nothing much that the parties can do because the case has already been submitted for decision, the right to speedy disposition of cases may not necessarily be granted and even if granted, may not necessarily mean the acquittal of the accused or the dismissal of the criminal case. Right to confront witnesses Okay. The next right of the accused is the right to confrontation. To meet the witnesses face to face this is usually satisfied when the accused has cross-examined the witness. There are two reasons why the witnesses must have to be crossexamined not only in criminal cases, not only for the accused, but generally in cross-examination of witnesses. One of the basic rules in _____of evidence is that evidence to be believable or credible must not only be credible by itself but must also come from a credible witness. So the two basic reasons why confrontation is required:

1)

For the accused to be able to test the credibility not only of the story but also that of the witness

2)

For the judge to observe the demeanor of the witness, to assist or guide the judge in determining the credibility of the witness as well as that of the story.

Of course, these are subject to certain exceptions. For example, we all know that in the preliminary investigation stage of a criminal case, the right to cross-examine is not given. Even the investigating prosecutor would conduct clarificatory hearing, the accused, at that time respondent, does not have the right to cross-examine the witness. During clarificatory hearing, if you are the respondent, you have a question to the complainant, how do you propound it? No, you cannot ask questions. No, you can, but you have to course it to the investigating officer. You could not directly ask the complainant or the witnesses of the complainant because the right to cross-examine does not exist during the preliminary investigation stage of a criminal case. Right to secure attendance of witnesses Okay, the next would be the right to compulsory process. The right to secure attendance of witnesses or compulsory process is granted to the accused because the state or the prosecution has no problem with respect to its witnesses or documentary evidence. If the prosecution would want the police officer in the fire and explosive division or unit before to testify on the examination made or the ballistic examination made, and even if he is coming from Camp Crame in Quezon City, the State has all the money and resources to bring that person here to testify ,even in Davao City. Same with certain experts in the NBI, you have your QED or Question ___ Division. If you have some evidence to prove that the signature has been falsified, you just send the falsified signature in that document and other specimen signature contemporaneous with that. The NBI QED will do the examination for you and fee is not required to determine whether or not that question, signature in that document is falsified or not falsified. And if you want that person to come for the prosecution, with all the State resources, those witnesses can. The problem is with the accused. The accused does not have, may not have all the resources to bring his witnesses in court. So the accused has the right to compel attendance of witnesses in his favor. However, that right will only allow him to ask a judge to issue a subpoena to compel that person to testify. That right does not grant him free access to these persons to testify for him. The accused may have to pay for the expenses, which his right, under the constitution does not provide. That’s why it has always been said that ordinarily, justice in the Philippines are for those who could afford it. To some extent it is true, simply because even if there is the right to compulsory process, his right is only up to the court issuing a subpoena. Rule 21 Subpoena Section 10.Exceptions. — The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained. (9a, R23) The subpoena efficacy in the Philippines follows the 100 km rule. Before it followed the 50 km radius rule, now it is 100 km in the

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) ordinary course of travel. So, if the person or witness to be presented by the accused is outside of that 100 km in the ordinary course of travel, that person can refuse the lawful subpoena. Refusal of the subpoena without justifiable reason is punishable by contempt. It is considered a contumacious behavior to disobey a lawful subpoena. Also, the rules may require you to advance the fees and expenses of the person to testify. If the accused does not have that money say, for the fees and the expenses, the witness may refuse to honor the subpoena. The right of the witness to honor the subpoena is referred to as the Viatory Right of the witness. In one bar exam, that had been asked. What is the Viatory Right of a Witness. Rule 119 Section 14. Bail to secure appearance of material witness. — When the court is satisfied, upon proof or oath, that a material witness will not testify when required, it may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken. (6a) There is Section 14 of Rule 119, if a witness whose testimony is material to the case refuses to testify, he can actually ask for a ___ warrant meaning ask the court to issue a warrant to arrest that person in order for that person to testify in a case. And Rule 114 allows that person to post bail, if he has been arrested as a material witness or if he cannot post bail he should be incarcerated until he testifies. My worry is that if you would follow this process, this person is not willing to testify for you, you know that he is material to your defense, you had him arrested, and when he is incarcerated and then he testifies, my worry is that he might not testify in your behalf. So that would be the problem if you have a material witness arrested under Rule 114. You will never know what he is going to testify of. Even if you were allowed to ask leading questions because that witness may be hostile already, you might not be able to elicit favorable responses for your defense simply because he does not want to help you.. Trial in absentia Rule 115 sec 1(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his right without the assistance of counsel. In order to leave the disposition of criminal case, the presence and absence of the accused and in order not to make mockery of judicial system on the reason of absence of the accused, the rules allow a possibility that the accused may be convicted provided four conditions are complied:

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(1) (2) (3) (4)

First, there must be a valid arraignment. Second, the accused must be notified. Third, the accused is absent. Fourth, the absence is not justified.

There are two situation contemplated. 

One, after the arraignment and there is setting because under our rules now there is schedule preliminary conference where the dates of trial are already agreed upon by the parties and in fact no further postponement are allowed unless justified. On the particular trial date, the accused is absent. Can the prosecution proceed to present evidence? If the conditions are present that because he was notified and not justified, then the prosecutions may proceed, for the trial date, trial in absentia.

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The second situation contemplated, the accused jumps bail or escape detention during trial in which case, trial in absentia can be had because of those events or occurrences and there is no need to prove the absence is unjustified nor that he has been duly notified because he has place himself beyond the notification process or obligation of the court simply because he has jump bail or escape detention. In that situation then the case can proceed for the entire duration provided the condition are met. Before that date, the accused must be validly arraigned.

Now the next question asked is what would be the effect of trial in absentia or the absence of the accused of his rights during trial? Some commenters would says there should be no effect even if there is in criminal law that flight is indicative of guilt and because the accused jumps bail that presumption of innocence is overcome. What other rights? Rights to be heard personally that is waived but the right to be heard with counsel is not affected. The counsel whether____ or ex-officio must have to perform this obligation to defend the rights of the accused even if under the trial in absentia, the lawyer cannot refuse to render this work or perform his task for reason that his client is no longer here because he is obligated as an officer of the court. The right to be informed has been done. The right of speedy trial, perhaps it is not affected nor waived even if he is absent or trial in absentia, the prosecution must have present its evidence consistent with the right of speed trial. Impartial trial of course there are not affected. The right to confront witnesses, personally that is waived but with his counsel that is not waived because he can conduct cross- examination to test the credibility of the witnesses. Right to secure the attendance of the witnesses that is not waived. Now, because we said that the right of appeal is not constitutional right, there has already been a decision the accused right of appeal is waived if he is in trial in absentia and the promulgation is in absentia and he has failed to reappear or place himself under jurisdiction of court within 15 day period. When presence of the accused is a DUTY (1) Arraignment and plea, whether of innocence or guilt (Rule 116 Sec 1b) (2) During trial, for identification

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) (3) Promulgation of sentence, unless it is for a light offense, in which case accused may appear by counsel or a representative (Rule 120 Sec 6)

IX. PRIVILEGE AGAINST SELF-INCRIMINATION Art III Section 17. No person shall be compelled to be a witness against himself. The privilege against self-incrimination is based on two grounds:  

on the ground of public policy - Public policy is because if there was no right or privilege of self-incrimination, it would place the person investigated to commit perjury on the ground of humanity - humanity because this is constitutional bar to prevent extortion of confession or admission.

The scope of coverage – applies only to compulsory testimonial self-incrimination. This refers to use of physical or moral composure to exact testimonial evidence. This is nothing to do with any or other form of evidence which does not involve an oral confession or admission. But because of jurisprudence, there has been inclusion of nonverbal responses to be included under the privilege provided it would require the use of intelligence:

the person cannot refuse to take the witness stand, it can only claim the privilege once incriminating is asked. As also mentioned last night, this is waivable and does not need any other special on waiver as it is under sec. 12 where waiver must be in writing and with assistance of counsel. Here, once an incriminating question is asked and answered then it is an automatic waiver. There must be refusal to answer the question if it is thought to be incriminating. In real practice when the person is testifying there is supposed to be a little time lag. You always tell your witness do not answer immediately give some time lag for a lawyer to interpose an objection. Transactional Immunity vs Use Immunity There are some situation where a person may not be able to refuse a subpoena testify particular matter under investigation and a person may be compelled to testify even the question is incriminating. In our system that is allowed provided there is a legal excuse for the person for any liability even if he has provided an answer and what we call as immunity provision. The immunity provision is either transactional or use immunity. 

TRANSACTIONAL IMMUNITY - pertain to the immunity from persecution as agreed between the one investigating and the one investigated. And there is agreement that the person will never be prosecuted despite the incriminating then he will not be prosecuted in relation to the crime being investigated.

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The most popular is the handwriting before the idea of handwriting is use for falsification of document is considered as mechanical act. Requiring the person of his handwriting or signature for purposes comparison is not included in the privilege but subsequently the Supreme Court said it is because when one person gives a specimen even a copy uses the intelligence to do so.

Art XIII Section 18. 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;

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The other is the re-enactment of a crime, when a crime is reenacted by the suspect supposedly covered by the privilege, the person of the accused may refuse on the ground of selfincrimination.

REPUBLIC ACT No. 1379 AN ACT DECLARING FORFEITURE IN FAVOR OF THE STATE ANY PROPERTY FOUND TO HAVE BEEN UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR EMPLOYEE AND PROVIDING FOR THE PROCEEDINGS THEREFOR.

Correctly understood the incriminating question or the right of privilege of self-incrimination is objectionable if the answer to the question is incriminating. We say incriminating when the answer will subject the person to a criminal liability which results to a penalty. If the answer to the question may be against the interest but does not subject the person to any criminal liability that is not covered by the privilege. As we have mention last night, the privilege in sec. 17 is capable on any proceeding, by any person, once the incriminating question is asked, the right is claimable. In the case of the accused however, he has because it has the continuing the right to remain silent, he is treated specially with respect to the silence in fact you cannot compel the accused to take the witness stand because it is his continuing right in relation to the privilege itself. And when he takes the witness stand, the accused cannot be cross examine on any other important matter except on those matter taken during direct examination, there is a strict rule on cross examination on accused because it is to protect from any incriminating answers. For the rest of the witnesses in any proceeding on that matter including administrative proceedings,

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Section 8. Protection against self-incrimination. Neither the respondent nor any other person shall be excused from attending and testifying or from producing books, 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. Republic Act No. 6832 AN ACT CREATING A COMMISSION TO CONDUCT A THOROUGH FACT-FINDING INVESTIGATION OF THE FAILED COUP D′ÉTAT OF DECEMBER 1989

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) Section 8. Immunity from Criminal Prosecution. – The Commission is authorized to grant immunity from criminal prosecution to any person who provides information or testifies in any investigation conducted by it where, upon its evaluation, such information or testimony is necessary and vital to the investigation. The immunity thereby granted shall continue to protect the witness who repeats such testimony before the appropriate court when required to do so by the latter. Should he refuse to repeat such testimony, the immunity granted him shall cease. Most common situation perhaps too easy to understand is when the accused turns into a state witness. Under the rules of court when there is no direct evidence and there are several accused, the one is not the most guilty whose testimony is material for the conviction of the rest can become a state witness. The rules requires that you execute a sworn statement of a propose testimony for the court to appreciate whether to charge you as a state witness. Once the person is admitted as state witness and performs an undertaking which is to testify in a case, because if he will not testify it will not resolved him being acquitted. But if he eventually testifies as part of his condition then he cannot longer be prosecuted and thereafter found guilty for an offense he is charged. That is an example of transactional immunity. 

USE IMMUNITY - The other immunity which is limited in character is used and fruit immunity as the term suggest whatever evidence that a person has given cannot be used against him nor the fruits of the statement that he was compelled to give but if there are other evidence that could be use against him not those provided and the fruits he had given, he can nevertheless prosecuted by the state. This provision of immunity makes applicable in inquiries in aid of legislation. So if a person is called and he is going to testify he can invoke his privilege against self-incrimination. If there is no immunity given to his testimony then he will no longer be compelled to testify. Of course the investigating body can grant some form of immunity for the answer to the question which may be incriminating.

Being admitted under witness protection program does not mean that you are automatically become a state witness. Part of the witness protection program law requires witnesses to testify in criminal cases where there testimony is material for the prosecution of suspects and there eventual conviction.

X. RIGHT TO SPEEDY DISPOSITION OF CASES Art VIII Section 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts. (2) A case or matter shall be deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself.

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(3) Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties. The certification shall state why a decision or resolution has not been rendered or issued within said period. (4) Despite the expiration of the applicable mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay. Art VII Sec 18. Xxx The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.xxx Art IXA Section 7. Each Commission shall decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. Right of disposition of cases, we discuss that already last night.

XI. SUBSTANTIVE RIGHT UNDER THE DUE PROCESS CLAUSE What acts cannot be criminalized 1)

Mere belief of aspirations (Art III sec.18 (1)) - No person shall be subjected of penalty on account again it should follow the same belief action test in freedom of religion for so long as it is ___ that remain in the ___ of the mind, it cannot be regulated nor could be penalized but if it is converted into overt acts, this overt acts can be subject of regulation including imposition of penalties for purposes. This was the basis for decriminalization of anti-subversion law.

2)

Debts and Civil Obligations (Art III Sec 20) - non imprisonment of non-payment of debts and civil obligations. Section 20. No person shall be imprisoned for debt or nonpayment of a poll tax. This provision is anchored on personal liberty by prohibiting the practice either sending the debtor to jail or making the debtor personal slaves for failing to pay the debts. But it must be clear that this has something to do with purely civil debts, if you notice that in our Revised Penal Code there is a provision which requires a subsidiary imprisonment of a convict for non-payment of fine. The imposition of a fine is not a civil debt. It may be a monetary obligation it belongs to state as a form of penalty after due process in a criminal case and the court decrees a judgment that the fine is not paid then there is a subsidiary imprisonment. That is not th

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) imprisonment for non-payment of debts. Also civil debt does not involve fraud, if there is criminal fraud, it may be punishable just like estafa, Bp22..etc.. 3)

however allows the involuntary servitude on the situation. One, one declaration of principle on defense of the state, all citizen may be compelled military or civil service. Second is that the servitude is on account of upon order of the court. Normally it is the sanction after criminal conviction so accused is made to render service.

Acts which when done were innocent (Ex Post Facto Laws) (Art III Sec 22) Section 22. No ex post facto law or bill of attainder shall be enacted.

2)

Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall the 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.

Now this ex post facto law and bill of attainder involves retroactive application of the law. The common characteristics of both is that they applied retroactively so there are traditionally six situation on ex post facto law, the common denominator is that they are applied retroactively. If they apply prospectively, it is not considered ex post facto. So when a newer law criminalize an act which done when innocent it becomes ex post facto because it was done innocent. If it aggravates the crime or increases the penalty or it requires less evidence or conviction are considered as ex post facto law. Bill of attainder traditionally refers to the legislative adjudication of guilt without the need of judicial trial and the penalty imposable is death. If it is less than death it is called bill of tains(?). but in our country it refers to both whether the resulting penalty is death or less than death. So what the law provide is that it defines an act to be criminal provides for liability imposes penalty without the need of judicial hearing. Meaning, it is legislative determination of guilt as we mention in the presumption of innocence, Congress is not precluded from enacting a law providing for a prima facie presumption of liability because it can be overcome by evidence. But if presumption is conclusiveness, that is considered as bill of attainder. Just like ex post facto, the bill of attainder applies retroactively. Remember the case of Bureau of Customs employee vs. sec. of finance Tevez on the attrition law? The argument is that the attrition law is a bill of attainder because it defines certain misgivings and eventually serve as their dismissal because the attrition law provides well benefits if the target is met but if the target is not met they eventually be dismissed. The SC said it is not bill of attainder because it is not applied retroactively. When the law is applied retroactively there is no escape from any liability that should make the bill of attainder, the resulting penalty. Secondly, it is not bill of attainder because while the law provides for the targets for collection and eventual resulting from dismissal of service. The SC said analyzing the law including the rules issued by the secretary to promulgate the law provides for ______, there is no judicial or legislative determination of their liability. What punishments cannot be imposed 1)

Excessive fines the characterization of excessive fine is not measured on the amount imposed per se but rather on its gross disproportionally on the amount of the fine with respect to the act or the violation. A good example as mentioned last night is the intents of the law for special class of victims or special cases of interest, we mention about the slapping of a child where to be under the Revised Penal Code, slander by deed or physical injury but if it under RA7610 on child abuse then imprisonment is prision mayor but the intent to blow that is intent to protect a special class or special situation. When a fine is imposed in certain situation where the congress has special interest in order to give some protection. The common here is the Price Control Law, are we still have the price control now? We have price control in times of certain emergencies where the state can imposed sanction for violation of this supposed standard retail pricing. 3)

Section 18. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

Cruel, degrading and inhuman punishments Same thing with the inhuman or cruelty punishment, cruelty does not mean that is the very thing of the penalty. Death is the most severe. There is nothing more severe than that but the manner which the death may imposed as will define cruel, degrading.

4)

Indefinite imprisonment

The Protection against Double Jeopardy Section 21. No person shall be twice put in jeopardy of punishment for 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. TWO SITUATIONS CONTEMPLATED IN SEC 21, PROTECTION AGAINST DOUBLE JEOPARDY. 1.

Involuntary servitude

Excessive fines

Same Act Rule - the act must have to be punished both by a statute and an ordinance. A conviction or acquittal or dismissal of charges in one bars the prosecution of the other. So, the point of consideration is the act and not the punishing law per se because if that act is punishable by a statute or an ordinance then the same act rule shall operate if the first jeopardy attached in either of the cases filed.

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Involuntary servitude was abused on 13 amendment of the US Constitution which abrogated slavery. The constitution

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) 2.

Same Offense rule – the more discussed aspect or situation contemplated in double jeopardy protection. The act is punishable by the same statue or different provisions of the different statutes but nevertheless defined as criminal by the same legislative body. It is not by a statute which is promulgated by congress and an ordinance which is issued by legislative council. In the same offense test, invariably, the Supreme Court has discussed that they have several conditions for it to be claimable but technically speaking, there are only two.  

the first jeopardy must have attached the second case filed is the same as that of the first case filed where the first jeopardy already attached.

So, the first jeopardy is considered attached. Now, if another case is filed for that the same offense, meaning a second case is filed as that of the first, then double jeopardy can be made. As we have said before, there is no equivalent ground to dismiss or quash an information in criminal cases as that of the civil cases on litis pendentia. When there is another pending criminal case in another court where the first jeopardy has not yet attached, the accused cannot claim protection against double jeopardy. There may have been cases that the court has reconstrained to dismiss a second case filed because of the pendency of the first; but again, to be safe about it for so long as the first jeopardy had not attached, the claim or the protection of double jeopardy in another case could not properly be made. The same offense test follows:

RULES OF COURT PROVISIONS Rule 117 Section 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1 (f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense. (7a) The further discussion would be when is the first jeopardy has attached? That is where the most of the conditions are invariably cited. a) b) c) d)

There must be an information sufficient in form and substance to allow a conviction. It must be have to be filed with a court of competent jurisdiction. The accused must have been validly arraigned and therefore must have entered his plea validly. Lastly, the accused must have been convicted or acquitted or the case against him was dismissed without his express consent.

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1) 2) 3) 4)

5)

6)

literally, the second case is the same as that of the first. or The second case is an attempt of the first. or The second case is a frustration of the first. or The second case necessarily includes the first, meaning some of the elements in the second charge constitute the elements in the first charge. or The reverse of that, the second is necessarily included in the first case, meaning some of the elements of the first case as charged constitute the elements of the second case as charged. Last, which is by rule, when there is a proper and valid enter of plea of guilt to a lesser offense. That last instance would require in the present rules that the prosecution both the public and private, unless - must have consented. One of the questions normally asked during pre trial in criminal cases, what is the effect if the private complainant does not appear? Would the case be dismissed because the rule in civil cases is that when the plaintiff does not appear in pre trial for any justifiable reason, the defendant can cause the dismissal of the civil complaint by declaring the plaintiff to be declared as..what? Can the civil case be dismissed if the plaintiff does not appear during the pre trial of a civil case? Now in criminal cases, the only effect is that if there is a plea bargaining, the consent of the private offended party need not be secured, it would only be the consent of the public prosecutor. So, if the public prosecutor agrees to the plea bargaining then it will be valid provided the second condition is also satisfied, that the lesser offense is necessarily included in the offense charged. Prior to the amendment of the present rules, plea of guilt to a lesser offense does not require that the lesser offense is necessarily included in the offense charged. You are charged for homicide you can plea guilty to other deceits, that is possible before. Now, the lesser offense need to be necessarily included in the offense charged. If you are charged with murder, can you plead guilty to physical injuries? Is physical injuries necessarily included in the crime of murder? Yes, they are of the same species. But you cannot plead guilty to theft. Robbery, can you plead guilty to a lesser offense of theft? Value of goods is 100 na lang? Same species. If these two conditions are met, then the plea of guilt to a lesser offense is supposed to be valid and the accused cannot be charged again or in the second case for the original charge filed by the prosecution.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) The exceptions are:

2)

Petition for review under rule 45 – normally involves questions which are legal in character; correct application or interpretation of a law based on an admitted or an uncontested set of facts.

3)

Petition for certiorari under rule 65 – question on jurisdiction. The issue is always about jurisdiction regardless of validity of the decision. It is not a question on appreciation of evidence. It is not a question of application or interpretation of the law. Rather, it is a question whether or not the court has authority to decide a case at the onset.

1) When there is supervening event. The graver offense has developed due to a supervening fact. The supervening fact is one which has developed after the first jeopardy has attached. If the accused has been charged earlier for attempted homicide, and he pleaded guilty, and sentenced accordingly but by reason of the same injuries the victim eventually died. Can he be convicted of consummated homicide this time because there is supervening fact which is the occurrence of death. However, a situation in one case where the SC did not appreciate the supervening fact exception was that the victim was mauled by the accused and the victim underwent medical examination and was in fact hospitalized. The initial finding of the medical doctor was that recovery will be not more than ten days. So the accused was charged with slight physical injuries. The accused pleaded guilty and sentenced accordingly. The victim, however, was not able to recover even after the lapse of ten days and so a more thorough medical examination was conducted and it was found out that the victim suffered concussion in the brain which if there was no timely medical intervention could have resulted to his death. So, the accused was charged again for the same incident of mauling this time for frustrated homicide. Can he be charged with violating the protection against double jeopardy? The SC said no because it will violate his protection because the graver offense was not a supervening fact. The graver offense was already there though not discovered. So, which gave way now to the second exception wherein the rules now provide: 2) The facts which constitute the graver offense became known or discovered only after the filing of the previous case. So even if it was not a supervening fact but it was only discovered after the first jeopardy attached, the accused could be charged for the graver offense. 3) The third exception is that when there was invalid plea of guilt to a lesser offense. So the accused can be charged with the original charge even if there was a plea of guilt to lesser offense because that plea of guilt to a lesser offense was not valid. Motions for reconsiderations or appeals There is a 2012 case that case of Ysidoro vs Leonardo-de Castro. This was a Justice Brion decision. Ysidoro was charged in SB for violation of RA 3019, Anti-graft and corrupt practices act. SB acquitted him for failure of the prosecution to __ (25:25) one element of the crime. The private offended party filed a petition for certiorari under Rule 65 questioning the acquittal by the SB. SC had the occasion to discuss the options in criminal case that would be taken if there is decision by the trial court and the court mentioned of three options: 1)

Ordinary appeal – normally involves factual and legal issues. The issue is on the propriety of the decision although the decision is considered intrinsically valid although there is an error in judgment.

When the judgment in a criminal case is one of acquittal, ordinary appeal and rule 45 are not available because it will violate the double jeopardy protection. What is available on the part of the private offended party or the prosecution is rule 65, question of jurisdiction, but only when (1) one, there is grave abuse of discretion because the court has no jurisdiction or (2) the prosecution is denied of due process. Absent any showing, even if there is error in judgment, it does not allow the court to reverse the ruling based on rule 65 petition. So, SC here said that the petitioner here could not seek a reversal of decision of acquittal based on rule 65 because there is no grave abuse of discretion. Dismissal with consent of the accused, There are two situations contemplated: 1)

When the accused invokes his right to speedy trial. Of course, the dismissal is with his consent because he was the one who moved to dismiss the criminal case on account of the violation of his right to speedy trial. If the court grants his motion to dismiss based on such violation, it is considered an acquittal. There can be no review of that unless it is under rule 65 otherwise it will violate double jeopardy protection.

2)

When the court grants the accused of demurrer to evidence. Under your rules of criminal procedure, within 5 days from the time the prosecution rests the defense can ask for leave or move for leave to allow him to file demurrer to evidence. Literally it means to take exception from the prosecution’s evidence arguing that even with the amount of evidence the prosecution has presented the prosecution has failed to prove his guilt by proof beyond reasonable doubt. Under your rules, within ten days from the grant of the leave, the accused may file his demurrer. So it is suggested in the rules that once you file your motion for leave you attach your demurrer already so the court will have opportunity to examine your arguments in your demurrer whether or not to grant the leave. If the court grants it, it is considered adjudication on the merits, it is an acquittal. There can be no reconsideration sought unless again it is based on jurisdictional error. It was without jurisdiction, the court which has granted demurrer to.

In those two occasions, the fact that the court dismissed the case with consent of the accused would still mean the first jeopardy had attached in those cases. Time Bar Rule What is the effect of the Time Bar Rule with respect to our protection against double jeopardy? In our rules now, we

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) follow the time bar rule when a criminal complaint is provisionally dismissed. When the penalty is 6 years or a fine, it shall be one year; if 6 years and one day or more, it shall be two years. Meaning, if the case is provisionally dismissed depending on one or two years, the question is can the prosecution revive or refile the case? In criminal procedure, there can be provisional dismissals. If the criminal complaint is provisionally dismissed depending on the penalty, the penalty is not more than 6 years or only a fine, within the 1 year period you can ask for revival of the criminal case. If the penalty is 6 years or more, within the 2 year period you can ask for revival of the case because it has been provisionally dismissed. Question, if the one or two year period, as the case may be, has already lapsed, does it mean that the case has already been dismissed and that you can no longer file the case? Invariably, there may have been discussion on the effect that, the time bear rule simply prohibits the revival of the case outside the one or two year periods. But on the question that can the prosecution refile the case, should the prosecution should be allowed to refile the case? Because the prescription of offenses in the RPC and other special laws, some are longer than one or two years. Let us go back to your rules on the prescription of offenses. In the Revised Penal Code, if the penalty is arresto mayor, what is the prescriptive period? Those prescriptive periods are substantive law. The time bar rule is only provided in the rules of court. We know that rules provided in rules of court cannot alter, modify or change substantive laws. So if the penalty is 10 years, one or two years in time bar rule should not affect the prescriptive period. When the crime is committed, when does the prescriptive period began to run? From the time the offense is committed. If you do not file it the prescriptive period will not stop to run. But once you file it, it stops to run. Will it run again? What the time bar rule simply provides is that the prosecution can ask for the revival of the case in one or two year periods depending on the penalty. If there is no revival within the 1 or 2 year periods, there is a disputable presumption that the prosecution or the state is no longer willing prosecute it further. It’s a disputable presumption. It is not that the case is totally barred because there is no revival of the case. If the information filed against the accused is sufficient in form and substance, the accused arraigned in the court with competent jurisdiction and the case is provisionally dismissed and the case is not revived within the one or two year periods, can the case be refiled later without violating the right of the accused against double jeopardy? That is the question. Remember, that when the case is provisionally dismissed the plea is normally withdrawn. It is as if there is no valid arraignment. Again it is different case if the plea is not withdrawn, because when that case is provisionally dismissed much more without the consent or acquiescence of the accused first jeopardy may attach. But if you take the plea back or the accused agrees to provisional dismissal the case can be refiled outside the one or two year periods provided it is within the prescriptive period within which to file the criminal complaint because the first jeopardy had not yet attached.

THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. We all know that writ of Habeas corpus as provided for in the constitution is a remedy available to look into any and all forms of involuntary restraint; it will inherently include also involuntary servitude. If there is no legal justification for detaining a person, it may not literally be detaining him by placing him in a detention facility, for so long as there is substantial defect on his freedom of mobility by __ imposed even if not actual incarceration it can be a proper subject of petition for writ of habeas corpus. FUNCTIONS OF THE WRIT The case of Villa Vicencio vs Lucban, the precursor of all these. They were not actually incarcerated; they were forced to be brought from Manila to Davao City. They were not even prevented from leaving Dvao City. They were just brought here. They were rounded in Metro Manila, loaded in a steamship and brought to Davao. When they arrived here, they were not prevented from going back to Manila or marrying the local inhabitants here. Still, the SC, there could be proper issuance of writ of habeas corpus because their freedom to move around was substantially curtailed. That was also the ruling in the case of Mongcopa vs Enrile. Mongcopa was released after incarceration during martial law but there were conditions set. If Mongcopa leaves Manila, he must get permission from military. If he would be going out of the country, he would be required to render report so that his whereabouts can be known to the military authorities. SC said there is substantial defect in his freedom of mobility or liberty wherein a petition for writ of habeas corpus is proper. SUSPENSION OF THE PRIVILEGE Art VII Section 18. The President shall be the Commander-inChief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) conviction? The court which rendered the judgment of conviction no longer has jurisdiction over the case. Once the service is commenced, the court loses jurisdiction, meaning the convicting court. so you have to file a petition for a writ of habeas corpus.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

2)

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus. The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. We also know that what is suspended when the president exercises one of his commander in chief powers is the privilege and not the writ itself. Meaning, a person may not be released within the periods provided under Art 125 of the revised penal code because when the privilege is suspended under art VII sec 18 the period is extended to 72 hours. The writ would still be issued if the petition filed is sufficient in form and substance, but the period of detention without charge is extended from 12, 18, 36 hours to 72 hours. The same constitutional provision still requires that those persons arrested and detained without charge must have to be charged within 72 hours otherwise they shall be released. So, it does not justify the arrest and detention. It simply allows the state to have more time to make a case against that person arrested and detained and eventually charge in court. Because if the three day period has lapsed without any of these charges filed, the state is mandated to release these persons. THE WRIT OF HABEAS CORPUS AS A POST CONVICTION REMEDY The writ of Habeas corpus has also been used as a post conviction remedy because either of these two circumstances occurred: 1)

There has been full service; there must be full service of imprisonment so there is no more justification in detaining him any longer. This should not include the service of sentence under the indeterminate sentence law. In indeterminate sentence law, there is minimum penalty and a maximum penalty. When the person has served the minimum penalty, he may be released for good behavior. That is not a matter of right but a matter of discretion. But if there is full service already, there is no more legal justification for continued detention. If the warden does not release him, a petition for writ of habeas corpus can be filed. Question, why should you file a petition when there was a court that has rendered the judgment of

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Or by reason of the judicial declaration or by a subsequent legislation, the penalty imposed before is no longer valid under that new judicial decree or by that congressional issuance. Meaning, there is a new law which is beneficial to the accused and we all know this should be applied retroactively. So as to remainder of the penalty, because of the new decision or the new law, there is no more legal justification, the accused can seek release by filing a petition of writ of habeas corpus.

Affirmative rights 1)

Free Access to the courts Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

2)

Protection and enforcement of constitutional rights

Art III Sec 12 (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. Art VIII Section 5. The Supreme Court shall have the following powers: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasijudicial bodies shall remain effective unless disapproved by the Supreme Court. Art XIII Section 18. The Commission on Human Rights shall have the following powers and functions: (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection; WRIT OF AMPARO A.M. No. 07-9-12-SC (25 September 2007) THE RULE ON THE WRIT OF AMPARO SECTION 1. Petition. – 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. The writ shall cover extralegal disappearances or threats thereof.

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killings

and

enforced

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) SEC. 2. Who May File. – The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: a. b.

c.

Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein.

SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 8. How the Writ is Served. – The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge. When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

SEC. 9. Return; Contents. – Within seventy-two (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 the following:

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred. SEC. 4. No Docket Fees. – The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately. SEC. 5. Contents of Petition. – The petition shall be signed and verified and shall allege the following:

The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

c.

d.

The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

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The relief prayed for.

The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance.

SEC. 3. Where to File. – The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

b.

f.

SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.

Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

The personal circumstances of the petitioner;

The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

The petition may include a general prayer for other just and equitable reliefs.

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; or

a.

e.

a.

The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;

b.

The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;

c.

All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

d.

If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken:

i.

to verify the identity of the aggrieved party;

ii.

to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;

iii.

to identify witnesses and obtain statements from them concerning the death or disappearance;

iv.

to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance;

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) v.

to identify and apprehend the person or persons involved in the death or disappearance; and

immediate family, in accordance with guidelines which it shall issue.

vi.

to bring the suspected offenders before a competent court.

The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed. SEC. 10. Defenses not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they shall be deemed waived. SEC. 11. Prohibited Pleadings and Motions. – The following pleadings and motions are prohibited: a.

Motion to dismiss;

b.

Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;

c.

Dilatory motion for postponement;

d.

Motion for a bill of particulars;

e.

Counterclaim or cross-claim;

f.

Third-party complaint;

g.

Reply;

h.

Motion to declare respondent in default;

i.

Intervention;

j.

Memorandum;

k.

Motion for reconsideration of interlocutory orders or interim relief orders; and

l.

Petition for certiorari, mandamus or prohibition against any interlocutory order.

SEC. 12. Effect of Failure to File Return. — In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte. SEC. 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus. SEC. 14. Interim Reliefs. — Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: (a) Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.

(b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. (c) Production Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (d) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981. The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

SEC. 23. Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

SEC. 16. Contempt. – The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.

SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establish their claims by substantial evidence.

SEC. 24. Substantive Rights. — This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution.

The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. SEC. 18. Judgment. — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) working days from the date of notice of the adverse judgment. The appeal shall be given the same priority as in habeas corpus cases. SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives. A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case. The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year. SEC. 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

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After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

SEC. 25. Suppletory Application of the Rules of Court. – The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. SEC. 27. Effectivity. – This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation. There are only a few cases that discuss this. The case that discussed this the most perhaps, not only the technical discussion of it but proprietary of it is the case of Sec of Defense vs Manalo. The SC upheld the petition and explained it. This is a new writ not by the constitution but by the rules of court based on the issuance of the SC to address the situations which would not have been addressed by the current rules. Specifically, this has something to do with the extralegal killings and forced disappearances. Writ of habeas Corpus normally ends when the respondent explains to the court that the person subject of the writ is not in my custody. It usually ends there because the court cannot inquire further. If the respondent came to the court under oath, makes a return and explains in the court that he is not under my custody, the court cannot do anything but dismiss the petition against the respondent. In order to compel respondents in a writ of Habeas Corpus to do further or more than that, then the Writ Of Amparo was promulgated to address the situation not covered by writ of habeas corpus. Because in the Writ Of Amparo, the respondents are required to make a return and explain to the court even if the person is not in their custody, what actions have they taken to ascertain the whereabouts of the person subject of the petition for Writ Of Amparo. So if there is violation of privacy, liberty or security of persons then that can be a proper subject of Writ Of Amparo. There are some cases in Writ Of Amparo which concerns property rights. There was one case which involves writ of demolition issued by the court by reason of a unlawful detainer case. Writ of execution and demolition has long been final and is about to be executed, they filed Writ Of Amparo seeking protection. SC said that Writ Of Amparo, what it is not is to protect a property right. so there is life, liberty, security. Life, there is nothing much to discuss there because if you are dead then all your rights can no longer be claimable. Liberty, your freedom to move, freedom to choose, freedom to whatever without fear of __. Security largely is encapsulated in the phrase to be freed from any fear for any violation to your right to life and or your right to liberty.These are in theory and are theoretical rights as to whether they can be claimed eventually. th

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) There are a lot of cases where the SC said that Writ Of Amparo is not applicable, but as to when it is applicable that Manalo ruling was the only one that it was. In that case of Fr. Reyes, the running priest, upon the request of DOJ, a hold departure order was issued. He filed a petition for Writ Of Amparo that an HDO is a violation to his right of liberty. SC said it is not a violation simply because it has nothing to do with the state-imposed sanction not imposed by the court. Meaning, if the violation perceived to your right to life, liberty or security is court sanctioned there is no such violation. It is again a limitation on the non judicial branches of government, specially the executive. It is not to state that there is state sanctioned activity by law enforcement agents on enforced disappearances or extralegal killings but it is somewhat anything of this which are court sanctioned are not proper to be subject for petition of Writ Of Amparo. But those which are not court sanctioned they can be proper for petition for Writ Of Amparo.

respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. The writ of habeas data shall be enforceable anywhere in the Philippines. Sec. 5. Docket Fees. - No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. SEC. 6. Petition. - A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent;

WRIT OF HABEAS DATA

(b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party;

A. M. No. 08-1-16-SC January 22, 2008 THE RULE ON THE WRIT OF HABEAS DATA

(c) The actions and recourses taken by the petitioner to secure the data or information;

SECTION 1. Habeas Data. - The writ of habeas data is 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 party.

(d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known;

SEC. 2. Who May File. - Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by:

In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

(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; or SEC. 3. Where to File. - The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. SEC. 4. Where Returnable; Enforceable. - When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge. When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or

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(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent.

(f) Such other relevant reliefs as are just and equitable. SEC. 7. Issuance of the Writ. - Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. SEC. 8. Penalty for Refusing to Issue or Serve the Writ. - A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. SEC. 9. How the Writ is Served. - The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply. SEC. 10. Return; Contents. - The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following:

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) (a) The lawful defenses such as national security, state secrets, privileged communications, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition; (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and, (iii) the currency and accuracy of the data or information held; and, (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. SEC. 11. Contempt. - The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resist a lawful process or order of the court. SEC. 12. When Defenses May be Heard in Chambers. - A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. Sec. 13. Prohibited Pleadings and Motions. - The following pleadings and motions are prohibited:

possibility of obtaining stipulations and admissions from the parties. SEC. 16. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days. SEC. 17. Return of Service. - The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. SEC. 18. Hearing on Officer’s Return. - The court shall set the return for hearing with due notice to the parties and act accordingly. SEC. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.

(a) Motion to dismiss;

The period of appeal shall be five (5) working days from the date of notice of the judgment or final order.

(b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;

The appeal shall be given the same priority as in habeas corpus and amparo cases.

(c) Dilatory motion for postponement;

SEC. 20. Institution of Separate Actions. - The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions.

(d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order. SEC. 14. Return; Filing. - In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. SEC. 15. Summary Hearing. - The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the

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SEC. 21. Consolidation. - When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. SEC. 22. Effect of Filing of a Criminal Action. - When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. SEC. 23. Substantive Rights. - This Rule shall not diminish, increase or modify substantive rights. SEC. 24. Suppletory Application of the Rules of Court. - The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. th

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CONSTITUTIONAL LAW 2 REVIEW From the Lectures of: Atty. Vincent Paul Montejo (S.y. 2013-2014) SEC. 25. Effectivity. - This Rule shall take effect on February 2, 2008, following its publication in three (3) newspapers of general circulation. It is a petition not primarily with respect to one’s right to privacy to life, liberty or security but rather on right to privacy of life, liberty and security. This has something to do with data that is gathered, recorded and kept whether by private or public persons or personnel. Writ of habeas data does not only seek to protect the privacy of persons whose data or information are gathered, recorded or kept but also to cause the correction of any false statement or information in these data gathered, recorded and kept. You can cause the correction of any information kept. Again, this is to protect your privacy over these so that your right to privacy over your life, liberty can be protected. Similarly, these persons must inform the court what actions they have taken and what action they intend to take with respect to these information gathered, recorded and kept. 3)

Compensation to, and rehabilitation of victims of tortures

Art III Sec 12 (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. - END -

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