Jan 31 Raw File (complete) .docx

Jan 31, 2019 lecture CONSTI2 Marcus: part 1 0:00-00:23 Section 3 is similar to section to on search and seizure. Because if you will notice from the language of uh the uh section it has something to do with search. This uh particular section should be understood to be affected by recent legislation on Cyber Crimes and Cyber uh specifically the Cyber Crime prevention act. (CCPA). The first paragraph contains the uh substance of the section and the 2 nd par has something to do with exclusion. Exclusionary rule in essence it is the rule that says all the illegally obtained evidence either under section 2 or sec 3 (1) must be excluded as evidence because it cannot be admissible. In par 1 the privacy in communication and correspondence shall be inviolable. Ity is not uh a uh uh absolute rule it admits of exceptions. So therefore the questions is uh True or False the the privacy in communication and correspondence is inviolable. Is it absolute? NO IT IS NOT. It admits exception and there are 2 exceptions under the provisions it self; 1. Upon lawful orders of the court 2. When Public safety or order requires otherwise as may be prescribed by law. -It means that there must be a law that governs it already the privacy of comm.. the edxception. There ofcourse the par 2 pertains to the inadmissibalty of any evidence in violation of sec 2 or sec 3. Going back to what we discussed last time insofar as the DIMAANO case, (ring ring ring … akin un) involves admissibility of evidence. Although the circumstances is different. Invasion of Com and Cor is one kind of search. Question what type of com and cor is covered by the provisions?

The provision covers letters and messages. It also covers wire taps and other methods of electronic eavesdropping. Then uh we come to RA 10175 the CCPA, what appears to be contentious appears to be at least when the ani-cyber crime prev act was being discussed in Congress, was sec 12, I don’t know if it became its sec 12 in its final form. Which provides that law enforcement authority shall be authorize to collect or record by tech or electronic means. Traffic data in real time, assic with specified communications transmitted by means of Computer systems even without court authority. So surely if this provision was not removed in its final form of the CCPA then it must be an exception to the provisions of sec 3. Question thus sec 3 allows the intrusion of privacy of com and cor? Yes. Under the exception. As a general rule intrusion to com and cor is not allowed. The Language even of the provision is inviolable. Then it only allowed 1. Upon lawful orders of the court 2. When Public safety or order requires under the particular law. Q: When intrusion is sought thru an order of the court upon what grounds may the court allow intrusion? The court may order intrusion based on the requirement of probable cause in sec 2 art III. So the requirements of uh an order for allowing intruision into privacy of Com and Cor is based on probable cause. It is when you apply, usually the law enforcement agency applying to the court to wiretap to intrude into private com or cor, it may be allowed upon reasonable ground. It may be allowed by the court. Nad the basic requirement for the court to allow it is by probable cause. So why we are in sec 3 why do we go back to sec 2? Why probable cause again? Because sec 3 is a form of a search as I mention awhile ago. Alright what is the menaing of the exclusionary rule

under that par 2 of sec 3. The exclusionary rule bar admission of illegally obtained evidence for any purpose an in any proceedings. Just remember the qualifications there it bars the admission of illegally obtained evidence for any purpose an in any proceedings. Ok. How may evidence inadmissible be dispensed with? So, it is now in court. You ask for exclusion of illegally obtained evidence. You ask the court for an order to exclude the evidence being presented by the prosecution. Now how may then the court will say, alright that is an illegally obtained evidence it must not be admitted against the accused. If it’s not allowed so where will it go? In the Dimaano case, the court orderd the return of the money, the titles, but it did not order the return of the firearms that were found in the house of DIMAANO. So what are we saying here? If the evidence that was excluded is a contra band then it must be kept by the court. It must not be returned to the owner. If the evidence is not, or as long not illegal then it must be returned to the owner. Q: May evidence unlawfully obtained by private individuals come under the exclusionary rule. The answer is NO. To come under the exclusionary rule, the evidence must be obtained by government agents and not by private individuals acting on their own. Sec 4. No law shall be passed abridging the freedom of speech, expression or of the press. Or the right of the people to peaceably assemble and petition govt for redress of grievances. Sec4 has two mandates, 1. It says that No law shall be passed abridging the freedom of speech, expression or of the press 2. the right of the people to peaceably assemble and petition govt for redress of grievances. Q: What does speech expression or press include? -It includes every form of expression whether oral, written, tape or disc recorded. It also

includes movies as well as what is referred to as symbolic speech such as wearing of armband as a symbol of protest. Peaceful _________ has also been included within the meaning of speech. Q: what are the 2 prohibitions on the abridgement of the freedom of speech of expression or of the pres. Abridgment means curtailment, so what are the 2 prohibitions under sec 4 under abridgement or curtailment of freedom of expression. 1. Prohibition of prior restraint and 2. Prohibition of subsequent punishment. Q: What is prohibition of prior restraint meant? It means official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. Prior, you take the cue in the word itself PRIOR. Advance of publication, hindi pa ngyayare inistop na. ok? In the same manner what is subsequent prohibition means? After the publication is subsequent punishment. The most blatant form of prior restraint is a system of licensing, administered by an executive officer, movie censorship although not place in the same level of press censorship also belongs to this type of prior restraint. Yung set board of censors if they censor of a movie, the act of censoring a movie is an act of prior restraint. Prohibition of prior restraint because it is done prior it is shown. So also is judicial prior restraint which takes in the form of injunction against publication. TRUE OR FALSE: Warning on media against airing of the wiretap communication between the president and other personalities constitute prior restraint. T or F. Yes it constitutes constitutional prior restraint. This was the hello garci tape where pandak was caught talking to a COMELEC official and there was advised from Malacañang to the press not to air or published this particular tape of pandak. This case reached the court in CHAVEZ vs. Gonzales. Feb 15 2008. What is subsequent punishment as an abridgement of freedom of speech? Subsequent

punishment, the mere prohibition of govt, interference before words are spoken or publish would be inadequate protection of the freedom of expression. If the govt could punish without restrain after publication so the rule on prior restrain would be useless. It is only half effective if govt cannot punish after publication so there must be a prohibition of subsequent publication. Q: When the right to free speech and of the press collides with right of the accused to a fair trial how may the court dispose of the conflict? It may be that, in these 3 cases that we are going to discuss it may be that rights even guaranteed under the BoR can clash against each other. So you would say if its part of the BoR, if it is a right guaranteed by the BoR then why why there is no question that it should be allowed. Butn we are not talking here o the right alone. We are talking here of 2 rights guaranteed by the BoR clashing against each other so which one will prevail? Ok. 1st is the administrative matter decided by the SC June 29, 2001 Sec of Justice Vs. Sandiganbayan. The case involved the petition to allow live TV coverage of the trial of the former president ESTRADA. It is the weighing out of the constitutional guarantees of freedom of the press in the right of people to public information on the one hand. Which rights are guaranteed by the BoR? And the fundamental rights of the accused also guaranteed by the BoR. On the other hand when these rights raised against one another, jurisprudence tell us that the right of the accused must be preferred to win. In line with the petition, the court said that TV coverage of judicial proceedings involves an inherent denial of due process rights of a criminal defendant. So which rights clashed in this instance? It is the guarantee of the freedom of the press to air the TV coverage of proceedings; it is the right of the people to public information also guaranteed by the constitution as against the right of the accused to due process and the decision is very clear, the SC said the right of the accused must prevail. Another one came the petition for radio and Tv

coverage of the Maguindanao massacre. At first clash again again this is a clash the same it is a clash between the right of the people to be informed and the right of freedom of the press and the rights of the accused to fair trial. At first the SC said it is allowed. The live Coverage is allowed. Why? It is different from the Estrada CASE because there are too many accuse and too many witnesses eh sa dami na ng accused mapupuno na yung husgado. There are 58 victims. So kung di mo I allow e papano magiging public trial? That was the first decision of the court. That is the reason why they allow it. But on reconsideration, (silence) the SC did not allow live coverage. While the court recognizes the freedom of the press and the right of the people to public information which are rights belonging to non direct parties to the case, the right of the direct parties to the case who are the accused themselves, they are the direct parties, should not be forgotten in a clash among these competing interest. Jurisprudence would say that the balance should weigh in favour of the accused. The SC on reconsideration approached the case in tact in another site. It differentiated the right of the non-direct parties (tayo) we are not involve directly in the case, we are the public, but we have the right to know. The freedom of the press, the TV station, the Newspaperman the reporters they have a right to know. But they are non direct parties. You compare the right s of the non-direct parties to the rights of the direct parties. Who are the accused sino ang mas lamang? The rights of the accused so that was how the Maguindanao coverage. 23:02 END MARCUS EHM

Kate: part 2: 00:23-00:46 The third one involves my very good friend. Ayer productions vs Capulong. The involved the production of a movie account in a bloodless coup where Enrile was a principal figure. Enrile sought to enjoy day...claiming his rights to privacy. Petioner ascertained the right to

expression. Petitioner here is the Ayer Productions who wanted to do the movie. The ascertained right to expression. The court said if the freedom to expression must be balanced to the right to privacy which is recognized by law as the right to be left alone. Again, clashing of rights, which are protected, guaranteed by the bill of rights. A limited intrusion to a person's privacy has long been regarded as permissible where that person is a public figure. And in the information to be illicited from him or to be published about him contains matters of public character. Enrile was a public figure. He had no right to prevent publication of the story of his participation in the event. Dapat pinublish nila yon e. It should have been allowed. Para naexpose kasi Enrile was hiding. He was not a hero of the Edsa Revolution. He was very much afraid for his life. He was hiding in Fort Aguinaldo. It was only when the coast was clear, tanks was there, the AFP sided already with tita Cory and everything that Enrile came out, claiming to be a hero. They should have allowed the publication the participation of Enrile.

True or False, the freedom of speech is absolute? The freedom of speech do lawfully infringe or meaning restrain. What is the requirement of the lawful restrain of the freedom of speech? Freedom of speech is not absolute. There must be however be standards for the restrain. So pinapayagan. Dapat narerestrain. Freedom of the pres, freedom of expression can be restrain. How? There must be a standard set for its restrain. Para bagang due process. The standard for police power is due process of law and the equal protection of laws. Then in search and seizure standard so that you can have search lawfully is that there must be satisfaction of the requirement of probable cause. Then again, intrusion to the privacy of correspondence,

probable cause. Same here with the freedom of expression. Is it absolute? No. Can it be restrained then of it's not absolute? Yes. How? There must be a standard. And the standard for the restrain...the acceptable standards for the restrain of the freedom of speech: one, the dangerous tendency rule, two the clear and present danger rule and third the balancing of interest rule are tests to determine validity of the curtailment of freedom of speech. Alam mo kung bakit diko makalimutan si Johnny? In 1992 when I was first running for congress, I had a fraternity brad, General Vallejo, who was working at the DND in 1992. Enrile and General Vallejo met, casually. E siyempre pinagmalaki naman ako ng aking brad. Meron akong brad from Cagayan sir, sabi niya who is running for the house of representatives. Who? Si Edgar Lara. Sabi niya, oh you tell that boy to keep the little money that he has saved because he cannot win over our candidate. Paano ko makakalimutan ang taong ganon?

What is dangerous tendency rule? The dangerous tendency rule of speech can be curtailed or punished when it creates a dangerous tendency to bring about the evil sought to be prevented by the state. The cue here is there is a tendency to bring about the evil that the state seeks to prevent. Dangerous tendency. Tendency pa lang, danger pa lang, tendency pa lang kina-curtail na yong freedom of speech because it has the tendency to bring about the evil sought to be prevented.

What is the clear and present danger rule naman? The clear and present danger rule, it is founded on whether the words used are used in such circumstances or of such nature as to create a clear and present danger that they will bring about the evils that congress has a right to prevent. Nandiyan na. Clear and present danger na. Malapit ng mangyari, doon mo palang ika-

curtail yong freedom of speech. That is the clear and present danger test. What will the court use? Which test must the court use? There are cases that use the dangerous tendency rule and there are cases that use the clear and present danger rule. Basta ang cue dito is dangerous tendency, tendency pa lang mangyayari yoong sinasabi ng expression, pinuputol na yong freedom. Yong clear and present danger, hinihintay munang malapit ng mangyari na clear at present danger. Malapit na, doon palang kacurtail-in yong freedom of speech.

The third one, the balancing of interests test seems to be a newfound test by our SC. It gives them the power to balance interests coming from all sides. Ano yong interest nito? Ang interest nito is to prevent the evil. Ang interest naman nito is to exercise the freedom of expression. The court will receive evidence and balance the two. Whichever will come out to be more advantageous to the welfare of the people then that will be what will be followed by the courts. I want you to read the Diocese of Bacolod vs. COMELEC. This is not yet discussed by Bernas in his book. GR No 205728, January 21, 2015. Yong Diocese of Bacolod, naglagay ng tarpaulin na Team Patay, Team Buhay. You remember? That has been plastered all over the newspaper during that time. Yong Team Patay, those who supported the RH Law. You know where the Catholic Church sides. It is against the RH Law. Kaya naglagay sila ng mga candidates, Team Patay ito. Ito yong mga bumuto in favor of the RH Law. Ito yong mga bumuto against the RH Law, ito yong Team Buhay. And they put it within the premises of the Archdiocese of Bacolod. Ito yong background ng case na ito, a very interesting case that for one thing it was decided by Leonen and whenever Leonen comes up with a decision, I like it very much because there are new things that he brings out. Mga bago. Well sometimes, kung minsan, you may say it is out of this world

but try to analyze it and medyo magaganda yong mga nilalalabas niya.

One question, how did the court rule of the issue of whether the COMELEC has the competence to limit expressions made by citizens who are not candidates during elections? The answer in that case is regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political party which are taken as a whole principally advocacies of social issue that the public must consider during election is unconstitutional. So you regulate that, they are not candidates, they don't belong to a political party, and at most it is only a manifestation of an advocacy like the RH Law, you curtail that, sabi ng SC sa COMELEC, that is unconstitutional.

The second question regarding that is why? Because such regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can catalyze candid and robust debate in the criteria for the choice of a candidate. That is the answer of the why. Then the case continued with several questions more.

May there be a specie of speech by a private citizen which will not amount to an election paraphernalia so that it may be validly regulated by law? Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as members of political party if they are not candidates. Only of what is regulated repeat, only if what is regulated is declarative speech that taken as a whole has its or principal object the endorsement of a candidate only. Only if what is regulated is

declarative speech, one that declares a candidate.

person, the only regulated is a declarative speech.

We were discussing the Civil Service Commission last semester. We were discussing the issue of the prohibition of a government employee from engaging in politics. I said then, for as long as the government employee will not say, will not make a declarative speech, will not say vote for Juan Ponce Enrile, or don't vote for Juan Ponce Enrile, that is not prohibited and the government employee is not engaged in politics. I am still saying that inspite of, there was a radio program where the guests are coming from the CSC. And somebody was explaining exactly what I explained. But he does not believe of what I said. To him it's more loose. There was a case daw of a driver, a government employee who drove for a candidate. And he said, the driver was removed from the service. Well, if the facts of the case is as simple as that, I would say, he must not be removed. There must have been other facts attendant to that case that the radio guest did not say. Because if it's only driving, drinive mo lang e, wala ka namang declarative speech. Pinagdrive mo lang. He was removed. I was looking for the telephone doon sa radio station to participate in the discussion because I felt that it was misleading on the part of the CSC to have said that. Medyo loose e. Basta I stand by what I told you on my lecture for as long as the government employee will not make a declaration, he is not engaged in politics. Yon nga extreme na nga yong sinabi natin. A teacher, nag-MC, is that already electioneering? Strictly speaking to me, no. For as long as in the process of being an MC, he will not say vote for ano, vote for that, don't vote for him. But if it's only to call their name, let us sing the National Anthem, let us recite the Panunumpa sa Watawat, something like that, I don't think he is engaged in politics. Yon ang sinasabi dito. For as long as the person does not make a declarative speech. The only prohibition is when that

What are the requisites of a valid regulation? 1. Should be provided by law 2. Must be reasonable 3. Narrowly tailored to make the objective of enhancing the opportunity of all candidates to be heard and considering the privacy of the guarantee of expression and demonstrably the least restrictive means to achieve that objective.

Another question answered in that case is may the COMELEC order petitioners who are private citizens to remove the tarpaulin from their own property? The absurdity of the situation, said the SC, is itself is the indication of the unconstitutionality of COMELEC's interpretation of its powers. So ibig sabihin niyan, hindi pwede. They cannot order the petitioners who are private persons to remove the tarpaulins. There may be no expressions when there is no place an expression to be made.

An interesting question, does the message in the tarpaulin constitute religious speech for the prohibition of which is a violation of religious freedom? Ang nakalagay lang naman don, TEAM PATAY, TEAM BUHAY. E sabi ng petitioners, the Archdiocese of Bacolod, if you prohibit that, you are infringing on the freedom of speech. Religious speech, it is not only a violation of our freedom of speech, but also of our religious freedom. Sabi ng SC that the position of the Catholic Church appears to concide with the message of the tarpaulin regarding our...does not by itself bring the expression...of religious speech. On the contrary, the tarpaulin clearly refers to candicates classifying them under the

Team Patay of Team Buhay, according to the respective votes in the RH Law. Are the expression in the tarpaulin ecclesiastical matter?

Jof Part 3: 00:46-01:09 …..basahin niyo nalang medyo ininsulto ng SC ang church ditto.

Unprotected speech, there may be speech that are not protected, freedom of expression was never been considered as an absolute right. Some forms of speech are not protected by the constitution. What are these? Two types of unprotedted speech, LIBEL and OBSCENITY.

What is a LIBEL? A libel is a public and malicious imputation of a crime, or of a vice, or a defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of the natural juridical person or to blacken the memory of one who is dead. The two elements of libel would be: the allegation of discreditable act, obligation of the church, identity of the person defame, and existence of malice.

When is speech LIBELOUS? The speech is libelous when the imputation is public and malicious.

When is the imputation is considered public? When the defamatory statement is made known to someone who _____________

is driven. If I write you a letter, and dami kung sinabing putang ina mo, kung hindi ko ipinakita sa iba, there is no libel, kasi dadalawa lang naman tayo. Because it is not published. A libelous remark or writing will be libelous only, will be crime only if it is published. Kung dadalawa lang naman tayo eh private naman. Kung ikaw ang naglabas nun eh problema mon a iyon. Hindi ko problema iyon, okay?

When is it MALICIOUS? When the author is prompted by ill will.

The rule of PRIVILEGED COMMUNICATION The rule of privilege communication is that a communication made in good faith on any subject matter in which to communicate ___________ interest or concerning in which he has a duty is privilege if made to a person who having a corresponding interest although it contains incriminatory matter without privilege would be libelous and actionable. That is the case of ALONZO VS. CA, cited in Bernas, you read that and understand what he is talking about.

Are pleadings privileged? Under what condition may it be privilege? The prevailing rule is that parties, counsels, and witnesses are exempted from liability in libel or slander, for words otherwise defamatory published in the course of judicial proceedings provided the statements are relevant to the case. It is the case of ARMOVIT VS. JUDGE PURISIMA, cited by Bernas in his book. This Armovit here is a practicing lawyer. Reymundo Armovit. He was the examiner for Commercial Law during our time in 1974, BAR 74. Ang daming umiyak dian, daming bumagsak. He was the lawyer of my employer,

and one time, emmediately, a few weeks after the BAR, after the result came out we saw each other at the elevator.

Short story (Oh sabi niya, “I heard that you just passed the BAR”, yes sir kako naman. “What did you get in commercial law?”, I got 85, tumingin sa akin ng ganun, “hindi ka mayabang ano” sabi sa akin. Hindi na ako umimik. Bakit ko din ba sinabing 85. Noong tinignan ko iyong aking grade 78, nakakahiya naman, wala pala siyang binigyan ng grade na 85. Ang pinakamataas pala mga 80. Buti nalang pumasa ako. You know my favorite subject in the college of law was Civil Law. When we took the BAR exam in Civil Law, I was one of the firsts who pass the test paper, siguro pangatlo ako o pangalawa, yabang ko no? After the BAR exam noong lumabas ba iyong results, eh di punta ka sa supreme court para kunin iyong rating, Civil Law, 60. I almost got disqualified. You know if I had gotten 70 man lang o 75, I could had made it to top 10, our number 10 was 80.15 my average was 79.85. Ayaw ng diyos na maging top 10 ako. But, you know on second thought, I’m not complaining anymore. Baka nag-iba rin kasi siguro iyong landas ng buhay ko, had I made it to the top 10. Because you know yung mga top 10, hinahabol yan ng mga law offices, kinukuha yang mga yan pero iyong buhay nila duon, muchacho. Taga gaw ng pleadings, etc. for a number of years until you show your metal, until you show how good you are. If you are exceptional, you will slowly rise up the ladde, but if not, you will find your way going out. I wonder, baka hindi ako nagging congressman, immediately after my graduation in UP, 1970, I went to Fort Magsaysay to train because I want to be a professional soldier, kasi advance course graduate ako, UP pa. Yabang. So nagtrain ako dun, in the course of the

training I almost killed a regular officer. Muntik kong binarily, actually binarily ko hindi ko lang tinamaan. You know ang mga taga PMA mayayabang iyang mga yan. Kaming mga ROTC, down naman, eh meron kaming mga ranggo. Iyong ranggo na kinecarry naming sa training, ranggo rin nila, pareho lang kami, eh nagagalit sila. Eh bakit raw kami may ______{bikskyum} B kasi yan eh, segunda kamote, second luitenant, dapat dae tanggalin namin. Marunong pa kayo. One time we are in the mess hall, they call Bachelor’s Officers Quadrants. We were eating lunch, malayo naman eh, kung eto iyong lamesa mas mahaba pa hanggang dun. Nandoon kami sa Dulo, nandito siya. Sumigaw, sabi niya “you get out from my table”. Eh iyong dalawa kung kasama bitbit iyong meskit, lumipat, eh ako tinapos ko iyong aking pagkain. Pagkatapos kung kumain, binitbit ko tapos dinala ko sa kusina. Tapos pumunta na ako doon sa mga barracks ng mga trainee. Kasi we were there to train, mga 18 years old. Abay sumunod, andoon na ako sa second floor, nakita ko siya, abay mabilis ang lakad. Papunta doon mismo sa ano. Eh Nakita ko may naglilinis ng baril, iyong mga sarhento, armory kasi duon eh, naglilinis ng baril, kinuha ko nilagyan ko ng bala kinasa ko, pag ganun ko eh hindi ko pa naituro sa kanya pumutok. Tinamaan iyong ceiling. Pero alam mo iyong segund kamote na iyon na taga PMA ang takbo nia pabalik sa BOQ, hindi mo maituro iyong pwet. Maya lang konti eto na iyong MP, sabi ng sarhento, “miss fire, naglilinis kami kanina na miss fire” sabi niya. Eh d pagkatapos nun wala na, kamalas malasan nmn ng tinyenteng iyon nagging Heneral. Naging chief of staff pa ng AFP. When he was a ______{Bligate} commander, _____{obligeder} General, I was already a member of congress. Nagkita kami duon sa Pamplona, meeting peace something, meeting. Sabi ko General, we’ve already met before. Sabi niya “yes sir”. Patay ka ngayon sabi kung ganun congressman ako uy. Anayway. Hindi ako nagsundalo, kasi because of that incident, I lost interest. Hindi nga ako nagfile ng

ranggo eh, because after the traing you are suppose to file to become a regular officer of the arm forces, so hindi ako nag file, I went back to law school. I went back to school, ay hindi pa pala ako graduate sa UP noon, I finished my last two subjects in UP summer and then enrolled in the college of law. Again bakit ako hindi nagging sundalo, kasi kung nagging sundalo ako siguro, its either I would be general now or 6 ft under the ground. Because that was 1970, 1972 was martial law, and all the new Segundo kamote were all sent to Mindanao, most of them came home in crates, died there in Mindanao. Sabi ko anyway how life)

Armovit, pleadings are privilege but to be so, they must be relevant to the matter under investigation.

When may criticism of a public figure constitutionally protected or when not protected? When the object of criticism is his strictly private life, defamatory imputation are not constitutionally protected. When however his public acts are the object of criticism, constitutional immunity applies. True criticism of a person’s fitness for office is always fairing therefore privilege. False criticism is not privilege if malicious, that is when use as a ____________(cloke?) for assaults on person’s private life. In 2004, I was elected the second time as a governor, that was the time that Mamba lambas me over the radio. For 3 succesive year, almusal ni mamba iyong murahin ako sa station sa radio. Hindi ako sumasagot, kasi iyong kanyang mga sinasa, ewan ko kung ano iyong mga sinasabi niya. Anyway he is criticizing the way I mange the…if you would test what he was saying to what we are saying here it would seem that he was hitting me under my public

administration. I don’t remember him talking about my private life, wala naman. But for 3 consecutive years, until 2007. That is why in the election of 2007 nagsama na lahat sila, everybody, all the politician of Cagayan against Lara in 2007. Iyong sinasabi niya na iyon, wala na siyang ibang sinabi P***** I** Enrile iyan, have you heard Mamba speak? Basta pag nagsalita iyan p****** i** mga Enrile iyan. Iyan ang lagi niyang sinasabi, bakit kaya lagi niyang minumura ang mga Enrile then it dawn on me because he has nothing to say puro mura lang, anyway that’s what he did. So the gang up on me in 2007. And they are saying Jack Enrile at one time, said “oh pinulot ko lang si Antonio” from somewhere and he won over Lara as Governor. I was within hearing distance, excuse me sabi ko I did not lose, you did not win over me, you cheated me in Tuao in 2007, that is the only reason why Antonio sat Governor because I was cheated. Anyway back to Mamba, hindi ako sumasagot, alam mo at one time, ang init init ng ulo nia P*I* yan sabi niya bakit ayaw niyang sumagot. “Sir bakit daw di ka sumasagot” sabi ng mga radio commentator mga otro naman mga ito, pupunta sa akin “sir sabi ni Mamba ganito ganyan ganyan,” ineexpect na magsasalita rin ako sabi ko bayan mon a iyon sabi kong ganyan eh kaligayahan niya iyan. “eh bakit kasi ayaw mong sumagot sir sabi niya minumura ka ayaw mong sumagot” sabi ko padre kung sasagot ako eh di siya ang nagging sikat, ngayon hayaan mo siyang magsalita tungkol sa akin, ako iyong nagiging sikat. Eh kako kung ganya, hindi siya sikat eh kung sasagot pa ako, sasabihin ko si Mamba ganito malalaman pa ng tao na there is such person as Mamba, iyong tao hindi niya alam iyan. Oh hindi ako sumagot kaya galit nag galit.

That is the case of Fermin Vs. People, GR No. 157643 March 28, 2008 just in case hindi pa nalalagay ni Bernas sa kanyang Libro.

Then we go to the second part of Article 4, may the right to assembly and petition writ impaired.

What are the allowable standards for its impairment? Right to assembly and petition for redress of grievances is equally fundamental as freedom of expression. Then the standard for allowable impairment of speech and press are also for those assembly and petition so pareho lang iyon. Pareho lang. Clear and present danger test at saka iyong dalawa pa, parehong standards for allowable impairment. Iyong mga cases na cited by Bernas in his book. Maybe 19 kopong kopong, 1907, US vs Aporado mga tipong ganyan, panahon pa ng Amerikano……

Xtian : part 4 01:09:00 – 01:32:00 Americano ito. But read them anyway because it demonstrates the standards to be used by the courts in the impairment of the right to freedom of assembly and petition. Evangelista vs. Elcio. The same - Dangerous tendency rule Primicias vs. Progoso. 1948. Which rule between dangerous tendency and clear and present danger test is more in keeping with the spirit of constitutional guarantee of free expression of peaceful assembly and petition? It is the clear and present danger. Why? Because if dangerous tendency, kawawa naman yung right to free expression or right to petition. Tendency palang inistop mo na yung freedom of expression and freedom of assembly.

Pero kung clear and present danger. Hayaan mo munang gamitin yung assembly and petition until it is almost dangerous. When it is clear and present danger. When the evil sought to be avoided is clear and present. Nandyan na. That’s the only time that you infringe the right of expression. It is more liberal for the right of expression. The right of the people to peacefully assemble and petition must be discussed in relation to: A. Section 18 of art 2 B. Sec 8 art 3 - refers to labor to peaceful concerted activities including the right to strike in accordance with the law C. Section 3 of art 13 D. Section 2,5b article 9 Section 5 No law shall be made respecting the establishment of religion or prohibiting the exercise thereof. The free exercise and enjoyment of religion and worship without discrimination or preference shall forever be allowed. No religious test shall be required for the exercise of civil or political right. 2 clauses that are apparent in section 5 1. Non establishment clause – which prohibits a law to respect the establishment of religion or to establish a religion itself 2. Free exercise clause Under the Spanish constitution of 1876, Catholicism was the state religion. One of the immediate effects of the American constitutional in the Philippines is the denial of the catholic church of the privileged position it held under the Spanish sovereign. Corollary to this is the equal position of the other religion. The Americans prohibited Catholicism to be the state religion. But it did not impose a state religion. It allowed other religion to flourish in the Philippines aside from Catholicism.

The free exercise of religion was first guaranteed in the 1935 constitution. How did

this guarantee of religious freedom found its way into the constitution? The free exercise of religion was guaranteed under sec 10 of the treaty of paris. This guaranteed that the territories seeded to the US will be secured in the free exercise of religion. Another effect of the new system is the elimination of any institution that favors the union of the church and state. The text of this section-section 5- is the same in the 1935, 73, and 87 constitutions. The non establishment and free exercise clauses express an underlying relational concept of separation between the religion and secular government. It is related to sec 6 article 2 - separation between the church and state shall be inviolable The constitutional provision is a mandate against state intervention in religious activities. The theology of liberation initiated by the CBCP in July 1973 qualifies the change understanding of the church of her role to the world today. It expresses the church’s concern for society and for the poor. No longer mainly in terms of personal alms giving or working in charitable institutions but especially in terms of its duty to participate in the building of a social world. According to Bernas in his book, it enunciates the expanded mission of the church because of the expanded provision of the 1973 constitution. The martial law left the church as the only forum where a position of criticism can still be openly voiced. What is the free exercise clause? What is it based? The basis of the free exercise clause is the respect of the inviolability of the human conscience. That is why the free exercise clause which is a freedom under the constitution cannot be regulated by law. You cannot regulate conscience. That is the underlying basis of the freedom of exercise of religion. Cited by bernas. Reynolds vs US. Adopted the rule that the free exercise clause completely

insulated the world of belief from state action relieving however religious motivated action including expression subject to police power. For as long as what is exercised is a religious belief, the state will not intervene. But if these beliefs are already expressed into action, then it is something else. As long as it is in the conscience of a person it is alright. But if that conscience finds itself in action, then the state may regulate. The judicial task in exercise cases is one of balancing the interest of the state with the interest of religion. Look for a citation made by bernas. Cantuel vs Connectica. The constitutional inhibition on legislation on the subject of religion has a double effect. On one hand it forestalls compulsion by law of the acceptance of any creed. Freedom of conscience or freedom of adherence to such religious organization or any form of worship as the individual may choose cannot be restricted by law. On the other hand it safeguards the free criticize of the chosen form of religion.

Read: People vs. Familiar. An old case. Demonstrates freedom religion. It concerns sec 34 of old marriage law. Cited by bernas.

Read: American bible society vs city of manila. Centena vs. Villalor. The court ruled that solicitation of contribution in general which may include contributions for religious purposes may be regulated by general law for the protection of the public

Question: May the state impose civic obligations that may conflict the person of religious belief? Arona vs. Secretary of Education, and Embraminac vs. Division Superintendent of schools Cebu. It pertains to the Jehova’s witnesses challenging the order of the DepEd

requiring the children to attend compulsory flag ceremonies. The court said that if the exercise of religious beliefs clashes with the established institutions of society and with the law then religious beliefs must yield to the latter. The government will step in. Arona case was reversed by the Embraminac case. The court held that the freedom of religion requires protesting members be exempt from the operation of the law. What is the non establishment clause? Non establishment clause simply means that the state may not establish or sponsor an official religion. This prohibits the state from passing laws which aid one religion, aid one religion, or prefer one religion over the other. Aglipay vs. Ruiz, and Autria vs. NNRC. What is the non discriminatory cessation of taxes on property used for religious purposes? This pertains to Section 5 Article 3 in relation to paragraph 3 section 28 Article 6. Charitable institutions, churches and parsonages and convents, mosques, nonprofit cemetery, buildings improvements and lands actually and directly used for charitable or education purposes shall be exempt form taxation. What is exempted? The exemption created by the constitutional provision is only for taxes assessed as property taxes – realty taxes. The properties exempted are lands, buildings, and improvements directly and actually and exclusively used for religious charitable or educational purpose. What is the purpose of the provision prohibiting religious test? To render the government powerless to restore the policy of probing religious beliefs by test offs or limiting public offices to person who have or professed their beliefs to some particular kind of religious belief. This is very old provision. To allow religious tests would have the effect formal or practical establishment of a particular

religious faith with subsequent burden imposed on the free exercise of the faith on non favorability.

Question: Can the state compel a person to bear arms in defense of the country even when bearing arms is contrary to person’s belief? If you answer yes, then when the state exempts a person from military service on religious grounds, is the state not in effect giving preferential treatment to that religion? The constitution prohibits the state from favoring a religion. If you answered yes they should be exempt, then you are already favoring that religion. Isn’t that a violation of the constitution? May the state support social action centers? While activities of basic Christian communities and church’s social action centers may not materially differ from barangay action groups or of government welfare agencies in motivation and initial inspiration at least. Church related activities are arguably religious and therefore should be zealously protected by the 3 exercise clause. And since the same activities are arguably non religious but social and humanitarian they can be the subject of state support without violating the non establishment clause. Therefore there should be conditions or requirements for government aid to religious social action centers. May there be government aid to religious social action centers? Yes. And it does not violate the non establishment clause provided you comply with the following requirements 1. Government aid must have a secular legislative purpose, not entirely religious 2. Must have primary effect that neither advances nor inhibits religion, purely for welfare 3. Must not require excessive entanglement with recipient institution

When I was still in the Capitol the San jose multipurpose cooperative, while it is true that it was organized by priest long long ago it is a nonprofit cooperative. One time they came to capitol to ask for financial aid. My accountant disapproved when it went to her even though I approved it already. So I ask her why. She said “san jose” – it is religious. That is prohibited in the constitution. I told her that that is only a name. It is not religious. So I asked her assistant to sign. Pangalan lang naman yun eh.

Then the second shall be, neither the right to travel be impaired except in the interest of national security, public safety or public health as may be provided for by law. So there must be a law that provides for it. Okay, in order that the freedom to travel may be impaired, there must be a law. Freedom of movement involves two rights, the movement of abode and the liberty to travel.

Carisma Part 5: 1:32 – 1:55 and Jubi part 6: 1:55- 2:18

Liberty of abode includes the freedom to choose and change ones place of abode within the limits prescribed by law. It may be impaired upon lawful order of the court. A great example of the allowable order of the court would be a condition imposed in collection with a grant of bale. Its in the case of Yap vs. CA cited by Bernas I believe.

Then you have the Soledad Escobar case. Ah… A court interpreter Soledad was found to be living in without benefit of marriage. May ka live in sya without benefit of marriage. Then that is against civil service rules and regulations and a complaint was filed against her and a case was filed for dismissal.

Liberty of travel includes the freedom to travel within the country and outside. It may be impaired even without a court order. But the appropriate executive officer is not armed with arbitrary discretion to impose intake. He can impose limits only on the basis of national security, public safety or public health as may be provided by law.

This case went through several stages until finally, in the final final motion for reconsideration, the Supreme Court said its her religious belief so let it be. Kasi noon, sabi nila, it cannot be. They will be removed from the CSC. I think a second motion for reconsideration was filed and finally the Supreme Court was albeit and said it is her privilege, it is her belief. It is her religious belief. So she must be allowed. So pwede pala kayong maglive in basta papayagan kayo ng religion. Then, alright… Sec 6. (Sec 6) The liberty of abode and of changing the same.. ang nagpasikat sa Section 6 na ito is the Marcos vs Manglapus case. If liberty of abode and of changing the same, liberty, anywhere, and the freedom to change where you are to live, shall not be impaired except upon lawful order of the court. So again, it is not absolute. It can be impaired by lawful order of the court.

Then we come to the case of Marcos vs Manglapus. I think we discuss this already. You know the background, you know already how the SC justified the ban by Tita Cory for the travel of Marcos. The right to travel was also one of the reasons why the SC lifted the ban by De Lima of the travel of Pandak. The right to life and its posing rights including the right to travel and remove the temporary restraining order enjoining de Lima from imposing the OJ Department Order No. 41. Sec 7 Sec 7 we said at the onset of the start that it is only the section that affects only Filipino citizen. It cannot protect foreigners, only the Filipino Citizen. The right of every people in information in any matter with public concern shall be recognized. Access to official records, pertinent documents or decsisions etc. shall be accorded to

citizens subject to certain limitations as may be provided by law. I think it will be almost 3 years already since the congress works on a law for the public information dissemination. It is still pending in the HOR and Senate and I think the form of contention are the exception. To what documents are exempted in the provision. We must realize that it cannot be also, that all gov’t information within the reach of all citizens. There may be info, data, proceedings that is best to be kept within the walls of a particular office. For security purposes. I wish that Congress can resolve the exceptions on the right of information, soon. Although the executive came up with its version but it pertains only to the executive. It does not pertain to the documents of others outside the executive. And even as far as the executive is concern, there are still rumblings that the exception, that there are too many exceptions also made by the President in its executive order. The right to access to public documents and records itself executor constitutional rights. It does not need a law to implement it. The provision itself is already prevailing as a protection of us, a weapon used by the citizen to obtain information.

National security, trade secrets, banking transactions, criminal matters, classified law, enforcement matters, diplomatic correspondence laws, cabinet meetings, executive sessions of either HOR or senate, internal deliberations of the SC. Sec 8 The right of the people including those employed in public and private sectors to form unions, associations or society for purposes not contrary to law shall not be abridged. It means the right to form associations shall be not be impaired without due process of law. In Philippine jurisprudence, the right involves litigations unto areas of associational activities. Labor communism and communist organization. With Philippine Association of Labor Union vs Sec of Labor. It involves the interpretation of Sec 23 of RA 1075. Just read PP vs Hernandez regarding on the movement, PP vs Tere then United Pepsi Colas Union vs Ladesma. I believe it is cited by Bernas. Then we go to Section 9 Sec 9

In this case, try to look at the case of Chaves vs Pea Amari GR No., 133250, July 9, 2002, I think it was already cited by Bernas in his book. The meat of Chaves vs Pea Amari is the portion of Section 7 beginning with the second sentence official re4cords amd to documents and to papers pertaining to official acts transactions of decisions such as the research data used as basis for policy development. Papers pertaining to official acts, transactions or decisions in the Chaves vs Pea Amari it said that the documents sought was still being deliberated on so therefore the SC said while the evaluation or review is still on going, there are no officials acts, transactions or de3cisokns on the bids or proposals. So if the bids and proposals are already done, then it is only then that a citizen may file a case or may request to see or copies of these documents. What are some of the recognize limitations on the right to information?

Private property shall not be taken for public use without just compensation. The constitutional provisions on eminent domain are Art 3 Sec 9, Art 12 Sec 18 regarding public utilities, Art 13 Sec 4 on land reform, Art 18 Sec 22 either on abandoned agricultural lands. Sec 18 Art 12 deals with nationalization or state ownership of industries for public utilities. It needs expropriations that transfer of ownership can only be upon payment fi the expropriation while Sec 4 Art 13 talks about the just distribution of agricultural lands subject to the payment of just compensation. The right of eminent domain is understood to be the legit right of a sovereign power to appropriate not only of public but the private property of all citizens for public purpose. It is a power inherent to the sovereignty.

We keep on going back to the inherent power of the state. Police power, now we are discussing the power of eminent domain. The question is: We have enumerated constitutional provisions on the power of eminent domain. Not only sec 9 Art 3 but other part of the constitution. Question: Are these the permissions of the constitution that provides for eminent domain? Of course the answer is no. because the constitution does not grant power of eminent domain. It is an inherent power of the government, and therefore the inherent power of eminent domain are very much like to the police power and the power of taxation. Proceeds the constitution. The powers are already there even before the constitution. Then why then are we studying Sec 9 Art 3, Sec 18 Art 12, Sec 22 Art 18, these are merely provisions that regulate the exercise of the power of eminent domain. The questions is: Why are we studying Sec 9, is this the power of eminent domain? No, it is only a provision that limits the exercise on the power of eminent domain. The exercise of the power of eminent domain is by traditions lads with the executive. The power however must be granted by the legislation. The exercise, the implementation, is by the executive. It cannot be implemented by the congress although the executive cannot implement it without a power. Congress again gives the power. Therefore, the authority, the exercise of the power, the power is granted by the legislation, it is implemented, executed by the executive. Once authority is given to exercise the power of eminent domain, the matter ceases to be wholly legislative. The executive might then will decide whether the power will be invoke and to what extent. The power of eminent domain may also be conferred upon municipal government an d othr government entities., this is provided clearly and there are already several decisions of the SC that recognizing this. It is clearly provided in the local government code.

As to the legislature, the power of eminent domain is inherent for gov’t agencies, local government and public utilities, it is only a delegated power. In the hands of the Congress, the scope of the power is like the scope of the legislative power itself, plenary. It is abscond as the scope of the police power itself. It thus can reach every form of property which the state might need for public use. The delegated power of eminent domain of the local government is not a power of eminent domain but of inferior domain, a share merely in eminent domain. Read the case of the City of Manila vs the Chinese Community of Manila. It is an old old case but still demonstrate the exercise the power of eminent domain. In early 1900, the City oif Manila move to expropriate a portion of the chinese cemetery to open a street through it yun na yung rizal avenue. Then gustong iappriopriate yung portion nay un kung saan dadaan yung rizal avenue. Umayaw yung Chinese Cemetery. The court said that the chinese cemetery open for public is already in public use and no part of it could be taken for a oublic use under a general authority. But if the legislature should grant the expropriation, the courts will have the authority to inquire the purpose of legislations. The court suggested to the city of manila how to go about it. You are doing it under a general power of expropriation which cannot be done. But sabi ng huisgado, if the legislation will give you the authority to expropiroate it than we cannot do anything, so what did the city of manila do? They went to the legistaktue and ask for an authoruity to expropriate then uit was expropriated. So therefore, they were able to build a road. Then after the legisgkatrue pass a law in giving the authority of the city of manila to expropriate the property. The two constitutional limitations in the power of eminent domain. Found in Sec 9. a. Public Use b. Just Compensation The requiste on the exercise of pwero of eminent domain are the taking of private property, the

taking must be for public use, there must be a just compensation. What is public use? It is not equivalent of use by the public. It means public usefulness. Utility or advantage of what is productive of general benefit. So that any appropriating of private property by the state under its right of eminent domain for purposes of great advantage to the community’s taking for public use. The concept of public use is as broad as public welfare. As broad as the expansive and ever expanding scope of police power. The taking of private property in subdivision for resale for land reform is for public use as hekld in Mataas na lupa vs Dimayuga. I think this was cited by Bernas. 1984 case. Expropriation for socialize housing is for public use Sumulong vs Guerrero 1987 so its expropriation for the construction of irrigation canal 1988. The expropriation of the brith place of Felix Manalo. How did the court resolve this? Read it in Manisca vs CA GR 106440. Then what is meant by JUST COMPENSATION? It is just and complete equivalent of the loss which the owner exproriated and has to suffer by reason if the expropriation. The compensation given to the owner is just, it reseals for the property a sum equivalent to its market value. Market value is the price which the property will command if the reseller is not bound to sell and the buyer is nit bound to buy. This si a definition given by the deliberation of the constituitional provision. A statutory determination of just compensation will only be a prima facie assessment. In the end, the final determination of the compensation will be made by the court. Then who are entitled to just compensation? It is not only the owner of the property who is entitled to just compensation. It also includes all those who has lawful interest on the property to be condemned including a mortgagee, a lessee, a

vendee, compensation under executor function. Every person having an state or interest at law or equitee in the land taking can be subtitled to share in the award. Entry may be made by the expropriator even prior to actual payment of just compensation. What is merely required is that deposit is made of the provisional value of the property. As a general rule, the value of the property expropriated is determined as of the time of filing of the complaint for expropriation. This is because the filing coincides with the taking. However, it is consistently ruled that compensation for property expropriated must be determined as of the time the expropriating authority takes possession of the property and not as of the time of institution of proceedings. This is the case of Republic vs Sarabia GR 157847. This is ti reconcile the law applicable when there is taking before the filing of the proceeding. So as a general rule, the value of the property expropriated is determined as of the time of filing of the complaint because as a general rule, the filing coincides with the taking. However, the case of Republic vs Sarabia, it is not the time of filing but of the time of entry of the person expropriating. Alright, the Secretary of the Department of Public Work vs Spouses Heracleo and Ramona Tecson GR 179334.As a backgrounder of this case, it would seem that the owner of the property forgot, it took a long time to get the just compensation. And the government said there is laches already, there is waiver because they failed to exercise their right. The SC said it can never be waived, it can never be subject to laches. The owner of the property must always be compensated. That is the gist of the case. The next question is: if it took a long time for the compensation to be paid, then how much should the compensation be? Likewise, the case of Republic vs Heirs of Borbon and CA GR 165354, the background of this case is that there is a property expropriated but it was abandoned. Issue: must the expropriator pay from the period of its occupancy even if the

expropriation did not push trough. Yes, he must pay. Just compensation and expropriation for land reform. There is a deliberation in the ConCom although it did not find its way to the constitution that just compensation for expropriation for land reform can be less than the market value. Why? Because land reform is both an eminent domain act and a police power act. Expropriation for resale to landless. What is the Guido-Baylosis cases? Discussed by Bernas. In the Guido-Baylosis cases, expropriation must be for landed state only. This was abandoned in Tuazon vs Land Tenure Administration. So the Guido-Baylosis case is known as the area test, must be huge landed state. But in the Tuazon, next impression for the sale for validations of landless farmers is a social justice. So even if it is only a small estate, a small land, small hectare, it can be expropriated for distribution to the landless. Judicial Review The exercise of the power of eminent domain is always subject to judicial review. Judicial review of the valuation of the property made by assessors is proper. Even when there is a statutory determination of just compensation, the courts may still review even the adequacy of such determination. When expropriation is done not directly by legislative authority but by another government agency or by a municipal corporation, by virtue of an authorizing statute is neither specifies the purpose of taking a property, it is subject to judicial review. We are talking of two things here. We are talking to valuation of property subject to expropriation and the exercise of eminent domain. If the exercise of eminent domain is done by the legislature itself, then the courts may not question or may not pass upon the exercise of legislature of power of eminent domain. But when the expropriation is done by a municipal corporation or another government agency in virtue of an authorizing statue, then it is subject to judicial review.

The valuation will always be subject to a judicial review even if there is a legislative or statutory determination of the valuation, it is always subject to judicial review. But the exercise itself of the power of eminent domain whether it is subject to judicial review depends on who is exercising it or by virtue of which law. If it is directly by the legislature, the property to be expropriated is not subject to judicial review. If it is a municipal corporation, another government agency, it is subject to judicial review. Can res judicata expropriation case?

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Res judicata means finality of judgement. What instance were res judicata may be demonstrated? It is when a property is a, when there is a municipal corporation for example or expropriator filed a case in court for the expropriation of a particular property and for whatever reason it was dismissed by the court, then if its idismissed by thb court within a specified time, that becomes final and executor. So that it if is final and executor, we say that res judicata sets in. it can no longer be opened. In ordinary cases but not in expropriation case. The very nature of eminent domain as an inehernt power dictates that the exercise of the power is not absolute and unfettered by the prior judgement of res judicata. Regulation were substantive. Regulation is police power taking this eminent domain. By police power, property is regulated. There is a transfer of ownership. By eminent domain, property is taken. There is transfer of ownership. Regulation is not. Taking must be compensated. When a property interest is appropriated and applied to some public use, there is compesanble taking. When a property ineterst is merely restricted, its continued restricted use will be injurious tp public welfare or when property is destropyed because of the continued existence of property will be injurious to public interest, teher is no compensable taking. The entry of the Depo earth savers vs Secraetary 2006 case, when the

entry into private property is not a simp;e right of way which is ordinarily allowed, permissions of the civil code but of it is for mining activities, there is already a compensable taking. Republic vs Andaya When the right of way enforce by the statute in making the dwelling property unuseable, just compensation is due. When municipal property is taken by the state, compensation is required if it is patrimonial property of the municipality. That is property acquired by it with its private fund in its corporate or private capacity. A property located in a municipality, if the state woikll get it, will it pay compensation? It depends. If it is a patrimonial property of the municipality then the state must pay compensation. But if it were a property of the state made use of only by the municipality, then the state need not pay compensation. The essential requisites for the exercise by local government of the power of eminent domain are: a. There must be an ordinance authorizing it b. The exercise of for the public use c. Just compensation d. There must be an offer previously made and the same was not accepted.