CODES AND NOTES ON CONSTITUTIONAL LAW II

CODES AND NOTES ON CONSTITUTIONAL LAW II
by PORFERIO JR. and MELFA SALIDAGA
NOTES AND CASES ON CONSTITUTIONAL LAW II
I. THE INHERENT POWERS OF THE STATE

1. Police Power
2. Power of Eminent Domain
3. Power of Taxation
• They are inherent powers because they belong to the very essence of
government and without them no government can exist.
Similarities, Distinctions, and Limitation
Similarities:
• they are inherent in the State

• they are necessary and indispensable
• they are methods by which the State interferes with private rights
• they presuppose an equivalent compensation
• they are exercised primarily by the legislature
Differences:
Police Power Eminent Domain Taxation

As to regulation regulates both liberty regulates property regulates
and property rights only property rights
only
As to who may only the government government and only the
exercise some private government
entities
As to the destroyed because it is -wholesome -wholesome
property taken noxious or intended for -taken for a public -taken for a
noxious purpose use or purpose public use or
purpose
As to intangible altruistic full and fair protection and
Compensation feeling that the person equivalent of the public
has contributed to the property improvements
general welfare expropriated for the taxes
paid
Limitations:
(a) Bill of Rights
A. POLICE POWER
Police Power – is an inherent power of the State to promote the welfare of

society by restraining and regulating the use of liberty and property.
Justification of existence:
• Salus populi est suprema lex – the welfare of the people is the supreme
law;
• Sic utere tuo ut alienum non laedas – a person must use his own
property so as not to injure another
Scope:
(a) cannot be bargained away through the medium of a treaty or contract

(Stone v Mississippi)
(b) may use taxing power as its implement (Tio vs Videogram Regulatory
Board)
(c) may use eminent domain as its implement (Assoc. of Small Landowners
vs Sec. of Agrarian Reform)
(d) could be given retroactive effect and may reasonably impair vested rights
or contracts (police power prevails over contract)
(e) dynamic, not static, and must move with the moving society it is supposed
to regulate
Who may exercise Police Power?
(a) the Legislature (inherent)

(b) President (by delegation)
(c) administrative boards (by delegation)
(d) lawmaking bodies on all municipal levels, including barangay (by
delegation)
(e) Municipal governments / LGU's (conferred by statute – general welfare
clause of RA 7160)
• Not being a political subdivision but merely an executive authority it has no

police power. (MMDA v. Bel-Air Village Assoc.)
Tests (Limitations):
(a) Lawful subject – interests of the public generally, as distinguished from

those of a particular class, require the exercise of police power
(b) Lawful means – the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals
Additional limitations (when exercised by delegate) [Nachura Reviewer]:
• express grant by law (e.g. RA 7160)

• within territorial limits (for LGU's)
• must not be contrary to law (City Government of Quezon City vs Ericta)
• for municipal ordinances -
1. must not contravene the Constitution or any statute

2. must not be unfair and oppressive
3. must not be partial and discriminatory
4. must not prohibit, but may regulate, trade
5. must not be unreasonable
6. must be general in application and consistent with public policy
• In Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor

of Manila, police power has been characterized as the most essential,
insistent and least limitable of powers extending as it does “to all great
public needs.”
“[T}he mere fact that some individuals in the community may be deprived of
their business or a particular mode of earning a living cannot prevent the
exercise of police power. .. [P]ersons licensed to pursue occupations
which may in the public need and interest be affected by the exercise of
the police power embark in these occupations subject to the
disadvantages which may result from the exercise of that power. ”
Government can take away a license and increase the cost of license fees
even to prohibitive levels, if public interest dictates so, without any
constitutional violations.
Licenses for regulating non-useful occupation are incidental to the exercise of

police power and the right to exact fees is may be implied from that power
to regulate. In setting the fees, municipal corporations are given wider
discretion in this class of licenses (than for licenses issued to regular
business). Courts have generally upheld these because of the desirability
of imposing restraints on individuals who engage in these unuseful
enterprises.
• In Ynot v. IAC, the Court here ruled that the ban on transportation of
carabao under the assailed ordinance and their outright confiscation and
disposal without court hearing is a violation of due process hence it is an
invalid exercise of police power.
The court adopted the measures laid down in the Toribio case
Protection general welfare is a function of police power which both restrains and
is restrained by due process, which requires notice and hearing
Case emphasized the need to have a lawful method to follow due process
requirement
Reasons why ordinance is invalid are:
◦ No reasonable connection between means employed (absolute
ban on movement of carabeef) and purpose sought to be
achieved (conservation of carabao for general welfare)
◦ Unduly oppressive since petition not given due process or
opportunity to be heard in proper court
B. EMINENT DOMAIN
Eminent Domain – is the use of the government of its coercive authority, upon
just compensation, to forcibly acquire the needed property in order to devote the
same to public use.
Eminent domain is also known as expropriation, or condemnation.
Who may Exercise?
1. The Congress (inherent)

2. President
3. various local legislative bodies
4. certain public corporations (e.g. National Housing Authority)
5. Quasi-public corporations (e.g. PLDT)
Eminent Domain Distinguished from Destruction from Necessity
Eminent Domain Destruction from Necessity

• public right • private right vested in every
• arises from the laws of individual with which the right of
society and is vested in the state or state necessity has nothing
state or grantee, acting to do
under the right and power of • comes under the right of necessity,
the state or benefit of the of self-preservation
state • arises under the laws of society or
society itself
• cannot require the conversion of the
property taken to public use, nor is
there any need for the payment of
just compensation
• The Regional Trial Court (RTC) has the jurisdiction over a complaint for
eminent domain.
Requisites of Eminent Domain:
1. Necessity of exercise
2. Private property
3. Taking
4. Public use
5. Just compensation
1. Necessity of Exercise
• genuine necessity, and

• must be of public character
◦ When exercised by legislature – political question
◦ When exercised by a delegate – justiciable question
▪ determine the: (a) adequacy of compensation; (b) necessity of
taking; and (c) public use character
2. Private Property
• General Rule: anything that can come under the dominion of man is
subject to expropriation
• Exceptions: money and chose in action (personal right not reduced into
possession, i.e. the right to bring an action to recover debt, money or
thing)
• Private property already devoted to public use cannot be expropriated by
a delegate acting under a general grant of authority (City of Manila vs
Chinese Community)
3. Taking
Requisites (Republic vs Castellvi):
(a) expropriator must enter a private property

(b) entry must be for more than a momentary period
(c) entry must be under the warrant of legal authority
(d) entry is for public use
(e) the owner is deprived of enjoying his property
• if taking is under police power, it is not compensable
Taking Under Eminent Domain vs Taking in Police Power :
Police Power Eminent Domain

• the prejudice suffered by the • the individual suffers more than
individual property owner is his aliquot part of the damages,
shared in common with the i.e. a special injury above that
rest of the community sustained by the rest of the
community
• In Amigable v. Cuenca, where there is taking in the constitutional sense,

the property owner need not file a claim for just compensation with the
Commission of Audit; he may go directly to the court to demand payment.
Arbitrary action of the government shall be deemed a waiver of its
immunity from suit.
• In City Government v. Ericta, an ordinance of Quezon City, under the

guise of exercising police power, prescribed that at least 6% of the total
area of memorial parks must be developed and set aside for the burial of
paupers. The Court held that such ordinance is not an exercise of police
power but the taking of private property for public use. Hence, to satisfy
the Constitution, there must be compensation.
4. Public Use
Public use – is whatever may be beneficially employed for the general welfare,
including both direct or indirect benefit or advantage to the public
• In Heirs of Ardona v. Reyes, the Court held that the Constitution

understand public use in a broad sense as meaning public welfare. That
includes development of tourism.
5. Just Compensation
Just compensation – is fair and full equivalent payment for the loss sustained,
which is the measure of the indemnity, not whatever gain would accrue to the
expropriating agency. It is not market value per se. (Epza v. Dulay)
• Where only part of the property is expropriated: entitlement to

consequential damages, if any + consequential benefits must be deducted
from the total compensation provided consequential benefits does not
exceed consequential damages
◦ Payment of the correct amount + Payment within a reasonable time
• Form of Compensation: Money (However, in Assoc. of Small

Landowners vs Sec. of Agrarian Reform, payment is allowed to be made
partly in bonds because it deals with a revolutionary kind of expropriation).
• Transfer of Title: payment of just compensation before title is

transferred.
• Reckoning point of market value of property: either as of the date of

taking or filing of the complaint, whichever comes first
• Entitlement of interest:
◦ General Rule: when there is delay, there must be interest by way of
damages (Art. 2209, CC)
◦ Exception: when waived by not claiming the interest
• Payment of Taxes : taxes paid from the time of the taking until the
transfer of the title, during which the owner did not enjoy any beneficial
use of the property, are reimbursable by the expropriator.
• Right of the landowner in case of non-payment:

◦ General Rule: landowner is not entitled to recover possession of the
property, but only to demand payment
◦ Exception: when the government failed to pay just compensation
within 5 years from the finality of judgment in expropriation
proceedings, there is a right to recover property
• In De Knecht v. Bautista, the court ruled that the expropriation

proceeding against the property of petitioner was arbitrary and cannot
receive judicial approval. There was another area where the expansion of
EDSA can be undertaken, which will cost government less, affect lesser
homeowners, etc.
• But in Republic vs. Knecht, the same property was ordered expropriated.
Apparently, BP 340, which called for the taking of the property, was
enacted after the 1st De Knecht case. De Knecht argued that there was
already a law of the case, which should not be disturbed.
Court responded that while it is true that there was a law of the case, it is
equally true that there is constitutional grant given to the State to take
private property upon payment of just compensation. “Such expropriation
proceedings may be undertaken by the [State] not only by voluntary
negotiation with landowners but also by taking appropriate court action or
by legislation.”
The prior court decision is no obstacle for the legislature to make its own
assessment of the circumstances that prevailed after the decision as well
as supervening events and reaching a conclusion as to the propriety of
undertaking the appropriation of the De Knecht property.
• In the case Republic v. PLDT, the Court ordered the PLDT to allow the
reconnection of telephone lines of the Republic.
◦ No cogent reason appears why Eminent Domain may be availed of to
impose only a burden upon the owner of condemned property without
loss of title or possession for public use subject to just compensation
◦ Case highlights that even services may be subjected to eminent
domain
• In City of Manila v. Chinese Community of Manila, the Court said that

“[T]he very foundation of the right to exercise eminent domain is a genuine
necessity and that necessity must be of public character.”
• In Epza v. Dulay, P.D. Nos. 76, 464, 794, and 1533 prescribed a formula
for arriving at just compensation in expropriation proceedings , dispense
with the need to appoint commissioners to determine just compensation.
The Court held that those decrees are unconstitutional and void for they
constitute “impermissible encroachment on judicial prerogatives.”
• In Republic v. CA, the government argued that the nullification should

only have prospective effect. The Court agreed. Thus under the
“operative fact” doctrine, the effect of the invalidated law was allowed to
affect transactions completed before the declaration of nullity.
C. POWER OF TAXATION
Power of Taxation – is a method by which contributions are exacted from

persons and property for the support of government and for all public needs.
• Obligation to pay taxes is a duty
Taxes vs Licenses
Tax License
• to raise • for regulatory purpose only
revenues • justified under police power
• amount of fees required is usually limited to the
cost of regulation
Scope
• all income earned in the taxing state, whether by citizens or aliens, and all
immovable and tangible personal properties found in its territory, as well
as tangible personal property owned by persons domiciled therein
Power to Tax Includes Power to Destroy
(1) when used validly as an implement of the police power in discouraging

and in effect ultimately prohibiting certain things or enterprises inimical to
public welfare
Power to Tax Does Not Include Power to Destroy

• where the tax is used solely for the purpose of raising revenues
Who May Exercise
1. Legislature / Congress (inherent)

2. President (by delegation / tariff powers [Sec. 28 (2), Art. VI, Consti])
3. local legislative bodies (conferred by direct authority [Sec. 5, Art. X,
Consti])
Limitations of Taxation:
1. Due Process of Law

2. Equal Protection
3. Public Purpose
1. Due Process
• Substantive : tax should not be confiscatory except when used as an

implement of police power
• Procedural : due process does not require previous notice and hearing
before a law prescribing specific taxes on specific articles may be
enacted. However, where the tax to be collected is to be based on the
value of the taxable property, the taxpayer is entitled to be notified of the
assessment proceedings and to be heard therein on the correct valuation
of the property.
2. Equal Protection
• embodied in Sec. 28 (1), Art. VI, 1987 Constitution (The rule of taxation
shall be uniform and equitable. The Congress shall evolve a progressive
system of taxation.)
• Uniformity – persons or things belonging to the same class shall be taxed

at the same rate
◦ Requisites (Tan vs Del Rosario):
(a) standards that are used are substantial and not arbitrary
(b) categorization is germane to achieve the legislative purpose
(c) the law applies, all things being equal, to both present and future
conditions
(d) classification applies equally well to all those belonging to the same
class
• Equitable taxation – based on the capacity to pay
• Equality in taxation – tax shall be strictly proportional to the relative value

of the property
• Progressive system of taxation – the rate increases as the tax base

increases
3. Public Purpose
• whatever may be beneficially employed for the general welfare
• Double Taxation / Direct Duplicate Taxation
◦ when additional taxes are laid on the same subject by the same taxing
jurisdiction during the same taxing period and for the same purpose.
◦ despite the lack of specific prohibition, double taxation will not be

allowed if it results in a violation of the equal protection clause.
• Tax Exemptions may either be:
◦ constitutional
▪ Art. Vi, Sec. 28 (3) : when lands, buildings and improvements are
actually, directly and exclusively for religious, charitable or
educational purposes – entitled to exemption
◦ statutory- discretion of legislature
II. CIVIL AND POLITICAL RIGHTS
Bill of Rights – set of prescriptions setting forth the fundamental civil and
political rights of the individual, and imposing limitations on the powers of the
government as a means of securing the enjoyment of those rights.
Significance of the Bill of Rights
Government is powerful. When unlimited, it becomes tyrannical. The Bill of

Rights is a guarantee that there are certain areas of a person's life, liberty, and
property which governmental power may not touch.
• Bill of Rights are generally self-implementing.
Classification of Rights
1. Political Rights – granted by law to members of community in relation to

their direct or indirect participation in the establishment or administration of
the government;
2. Civil Rights – rights which municipal law will enforce at the instance of
private individuals for the purpose of securing them the enjoyment of their
means of happiness;
3. Social and Economic Rights; and,
4. Human Rights.
A. DUE PROCESS
Section 1, Art. III. 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.
• no precise definition because it might prove constricting and prevent the

judiciary from adjusting it to the circumstances of particular cases
• responsiveness to the supremacy of reason, obedience to the dictates of

justice
• embodiment of sporting idea on fair play
• guaranty against any arbitrariness on the part of the government
Protection of Person
Covers Natural (citizen and alien) and Artificial Persons. As to the latter, with
respect only to property because its life and liberty are derived from and subject
to control of legislature
Deprivation (in Sec. 1, Art. III)

• connotes denial of right to life, liberty or property

• not unconstitutional. what is prohibited is deprivation without due process
of law.
• When the State acts to interfere with life, liberty, or property, the
presumption is that the action is valid.
1. Life
• It is not just a protection of the right to be alive or to the security of one's

limb against physical harm. The right to life is the right to a good life... a
life of dignity and... a decent standard of living.
2. Liberty
(1) freedom to do right and never wrong (Mabini)
(2) right to be free from arbitrary personal restraint or servitude
3. Property
• anything that can come under the right of ownership and be the subject of
contract
• all things within the commerce of man
• However, one cannot have a vested right to a public office as this is not
regarded as property. If created by statue, it may be abolished by the
legislature at any time.
• Mere privileges are not property rights and are therefore revocable at will
Aspects of Due Process
1. Substantive Due Process

2. Procedural Due Process
• As a substantive requirement, it is a prohibition of arbitrary laws.
• As a procedural requirement, it relates chiefly to the mode of procedure

which government agencies must follow in the enforcement and
application of laws. It is a guarantee of procedural fairness.
Substantive Due Process
Substantive due process – requires intrinsic validity of the law in interfering with
the rights of the person to his life, liberty or property
Requisites:
(a) Lawful Subject

(b) Lawful Means
Procedural Due Process
Procedural due process – is the restriction on actions of judicial and quasi-

judicial agencies of government.
1. Judicial Due Process
Requisites:
(a) Impartial and Competent Court
(b) Jurisdiction lawfully acquired over the person of t he defendant and/or

property
(c) Hearing
• not necessarily trial-type hearing; submission of position papers is

enough
• right of a party to cross-examine the witness against him in a civil case

is an indispensable part of due process
• the filing of a motion for reconsideration cures the defect of absence of

a hearing
• Cases in which notice and hearing may be dispensed with without

violating due process:
◦ abatement of nuisance per se

◦ preventive suspension of a civil servant facing administrative

charges
◦ cancellation of passport of a person sought for the commission of a
crime
◦ statutory presumptions
(d) Judgment rendered upon lawful hearing (Banco Espanol Filipino v.

Palanca)
2. Administrative Due Process
Requisites:
(a) Right to a hearing
(b) Tribunal must consider the evidence presented
(c) Decision must have something to support itself
(d) Evidence must be Substantial
(e) Decision must be rendered on the evidence presented at the hearing,

or at least contained in the record and disclosed to the parties affected
(f) Tribunal, body, or any of its judges must act on its or his own
independent consideration of the facts and law of the controversy
(g) Decision is rendered in such a manner that the parties to the

proceeding can know the various issues involved, and the reason for
the decision rendered
• In administrative proceedings, the quantum of proof required is only

substantial evidence, such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
• The law is vague when it lacks comprehensible standards that men “of
common intelligence must necessarily guess as to its meaning and differ
as to its application. It is repugnant to the Constitution in two respects:
▪ it violates due process for failure to accord persons fair notice of
conduct to avoid; and,
▪ it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes arbitrary flexing of the Government
muscle.
• In Estrada vs. Sandiganbayan, it was held that there was no violation of

due process because the nature of the charges against the petitioner is
not uncertain and void merely because general terms are used or because
it employed terms that were not defined. The Anti-Plunder law does not
violate due process since it defines the act which it purports to punish,
giving the accused fair warning of the charges against him, and can
effectively interpose a defense against on his behalf.
• A Connecticut statute making it a crime to use any drug or article to

prevent conception violates the right of marital privacy which is within the
penumbra of specific guarantees of the Bill of Rights.
◦ Although the Bill of Rights does not mention ‘privacy’ the Court ruled
that that the right was to be found in the "penumbras" of other
constitutional protections. “The First Amendment has a penumbra
where privacy is penumbra where privacy is protected from
governmental intrusion.”
• In Lochner v. New York, Lochner was charged with violation of the labor
laws of New York for wrongfully and unlawfully permitting an employee to
work more than 60 hours in one week. The statute allegedly violated
mandates that no employee shall contract or agree to work more than 10
hours per day.
Issue: Whether the statute is unconstitutional.
Ruling: Yes. The statute is unconstitutional.
The statute interferes with the liberty of a person and the right of free contract
between employer and employee by determining the hours of labor in the
occupation of a baker without reasonable ground for doing so.
The general right to make a contract in relation to one’s business is a liberty

protected by the 14th amendment.
The state may interfere with and regulate both property and liberty rights to
prevent the individual from making certain kinds of contracts in its exercise of
police power which relates to safety, health, morals and general welfare of the
society. In this instance, the 14th amendment cannot interfere.
The trade of a baker is not an alarmingly unhealthy one that would warrant the
state’s interference with rights to labor and contract.
Doctrine: The rule must have a more direct relation, as means to an end, and the
end itself must be appropriate and legitimate, before an act can be held to be
valid which interferes with the general right of an individual to be free in his
person and in his power to contract in relation to his own labor.
• Our cases include Court of Industrial Relations (Ang Tibay vs. CIR) as an
administrative court which exercises judicial and quasi-judicial functions in
the determination of disputes between employers and employees.
National Telecommunications Company (PHILCOMSAT vs. Alcuaz),
National Labor Relations Commission or NLRC (DBP vs. NLRC) and
school tribunals (Ateneo vs. CA-Board of Discipline, Alcuaz vs. PSBA,
Non vs. Judge Dames, Tinker vs. Des Moines Community School
District) also are clothed with quasi-judicial function. It is a question of
whether the body or institution has a judicial or quasi-judicial function that
makes it bound by the due process clause. (Judicial function is
synonymous to judicial power which is the authority to settle justiciable
controversies or disputes involving rights that are legally enforceable and
demandable or the redress of wrongs for violations of such rights. It is a
determination of what the law is and what the legal rights of the parties are
with respect to a matter in controversy).
• In Ang Tibay vs. CIR, the Court laid down cardinal requirements in
administrative proceedings which essentially exercise a judicial or quasi-
judicial function. These are:
(1) the right to a hearing, which includes the right to present one’s case and
submit evidence in support thereof
(2) The tribunal must consider the evidence presented
(3) The decision must have something to support itself
(4) The evidence must be substantial. Substantial evidence means such a

reasonable evidence as a reasonable mind might accept as adequate to
support a conclusion
(5) The decision must be based on the evidence presented at the hearting or
at least contained in the record and disclosed to the parties affected
(6) The tribunal or body of any of its judges must act on its own independent
consideration of the law and facts of the controversy and not simply
accept the views of a subordinate
(7) The Board or body should, in all controversial questions, render its
decision in such manner that the parties to the proceeding can know the
various issues involved and the reason for the decision rendered.
B. EQUAL PROTECTION
Section 1, Art. III. 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.
• The Equality Protection Clause is a specific constitutional guarantee of the

Equality of the Person. The equality it guarantees is “legal equality or, as
it is usually put, the equality of all persons before the law.
• embraced in the concept of due process
• embodied in a separate clause to provide for a more specific guaranty

against undue favoritism or hostility from the government
Due Process Clause attacks arbitrariness in general
Equal Protection Clause attacks unwarranted partiality or prejudice
Substantive Equality – all persons or things similarly situated should be treated

alike, both as to rights conferred and responsibilities imposed.
Equality in enforcement of the law – law be enforced and applied equally
Requisites of Valid Classification:
(a) it must be based on substantial distinctions
(b) it must be germane to the purposes of the law
(c) it must not be limited to existing conditions only

◦ must be enforced as long as the problem sought to be corrected exists
(d) it must apply equally well to all members of the class

◦ both as to rights conferred and obligations imposed
• In De Guzman v. Comelec, petitioners theorize that Sec. 44 of RA 8189

is violative of the equal protection clause because it singles out the City
and Municipal Election Officers of the COMELEC as prohibited from
holding office in the same city or municipality for more than four years.
The Court held that the law is valid. The singling out of election officers in
order to “ensure the impartiality of election officials by preventing them
from developing familiarity with the people of their place of assignment.
• In Ormoc Sugar Central v. Ormoc City, Ormoc City imposes a tax on

Ormoc Sugar Central by name. Ormos Sugar Central is the only sugar
central in Ormoc City. The Court held that such ordinance is not valid for it
would be discriminatoory against the Ormoc Sugar Central which alone
comes under the ordinance.
C. SEARCH AND SEIZURE
Section 2, Art. III. 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 2, Art. III – deals with tangibles; embodies the “castle” doctrine (a
man's house is his castle; a citizen enjoys the right against official intrusion and is
master of all the surveys within the domain and privacy of his own home.)
• This provision applies as a restraint directed only against the government

and its agencies tasked with enforcement of the law. It does not protect
citizens from unreasonable searches and seizures perpetrated by private
individuals.
Section 3, Art. III. (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.
Section 3 (1), Art. III – deals with intangibles
Section 3 (2), Art. III – Exclusionary Rule (which embodies the Doctrine of the
Fruit of the Poisonous Tree)
Exclusionary Rule – evidence obtained in violation of Sec. 2, Art.III, shall be

inadmissible for any purpose in any proceeding (Fruit of Poisonous Tree
Doctrine). (Stonehill v. Diokno)
• available to natural and artificial persons, but the latter's books of accounts
may be required to open for examination by the State in the exercise of
police power or power of taxation
The right is personal (Stonehill vs Diokno)
• General Rule: only a judge may issue a warrant.
Exception: orders of arrest may be issues by administrative authorities but only

for the purpose of carrying out a final finding of a violation of a law
Valid Warrantless Searches
[NOTE: each of these requires probable cause, except stop and frisk]
1. searches incidental to lawful arrest (rule 126, Rules of Court) – for

dangerous weapons or anything that may have been used or constitute in
the commission of an offense
Requisites:
1. the item to be searched was within the arrestee's custody or area of
immediate control
2. the search was contemporaneous with the arrest
2. searches of moving vehicles
• In Aniag v. Comelec, twenty meters away from the gate of the

Batasan, a truck was stopped and searched. The motorists had not
given any evidence of suspicious behaviour nor had the searching
officers received any confidential information about the car. The Court
held that the search was not justifiable as a warrantless arrest of a
moving vehicle as there was no probable cause.
3. searches of prohibited articles in plain view

Requisites:
1. prior valid intrusion to a place
2. evidence was inadvertently discovered by the police who has the
right to be there
3. evidence is immediately apparent
4. there is no further search
4. enforcement of customs law
5. consented searches
6. stop and frisk (limited protective search of outer clothing for weapons)
• In Terry v. Ohio, the stop-and-frisk rule is stated thus: “(W)here a

police officer observes unusual conduct which leads him reasonably to
conclude in the light of his experience that criminal activity may be
afoot and that the person with whom he is dealing may be armed and
presently dangerous, where in the course of investigation of this
behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others' safety, he is
entitled for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him.”
• Stop-and-frisk rule serves a two-fold interest:
(1) the general interest of effective crime prevention and detection;
(2) the more pressing interest of safety and self-preservation.

(Malacat)
7. routine searches at borders and ports of entry
8. searches of businesses in the exercise of visitorial powers to

enforce police regulations
Valid Warrantless Arrest
1. in flagrante delicto
2. hot pursuit
3. the offender escaped from the penal establishment
Requisites of a valid warrant
Arrest Warrant Search Warrant

1. Probable Such facts and Such facts and circumstances
Cause circumstances which would which would lead a reasonably
lead a reasonably prudent prudent man to believe that an
must refer to man to believe that an offense has been committed
one (1) specific offense has been committed and the objects sought in the
offense and the person sought to be connection of the offense are in
arrested had committed it the place sought to be searched
2. Personal The judge personally The judge must personally
determination determines the existence of examine in the form of
of probable probable cause; it is not searching questions and
cause by the necessary that he should answers...
judge personally examine the in writing and under oath...
complainant and his the complainants and his
witnesses (Soliven vs witnesses...
Makasiar) on facts personally known to
them...
Procedure: and attach to the record their
sworn statements and affidavits.
(1) personally evaluate the (Silva vs Presiding Judge)
fiscal's report, or
(2) if [1] is insufficient,

disregard it and require the
submission of supporting
affidavits of witnesses
Preliminary inquiry (task of

the judge) – determination of
probable cause for the
issuance of warrant of arrest
Preliminary investigation
proper (task of the
prosecutor) – ascertainment
whether the offender should
be held for trial or be
released
3. After Not merely routinary but must Not merely routinary but must
examination be probing and exhaustive be probing and exhaustive
under oath or
affirmation of
the
complainant
and the
witnesses he
may produce
4.Particularity General Rule: it must General Rule: when the
of description contain the name/s of the description therein is as specific
persons to be arrested as the circumstances will
ordinarily allow.
Exception: if there is some
descriptio personae which Exception: when no other more
will enable the officer to accurate and detailed
identify the accused description could have been
given.
• In Valmonte v. Gen. De Villa, the Court held that not all searches and
seizures are prohibited. Those which are reasonable are not forbidden. A
reasonable search is not to be determined by any fixed formula but is to
be resolved according to the facts of the case.
Checkpoints are not illegal per se... Routine inspection and few questions do not
constitute unreasonable searches. If the inspection becomes more thorough to
the extent of becoming a search, this can be done when there is deemed to be
probable cause. In the latter situation, it is justifiable as a warrantless search of a
moving vehicle.
Probable Cause – facts and circumstances antecedent to the issuance of a

warrant that are in themselves sufficient to induce a cautious man to rely upon
them.
• In Corro v. Lising, the Affidavit of Col. Castillo stated that in several

issues of the Philippine Times:”... we found that the said publication in fact
foments distrust and hatred against the government of the Philippines.
The Court held that the affidavit does not establish probable cause, and is
nothing but conclusions of law.
• In Burgos v. Chief of Staff, a search warrant for the newspaper WE

Forum is issued on the basis of a broad statement of the military that

Burgos, Jr. is “in possession of printing equipment and other
paraphernalia... used as means of committing the offense of subversion.”
The Court held that such allegation is not sufficient to establish probable
cause. It is a mere conclusion of law unsupported by particulars.
The Court also held that the search warrant description has the “sweeping tenor”
making the document a general warrant. The search warrant particularly
states:”all printing equipment, typewriters... of the WE Forum newspaper and any
other documents...”
It is not required that the property to be searched should be owned by the person
against whom the search warrant is directed. It is sufficient that the property is
under the control or possession of the person sought to be searched.
• In Soliven v. Judge Makasiar, the Court clarified the meaning of

“personally” in the search and seizure clause. It stated that in arriving at a
conclusion as to the existence of existence of probable cause, what is
required is personal determination and not personal examination.
• In Lim v. Felix, the Court held that the judge in issuing a warrant of arrest
cannot rely solely on the certification or recommendation of a prosecutor
that probable cause exists. The judge must look at the report, the
affidavits, the transcripts of stenographic notes (if any), and all other
supporting documents behind the Prosecutor's certification.
• In Stonehill v. Diokno, the Court held that the following description is

insufficient for it amounts to a general warrant authorizing the officer to
pick up anything he pleases: “ Book of accounts, financial records,
vouchers...and other documents showing all business transactions....”
The Court further held that the objection to an unlawful search or seizure and to
evidence obtained thereby is purely personal and cannot be availed by third
parties.
D. MIRANDA RIGHTS
Section 12, Art. III.

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 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 the rehabilitation of victims of torture
or similar practices, and their families.
• called the “Miranda Doctrine” (Miranda vs Arizona)
Miranda Doctrine – prior to any questioning during custodial investigation, the

person must be warned that he has a right to remain silent, that any statement he
gives may be used as evidence against him, and that he has the right to the
presence of an attorney, either retained or appointed. The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily, knowingly,
and intelligently.
Purpose of the Doctrine
In Miranda v Arizona, the US Supreme Court established rules to protect a

criminal defendant's privilege against self-incrimination from the pressures
arising during custodial investigation by the police. Thus, to provide
practical safeguards for the practical reinforcement for the right against
compulsory self-incrimination, the Court held that “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.
Requisites of the Miranda Doctrine
(1) any person under custodial investigation has the right to remain silent;
(2) anything he says can and will be used against him in a court of law;
(3) he has the right to talk to an attorney before being questioned and to have
his counsel present when being questioned; and
(4) if he cannot afford an attorney, one will be provided before any questioning
if he so desires.
Custodial investigation defined
• Any questioning initiated by law enforcement officers after a person has

been taken into custody or otherwise deprived of his freedom of action in
any significant way.
• Begins as soon as the investigation is no longer a general inquiry unto an

unsolved crime, and direction is then aimed upon a particular suspect who
has been taken into custody and to whom the police would then direct
interrogatory questions which tend to elicit incriminating statements.
• 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.
Extrajudicial confession is Admissible when:
(a) Voluntary
(b) With assistance of counsel
(c) In writing, and
(d) Express
Rights Under Custodial Investigation
(a) To be informed of right to remain silent and to counsel
• Carries the correlative obligation on the part of the investigator

to explain and contemplates effective communication which
results in the subject understanding what is conveyed. (People
v. Agustin)
(b) To be reminded that if he waives his right to remain silent, anything

he says can and will be used against him
(c) To remain silent
(d) To have competent and independent counsel preferably of own

choice
(e) To be provided with counsel if the person cannot afford the services
of one
(f) No torture, force, violence, threat, intimidation or any other means

which vitiate the free will shall be used against him
(g) Secret detention places, solitary, incommunicado, or other similar

forms of detention are prohibited
(h) Confessions or admissions obtained in violation of these rights are

inadmissible as evidence (exclusionary rule)
Rights That May Be Waived

[waiver must be in writing and in the presence of counsel]
(a) Right to remain silent

(b) Right to Counsel
Rights That Cannot Be Waived
(a) Right to be informed of his right to remain silent and to counsel
(b) Right to counsel when making the waiver of the right to remain silent or to
counsel
• Right to counsel de parte is not unlimited. Accused cannot repeatedly ask

for postponement. He must be provided with counsel de oficio.
• RA 7309: victims of unjust imprisonment may file their claims with the
Board of Claims under DOJ
• Res Gestae: The declaration of the accused acknowledging guilt made to

the police desk officer after the crime was committed may be given in
evidence against him by the police officer to whom the admission was
made, as part of the res gestae.
• In People v. Galit, rights under custodial investigation may be waived.

The Constitution says; “These rights cannot be waived except in writing
and in the presence of counsel.” In localities where there are no lawyers,
the State must bring the individual to a place where there is one.
• Termination of rights under custodial investigation: When Charges

are filed against the accused (in such case, Sections 14 and 17 come into
play).
• In Gutang v. People, the Court held that urine sample is admissible.

“What the Constitution prohibits is the use of physical or moral compulsion
to extort communication from the accused, but not an inclusion of his body
in evidence, when it may be material. In fact, an accused may be validly
compelled to be photographed or measured, or his garments or shoes
removed or replaced, or to move his body to enablke the foregoing things
to be done, without running afould of the proscription against testimonial
compulsion.
E. RIGHT TO BAIL
Section 13, Art. III. 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.
Bail – is security given for the release of a person in custody of law, furnished by
him or a bondsman, to guaranty his appearance before any court as may be
required
Kinds of Bail
(a) Cash bond

(b) Security bond
Who May Invoke?
A person under detention even if no formal charges have yet been filed (Rule
114, Rules of Court)
Who Are Entitled?
(a) Persons charged with offenses punishable by Reclusion Perpetua or

Death, when evidence of guilt is strong
(b) Persons convicted by the trial court. Bail is only discretionary pending
appeal.
(c) Persons who are members of the AFP facing a court martial.
• In Paderanga v. CA, all persons actually detained, except those charged

with offenses punishable by reclusion perpetua or death when evidence of
guilt is strong, shall, before conviction, be bailable bu sufficient sureties.
One is under the custody of the law either when he has been arrested or has
surrendered himself to the jurisdiction of the court, as in the case where through
counsel petitioner for bail who was confined in a hospital communicated his
submission to the jurisdiction of the court.
Other Rights in Relation to Bail
• 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.
Factors in Fixing Amount of Bail
(a) Ability to post bail
(b) Nature of the offense
(c) Penalty imposed by law
(d) Character and reputation of the accused

(e) Health of the accused
(f) Strength of the evidence
(g) Probability of appearing at the trial
(h) Forfeiture of previous bail bonds
(i) Whether accused was a fugitive from justice when arrested
(j) If accused is under bond in other cases
Implicit Limitations on the Right to Bail
(a) The person claiming the right must be in actual detention or custody of the
law.
• In People v. Donato, charged with rebellion, a bailable offense, Salas

nevertheless agreed “to remain in legal custody during the pendency of
the trial of his criminal case.” The Court held that he does not have the
right to bail, because bu his act he has waived his right.
(b) The constitutional right is available only in criminal cases, not, e.g. in
deportation and extradition proceedings.
Note:
(a) Right to bail is not available in the military.
• In Comendador v. De Villa, soldier under court martial does not enjoy the
right to bail. It is because of the disciplinary structure of the military and
because soldiers are allowed the fiduciary right to bear arms and can
therefore cause great havoc... Nor can appeal be made to the equal
protection clause ebcause equal protection applies only to those who are
equally situated.
(b) Apart from bail, a person may attain provisional liberty through
recognizance.
• In US v. Puruganan, the Court held that extradition is not a criminal

proceeding. Hence, since bail is available only in criminal proceedings, a
respondent in an extradition proceeding is not entitled to a bail. He should
apply for a bail in the court where he will be tried.
F. RIGHTS OF THE ACCUSED
1. No person shall be held to answer for a criminal offense without due

process of law.
2. In all criminal prosecutions, the accused shall be presumed innocent

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

2. Presumption of innocence;
3. Right to be heard by himself or counsel;
4. Right to be informed of the nature and cause of the accusation against
him;
5. Right to speedy, impartial and public trial;
6. Right to meet the witnesses face to face;
7. Right to compulsory process to secure attendance of witnesses and
production of evidence; and
8. trial in absentia
1. Criminal Due Process
Criminal process includes
a) Investigation prior to the filing of charges

b) Preliminary examination and investigation after charges are filed
c) Period of trial
Requirements of Criminal Due Process
1. Impartial and competent court in accordance with procedure prescribed by

law;
2. Proper observance of all the rights accorded the accused under the
Constitution and the applicable statutes (example of statutory right of the
accused: right to Preliminary investigation)
• Mistrial may be declared if shown that proceedings were held under

circumstances as would prevent the accused from freely making his
defense or the judge from freely arriving at his decision.
• There is violation of due process when law not published and a person is
impleaded for violation of such law.
• There is violation of due process when appeal is permitted by law but

there is denial thereof.
2. Presumption of Innocence
• Burden of proof to establish the guilt of the accused is with the

prosecution.
• Conviction depends on the strength of prosecution, not on the weakness

of the defense
• The presumption may be overcome by contrary presumption based on the

experience of human conduct. (e.g unexplained flight may lead to an
inference of guilt, as “the wicked flee when no man pursueth, but the
righteous are as bold as a lion.”)
• The constitutional presumption will not apply as long as there is some

rational connection between the fact proved and the ultimate fact
presumed, and the inference of one fact from proof of another shall not be
so unreasonable as to be a purely arbitrary mandate. – Cooley
• No inference of guilt may be drawn against an accused for his failure to

make a statement of any sort.
• In Dumlao v. Comelec, for the purposes of disqualification in an election,

section 4 of BP Blg. 52 says that” the filing of charges for the commission
of such crimes before civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact (disqualification).”
The Court held that this provision violates the guarantee of presumption of
innocence. Although filing of charges is only prima facie evidence and
may be rebutted, the proximity of elections and consequent risk of not
having time to rebut the prima facie evidence already in effect make him
suffer as though guilty even before trial.
Equipoise Rule – evidence of both sides are equally balanced, in which case
the constitutional presumption of innocence should tilt the scales in favor of the
accused.
3. Right to be Heard by Himself and Counsel
• Indispensable in any criminal prosecution where the stakes are the liberty
or even the life of the accused
• Assistance of counsel begins from the time a person is taken into custody
and placed under investigation for the commission of a crime.
▪ This is not subject to waiver.
• Right to counsel means the right to effective representation.
• If the accused appears at arraignment without counsel, the judge must:
(a) Inform the accused that he has a right to a counsel before

arraignment;
(b) Ask the accused if he desires the aid of counsel;
(c) If the accused desires counsel, but cannot afford one, a counsel de
oficio must be appointed;
(d) If the accused desires to obtain his own counsel, the court must
give him a reasonable time to get one.
4. Nature and Cause of Accusation

Purpose for the Right to be informed of the Nature and Cause of

Accusation
(1) To furnish the accused with a description of the charge against him as will
enable him to make his defenses;
(2) To avail himself of his conviction or acquittal against a further prosecution

for the same cause;
(3) To inform the court of the facts alleged.
• The description and not the designation of the offense is controlling (The
real nature of the crime charged is determined from the recital of facts in
the information. It is not determined based on the caption or preamble
thereof nor from the specification of the provision of law allegedly
violated.)
• If the information fails to allege the material elements of the offense, the
accused cannot be convicted thereof even if the prosecution is able to
present evidence during the trial with respect to such elements.
Void for Vagueness Rule – accused is denied the right to be informed of the
charge against him and to due process as well, where the statute itself is
couched in such indefinite language that it is not possible for men of ordinary
intelligence to determine therefrom what acts or omissions are punished and
hence, shall be avoided.
• In Estrada vs Sandiganbayan, the Court held that the Void for

Vagueness Doctrine merely requires a reasonable degree of certainty
and not absolute precision or mathematical exactitude.
5. The Trial
Factors in Determining Whether There Is Violation
(a) Time expired from the filing of the information

(b) Length of delay involved
(c) Reasons for the delay
(d) Assertion or non-assertion of the right by the accused
(e) Prejudice caused to the defendant.
• Effect of dismissal based on violation of this right: it amounts to an

acquittal and can be used as basis to claim double jeopardy. This would
be the effect even if the dismissal was made with the consent of the
accused
Remedy if the Right is Violated
(1) He can move for the dismissal of the case;
(2) If he is detained, he can file a petition for the issuance of writ of habeas
corpus.
Speedy trial -
1. Free from vexatious, capricious and oppressive delays
2. To relieve the accused from needless anxieties before sentence is
pronounced upon him
Impartial trial – the accused is entitled to the “cold neutrality of an impartial

judge”. It is an element of due process.
• Public trial: The attendance at the trial is open to all irrespective of their
relationship to the accused. However, if the evidence to be adduced is
“offensive to decency or public morals”, the public may be excluded.
• The right of the accused to a public trial is not violated if the hearings are
conducted on Saturdays, either with the consent of the accused or if failed
to object thereto.
• The right to be present covers the period from arraignment to

promulgation of sentence.
• General Rule: the accused may waive the right to be present at the trial
by not showing up. However, the court can still compel the attendance of
the accused if necessary for identification purposes.
▪ Exception: If the accused, after arraignment, has stipulated that

he is indeed the person charged with the offense and named in the
information, and that any time a witness refers to a name by which
he is known, the witness is to be understood as referring to him.
• Trial in Absentia is mandatory upon the court whenever the accused has
been arraigned.
• There is also Promulgation in Absentia
• While the accused is entitled to be present during promulgation of

judgment, the absence of his counsel during such promulgation does not
affect its validity
• The trial in absentia does not abrogate the provisions of the Rules of Court
regarding forfeiture of bail bond if the accused fails to appear at his trial.
• A court has the power to prohibit a person admitted to bail from leaving the
Philippines as this is a necessary consequence of the nature and function
of a bail bond
6. The Right to Meet the Witnesses Face to Face
Purposes of the Right to Meet the Witnesses Face to Face
(1) To afford the accused an opportunity to cross-examine the witness
(2) To allow the judge the opportunity to observe the deportment of the
witness
Principal Exceptions to this Right
(1) The admissibility of “dying declarations”

(2) Trial in absentia under Section 14(2)
• With respect to child testimony
• Testimony of witness who was not cross-examined is not admissible as

evidence for being hearsay.
• If a prosecution witness dies before his cross-examination can be

completed, his direct testimony cannot be stricken off the record, provided
the material points of his direct testimony had been covered on cross.
• The right to confrontation may be waived.

7. Compulsory Process
• The accused is entitled to the issuance of subpoena ad testificandum and

subpoena duces tecum for the purpose of compelling the attendance of
witness and the production of evidence that he may need for his defense.
• Failure to obey – punishable as contempt of court.
• There are exceptional circumstances when the defendant may ask for
conditional examination, provided the expected testimony is material of
any witness under circumstances that would make him unavailable from
attending the trial.
8. Trial in Absentia
Trial in Absentia May Only Be Allowed If the Following Requisites Are Met:
(1) the accused has been validly arraigned;
(2) Accused has already been arraigned;
(3) Accused has been duly notified of the trial; and
(4) His failure to appear is unjustifiable.
G. HABEAS CORPUS
Section 15, Art. III. 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.
Writ of Habeas Corpus – is a written order issued by a court, directed to a

person detaining another, commanding him to produce the body of the prisoner
at a designated time and place with the day and cause of his caption and
detention.
Privilege of the Writ of Habeas Corpus – the right to have an immediate

determination of the legality of the deprivation of physical liberty.
The President may suspend the privilege:

(1) in cases of invasion or rebellion

(2) when public safety requires it.
• Habeas corpus lies only where the restraint of a person's liberty has been
judicially adjudged to be illegal or unlawful (In re: Sumulong)
• The writ is a prerogative writ employed to test the validity of detention

• To secure the detainee’s release
• The action shall take precedence in the calendar of the court and must be
acted upon immediately
When available (enumeration not exclusive)
 restoration of liberty of an individual subjected to physical restraint
 may be availed of where, as a consequence of a judicial proceeding:
1. there has been deprivation of a constitutional right resulting in the

restraint of the person
2. the court has no jurisdiction to impose the sentence, or
3. an excessive penalty has been imposed, since such sentence is
void as to the excess.
 May be extended to cases by which rightful custody of any person is

withheld from the person entitled thereto
 When moral restraint is exerted (Caunca vs Salazar)
 Right was accorded a person was sentenced to a longer penalty than was
subsequently meted out to another person convicted of the same offense.
(Gumabon vs Director of Prisons)
 Unlawful denial of bail
When not available (enumeration not exclusive)
 the person alleged to be restrained is in the custody of an officer under a

process issued by the court which has jurisdiction to do so
 desaparecidos (disappeared persons) – persons could not be found;

remedy is to refer the matter to Commission on Human Rights
Procedure
Need to comply with writ; disobedience thereof constitutes contempt
Who may suspend the privilege

The President
Grounds for Suspension of the privilege
1. invasion or rebellion
2. when public safety requires it
Section 18, Art. VII. The President shall be the Commander-in-Chief 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.
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 or the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.
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.
The suspension of the privilege of the writ 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, any person thus arrested
or detained shall be judicially charged within three days, otherwise he shall
be released.
Lansang doctrine (Lansang vs Garcia): SC has the power to inquire into the
factual basis of the suspension of the privilege of the writ. It is written in Article
VII, Sec. 18 of the Constitution.
H. 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 killings and enforced disappearances or threats
thereof.
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:
1. Any member of the immediate family, namely: the spouse, children

and parents of the aggrieved party;
2. 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
3. Any concerned citizen, organization, association or institution, if
there is no known member of the immediate family or relative 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. 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.
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.
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:
1. The personal circumstances of the petitioner;

2. 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;
3. 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;
4. 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;
5. 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
6. The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs.
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.
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. 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.
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:
1. 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;
2. 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;
3. All relevant information in the possession of the respondent
pertaining to the threat, act or omission against the aggrieved party;
and
4. 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;
v. to identify and apprehend the person or persons involved in the
death or disappearance; and
vi. to bring the suspected offenders before a competent court.
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:
1. Motion to dismiss;
2. Motion for extension of time to file return, opposition, affidavit,
position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for
reconsideration of interlocutory orders or interim relief orders; and
12. 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.
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 immediate family, in accordance with guidelines
which it shall issue.
The accredited persons and private institutions shall comply with the rules
and conditions that may be imposed by the court, justice or judge.
(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.
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. 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.
SEC. 17. Burden of Proof and Standard of Diligence Required. The parties
shall establish their claims by substantial evidence.
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.
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.
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.
After consolidation, the procedure under this Rule shall continue to apply to the
disposition of the reliefs in the petition.
SEC. 24. Substantive Rights. This Rule shall not diminish, increase or modify
substantive rights recognized and protected by the Constitution.
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.
I. SPEEDY DISPOSATION OF CASES
Section 16, Art. III. All persons shall have the right to a speedy disposition
of their cases before all judicial, quasi-judicial, or administrative bodies.
Speedy Trial vs. Speedy Disposition of Cases
Speedy trial Speedy disposition of cases

Refers to trial phase only Refers to disposition of cases (All phases)
Criminal cases only Judicial, quasi-judicial or admin. Proceedings
• Periods for decision for courts (Sec. 15, Art. VIII)

• SC: 24 months from submission
• All lower collegiate courts: 12 months unless reduced by SC

• All other lower courts: 3 months
Periods for decision for Constitutional Commissions (Sec 7, Art. IX-A)

60 days from date of submission for decision or resolution
Factors considered in determining whether the right is violated
1. Length of delay
2. Reason of delay
3. Assertion of the right or failure to assert it
4. Prejudice caused by delay
Remedy in case there has been unreasonable delay in resolution of a case:

Dismissal through mandamus
J. RIGHT AGAINST SELF-INCRIMINATION
Section 17, Art. III. No person shall be compelled to be a witness against

himself.
Based on:
1. Humanitarian reasons – it is intended to prevent the State, with all
its coercive powers, from extracting from the suspect testimony that
may convict him;
2. Practical reasons – a person subjected to such compulsion is

likely to perjure himself for his own protection
Applicable to:
• Criminal prosecutions, government proceedings, including civil actions

and administrative or legislative investigations
Transactional Immunity Statute – testimony of any person or whose

possession of documents or other evidence necessary or convenient to
determine the truth in any investigation conducted is immune from criminal
prosecution for an offense to which such compelled testimony relates.
Use and Fruit Immunity Statute – prohibits the use of the witness' compelled
testimony and its fruit in any manner in connection with the criminal prosecution
for an offense to which such compelled testimony relates.
May be Claimed by:
1. Accused – at all times; there is a reasonable assumption that the

purpose of his interrogation will be to incriminate him
2. Witness – only when an incriminating question is asked, since the
witness has no way of knowing in advance the nature or effect of
the question to be put to him
- He cannot invoke right to self-incrimination when:

a) The question is relevant and otherwise allowed even
if the answer may tend to incriminate him or subject
him to civil liability
b) the question relates to past criminality for which the
witness can no longer be prosecuted
c) he has been previously granted immunity under a
validly enacted statute
• Only natural persons can invoke this right. Judicial persons are subject to
the visitorial powers of the state in order to determine compliance with the
conditions of the charter granted to them.
Scope:
(1) Testimonial Compulsion
• In Villaflor v. Summers, since the “kernel of the privilege” was the

prohibition of “testimonial compulsion”, the Court was willing to compel a
pregnant woman accused of adultery to submit to the indignity of being
tested for pregnancy. Being purely a mechanical act, it is not a violation of
her constitutional right against self-incrimination.
(2) Production of Documents, Papers and Chattels. Exception: when books of

accounts are to be examined in the exercise of police power and power of
taxation.
• What is prohibited is the use of physical or moral compulsion to extort

communication from the witness or to otherwise elicit evidence which
would not exist were it not for the actions compelled from the witness.
• The right does not prohibit the examination of the body of the
accused or the use of findings with respect to his body as physical
evidence. Hence, the fingerprinting of an accused would not violate the
right against self-incrimination. However, obtaining a sample of the
handwriting of the accused would violate this right if he is charged for
falsification.
• The accused cannot be compelled to produce a private document in his

possession which might tend to incriminate him. However, a third person
in custody of the document may be compelled to produce it.
Right May be Waived:
- Either:
a) Directly, or
b) By failure to invoke it PROVIDED the waiver is certain and
unequivocal and intelligently and willingly made.
Section 18 (1), Art. III. No person shall be detained solely by reason of his
political beliefs and aspirations.
J. RIGHT AGAINST INVOLUNTARY SERVITUDE
Section 18 (2), Art. III. No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party shall have been duly
convicted.
Involuntary Servitude – the condition of one who is compelled by force,

coercion, or imprisonment, and against his will, to labor for another, whether he is
paid or not.
Involuntary Servitude Includes
(1) Slavery –civil relation in which one man has absolute power over the life,
fortune and liberty of another;
(2) Peonage – a condition of enforced servitude by which the servitor is

restrained of his liberty and compelled to labor in liquidation of some debt
or obligation, real or pretended, against his will
General Rule
No involuntary service in any form shall exist.
Exceptions
1. Punishment for a crime for which the party shall have been duly
convicted (Sec. 18, Art. III)
2. Personal military or civil service in the interest of national defense

(Sec. 4, Art. II)
3. Naval enlistment – remain in service until the end of voyage so that the
crew would not desert the ship, making it difficult for the owners to recruit
new hands to continue the voyage (Robertson vs Baldwin)
4. Posse comitatus – in pursuit of persons who might have violated the

law, the authorities might command all male inhabitants of a certain age
to assist them (US vs Pompeya)
5. Return to work order in industries affected with public interest

(Kapisanan ng Manggagawa sa Kahoy vs Gotamco)
6. Patria Potestas – unemancipated minors are obliged to obey their

parents so long as they are under parental power and to observe respect
and reverence to them always (Art. 311, Civil Code)
US vs An Act providing for the method by which the people of the town
Pompeya may be called upon to render assistance for the protection of the
public and the preservation of peace and good order is
constitutional. It was enacted in the exercise of the police power of
the state and does not violate the constitutional prohibition on
involuntary servitude.
Pollock No indebtedness warrants a suspension of the right to be free from
vs compulsory service, and no state can make the quitting of work
Williams any component of a crime, or make criminal sanctions available for
holding unwilling persons to labor.
K. CRUEL AND INHUMAN PUNISHMENT

1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman

punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua.
2. The employment of physical, psychological, or degrading punishment

against any prisoner or detainee or the use of substandard or inadequate
penal facilities under subhuman conditions shall be dealt with by law.
When is a penalty “cruel, degrading and inhuman”?
(1) A penalty is cruel and inhuman if it involves torture or lingering suffering.

Ex. Being drawn and quartered.
(2) A penalty is degrading if it exposes a person to public humiliation. Ex.

Being tarred and feathered, then paraded throughout town.
Standards Used
(1) The punishment must not be so severe as to be degrading to the dignity of
human beings.
(2) It must not be applied arbitrarily.
(3) It must not be unacceptable to contemporary society
(4) It must not be excessive, i.e. it must serve a penal purpose more
effectively than a less severe punishment would.
Excessive Fine
• A fine is excessive, when under any circumstance, it is disproportionate to

the offense.
Note: Fr. Bernas says that the accused cannot be convicted of the crime to
which the punishment is attached if the court finds that the punishment is cruel,
degrading or inhuman.
Reason: Without a valid penalty, the law is not a penal law.
L. NON IMPRISONMENT FOR DEBT
Section 20, Art. III. No person shall be imprisoned for debt or non-payment
of a poll tax.
 For humanitarian reasons… an added guaranty of the liberty of persons

against their incarceration for the enforcement of purely private debts
because of their misfortune of being poor
Debt – any civil obligation arising from a contract, expressed or implied, resulting
in any liability to pay in money.
Scope of guaranty against imprisonment for non-payment of debt
• If an accused fails to pay the fine imposed upon him, this may result in his
subsidiary imprisonment because his liability is ex delicto and not ex
contractu.
A FRAUDULENT debt may result in the imprisonment of the debtor if:
1. The fraudulent debt constitutes a crime such as estafa; and

2. The accused has been duly convicted.
POLL TAX
General Rule: Non-payment of taxes is punishable with imprisonment.

Exception: Failure to pay a poll tax
Poll tax – a specific sum levied upon every person belonging to a certain class
without regard to his property or occupation.
• A tax is not a debt since it is an obligation arising from law. Hence, its
non-payment maybe validly punished with imprisonment.
M. DOUBLE JEOPARDY
Section 21, Art. III. 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.
Double jeopardy – when a person was charged with an offense and the case
was terminated by acquittal or conviction or in any other manner without his
consent, he cannot again be charged with the same or identical offense.
Requisites of Double Jeopardy
1. valid complaint or information

2. filed before a competent court
3. to which defendant has pleaded, and
4. defendant was previously acquitted or convicted or the case dismissed or
otherwise terminated without his express consent.
Two (2) Kinds of Double Jeopardy
(1) When a person is put twice in jeopardy of punishment for the same
offense (1st sentence of Section 21)
(2) When a law and an ordinance punish the same act (2nd sentence of
Sec. 21)
Same Offense
Requisites for a valid defense of double jeopardy:
(1) First jeopardy must have attached prior to the second.

(2) The first jeopardy must have terminated.
(3) The second jeopardy must be for the same offense as that in the first.
When does jeopardy ATTACH: (1st requisite)
(a) A person is charged

(b) Under a complaint or information sufficient in form and substance to

sustain a conviction
(c) Before a court of competent jurisdiction
(d) After the person is arraigned
(e) Such person enters a valid plea.
When does jeopardy NOT attach:

(a) If information does not charge any offense
(b) If, upon pleading guilty, the accused presents evidence of complete self-
defense, and the court thereafter acquits him without entering a new plea
of not guilty for accused.
(c) If the information for an offense cognizable by the RTC is filed with the
MTC.
(d) If a complaint filed for preliminary investigation is dismissed.
When does first jeopardy TERMINATE: (2ND REQUISITE)
1) Acquittal
2) Conviction
3) Dismissal W/O the EXPRESS consent of the accused
4) Dismissal on the merits.
Examples of termination of jeopardy:

(a) Dismissal based on violation of the right to a speedy trial. This amounts to
an acquittal.
(b) Dismissal based on a demurrer to evidence. This is a dismissal on the

merits.
(c) Dismissal on motion of the prosecution, subsequent to a motion for

reinvestigation filed by the accused.
(d) Discharge of an accused to be a state witness. This amounts to an

acquittal.
When can the PROSECUTION appeal from an order of dismissal:

(a) If dismissal is on motion of the accused. Exception: If motion is based on

violation of the right to a speedy trial or on a demurrer to evidence.
(b) If dismissal does NOT amount to an acquittal or dismissal on the merits
(c) If the question to be passed upon is purely legal.
(d) If the dismissal violates the right of due process of the prosecution.
(e) If the dismissal was made with grave abuse of discretion.
What are considered to be the “SAME OFFENSE”:
(a) Exact identity between the offenses charged in the first and second cases.
(b) One offense is an attempt to commit or a frustration of the other offense.
(c) One offense is necessarily included or necessary includes the other.
• Note: where a single act results in the violation of different laws or

different provisions of the same law, the prosecution for one will not bar
the other so long as none of the exceptions apply.
Same Act
• Double jeopardy will result if the act punishable under the law and the
ordinance are the same. For there to be double jeopardy, it is not
necessary that the offense be the same.
Supervening Facts
1) Under the Rules of Court, a conviction for an offense will not bar a
prosecution for an offense which necessarily includes the offense charged
in the former information where:
(a) The graver offense developed due to a supervening fact arising

from the same act or omission constituting the former charge.
(b) The facts constituting the graver offense became known or were
discovered only after the filing of the former information.
(c) The plea of guilty to the lesser offense was made without the
consent of the fiscal and the offended party.
2) Under (1)(b), if the facts could have been discovered by the prosecution
but were not discovered because of the prosecution’s incompetence, it
would not be considered a supervening event.
Effect of appeal by the accused

• If the accused appeals his conviction, he WAIVES his right to plead double
jeopardy. The whole case will be open to review by the appellate court.
Such court may even increase the penalties imposed on the accused by
the trial court.
• In Almario v. CA, the Court held that the delays were not unreasonable;
hence, there was no denial of the right to speedy trial. Second, the
dismissal was with the consent of the accused. Hence, reinstatement did
not violate the right against double jeopardy.
N. EX POST FACTO LAWS AND BILL OF ATTAINDER
Section 22, Art. III. No ex post facto law or bill of attainder shall be enacted.
Kinds of Ex Post Facto Laws
(1) One which makes an action done before the passing of the law, and which
was innocent when done, criminal, and punishes such action.
(2) One which aggravates the crime or makes it greater than when it was
committed.
(3) One which changes the punishment and inflicts a greater punishment than
that which the law annexed to the crime when it was committed.
(4) One which alters the legal rules of evidence and receives less testimony
than the law required at the time of the commission of the offense in order
to convict the accused.
(5) One which assumes to regulate civil rights and remedies only BUT, in
effect, imposes a penalty or deprivation of a right, which, when done, was
lawful.
(6) One which deprives a person accused of a crime of some lawful protection
to which he has become entitled such as the protection of a former
conviction or acquittal, or a proclamation of amnesty. (In Re Kay Villegas
Kami)
Characteristics of Ex Post Facto Law
(a) Must refer to criminal matters

(b) Prejudicial to the accused
(c) Retroactive in application
• In Lacson v. Exec. Sec., the Court held that in general, ex post facto law
prohibits retrospectivity of penal laws. RA No. 8249 is not a penal law....
The contention that the new law diluted their right to a two-tiered appeal is
incorrect because “the right to appeal is not a natural right but statutory in
nature that can be regulated by law. RA 8249 pertains only to matters of
procedure, and being merely an amendatory statute it does not partake
the nature of ex post facto law.”
• In Calder v. Bull, the Court said that when the law alters the legal rules of
evidence or mode of trial, it is an ex post facto law. Exception: (Beazell v.
Ohio) unless the changes operate only in limited and unsubstantial
manner to the disadvantage of the accused.
• In Bayot v. Sandiganbayan, the accused was convicted by the

Sandiganbayan for estafa on May 30, 1980. Accused appealed. On
March 16, 1982, BP Blg. 195 was passed authorizing suspension of public
officers against whom an information may be pending at any stage. On
July 22, 1982, the court suspended the accused. The Supreme Court
ruled that Art. 24 of the Revised Penal Code that suspension of an officer
during trial shall not be considered a penalty. The suspension in the case
is merely a preventive and not a penal measure which therefore does not
come under the ex post facto prohibition.
BILL OF ATTAINDER
Bill of attainder – is a legislative act which inflicts punishment without judicial trial.
If the punishment be less than death, the act is termed a bill of pains and
penalties.” (Cummings v. Missouri)
(All Bills of Attainder are Ex Post Facto Laws)
Elements of Bill of Attainder
1. There must be a law.

2. The law imposes a penal burden on a named individual or easily
ascertainable members of a group.
3. There is a direct imposition of penal burden without judicial trial.
O. PRIVACY OF COMMUNICATION
Section 3(1), Art. III. 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.
Forms of Correspondences and Communication Covered
1. letters
2. messages
3. telephone calls
4. telegrams, and
5. the likes
Intrusion into the Privacy of Communication May Be Allowed
1. Upon lawful order of the court, or

2. When public safety or order requires otherwise as prescribed by law.
• When intrusion is made without a judicial order, it would have to be based

upon a government official's assessment that public safety and order
demand such intrusion.
Public Order and Safety – the security of human lives, liberty, and property
against the activities of invaders, insurrectionists, and rebels.
• RA No. 4200 known as the Anti-Wiretapping Law provides penalties for

specific violations of private communication. Under Sec. 3 of the Act
allows court-authorized taps, under specific conditions for 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 rebellion, sedition, conspiracy to commit sedition, inciting
to sedition, kidnapping.
P. RIGHT TO PRIVACY
• In Ople v. Torres, the right to privacy being a fundamental right, the

government has the burden of proof to show that a statute (AO no. 308 in
this case) is justified by some compelling state interest and that it is
narrowly drawn.
“In no uncertain terms, we also underscores that the right to privacy does not bar
all incursions into individual privacy. The right is not intended to stifle scientific
and technological advancements that enhance public service and the common
good. It merely requires that the law be narrowly focused.” Intrusions into the
right must be accompanied by proper safeguards and well-defined standards to
prevent unconstitutional invasions.
• In Roe v. Wade, the Court held that abortions are permissible for any
reason a woman chooses, up until the "point at which the fetus becomes
‘viable,’ that is, potentially able to live outside the mother's womb.
(a) The Constitution does not explicitly mention any right to privacy but
the Court has recognized that such right does exist in the
Constitution. The Court deemed abortion a fundamental right under
the United States Constitution, thereby subjecting all laws
attempting to restrict it to the standard of strict scrutiny. Where
certain “fundamental rights” are involved, the Court has held that
regulation limiting these rights may be justified only by a
“compelling state interest.”
(b) The right to privacy is broad enough to encompass a woman’s
decision whether or not to terminate her pregnancy. But a woman’s
right to terminate her pregnancy at whatever time, in whatever way
and for whatever reason she alone chooses is NOT absolute. While
recognizing the right to privacy, the Court also acknowledges that
some state regulation in areas protected by a right is appropriate. A
state may properly assert important interests in safeguarding
health, in maintaining medical standards, and in protecting potential
life.
Q. WRIT OF HABEAS DATA
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.
• It is governed by The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-
SC – full text), which was approved by the Supreme Court on 22 January
2008. That Rule shall not diminish, increase or modify substantive rights.
Constitutional Basis
Section 5(5), Art. VIII. 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 under-privileged. 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
quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court.
• The Rule takes effect on 2 February 2008, following its publication in three
(3) newspapers of general circulation.
Who may file a petition for the issuance of a writ of habeas data?
• General rule: The aggrieved party.
• Exceptions: In cases of extralegal killings and enforced disappearances,

the petition may be filed by:
(1) Any member of the immediate family of the aggrieved party,

namely: the spouse, children and parents; or
(2) 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.
Where can the petition be filed?
(1) 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.
(2) Supreme Court;
(3) Court of Appeals; or
(4) Sandiganbayan, when the action concerns public data files of government
offices.
• No docket and other lawful fees shall be required from an indigent

petitioner. The petition of the indigent shall be docketed and acted upon
immediately, without prejudice to subsequent submission of proof of
indigency not later than 15 days from the filing of the petition.
The verified written petition shall allege the following:
(a) The personal circumstances of the petitioner and the respondent;
(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;
(c) The actions and recourses taken by the petitioner to secure the data or
information;
(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;
(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. In case of threats, the relief may include a prayer for an
order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and equitable.
When is the writ of habeas data issued?

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 its 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 to 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.
• 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.
• The writ shall be served upon the respondent by the officer or 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.
• The respondent shall file a verified written return together with supporting
affidavits within five (5) work days from service of the writ, which period
may be reasonably extended by the Court for justifiable reasons.
Contents of Return
(a) The lawful defenses such as national security, state secrets, privileged
communication, 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.

• When 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.
• Instead of having the hearing in open court, it can be done in chambers

when 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.
• 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.
• Upon its finality, the judgment shall be enforced by the sheriff or any lawful
officer as may be designated by the court, justice or judge within five (5)
work days.
• When a criminal action has been commenced, no separate petition for the
writ shall be filed, but the reliefs under the writ shall be available by motion
in the criminal case, and the procedure under this Rule shall govern the
disposition of the reliefs available under the writ of habeas data.
• 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.
• The introduction of the Writ of Habeas Data into Philippine Justice System
complemented several writs used in the Philippines. These writs which
protect the rights of the individual against the state are as follows:
• The Writ of Habeas Corpus – a writ ordering a person who

detained another to produce the body and bring it before a judge or
court. Its purpose is to determine whether the detention is lawful or
not;
• The Writ of Mandamus – a writ ordering a governmental agency to

perform a ministerial function;
• The Writ of Prohibition – a writ ordering a person to prohibit the

commission of an illegal act;
• The Writ of Certiorari – a writ ordering a person to correct an

erroneous act committed with grave abuse of discretion; and
• The Writ of Amparo – a writ designed to protect the most basic

right of a human being. These are the right to life, liberty and
security guaranteed by the Constitution.
R. ACCESS TO PUBLIC INFORMATION
Section 7, Art. III. 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.
• the citizenry has a right to know what is going on in the country and in his
government so he can express his views thereon knowledgeably and
intelligently.
Rights Guaranteed
1. Right to information on matters of public concern ; and
2. Corollary right of access to official records and documents.
• These are political rights that are available to citizens only (Bernas,
Philippine Constitution, p. 85).
Limitations: “As may be provided by law”
Valmonte v The people have a right to access official records but they can’t
Belmonte compel custodians of official records to prepare lists, abstracts,
1989 summaries and the like, such not being based on a
demandable legal right.
Then right to privacy belongs to the individual and must be

invoked by the individual. A public agency like the GSIS
cannot invoke the right to privacy.

Baldoza v Judges cannot prohibit access to judicial records. However, a
Dimaano judge may regulate the manner in which persons desiring to
1976 inspect, examine or copy records in his office, may exercise
their rights.
Legaspi v Personal interest is not required in asserting the right to
Civil Service information on matters of public concern.
Commission What matters constitute “public concern” should be determined
1987 by the court on a case to case basis.
Chavez v Public concern (def.) – writings coming into the hands of public
PCGG officers in connection with their official functions
1998 Ill-gotten wealth is, by its nature, a matter of public concern.
Privileged communication: (1) national security, (2) trade
secrets, (3) criminal matters pending in court,
Echegaray SC held that making the Lethal Injection Manual inaccessible
case to the convict was unconstitutional.
S. FREEDOM OF EXPRESSION
Freedom of Speech – “at once the instrument and the guaranty and the bright
consummate flower of all liberty.” (Wendell Philips)
Scope
• Freedom of Expression is available only insofar as it is exercised for the
discussion of matters affecting the public interest. Purely private interest
matters do not come within the guaranty (invasion of privacy is not
sanctioned by the Constitution).
• covers ideas that are acceptable to the majority and the unorthodox view.
(One of the functions of this freedom is “to invite dispute” – US Supreme
Court; “I may not agree with what you say, but I will defend to the death
your right to say it.” - Voltaire)
• The freedom to speak includes the right to silent. (This freedom was
meant not only to protect the minority who want to talk but also to benefit
the majority who refuse to listen. - Socrates)
Importance
The ultimate good desired is better reached by a free trade in ideas – that the
best test of truth is the power of the thought to get itself accepted in the
competition of the market; and that truth is the only ground upon which their
wishes safely can be carried out.
Modes of Expression
(a) Oral and written language

(b) Symbolisms (e.g. bended knee, salute to the flag, cartoons)
Elements of Freedom of Expression
(1) Freedom from prior restraint or censorship
(2) Freedom from subsequent punishment
Freedom From Previous Restraint or Censorship
Section 4, Art. III. 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.
Censorship – conditions the exercise of freedom of expression upon the prior

approval of the government. Only those ideas acceptable to it are allowed to be
disseminated.
• Censor, therefore, assumes the role of arbiter for the people, usually
applying his own subjective standards in determining the good and the
not. Such is anathema in a free society.
• In New York Times v. United States, the Court held that prohibition of
“prior restraint” is not absolute, although any system of prior restraint
comes to court bearing a heavy presumption against its constitutionality.
• In Near v. Minnesota, the exceptions to the prohibition of “prior restraint is

enumerated by the Court, thus: “When a nation is at war, many things that
might be said in time of peace are such a hindrance to its effort .... No
one would question but that government might prevent actual obstruction
to its recruiting service or the publication of sailing dates of transports or
the number or location of troops.... The security of the community life may
be protected against incitements to acts of violence and the overthrow by
force of orderly government.”
• In SWS v. Comelec, Sec. 1 of RA No. 9006, the Fair Election Act says
that surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates shall
not be published seven days before an election. The provision is
challenged as violative of freedom of expression. The Court held that as
prior restraint, the rule is presumed to be invalid. The power of the
Comelec over media franchises is limited to ensuring “equal opportunity,
time, space and the right to reply” as well as to reasonable rates of
charges for the use of media facilities for “public information and forums
among candidates.” Here the prohibition of speech is direct, absolute and
substantial. Nor does the rule pass the O'Brien test for content related
regulation because (1) it suppresses one type of expression while
allowing other types such as editorials, etc. and (2) the restriction is
greater than what is needed to protect government interest because the
interest can be protected by narrower restriction such as subsequent
punishment.
• In Re: Request for Radio-TV Coverage of the Estrada Trial, the Court
held that the propriety of the Estrada trial involves the weighing out of the
constitutional guarantees of freedom of the press and the right to public
information, on the one hand, and the fundamental rights of the accused,
on the other hand, along with the constitutional power of a court to control
its proceedings in ensuring a fair and impartial trial... With the possibility
of losing not only the precious liberty but also the very life of an accused, it
behooves all to make absolutely certain that an accused receives a verdict
solely on the basis of a just and dispassionate judgment...”
• The doctrine of freedom of speech was formulated primarily for the

protection of “core speech,” i.e., speech which communicates political,
social or religious ideas. Commercial speech, however, does not.
Grosjean vs There need not be total suppression; even restriction of

American circulation constitutes censorship
Press Co.
Burgos vs
the search, padlocking and sealing of the offices of
Chief of Staff
Metropolitan Mail and We Forum by military authorities,
resulting in the discontinuance of publication of the
newspapers, was held to be prior restraint
Mutuc vs the COMELEC prohibition against the use of taped jingles in
COMELEC the mobile units used in the campaign was held to be
unconstitutional, as it was in the nature of censorship
Sanidad vs the Court annulled the COMELEC prohibition against radio

COMELEC commentators or newspaper columnists from commenting on
the issues involved in the scheduled plebiscite on the organic
law creating the Cordillera Autonomous Region as an
unconstitutional restraint on freedom of expression
But...
Gonzales vs the Court upheld the validity of the law which prohibited,
COMELEC except during the prescribed election period, the making of
speeches, announcements or commentaries for or against
the election of any party or candidate for public office.
JUSTIFICATION: the inordinate preoccupation of the people
with politics tended toward the neglect of the other serious
needs of the nation and the pollution of its suffrages.
Iglesia ni Cristo The Board of Review for Motion Pictures and Television
vs CA (BRMPT) has the authority to review the petitioner's television
program.
However, the Board acted with grave abuse of discretion
when it gave an “X-rating” to the TV program on the ground of
“attacks against another religion.” Such a classification can
be justified only if there is a showing that the tv program
would create a clear and present danger of an evil which the
State ought to prevent.
Primicias vs The respondent mayor could only reasonably regulate, not
Fugosos absolutely prohibit, the use of public places for the purpose
indicated.
National Press the Supreme Court upheld the validity of Sec. 11(b), RA 6646,
Club vs which prohibited any person making use of the media to sell
COMELEC or to give free of charge print space or air time for campaign
or other political purposes except to the COMELEC. This was
held to be within the power of the COMELEC to supervise the
enjoyment or utilization of franchises for the operation of
media of communication and information, for the purpose of
ensuring equal opportunity, time and space, and the “right to
reply,” as well as uniform and reasonable rates of charges for
the use of such media facilities.
Osmeňa vs SC reaffirmed validity of RA 6646 as a legitimate exercise of
COMELEC police power. The regulation is unrelated to the suppression
of speech, as any restriction on freedom of expression
occasioned thereby is only incidental and no more than is
necessary to achieve the purpose of promoting equality.
NOTE: This is not inconsistent with the ruling in PPI vs
COMELEC, because in the latter, SC simply said that
COMELEC cannot procure print space without paying just
compensation.
Adiong vs COMELEC's resolution prohibiting the posting of decals, and
COMELEC stickers in mobile units like cars and other moving vehicles
was declared unconstitutional for infringmenet of freedom of
expression.
Besides, the constitutional objective of giving the rich and
poor candidates' equal opportunity to inform the electorate is
not violated by the posting of decals and stickers on cars and
other vehicles.
“Overbreadth doctrine” = prohibits the government from
achieving its purpose by means that weep unnecessarily
broadly, reaching constitutionally protected as well as
unprotected activity; the government has gone too far; its
legitimate interest can be satisfied without reaching so
broadly into the area of protected freedom.
Gonzales vs petitioner questioned the classification of the movie as “for
katigbak adults only.” the petition was dismissed because the Board
did not commit grave abuse of discretion.
Freedom From Subsequent Punishment
Section 18(1), Art. III. No person shall be detained solely by reason of his
political beliefs and aspirations.
• Without this assurance, the individual would hesitate to speak for fear that
he might be held to account for his speech, or that he might be provoking
the vengeance of the officials he may have criticized.
• Not absolute; subject to police power and may be regulated (freedom of

expression does not cover ideas offensive to public order)
Right of students to free speech in school premises not absolute
General Rule: a student shall not be expelled or suspended solely on the basis of
articles he has written
Exception: when the article materially disrupts class work or involves substantial
disorder or invasion of rights of others, the school has the right to discipline its
students (in such a case, it may expel or suspend the student)
Tests of valid governmental interference

(criteria in determining the liability of the individual for ideas expressed by him) :
1. Clear and present danger rule

2. Dangerous tendency doctrine
3. Balance of interest test
1. Clear and Present Danger Rule – when words are used in such
circumstance and of such nature as to create a clear and present danger that will
bring about the substantive evil that the State has a right to prevent. (As
formulated by Justice Holmes in Schenck v. United States)
Clear – causal connection with the danger of the substantive evil arising from the
utterance
Present – time element; imminent and immediate danger (the danger must not
only be probable but also inevitable). (Gonzales v. Comelec)
• In ABS-CBN v. Comelec, the Comelec banned “exit polls” in the exercise

of its authority to regulate the holders of media franchises during the
lection period. It contends that “an exit poll has the tendency to sow
confusion considering the randomness of selecting interviewees....
However, the Court said that exit polls constitute an essential part of the
freedoms of speech and of the press. Hence, the Comelec cannot ban
totally in the guise of of promoting clean, honest, orderly and credible
elections. The ban does not satisfy the clear and present danger rule
because the evils envisioned are merely speculative.
Terminiello vs City of • (speech inside an auditorium with 800

Chicago persons)
• speech is often provocative and
challenging. hence, “fighting words” are not
sufficient to convict a person absent a clear
and present danger of a serious substantive
evil
Primicias vs Fugosos The respondent mayor could only reasonably
regulate, not absolutely prohibit, the use of
public places for the purpose indicated.
• the condition of Manila at that time did
not justify the mayor's fears. there was no
clear and present danger.
• decided in 1947
Navarro vs Villegas (compare with Primicias case)

SC sustained respondent mayor's act of
refusing to issue a permit enabling students to
hold a public rally. Mayor feared the rally would
result to public disorder.
- decided in 1970
Reyes vs Bagatsing the denial of a permit to hold a public rally was
invalid as there was no showing of the
probability of a clear and present danger of an
evil that might arise as a result of the meeting.
The burden of proving such eventually rests on
the Mayor.
2. Dangerous Tendency Doctrine – if the words uttered create a dangerous

tendency of an evil which the State has the right to prevent.(Cabansag v.
Fernandez)
• Justice Holmes, critique of this doctrine: Every idea is an incitement. If

believed, it is acted on unless some other belief outweighs it, or some
failure of energy stifles the movement at its birth.
Bayan vs Executive (f) the Calibrated Pre-emptive Response

Secretary Ermita Policy is null and void. Respondents are
enjoined from using it and to strictly observe
the requirements of maximum tolerance.
Cabansag vs Fernandez It is not necessary that some definite or
immediate acts of force or violence be
advocated. It is sufficient that such acts be
advocated in general terms.
A mere tendency toward the evil was enough.
People vs Perez Accused declared: “The Filipinos like myself
must use bolos for cutting off (Governor-
General) Wood's head for having
recommended a bad thing for the Filipinos, for
he has killed our independence.”
He was sentenced to jail.
3. Balance of Interest Test – when particular conduct is regulated in the interest

of public order, and the regulation results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is to determine which of the two
conflicting interests demands the greater protection under the circumstances
presented. (American Communications Association v. Douds)
CLEAR AND DANGEROUS BALANCE OF INTEREST

PRESENT DANGER TENDENCY RULE RULE
RULE
liberty is preferred Authority is preferred the issue is resolved in the
light of the peculiar
circumstances obtaining in
each particular case
• In Mutuc v. Comelec, the preferred freedom of expression calls all the

more the utmost respect when what may be curtailed is the dissemination
of information to make more meaningful the equally vital right of suffrage.
When faced with border line situations where freedom (of expression) to speak &
freedom to know (to information) are invoked against (vs.) maintaining free and
clean elections- the police, local officials and COMELEC should lean in favor of
freedom.
For in the ultimate analysis, the freedom of the citizen and the State’s power to
regulate are NOT ANTAGONISTIC.
There can be no free and honest elections if in the efforts to maintain them, the
freedom to speak and the right to know are unduly curtailed.
We examine the limits of regulation. J. Feliciano shows that regulation of election

campaign activity may not pass the test of validity if:
• It is too general in its terms
• Not limited in time and scope in its application
• It if restricts one’s expression of belief in a candidate or one’s opinion of
his or her qualifications,
• If it cuts off the flow of media reporting
• If the regulatory measure bears no clear and reasonable nexus with the
constitutionally sanctioned objective.
The regulation strikes at the freedom of an individual to express his preference

and, by displaying it on his car, to convince others to agree with him. A sticker
may be furnished by a candidate but once the car owner agrees to have it placed
in his private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else.
• The general rule for a speech to be considered libelous or defamatory is:

Libel = falsity + actual malice (uttered in full knowledge of its falsity or with
reckless disregard)
Exemption: When the subject of the supposed libelous or defamatory material is

a public officer. Defamatory words may be uttered against them and not be
considered libelous. The reason is that 1) they asked for it (“they voluntarily
thrust themselves into the public eye and therefore should not be thin-skinned”);
2) it’s a matter of public interest; and 3) public figures have the opportunity and
resources to rebut whatever is said against them. (Policarpio vs Manila Times); (
New York Times vs Sullivan)
• In New York Times v. Sullivan, The New York Times is protected under
the freedom of speech in publishing paid advertisement, no matter if it
contained erroneous claims and facts. Said publication was not
“commercial” in the sense that it communicated information, expressed
opinion, recited grievances, protested claimed abuses, and sought a
financial support on behalf of a movement. That the Times was paid for
publishing the advertisement is as immaterial as the fact that newspapers
and books are sold.
Newspapers do not forfeit the protection they enjoy under speech freedom just
because they publish paid advertisements. Otherwise, newspapers will be
discouraged from carrying “editorial advertisements” and so might shut off an
important outlet for the promulgation of information and ideas by persons who do
not themselves have access to publishing facilities.
On errors: “Some degree of abuse is inseparable from the proper use of every
thing; and in no instance is this truer than that of the press.” Erroneous statement
is inevitable in free debate.
Moreover, criticism of official conduct does not lose its constitutional protection
merely because it is effective criticism and hence diminishes their official
reputations. Presence of clear and present danger of substantive evil must be
proved. Actual Malice needs to be proved if a public official wants to recover
damages for a defamatory falsehood relating to his official conduct. “Even a false
statement may be deemed to make a valuable contribution to public debate since
it brings about the clearer perception and livelier impression of truth, produced by
its collision with error.”
• In Gonzales v. Kalaw-Katigbak, Kapit sa Patalim was classified as “For

Adults Only” by the MTRCB and was suggested to have certain portions
cut/ deleted.
Held: MTRCB do not have the power to exercise prior restraint. The power of the
MTRCB is limited to the classification of films.
The test to determine whether a motion picture exceeds the bounds of

permissible exercise of free speech and, therefore should be censored, is the
clear and present danger test.
Assembly and Petition
• The right to assemble is not subject to prior restraint and may not be
conditioned upon the prior issuance of a permit or authorization from the
government authorities. However, the right must be exercised in such a
way that it will not prejudice the public welfare. (De la Cruz v. Court of
Appeals)
• If assembly is to be held at a public place, permit for the use of such

place, and not for the assembly itself, may be validly required. Power of
local officials is merely for regulation and not for prohibition. (Primicias v.
Fugoso)
• Permit for public assembly is not necessary if meeting is to be held in: a

private place; the campus of a government-owned or operated educational
institution; and freedom park. (B.P. Blg. 880 - “The Public Assembly Act
of 1985')
• In JBL Reyes v. Bagatsing, retired J. JBL Reyes sought a permit from the
City of Manila to hold a march and rally on Oct 26, 1983 2-5pm from
Luneta to gates of US Embassy, and was denied by the Mayor due to
Vienna Convention Ordinance and fear of subversives may infiltrate the
ranks of the demonstrators.
Held: no justifiable ground to deny permit because Bill of Rights will prevail over
Vienna Ordinance should conflict exist (none proven because 500m not
measured from gate to US Embassy proper) and fear of serious injury cannot
alone justify suppression of free speech and assembly- only clear and present
danger of substantive evil.
Notes: the Court is called upon to protect the exercise of the cognate rights
to free speech and peaceful assembly…
Tanada vs SC sustained the petitioner's motion compelling the mayor of

Bagatsing Manila to issue a permit to hold a rally, but changed the
meeting place to Ugarte Field, a private park

Malabanan vs (several students were suspended for 1 year for conducting
Ramento demonstration in the premises of a university outside the area
permitted by the school authorities)
SC emphasized that the students did not shed their
constitutional rights to free speech at the schoolhouse gate,
and permitted the students to re-enroll and finish their
studies.
Villar vs TIP (several students were barred from re-enrollment for
participating in demonstrations)
while the Court upheld the academic freedom of institutions of
higher learning, which includes the right to set academic
standards to determine under what circumstances failing
grades suffice for expulsion of students, it was held that this
right cannot be utilized to discriminate against those who
exercise their constitutional rights to peaceful assembly.
Non vs Dames SC abandons its ruling in Alcuaz vs PSBA (that enrolment of
a student is a semester-to-semester contract and the school
may not be compelled to renew the contract) upholding the
primacy of freedom of expression, because the students do
not shed theur constitutionally protected rights at the school
gate.
PBM right to free assembly and petition prevails over economic
Employees rights.
Assoc vs PBM
Tests of a lawful assembly
(1) Purpose Test
• ideally, the test should be the purpose for which the assembly is held,
regardless of the auspices under which it is organized
(2) Auspices Test
• Evengelista vs Earnshaw: the mayor of Manila prohibited the members

of the Communist Party from holding any kind of meeting, revoking all
permits previously granted by him on the ground that the party had
been found (by the fiscal's office) to be an illegal association.
• In People v. Bustos, Bustos and several people sent complaint letters via
counsel against Justice of Peace Roman Punsalan, who charged them

with libel.
Held: Bustos and the others were acquitted,
Ratio: the guarantees of free speech and a free press include the right to criticize
judicial conduct. And these people did so in proper channels without undue
publicity, believing they were right.
Right of Association
Section 8, Art. III. 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.
The Right of Association is deemed embraced in freedom of expression because

the organization can be used as a vehicle for the expression of views that have a
bearing on public welfare.
SSS right to organize does not carry with it right to strike

Employees
Assoc vs CA
Victoriano vs
Elizalde Rope
Workers'
Union
Occena vs right of association was not violated where political parties
COMELEC were prohibited from participating in the barangay elections to
insure the non-partisanship of the candidates.
In re Edillon Bar integration does not compel the lawyer to associate with
anyone. Integration does not make a lawyer a member of any
group of which he is not already a member.
T. OBSCENITY CASES
US vs Kottinger SC acquitted accused who was charged of having

offered for sale pictures of half-clad members of
non-Christian tribes, holding that he had only
presented them in their native attire

People vs Go Pin Accused was convicted for exhibiting nude
paintings and pictures, notwithstanding his claim
that he had done so in the interest of art. SC,
noting that he has charged admission fees to the
exhibition, held that his purpose was commercial,
not merely artistic.
Pita vs CA SC declared that the determination of what is
obscene is a judicial function.
Miller vs California Test of Obscenity:
• whether the average person, applying
contemporary community standards, would
find that the work, taken as a whole,
appeals to the prurient interest
• whether the work depicts, in a patently
offensive way, sexual conduct specifically
defined by the applicable law
• whether the work, taken as a whole, lacks
serious literary, artistic, political or scientific
value
Justice Douglas, dissent: I do not think we, the

judges, were ever given the constitutional power to
make definitions of obscenity. Obscenity is a
hodgepodge.
- The Courts should not apply a national standard but the standard of the
community in which the material is being tested.
• In Reno v. ACLU, Communications Decency Act seek to protect minors

from obscenity on the internet.
• Held: overbroad, vague, unconstitutional.
• Notes: Sexual expression which is indecent but not obscene is protected

by the First Amendment.
The internet is not an “invasive” medium because it requires a series of

affirmative steps more deliberate and directed than merely turning a dial (tv or
radio).
There is no effective way to determine the identity or the age of a user who is
accessing material through email, mail exploders, newsgroups or chat rooms.
The Community Standard as applied to the internet means that any

communication available to a nationwide audience will be judged by the
standards of the community most likely to be offended by the message.
The effect of CDA is such that when a site is blocked for being “indecent” or
“patently offensive” the remaining content even if not indecent cannot be viewed
anymore. Imposition of requirements (adult identification number or credit card)
would bar adults who do not have a credit card and lack the resources to obtain
one from accessing any blocked material. It burdens communication among
adults.
The CDA is punitive, a criminal statute. The CDA is a content- based blanket
restriction on speech, and as such, cannot be properly analyzed as a form of
time, place and manner regulation.
• The CDA was replaced with Child Online Protection Act, 1. The scope had
been limited to material displayed only on the world wide web. Chat and
email were not included. The classification of content was limited as
“harmful to minors” using the Miller V California Test. So, it was upheld by
the Supreme Court.
Notes: the Court’s Jurisprudence teaches that it is the publisher’s responsibility

to abide by that community’s standards.
The fact that distributors of allegedly obscene materials may be subjected to

varying community standards in the various federal judicial districts into which
they transmit the materials does not render a federal statute unconstitutional.
- Criticism of Official Conduct

Lagunzad vs Sotto Vda. the Court granted the petition to restrain the public
de Gonzales exhibition of the movie “Moises Padilla Story,”
because it contained fictionalized embellishments.
Being a public figure does not destroy one's right
to privacy.
Ayer Productions vs the tribunal upheld the primacy of freedom of
Judge Capulong expression over Enrile's “right to privacy,” because
Enrile was a public figure and a public figure's right
to privacy is narrower than that of an ordinary
citizen. Besides, the movie “Four Days of
Revolution (sabi ni Cruz)” / “A Dangerous Life
(sabi ni Nachura)” / “The Four Day Revolution
(sabi sa case)” would not be historically faithful
without including therein the participation of Enrile

in the EDSA revolution.
US vs Bustos SC compared criticism of official conduct to a
“scalpel that relieves the abscesses of officialdom”
People vs Alarcon newspaper publications tending to impede,
obstruct, embarrass or influence the courts in
administering justice in a pending suit or
proceeding constitutes criminal contempt which is
summarily punishable by the courts.
In re Jurado a publication that tends to impede, embarrass or
obstruct the court and constitutes a clear and
present danger to the administration of justice is
not protected by the guarantee of press freedom
and is punishable by contempt.
It is not necessary that publication actually
obstructs the administration of justice, it is enough
that it tends to do so.
In re Sotto a senator was punished for contempt for having
attacked a decision of SC which he called
incompetent and narrow-minded, and announcing
that he would file a bill for its reorganization
In re Tulfo Tulfo's “Sangkatutak na Bobo” column was held
contumacious. Freedom of the press is
subordinate to the decision, authority and integrity
of the judiciary and the proper administration of
justice.
In re Laureta a lawyer was held in contempt and suspended
from the practice of law for wrting individual letters
to members of the SC division that decided a case
against his client, arrogantly questioning their
decision
Zaldivar vs a member of the Bar who imputed charges of
Sandiganbayan improper influence, corruption and other misdeeds
to members of the Supreme Court was suspended
from the practice of law as “neither the right of free
speech nor the right to engage in political
activities can be so construed or extended as to
permit any such liberties to a member of the bar.”
U. FREEDOM OF RELIGION
Section 5, Art. III. 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.
Religion defined
• “any specific system of belief, worship, conduct, etc., often involving a

code of ethics and philosophy” (defined by Cruz)
• In Aglipay vs Ruiz religion is defined as “a profession of faith to an active

power that binds and elevates man to his Creator.
Two Guarantees Contained Section 5, Art. III of the Constitution
(1) Non-establishment clause
(2) Free exercise of religious profession and worship
1. Non-establishment Clause
• reinforces Sec. 6, Art. II on the separation of church and State
• other provisions which support this: Sec 2(5), Art. IX-C [a religious sect or
denomination cannot be registered as a political party], Sec 5(2), Art. VI
[no sectoral representative from the religious sector], and Sec 29 (2), Art.
VI [prohibition against the use of public money or property for the benefit
of any religion, or of any priest, minister or ecclsiastic], Sec. 28 (3), Art. VI
[exemption from taxation of properties actually, directly and exclusively
used for religious purposes, Sec 4(2), Art XIV [citizenship requirement of
ownership of educational institutions except those owned by religious
groups], Sec 29(2), Art VI [appropriation allowed where the minister is
employed in the armed forces, penal institution or government-owned
orphanage or leprosarium]
Scope: The State

(a) cannot set up a church;
(b) cannot pass laws which aid one religion, all religions or prefer one over
another;
(c) cannot influence a person to go to or remain away from church against his
will; nor
(d) force him to profess a belief or disbelief in any religion.
Rationale:
• to delineate boundaries between the two institutions; and

• to avoid encroachment by one against the other.
• A union of Church and State would either:

◦ tend to destroy government and to degrade religion; or
◦ result in a conspiracy because of its composite strength
• separation of church and state is not a wall of hostility
• The Government is neutral. It protects all, but prefers none and

disparages none.
• Freedom of religion includes freedom from religion; the right to worship

includes right not to worship
Two values sought to be protected by the non-establishment clause:
(1) Voluntarism – the growth of a religious sect as a social force must come
from the voluntary support of its members because of the belief that both
spiritual and secular society will benefit if religions are allowed to compete
on their own intrinsic merit without benefit of official patronage.
(2) Insulation of the political process from interfaith dissension –

voluntarism cannot be achieved unless the political process is insulated
from religion and unless religion is insulated politics.
Engel vs Vitale recitation by students in public schools in New York of a

prayer composed by the Board of Regents was
unconstitutional
Everson vs Board US Supreme Court sustained the law providing free

of Education transportation for all schoolchildren without discrimination,
including those attending parochial schools
Board of US Supreme Court sustained the law requiring the
Education vs Allen petitioner to lend textbooks free of charge to all students
from grades 7-12, including those attending private
schools
In Everson and Allen, the government aid was given directly to the student and
parents, not to the church-related school
Adong vs Cheong in line with the constitutional principle of equal treatment
Seng Gee of all religions, the State recognizes the validity of
marriages performed in conformity with the rites of
Mohammedan religion
Rubi vs Provincial the expression “non-Christian” in “non-Christian tribes”
Board was not meant to discriminate. It refers to degree of
civilization, not to the religious belief.
Islamic Da'wah by arrogating to itself the task of issuing halal
Council of the certifications, the State has, in effect, forced Muslims to
Philippines vs accept its own interpretation of the Qur'an and Sunna on
Office of Exec. halal food.
Sec.
• Intramural Religious Dispute – outside the jurisdiction of the secular

authorities
Gonzales vs where a civil right depends upon some matter pertaining
Archbishop of to ecclesiastical affairs, the civil tribunal tries the civil right
Manila and nothing more.
Fonacier v CA where the dispute involves the property rights of the
religious group, or the relations of the members where the
property rights are involved, the civil courtws may assume
jurisdiction.
2. Free Exercise Clause
Two Aspects of Free Exercise Clause:
1. Freedom to Believe
(a) absolute
(b) includes not to believe
(c) “everyone has a right to his beliefs and he may not be called to
account because he cannot prove what he believes”
2. Freedom to Act According to One's Beliefs
(a) happens when the individual externalizes his beliefs in acts or omissions
(b) subject to regulation; can be enjoyed only with proper regard to rights of
others
(c) Justice Frankfurter: the constitutional provision on religious freedom

terminated disabilities, it did not create new privileges... its essence is
freedom from conformity to religious dogma, not freedom from conformity
to law because of religious dogma
German vs Barangan SC found that petitioners were not sincere in

their profession of religious liberty and were
using it merely to express their opposition to
the government
Ebralinag vs division SC reversed Gerona vs Sec. of Educ. , and
Superintendent of Schools of upheld the right of petitioners to refute to
Cebu salute the Philippine flag on account of their
religious scruples. To compel students to
take part in a flag ceremony when it is against
their religious beliefs will violate their religious
freedom.
People vs Zosa invocation of religious scruples in order to
avoid military service was brushed aside by
the SC
Victoriano vs Elizalde Rope SC upheld the validity of RA 3350, exempting
Workers Union members of a religious sect from being
compelled to join a labor union
American Bible Society vs City the constitutional guarantee of free exercise
of Manila carries with it the right to disseminate
information, and any restraint of such right
can be justified only on the ground that there
is a clear and present danger of an evil which
the State has the right to prevent;
Hence, City ordinance imposing license fees
to on sale is inapplicable to the society
Tolentino vs Sec. of Finance the free exercise clause does not prohibit
imposing a generally applicable sales and
use tax on the sale of religious materials;
the registration fee is not imposed for the
exerise of a privilege, but only for the purpose

of defraying part of the cost of registration
• Compelling State Interest test [Estrada vs Escritor]

• the constitution's religion clause's prescribe not a strict bu a
benevolent neutrality (which recognizes that government must
pursue its secular goals and interests, but at the same time, strive
to uphold religious liberty to the greatest extent possible within
flexible constitutional limits
• benevolent neutrality could allow for accomodation morality based

on religion provided it does not offend the compelling state interest
test.
• two steps (as regards the test):

▪ inquire whether respondent's right to religious freedom
has been burdened; and
▪ ascertain respondent's sincerity in her religious belief.
• In Centeno vs Villalon-Pornillos, the Court held that solicitiations for

religious purposes requires not a prior permit from DSWD as it is not
included in solicitations for “charitable or public welfare purposes.”
Religious Tests
• Purpose: to stop government's clandestine attempts to prevent a person

from exercising his civil of political rights because of his religious beliefs.
• In Pamil v. Teleron, Sec. 2175 of the Revised Adminsitrative Code is

questioned whether or not it is consistent with the religious clause of the
Constitution. Said Code disqualifies an “ecclesiastic” from being elected
or appointed to a municipal office. Seven Justices voted to consider this
a prohibited “religious test.” Five justices said it is not a religious test but a
safeguard against the constant threat of union of Church and State that
has marked the Philippine history. (Hence, since the majority vote needed
under the 1973 Constitution to nullify a statute was not reached, the
disqualification remains enforceable.)
People vs Zosa invocation of religious scruples in order to avoid military

service was brushed aside by the SC
V. RIGHT TO TRAVEL
Section 6, Art. III. 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.
Liberty Guaranteed by Sec. 6 Art. III
1. freedom to choose and change one's place of abode; and

2. freedom to travel both within the country and outside
Limitations
• Liberty of Abode – “upon lawful order of the court”
• Right to Travel – “national security, public safety or public health as may
be provided by law”
Caunca vs Whether a maid had the right to transfer to another

Salazar residence even if she had not paid yet the amount
82 Phil 851 advances by an employment agency:
Yes. The fortunes of business cannot be controlled by
controlling a fundamental human freedom.
Human dignity and freedom are essentially spiritual –
inseparable from the idea of eternal. Money, power, etc.
belong to the ephemeral and perishable.
Rubi vs Provincial The respondents were justified in requiring the members
Board of Mindoro of certain non-Christian tribes to reside in a reservation,
1919 for their better education, advancement and protection.
The measure was a legitimate exercise of police power.
Villavicencio vs Prostitutes, despite being in a sense lepers, are not
Lukban chattels but Philippine citizens, protected by the same
1919 constitutional guarantee of freedom of abode. They may
not be compelled to change their domicile in the absence
of a law allowing such.
Salonga vs the case became moot and academic when the permit to
Hermoso travel abroad was issued before the case could be heard.
97 SCRA 121
Lorenzo vs Dir. of Laws for the segregation of lepers have been provided the
Health world over and is supported by high scientific authority.

1927 Such segregation is premised on the duty to protect public
health.
Manotok vs CA Bail posted in a criminal case, is a valid restriction on the
1986 right to travel. By its nature, it may serve as a prohibition
on an accused from leaving the jurisdiction of the
Philippines where orders of Philippine courts would have
no binding force.
Marcos vs The liberty of abode and the right to travel includes the
Manglapus right to leave, reside and travel within one’s country but it
1989 does not include the right to return to one’s country.
NOTE: Court warned that this case should not create a
precedent because Marcos was a class in himself.
Philippine Right to travel may be impaired in the interest of national
Association of security, public health or public order, as may be provided
Service Exporters by law.
vs Drilon An order temporarily suspending the deployment of
1988 overseas workers is constitutional for having been issued
in the interest of the safety of OFWs, as provided by the
Labor Code.

CODES AND NOTES ON CONSTITUTIONAL LAW II

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CODES AND NOTES ON CONSTITUTIONAL LAW II

by PORFERIO JR. and MELFA SALIDAGA

NOTES AND CASES ON CONSTITUTIONAL LAW II

I. THE INHERENT POWERS OF THE STATE

Similarities, Distinctions, and Limitation

• they are inherent in the State

Police Power Eminent Domain Taxation

(a) Bill of Rights

Police Power – is an inherent power of the State to promote the welfare of

(a) cannot be bargained away through the medium of a treaty or contract

Who may exercise Police Power?

(a) the Legislature (inherent)

• Not being a political subdivision but merely an executive authority it has no

(a) Lawful subject – interests of the public generally, as distinguished from

Additional limitations (when exercised by delegate) [Nachura Reviewer]:

• express grant by law (e.g. RA 7160)

1. must not contravene the Constitution or any statute

• In Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor

Licenses for regulating non-useful occupation are incidental to the exercise of

Eminent domain is also known as expropriation, or condemnation.

Who may Exercise?

1. The Congress (inherent)

Eminent Domain Distinguished from Destruction from Necessity

Eminent Domain Destruction from Necessity

Requisites of Eminent Domain:

• genuine necessity, and

Requisites (Republic vs Castellvi):

(a) expropriator must enter a private property

• if taking is under police power, it is not compensable

Taking Under Eminent Domain vs Taking in Police Power :

Police Power Eminent Domain

• In Amigable v. Cuenca, where there is taking in the constitutional sense,

• In City Government v. Ericta, an ordinance of Quezon City, under the

• In Heirs of Ardona v. Reyes, the Court held that the Constitution

• Where only part of the property is expropriated: entitlement to

◦ Payment of the correct amount + Payment within a reasonable time

• Form of Compensation: Money (However, in Assoc. of Small

• Transfer of Title: payment of just compensation before title is

• Reckoning point of market value of property: either as of the date of

• Right of the landowner in case of non-payment:

• In De Knecht v. Bautista, the court ruled that the expropriation

• In City of Manila v. Chinese Community of Manila, the Court said that

• In Republic v. CA, the government argued that the nullification should

Power of Taxation – is a method by which contributions are exacted from

• Obligation to pay taxes is a duty

Power to Tax Includes Power to Destroy

(1) when used validly as an implement of the police power in discouraging

Power to Tax Does Not Include Power to Destroy

Who May Exercise

1. Legislature / Congress (inherent)

1. Due Process of Law

• Substantive : tax should not be confiscatory except when used as an

• Uniformity – persons or things belonging to the same class shall be taxed

◦ Requisites (Tan vs Del Rosario):

• Equitable taxation – based on the capacity to pay

• Equality in taxation – tax shall be strictly proportional to the relative value

• Progressive system of taxation – the rate increases as the tax base

• whatever may be beneficially employed for the general welfare

• Double Taxation / Direct Duplicate Taxation

◦ despite the lack of specific prohibition, double taxation will not be

• Tax Exemptions may either be:

◦ statutory- discretion of legislature