V.

BILL OF RIGHTS to the public

A. FUNDAMENTAL POWERS OF THE STATE 5. Just Compensation

1. Concept, application, limits, delegation and requisites
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.
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)
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 -
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.

1. must not contravene the Constitution or any

statute  Right of the landowner in case of non-payment:
2. must not be unfair and oppressive ◦ General Rule: landowner is not entitled to recover
3. must not be partial and discriminatory possession of the property, but only to demand
4. must not prohibit, but may regulate, trade payment
5. must not be unreasonable ◦ Exception: when the government failed to pay just
6. must be general in application and consistent compensation within 5 years from the finality of
with public policy judgment in expropriation proceedings, there is a right
to recover property

B. Eminent domain Power of Taxation – is a method by which contributions are exacted

from persons and property for the support of government and for all
Eminent Domain – is the use of the government of its coercive public needs.
authority, upon just compensation, to forcibly acquire the needed
property in order to devote the same to public use.
Who May Exercise
Eminent domain is also known as expropriation, or condemnation.
1. Legislature / Congress (inherent)
Who may Exercise? 2. President (by delegation / tariff powers [Sec. 28 (2), Art.
VI, Consti])
1. The Congress (inherent) 3. local legislative bodies (conferred by direct authority [Sec.
2. President 5, Art. X, Consti])
3. various local legislative bodies
4. certain public corporations (e.g. National Housing Limitations of Taxation:
Authority)
5. Quasi-public corporations (e.g. PLDT) 1. Due Process of Law
2. Equal Protection
3. Public Purpose
Taking Under Eminent Domain vs Taking in Police Power :

Differences:
Police Power Eminent Domain
 the prejudice  the individual Police Power Eminent Domain Taxation
suffered by suffers more
the than his aliquot As to regulates both liberty regulates property regulates
individual part of the regulation and property rights only property
property damages, i.e. a rights only
owner is special injury As to who only the government government and only the
shared in above that may exercise some private government
common sustained by entities
with the rest the rest of the
of the community As to the destroyed because it -wholesome -wholesome
community property is noxious or -taken for a -taken for a
taken intended for noxious public use or public use or
purpose purpose purpose
4. Public Use As to intangible altruistic full and fair protection and
Compensatio feeling that the equivalent of the public
Public use – is whatever may be beneficially employed for the n person has property improvements
general welfare, including both direct or indirect benefit or advantage
 contributed to the expropriated for the taxes
general welfare paid
B. PRIVATE ACTS AND THE BILL OF 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.
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.
C. DUE PROCESS
1. Relativity of Due process
The concept of due process is flexible for not all situations calling for
procedural safeguards call for the same kind of procedure. [Secretary
of Justice v. Lantion (2000)] Consideration of what procedures due
process may require under any given set of circumstances must begin
with a determination of the precise nature of the government function
involved as well as of the private interest that has been affected by
governmental action.” [Cafeteria & Restaurant Workers Union v.
McElroy (1961]. To say that the concept of due process is flexible
does not mean that judges are at large to apply it to any and all
relationships. Its flexibility is in its scope once it has been determined
that some process is due; it is a recognition that not all situations
calling for procedural safeguards call for the same kind of procedure.
[Morrissey v. Brewer(1972)]
2. Procedural and substantive Due Process
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)
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
3. Hierarchy of Rights
When the Bill of Rights also protects property rights, theprimacy of
human rights over property rights is recognized. Because these
freedoms are “delicate and vulnerable, as well as supremely precious
in our society” and the “threat of sanctions may deter their exercise
almost as potently as the actual application of sanctions,” they “need
breathing
space to survive,” permitting government regulation only “with
narrow specificity.” [Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co.,
Inc(1973)]
If the liberty involved were freedom of the mind or the person, the
standard for the validity of governmental acts is much more rigorous
and exacting, but where the liberty curtailed affects at the most rights
of property, the permissible scope of regulatory measure is wider.
[Ermita- Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila (1967)]

Substantive due process – requires intrinsic validity of the law in Under the present provision, understood in the light of established
interfering with the rights of the person to his life, liberty or property jurisprudence on the position of property in the hierarchy of
constitutional values, property stands a good chance of serving and
Requisites enhancing the life and liberty of all.
Running through various provisions of the Constitution are various
(a) Lawful Subject provisions to protect property—but always with the explicit or
implicit reminder that property has a social dimension and that the
(b) Lawful Means right to property is weighted with a social obligation. [Bernas]

4. Constitutional and Statutory Due Process

Procedural due process – is the restriction on actions of judicial and
quasi-judicial agencies of government. CONSTITUTIONAL DUE PROCESS
Basis: Constitution
Judicial Due Process Requirements: Procedural and Substantive Purpose. —(1) protects
individual against government; and (2) assures him of his rights in
Requisites: criminal, civil and administrative proceedings Effect of breach: gov’t
action void
(a) Impartial and Competent Court
STATUTORY DUE PROCESS
(b) Jurisdiction lawfully acquired over the person of t he
defendant and/or property Basis: Labor Code
Requirements. —procedural(the manner of dismissal) and substantive
(c) Hearing (valid and authorized causes of employment termination); and (2)
notice and hearing
• not necessarily trial-type hearing; submission of
position papers is enough Purpose: protects employees from being unjustly terminated without
just cause after notice and hearing.
• right of a party to cross-examine the witness against Effect of breach: does not void action but court provides for other
him in a civil case is an indispensable part of due process remedies There are three reasons why violation by the employer of
the notice requirement cannot be considered a denial of due process
• the filing of a motion for reconsideration cures the resulting in the nullity of the employee's dismissal or layoff:
defect of absence of a hearing
(1) The Due Process Clause of the Constitution is a limitation on
• Cases in which notice and hearing may be dispensed governmental powers. It does not apply
to the exercise of private power, such as the termination of
employment under the Labor Code.
(2) Notice and hearing are required under the Due Process Clause
before the power of organized society are brought to bear upon the
individual. This is obviously not the case of termination of
employment under Art.
283.
(3) The employer cannot really be expected to be entirely an impartial
judge of his own cause. [Serrano v. NLRC
(2000)]
5. Judicial Standards Review
“RATIONAL BASIS TEST”
There is an evil at hand for correction and the particular legislative
measure was a rational way tocorrect it.
[Williamson v. Lee Optical (1955)] This test is applicable for
economic legislations. [White
Light Corporation v. City of Manila (2009)]
“STRICT SCRUTINY TEST”
This test is triggered when a fundamental constitutional right is
limited by a law, (i.e. freedom of the mind and
curtailment of political process). This requires the government to
show an overriding or compelling government interest so great that it
justifies the limitation of fundamental constitutional rights (the courts
make the decision of whether or notthe purpose of the law makes the
classification necessary).
INTERMEDIATE SCRUTINY TEST
A third standard, denominated as heightened or immediate scrutiny,
was later adopted by the U.S.
Supreme Court for evaluating classifications based on gender and
legitimacy. Immediate scrutiny was adopted by
the U.S. Supreme Court in Craig. While the test may have first been
articulated in equal protection analysis, it has in
the United States since been applied in all substantive due process
cases as well. [White Light Corporation v. City of Manila (2009]
6. Void for Vagueness
An act is vague when it lacks comprehensible standardsthat men of
common intelligence must necessarily guess
at its common meaning and differ as to its application.The statute is
repugnant to the Constitution in 2 respects:
(1) It violates due process for failure to accord persons,especially the
parties targeted by it, fair notice of what
conduct to avoid,
(2) It leaves law enforcers an unbridled discretion incarrying out its
provisions.It is subject to the same principles governing
overbreadthdoctrine. For one, it is also an analytical tool for testing
"ontheir faces" statutes in free speech cases. Like overbreadth, it is
said that a litigant may challenge a statute on its face
only if it is vague in all its possible applications.
A facial review of PP 1017 on the ground of vagueness is
unwarranted. Petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of
common intelligence cannot understand the meaning and application
of PP 1017. [David v. Arroyo (2006)]
D. EQUAL PROTECTION
1. Concept
 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.
2. 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.
3. Standards of Judicial Review
“RATIONAL BASIS TEST”
There is an evil at hand for correction and the particular legislative
measure was rational way tocorrect it.
[Williamson v. Lee Optical (1955)] This test is applicable for
economic legislations. [White
Light Corporation v. City of Manila (2009)]
“STRICT SCRUTINY TEST”
This test is triggered when a fundamental constitutional right is
limited by a law, (i.e. freedom of the mind andcurtailment of political
process). This requires the government to show an overriding or
compelling government interest so great that it justifies the limitation
of fundamental constitutional rights (the courts make the decision of
whether or not the purpose of the law makes the classification
necessary).
INTERMEDIATE SCRUTINY TEST
A third standard, denominated as heightened or immediate scrutiny,
was later adopted by the U.S. Supreme Court for evaluating
classifications based on gender and legitimacy. Immediate scrutiny
was adopted by the U.S. Supreme Court in Craig. While the test may
have first been articulated in equal protection analysis, it has in the
United States since been applied in all substantive due process cases
as well. [White Light Corporation v. City of Manila (2009]
E. SEARCHES AND SEIZURES
1. Concept
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 (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
2. 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
5. Warrantless Arrest
1. in flagrante delicto
2. hot pursuit
3. the offender escaped from the penal establishment
 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.
4. Administrative Arrest
General Rule: Only the judge has the power to issue a warrant after
the proper procedure has been duly taken.
Exceptions:
(1) In cases of deportation of illegal and undesirable aliens, whom the
Presidentor the Commissioner of Immigration may order arrested,
following a final orderof deportation,for the purpose of deportation.
[Salazar
v. Achacoso (1990)]
(2) Warrant of arrest may be issued by administrative authorities only
for the purpose of carrying out a final
finding of a violation of law and not for the sole purpose of
investigation or prosecution. It may be issued only after the
proceeding has taken place as when there is already a final decision
of the administrative authorities.
5. Drug Alcohol and Blood Tests
The Court held that Randomized Drug Testing (RDT) for students
and employees does not violate the right to privacy in the
Constitution. Students do not have rational expectation of privacy
since they are minors and the school is in loco parentis. Employees
and students in universities, on the other hand, voluntarily subject
themselves to the intrusion because of their contractual relation to the
company or university. It is unconstitutional to subject candidates for
public office and criminals to RDT. The Constitution clearly provides
the requirements for candidates, and adding RDT would amount to
imposing an additional qualification. Criminals subjected to RDT
would violate their right against selfincrimination. [SJS v. Dangerous
Drugs Board (2008)]
F. PRIVACY OF COMMUNICATIONS AND
CORRESPONDENCE
(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. [Art.
III, Sec. 3]
1. Private and public communications
Requisites of existence of privacy right
(1) Subjective: A person has exhibited an actual expectation of
privacy; and
(2) Objective: The expectation be one that society is prepared to
recognize as reasonable. [Pollo v. Constantino- David (2011) citing
the Concurring Opinion of Justice Harlan in Katz v. US (1967)]
2. Intrusions when 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.
3. 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.
G. FREEDOM OF EXPRESSION
1. Concept and scope
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
a. Prior Restraint
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.
 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.
b. Subsequent Punishment
Freedom of speech includes freedom after speech. Withoutthis
assurance, the citizen would hesitate to speak for fear
he might be provoking the vengeance of the officials he has criticized
(chilling effect).
If criticism is not to be conditioned on the government’s consent, then
neither should it be subject to the government’s subsequent
chastisement.
Examples of Valid Subsequent Restraints:
(1) Libel. Every defamatory imputation is presumed to be malicious.
[Alonzo v. CA (1995)]
Exceptions:
(a) private communication in the performance of any legal, moral or
social duty
(b) fair and true report of any judicial, legislative or other official
proceedings
(2) Obscenity. The determination of what is obscene is a judicial
function. [Pita v. CA (1989)]
(3) Contempt for criticism/publications tending to impede, obstruct,
embarrass or influence the courts in
administering justice in a pending suit or proceeding (sub judice)
[People v. Alarcon (1939)]
(4) Imputation of irregularities in the judiciary must strike a balance
between the right to free press and the reputation of judges. A
reporter is prohibited from recklessly disregarding a private
reputation without any bona fide effort to ascertain the truth thereof
[In Re: Emil Jurado (1995)]
(5) Right of students to free speech in school premises must not
infringe on the school’s right to discipline its students [Miriam
College Foundation v. CA (2000)]
Exceptions:
 Fair comment on matters of public interest. Fair comment
is that which is true or, if false, expresses
the real opinion of the author based upon reasonable degree of care
and on reasonable grounds.
 Criticism of official conduct is given the widest latitude.
[US v. Bustos (1918)]
2. Content based and Content Neutral Regulations
a. Tests and Applications
DANGEROUS TENDENCY TEST
If the words uttered create a dangerous tendency of an evilwhich the
State has the right to prevent, then such wordsare punishable.
[Cabansag v. Fernandez (1957)] It is sufficient if the natural
tendency and the probable effect of the utterance were to bring about
the substantive evil that the legislative body seeks to prevent. [People
v.
Perez(1956)]
CLEAR AND PRESENT DANGER TEST
The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree.
[Schenckv. United States (1919)]
This rule requires that “the danger created must not only be clear and
present but also traceable to the ideas expressed”. [Gonzales v.
COMELEC (1969)]
Note: This test has been adopted by the Philippine SC lock, stock and
barrel and is the test most applied to cases re:freedom of expression.
BALANCING OF INTEREST TEST
When a particular conduct is regulated in the interest ofpublic order,
and the regulation results in an indirect, conditional and partial
abridgement of speech, the duty of the courts is to determine which
of the two conflicting
interests demands greater protection. [American Communications
Assoc. v. Douds, 339 US 282]
The test is applied when two legitimate values not involving national
security crimes compete.[Gonzales v.COMELEC (1969)]
DIRECT INCITEMENT TEST
The constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy
of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.[Brandenburg v. Ohio (395
U.S. 444)]
Political discussion even among those opposed to the present
administration is within the protective clause of
freedom of speech and expression. The same cannot be construed as
subversive activities per se or as evidence of
membership in a subversive organization. [Salonga v.
CruzPaño(1986)]
GRAVE-BUT-IMPROBABLE DANGER TEST
To determine the clear and present danger of the utterances bringing
about the evil which that legislature
has the power to punish, "In each case [courts] must ask whether the
gravity of the 'evil,' discounted by its
improbability, justifies such invasion of free speech as is necessary to
avoid the danger." In this case, an attempt to overthrow the
Government by force is a sufficient evil for Congress to prevent. It is
the existence of the conspiracy which creates the danger. [Dennis v.
US (1951)]
MILLER TEST (CCA-SL)
To determine obscenity:
(1) Whether the average person, applying Contemporary Community
standards would find that the work, taken
as a whole, Appeals to prurient interest
(2) Whether the work depicts or describes in a patently offensive way,
sexual conduct Specifically defined by
the applicable state law
(3) Whether the work, taken as a whole, Lacks serious, literary,
artistic, political, or scientific value [Miller v. CA
(1973) also applied in Fernando v. CA (2006)]
O’ BRIEN TEST (C-GUN)
To determine whether Content- Based or Content-Neutral:
(1) If it is within the Constitutional power of the Government
(2) If it furthers an important or substantial Government interest
(3) If the Government interest is Unrelated to the suppression of free
expression
(4) If the incidental restriction is No greater than is essential to the
furtherance of that interest COMELEC banned the publication of
surveys 15 and 7 days prior to election concerning national and local
candidates, respectively. The SC held that this regulation is content
based because applying the 3rd prong of the O-Brien Test, it actually
suppresses a whole class of expression, while allowing the expression
of opinion concerning the same subject matter by other opinion
takers. The prohibition may be for a limited time, but the curtailment
of the right of expression is direct, absolute, and substantial. [SWS
v.COMELEC (2001)]
3. Overbreadth Doctrine
A governmental purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the
area of protected freedoms.
4. State Regulations on different types of Media
(1) The ownership and management of mass media shall be limited
to citizens of the Philippines, or to corporations,
cooperatives or associations, wholly-owned and managed by such
citizens.
The Congress shall regulate or prohibit monopolies in commercial
mass media when the public interest so requires. No combinations in
restraint of trade or unfair competition therein shall be allowed.
(2) The advertising industry is impressed with public interest, and
shall be regulated by law for the protection of consumers and the
promotion of the general welfare.
Only Filipino citizens or corporations or associations at least seventy
per centum of the capital of which is owned
by such citizens shall be allowed to engage in theadvertising industry.
The participation of foreign investors in the governing bodyof entities
in such industry shall be limited to their proportionate share in the
capital thereof, and all the executive and managing officers of such
entities must becitizens of the Philippines. [Art. XVI, Sec. 11(1)]
The Court pronounced that the freedom of broadcast media is lesser
in scope than the press because of their
pervasive presence in the lives of people and because of their
accessibility to children.
MOVIE CENSORSHIP
When MTRCB rated the movie, “Kapit sa Patalim” as fit “For Adults
Only”, SC ruled that there was no grave abuse
of discretion. Censorship is allowable only under the clearest proof of
a clear and present danger of a substantive evil to public safety,
morals, health or any other legitimate public interest:
(1) There should be no doubt what is feared may be traced
to the expression complained of.
(2) Also, there must be reasonable apprehension about its
imminence. It does not suffice that the danger is only
probable. [Gonzales v. Kalaw-Katigbak (1985)]
Limited intrusion into a person’s privacy is permissible when that
person is a public figure and the information sought to be published is
of a public character. What is protected is the right to be free from
unwarranted publicity, from the wrongful publicizing of the private
affairs of an individual which are outside the realm ofpublic concern.
[Ayer Productions v. Capulong, supra]
TELEVISION CENSORSHIP
P.D. 1986 gave MTRCB the power to screen, review and examine all
television programs.
By the clear terms of the law, the Board has the power to “approve,
delete, or prohibit the exhibition and/or television broadcasts of
television programs. The law also directs the Board to apply
contemporary Filipino culture values as standard to determine those
which are objectionable for being immoral, indecent, contrary to law
and/or good customs injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to encourage
the commission of a violence or of a wrong or a crime.
The law gives the Board the power to screen, review and examine
ALL “television programs” whether religious, public affairs, news
documentary, etc. (Ubilex non distinguit nec distinguere de bemos-
when the law does not
make any exception, courts may not except something therefrom).
[Iglesia ni Cristo v. CA (1996)]
Also, notwithstanding the fact that freedom of religion has been
accorded a preferred status, Iglesiani Cristo’s program is still not
exempt from MTRCB’s power to review. Freedom of expression and
of the press has not been
declared of preferred status. [MTRCB v. ABS-CBN (2005)]
On the program of Dating Daan, Soriano made crude remarks like
“lihitimong anak ng demonyo, sinungaling,
etc.” MTRCB preventively suspended him and his show. SC held that
the State has a compelling interest to protect
the minds of the children who are exposed to such materials.
[Soriano v. Laguardia (2009)]
The SC could not compel TV stations and radio stations, being
indispensable parties, to give UNIDO free air time as
they were not impleaded in this case. UNIDO must seek a contract
with these TV stations and radio stations at its
own expense. [UNIDO v. COMELEC (1981)]
The television camera is a powerful weapon which intentionally or
inadvertently can destroy an accused and
his case in the eyes of the public. Considering the prejudice it poses
to the defendant’s right to due process as well as to the fair and
orderly administration of justice, and considering further that the
freedom of the press and the right of the people to information may
be served and satisfied by less distracting, degrading and prejudicial
means, live radio and television coverage of the court proceedings
shall not be allowed. No video shots or photographs shall be
permitted during the trial proper.Video footages of court hearings for
news purposes shall be limited and restricted. [Secretary of Justice v.
Sandiganbayan (2001)]
RADIO CENSORSHIP
The SC does not uphold claim that Far Eastern had no right to require
the submission of the manuscript. It is the
duty of Far Eastern to require the submission of a manuscript as a
requirement in broadcasting speeches. Besides, laws provide for such
actions: Act 8130. Franchise for Far Eastern; radio to be open to the
general public but subject to regulations Comm. Act 98. Sec. of
Interior and/or the Radio Board is empowered to censor what is
considered “neither moral, educational or entertaining, and
prejudicial to public
interest.” The Board can forfeit the license of a broadcasting station.
Sec. of the Interior, Dept. Order 13. Requires submission of daily
reports to Sec. of Interior/Radio Board re: programs before airing.
For speeches, a manuscript or short gist must be submitted. [Santiago
v. Far Eastern Broadcasting (1941)]
Strict rules have also been allowed for radio because of its pervasive
quality and because of the interest in the protection of children. [FCC
v. Pacifica Foundation (1978)]
5. Commercial Speech
Commercial speech is unprotected speech. Commercial advertising in
the U.S. has been accorded First Amendment protection but not in the
same level of protection given to political speech. One case set down
the requirements for protection of commercial speech:
(1) speech must not be false, misleading or proposing an illegal
activity;
(2) government interest sought to be served by regulation must be
substantial;
(3) the regulation must advance government interest; and
(4) the regulation must not be overbroad. [Bernas]
6. Private vs. Government Speech
Parliamentary immunity guarantees the members the freedom of
expression without fear of being made responsible in criminal or civil
actions before courts or forum outside of Congress. But this does not
protect them from responsibility from the legislative body. The
members may nevertheless be questioned in Congress itself. For
unparliamentary conduct, members of the Congress have been, or
could be censured, committed to prison, even expelled by the votes of
their colleagues. [Osmeña v. Pendatun (1960)
7. Heckler’s Veto
It is an attempt to limit unpopular speech. For example, an unpopular
group wants to hold a rally and asks for a permit. The government is
not allowed to refuse the permit based upon the beliefs of the
applicants. But the government can deny the permit, reasoning that it
is not because the government disapproves of the group's message, it
is just afraid that so many people will be outraged that there might be
violent protests. Under the Free Speech Clause of Sec. 4 Art. III, the
government may not silence speech based on the reaction (or
anticipated reaction) of a hostile audience, unless there is a "clear and
present danger" of grave and imminent harm, which is not easy to
prove.
F. FREEDON OF RELIGION
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 of Education US Supreme Court
sustained the law providing free transportation for all
schoolchildren without discrimination, including those
attending parochial schools
Board of Education vs Allen US Supreme Court
sustained the law requiring the 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 Seng Gee in line with the
constitutional principle of equal treatment of all
religions, the State recognizes the validity of
marriages performed in conformity with the rites of
Mohammedan religion
Rubi vs Provincial Board the expression
“non-Christian” in “non-Christian tribes” was not
meant to discriminate. It refers to degree of
civilization, not to the religious belief.
Islamic Da'wah Council of the Philippines vs Office of
Exec. Sec. by arrogating to itself the task of
issuing halal certifications, the State has, in effect,
forced Muslims to accept its own interpretation of the
Qur'an and Sunna on halal food.
• Intramural Religious Dispute – outside the
jurisdiction of the secular authorities
Gonzales vs Archbishop of Manila where a civil right
depends upon some matter pertaining to ecclesiastical
 affairs, the civil tribunal tries the civil right 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

3. Tests
 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.)